[House Hearing, 116 Congress]
[From the U.S. Government Publishing Office]
COMMERCE, JUSTICE, SCIENCE, AND RELATED AGENCIES APPROPRIATIONS FOR
2020
_______________________________________________________________________
HEARINGS
BEFORE A
SUBCOMMITTEE OF THE
COMMITTEE ON APPROPRIATIONS
HOUSE OF REPRESENTATIVES
ONE HUNDRED SIXTEENTH CONGRESS
FIRST SESSION
___________________________________
SUBCOMMITTEE ON COMMERCE, JUSTICE, SCIENCE,
AND RELATED AGENCIES
JOSE E. SERRANO, New York, Chairman
MATT CARTWRIGHT, Pennsylvania
GRACE MENG, New York
BRENDA L. LAWRENCE, Michigan
CHARLIE CRIST, Florida
ED CASE, Hawaii
MARCY KAPTUR, Ohio
ROBERT B. ADERHOLT, Alabama
MARTHA ROBY, Alabama
STEVEN M. PALAZZO, Mississippi
TOM GRAVES, Georgia
NOTE: Under committee rules, Mrs. Lowey, as chairwoman of the full
committee, and Ms. Granger, as ranking minority member of the full
committee, are authorized to sit as members of all subcommittees.
Bob Bonner, Jeff Ashford, Matt Smith, BG Wright,
TJ Lowdermilk, Shannon McCully, and Trisha Castaneda
Subcommittee Staff
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PART 5
Page
Understanding the Changing Climate
System and the Role of Climate Research.
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Oversight of the Department of Justice
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Gun Violence Prevention and
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National Science Foundation...........
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Members' Day..........................
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Printed for the use of the Committee on Appropriations
U.S. GOVERNMENT PUBLISHING OFFICE
36-826 WASHINGTON: 2019
COMMITTEE ON APPROPRIATIONS
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NITA M. LOWEY, New York, Chairwoman
MARCY KAPTUR, Ohio
PETER J. VISCLOSKY, Indiana
JOSE E. SERRANO, New York
ROSA L. DeLAURO, Connecticut
DAVID E. PRICE, North Carolina
LUCILLE ROYBAL-ALLARD, California
SANFORD D. BISHOP, Jr., Georgia
BARBARA LEE, California
BETTY McCOLLUM, Minnesota
TIM RYAN, Ohio
C. A. DUTCH RUPPERSBERGER, Maryland
DEBBIE WASSERMAN SCHULTZ, Florida
HENRY CUELLAR, Texas
CHELLIE PINGREE, Maine
MIKE QUIGLEY, Illinois
DEREK KILMER, Washington
MATT CARTWRIGHT, Pennsylvania
GRACE MENG, New York
MARK POCAN, Wisconsin
KATHERINE M. CLARK, Massachusetts
PETE AGUILAR, California
LOIS FRANKEL, Florida
CHERI BUSTOS, Illinois
BONNIE WATSON COLEMAN, New Jersey
BRENDA L. LAWRENCE, Michigan
NORMA J. TORRES, California
CHARLIE CRIST, Florida
ANN KIRKPATRICK, Arizona
ED CASE, Hawaii
KAY GRANGER, Texas
HAROLD ROGERS, Kentucky
ROBERT B. ADERHOLT, Alabama
MICHAEL K. SIMPSON, Idaho
JOHN R. CARTER, Texas
KEN CALVERT, California
TOM COLE, Oklahoma
MARIO DIAZ-BALART, Florida
TOM GRAVES, Georgia
STEVE WOMACK, Arkansas
JEFF FORTENBERRY, Nebraska
CHUCK FLEISCHMANN, Tennessee
JAIME HERRERA BEUTLER, Washington
DAVID P. JOYCE, Ohio
ANDY HARRIS, Maryland
MARTHA ROBY, Alabama
MARK E. AMODEI, Nevada
CHRIS STEWART, Utah
STEVEN M. PALAZZO, Mississippi
DAN NEWHOUSE, Washington
JOHN R. MOOLENAAR, Michigan
JOHN H. RUTHERFORD, Florida
WILL HURD, Texas
Shalanda Young, Clerk and Staff Director
(ii)
COMMERCE, JUSTICE, SCIENCE, AND RELATED AGENCIES APPROPRIATIONS FOR
2020
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Tuesday, February 26, 2019.
OVERSIGHT HEARING: UNDERSTANDING THE CHANGING CLIMATE SYSTEM AND THE
ROLE OF CLIMATE RESEARCH
WITNESSES
DR. MICHAEL H. FREILICH, DIRECTOR OF NASA'S EARTH SCIENCE DIVISION
DR. NEIL JACOBS, ASSISTANT SECRETARY OF COMMERCE FOR ENVIRONMENTAL
OBSERVATION AND PREDICTION
Mr. Serrano. The committee will come to order. Good morning
and welcome to our first CJS hearing of the 116th Congress.
And I want to take just a moment to clarify something: CJS
stands for Commerce, Justice, Science, it does not stand for
Congressman Jose Serrano. [Laughter.]
I have no committee named after me.
First, I would like to recognize and congratulate my friend
and colleague, Mr. Aderholt of Alabama, who will serve as
ranking member. I look forward to working with you in Congress
as we make important decisions on what investments to make and
continue our vital role in conducting oversight, to ensure the
executive branch is spending taxpayer dollars wisely and
investing in our nation.
I also want to welcome back returning members of the
subcommittee, including our vice chairman, Mr. Cartwright of
Pennsylvania.
Mr. Cartwright. Thank you.
Mr. Serrano. Ms. Meng, from my home state of New York, who
will be joining us in a little while; Mrs. Roby of Alabama;
and, Mr. Palazzo of Mississippi.
Members joining us for the first time are Mrs. Lawrence of
Michigan; Mr. Crist of Florida; Mr. Case of Hawaii; Ms. Kaptur
of Ohio, who in her spare time chairs the Energy and Water
subcommittee; and last, but not least, Mr. Graves of Georgia,
my colleague and ranking member of the Financial Services and
General Government subcommittee.
Welcome, everyone. It is a privilege and honor to serve
with you in this Congress, and I hope you find the work we do
on this subcommittee as rewarding as I have. We will agree and
disagree across many areas, but it remains incumbent upon all
of us to get a final product out of subcommittee, full
committee, and through both chambers of Congress that will make
us proud. I remain committed to meeting the challenges ahead
and doing that together.
And I must say, on a personal note, that this has always
been my favorite committee. I have served as ranking member
here with Chairman Harold Rogers, and so this is quite a day
for me. But I have as much desire as my colleagues on the
Republican side have to make sure that we get a bill out and
get a bill passed through both Houses.
And I want to welcome Dr. Neil Jacobs, who serves as
Assistant Secretary of Commerce for Environmental Observation
and Prediction, and, as of yesterday, NOAA's Acting
Administrator--as of yesterday, right, and today? [Laughter.]
Not the acting. Congratulations.
In this new role, Dr. Jacobs will oversee NOAA's $5.4
billion budget, which in addition to including NOAA's Sea, Air,
Land, and Space Observing Platforms and the critical
environmental data they provide, it will now also cover the wet
side of NOAA, and all of its work in fisheries and coastal
management.
Prior to joining NOAA, Dr. Jacobs served as Chief
Atmospheric Scientist at Panasonic Avionics Corporation, was
Chair of the American Meteorological Society's Forecast
Improvement Group, and served on the World Meteorological
Organization's Aircraft Base Observing System expert team.
Next I also want to welcome Dr. Michael Freilich, who has
served as the Director of NASA's Earth Science Division in the
Science Mission Directorate at NASA Headquarters since 2006.
His creative retooling of the Earth Science Division's approach
to research has been widely credited with protecting and
enhancing the agency's vital work.
Prior to his tenure at NASA, he spent most of his career as
professor and as Associate Dean at Oregon State University's
College of Oceanic and Atmospheric Science, and member of the
technological--technical staff at the Jet Propulsion Laboratory
in California. This statement is really a test on how well you
can handle the English language and, being that English is a
second language too, I am still dealing with it.
Dr. Freilich, it is my understanding that you will soon be
retiring from NASA. The agency has giant shoes to fill given
the many years you have dedicated to this field. Thank you for
your service to the American people. We wish you well on this
new and exciting chapter of your life.
Both NOAA and NASA have critical missions. What they are
observing both above and below us is affecting us in many ways.
This hearing will help us learn from two leading experts about
how climate is changing; how that will impact our country and
economy in the short and long term; what research these
agencies are conducting to help prepare us for the future; and
how strategic investments from our subcommittee will help meet
those challenges.
Over the weekend it was reported that the White House plans
to name an ad hoc group of scientists with alleged ties to the
fossil fuel industry to refute November's Interagency National
Climate Assessment Report that I have here. This unaccountable
working group appears set to deliberately cherry-pick data and
science with the sole purpose of pushing back against the
widely accepted science around climate change. Ths only serves
to diminish the magnitude of this crisis and it is dangerous.
It also undermines the important climate research being
conducted by the board of scientists at Federal agencies like
NOAA and NASA.
As I have said many times, it is more than evident that our
climate is changing, and doing so very rapidly. The people of
Puerto Rico saw this firsthand as they experienced the largest
national disaster in their history with Hurricane Maria.
From the droughts fueling wildfires out West in California
to hurricanes devastating the continental Southeast year after
year, our Earth is experiencing record temperatures that cause
extreme weather, affect food supplies, and devastate local
economies. The Federal Government must have the tools and
resources it needs to study these changes, so we can prepare
and respond accordingly. The CJS subcommittee leads the way in
this effort.
Gentlemen, it is a privilege to have you join us for this
important discussion, and to learn from your expertise on this
subject from the perspective of the agencies you represent.
And, as I told Mr. Culberson, who was the former chair of this
committee, if we can't agree that there is climate change, can
we at least phrase it in this way: something is going on and we
have to look at it.
Before we begin, I would like to recognize my friend and
colleague, and a person I am really looking forward to working
with in trying to reach agreement as much as possible, so we
can do the work we have to do, Mr. Aderholt for his opening
remarks.
Mr. Aderholt. Thank you, Mr. Chairman, and thanks for
yielding. Let me first say congratulations to you on your new
chairmanship, it is well deserved and well earned.
As most of you in this room know, Mr. Serrano is a very
hardworking and well-respected member of the Appropriations
Committee, and I am honored to serve alongside him as ranking
member. I am thankful for his friendship that we have
maintained over the many years and look forward to working
together with him, as well as working in this Subcommittee on
Commerce, Justice, and Science. And it is my hope that, as we
enter this new Congress, we will continue to reach across the
aisle and tackle those tough issues that our constituents face
each and every day.
Like the chairman, I would also like to take a moment to
welcome our witnesses to this subcommittee this morning, Dr.
Neil Jacobs and Dr. Michael Freilich. Thank you for joining us
today and your service to NOAA and to NASA both.
And, as the chairman mentioned, Dr. Jacobs, congratulations
on being named as Acting Administrator at NOAA, and we look
forward to working with you in that capacity.
As we await the arrival of the fiscal year 2020 budget
request, I want to thank Chairman Serrano for holding this
oversight hearing. It is important that the committee hold
these types of hearings to gain a better understanding of the
priorities and the work of the agencies that are under our
jurisdiction.
Today's hearing focuses on the topic of, that is important
to all of us, climate change. It is not a new issue or an idea,
and here in Congress we have debated the climate issue for many
decades. Most of us agree that the climate is changing and we
want to be good stewards of the Earth, so that our children and
our future generations can enjoy a healthy environment, but we
often disagree about the major drivers of climate change, the
best way to address it and how to prepare for the future.
As members of Congress, I believe that we should focus on
fostering innovative ideas to address the changing climate. We
should be exploring and investing in technologies that reduce
pollutants and protect the long-term health of our planet, but
do not impede energy development. After all, Congress should
promote the all-of-the-above energy solutions policy.
To succeed, the United States needs a broad portfolio of
affordable energy technologies to create cleaner energy. A
priority should be placed on putting forth realistic, market-
based solutions for the United States dominance of the clean
energy market.
Climate solutions need not compromise the American economy
or put unnecessary stress on the American family. Research
being done at NOAA and NASA is making significant contributions
in the advancement of earth science and its applications, and
it plays a critical role in informing our policymaking efforts.
Therefore, when it comes to climate research, it is imperative
that we focus our resources on advancing our space and ground
observation and measurements to improve data accuracy,
sustainability, and validity. This will allow us to speculate
less, gain a better understanding of the complex relationship
between Earth's changing climate and weather patters, and
formulate more concrete, long-term climate models.
Mr. Chairman, I hope today we can have a thoughtful
dialogue about the observations, models, and scientific
analysis that NOAA and NASA carry out to better understand this
ever-changing plant we call Earth. NOAA and NASA's
technological and scientific abilities apply to us as
policymakers to understand climate trends, impacts, and risks,
so that we are equipped with the information to best prepare
our nation in the future.
Mr. Chairman, thank you for letting me share my opening
remarks and, again, to welcome our witnesses that are here
before us this morning, and I look forward to the testimonies
and the discussion that lie ahead, and I yield back.
Mr. Serrano. Thank you, Mr. Aderholt. Thank you.
Dr. Jacobs, you are recognized, at this time for your
opening comments.
Dr. Jacobs. Good morning, Mr. Chairman and members of the
committee. Thank you for this opportunity to testify at this
hearing.
NOAA plays an essential role in advancing scientific
understanding of Earth's climate system through sustained
observations, integrated modeling, and interdisciplinary
research. Accurate observations of the current state of the
environmental conditions are critical to building a robust and
reliable time series of historical data that is required to
enable a more complete understanding of the complex processes
that regulate Earth's climate.
NOAA's observing system network extends throughout the
oceans, measuring key metrics including temperature, currents,
chemistry, and sea level. Terrestrial observations monitor
precipitation, soil moisture, land use, vegetation, snow cover,
glaciers, and sea ice, as well as many derived data sets from
proxy data.
NOAA samples the physical and chemical properties of the
atmosphere through a wide range of systems, from in situ
observations provided by weather balloons and aircraft, and
surface instrumentation, to remotely sensed satellite data.
High quality, uninterrupted, long-term measurements of
greenhouse gases, aerosols, water vapor, ozone, and ozone-
depleting gases are essential. Quantifying the sources and
sinks of each of these climate-forcing agents and
characterizing the roles they play in the climate system are
vital to advancing the state of knowledge and climate science.
Throughout collaboration with our NASA colleagues, NOAA's
Space Weather Prediction Center monitors total wavelength-
integrated energy from sunlight, which is referred to as a
total solar irradiance. To derive meaningful information on
trends and interactions from these observations, they must be
monitored for decades or longer.
NOAA's climatological predictive capabilities span the
medium range and sub-seasonal to seasonal and beyond. Our suite
of prognostic tools can be divided into statistical and
dynamical models. The monthly to seasonal forecasts come from
the Climate Forecast System, or CFS, which is based on the
Global Forecast System, as well as the North American Multi-
Model Ensemble, which is a suite of seven different models.
This forecast projects out 9 months, but research is being done
to extend the longer-range predictions out to 24 months.
Prediction of climate variations, ranging from El Nino and
Madden-Julian Oscillation, to sudden stratospheric warming
events altering the polar vortex, provide long-range
probabilistic guidance on when future conditions will be
favorable for extreme weather events that impact lives and
property, from tornados and hurricanes, to cold air outbreaks,
heat waves, and flooding.
The next generation CFS will be FV3-based atmospheric model
that is two-way coupled to an ocean model with increasingly
realistic representations of physical and chemical
interactions. The new CFS will be a part of NOAA's transition
to the unified forecast system, which spans large time scales
and space scales with a common architecture.
Decadal forecasts, produced by NOAA's Geophysical Fluid
Dynamics Laboratory, are used in long-range projections. The
verification of these models is made using historical analyses
and reforecasts. In order to extract a meaningful signal, a
large ensemble of models and substantial high- performance
computing resources are required.
In addition to the suite of dynamical models, NOAA runs
several statistical models. These statistical models include
canonical correlation analogs, regressions from post-process
dynamical model output. These are valuable assets, not just as
predictive tools, but also a means to refine and improve the
dynamical models.
In an effort to improve transparency, NOAA makes all of its
data, from raw observations to post-process model output,
available to the public via archives preserved at NOAA's
National Centers for Environmental Information. In addition to
the data, the source code that is used to process the data is
also made available. However, much of this existing code lacks
sufficient documentation and support. This makes experiment
replication and software change justification challenging for
those outside the climate science field.
With limited resources, we believe it is best to focus
investment on developing more accurate and reliable models.
Substantial progress has been made over the last several
decades in observations modeling and understanding, but the
mission remains incomplete. Key scientific uncertainties limit
scientists' ability to understand and forecast changes in the
climate system. Factors responsible for climate- forcing and
those underlying climate variability need to be better
characterized and quantified to improve the nation's ability to
predict the future state of the climate system, including the
occurrence of extreme events, with more accuracy than today.
Mr. Chairman, Ranking Member Aderholt, and members of the
subcommittee, thank you again for inviting me here to testify.
I would be pleased to answer any questions you may have about
NOAA's climate programs.
[The information follows:]
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
Mr. Serrano. Thank you, Dr. Jacobs.
Dr. Freilich, you are recognized now.
Dr. Freilich. Chairman Serrano, Ranking Member Aderholt,
Members, thank you for the opportunity to discuss NASA's roles
and contributions to understanding our planet, including
climate research.
The changing climate has profound impacts and opportunities
for us and for our adversaries. Global average sea level is
rising, impacting our nation's coastal infrastructure and the
more than 100 million people worldwide who today live within a
meter of sea level. Our satellite measurements show us not only
how much, but why sea level is changing.
Average surface temperatures are rising. Since 2000, we
have seen 18 of the 19 warmest years ever measured. Rising
temperatures impact agriculture, transportation, disease
vectors, and ecosystems everywhere.
Arctic sea ice is decreasing and thinning, and the
Greenland and Antarctic ice sheets are evolving. NOAA and NASA
measurements suggest that extreme weather events are becoming
more frequent and intense.
Now, NASA measures and monitors these changes from space,
then we use the measurements and our research programs to
understand the natural processes that define our environment.
The changing climate also presents us with profound
responsibilities. Only humans can alter our present actions
based on what we think the world will be like generations in
the future, but NASA does not make policy decisions; rather, we
take the measurements and conduct the research. NASA makes the
facts and the understanding available to you, decision-makers,
to help inform your decisions, and to monitor whether policies
that you decide upon are having their intended effect.
Now, the fact that we know with certainty that the climate
is changing is actually a profound testament to our nation's
technological and scientific abilities. NASA's and NOAA's
satellites monitor most of the Earth's natural processes.
Climate scale trends have all been detected from space.
Our applied sciences activities transform the measurements
and the understanding into information products that improve
lives.
Now, NASA has 22 Earth-observing research satellite
missions on orbit, and 14 more are in development for launch
before fiscal year 2023. Just this past year, in 2018, we
launched five major Earth missions and instruments, and our
next launch will be the Orbiting Carbon Observatory-3 to the
International Space Station in late April.
Most of our missions involve international and interagency
collaboration. We collaborate with the U.S. Geological Survey
on Landsat, and we develop instruments and satellites jointly
with NOAA. We also work with NOAA, the Navy, and the Air Force
to transition research products into operational environmental
predictions.
Our Earth Science budget supports high-end computing for
all of NASA, programs for early career scientists, and,
importantly, the development of Earth system models, including
global climate models.
In the applied sciences, the NASA and U.S. Agency for
International Development program called SERVIR, improves
environmental understanding and decision-making capacity in
developing nations. We help our nation and our international
partners respond to natural disasters. In fiscal year 2018, our
Disasters Applications program supported U.S. and international
response to earthquakes and tsunamis, the California wildfires,
floods and landslides around the world, volcanic eruptions, and
hurricanes and typhoons.
We innovate. NASA invests in technology developments and we
are demonstrating many of those new technologies, on CubeSats,
little satellite missions. We put Earth-observing instruments
on the International Space Station, and we are flying satellite
constellations to demonstrate the observing systems of the
future.
We are building instruments, NASA research instruments to
fly as hosted payloads on commercial satellites in
geostationary and low-Earth orbit, partnering with the private
sector to fly on their satellites. And we have contracts with
three private New Space companies to purchase their Earth-
observing data from small satellite constellations.
After evaluations, we plan to pursue long-term data-buy
contracts, benefitting both the government and the private
sector. And NASA-funded research results and NASA personnel
were foundational contributors to the Fourth National Climate
Assessment.
So, while the largest uncertainties in predicting the long-
term future climate result from our lack of knowledge of future
human decisions, the satellite observations help us to advance
Earth system science, and enable better resource management and
decision-making.
Only from space can we measure all of the important
quantities that link all of the space and time scales, and
understand our complex planet in order to help improve lives.
Thank you again for this opportunity to discuss NASA's
activities to observe and understand the Earth, and I too would
be pleased to respond to questions.
[The information follows:]
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
Mr. Serrano. Thank you.
Despite the White House's recent call for a new panel to
review the science around climate change, the National Climate
Assessment, along with the Intergovernmental Panel on Climate
Change's recent report, these are the foremost documents
explaining the changing climate, and its impacts on the planet
and society.
For both witnesses, and if you could please just give me a
yes or no answer to this, would you agree with that assessment?
Dr. Jacobs. Well, my agency was one of the 13 agencies that
signed off on it. So, based on the assumptions that they made
on the RCP projections, yes.
Dr. Freilich. And for the same reasons NASA also signed off
on it and was a foundational contributor; yes.
Mr. Serrano. Thank you. Now I would like to walk through
some of the top-level findings of the National Climate
Assessment.
From the first two paragraphs of Chapter 1, it begins,
``Earth's climate is now changing faster than at any point in
the history of modern civilization, primarily as a result of
human activities.'' Would you agree or disagree with this
statement?
Dr. Jacobs. Certainly, if you remove natural variation like
ENSO and PDO, then the remaining trend is anthropogenic.
Dr. Freilich. Yes.
Mr. Serrano. Continuing from the report, and I quote, ``The
impacts of global climate change are already being felt in the
United States and are projected to intensify in the future.''
Would you agree or disagree with that statement?
Dr. Jacobs. All four scenarios, two of which were included
in NCA4, trend upward; so, yes.
Dr. Freilich. Yes.
Mr. Serrano. ``Further, the severity of future impacts will
depend largely on actions taken to reduce greenhouse gas
emissions and to adapt to the changes that will occur.'' Would
you agree or disagree with that statement from the report?
Dr. Jacobs. It depends on which pathway you actually look
at. The severity of 8.5 is obviously more severe than the other
three, but certainly it is an undisputed fact that humans are
producing the CO2. What is not discussed in there is
the removal of carbon sinks like vegetation.
So you can also increase the levels of CO2 by
removing the sinks.
Mr. Serrano. Thank you. So you are saying that there is
human cause, but there are other causes too, is your belief?
Dr. Jacobs. That is correct. And in most cases humans are
removing the sinks as well.
Mr. Serrano. And your answer?
Dr. Freilich. Basically, yes. On the time scale of the next
couple of centuries, what we do in terms of putting fossil fuel
carbon into the atmosphere and not regulating, but removing and
constraining carbon levels in the atmosphere will be the most
important thing for defining our planet.
Mr. Serrano. Thank you.
Now skipping down to the second paragraph of the report,
``Climate-related risks will continue to grow without
additional action.'' Would you agree or disagree with that
statement?
Dr. Jacobs. NOAA's role in that report was just providing
transparent and defendable information as far as the
atmospheric measurements, so that is beyond the scope of our
agency.
Mr. Serrano. That is a yes or a no?
Dr. Jacobs. That is not what our agency is in charge of.
Mr. Serrano. Yes, sir.
Dr. Freilich. A similar answer from NASA. It is our job at
NASA to make the measurements, to provide the understanding
based on our research, and then to make that information
available to you, the policymakers, to inform and guide your
policy decisions.
Mr. Serrano. ``Decisions made today determine risk exposure
for current and future generations that will either broaden or
limit options to reduce the negative consequences of climate
change.'' That is another part of the report; would you agree
with that, yes or no?
Dr. Jacobs. Well, the report actually discusses that it
doesn't evaluate the feasibility or socioeconomic assumptions
with the RCP, so that is also probably beyond the scope of our
agency.
Mr. Serrano. Doctor?
Dr. Freilich. Decisions made today will influence the
evolution of our climate, yes.
Mr. Serrano. Thank you.
Finally, and I quote, ``While Americans are responding in
ways that can bolster resilience and improve livelihoods,
neither global efforts to mitigate the causes of climate
change, nor regional efforts to adapt to the impacts, currently
approach the scales needed to avoid substantial damage to the
U.S. economy, environment, and human health and well-being over
the coming decades.''
Would you agree on that statement, with that statement, yes
or no?
Dr. Jacobs. If the policymakers decide to address this, it
certainly needs to be done on a global scale, not a regional
scale.
Dr. Freilich. And, again, that is quite policy- dependent.
What we can do at NASA and in NOAA is, based on our
measurements and our understanding and our models, we can
present to you the regional and global impacts of potential
impacts of policies that you may be considering.
Mr. Serrano. Thank you for indulging me, gentlemen, with
that, but I felt it was important to get all of that on the
record. According to the U.S. Government's best scientists, we
are not doing nearly enough to avoid substantial damage to our
economy and human health from the impacts of climate change. I
thank you both for your answers.
And Mr. Aderholt.
Mr. Aderholt. Thank you, Mr. Chairman.
There is a tendency among the general public in the climate
debate to cite shorter-scale weather events as evidence for and
against climate change. In your testimonies you said that
thanks to satellite measurements and scientific analysis, you
are increasingly able to detect climate threats and separate
them from the environmental variability we know as weather.
Can you give us an example of a recent extreme weather
event of variability that, while not inconsistent with the
trends you associate with climate threats, you nevertheless
would distinguish as separate from what you would consider
evidence of climate change?
Dr. Freilich. So the intent of the quote that you read was
to say that we are able to understand the underlying trends in
the midst of a lot of instantaneous variability, if you will,
in the quantities that we are measuring. The short-term
variability is what we call weather, and the longer-term
variability and trends are related more to climate.
Now, what we have both said in our testimonies is that the
changing climate is changing the statistics, the frequency and
the intensity of weather events. So to say that a particular
weather event--and studies have been done at the National
Academies on this--is, quote, ``the result of climate
changing,'' is not exactly precise. But to look at the sum
total of weather events, where they are happening--extreme
events--where they are happening, their magnitudes and their
frequency, those statistics are being impacted by climate.
Mr. Aderholt. Dr. Jacobs.
Dr. Jacobs. So, to add to what Dr. Freilich just said,
there are two other things.
So I would separate short-term natural climate variability
from long-term trends. So, for example, we have an El Nino
signal; in 1998, there was a very strong El Nino that produced
extremely high temperatures. So a lot of--and that is still
something that we would call climate, more climate than
weather.
And then there are instances where you are actually looking
at hurricane intensity and frequency of those, and a lot of
those studies are actually done by using climate projections.
So a future projection of what the sea surface temperature of
water will be like 100 years from now and then running
hurricane simulations with those projected conditions.
So the findings based on those studies, some of them show
increased frequency, some show decreased frequency, most show
increased intensity, but they are predictions based on
predictions. So the underlying assumption is that one of those
particular emissions scenarios will actually materialize.
Mr. Aderholt. What is, would you say is more difficult for
scientists to predict, climate trends over the next 50 years or
weather over the next 50 years?
Dr. Jacobs. Well, the skill of our weather forecast models
is really limited to probably 2 weeks or less, but I would
imagine that the evolution of the forecast skill in the weather
model is improving quite rapidly. That is something that is an
initiative of mine that we are working on right now.
The trends in climate rely on much more complex feedbacks
and interactions. And so actually predicting changes in climate
is far more complicated than predicting changes in weather.
Mr. Aderholt. Dr. Freilich.
Dr. Freilich. I would agree with Dr. Jacobs on most of
that. Again, the ultimate sort of 50-to-100-year evolution of
our climate depends in not insignificant amounts on the policy
decisions that you will be making, and those are not built into
our climate predictions.
Earth is a very complex system; we have Earth system
models, but, as Dr. Jacobs said, they are all based on
particular assumptions about what humans will do, as well as
knowledge that we have generated on the Earth's natural
processes and their interactions. That makes it a very complex
prediction system, as Neil said.
Mr. Aderholt. So, between the two, would you agree that
climate is more difficult?
Dr. Freilich. I think so.
Dr. Jacobs. Yes.
Mr. Aderholt. All right.
Dr. Freilich. But you phrased the question as predicting
weather 50 years from now----
Mr. Aderholt. Yes.
Dr. Freilich [continuing]. And I think that is probably--I
think NOAA would agree that that is probably beyond our
capabilities.
Dr. Jacobs. Yeah, I interpreted that to mean weather
prediction 50 years from now----
Dr. Freilich. Skill.
Dr. Jacobs [continuing]. Skill, not a 50-year weather
prediction.
Mr. Aderholt. Right. Yes, exactly. [Laughter.]
That would be a little bit more difficult.
I yield back.
Mr. Serrano. Thank you.
Just to remind everyone, we will rotate from one side to
the other and speakers will be based on where you were when the
gavel went down and seniority, but who was here at that time.
So, with that in mind, and no matter how I try to explain
it, Mr. Cartwright is next.
Mr. Cartwright. I am going to take that as a compliment,
Mr. Chairman.
Mr. Serrano. It is a compliment.
Mr. Cartwright. Thank you.
Dr. Freilich, Dr. Jacobs, thank you for being here today. I
want to talk about support for the scientific validity of the
National Climate Assessment first.
Dr. Jacobs, in describing NOAA's role, you have said, ``We
have got a job to produce the most accurate, robust, and
defendable science. Policymakers need to be able to trust the
science.'' Have I quoted you correctly?
So are you and your staff faithfully fulfilling this
responsibility?
Dr. Jacobs. Yes.
Mr. Cartwright. And did NOAA sign off on the National
Climate Assessment? I think you already said so.
In Chapter 13 of the NCA it says, quote, ``There is robust
evidence from models and observations that climate change is
worsening ozone pollution. This poses a significant challenge
for air quality management.''
And are those claims backed up by robust and defendable
science?
Dr. Jacobs. Everything in there is based on peer- reviewed
literature.
Mr. Cartwright. And in Chapter 14 of the NCA it says,
quote, ``The health and well-being of Americans are already
affected by climate change,'' unquote, and that health will
further deteriorate if climate change continues.
And, again, are those claims backed up by robust and
defendable science?
Dr. Jacobs. That is beyond the scope of NOAA's
jurisdiction.
Mr. Cartwright. From chapter 16 of the National Climate
Assessment I read, quote, ``Climate-related disasters in
developing countries not only have significant regional, local
and regional socioeconomic impacts, but also set back U.S.
investments, humanitarian assistance, and national security.''
Is that claim backed up by robust and defendable science?
Dr. Jacobs. Well, we monitor the storms, but not
necessarily the socioeconomic impacts.
Mr. Cartwright. I will go to you Dr. Freilich. Is that
claim backed up by robust and defendable science?
Dr. Freilich. Again, the science on impact is
extraordinarily complex, but the measurements of inputs and
forcing is strong and robust and transparent.
Mr. Cartwright. OK. And, Dr. Freilich, when looking at the
NCA, would you say that the projected climate change in the NCA
is based on scientific and peer-reviewed data?
Dr. Freilich. Absolutely.
Mr. Cartwright. And does the NCA represent our foremost
experts, including yours and Dr. Jacobs' most accurate
estimates of our climate future?
Dr. Freilich. The NCA is a comprehensive, scientifically
rigorous analysis and assessment of the available information
primarily from the U.S. Government, yes.
Mr. Cartwright. And in fact in your written testimony I
noted that you both bolded and italicized the words, quote,
``know with certainty.'' Did I pick that up correctly?
Dr. Freilich. You did.
Mr. Cartwright. And that was when you described climate
change.
Recently, White House Press Secretary Sarah Sanders
described the NCA as, quote, ``The most extreme version and it
is not based on facts,'' unquote.
So, Dr. Freilich, do you know who is advising Sarah Sanders
on climate change?
Dr. Freilich. I do not. NASA and NOAA are--is involved in
the U.S. Global Change Research Program, that 13-agency
program. We collaborate across the federal government and help
to provide assessments such as the NCA----
Mr. Cartwright. I don't mean to interrupt, but I only have
5 minutes.
Dr. Freilich. I'm sorry.
Mr. Cartwright. Did she check with you before making that
statement?
Dr. Freilich No.
Mr. Cartwright. You, Dr. Jacobs?
Dr. Jacobs. So----
Mr. Cartwright. Did she check with you before making that
statement?
Dr. Jacobs. No.
Mr. Cartwright. Okay.
Dr. Jacobs. The RCP 8.5 was the most extreme scenario, but
the NCA4 also used 4.5, which is a more medium- range scenario,
but the impacts attributed to each weren't specifically broken
out.
Mr. Cartwright. Is Ms. Sanders' description an accurate
representation of the NCA, Dr. Freilich?
Dr. Freilich. Well, as you saw as I was talking perhaps, we
have made measurements of climate indicators and many aspects
of the Earth's system, and it is clear that the climate is
changing from our long history of measurements and our
transparent and open analyses that are available to everyone.
Mr. Cartwright. To say that it is not based on facts, is
that an accurate representation by Sarah Sanders?
Dr. Freilich. What we present are based on measurements and
open analyses.
Mr. Cartwright. And both NASA and NOAA signed off on the
NCA report; am I correct in that?
Dr. Freilich. Correct.
Mr. Cartwright. All right, my 5 minutes are up. I yield
back, Mr. Chairman.
Mr. Serrano. Thank you.
Mr. Palazzo.
Mr. Palazzo. Thank you, Mr. Chairman. And, Dr. Freilich,
thank you for being here today. I want to congratulate you on
your pending retirement. So, thank you for everything that you
have done for NASA; your work hasn't gone unnoticed.
Dr. Jacobs, I also want to thank you for being here today.
NOAA is a global leader in climate research, observing all the
world's oceans and major seas. I am proud to represent the
Mississippi Gulf Coast, which is home to NOAA's National Data
Buoy Center.
For my colleagues who don't know, the center records
crucial ocean data. From hurricane alerts to safeguarding our
wildlife, Southern Mississippi knows the value of accurate and
timely climate research.
So, Dr. Jacobs, can you speak to the important
contributions the National Data Buoy Center makes to NOAA's
research?
Dr. Jacobs. So the buoy data is extremely critical in both
weather and climate forecasting, because collecting surface
observations--in surface observations, not space-based
observations, over the ocean is extremely complicated, because
you have to physically be there.
Surface pressure obs are one of the most impactful
observation that we put in the weather models. And these are
also observations that we use to cross-check with sea surface
temperatures that we derive from satellite imaging.
Mr. Palazzo. Dr. Jacobs, also in your testimony you
mentioned that implementing the Earth Prediction Innovation
Center, EPIC, is among NOAA's highest priority; you state that
it will directly benefit taxpayers.
Can you elaborate on what the program is and why it is so
important?
Dr. Jacobs. Sure. So this particular center accelerates
research to operations and we are streamlining our modeling
suite by combining our weather models with the same dynamic
core as our climate models, and packaging the software in a way
that can be run by the community. So various universities and
academic institutions can download and run, and help develop
and advance this software.
What we are also doing is porting this code over to cloud-
based architecture, which addresses another problem which we
have is limited high-performance computing resources. If we are
able to actually scale research across cloud, we don't have a
situation where our researchers are constrained to finite
resources, so they have to execute experiments in series, now
they can scale their experiments and execute them in parallel,
which accelerates the research process.
Mr. Palazzo. Dr. Freilich, this question is for you. You
noted in your testimony that not all impacts of the changing
climate are near-term negative, such as lengthening growing
seasons, but you caution that these changes may
disproportionately benefit nations other than the U.S., and my
State of Mississippi is heavily dependent on agriculture.
So on what or whose economic analysis is this suggestion
based? And can you explain how growing seasons have changed
here in the U.S. and what regions of the country, in your
opinion, will be most impacted?
Dr. Freilich. Certainly. Before I answer that, let me just
give one testimonial, additional testimonial to the National
Data Buoy Center, NDB. Personally, in my research and with
NASA, we have used critically National Data Buoy Center
measurements, both to improve the accuracy of satellite
measurements of winds over the ocean, and to validate and
thereby decrease uncertainty in those satellite measurements.
So they really play a critical role, as Dr. Jacobs said.
To go back to your main question. Perhaps the most recent
comprehensive analysis was published in mid-September in the
prestigious journal Nature Climate Change, where they actually
did a countrywide, country-by-countrywide analysis of a number
of different scenarios of changing climate. And what they found
was that, based on various metrics, which are not all that
important except that they are incredibly robust, they found
that India, China, the U.S., and Saudi Arabia, surprisingly,
were the countries that were most vulnerable overall
economically to the changing climate, and that--in a negative
way--and that Northern Europe, Canada, and the former Soviet
Union were most benefitting from the changing climate,
primarily in those cases because global temperatures or
temperatures in those regions are lower than economically
optimal now, but in a warming climate trend the temperatures
would increase and therefore their economies would become more
optimal.
In the United States, the National Climate Assessment
looked at the impact of warming temperatures, among other
things, and found that in particular in the Midwest, that was
probably the most vulnerable area from an agriculture
standpoint to increasing temperatures. And that indeed the
climate assessment pointed out that, if things continue on the
trends that they are on now, that our agricultural, national
agricultural production might be reduced for climatic reasons
to sort of mid-1980s levels, unless there were technological
improvements in both agriculture and the climate trend.
Mr. Palazzo. Well, thank you, gentlemen.
I yield back.
Ms. Meng. Thank you, Mr. Chairman and Mr. Ranking Member,
for today's hearing, and thank you to the committee staff for
all the preparation that went into today's discussion.
I also want to thank both of our witnesses, Dr. Jacobs and
Dr. Freilich, for being here today, and thank you for your
commitment to our nation. And I too want to congratulate Dr.
Freilich for your upcoming retirement.
Climate change affects our environment, our public health,
and our national security. Each year, more extreme weather
incidents affect our nation, causing tragic loss of life and
economic damage.
I represent parts of Queens, New York, and it's imperative
for our district that we have a clear, research-based
assessment about the effects of climate change.
My first question is about clean drinking water. In New
York City, we draw almost all of our drinking water from the
Catskill and Delaware watersheds. How concerned should we be in
this country about our freshwater resources?
Dr. Jacobs. Well, I would certainly be concerned about it.
Water is an essential natural resource.
Along those lines, something that NOAA is doing is
experimenting with aquaculture, and one of the things that we
found out through some of the aquaculture of various oysters is
that they actually provide a tremendous amount of water-
filtering capacity.
Ms. Meng. Are threats like aquifer salination in Florida,
melting snow in the Rockies, or changes in precipitation and
evaporation rates for standing bodies of fresh water, something
that Congress should consider and work on?
Dr. Freilich. All of those processes that you talked about
are indeed important and indeed they are all measurable, not
only in situ, but from space. One of our NASA missions, GRACE,
and now GRACE Follow-On, makes precise measurements of gravity,
which can be related to actual changes in aquifer levels. And
so we can indeed monitor how the aquifer levels are changing
relative to the natural processes to determine the impacts of
human activity.
Dr. Jacobs. Well, I would like to take this opportunity to
thank you for the support on the NIDIS reauthorization. So a
lot of this is built into that, as well as the National Water
Model System.
So not only is it something, as Dr. Freilich stated, that
we can observe, we can also predict it. So the snow melt, the
runoff, that is a lot of things that NOAA is actually running
computer models on right now to forecast. And we are in the
process of coupling our atmospheric models to our hydrology
models, because, of course, you have to know exactly what the
forecast is for the rain in order to understand where the
runoff and snow pack will be.
Ms. Meng. Thank you.
My other question, Dr. Freilich, prior to joining NASA, you
were a professor and Associate Dean in the College of Oceanic
and Atmospheric Sciences at Oregon State University. Given both
your testimony today, understanding our changing climate and
research will continue to be very important to our nation's
economy, well-being, and security.
What more can Congress do to support STEM education to
ensure that our nation is producing the best scientists in the
world?
And, in the interest of time, if I could ask my second,
part too. And do you know of any potential gaps in STEM
education that will affect our ability to track and
understanding climate change? So what more can Congress do, but
also our schools and even private corporations?
Dr. Freilich. So I was going to address the impact of STEM
not just at the higher levels of education, but throughout our
system. STEM education, the scientific and logical approach to
identifying and analyzing issues, is vitally important for our
national strength as an overall society.
My personal experience, of course, has been at the upper
levels of the education area. However, our daughter is a middle
school biology teacher, and I can't emphasize enough how much
support for rigorous STEM curriculum throughout the entire
education system is vital to our nation for both male and
female students.
Dr. Jacobs. One of the things that is extremely important
for what we are doing for not just climate modeling, but
weather modeling, is finding really qualified software
engineers, and there is a major shortage in the government labs
of software engineers for two reasons. The primary reason is we
can't compete with industry, whether it is the video game
industry or the coms industry, as far as recruiting and
benefits and salary.
The other issue is a lot of these universities are teaching
software languages that are different than what we use in our
computer models, and the industry is rapidly evolving in a
different direction than a lot of the code that we use.
Ms. Meng. Thank you, I yield back.
Mr. Serrano. Mrs. Lawrence?
Mrs. Lawrence. Thank you.
Mr. Jacobs, I am from Michigan, and we just had a Michigan-
Michigan State game, where do you sit when there is a South
Carolina-North Carolina game. [Laughter.]
Dr. Jacobs. So I would have to say I am an ACC person.
Mrs. Lawrence. Oh, OK.
Dr. Jacobs. My wife went to Duke, as well as NC State, so--
--
Mrs. Lawrence. OK, let's get to work here. [Laughter.]
President Trump has proposed deep cuts to NOAA's Great
Lakes Environmental Research Laboratory in his previous
budgets. As you know, I am from Michigan, the third-largest
source of freshwater in the world.
Can you tell us about the work of that lab and why it is
important for the nation to continue funding that program?
Dr. Jacobs. Well, on the budget cuts, we had to make some
difficult decisions, because the administration prioritized
rebuilding the military and making investments in national
security. So there were reductions, primarily to external
funding, and we continued to fund the missions that were
critical that were within the core mission of NOAA.
The research budget within OAR on the climate side was 98
million, oceans was 93, and weather was 91. So, despite the
proposed cuts, climate was still funded more than weather.
The labs themselves are instrumental in doing model
development work and forecasting, particularly on things like
harmful algal blooms, and integrating a lot of the biological
and ecological models with the hydrological and atmospheric
models.
Mrs. Lawrence. So, would you say it is important for the
nation to continue funding this program? Because as was stated
by my colleague, freshwater and drinking water is becoming
almost an emergency level. We must have safe, clean, and
affordable drinking water to live, and I am very concerned when
you start talking about reducing that funding. When we talk
about national security, water is going to be a critical issue
in America.
Dr. Jacobs. All of these programs are extremely important
and it is just--you know, and we are in a situation where we
had to make some difficult decisions.
Mrs. Lawrence. I think difficult and the fact that we want
Americans to live with safe drinking water is a critical issue.
I want to ask this question to both of you, NASA and NOAA
provide us with so much global observation data already, but
where are there still gaps? What critical satellite data is
still needed to refine our ability to track climate change?
One of the challenges we had is with data and I will say
this on the record, this administration doesn't seem to grasp
how important the data and the environment will play on us to
be able to respond to the needs that we must--and so, can I get
some comments from both of you about this.
Dr. Jacobs. So, the satellite data is extremely important,
but I don't want to lose sight of the importance of the in situ
data. So, on the satellite data, the values that we collect are
essential, but the vertical resolution is probably the
weakness. But as critical, if not more critical, is the ability
to calibrate the satellites, and to do that, we actually need
in situ observations to calibrate the satellite instruments
with. And this goes for not just temperature and water vapor,
but also aerosols and gases.
So, right now, we do have a program where we collect
various gases with research instruments put on commercial
airlines and then we use these gases to analyze and calibrate
the satellite information. But this program, even though I
would consider it not nearly as expensive as actually launching
and deploying a satellite, without the ability to calibrate it,
the data that we get is really limited.
Mrs. Lawrence. Thank you. Mr. Freilich.
Dr. Freilich. Yeah, I agree with Dr. Jacobs. I will focus
on three areas of measurements that are particularly amenable
to advancement from space. The first one is, as Neil said,
atmospheric composition. We have the nascent ability and we are
constantly improving it to measure the composition and changes
of greenhouse gases in the atmosphere. This is essential for
running climate models. It is also essential for you to see the
efficacy of policy decisions that you might be making locally
in the global scale.
A second is vertical winds. This is at the very edge of our
abilities right now. It addresses a portion of what Dr. Jacobs
said about vertical knowledge and measurements in the
atmosphere, and it will improve our models immensely if we can
do it everywhere and accurately, and it will help NOAA's
forecasting of the weather and the environment on all scales.
The third place that I would personally highlight is soil
moisture.
Mrs. Lawrence. Soil?
Dr. Freilich. Soil moisture.
Mrs. Lawrence. OK.
Dr. Freilich. The ability to globally understand, make
measurements of agricultural decisions, if you will, both
informs, locally, our farmers, and also provide some stability
in terms of food security, understanding how crops in other
areas might be impacting prices at home.
Mrs. Lawrence. Thank you so much. I yield back.
Mr. Serrano. Thank you. Ms. Kaptur.
Ms. Kaptur. Thank you, Mr. Chairman.
Welcome, gentlemen, and thank you for your expertise and
for the years you are giving to our country. I hail from Ohio
and represent the southern-most of the Great Lakes, Lake Erie,
where we have had major challenges to our water system with the
city of Toledo and other smaller water systems. So, we have
experienced firsthand what is happening with climate change.
I also represent Brook Park NASA, named in honor of John
Glenn, Glenn Lewis Labs at Brook Park, and we are very
interested in your earth science work, relative to, as
Congresswoman Lawrence talked about, the Great Lakes region. I
am particularly interested in the NASA HAB, harmful algal
bloom, monitoring and modeling, and the underlying need for us
to spread our wings a little bit and work with universities in
the region that are collecting data. There's all kinds of data,
but it is not necessarily organized in a way that helps us
target resources effectively.
So, my question really is: How are you working with all of
the datasets that are being generated in the Great Lakes
region, particularly, Lake Erie, which is the shallowest and
most drawn-upon of the Great Lakes? As really as the canary in
the coal mine for what's happening in the Great Lakes region,
how can NASA exert more of a lead?
So, I loved your visuals, Dr. Freilich, and actually want
to see if you have any others that are specifically focused on
the Great Lakes, in terms of what Congresswoman Meng talked
about in the STEM education programs, we have a Great Lakes
Science Center in Cleveland which I represent and also at
Toledo, Imagination Station. And we can have an enormous impact
on the next generation if we can share your data in an
understandable way from NOAA, from NASA, and draw young people
into the reality of what's happening, targeted even right down
to their region.
So, my question is: How are you--can you elaborate on your
NASA harmful algal bloom monitoring program and the modeling
that you are doing in collaboration with others in the region?
And just FYI, I represent the largest watershed in the Great
Lakes and if we don't get it right there, we are not going to
get it right anywhere.
Dr. Freilich. Absolutely. And we have a rather extensive
harmful algal bloom program. We are in the process of
developing the technology and the understanding to be able to
predict the occurrences both, in inland waters and in coastal
waters, of harmful algal blooms and to track the blooms when
they occur, this from space.
Now, with respect to, you mentioned the Toledo issue----
Ms. Kaptur. Yes.
Dr. Freilich [continuing]. Issue of several years ago.
Ms. Kaptur. 2014.
Dr. Freilich. When that giant harmful algal bloom took
place, we actually funded and conducted aircraft flights----
Ms. Kaptur. Yes.
Dr. Freilich [continuing]. With aircraft instruments out of
Glenn to monitor and track that bloom. Subsequent to that, some
Glenn investigators put in a competitive, highly competitive
proposal--it was one of only nine out of 43 proposals that were
accepted--to continue aircraft flights over several years, and
they are even continuing now to monitor and track water quality
and algal blooms in the area.
One of the key elements of their proposal was the fact that
they had brought together, just as you said, many different
local institutions to pull the information and the
understanding from the different groups in order to advance our
knowledge of harmful algal blooms and their impacts.
Ms. Kaptur. Yes, please let me know what more we can do
there because we lived that crisis, and we are actually now,
not sure, in terms of human health, we are looking at,
apparently higher rates of Parkinson's and Lou Gehrig's Disease
and we don't know the impact on human health of microcystin and
some of the cyanobacteria that's in the algal blooms. And it
seems like science has to run faster to catch up with what we
are dealing with.
Also, in terms of agriculture--you mentioned agriculture--
we are not sure whether the soil itself, because we have higher
rainfall, whether some of that is growing in the soil. And NASA
does not have the ability to penetrate with satellite imaging
yet, what's in the soil. It would be nice to be able to give to
our local weather reporters, hey, that sub watershed is really
sick right now.
We don't have the ability to do that, and unfortunate--and
I am just putting this on the record--we have the most tiled
region in America, the Great Black Swamp; it extends over
Indiana--I think Secretary Pence is aware of this or Vice
President Pence is aware of this--Michigan, Western Ontario in
Canada, and Ohio, obviously. But it is a giant soybean corn
bowl and animal bowl, and we have more animals--10 times more
animals than people--and it is very, very difficult to figure
out why Lake Erie is getting sick.
We sort of know why, but we don't know from where or when,
and so--and the water intakes are too high in the water in some
of our cities and EPA does not provide any money, really, for
them to rebuild their water systems. So, we have got this
really critical moment, and it seems like the Federal
Government is tiptoeing. If you can have any influence inside
the administration, we really need a strike force for Lake
Erie--that is what we need--and for this most-troubled
watershed. So, if you could make recommendations to the record
on that, I would greatly appreciate it.
Thank you, Mr. Chairman.
Mr. Serrano. Thank you. Well, Mr. Crist just came in, so--
--
Mr. Crist. Hi.
Mr. Serrano [continuing]. Mr. Crist, if you are ready, we
are ready.
Mr. Crist. Yes, sir. Good morning. Sorry I am late; I am
double-booked today, but it is great to be with you and I
appreciate the opportunities. Thank you very much, Mr.
Chairman. And I want to thank our witnesses for being here; I
appreciate your presence.
I am grateful this subcommittee has chosen climate change
as its first point of discussion, Mr. Chairman, for the 116th
Congress. This is a topic that is near and dear to my heart and
one that is incredibly relevant to my district in Florida. I
represent Pinellas County, Florida. It is on the West Coast and
includes the cities of St. Petersburg and Clearwater. Sea-level
rise, nuisance flooding, saltwater intrusion, worsening
weather, these impacts are real; they are happening now and my
constituents see it every single day.
According to a recent analysis published in Science
Journal, oceans are warming up to 40 percent faster than
previously thought. Both witnesses, I am curious, what does
this accelerated warming mean for our oceans and for our
whether--either of you?
Dr. Freilich. OK. Well, thank you very much. The vast
majority, more than 90 percent of the excess heat that is being
put into the Earth's system is actually being manifested in the
ocean. There's obviously a lot of focus on surface
temperatures, but the heat, itself, is in the ocean. It has
tremendous potential for rapid and, otherwise, changing
environment and climate change, should that subsurface heat,
which was discussed in the Science article, make it to the
surface and then to the atmosphere.
We are able to make measurements both, in situ and from
space, to give us a more complete three dimensional--two
horizontals and vertical--picture of the heat distribution
throughout the oceans right now. That is where technology and
models have come together in both, NOAA and NASA, to give us a
more complete view of the environment and how it might change
in the future.
Dr. Jacobs. I would also like to highlight NOAA's Argo
observing system, which are these profilers that go up and down
in the water column and collect information. It is not easy to
actually observe the oceans below the surface. We can do the
surface relatively simple and straightforward with satellites--
relatively--but the Argo system is incredibly valuable, because
if we are going to run coupled climate models where we have an
atmosphere coupled to an ocean model, the ocean model is going
to need in situ observations and data assimilation. And so, for
both, the initialization perspective as well as the model-
verification perspective, these observing systems are critical.
Mr. Crist. Thank you. And can you address what the human
and economic consequences of this are.
Dr. Jacobs. That would really go beyond the scope. I know,
as mentioned, our mission is just to make sure that the
policymakers have the most accurate projections that we can
produce.
Dr. Freilich. I will go a bit farther, but still focusing
on the physical manifestations of this. The Earth's environment
is basically defined by two great fluid systems, the atmosphere
and the ocean; they couple over 70 percent of the Earth's
surface. And understanding the internal dynamics and the
exchanges between the two defines our environment, and then
results in human and economic impacts.
One of the graphics that we showed, actually, was sea-level
rise, and you talked about that. We were making incredibly
precise measurements of global and regional sea-level rise and
we understand why, because the satellites are telling us that
two-thirds--half to two-thirds of the sea-level rise is coming
from putting more water into the ocean, by melting glaciers and
ice sheets.
But the other portion is coming from expansion of the water
that's in the ocean. As the ocean warms, it expands, just like
the fluid in your thermometer, and that causes sea-level rise,
too. From a human standpoint, it is just higher. We can not
only see what's happening, but we can see why it is happening.
Mr. Crist. Does that mean I have to stop? I yield back.
Mr. Serrano. Thank you. We will get a second round, now.
Dr. Freilich, would you please contribute, if you have
examples of how you are providing useful climate-related
information, based on your measurements to technical and non-
technical decision-makers.
Dr. Freilich. One example of this is through our
applications program which is designed specifically to take the
measurements and the understanding that we get from satellites
and research and make focused-information products that address
the questions of non-technical users, such as: What are the
statistics of surface wind velocities? What will the statistics
of surface temperatures be? How will precipitation change into
the future?
These impact, particularly, people like architects and
infrastructure designers who have to make decisions today about
what the conditions are going to be 50 years from now when
their buildings and infrastructure are still going to be
standing. We provide the measurements there today and the model
estimates into the future in ways that can be accessed by, as I
say, non-satellite weenies, that is, non-technical people,
specifically through our applied sciences program.
Mr. Serrano. Do you find any of the same discussion that
takes place, in general--and certainly in Congress--about those
who believe there's a problem, those who believe that the
problem is not--when this information goes out, are there
people who reject it and say, you know, that's what I am
looking for or I don't need that information or it is not
convincing enough?
Dr. Freilich. The people on the ground need the
information. Designers have got to--architects have got to
design buildings, et cetera. So, it is not a question of not
needing the information.
What we strive hard to do is to understand the specific
information that is needed and it is often very difficult for
the user to articulate what he or she is looking for in terms
of environmental information. And that's the role that our
applied sciences program place, sort of a flexible bridge
between the non-technical users on the end and what we know and
what we can provide on the other end.
The key is to provide information in accessible and an
efficient way for the non-technical user, not to present, you
know, a course in environmental science for them, and that's
what we try to do in our applied sciences program.
Mr. Serrano. Thank you. Either one or both: Puerto Rico has
been devastated by recent hurricanes and the Federal
Government, in partnership with the local government, are
investing heavily in ecosystem restoration and repairing
infrastructure. How are you educating the public and local
officials about the increasing systemic risks to the island?
Could you explain what specific impacts are expected there,
either one or both.
Dr. Jacobs. I can touch on that from two different aspects.
One is just general hurricane-intensity forecasting work that
we are doing, and not just on hurricane intensity, but also on
tracks. So, improving our capability of predicting rapid
intensification and track within the weather models, with
specific to that event, we did a lot of aerial surveys after.
We worked with the Department of Defense and acquired two
Marine Corps radars to install so that we would have radar
capability there after the storm.
Another thing that is--that we are working on is with the
support of FEMA is actually studying the coral system around
the island, because the corals are actually very important
because they act as a way to dissipate wave energy. So, about
95 to 96 percent of the waves' energy are dissipated by the
coral reefs.
Dr. Freilich. Another area of reaching out to the public
about environmental impact, relative to Puerto Rico that can be
highlighted comes from the joint, NOAA-NASA Suomi NPP
satellite, which was flying then and is flying now. It has an
instrument on it called ``VIIRS'' that has an exquisitely
sensitive day/night band, and so, it can image during the night
when there's only starlight or moonlight or not at all.
Interestingly enough, when there is a natural disaster like
in Puerto Rico and the power systems go down, areas that were
previously bright because they had lights, turn dark, and the
Suomi NPP images of Puerto Rico and other places have profound
impacts on the public because you can see the city was there
and now this whole area is black at night because the power is
out and remains out. And you can track how we are recovering
from it. This is powerful connection between technology and
public understanding.
Mr. Serrano. Let me end my round by staying there for a
second--and I am sure there are arguments back and forth about
this--Puerto Rico deals with hurricanes every year or every
couple of years, but the phrase that's used is ``No one saw
this one coming'' to that extent, to the damage that it caused.
First of all, do you think that is true, that there was enough
information out there to say that this was going to be a
monster of a storm or did it catch people by surprise? Was it
the human failure and not being prepared or was it so severe
that it couldn't have been prepared for it?
Dr. Jacobs. Well, I think what we are dealing with here is
a forecasting intensity problem. Obviously, before satellite
imagery, no one saw these storms coming if they never made
landfall. But the capability that we have now, as far as
ability to forecast track, really trails off around day five.
So, that gives you roughly five days or less.
That also requires that the storm is initialized in the
model. So, if there's areas of weakness in the model, it is
trying to predict when the actual storm will develop. Once it
is already there, the model usually handles the track fairly
well.
The other hurdle is rapid intensification. There's a lot of
modification that the storm does to the water underneath it and
it is very hard to derive accurate sea-surface temperatures
from remotely sensed satellite data beneath the clouds that are
obscuring the visibility of the waters. So, you know, that's
one of the areas that we are focusing some research on right
now with the rapid intensification of hurricanes.
Mr. Serrano. Thank you. Any comments on that?
Dr. Freilich. NASA and NOAA are collaborating exceedingly
well to get the information that's necessary to initialize the
model and to understand processes such as rapid
intensification. So, you see that the models are improving year
by year--NOAA models are improving year by year by year.
Mr. Serrano. Thank you to both.
Mr. Aderholt.
Mr. Aderholt. As a result of climate change, what does
science predict--and this will be for either or both of you--in
increased rates of precipitation or decreased rates of
precipitation?
Dr. Freilich. I will take that. In general, it is
intensification of the hydrologic cycle. What does that
actually mean? Higher highs and lower lows is what the models
are basically predicting; that is, rainy areas are becoming
rainier and extreme precipitation events are becoming more
frequent or at least more precipitation. But the low, also, is
getting larger; that is, droughts are becoming longer and more
widespread.
So, it is not an all one kind or the other kind; it is an
intensification of the cycle, the peak-to-peak difference.
Dr. Jacobs. I would just add that it is--you know, this is
going back to our conversation about how complex the climate
system is--a lot of these processes have multiple feedback
mechanisms and they operate in a non-linear fashion. So, some
of them may self-mitigate; others may scale the opposite
direction.
Mr. Aderholt. Are we more likely to see the current
climates become worse or my drier climates become wetter or
vice-versa? And that may be a little bit of what Dr. Freilich
was saying earlier.
Dr. Freilich. In general, drier is become more dry and
wetter is becoming more wet.
Mr. Aderholt. How might uncertainties, with regard to
physical modeling of cloud and water vapor feedback, affect
your ability to accurately assess long-term future of the
climate? And what are some other outstanding scientific
questions that inject uncertainty in your predictions?
Dr. Jacobs. Well, there are quite a few areas of
uncertainty in the climate models. The feedbacks are obviously
one. Another one is the sinks. There was a paper published last
week in Nature that showed that the climate models are actually
underestimating the CO2 uptake from a lot of vegetation.
Additional areas are aerosols and clouds. A lot of times
these aerosols act as condensation nuclei for formation of
clouds. That's a complex process that's not easy to model.
In addition to that, a lot of interaction with the solar
outlet. Right now we have, with a great collaboration with
NASA, the ability to observe the sun, but actually predicting
what the sun will do is very complicated.
Dr. Freilich. Dr. Jacobs hit the nail on the head: It is
the interactions between the processes that are key and the
interaction between scales and those are exceedingly complex.
Mr. Aderholt. Well, I think we will all agree that when
interpreting data to reach conclusions that inform public
policy, and us as public policymakers, it is critical to ensure
an objective assessment of available data. How does your
agencies encourage a diversity of research opinions on the
subject of climate change to confront the issue of scientific
bias?
Dr. Freilich. I will speak for NASA.
Mr. Aderholt. OK. Yeah.
Dr. Freilich. So, virtually all of our research programs
are competitively selected and we, and the Science Mission
Directorate, actually, are constantly looking at whether--how
the results of that peer-review process are being subtly biased
or not. But the peer-review process has shown itself to
identify the best research, the best use of the nation's
dollars in general.
We make all of our measurements freely and openly
available. We make all of our model code freely and openly
available. And our approaches are well-documented, as is the
case with NOAA. So, making things available in a useful way
lowers the barrier of entry for anyone who wishes to duplicate
or do their own analyses.
We spend, in the Earth Science Division, more than 10
percent of our budget every year on data systems, making the
measurements and the information widely available.
Dr. Jacobs. So, we have an internal peer-review process, as
well, and when our science is published in journals, they
also--the journal, itself, has a peer-review process.
One of the interesting things that I have noticed with
respect to the appearance of bias in high confidence versus low
confidence, is that there is not a motivation to publish
scientific research that you have low confidence in. It
probably wouldn't get past the peer-review process if you did
not have high confidence in it. So, what ends up happening is
there's an appearance of having high confidence in this and
high confidence in that because the low-confidence research
does not make it through the peer-review process.
Also, as Dr. Freilich said, we make all of our code, as
well as our data, available. And one of the things that we have
been working on with the commercial cloud vendors is NOAA's Big
Data program and that's--the commercial cloud vendors are
actually hosting our data for us and developing software
interactions so that anyone, whether it is a university or just
someone at home, can access our data, access the code, and
actually replicate a lot of what we have produced in our labs.
Mr. Aderholt. Is my time up or are we--thank you.
Mr. Serrano. Mr. Crist.
Mr. Crist. Thank you, Mr. Chairman.
Over the past year, the State of Florida, including the
district I represent, was plagued by a historic outbreak of red
tide. As of last October, businesses in my home of Pinellas
County, reported almost 1.6 million in losses due to red tide.
Hotels reported a 6 percent drop in overnight bookings, and
that's just one county.
While the economic impact is glaringly obvious and while we
know that red tide is a naturally occurring organism in the
Gulf of Mexico, confusion remains as to why this past year's
bloom was so severe. Do you think climate change and warming
oceans could be playing a role in this?
Dr. Jacobs. So, with respect to the interactions with the
water and the algae, there's a threshold. So, in general,
dissolved oxygen content is higher in colder water and lower in
warmer water. But most of these algae bloom in a sweet spot of
temperature ranges. A lot of times, what ends up triggering the
bloom is a precipitation event of such that creates a runoff of
fertilizer, so there's nitrogen and phosphate. And a lot of
times, that is actually the mechanism that triggers the bloom
and then the photosynthetic algae actually remove the rest of
the oxygen from the water causing a hypoxia.
One of the things that we are doing is actually through the
National Water Center and the National Water Model is trying to
integrate the atmospheric precipitation forecasts with the
water model that forecasts runoff and that, the unknown there
being the amount of fertilizer that's captured in the runoff,
but at least we should get to a state soon where we are doing
fairly well in predicting a lot of these blooms.
Mr. Crist. What do you think is needed to help us better
understand and respond to harmful algae blooms?
Dr. Jacobs. I would say possibly some additional
measurements of chemistry in the water, also, additional stream
gauges and monitoring so that we can both, initialize, as well
as calibrate the water model. There's probably also a need to
integrate a lot of the water model with flow-restricted areas.
So, in some cases where you have dams and such that are
actually--there's a human there controlling the water rate,
that is something that we would need to integrate, as well.
Mr. Crist. Can you discuss, Dr. Jacobs, the opportunity
that small satellites, particularly small satellite
constellations currently operated by commercial companies, can
play in collecting or providing data to understand climate
change.
Dr. Jacobs. So, the CubeSat industry is just now, I
believe, starting to take off. And the data that they are
providing, particularly with the GPS radio occultation data, is
incredibly valued. It is one of the few remotely sensed
observations that's an actual measurement that does not
necessarily need to be bias corrected. So, we have temperature
and moisture profiles from these as good as what we would get
from COSMIC Data, which is a program that we run.
The interest that I have is actually being able to acquire
this data as a subscription service, which is, you know, it is
very convenient for us. It is very cost-effective, and if
there's more than one purchaser of the data, say other
international met services elsewhere, it would essentially
drive down the cost of the data for us because we would be
splitting the cost over other international met centers.
Dr. Freilich. If I could say a word from the NASA side?
Mr. Crist. Please.
Dr. Freilich. We also see great potential in private-
sector, small-satellite constellations. And we have in place
right now a pilot program with contracts in place with three
different commercial firms who are flying small satellite
constellations observing the Earth. And we are basically
purchasing their data and evaluating its contributions and its
value to advance our research agenda. So, they are flying these
for their own reasons. We are not imposing requirements on
them. We are saying, since you have it, we will buy it and
evaluate how useful it is and then go in for a long-term
contract if, indeed, it is useful, and we are finding it to be.
Dr. Jacobs. And we have a similar pilot program where we
are acquiring and evaluating the impact of data on our model,
as well.
Mr. Crist. Wonderful. Dr. Freilich--I hope I am pronouncing
that correct----
Dr. Freilich. Close enough.
Mr. Crist. Thank you. In your written testimony, you stated
that we are increasingly able to detect climate trends and
separate them from much larger/shorter scale environmental
variability we call weather. Can you elaborate on what you mean
by that.
Dr. Freilich. Yes. If you think of weather in a particular
variable as causing rapid fluctuations--maybe the temperature
goes up or goes down or the rain happens or it does not
happen--the climate change--the climate trend is underneath
that. So, if you look for only a small period of time, you see
weather fluctuations going up and down.
But if you make continuous, long-term, intercalibrated
measurements of the underlying variable, you may indeed--and we
are--seeing that those fluctuations are on a base which is
changing over time. The satellite measurements, because they
are global, because they are continuous, and because they are
consistent over time, allow us to average out, if you will, the
weather fluctuations and expose quantitatively, the longer-term
variability.
Mr. Crist. Thank you. I yield back.
Mr. Serrano. Mr. Palazzo.
Mr. Palazzo. Thank you, Mr. Chairman.
It is Dr. Freilich, right?
Dr. Freilich. That is----
Mr. Palazzo. Is that correct?
Dr. Freilich [continuing]. Precisely correct.
Mr. Palazzo. Thank you.
Dr. Freilich. We can go into how the different portions of
our family pronounced it differently.
Mr. Palazzo. It is the same with Palazzo or Palazzo; it
depends on where you are from.
Dr. Freilich. Yes.
Mr. Palazzo. I have heard both of you talk about hypoxia
and the algae blooms, and I know Congressman Crist and I, you
know, we are Gulf States and it is extremely important having a
healthy Gulf. And the Mississippi River Basin is the fourth
largest in the world; 32 states drain into the Mississippi
River Basin--Canada--and I know we have had what has been
called the ``Mississippi River/Gulf of Mexico Hypoxia Task
Force.'' I'm not sure if there's a NOAA or EPA or if there's
multiple agencies that are involved in that.
But the dead zone does not seem to be shrinking. And I know
there have been a lot of flooding events and there's the nine-
point source pollution coming from AG and other urban areas.
Again, 32 states pouring, you know, all this pollution point
and nine-point source going into the Mississippi River and it
is flowing into the Gulf of Mexico.
Are we making a difference and what can we do to maybe work
towards eliminating the hypoxia task force? And I think some of
the comments that you have already made will probably apply to
the dead zone and the Gulf of Mexico, as well, but I would just
like to hear y'all's summary and we will start with Dr. Jacobs.
Dr. Jacobs. We are just now on sort of the cutting edge of
trying to predict and understand that interaction and the
research and forecast it. So, it is one of those things where
if we can understand the physical mechanisms and biological
mechanisms, then we can probably do a better job of quantifying
future impacts and potential mitigation capable. But to do it
empirically would require lengthy observation time, which is
probably something that we might not have.
Dr. Freilich. Dr. Jacobs' answer was actually quite
comprehensive.
Mr. Palazzo. All right. You brought up aquaculture, so,
between hypoxia and aquaculture, two parochial interests of
mine in my home state. And I guess there's no comprehensive,
nationwide permitting process for aquaculture in federal water,
which I think has probably hindered America and people wanting
to get into the aquaculture business because there's no
certainty. There's the permitting process. The bureaucracies
are intense, but, yet, we are bringing in more imported seafood
and it is not the same quality, as I believe, the seafood that
we find in our oceans and our seas that connect to America.
But, I guess--and there's a huge deficit, a trade deficit with
various countries.
So, it is not just a foot-safety issue--and we have had
these conversations before--but it is also, you know, under, I
guess it is the jobs and economic, because these dumping of
seafoods is hurting our farmers. And so, I guess, how would you
describe the permitting process and what can we do to improve
it?
And I say all this because there was a bill that Chairman
Peterson and I introduced last year. It is called the ``AQUAA
Act'' ; it is the Advancing the Quality and Understanding of
American Aquaculture. It is a bipartisan bill. We are going to
be reintroducing it this year, and we did have a lot of input
from the professionals at NOAA.
And so, if you could, Dr. Jacobs, I would love to hear your
thoughts on it.
Dr. Jacobs. So, the seafood--addressing the seafood-trade
deficit is one of our top priorities, as part of the Blue
Economy Initiative and it is something that Admiral Gallaudet
has been working on extensively and we do have a strategy and a
plan that we are in the process of putting together, and I
would love the opportunity to provide that for the record.
Mr. Palazzo. OK. Well, fantastic. Because, you know, future
populations and having healthy, sustainable, and affordable
seafood is going to be extremely important. And not only will
it benefit coastal states on the East Coast, West Coast, Gulf
Coast, but also our farmers in our ag states, because they will
be providing the soybean and corn food stock that will be going
into the feedstock for the aquaculture. So, yes, I will look
forward to hearing your statement.
Mr. Serrano. So, in terms of pronouncing names, in the
Bronx, where the real Little Italy is--it is not the one in
Manhattan; it is on Belmont Avenue--we put a T in it: Palazzo.
Mr. Palazzo. It is Sicilian. It is Palazzo.
Mr. Serrano. It is not pizza; it is pizza, right?
Mr. Palazzo. Yeah, both are good.
Mr. Serrano. Ms. Kaptur.
Ms. Kaptur. Thank you, Mr. Chairman. Your meetings are
always instructive.
Dr. Freilich, let me also, again, thank you for your
service to our country and wish you well in the coming years.
Could I ask you, could you provide to the record, the 17
satellites you mentioned for earth monitoring and their
purpose, and did I get the number correct?
Dr. Freilich. We have 22 satellites----
Ms. Kaptur. Twenty two.
Dr. Freilich [continuing]. In major missions on orbit and
14 more coming through fiscal year 2022.
Ms. Kaptur. Great. Could you just provide a list of those?
Dr. Freilich. Absolutely.
Ms. Kaptur. That would be very helpful.
And Dr. Jacobs, you used the term ``flow rate'' and one of
the challenges that we are facing in the western basin of Lake
Erie is much heavier rainfall and the inability of NASA's
satellites yet to pierce the soil, so we know what's happening
and where the water is moving. Just to give a sense of the
daunting challenge to the lake, we have to hold back water flow
and have slow and leaching to the lake. We have no means to do
that right now. We have the most tiled region in America and
every time it rains, it flows like a superhighway to Lake Erie
and half of the land in the watershed is absentee-owned.
So, the challenge to us with these changing conditions is
to be much more engineering-wise and we don't have a
mechanism--and I am urging you to think about the
administration, working with us--and I am going to invite you,
if both of you could come, to target the information that you
have and appear before the Great Lakes Task Force, which is
bipartisan group of members here in the House, to talk about
the Great Lakes.
And if you could call from the data that you have to give
us better guidance, maybe we could do better than we are
currently doing. But, quite frankly, in meeting with one farmer
recently, he said, Congresswoman, I can't hold the water back.
We'd have to change our whole tiling system. So, we would have
to work with the Department of Agriculture and invest a whole
lot of money to try to figure out how to hold this water back
and to probably filter it in some way that we haven't had to do
in past generations.
It isn't just a matter of not applying more fertilizer to
the soil. There are legacy nutrients in the soil and maybe
things that happened when the soil was first created that are
flowing into the lake, and we can't save the lake without
reengineering the watershed, in my opinion. So, data you could
provide us specific to that region could be very helpful.
I don't know if you have seen a film--I wish we would have
made it in this country, a documentary called ``Planet Ocean''
done by Yann Arthus-Bertrand and Michael Pitiot. I guess the
ocean surrounds them so they think about it more. I just love
that film.
And as I looked, Doctor, at what you put up there NASA, I
thought, OK, I am going to push you a little bit further. Take
a look at their film and see what each of you might have in
your treasure chest in your departments and agencies and what
could we tell the American people about the United States of
America in the way that the Aussies did in that particular
documentary. I think it could be very important to public
education and, frankly, to education of members here. So, I
would suggest that.
Finally, I just wanted to ask you in the time remaining for
me, could you discuss, based on your work, trends you see in
desertification in our country, talk about the Great Lakes
where 80 percent of the fresh surface water of the United
States exists, and also coastal impacts. Congressman Crist is
here with us today from Florida.
Do you have any comments that you want to make to us about
our arid West, about our coastal regions, or about the Great
Lakes that are summary remarks, thoughts that you have had as
you look through the datasets that would give us guidance as
members?
Dr. Freilich. I will take that.
Ms. Kaptur. It is a hard question, but----
Dr. Freilich. It is. By the way, as an oceanographer, I
resonate with your sentiments about the ocean, absolutely. So,
thank you very much.
Ms. Kaptur. I did not know you were an oceanographer. Well,
watch the film and tell me if you think it is as good as I
think it is.
Dr. Freilich. It is.
Ms. Kaptur. OK. You have seen it, OK.
Dr. Freilich. So, my answer would go back to the discussion
that we had previously with Mr. Aderholt in terms of
intensification of the hydrologic cycle. Although we have the
ability, technologically and infrastructurally, in this country
to mitigate some of that, there is an increasing trend towards
drier dry areas. And especially in the West--not in your area--
the precipitation patterns are leading to water stored in snow
packs, which is where most of the water comes from for
agriculture in the West, has been changing. So, the drier drys
and the change in precipitation amounts have evidenced
themselves, generally in terms of increased dropdown of
aquifers.
Ms. Kaptur. All right. Knowing that and looking 50 years
out, over half of our fruits and vegetables now come from one
state, do you see that changing in the future because of the
availability of water?
Dr. Freilich. I don't know.
Ms. Kaptur. You don't know.
Dr. Freilich. It is beyond my expertise, I'm sorry.
Mr. Serrano. We will try a couple more questions and then
we will call it a morning, and we thank you for your testimony
today.
Some communities are already making massive investments to
protect themselves from climate impacts. New York City, for
instance, has a massive plan to build barriers to protect
itself from another Superstorm Sandy. These types of
investments are enormous and should be made with the best
possible information about climate change and the risks that it
imposes.
For both of you, what are the most important investments to
make in climate science and research so that we can reduce the
uncertainty with regard to these risks?
Dr. Jacobs. I would say I would categorize the investments
in three areas. The first one is observations. This is critical
both, for in situ observations for initializing models, as well
as, validating predictions.
And then the modeling, both, weather modeling and climate
modeling, we are slowly closing the gap between weather models
and climate models and we are actually learning from the
development of both sides to benefit the other.
The last one is investment and computer resources, both,
HPC and cloud-based computer resources. Because in order to do
these computations, it requires a tremendous amount of
computing capability.
Dr. Freilich. Spot-on: Measurements, models, and
communications of the results.
Mr. Serrano. I am hoping, Mr. Aderholt, that every panel we
have from now on agrees with each other as much as this.
Dr. Freilich. NASA and NOAA have been working together
extraordinarily profitably for an exceedingly long time.
Mr. Serrano. I understand. Related to this, what do each of
you consider to be the greatest unknowns in climate modeling
today and what are your agencies doing to address these?
Dr. Jacobs. In no particular order, I think the real
changes in climate modeling are understanding the feedbacks and
the interactions, the various CO2 sinks, the cloud
aerosols, and getting accurate initialization from those, and
then understanding the natural patterns. Because in order to
isolate any sort of anthropogenic patterns, we need to
understand the natural signals and be able to subtract those
off.
Dr. Freilich. OK. Dr. Jacobs, again, was spot-on. I want to
focus a bit on the natural extended sources and sinks of carbon
dioxide, not the point sources.
On average, about half of the anthropogenic CO2
that we put into the atmosphere stays in the atmosphere. The
other half goes to the land and the ocean in ways that we don't
entirely understand. And some years, almost all of the
CO2 that we put into the atmosphere globally stays
in the atmosphere and in some years, almost done of it stays in
the atmosphere for more than a few months.
Understanding the sources and the sinks in the oceans and
the boreal forests and how they interact and how they will
change in a changing environment is critical for understanding
what the atmospheric composition is going to be in the future,
and, therefore, the radiation balance.
Mr. Serrano. Thank you. Is that all?
Mr. Aderholt. Let me just follow up on that. Dr. Jacobs,
you mentioned that substantial progress has been made over the
last several decades in earth science--earth systems science
observation modeling, but the mission remains incomplete and
many questions still remain unanswered. Can you go a little
further and explain, you know, what you would say what the
questions remain unanswered and what additional advancements
can be made to address these outstanding questions.
Dr. Jacobs. Well, there's--so, I guess I would bin this
into two categories. One would be: What are the assumptions in
the respective concentration pathways? So, there's four
different pathways; there's a 2.6, a 4.5, 6, and 8.5 ranging
from very minor emission increases to very extreme emissions
increases.
Now, there's assumptions based on those; 8.5 is associated
with a higher population growth and less technology innovation.
And 4.5 is lower population growth and higher technological
innovations. This is beyond the scope of NOAA's mission to
evaluate the feasibility of these, but I do think as
policymakers, the baseline assumptions of the RCP scenarios
should be analyzed, and then when we--NOAA--actually used these
various scenarios to then project what we think the climate and
weather is going to do based on those scenarios.
And I am confident that we are making a lot of progress in
our understanding of the science when we initialize with those
scenarios what the outcomes will be, but a lot of the question,
I think, is really on what are the scenarios going to be?
Mr. Aderholt. Will any of these advancements be able to
slow global warming in the short-term?
Dr. Jacobs. Really, as part of NOAA's mission, we are just
observing the trends in the atmosphere, and trying to predict
them, it is really up to the policymakers to decide if they
want to implement something one way or another that may or may
not make a difference.
Mr. Aderholt. Mr. Freilich, did you want to add anything?
Dr. Freilich. Same. NASA makes the measurements, does the
analysis, and informs you. Then, once you make a policy
decision, together we monitor the earth's system to see whether
the impact is what you had expected.
Mr. Aderholt. All right. I will yield back.
Mr. Serrano. Ms. Kaptur.
Ms. Kaptur. Thank you, Mr. Chairman.
I just wanted to follow up on my prior request. Would it be
achievable for both of you to meet with the Great Lakes Task
Force and reduce your data granularly to the Great Lakes Region
or is your data more diffuse?
Dr. Freilich. I will speak personally for myself. I am sure
that NASA would be happy to do that. In three days, I will be
retired.
Ms. Kaptur. Only three days.
Dr. Jacobs?
Dr. Jacobs. Absolutely.
Ms. Kaptur. All right. I did not know at what level your
data existed; that's why I was asking the question.
Dr. Jacobs. So, our--well, it depends on the various data
sources. Some of it is extremely high resolution, both the
space and time, and some of it is fairly sparse. But we do make
that accessible and available to the public, as well as the
software that we use to process it. And that's all--you can go
online and get that now.
Ms. Kaptur. All right. It would be nice to hear how you are
collaboratively working in different regions of the country and
reduce it in ways that we can act on, then. That would be very
helpful to us.
I wanted to ask a question about--two questions and then I
will be finished--one is: Is it possible that what we are
experiencing is being heavily influenced by changes in the
earth's orbit or its positioning? That, in fact, there is more
going on than just human behavior and its influence, but there
is something going on, as well, in space.
And, secondly, what do each of you have to present today or
in the future to the record, about energy and the use of energy
on earth and the earth's environment?
Dr. Freilich. So, to address your first question, there are
undoubtedly changes that are happening on very long time
scales, because we know that the climate has changed on long
time scales, back throughout the history of the Earth; however,
what we are seeing today are environmental changes that are
happening far more rapidly than could be accounted for by
things like orbital dynamics of the Earth and, therefore, must
be the result of other factors.
But both things are happening, long-term changes and short-
term changes. The short-term changes right now are happening
intensely and, of course, rapidly.
Ms. Kaptur. I think one of the most effective photos NASA
put out was the one showing the ozone layer healing because of
decisions that we made as intelligent beings. Obviously, with
some of the other challenges that we face, we have some work to
do, but I thought that was very effective and it showed working
together we can make progress.
Do you wish to comment, Dr. Jacobs?
Dr. Jacobs. That was a great answer. I have nothing to add.
Ms. Kaptur. OK. What about energy in the environment? What
about satellite imaging of changes in the use of energy with
population growth? Do you have any time-series data that would
help us see how we, collectively, as humanity, impact the
environment because of our use of energy?
Dr. Freilich. Well, I would say that the issue isn't
necessarily the use of energy, but how it is that we generate
that energy. If we generate that energy by burning fossil
carbon and adding that to the system, that has one kind of
environmental impact. If we generate that energy in other ways,
then the environmental impact of the same amount of energy will
be much different. So, it is not the energy itself, it is how
we got it.
Dr. Jacobs. I would just add to that, that NOAA does
provide high-resolution wind forecasts, as well as cloud
forecast and such, that can be used by renewable wind energy
and solar farms, but we don't actually--beyond the scope of
providing that atmospheric information, that's where our
jurisdiction stops.
Ms. Kaptur. All right. Thank you both very much.
Thank you, Mr. Chairman.
Mr. Serrano. Thank you. This has been a very interesting
hearing and one that continues to be an issue of much
contention. As I said at the beginning of the hearing, either
in making a bad attempt at humor or being profoundly sarcastic,
if we can't agree on what to call it, then maybe we can just
agree that something is going on. And you folks are doing a
great job of trying to find out what is going on and telling
us, you know, what may be causing it or not causing it.
But it would seem to me that there is a large amount of
this, if not all of it, caused by we, ourselves, who inhabit
this planet. And it is the planet we have. It is the only
planet that we know that we can be on right now. NASA hasn't
shown us that we can be on another planet yet, although, I
think that is coming soon.
But one of the reasons that I love this committee and one
of the reasons that I wanted very much to get an opportunity to
chair this committee or be ranking member as I was in the past,
is because of these two agencies that are in front of us now.
You do such important work and such important work for the
American people to help us along to understand where we are.
Just for the record, as far as NOAA, I have always said
that NOAA is one of those agencies that really has to go out of
its way to harm somebody because it is always trying to help
somebody.
And so NASA, I say something very district-constituency
related: You have never seen a crowd react to a congressman
bringing someone to a school as when you bring an astronaut. I
mean, that is absolutely incredible and we have to do more of
that, continue to tie in the work of both agencies to the
schools.
Because this excitement--I saw a group of kids just looking
at weather maps and looking at maps taken on a trip to space
and they were glued to that screen. You remember when you go
and the teacher says, OK, you in the back, relax. It did not
happen; they were glued to it. So, we should work on that.
So, thank you so much. Thank you for helping us through our
first hearing. I wish I could say this was our last hearing of
the season, but it is only our first. Thank you so much.
[Clerk's Note: The Department did not respond with answers
to submitted questions in time for inclusion in the record.]
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Thursday, March 7, 2019.
EXECUTIVE OFFICE FOR IMMIGRATION REVIEW
WITNESS
JAMES MCHENRY, DIRECTOR, EXECUTIVE OFFICE FOR IMMIGRATION REVIEW
Mr. Serrano. The subcommittee will come to order. Good
morning to all.
For our second hearing of the year today, we welcome James
McHenry, the Director of the Executive Office for Immigration
Review, or EOIR. EOIR primarily functions as our Nation's
immigration court system, where it administers and adjudicates
our Nation's immigration laws. And we thank you for being with
us, Director McHenry.
I wanted to hold this hearing because I have deep concerns
about how our Nation's immigration courts are operating. Some
of those concerns are long standing, while others have been
exacerbated by the decisions of the Administration.
Our Nation's immigration courts handle a wide variety of
immigration-related claims, from removal proceedings to asylum
claims; these are complex, nuanced proceedings that require
time, understanding, and care. In many cases, the consequence
of removal from this country is so severe that we must have
significant due process to ensure that no one's rights are
violated in an immigration court proceeding.
Unfortunately, these concerns are increasingly being shoved
aside. This in part is due to an enormous and growing backlog
of pending cases before the courts, which is now more than one
million cases. According to the Transactional Records Access
Clearinghouse at Syracuse University, the growth is largely due
to the significant increase in immigration enforcement efforts
over the past 15 years, which has not been followed by a
similar growth in the immigration court system.
Although this subcommittee has included significant
increases in immigration judge teams for the past two fiscal
years, your backlog has actually increased under the Trump
administration. This situation was worsened by the recent
government shutdown. The reasons for that are sadly clear: the
leadership of the Justice Department has attempted to turn our
immigration courts into a sort of deportation DMV where
immigrants get minimal due process on their way out the door.
This Administration has chosen to impose quotas on
immigration judges to limit case consideration regardless of
complexity; limit the ways in which immigrants can make valid
claims for asylum; increase the use of video conferencing to
reduce in-person appearances; and undermine the discretion of
immigration courts to administratively close cases, among many
other things. Ironically, those choices, supposedly aimed at
efficiency, have actually increased the backlog.
I believe our immigration courts should strive to be a
model of due process. A couple of bright spots in that effort
are the Legal Orientation Program and the Immigration Court
Help Desk, both of which help to better inform immigrants about
their court proceedings; we should seek to expand such
programs.
Despite these efforts in our current system, an estimated
63 percent of immigrants do not have legal counsel. We have all
read stories about children, some as young as 3 years old,
being made to represent themselves. That is appalling. Our
immigration laws are complicated enough to native-English
speakers, let alone those who come here speaking other
languages or who are not adults. We can and should do better
than this.
Today's hearing will explore the choices we are making in
our immigration court system to better understand how the money
we appropriate is being used, and whether it is being used in
line with our expectations and values.
We thank you again, Director McHenry, for being here today.
And I would like to turn to my friend Mr. Aderholt for his
statement.
Mr. Aderholt. Thank you, Mr. Chairman, for yielding. And I
am pleased today to be here, so we can conduct this critical
oversight of the Executive Office for Immigration Review, and
hear more about the future of our immigration court system.
In recent years, this subcommittee has been very concerned
with the conditions at EOIR. I understand there have been
significant efforts underway at EOIR to accelerate the hiring
process, improve completion time lines, and allocate resources
for those areas with the highest workload, such as the
Southwest border region.
The adjudication and the appeals of immigration matters are
central to the proper administration of justice in this
country. Congress must ensure that U.S. immigration laws are
interpreted as Congress intended, and administered fairly and
efficiently; therefore, it is incumbent upon EOIR to operate in
a way that maximizes docket management and minimizes fraud and
delay.
I would say it is probably understatement to say that
EOIR's 840,000 case backlog is a matter of concern. Through
this important hearing this morning, I hope to distinguish
between the extent to which this backlog is attributable to
factors beyond EOIR's control, and the degree which EOIR's
resources, administration, and performance contribute to the
caseload challenges.
The bottom line is the net effect of this untenable backlog
situation is to delay justice, in many cases for years, for
those who have a valid claim to immigration benefits, while
those who have no right to remain in the United States are
rewarded with many years of continued illegal presence.
Unfortunately, disappointing new information EOIR shared
with this subcommittee this week projects resource shortfalls
that will result in lower-than-anticipated hirings, delays in
the rollout of EOIR's electronic courts and appeals system, and
the impact of the implementation of EOIR's court-staffing
model.
As I say, I hope this morning from this subcommittee
hearing that we can get a full understanding of how the
recently enacted fiscal year 2019 appropriations for EOIR could
be so misaligned with EOIR's fiscal year 2019 resource needs.
How could EOIR have better advised this subcommittee in the
months leading up to the consideration of our fiscal year 2019
legislation.
I want to thank the chairman for holding this important and
very timely hearing, and I welcome Director McHenry to the
subcommittee today and we are pleased to have you before us
this morning. I look forward to hearing your testimony and
discussing the important work of EOIR.
And I yield back.
Mr. Serrano. Thank you, Mr. Aderholt.
Director McHenry, you are now recognized for your opening
statement. We wish you could keep it to 5 minutes, although
please understand that your full statement will be put on the
record.
Mr. McHenry. Thank you.
Mr. Chairman, Ranking Member Aderholt, and other
distinguished members of the subcommittee, thank you for the
opportunity to speak with you today. As the Director of the
Executive Office for Immigration Review at the Department of
Justice, I welcome this opportunity to share with you the
progress that EOIR has made and to discuss the challenges it
faces in the near future.
The primary mission of EOIR is to adjudicate immigration
cases by fairly, expeditiously, and uniformly interpreting and
administering the Nation's immigration laws. This mission is
carried out every day with professionalism and diligence by
EOIR's 1800 employees across seven components. I am honored to
lead EOIR's employees, for they are firmly committed to this
mission, and have performed commendably as we have sought to
strengthen and improve the functioning of our adjudicatory
system.
We are grateful for the support of Congress, the
Administration, and the Department in undertaking this effort
and, with continued support, we expect to be able to build on
these successes in the years to come.
EOIR has made considerable progress in the past 21 months
in restoring its reputation as a fully functioning, efficient,
and impartial administrative court system, capable of rendering
timely decisions consistent with due process. To be sure, EOIR
continues to face a significant backlog of pending cases at the
immigration court level, one that nearly tripled between 2009
and 2017. During that time, decreased productivity, protracted
hiring times for new immigration judges, and the lack of any
progress in moving toward an electronic filing system all
hindered EOIR's ability to effectively carry out its mission.
Beginning in 2017, however, EOIR has aggressively confronted
these challenges.
EOIR has hired more immigration judges in the past 2-plus
fiscal years than it hired in the 7 prior fiscal years
combined. Further, after 8 consecutive years of declining or
stagnant productivity, EOIR is now in the middle of its third
consecutive year of increased case completions and at the end
of the first quarter of fiscal year 2019 it was on pace for the
third-highest completion rate in its 36-year history. These
results are a testament to the professionalism and dedication
of our immigration judge corps, and a direct refutation of
critics who intimate that immigration judges lack the integrity
or competence to resolve cases in both a timely and impartial
manner.
EOIR is also striving to modernize and digitize its
critical information systems, as the benefits of an electronic
filing and case management are undisputed.
In 2018, EOIR piloted its new electronic filing system
called ECAS at five immigration courts and the Board of
Immigration Appeals. The results have been encouraging, as
nearly 8,000 attorneys have registered to use ECAS so far. EOIR
expects to initiate the nationwide rollout of ECAS later this
year.
Each of these accomplishments is critical to EOIR's
continued to success as it addresses the pending caseload.
Nevertheless, several challenges remain to ensure that these
successes are not undermined or wholly eroded, and further
challenges may also be on the horizon.
Overall, fiscal year 2019 represents a transitional year
for EOIR; it has solved some of its most persistent problems of
the past decade, but now it must also ensure that its recent
improvements do not become ephemeral.
For many years, the immigration court caseload increased
due to factors primarily within EOIR's control, mainly
declining productivity, insufficient hiring, and a lack of an
institutional emphasis on the importance of completing cases in
a timely manner; those factors are now being successfully
addressed. More recent increases to the caseload, however, have
been driven largely by external factors, including increased
numbers of asylum claims in immigration proceedings and
increased law enforcement efforts by the Department of Homeland
Security. It remains critical for EOIR to leverage available
resources to ensure this increased caseload is addressed in a
fair and efficient manner.
EOIR remains committed to reducing the pending caseload and
to fully reestablishing itself as the preeminent administrative
adjudicatory body in the United States. With the leadership and
support of the Department and the Administration, as well as
ongoing congressional support, I am confident that EOIR will
succeed in meeting these goals.
Again, thank you for this opportunity to speak before you
today, and I look forward to further discussions on these
issues and am pleased to answer any questions you may have.
[The information follows:]
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
Mr. Serrano. Thank you.
Yesterday, the same day you submitted a rather glowing
statement to this subcommittee, you sent an email out to EOIR
staff stating that due to the increase in cost of interpreters
you are potentially going to slow down the hiring of judges,
cancel training, curtail acquisition of new space, and delay
information technology improvements.
I understand that cost increase, but what I find
unacceptable is that you didn't come to the Congress, to this
subcommittee, and openly discuss this budget situation and ask
for additional resources. I assume these cost increases have
been going on for months prior to the enactment of the final
CJS bill. At the same time, this Administration was asking for
and holding a large part of the Federal Government hostage over
funding for an unnecessary wall.
So my first two questions for you are, when did you become
aware of the shortfall in the budget, and why didn't you
request more funding for the interpreters' contracts?
INTERPRETER CONTRACTS
Mr. McHenry. To answer the first question, interpretation
has been a challenge for EOIR throughout its history, and it
sort of ebbed and flowed over the years. In the early 2000s, we
had difficulty obtaining interpreters and at that point had to
switch to telephonic interpreters on a relatively frequent
basis. Again, over the years, over the time, you know, the
challenge has come, gone, and come back again.
Right now, the challenge, however, is driven primarily by
our successes. As I alluded to, we have hired more judges, we
are completing more cases, we are holding more hearings. The
number of hearings for non-English speakers have risen by
almost 60 percent in the past 5 years. These of course increase
interpreter costs, because we are completing more cases and
holding more hearings.
Mr. Serrano. But you are saying that it is not possible to
have a hold on finding out how many interpreters you will need
or you are always short when you are reaching out?
How many languages do you deal with?
Mr. McHenry. Our interpreter contract I think calls for at
least 350 different languages. And we have attempted to address
the interpreter situation in other ways. For example, last year
we advertised for full-time interpreters to hire at the courts.
Unfortunately, to be a full-time interpreter at EOIR, as
outlined in our language access plan, requires a great deal of
experience, particularly in a judicial setting. So when we
tested the interpreters, unfortunately, we only got a handful
who were able to successfully complete the examination.
We have also been looking at stacking and docketing
practices to ensure that languages are grouped together, so
that we are not wasting the interpreter resources.
Mr. Serrano. Now, the memo you sent out putting forth this
bad news to the staff, does that have a starting date, an
implementation date?
Mr. McHenry. As you know, the budget was----
Mr. Serrano. Yeah, I don't want to be in a situation here
where I am telling you, if you talk to us, we are going to take
care of the problem. That is not the way we work at
Appropriations. We have to find out where the money is going to
come from and so on. But I think, at the minimum, from what I
heard Mr. Aderholt say and what I have said, we would have been
open to discuss the situation and find out going forward how
can we be helpful, either in some special situation that comes
up in Congress or in the next year's budget.
EXECUTIVE OFFICE FOR IMMIGRATION REVIEW (EOIR) RESOURCE CONSTRAINTS
So I am just not understanding how there wasn't an alarm
that this was going to be a problem and then an email comes out
saying we have a problem that we, Congress didn't know about.
Mr. McHenry. No, I am happy to take that message back to
the Department. I think the Department is pleased to hear that.
This committee has been extremely supportive of EOIR in the
past, especially in the recent past, and none of the success,
none of the things that I alluded to with hiring, with case
completions, all of our efforts are almost entirely
attributable to that support. So we are very grateful, very
appreciative, and I will definitely relay that message.
Mr. Serrano. Thank you.
IMMIGRATION JUDGE (IJ) PERFORMANCE MEASURES
Last year, then-Attorney General Sessions testified that
immigration judges, quote-unquote, ``agreed to use case-
completion goals as part of their job performance
evaluations.'' Is this true, did immigration judges agree to
the use of case-completion goals as part of their job
performance evaluations?
I always preface a lot of these comments by saying I am not
a lawyer; I am not a judge. I played one on ``Law & Order''
once, but that doesn't count. But it would seem to me that
democracy and justice should take whatever time it takes. You
know, I am one of those few people that says, you know,
gridlock may not be a terrible thing, because there are places
where the budget is always on time because one person decides
what the budget is going to look like, whatever group. We have
a democracy and democracy means you get elected, I get elected,
we disagree, and it may take a little longer to reach that
situation.
But the whole idea that, you know, you must complete so
many cases or else you are not doing a good job just doesn't
make sense to me. Was there agreement on the part of the judges
and everyone else at EOIR to do this?
Mr. McHenry. I can't necessarily speak to what Attorney
General Sessions may have said, because I am not familiar with
the full context, but what I can say is that prior to last year
the collective bargaining agreement that we have with the
immigration judge union prohibited the use of numeric
performance measures. We negotiated that with the union and, as
part of that negotiation, that section was withdrawn. That then
allowed us to promulgate these performance measures at the
beginning of this current fiscal year.
To our mind, we understand the concerns and we have looked
at them very closely, but we don't consider them quotas, and we
don't consider them quite as black and white or quite as stark
as perhaps they have been portrayed.
In the collective bargaining agreement there are six
discrete factors that we do consider, plus a seventh catchall
to sort of account for any situations, any anomalies, any weird
trends that may be impacting a judge's performance.
Mr. Serrano. Well, but that brings us to the next part,
which is how can you ensure that judges don't feel pressured to
take shortcuts within the system in order to meet what is being
asked of them?
Mr. McHenry. To our mind, again, we are sensitive to that
concern, but to us it is sort of a false dichotomy. The
regulations require that the judges issue decisions in both a
timely and impartial manner; we don't see the two as in
tension, being able to do things timely and impartially. And
these performance measures, they are also not unique to us.
There are a number of other agencies that have implemented our
other components. The Board of Immigration Appeals and the
Office of the Chief Administrative Hearing Officer, they also
have performance measures or case-completion goals.
And we won't have the results, we won't have the outcomes,
obviously, until the end of the fiscal year, but so far we
haven't noticed any significant issues that have come up with
them so far.
Mr. Serrano. Well, let me just say on the record for you to
take back also, based on what you said before, that we want
judges to be judges; we want them to judge, we don't want them
to have to meet a quota or meet a time line in order to deal
with justice. Justice doesn't work that way. If it takes
longer, let it take longer, or let's talk about more judges
rather than a number that doesn't fit.
And lastly on this, do you anticipate that the use of these
performance goals could be used as grounds for an appeal of an
immigration case?
Mr. McHenry. Again, that is an issue that has been raised
and that we have looked at, but by itself we wouldn't expect
so. First, because our judges are professional, they know that
the law says that they don't make decisions based solely or
entirely on those goals, they know that that will lead to
reversal.
Additionally, we can't control what arguments people want
to raise, but we have trained our judges, they understand--many
of them come from other systems that have performance measures
or case-completion goals, and they understand, as I alluded to,
how to balance being fair and impartial and respecting due
process, and also providing timely adjudications of the cases,
so that these individuals don't have to wait any longer than is
absolutely necessary to get a decision.
Mr. Serrano. I want to ask one last question here and then
get on to the other members and Mr. Aderholt.
EOIR'S CASE BACKLOG AND EFFECT OF GOVERNMENT SHUTDOWN
We just had the longest government shutdown in history;
what has this done in terms of the backlog of immigration
cases? Can you tell us the current backlog number, as well as
how many cases have been added to the backlog as a result of
the shutdown? How long will it take to get back to the pre-
shutdown level?
Mr. McHenry. The current pending caseload is about 850,000.
We wouldn't necessarily say those are all backlog, because that
includes cases that were filed yesterday, the day before, a few
weeks ago that haven't been pending for that long. It also
includes detained cases, which generally move much more
expeditiously.
In terms of the shutdown, for us it is not a question of
added cases, because non-detained cases weren't being
adjudicated, they weren't being filed, so it is hard to say.
What we can say is that we had to cancel approximately 60,000
hearings during the time of the shutdown.
RESCHEDULING OF CANCELED HEARINGS
Mr. Serrano. And when you canceled them, were you able to
get back to those folks after the shutdown and tell them that
you were ready to hear their cases or that they were still on
schedule to have their cases heard?
Mr. McHenry. The courts are in the process of rescheduling
those. They have been working overtime since the shutdown ended
to get that done.
Mr. Serrano. Because from what we understand on the
committee during the shutdown, many may not have been sent
written notice after the shutdown that the cancellation now is
over and they can be taken care of, or at least dealt with
their issue.
Mr. McHenry. There was a hiccup the first week after the
shutdown ended, because we didn't have time to necessarily get
notices out. We also had a couple of courts closed that week
due to weather issues that delayed it, but we think those
problems have largely been resolved since then.
Mr. Serrano. Thank you.
Mr. Aderholt.
EOIR'S CASE BACKLOG SOLUTIONS
Mr. Aderholt. Well, talking about the backlog, you said
850,000, I believe we talked about 840, 850,000 pending cases,
and you talked a little bit about in your opening remarks about
the hurdles, but can you again talk about what you think are
the greatest hurdles to overcoming that backlog and in trying
to reduce it? I mean, if you had to really focus on just one or
two things, what do you think are the greatest need there to
try to overcome that?
Mr. McHenry. The number-one need, as it has been, as the
President has outlined, as this committee is aware, the
subcommittee is aware, is more immigration judges, increased
immigration judges.
In October of 2017, the Administration called for adding
370 immigration judges. At the time, we had about 330, so that
equates to about 700 total. We know that, when we get more
judges, they are adjudicating more cases more effectively, more
efficiently, the numbers keep going.
EOIR'S 2014 RE-ALLOCATION OF RESOURCES
Mr. Aderholt. To what extent do you believe that the
reallocation of resources and judges to the priority dockets of
unaccompanied minors and family units beginning in 2014
contributed to the backlog?
Mr. McHenry. It is a frequent criticism and it is clear
that the reshuffling of the dockets didn't help the backlog,
but it is part of a larger sort of culture at the time that, as
I alluded to, didn't emphasize the importance or the need for
completing cases in a timely manner. So it sort of plays into
the larger issue of, you know, an institutional focus on the
need to get the cases completed and to get results for the
individuals in proceedings.
CASE PRIORITIES
Mr. Aderholt. Does EOIR make these cases a priority?
Mr. McHenry. In January of 2018, we issued a new priorities
memo. Under the prior memo, fewer than 10 percent of our cases
were prioritized, but our new memo says detained cases are
obviously a priority, and any other case that is subject to a
deadline set by statute, by regulation, by court order, or by
policy is a priority. Essentially, the cases in which we have
to wait for another agency to act, those don't necessarily fall
within the priority distinction, but all of the other cases do.
INTERPRETER NEEDS/CHALLENGES
Mr. Aderholt. And you mentioned additional challenges that
will need to be sustained to support--to ensure that EOIR's
recent successes are not undermined or eroded. And you--as
mentioned earlier, you said it was--correct me, you said in
early 2000 was when the interpreter issue became a real
challenge?
Mr. McHenry. It has been a challenge off and on at least
since then. We issued policy guidance, I believe in 2004, to
address it at the time.
Mr. Aderholt. But that is when it first became real was the
early 2000s.
Mr. McHenry. Right, but it hasn't necessarily been
consistent over that time.
Mr. Aderholt. Right, but that is when you first saw it,
even though it has waned back and forth since that time?
Mr. McHenry. I am not necessarily familiar with the agency
history before that time, but that is the first time that I am
aware of.
Mr. Aderholt. How does the on-boarding of additional judges
drive your interpreter needs and how we will address this
challenge in future budget submissions?
Mr. McHenry. Well, the fiscal year 2020 budget hasn't been
put out yet, I believe it is scheduled to be put out next week
or in the next couple of weeks, so I defer to the Department
and to OMB for the formal submission. But, as I alluded to and
as our statistics show, the increase in the number of judges,
you know, we hire them to hear cases, they are hearing more
cases, they are hearing them more efficiently, we have had an
increase in the number of hearings that require--or for non-
English speakers, which ordinarily require interpreters. So,
the more judges you have, the more hearings you hold, the more
need there is going to be for interpreters.
EOIR'S COURTS AND APPEALS SYSTEM (ECAS) PILOT PROGRAM
Mr. Aderholt. In 2018, EOIR launched an electronic filing
pilot program marking the first phase of EOIR's Courts and
Appeals System, ECAS, initiative. Can you take a minute and
just describe that pilot program and the outcomes that you
observed from your viewpoint?
Mr. McHenry. Sure. ECAS is our electronic filing program.
We are one of the few, maybe the only at this point,
administrative agency that is still using a paper filing
protocol. We have known it is a concern, we have known it is an
issue for many, many years. And in 2018, with the
subcommittee's support, we were able to take some of the first
steps toward piloting what you call ECAS to rectify that
situation. We are also grateful the fiscal year 2019 enactment
had 25 million to go toward technological improvements, which
is designed to improve and enhance ECAS.
In short, ECAS is an electronic filing program, it is an
electronic record of proceedings, so it gets rid of the paper
files, and it has judicial tools that allow the immigration
judges to more effectively go through the documents, take
notes, and follow what is going on. We believe it will make
proceedings even more efficient in the future. It will also
free up space right now that is currently being dedicated to
file rooms and docketing rooms, that we can then put other
employees, other judges, utilize them better in more effective
ways.
Mr. Aderholt. What is your time frame for full
implementation of this new system?
Mr. McHenry. We intend to--we completed the pilot last year
and we are right now sort of assessing the results of that
pilot. Because of the equipment involved, there is a little bit
of lead time before we can roll it out nationwide, but we
expect to do that by the end of this calendar year. It has to
be done in phases. Obviously, EOIR is a large system, we have
65 courts and adjudication centers nationwide. We unfortunately
can't just implement it overnight or turn on a switch. So it
will probably be done in phases, I would expect definitely into
2020 and probably into early to mid 2021 as well.
Mr. Aderholt. What do you anticipate as far as trying to
implement the ECAS system from being fully implemented, is
there a particular hurdle that you see as problematic or----
Mr. McHenry. Right now, time is the biggest hurdle. Once we
get the equipment, you know, then we can start rolling out.
There will be a time lag, there will be training that needs to
be done and that sort of thing, but at this point it is just
time.
Mr. Aderholt. Thank you, Mr. Chairman.
Mr. Serrano. Thank you.
We will now begin the questioning. Those who were here last
time remember that the system we use is who was here at the
time of the gavel, and then who came later, and we will go back
and forth from that. And we will try to stick--or we will
stick, especially today, to the 5-minute rule, or you hear this
gentle and very soft, my lovely way of saying okay. [Laughter.]
Mrs. Lawrence.
Mrs. Lawrence. Yes. Thank you, Mr. McHenry.
IMMIGRATION JUDGE (IJ) AUTHORIZATION AND HIRING
I have a question. Currently, we know that there are a
backlog of cases and my question to you is, how many vacancies
for authorized judges do we have on field today?
Mr. McHenry. I can't give you the number precisely today.
What I can say is that, once we process all of the judges that
we currently have in place, we will only have about eight
vacant courtrooms remaining. So we have 427 judges currently,
we are going to be at roughly 450 in a couple of months. We
have 428 courtrooms right now and that is going to be up to I
think 460, in that neighborhood, in a couple of months. So we
are going to be at almost full capacity. The authorization is
of course 534, but we will need to increase our space to be
able to bring the judges on.
Mrs. Lawrence. So the allocation and what we appropriate
for is for 500 and how many?
Mr. McHenry. Five hundred and thirty four.
IMMIGRATION COURT OPERATING HOURS
Mrs. Lawrence. Has there been any discussion of extending
the hours of operation?
Mr. McHenry. That is something actually that we have looked
at at different courts. It is difficult to do logistically, not
only to find people who are willing to do that, because we need
legal assistants, we need interpreters, we also have to discuss
security concerns. Some of our courts are located in public
buildings and it may be difficult to hold them open after
hours. It is something that we have looked at, but at least in
the non-detained setting it hasn't shown to be viable just yet.
LEGAL REPRESENTATION IN IMMIGRATION COURT
Mrs. Lawrence. One of the greatest obstacles proposed by
the remote nature of most facilities, a study conducted by the
LA Times in 2017 found about 30 percent of immigrants in
detention are jailed more than 100 miles from the nearest
government-listed agency Legal Aid resource on the pro bono
list distributed by ICE and the immigration courts.
I want you to know that represent--I am sure you agree,
representation matters, particularly given the complex nature
of immigration law. The vast majority of immigrants in
detention are under-represented. Fewer than one in five are
represented. Immigrants in detention are twice as likely to
succeed in their cases if they are represented.
What training do you provide to judges who hear detained
dockets to ensure their respondents are given enough time and
support to obtain counsel, and if they are unable to do so, to
be provided or apprised of their rights by the judge?
This is a major concern, Mr. McHenry.
Mr. McHenry. Both by statute and regulation, the
immigration judges are required to apprise all respondents of
their right to counsel at no government expense. They are also
required to provide them with a list of pro bono or low bono-
type service providers. By policy, we typically give at least
one continuance to look for an attorney. By statute, they are
allowed 10 days before their first hearing to seek counsel.
Once they are in proceedings, the judge will also look out
for their rights, will explain the nature of the proceedings to
them, if they are unrepresented. If they are unrepresented and
they are seeking asylum or some type of benefit, the judge will
also explain the qualifications for that.
Mrs. Lawrence. Do you find having one in five, only one in
five are represented, what is your response to that data?
Mr. McHenry. There are many arguments on that and the data,
at least in the detained setting, is sometimes inconclusive.
Many respondents who are detained are detained for serious
criminal charges or serious criminal convictions, and thus
there may not be much that an attorney can do for them in
proceedings, and many attorneys as a matter of----
Mrs. Lawrence. But they are under-represented, so it is not
an attorney. So are you saying that, if they commit a crime,
then there is no need for an attorney, is that what you are
saying?
Mr. McHenry. What I am saying is that many attorneys as a
matter of ethics won't take a case for someone if they can't do
something for them in immigration proceedings. So there may be
some sort of selection bias going on in terms of looking at the
overall representation number for detained aliens. We have----
Mrs. Lawrence. So make me understand that. So, if I am a
detainee with a criminal record, you are saying that the
attorneys don't want to take their case, so therefore they go
through the system unrepresented?
Mr. McHenry. For example, an individual who has a drug
trafficking conviction and has no fear of returning to their
home country, is ineligible for almost everything under the
immigration laws. An attorney who talks to that individual is
unlikely to take their case, is unlikely to charge them money,
because they understand as a matter of law they can't do
anything in the proceedings.
We haven't drilled down to know--and it is a level of
granularity that I am not sure we could get at it--to know how
many individuals don't have counsel because they haven't looked
for it or because someone won't take their case, or for some
other factors.
Mrs. Lawrence. I will wrap up with this. In our country,
representation in the legal process is something that is an
expectation and what you just said to me is something that
needs to be corrected.
Thank you. And I yield back.
Mr. Serrano. Thank you.
Mrs. Roby.
Mrs. Roby. Mr. Graves was here before me----
[Audio malfunction in hearing room.]
Mr. Serrano. Yes, we went to the videotape. [Laughter.]
I apologize.
Mr. Graves. Thank you. Thank you for the southern
hospitality too from the gentlelady from Alabama.
Director, thank you for being here. You have a daunting
task. Myself and Mr. Palazzo were a part of the conference
committee that dealt with border security funding here a few
weeks ago, and we were briefed on a lot of the details and
information as to why the President and the Administration made
the request for 75 additional judges that came through your
department.
FY 2019 IMMIGRATION JUDGE AUTHORIZATION REQUEST
Was your request, which was granted in that bill,
contingent on the comprehensive nature of the request? In
essence, were 75 judges, in your opinion, sufficient if the
full request was funded, or was it based on an open border
system or a current border deterrent system or a more advanced
deterrent system?
Mr. McHenry. Our request was sufficient for our needs at
the time it was made and, again, we are very appreciative for
the subcommittee fulfilling that request.
Mr. Graves. Is it sufficient for your needs today?
Mr. McHenry. Our challenge going forward--and, again, the
next week or the next couple of weeks the Department will
submit the formal budget request that may more directly answer
your question, but our challenge going forward is, with
increased amounts of immigration, EOIR sees most of the
downstream effects of that. Many individuals come here and they
make asylum claims, they are placed in immigration proceedings,
so they end up in our court system. So we know as a matter of
data, as a matter of statistics, the more immigration that we
have, the more likely we are going to have increased court
cases.
Mr. Graves. So the request was made in December of last
year in conjunction with the $5.7 billion request for a border
fence or wall, in addition with a lot of other things,
including investigators and detention beds and Border Patrol
and Customs. Do you sense that you would need additional judges
if the rest was not fully funded as requested originally in
December?
Mr. McHenry. I don't necessarily want to speak out of turn,
because most of those are requests from the Department of
Homeland Security, and we typically wouldn't comment on another
agency's budget.
NON-DETAINED AVERAGE CASE COMPLETION TIME
Mr. Graves. That's fine. On average, a non-detained
individual has 672 days before his or her case is heard; is
that correct?
Mr. McHenry. Before the case is completed; there may be
multiple hearings along the way.
Mr. Graves. So they are not detained. Where are they when
they are not detained?
Mr. McHenry. We have 65 courts nationwide, approximately 40
of them hear non-detained cases.
Mr. Graves. But where are the individuals who are not
detained for 672 days?
Mr. McHenry. Typically, at their house or wherever they
happen to reside.
Mr. Graves. The country of origin or----
Mr. McHenry. No, in the United States or wherever they are
residing.
Mr. Graves. In the United States. So, for 672 days they are
in the United States. What percentage of them actually return
to have their case heard?
Mr. McHenry. It is a difficult question to calculate the
percentage, because there may be----
Mr. Graves. It should be pretty easy, either they show up
or they don't.
Mr. McHenry. Well, there may be reasons that they don't
show up at a particular hearing, there may be issues with
notice and things like that. What we know, at least on this
fiscal year, it is about 44 percent of our cases have resulted
in an in absentia, which means they weren't present for it,
that represented in an in absentia removal.
Mr. Graves. So about 45 percent don't show back up. Where
do they end up? Do they go home?
Mr. McHenry. The Department of Homeland Security would be
in a better position to answer that than I. They do have an
order of removal outstanding. At that point----
DETAINED V. NON-DETAINED AVERAGE CASE COMPLETION TIME
Mr. Graves. So help me understand. What is the difference
then in 40 to 45 days until a hearing for someone that is
detained versus somebody that is not detained waiting 2 years,
why is that different?
Mr. McHenry. For a number of reasons. Detained cases, as I
said, are expedited, they are always a priority. Typically----
Mr. Graves. So would it be better to have more detention
facilities, so that cases can be expedited, or is it better to
have less detention facilities, so that 45 percent don't show
up?
Mr. McHenry. That would be a question probably better
directed to the Department of Homeland Security, since they
maintain----
Mr. Graves. It is a good question for you too here today.
Mr. McHenry [continuing]. They maintain the detention
system.
Mr. Graves. In your opinion, after all you have seen, you
have an 850,000 person backlog--I assume that is not because of
the Department's lack of work, but it is probably due to
additional apprehensions, as we have seen in the news. Do you
consider this a national emergency?
Mr. McHenry. Again, I am not in a position to really
comment on semantics----
Mr. Graves. You have expertise, you can----
Mr. McHenry [continuing]. Or labels. What I can say, as I
alluded to earlier, we do see the downstream costs. Increased
immigration does lead to increased court cases.
Mr. Graves. I appreciate your attempt to avoid that
question, I know it is difficult. We all get that question and
we are grappling with that today, but I would say that an
850,000 person backlog that has increased 14 percent or more
each year over the last 8 years might be an emergency, and it
is okay to say that.
Mr. Chairman, I will yield back.
Mr. Serrano. Thank you. And once again we apologize for the
order, since I hadn't seen that you had stepped out of the room
before the gavel went down and you were here before.
Mr. Graves. Thank you.
Mr. Serrano. So I am sorry for putting you in the category
of forgotten, but not gone.
Mr. Graves. So I am free to go. [Laughter.]
Thank you, Mr. Chair.
Mr. Serrano. Mr. Case.
Mr. Case. Thank you.
Director, at the bottom of your testimony, the second-to-
the-last paragraph, you have this statement: ``The nature and
timing of the fiscal year 2019 process has left EOIR short of
fulfilling all of its current operational needs, and it is
limited in its ability to reform programs that are not cost
effective.''
What does that mean? What are you trying to say there? I
think there are two parts to that. One is fiscal year 2019 and
the second part has some reference to programs that are not
cost effective.
FY 2019 BUDGET REQUEST
Mr. McHenry. The first part, as I have alluded to, you
know, we have challenges. We have had a number of things come
up, most recently, probably the biggest one is the interpreter
issue has returned.
In terms of cost effectiveness, the subcommittee is aware,
obviously, of the study that we did of the Legal Orientation
Program last year. We have now completed that, or at least the
first two phases of it, we know what the costs associated with
it are, and it is something that the Department I think would
like to engage with the subcommittee at a later date to sort of
talk about what its best posture is going forward.
Mr. Case. Okay. So, on the first part, the 2019 budget,
what you are saying is the interpreter issue came up basically
after the 2019 budget process?
Mr. McHenry. As I have said before, the interpreter issue
has been sort of an off-and-on and ongoing concern, but it has
become more acute, again, as we have brought in more judges and
we have heard more cases and they have completed more cases.
Mr. Case. Okay. And then the second part again, so this
reference to cost effective is to the Legal Orientation
Program; is that right?
Mr. McHenry. To an extent. That is one of the programs that
we looked at and we evaluated. We know what its costs are, at
least to us and government-wide, and it is something that we
would like to engage the subcommittee on going forward.
LEGAL ORIENTATION PROGRAM (LOP)
Mr. Case. Okay. You have not then today made any
determination that this program is not cost effective?
Mr. McHenry. We know what the costs associated with it are,
but the future would be--as I said, that would be part of a
dialogue or a discussion that we would have with the
subcommittee.
Mr. Case. Yeah, I am just trying to get a sense of where
you are right now, because, you know, I am presuming from what
I have read here that there is some disagreement over whether
this program should be continued or not. I mean, it went for a
while, it got, you know, great reviews by the ABA, who alleges
that it--or claims that it was cost effective, that it reduced
backlogs by some 20 percent. That was based on a 2012 study.
You have said that that 2012 study came under unusual
circumstances. I don't know what that exactly means, but the
fact that there is a very significant body of folks out there
who thought it was cost effective. You suspended it to do
another study on it.
It is good to know that that study is proceeding, but I am
just asking you where you are right now on it, because, you
know, this is, frankly, a little confusing language. I don't
know whether it is circular a little bit, ``it is limited in
its ability to reform programs that are not cost effective.''
So I don't know whether you have already decided you are
not going to try to reform this program or whether you have
decided that you are still thinking about it, or whether you
have decided that, you know, you are going to run with it, I am
not sure which one it is.
Mr. McHenry. We have decided we would like to talk to the
subcommittee more about it.
Mr. Case. Okay, so no decision yet on--do you have an
opinion on whether it is cost effective today?
Mr. McHenry. We would rely on the study that we have, that
we have done in the past year that I believe was provided to
the subcommittee.
Mr. Case. Right, which is not finished.
Mr. McHenry. The first two phases of it, the third phase is
not finished.
Mr. Case. Okay. So you are still open on this program,
subject to discussing it with the subcommittee.
Mr. McHenry. Yes. In fact, we have expanded it recently, I
think, into a facility in Mississippi.
Mr. Case. I see. So it is not suspended then?
Mr. McHenry. No, it was never suspended----
Mr. Case. Okay.
Mr. McHenry [continuing]. It is still ongoing.
Mr. Case. All right. I guess, you know, I read all this
stuff and I just ask myself, where is this all going? I know
this is kind of a big-picture question, but you have got
incredible backlogs here. We can debate whether they are an
emergency or not, you know, from my perspective, it doesn't
matter, the backlogs are there.
EOIR'S CASE BACKLOG
When we look out into the future, do you have projections
about whether your demand on your system will continue to
increase at this kind of a rate and, if so, how you are going
to actually deal with that increase in demand?
Mr. McHenry. The projections would probably best come from
DHS, because we are contingent upon their inputs, the number of
new cases they are filing. We know how many they have filed
over the past couple of years, it has been around 300,000. So,
when we look at our projections, we are sort of basing it off
of that number continuing, but they would have the most
accurate and the best up-to-date data.
Mr. Case. So you are taking their figures and you are
calculating an increase in demand still, right?
Mr. McHenry. Yes. As I alluded to in my opening statement,
we have largely solved the problems on our side in terms of
processing. We are able to hire more judges, we are able to
move the cases more efficiently, but the number of inputs has
gone up considerably. If we were still looking at the cases
that we saw in 2015, the backlog would already be going down,
but there has been a tremendous increase over the past 3 or 4
years and that is what is driving it right now.
Mr. Case. Yeah, I guess that is my point, because it kind
of seems like you are chasing a car that is going faster than
you are running.
So I am trying to figure out what--sorry, I still stop
there, because I have been very unsubtley----
[Laughter.]
Mr. Serrano. Mrs. Roby.
Mrs. Roby. Thank you, Chairman.
Director McHenry, thank you again for taking the time to be
here and come before the committee to address our concerns.
In your opening statement, in an email address to your
colleagues, you highlight shortfalls within the fiscal year
2019 funding levels, it has already been brought up today. You
mentioned cost increases associated with increased
transcription, data analytics, and other operational
necessities. The most dramatic increase, though, was with the
interpreter costs, which I know several of my colleagues have
addressed.
In perspective, interpreter costs were $17 million in
fiscal year 2017, $60 million in fiscal year 2018, and expected
to approach $110 million for fiscal year 2019.
But you go on to say, quote, ``This challenging budget
situation has led us to a position where difficult financial
decisions need to be made.''
FY 2019 RESOURCE CONSTRAINTS
So I would like it if you would tell us what difficult
financial decisions you are referencing, and what decisions
have been or are being made to address these?
Mr. McHenry. The formal decisions will be made by the
Department when the spend plan is issued, which I think is
coming in a few weeks as well.
The email is designed to sort of lay out priorities. Our
employees know the situation, they know that we have
unprecedented growth, unprecedented hiring, unprecedented case
completion numbers, all due to the support of Congress and the
Administration; they have questions about where do we go next.
We have essentially been trying to dig ourselves out of a hole
for the last 2 or 3 years, and we are getting sort of to the
top of that, and they want to know what are the next steps.
So we have outlined sort of what we see as the priorities
going forward for the remainder of the fiscal year and that is
what it is designed to convey.
Mrs. Roby. Okay. You continue in your statement that you do
not expect to be able to continue to hire and onboard staff at
the pace previously set, and that you expect delays, to include
the hiring of immigration judges with no new class after the
one scheduled for April. You mention you will not be able to
hire 250 attorneys that are needed.
So my question gets to this, what resources do you require
from Congress to address these shortcomings, and are you able
in your current capacity to keep up the pace you have been on,
or do you expect the Department to slowly start falling even
further behind?
Mr. McHenry. We definitely don't expect to start falling
further behind. We have set, as I have alluded to, a fairly, to
my mind, impressive pace in terms of hiring and adjudications,
that should continue for the foreseeable future.
In terms of resources, again, it wouldn't be appropriate
for me to get out ahead of the Department or OMB for the
release of the actual request.
Mrs. Roby. Okay. Well, again, I appreciate your time being
here with us.
And, Mr. Chairman, I yield back.
Mr. Serrano. Thank you.
Mr. Cartwright.
Mr. Cartwright. Thank you, Mr. Chairman. Thank you, sir.
Mr. Serrano. Our vice chairman. We are going to get you a
thing that says vice chairman on it.
Mr. Cartwright. And I hope to be forgotten, but not gone as
well. [Laughter.]
IMMIGRATION JUDGE (IJ) PERFORMANCE MEASURES
Mr. Cartwright. Director McHenry, thank you for joining us
today. I wanted to talk about a few areas, the first one was
case completion quotas.
I was an advocate in the courts for 25 years and one thing
we constantly heard from the Federal courts was statistics, you
know, how can we hurry cases through the system. And every time
I heard that, it made me think, what about justice? You know,
are we sacrificing justice for speed.
A new EOIR policy that began under Attorney General Jeff
Sessions was case completion quotas. Beginning in October of
2018, judges were informed that they were expected to meet a
quota of 700 cases completed a year or they could be fired.
Doesn't prioritizing metrics in case completion make it
harder thoughtfully to dispose and adjudicate these cases, and
easier simply to deny applications for entry into the United
States?
Mr. McHenry. I think this question comes back to a point I
made earlier that to our mind this is sort of a false
dichotomy. There is no reason that judges can't be both
impartial and respect due process and also be efficient. Again,
we don't call them quotas, because they are not strictly black
and white, but they are not novel, nor unique to us. A number
of other agencies use them, in fact they are fairly widespread,
and we are not aware of any sort of significant or systemic
issues that have arisen because of them.
Mr. Cartwright. Well, you understand what I'm getting at
and the question is, what specific steps has EOIR taken to
ensure that setting quotas or targets like this doesn't hamper
a judge's ability to examine each case comprehensively and
justly?
Mr. McHenry. All of our judges are properly trained. They
are expected to know the law, to understand the law; they are
expected to adhere to the law and to apply it. And they also
understand the law is very clear that they can't deny a case,
or deny a continuance or something like that, solely based on a
performance measure or a case-completion goal.
Mr. Cartwright. Now, of course our immigration courts are
structured differently from other courts. They are housed
within the Department of Justice and immigration judges report
directly to the Attorney General of the United States; correct?
Mr. McHenry. They are appointed by the Attorney General;
there are several layers of management between them, but they
are appointed by him.
Mr. Cartwright. And the buck stops at the Attorney General;
correct?
Mr. McHenry. By statute, yes.
Mr. Cartwright. And, if the Attorney General chooses, he or
she can assign a case to a new judge or even reverse a
decision; am I correct in that?
Mr. McHenry. The Attorney General does have certification
authority to refer decisions to himself from the Board of
Immigration Appeals.
Mr. Cartwright. Right. So, when judges are given case-
clearing quotas that they must meet or potentially lose their
jobs, and their decisions must be approved by a potentially
partisan supervisor, do you have a concern that this system
might result in something less than objective and independent
adjudication?
Mr. McHenry. The immigration court system has been part of
the Department of Justice since 1940. Almost every Attorney
General, to my knowledge, with rare exceptions has exercised
review authority. This is a situation that is neither new or
that uncommon. And, again, we are not aware of any systemic
issues that have arisen because of it.
Mr. Cartwright. Well, you know what I am going to say about
that, I am going to say, well, we have always done it that way
is something less than a full discussion on the merits.
Do you have a concern that partisanship can enter into the
adjudication process?
Mr. McHenry. I am not aware of any partisanship for
anything in the adjudication process. The Attorney General, by
statute, is charged with offering controlling guidance on the
immigration laws.
ADJUDICATION CENTERS AND VIDEO TELECONFERENCE (VTC) HEARINGS
Mr. Cartwright. Okay. I also understand that, in addition
to immigration courts, EOIR has two adjudication centers,
right, one in Forth Worth and one in Falls Church, Virginia?
Mr. McHenry. That is correct.
Mr. Cartwright. Okay. At these centers, judges hear cases
from around the Nation via teleconferencing, right?
Mr. McHenry. Video teleconferencing, yes.
Mr. Cartwright. Video teleconferencing, right. And my
understanding is judges at the adjudication centers, they are
at the adjudication centers, while the attorneys and
respondents are in separate locations around the country. But
in February of this year seven detainees, along with three
public defender groups, filed a federal lawsuit against ICE and
they said--and you are familiar with that suit, I'm sure----
Mr. McHenry. I am.
Mr. Cartwright [continuing]. They said reliance solely on
video conferences has, quote, ``had disastrous effects on
detained immigrants, the ability of their attorneys effectively
to represent them, and the efficiency of the immigration
court,'' unquote.
My question is, has the EOIR taken steps to examine whether
teleconferencing impacts the attorney's ability to advocate for
their clients or, for that matter, a judge's ability to provide
due process to immigrants seeking fair adjudication?
Mr. McHenry. I can't speak specifically to the situation in
Varick Street, obviously, because it is a pending litigation--
--
Mr. Cartwright. Certainly.
Mr. McHenry [continuing]. But what I can say is that our
numbers don't bear out any sort of systemic issues.
During the first quarter of this fiscal year, we held about
29,000 VTC hearings, only 151 had to be adjourned due to some
sort of video malfunction. We are in line with other agencies,
including the Social Security Administration, the Department of
Veterans Affairs, the Department of Health and Human Services,
who have all found VTC to be a helpful, efficient, and useful
tool.
It also helps us eliminate dark courtrooms and give
individuals, respondents essentially an extra day of hearing
that they might otherwise have to wait for multiple months or
weeks.
Mr. Cartwright. Okay. So the answer is, yes, you have
thought about it and you have reviewed it, and it is on your
radar screen?
Mr. McHenry. Yes. We believe VTC is an efficient and
effective way of hearing cases. It has been authorized in the
statute since 1996 and we have found it to be generally
successful.
Mr. Cartwright. Thank you.
I yield back.
Mr. Serrano. Mr. Palazzo.
Mr. Palazzo. Thank you, Mr. Chairman.
IMMIGRATION JUDGE (IJ) HIRING
Director McHenry, thank you for being here today.
To follow up on what Congressman Graves asked you, he was
talking about the judges briefly, and originally we had $5.7
billion in the President's budget and you asked for 75
additional judges, but it was reduced--for the wall, it was
reduced to $1.3 billion. If you had known that, would you have
asked for more judges than the 75?
Mr. McHenry. Again, unfortunately, I am not sure I am in a
position to answer hypothetical or to comment on----
Mr. Palazzo. Could you use more judges----
Mr. McHenry [continuing]. Another department's budget.
Mr. Palazzo [continuing]. Than 75?
Mr. McHenry. As I mentioned, it has been an Administration
priority. You know, the President called for up to 700 total,
and it has been a key part of our strategy of addressing a
backlog. And, again, the subcommittee has been extremely
supportive of us in those efforts.
Mr. Palazzo. And, Mr. Chairman, you know, something that
keeps popping in my mind, and Congressman Graves and I did
serve as conferees on the Homeland Security appropriations
process, and, you know, we seem to have a lot of our colleagues
asking questions. Some of them are good questions, some of
them, you know--I guess they are all good questions. But I was
just always curious how many Members have actually been to the
border and seen firsthand what our Border Patrol Agents, our
ICE Agents, our judges, our local law enforcement officers, and
local elected officials in the communities at large think about
the crisis that we have at our border.
And I just want to continue to urge my colleagues, you
know, to get down there and see firsthand. It is a wonderful
trips, the professionals down there will tell you how it is,
and you can see firsthand, you know, whether you want to see
whether the wall works or not, or where the wall is applicable.
It is great, you can see the ports of entry. When we were
there, they apprehended seven kilos of cocaine the morning of
going to a point of entry, and they say this just happens every
hour on the hour.
But I kind of digress. So I would like to get back to, you
point out that out of the judges that you had a target to hire
in 2019--or your 2018 goal, you have come up short and you were
only able to hire 20 judges, and you say it is due to an
increase in interpretation costs. Can you describe how were you
under-projecting the interpretation costs and it went up so
much you can't hire the judges?
Mr. McHenry. Again, final decisions on hiring and so forth
haven't been made. Those will be part of the spend plan that is
coming. Right now, our projections are--we have another class
coming in April and then we are not sure about the remainder of
the fiscal year.
Interpretation is obviously part of it. Again, for reasons
I have said there are more judges, means more cases, means more
hearings, and it is something that we are factoring in
definitely going forward.
INTERPRETER COSTS
Mr. Palazzo. All right. So, interpreters, I mean, are not
they a dime a dozen on the border? I mean everybody down there
is pretty much bilingual in large part, so how are
interpretation costs going up significantly?
Mr. McHenry. Unfortunately, it is not as simple as that.
Our interpreters are required to be trained both, in
simultaneous interpretation and consecutive interpretation.
They need experience in a judicial setting before we can hire
them. I think I mentioned previously, we actually advertised
and we are looking to hire more full-time interpreters. We have
about 60, I think, currently, on staff. When we put the ad out,
we only had 12, 13, 14 who were able to actually pass the
examination.
So, because, you know, we adhere to due process,
interpreters are essential to most of our proceedings, we have
to make sure that they are trained. And that they are proper.
Mr. Palazzo. That is good to hear. From being able to
discuss things with the professionals that are knowledgeable on
the subject matter, we learn things every day to help us make
decisions.
LEGAL REPRESENTATION AND THE LEGAL ORIENTATION PROGRAM (LOP)
One of our--my colleagues mentioned earlier, she kept
talking about representation. If you are here illegally, are we
obligated to provide representation to people here illegally?
Mr. McHenry. In general, the statute, the Immigration
Nationality Act provides aliens a right to counsel, but not at
government expense.
Mr. Palazzo. And so, there is a legal orientation program
made up of non-government entities. Can you kind of describe
that process.
Mr. McHenry. Sure. Legal orientation, or LOP, is sort of an
umbrella term and we have several subgroups under, but I think
the main one that the subcommittee has been interested in is
the general LOP, which goes to detention facilities across the
country and they do one of four tasks. The primary one is sort
of know your rights presentations; explain to the detainees, to
the respondents what to expect, what is going to happen. After
that, they may do follow-up individual consultations. They may
refer them and things like that.
Mr. Palazzo. Do you ever feel like they may be coaching the
detainees to cheat the system to, you know, try to, hey, this
is how you get a credible fear claim, you know, all you have to
do is say this keyword and you are free.
Mr. McHenry. I am not as familiar with on-the-ground facts
and I haven't observed any LOP briefings. I am not aware of any
concerns like that, but, again, it is something that we can
take back to----
Mr. Palazzo. We heard there are NGOs where, actually, these
people are coming from, they are actually coaching them how to
get through, whether it is to the coyotes, the cartels who are
profiting off of this. So, that is somewhat of a concern that I
have.
But if people come here illegally, that is still against
the law in our country, correct? And what would that charge be?
Mr. McHenry. Illegal or improper entry is a crime. It is
under 8 U.S. Code 1325.
Mr. Palazzo. And that is a misdemeanor?
Mr. McHenry. First offense is a misdemeanor.
Mr. Palazzo. And the second offense?
Mr. McHenry. It can go up to a felony.
Mr. Palazzo. And, all right. Well, I yield back.
Thank you, Mr. McHenry.
Mr. Serrano. Mr. Palazzo, since you started your comments
before my saying, `` Mr. Chairman,'' to the extent I will have
to sort of answer in a way, the chairman's opposition to a wall
does not fall under the usual arguments that you will hear. It
is just that this country, our country of all countries should
not build the wall. Not the country that has the Statue of
Liberty. We have immigration and we have to deal with that,
absolutely, but not a wall. Not this country.
Mr. Palazzo. Mr. Chairman, since you brought it up, I
think----
Mr. Serrano. You brought it up.
Mr. Palazzo. That was not directed for you to respond to
what I discussed. I was thanking Mr. Chairman for being
recognized----
Mr. Serrano. Oh, OK.
Mr. Palazzo [continuing]. Recognizing me to speak, but I
think a combination of a defensive barrier, boots on the
ground, and technology, would well-serve and protect an
American and American citizens.
Mr. Serrano. Thank you. Ms. Meng.
Ms. Meng. Thank you, Mr. Chairman. Thank you, Director
McHenry for being here today.
I wanted to also address comments made by Mr. Palazzo, if I
may. Many of us, including myself, have been to the wall. It is
arguable that there is a crisis at the border; in fact, much of
the backlog in our immigration courts can be arguably said that
it is manufactured.
We have--Mr. Serrano has a constituent and many of us have
been working with his office, where a gentleman who has worked
and paid taxes in this country for 25 years, is a union member,
has been separated from his family. We have cases of thousands
of children who have been separated from their families, and
so, if we are talking about backlogs and, you know,
prioritizing our resources, I think that we can do better in
this area, as well.
LEGAL REPRESENTATION FOR UNACCOMPANIED ALIEN CHILDREN (UAC)
I do want to ask about legal representation for children.
There are so many reports of young children appearing
unrepresented in Immigration Court which brings attention to
the availability or lack thereof of legal representation for
them in removal proceedings. And representation in immigration
proceedings is particularly critical when the respondent is a
minor.
Do you believe people in deportation proceedings should be
entitled to an attorney if they cannot afford one, and what is
the policy?
Mr. McHenry. There are a couple of responses here. First,
the issue, specifically, of representation for children is one
that is very much in litigation; in fact, it is pending, so I
am sort of limited in the amount of comments that I can make.
But I would say, at least based on our statistics, if you are
looking at unaccompanied alien children, at least for those
whose cases have been pending for a year, the representation
rate is close to 80 percent. It is similar-- 80 percent for
asylum-seekers, as well. So, a good number of our cases are
represented.
In terms of the law, the law provided that an alien, the
respondent is entitled to an attorney at no expense to the
Government. Our judges explain the rights. They explain the
proceedings to the respondents. They provide a list of pro bono
providers if the respondent is unrepresented, and, again, they
generally give some time to look for an attorney.
Ms. Meng. I appreciate that, and I know that judges do
explain. Do you agree with--there was a case a few years ago
where an immigration judge, who was, himself, in a leadership
position at EOIR was criticized for saying, ``I have taught
immigration law, literally, to 3 year olds and 4 year olds. It
takes a lot of time. It takes a lot of patience, but they get
it. It is not the most efficient, but it can be done.''
Do you agree with his statement?
Mr. McHenry. I am familiar with that statement and it is
unfortunate. It was mentioned several years ago, but it comes
up periodically. There are a couple of responses to that.
First, the judge's role is not to teach anyone the law in
proceedings; the judge's role is to adjudicate the case based
on the facts and evidence before them and to ensure that due
process is respected.
It is always an unfortunate situation when you have
situations with children as young as 3 or 4 who have been
smuggled or who have been brought to the United States
illegally and unknowingly. It is always a rough situation
having them in proceedings.
But our judges, again, they are trained. They understand
how to deal with the sensitivities in terms of dealing with
young respondents. They are trained to know what to do and how
to maintain the case, how to oversee the case to ensure that
their rights are respected and that any claims are properly
adjudicated.
Ms. Meng. I agree with you that judges should not be
teaching law to our toddlers, and that can also contribute to a
lot of the backlog in our Immigration Courts. Since that
article came out, what has EOIR done to improve quality and
frequency for children's representation? I know you mentioned
it is about at 80 percent. Do you think the system would
benefit from universal representation of children in
immigration proceedings?
Mr. McHenry. Again, that sort of gets to a hypothetical
question and also a question of litigation, so I can't--it's
not appropriate to answer it directly. What I can say is that
our judges, they are trained. They are trained in children's
cases. They have special procedures. They understand the law.
They protect the due process rights of all respondents,
including those who are young.
NOTICES TO APPEAR (NTAS) IN IMMIGRATION COURT
Ms. Meng. If I have time for one more question, I wanted to
ask about a recent Supreme Court decision stating that all
notices to appear at Immigration Court must include a date,
time, and location. EOIR knowingly began to provide DHS
components with artificial hearing dates to circumvent these
requirements. What steps have been taken to remedy incorrect
NTAs and to provide proper notice to affected individuals.
Mr. McHenry. These were--we are aware of this situation
because it flared up two or three times in the fall and then,
again, in January. But the dates that we provided are not--they
have been called ``fake dates''--they are not fake dates. There
is perhaps a lack of understanding of how the system works.
The Department of Homeland Security is responsible for
serving respondents with the notice to appear. So, when a
respondent receives that, they see the date on that document;
however, we don't know about it until DHS also files it with
us, which is sort of a second step in the process. And we need
to receive that document in a timely fashion so we can make
sure it is correctly processed and the case is entered into our
system and that we are ready to hear it.
So, sometimes, there is some slippage and we understand
people may think that they have a court date, but until the
document is actually filed with us, we don't have jurisdiction,
and for us, there is no court date. Now, we have worked with
DHS and are remedying that situation. We have an interactive
scheduling system that allows them to schedule these cases
electronically, so that we are more aware of them on the front
end and we don't expect a reoccurrence of the situation going
forward.
Ms. Meng. All right. I mean, as you know, people take time
off from work. They have to provide childcare. They may have to
travel hours to get to these courts and, in fact, internal EOIR
emails indicate, for example, that on June 27th, 2018, an
assistant chief immigration judge authorized the use of these
fake or dummy hearing dates--and I appreciate the explanation--
do you agree with that? Is that blanket policy?
Mr. McHenry. We actually issued a policy memorandum on this
in response to some of the issues in the fall. It was issued
right before the shutdown, so it may not have gotten as much
attention as it should have. But we have worked with the
Department of Homeland Security. We are not providing them the
dates any more; instead, we have given them access to our
interactive scheduling system, ISS, so it should be--they
should be using it to schedule them electronically going
forward.
Ms. Meng. Thank you. I yield back.
Mr. Serrano. Mr. Crist.
Mr. Crist. Thank you, Mr. Chairman.
EOIR'S CASE BACKLOG
Mr. McHenry, thank you for being here. I appreciate your
testimony. I am kind of curious about the backlog situation.
What did you say is the current backlog of cases?
Mr. McHenry. The current pending caseload is about 850,000.
It is perhaps inaccurate to say that they are all backlogged,
because that includes some that were filed just yesterday or in
the past two or three weeks, but that is----
Mr. Crist. Cases that have not been heard?
Mr. McHenry. Right. But that is basically the ballpark.
Mr. Crist. OK. Thank you.
Do you know, what is the highest number of cases that have
not been heard ever in your agency's history?
Mr. McHenry. I can't speak to the entire agency's history,
but 850,000, I think is the largest pending caseload that we
have had.
Mr. Crist. It is the largest--highest it has ever been----
Mr. McHenry. As far as I know----
Mr. Crist [continuing]. In the history of America.
Mr. McHenry [continuing]. But, again, I can't speak to
the--to it in the past completely.
Mr. Crist. Excuse me?
Mr. McHenry. I can't speak to it beyond--we were created in
1983--I can't speak to anything beyond that time, but it looks
like it is the largest.
Mr. Crist. Well, I wouldn't expect you to. So, since '83,
it is the highest it has ever been?
Mr. McHenry. Yes.
Mr. Crist. OK. Why do you think that is?
Mr. McHenry. It is a combination of factors.
Mr. Crist. Please.
Mr. McHenry. And you have to sort of look at the backlog in
two stages. From about--because it didn't happen overnight--
from about 2008 until about 2017, it was driven by a lot of the
factors that I alluded to, you know, lack of productivity, lack
of hiring, a lack of emphasis on the need or the importance,
significance of completing cases.
As we have addressed those problems with the subcommittee's
assistance and support, the recent increases are for different
factors; they are mostly external factors. We have seen an
increase in immigration. We have seen an increase in asylum
claims. They have doubled in the past couple of years. Stepped
up enforcement efforts. All this means that more new cases are
coming in.
Last year, DHS filed approximately 300,000 new cases, which
is roughly a hundred-thousand increase over what they had filed
just five years ago--four years ago. So, right now, it is
increasing because the inputs are stripping our completions,
but we are catching up. Again, with the support that we have
received, we get more judges onboard, we are completing more
cases, and we are going to be improving.
Mr. Crist. Let's say five years ago, 2014, any idea what
the number was at that point in time?
Mr. McHenry. I don't have it in front of me. The chart is
available on our website. We know the backlog, essentially, or
the caseload, essentially, almost tripled between 2008 and
2017.
Mr. Crist. 2008 and 2017 it tripled?
Mr. McHenry. Yes.
Mr. Crist. How much has it increased since 2016?
Mr. McHenry. I don't have the number from 2016, because we
go by different fiscal years. I do know that since the end of
fiscal year 2017, it has increased by about 30 percent.
Mr. Crist. Thirty percent. Is that typical for an annual
increase?
Mr. McHenry. Well, that is a--it would be more than a year
now since it was from fiscal year 2017. The rate has gone up.
It sort of depends on which year you are looking at. I don't
know if I would say it is typical or not.
Mr. Crist. The rate has gone up?
Mr. McHenry. It has.
Mr. Crist. And what would you attribute that mostly to?
Mr. McHenry. Oh, as I alluded to: new cases coming in, the
increased numbers of new-case filings.
Mr. Crist. And what is causing that?
Mr. McHenry. Increased immigration. The Department of
Homeland Security files the cases with our court system so all
new cases come from them.
Mr. Crist. So DHS is more active in terms of numbers?
Mr. McHenry. They are filing more cases, yes.
Mr. Crist. Yeah. So, the average wait for a case to go, as
I understand it, is 780 days; does that sound right to you?
Mr. McHenry. The median time for a case, a non-detained
case to be completed is around 660, 670 days.
Mr. Crist. Do you think that is a reasonable amount of time
for a human being to wait for justice?
Mr. McHenry. We don't. In fact, we have, among our case-
completion goals and support-level goals--these are not the
judge-performance measures--we seek to complete all of our
priority cases, all of our non-detained priority cases, within
one year.
Mr. Crist. What is the single thing most important to
speeding up that process in a fair way?
Mr. McHenry. As we have alluded to: more adjudicators. The
number-one factor in our strategy to combat the caseload is
increasing our adjudicatory capacity and that means more
immigration judges.
Mr. Crist. How many do you anticipate would be appropriate?
Mr. McHenry. As I have indicated, the president called for
an additional 370, and that is the number that we have been
looking at. Obviously, those are not all at one time or over
one fiscal year. The Department will present its proposal for
each fiscal year, as it has done in the past.
Mr. Crist. Well, if you were asked today, what would you
ask for?
Mr. McHenry. Again, it is----
Mr. Crist. You are the guy running the department.
Mr. McHenry. I appreciate that very much----
Mr. Crist. Me, too. That is why you are here.
Mr. McHenry [continuing]. But it is not appropriate for me
to get out ahead of the Department or OMB; they will present
the formal request in the next couple of weeks and that will be
the number that we need.
Mr. Crist. You are probably the most hands-on guy with this
issue and you won't tell us what you think the numbers should
be?
Mr. McHenry. As I----
Mr. Crist. Who should we go ask?
Mr. McHenry. As I said, the Department will provide that to
you.
Mr. Crist. The Department? What does that mean for the
human being that is associated with that?
Mr. McHenry. The Department of Justice in the next couple
of weeks.
Mr. Crist. Very well. Thank you.
Mr. Serrano. Welcome to this level of appropriations where
we always get, Well, we have to check with the Department. We
sort of understand it.
Mr. Aderholt.
Let the record show that we have broken tradition and we go
to Mr. Aderholt to start off second round. That will never
happen again, but----
Mr. Aderholt. Thank you, Mr. Chairman.
VIDEO TELECONFERENCE (VTC) HEARINGS
I want to talk about video teleconferencing. Of course, the
technology allows court proceedings to be conducted
efficiently, effectively, even though the participants are not
all together at one site.
Can you talk about some of the benefits of video
teleconferencing with regard to administration of your
proceedings.
Mr. McHenry. Certainly. And we are not the only agency that
does this. I mentioned the Department of Health and Human
Services, Department of Veterans Affairs, Social Security
Administration, most other adjudicatory agencies of our size
use VTC on a widespread basis because it is efficient. It
allows the agencies to conduct hearings in more locations. It
is more convenient in some cases for the respondents or
individuals who are appearing, and in our case in particular,
it helps us get towards solving the problem of dark courtrooms.
Because of scheduling issues and judges working alternative
work schedules, you know, we sometimes have courtrooms that are
not used on particular days of the week on a regular basis.
That is the equivalent of a lost hearing or a lost day of
hearings, so the people who are waiting months or years for
their hearing, we could actually be hearing their case, and
that is what VTC allows us to do; to bring that case, to move
that case to an earlier date so we can give that person an
adjudication.
Mr. Aderholt. What is the role of video teleconferencing in
the Criminal Alien Program?
Mr. McHenry. Criminal Alien Program, I think, is a label
the Department of Homeland Security uses for a specific
program. We use VTC, though, for what we call the Institutional
Hearing Program, which is for respondents who are detained
either in state or federal criminal custody. It allows us to
complete their case more quickly so that by the time they have
served their sentence or finished serving their sentence, they
already have a decision in their immigration situation, and
they could either be granted--they will either have the relief
and get to stay or they will have a removal order that can then
be executed by DHS.
Mr. Aderholt. Okay. What about--how do you ensure fairness
to accommodate the needs of respondents and their
representatives when they are using the VTC?
Mr. McHenry. Again, there is always going to be some place
where the respondent and their witnesses or their
representative can be when we do a VTC hearing. Respondents, as
I said, have the right to counsel with no expense, so if they
have representation, the attorney will have to be there.
Sometimes, the attorney is in the same court where the
judge is and the respondent is by VTC. Sometimes the attorney
is with the respondent--wherever the respondent is--and they
both appear by VTC. In rare cases, we could do bridges,
potentially, where they could both be in different locations
and still have it done by VTC. But we make sure that the
attorney is present for the hearing if there is one.
Mr. Aderholt. Are you doing any kind of upgrades to the
video teleconferencing equipment, the audio equipment, or the
simultaneous-interpretation equipment?
Mr. McHenry. We are expanding--we have expanded the
digital-audio recording equipment as we build new courtrooms.
We constantly look at our VTC equipment, our VTC connections.
This is one issue that relates to the Varick Street litigation,
so I can't get into it in too much detail, but we do
continually monitor our equipment.
As the status, the statistics that I referenced earlier
indicate, the error rate or the malfunction rate is typically
less than one-tenth of 1 percent. So, we haven't seen as many
technological issues as, perhaps, there have been in the past.
AVERAGE CASE COMPLETION TIME AND USE OF CONTINUANCES
Mr. Aderholt. In 2012, Office of Inspector General noted
excessive delay in immigration case processing can undermine
the administrative justice if witnesses are no longer available
to testify, U.S. citizens, relatives die, or documentary
evidence is lost; moreover, the failure to promptly resolve
cases result in aliens with unsupportable claims for relief
from removal, remaining in the United States longer while those
with legitimate claims for relief remaining in legal limbo for
unwanted lengths of time. Would you agree with that assessment?
Mr. McHenry. Well, the OIG report that you are referencing
and also the GAO report in 2017, they both indicated or both
noted issues with excessive continuances or proceedings
dragging out for too long. That is one of the issues that we
have looked at very closely and we have issued guidance on
continuances.
Last year, the Attorney General issued a binding precedent
decision, also clarifying the law for judges on continuances.
We haven't run any recent statistics. I don't have anything
immediately available, but we believe that we are moving in the
direction where excessive and unneeded or unnecessary delays
are not causing us as many problems as perhaps, in 2012.
Mr. Aderholt. But as far as agreeing with that assessment,
would you agree with the overall assessment?
Mr. McHenry. I was not with the EOIR in 2012, so I can't
speak directly to that, but I know that it has been a concern
for many years and it is still a concern.
Mr. Aderholt. But, would you agree that it undermines the
administration of justice if the witnesses are no long
available to testify, if they die, or the evidence is lost?
Mr. McHenry. Well, certainly. The longer the proceedings
go, you know, the loss of recollection, the loss of witnesses,
all those will affect the viability of a particular case.
EOIR'S CASE BACKLOG
Mr. Aderholt. From your perspective, what do you see as the
effects of the backlog?
Mr. McHenry. It is twofold, but it is perhaps two sides of
the same coin. Individuals who are here who have no claim to
stay are allowed to remain longer in violation of the law than
they otherwise should have.
On the flipside, individuals who are here who have valid
claims, it takes longer for those claims to be adjudicated,
like, it takes longer for them to get the relief that they
deserve.
So, in short, no one benefits from the backlog and that is
why we have taken such significant steps to try to address it.
Mr. Aderholt. Thank you, Mr. Chairman.
Mr. Serrano. Thank you, Mr. Aderholt.
MATTER OF A-B
Mr. Director, were you involved in any way in the decision
by former Attorney General Sessions In the Matter of A-B Case
which limits the use of domestic violence as an adjudication
for an asylum claim?
Mr. McHenry. I am familiar with the AB decision, but it is
another one that is very much in active litigation; in fact,
part of it has been enjoined recently, so it is not appropriate
for me to talk about it.
Mr. Serrano. You support removing the category of domestic
violence as a justification for an asylum claim?
Mr. McHenry. Again, asylum claims are individual; they are
very much fact-specific. There has been case law on domestic
violence claims going back to 1975, so it is not an issue that
is particular new or particularly novel. Our judges know that
they adjudicate the cases based on the facts, the evidence, the
claims before them, and in accordance with whatever precedent
they happen to be bound by.
Mr. Serrano. Let me--do you think at any moment you will be
able to comment further or be involved more or do you think
that while it is in the courts, we should just stay away from
it at all?
Mr. McHenry. On the issue matter of AB?
Mr. Serrano. Yes.
Mr. McHenry. The court case is pending and it is being
challenged in different areas or it is being appealed in
different areas. I don't know how long that process will take.
MIGRANT PROTECTION PROTOCOLS (MPP)
Mr. Serrano. Thank you. The administration recently
announced a new plan to require those seeking asylum at our
southern borders to remain in Mexico while awaiting just of
their asylum adjudications. This raises a whole host of
potential problems for our immigration courts; for instance,
how does the Court provide notices to appear to these
individuals? How are they to appear to have their claims heard?
And as I was reading this question--as I am reading it now,
I am thinking also--and maybe this is solely out of left
field--but if some of these folks are running away from
violence or from physical danger, I think the last thing they
want is for their local postman knowing they are getting a
letter or something from the U.S. Asylum Office or something
from Immigration, because that will target them as being
involved in trying to get out. Maybe I am thinking too much,
but those folks are facing a lot of hardships.
So, how do you think this will work out?
Mr. McHenry. Notice is always a concern for all of our
proceedings. I can't speak to the Migrant Protection Protocols
specifically, because, again, unfortunately, there is pending
litigation going on. But notice is required by our statute and
by regulations and any cases that are filed with us, we make
every effort to ensure that the respondents to get proper
notice of whenever the next hearing is.
Mr. Serrano. And are you--was your office consulted on this
decision to keep people in Mexico? And by the way, is it
speaking seeking asylum from Mexico or to anybody who made it
to Mexico from any other place?
Mr. McHenry. The MPP is a Department of Homeland Security
initiative, so I can't speak to it comprehensively. My
understanding, at least based on how the statute is, it is
individuals who are coming from a non-contiguous country, so,
not from Mexico, who apply for asylum at a port of entry or at
the border and then are allowed to wait or remain in Mexico
until their cases are heard.
Mr. Serrano. Were you consulted at all, your office
consulted at all in putting this together?
Mr. McHenry. The Department of Homeland Security initiated
the policy. It is their policy. Obviously, it impacts us, so we
have coordinated in terms of understanding where the cases are
going to be.
Mr. Serrano. And let me ask you, is EOIR facilitating
access? How is EOIR facilitating access to counsel for
individuals awaiting adjudication of their asylum claims?
Mr. McHenry. Under this protocol or just in general?
Mr. Serrano. Just in general.
Mr. McHenry. As I have indicated, our judges--if someone
shows up who is unrepresented, the judges will explain the law
to them. They will explain their rights to them, including the
right to get counsel at no expense.
If they have a claim for asylum and they don't have
representation, which is only about 20% of our cases, by
regulation, the judge is required to discuss the claim with
them and provide applications and information to them so that
they can apply for asylum withholding or whatever protection
they are seeking.
Mr. Serrano. And on the one we were discussing before, is
there a target time frame--there is a target time frame for
adjudicating these cases and what is reasonable? What is a
reasonable time?
Mr. McHenry. I'm not sure I follow. Which types of cases?
Mr. Serrano. The Mexico issue, I'm sorry.
Mr. McHenry. Again, they may fall under our existing
priorities, but the cases haven't actually started yet or been
heard yet, so I am not sure how they are going to play out.
Mr. Serrano. They haven't been assigned yet? They haven't
started yet?
Mr. McHenry. The cases have been filed, but we haven't had
the first hearing yet.
Mr. Serrano. So, do you know how many judges have been
assigned to these cases?
Mr. McHenry. They are assigned to courts. In terms of how
many judges will be hearing them and particular dockets, I
don't know.
ZERO TOLERANCE POLICY
Mr. Serrano. Mr. Director, were you involved in any of the
meetings either with others at the Department of Justice or the
Department of Homeland Security where discussions of the family
separation policy were held and did you support the adoption of
this policy?
Mr. McHenry. I actually testified a little bit on this last
week. The Department did not have a family separation policy.
The Attorney General, following upon a policy issued in 2017,
which followed an executive order issued earlier that year,
issued what's called a zero- tolerance policy, which is a
prosecution policy that directed prosecutors at USAAs along the
border to accept cases referred by the Department of Homeland
Security for illegal entry. Because it is a prosecution policy,
certainly, I was aware of it, but it is not something that we
were directly involved in.
Mr. Serrano. Yeah, but the policy, itself, resulted in the
separations, so what was the involvement of your agency in it?
I mean, look, we have many issues to discuss on immigration--we
all know that--but I think even people who haven't spoken on
this--and I am not putting words into anybody's mouth,
especially my friends on the other side--no one likes children
being separated from their parents.
This morning, we have a report that 471 parents were
deported without their children. I mean that is something that
we are not supposed to be doing. And, you know, again, I am not
a lawyer, but I am wondering does that qualify that we
kidnapped their children if we did that? You know, what did we
do?
So, that cost of separation, and is there anything in place
at your agency to try to be part of remedying whatever harm
that has been done?
Mr. McHenry. Part of this is in litigation. It is still
ongoing litigation, the Miss L case, and we certainly work with
our litigators to provide them with any information that they
may need in terms of the reunification efforts.
The zero-tolerance prosecution policy, itself, however,
does not directly affect us. Individuals who are prosecuted
under the policy, it does not prohibit them from applying for
asylum or any sort of protection to stay here. So, we would get
their cases, whether they are prosecuted or not.
Mr. Serrano. Thank you.
Mr. Graves.
EOIR'S CASE BACKLOG
Mr. Graves. Thank you, Mr. Chairman.
Director, thank you for your time today. You have had a lot
of questions thrown at you. I want to just make sure that we
clear up a couple of comments from earlier. I know that Mrs.
Meng made reference to and used the term ``manufactured
backlog''. In no way do I believe that she was insinuating that
there are mistruths or anything like that. So, I will just
clearly ask the question: Is the backlog that you have
referenced today manufactured?
Mr. McHenry. Not in the sense of being artificially
created.
Mr. Graves. In what way could it be manufactured?
Mr. McHenry. Sort of deliberately created or deliberately
manufactured.
As I have indicated, the factors that affect it sort of
changed in 2017 and it is been growing----
Mr. Graves. But it is accurate.
Mr. McHenry. It is growing.
Mr. Graves. It is accurate, though, 850,000 or so, as of
today?
Mr. McHenry. Yes.
Mr. Graves. In your opinion, do you believe that the
current apprehensions that we have heard about this year thus
far, the number I wrote down here was 268,000 apprehensions in
the first five months. Is that a manufactured number?
Mr. McHenry. I don't have any reason to dispute those
statistics. We do follow DHS----
Mr. Graves. Secretary Nielsen indicated that we could be
upwards of a million apprehensions this year. Do you believe
that is a manufactured number?
Mr. McHenry. Again, I don't have any reason to dispute
their statistics. We do try to track them fairly closely.
HUMAN TRAFFICKING
Mr. Graves. We have heard a lot about human trafficking.
You referenced that, as well. Do you believe that is a
manufactured crisis on the southern border?
Mr. McHenry. We do see trafficking cases in our courts and
our judges, they have protocols----
Mr. Graves. So, it is real.
Mr. McHenry [continuing]. In terms of how to deal with----
Mr. Graves. So, these are not hypotheticals that people are
making up to score some sort of political points?
Mr. McHenry. Again, I can't speak to----
Mr. Graves. Children are being trafficked.
Mr. McHenry. I can't speak to every single case, but we do
see, sometimes, trafficking cases.
Mr. Graves. Do you believe that sex trafficking and sexual
abuse is being manufactured on the southern border? Is that
real?
Mr. McHenry. Again, I can't speak to every single
situation, but I am aware that there are cases of sex
trafficking.
EOIR'S CASE BACKLOG AND FY19 RESOURCE CONSTRAINTS
Mr. Graves. Mr. Crist had asked you some questions about
what has been attributing to the backlog--850,000 or so now--
and he had some really good questions. I thought he was very
thorough. You kept using the term ``external factors'' and you
did not really want to go past that.
Is it fair to say that one external factor is the increase
of apprehensions on the border, which is a result of an
increase of illegal activity on the southern border? Is that an
external factor in your mind?
Mr. McHenry. Yes, that is one of the ones that we stated.
There is increased immigration that does have downstream costs,
because most of those apprehensions will eventually end up in
our courts.
Mr. Graves. When you were putting together your budget that
is being submitted--I know you don't want to talk about your
budget for the next week or so--who submitted the budget? Was
it something you reviewed and submitted to OMB or is it
something OMB or Department of Homeland Security or Department
of Justice did on your behalf?
Mr. McHenry. I actually don't know all the ins and outs of
that process. The Department, I know, works with OMB, but the
person who actually submits it, I don't know.
Mr. Graves. They are considering a budget that they have
presented on your behalf and you haven't had a chance to review
it yet; is that accurate?
Mr. McHenry. No, we review. We are involved with----
Mr. Graves. You, personally, are involved in that process?
Mr. McHenry. Myself and my administrative team and other
people are involved.
Mr. Graves. Mr. Palazzo asked you about the 75 judges
earlier. Regarding those 75 judges, he asked you if you had
known it was going to be $1.3 billion for the wall, if you had
known there were not going to be additional investigators,
would you have requested additional judges. Knowing that you
won't answer that question, how do you determine how many
judges you need? What are the metrics? Surely, you can answer
that.
Mr. McHenry. We look at several things. There is,
obviously, a limit to how many you can bring onboard at any one
time, because we have to train them and we have to have
locations for them. I mentioned one of our----
Mr. Graves. So, if there were zero dollars for additional
border security, zero for additional investigators, do you
anticipate that apprehensions would increase, thus, increasing
the backlog, thus, increasing the need for judges; is that a
fair and logical statement?
Mr. McHenry. I am not sure that I followed every part of
the question, but if there are increased apprehensions,
increased illegal immigration, we will likely see more cases.
Mr. Graves. So, is it sufficient to say that if you had
additional judges, and less apprehensions--meaning more border
security--the backlog might decrease?
Mr. McHenry. If new cases go down, the backlog will likely
decrease. If the number of new cases being filed was the same
as it was in 2015, the backlog would already be going down.
Mr. Graves. So, fewer apprehensions as a result of fewer
illegal entries into our country or fewer illegal activities in
our country with additional judges could reduce the backlog?
Mr. McHenry. A reduction in new-case filings by DHS would
lead to a reduction in the backlog, potentially.
Mr. Graves. Thank you, Mr. Chairman. I know my time is
expiring, but I just want to point out that this is a very
comprehensive issue we deal with and Mr. Palazzo and I dealt
with as conferees on the conference committee. I would hope
that we would keep that in mind when the question was asked
about judges making partisan decisions. It is really unfair
coming from a partisan asking that question--I don't believe
they do. I believe these judges are doing the best they can
with the little they have under immense pressure and what I
would refer to as a crisis and an emergency on the border. And
I know that you might or might not agree with that statement,
but it is certainly a challenge you deal with.
Thank you, Mr. Chairman.
Mr. Serrano. Thank you.
Mr. Palazzo.
Mr. Palazzo. Thank you, Mr. Chairman.
DOWNSTREAM COSTS TO EOIR ASSOCIATED WITH INCREASED ILLEGAL BORDER
CROSSINGS
You mentioned in your testimony, or I saw it somewhere,
that there is downstream costs associated with not having the
appropriate amount of judges. Can you elaborate on that, if you
recall.
Mr. McHenry. The downstream costs are the effects of an
increase in immigration. So, increases in immigration,
increased apprehensions leads to increases in new cases. That
means more cases that we have to deal with, more cases for our
judges to adjudicate.
Mr. Palazzo. And there is a tremendous amount of downstream
costs to America, to states, cities, municipalities, based on
just the sheer volumes of illegal immigrants that are also
currently in our country and that are making their way to our
country. So, I definitely agree with that.
I don't know how you would be able to answer this, but I am
going to ask it: In your opinion, what is driving the surge at
our southern border?
Mr. McHenry. I think the Department of Homeland Security
would be in a better position than I am. I know they put forth
several factors. But they have access to better data than I do.
Mr. Palazzo. And I guess the reason I asked that is there
seems to be no consequences showing up at our backdoor,
knocking, saying, Hey, I am here for asylum or whatever, take
me in. We can't detain them anymore, I guess, for an extended
period of time because of a court ruling and they just
disappear into our country.
And you know, we have 840,000 people waiting, I guess, part
of the backlog, and, what did you say, 44 percent don't show up
for various reasons because I think there is no consequences to
breaking our nation's laws. That we are going to continue to
see--we may see that 1-million-person number, if not greater.
Just this last month, we have had over 70,000, which I believe
is a record, at our southern border.
And I know Ms. Meng mentioned something. I am glad that she
had an opportunity to go to the border, because if you see it
firsthand and you talk to the professionals and you are
objective, you see there is a crisis. I mean if 70,000 people
are showing up at our southern border illegally--and that is
only the ones that we are either catching them between the
ports of entry or showing up at the ports of entry--it is what
we are not catching. It is the other trafficking of drugs and
criminal aliens and foreign nationals that may or may not want
to do us harm which concerns me, and that is what concerns all
of America.
And that is why, you know, I think we need to get--when we
talk about securing our southern border that it needs to be an
``all of the above'' approach. It needs to be defensive
barriers. We know defensive barriers work. Just go to San Diego
and see a million-dollar community right next to where there
used to be full of bodies and drugs and right on the other side
is the Mexican border. And that wasn't that way in the 1980s;
it was a war zone and San Diego residents will tell you that
they absolutely work.
We keep talking about asylum a lot, and, honestly, I am a
CAP by trade--I am not an attorney or an immigration attorney--
but can you tell me, historically, what constitutes an asylum
request and, especially, with regard to our southern border,
maybe not foreign countries, outside that.
ASYLUM APPLICANTS IN IMMIGRATION COURT
Mr. McHenry. Yeah. Under the law, under the statute, there
are five bases to apply for asylum: race, religion,
nationality, political opinion, and membership in a particular
social group. The first four, I think, are fairly
straightforward--race, religion, nationality, political
opinion--that last one, that membership in a particular social
group, there is not a definition either in the statute or the
regulations and it has sort of been developed by case law along
and along, and that is what leads to decisions or it is what
has led to decisions regarding things like gang claims,
domestic violence, things like that, because it is somewhat
amorphous and somewhat hard to define. So, you do see more
claims that try to fall under that rubric.
We don't break down specific types of claims to that level
of granularity, so I can't say for certain what our data shows,
but anecdotally, it does seem that we are seeing more of these
types of claims especially in the past four or five years. We
have certainly seen more litigation and more case law related
to these types of claims than we have to any of the other four
bases.
Mr. Palazzo. And you said it is fact-based. You have to
prove, you know, one through four, and number five may be not
as easy to support, especially with people coming from South
America, Central America. So, what support is that; is it just
the testimony of the person seeking illegal entry or asylum
into our country?
Mr. McHenry. Again, it can vary based on the specifics of
each case. It could be based on as little as the testimony, but
a typical case will have some documentation if it is affidavits
or government documents. The judges also consider country
reports from the State Department, various other organizations.
So, there is typically a little bit more to it than just the
testimony.
Mr. Palazzo. Are they carrying that with them when they
come through the border or are we re-investigating and
researching it and having people on the ground back in, say,
whether it is Honduras or Guatemala?
Mr. McHenry. Not working for Customs and Border Protection,
I can't necessarily say what goes on at the actual border. But
individuals who do end up in immigration proceedings, when they
bring their claims, roughly 80 percent of them have attorneys,
so their attorneys help them with the claim and determine
what's the best evidence or the appropriate evidence to submit.
Mr. Palazzo. What percentage of asylum-seekers are actually
granted, I guess, asylum versus being rejected asylum and put
in custody for removal?
Mr. McHenry. I can't speak to the second part about put in
custody, because that is a DHS determination, but the denial,
or I should say, the grant rates are between 16 and 20 percent.
Mr. Palazzo. Sixteen to 20 percent----
Mr. McHenry. Are granted asylum.
Mr. Palazzo [continuing]. Are granted asylum, OK.
Mr. Chairman, I yield back.
Thank you, Mr. McHenry.
Mr. Serrano. Just one last question--of course, all members
are welcome to submit questions for the record--do you know
what percentages of the backlog are people entering the country
without seeking asylum, without legal papers, the proper
papers, undocumented, and what percentage may be people who
overstay their visa?
VISA OVERSTAYS CASELOAD
Mr. McHenry. We can--we don't track that. Normally, we
could triangulate it to some extent based on the information
that we get from the Department of Homeland Security, but I
don't have that statistics with me.
Mr. Serrano. Because there is a strong feeling out in
various communities and in government, too, that the larger
number of people who are considered undocumented or illegals or
people who overstayed their visa, not people who entered
without documentation; do you know that to be the case or----
Mr. McHenry. I don't have the specific numbers. We do know
that visa overstays are a significant part of our caseload and
I believe we have a report that we submit to the subcommittee
on that, but I don't have those specific numbers with me.
Mr. Serrano. Well, thank you. Thank you for your testimony
today. You took some very tough questions and you faced up to
them. It does not mean we agree with your answers, but, also,
very strong on asking questions. And I just have a personal
note, you know, we should, every so often, when we deal with
this immigration issue, put ourselves in the shoes of those
people in those countries and what they are going through. And,
you know, I once either sarcastically or very profoundly, said
if you don't want an immigration problem--because I call it an
immigration issue, so I don't call it a problem--then don't
advertise.
We tell the world that we are the greatest country, and we
are. We tell the world that we have the greatest economy, and
we do. We tell the world we are the greatest military, and we
have it. We tell the world that we are the land of opportunity,
and then we are amazed that people would come here and, you
know, there is something inconsistent with that.
So, how do we resolve the immigration issue? Many ways.
Maybe one of them is not trying to make the whole world think
that we are the greatest on earth--which we are, for the
record; I don't want to get a Tweet saying that I hate my
country--this is the greatest country, but that is why we have
immigration issues.
Thank you so much, and thank you to the panel.
Thank you, Mr. Aderholt.
Mr. Aderholt. Thank you.
Mr. McHenry. Thank you, Mr. Chairman.
Mr. Serrano. This hearing is adjourned.
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Tuesday, March 12, 2019.
OVERSIGHT OF THE DEPARTMENT OF JUSTICE CIVIL RIGHTS DIVISION
WITNESS
ERIC DREIBAND, ASSISTANT ATTORNEY GENERAL, CIVIL RIGHTS DIVISION, U.S.
DEPARTMENT OF JUSTICE
Mr. Serrano. Good morning. The subcommittee will come to
order.
Today we are meeting with Eric Dreiband, the Assistant
Attorney General for the Civil Rights Division in the
Department of Justice.
In addition to his work in the private sector, Mr. Dreiband
has served in several positions over the years throughout our
Federal Government, including as the General Counsel of the
Equal Employment Opportunity Commission from 2003 to 2005, and
as Deputy Administrator of the Department of Labor's Wage and
Hour Division. And we welcome you, sir.
Mr. Dreiband. Thank you.
Mr. Serrano. For more than 60 years, the Civil Rights
Division at the Department of Justice has been a shining
example to our Nation as a force for marginalized communities,
protecting their basic rights, and ensure justice for all
communities.
In communities of color, the Civil Rights Division holds a
place of reverence that is well earned through a record of
achievement. The mission of the Division is essential to
ensuring that all Americans receive equal protection under the
law.
Sadly, that proud record of service is imperiled under this
administration. The attacks on longstanding precedents and
effective policies have been unending. From preventing the use
of consent decrees in addressing systemic issues with local law
enforcement, to a lack of enforcement of the Voting Rights Act,
to rescinding guidance protecting transgender students, the
Department has pulled back on policies that have protected
millions.
The Department has also chosen to change sides on cases
involving cornerstone civil rights issues like affirmative
action and discriminatory voting laws.
Earlier this year, the Washington Post reported that the
Justice Department had been tasked with analyzing current
disparate impact guidance and policies, any revision of which
could severely undermine our Fair Housing laws. The pace of
these changes is dizzying and disturbing; many of them
undermine the core mission of the Civil Rights Division.
Last month, in what can only be described a Freudian slip,
the President praised the quote, ``abolition of civil rights,''
end of quote. Unfortunately, that statement hits far too close
to the truth. This subcommittee intends to look at the work of
the Civil Rights Division very carefully and we expect that the
dollars we appropriate to the Department will be used in a
manner that protects the vulnerable communities the Division
has stood up on behalf of for many decades.
Once again, we welcome you, Assistant Attorney General
Dreiband, and we look forward to your testimony.
Before I proceed, let me just say that my comment before
really was sincerely spoken. Growing up politically, and
growing up physically, but certain politically, the Justice
Department was that place that you looked to for fairness and
for coming in, basically, and straightening things out when
they were being unfair. That is why a lot of us are sad at what
we think is happening in the Justice Department and especially
in this Division.
Mr. Aderholt.
Mr. Aderholt. Thank you, Mr. Chairman.
And welcome, Mr. Dreiband, good to have you here today. And
we are especially glad to have you here to discuss this
important issue, really fundamental issue of the Civil Rights
Division of the United States Department of Justice.
This Division of the Department of Justice has the solemn
responsibility, as you know, of ensuring that civil and
constitutional rights of all Americans, particularly some of
the most vulnerable members of our society, are upheld. I
commend you and your team for your steadfast efforts to protect
the rights of all individuals to live free of violence,
discrimination, and exploitation; to safeguard the fundamental
infrastructure of democracy; and ensure that all have an equal
opportunity to learn, earn a living, live where we choose, and
worship freely.
I have a particular interest in enforcement of the federal
statutes prohibiting discrimination on the basis of religion.
Religious freedom has been a core American principle since the
foundation of this Nation. For this reason and for others I
wish to commend the Civil Rights Division, the United States
Attorneys, as well as your federal enforcement partners for
your successful prosecution of the horrific, heartbreaking
attack on the African-American worshipers at Emanuel African
Methodist Episcopal Church in Charleston, South Carolina, as
both a vile hate crime and abhorrent assault on the free
exercise of religion.
In addition to religious liberty, and the fundamental
rights of due process and equal protection under the law, I
look forward to discussing the Division's extensive efforts to
safeguard the integrity of our elections, and also address the
scourge of human trafficking, among other vital pursuits.
Again, I thank the Chairman for holding this very important
hearing, and I yield back.
Mr. Serrano. Thank you.
Please try to keep, Mr. Dreiband, your comments to 5
minutes, but we assure you that your full testimony will be
inserted in the record.
Mr. Dreiband. Thank you, Chairman Serrano and Ranking
Member Aderholt, and members of the committee, for the
opportunity to speak with you today. It is an honor to serve as
the Assistant Attorney General, and as the voice of the women
and men of the Civil Rights Division at the United States
Department of Justice. Thank you also for making time today for
this important hearing.
As you know, the Civil Rights Division works to uphold the
civil and constitutional rights of all, including some of our
most vulnerable members of our society. We enforce several
civil and criminal statutes, including the Civil Rights Act of
1964, the Voting Rights Act, the Americans with Disabilities
Act, the Fair Housing Act, and the Shepard-Byrd Hate Crimes
Prevention Act, among others.
The Division currently has approximately 567 full-time
employees, including 369 attorneys. The Division's fiscal year
allocation from the General Legal Activities Account is $148.2
million.
The Civil Rights Division remains focused on a variety of
priorities; these include prosecuting hate crimes; prosecuting
human traffickers and destroying transnational organized
trafficking networks; prosecuting those who violate federal
race discrimination laws; combating unlawful hiring practice
against U.S. workers; enforcing federal laws to protect
servicemembers, veterans, and their families; protecting voting
rights; safeguarding religious freedom; ensuring that
individuals have access to treatment for opioid addiction and
are free from discrimination; combating sexual harassment and
abuse.
The Attorney General has made hate crimes prosecutions a
priority, and the Department launched a Hate Crimes Enforcement
and Prevention initiative. The Civil Rights Division leads that
initiative, and coordinates the Department's efforts to
eradicate hate crime. Since January of 2017, the Department has
convicted more than 40 defendants for hate crimes violations.
The Division also plays a lead role in the Department's
efforts to enforce laws against human trafficking, including
both sex trafficking and forced labor. From 2013 to 2017, the
Division, in partnership with U.S. Attorney's Offices around
the country, brought 427 human trafficking cases, which is an
82-percent increase from the prior 4-year period.
The Division has also launched several other initiatives.
The Protecting U.S. Workers Initiative seeks to identify
employers who abuse temporary visa programs, and combats
employment discrimination against U.S. workers. The Division's
Americans with Disabilities Act Voting initiative seeks to
ensure that people with disabilities have an equal opportunity
to participate in the voting process. The Division entered into
its most recent settlement agreement under this initiative just
2 weeks ago.
The Division has also zealously protected the right to vote
under other federal statutes, including the Voting Rights Act,
the Uniformed and Overseas Absentee Voting Act, the National
Voter Registration Act, and the Help America Vote Act.
Since January of 2017, the United States has participated
in six cases brought under Section 2 of the Voting Rights Act.
The federal appellate courts resolved three of those cases, and
in each case the courts adopt the position adopted by the
Justice Department; the other three cases remain pending.
And since January 2017, the Civil Rights Division has
entered into settlement agreements with Arizona and Wisconsin
to protect the voting rights of military and other overseas
voters; and with Kentucky and Connecticut to ensure compliance
with Federal law requirements regarding the maintenance of
complete and accurate voter registration rolls.
In April 2018, in time to coincide with the 50th
anniversary of the Fair Housing Act, the Division launched the
Sexual Harassment in Housing Initiative. The Division has
opened a record number of investigations and filed a record
number of sexual harassment pattern or practice lawsuits in
Federal court.
The Division's Religious Discrimination initiative works
with U.S. Attorney's Offices to combat religious discrimination
in schools, and the Place to Worship Initiative seeks to
increase enforcement and public awareness of the land use
provisions of the Religious Land Use and Institutionalized
Persons Act.
Finally, last year, the Division and the Department
commemorated the 50th anniversary of the tragic assassination
of Dr. Martin Luther King. Every section of the Civil Rights
Division plays a role in seeking to make Dr. King's vision of a
nation free from racial prejudice a reality, and the Division
is committed to continue its efforts to eliminate race
discrimination in this country.
Chairman Serrano, Ranking Member Aderholt, and members of
the committee, your support allows the Civil Rights Division to
protect the civil rights of all Americans.
Thank you, and I look forward to your questions.
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Mr. Serrano. Thank you, sir. We apologize for the door, it
was left over from Halloween. [Laughter.]
That is the best I could do today.
VOTING RIGHTS
Ever since the Supreme Court's Shelby County v. Holder
ruling ended some federal oversight under the Voting Rights
Act, there has been a historic increase in the threat and
reality of voter suppression. The House last week passed H.R. 1
to reform voting rights protection and upgrade elections
security, among other things.
Question: how many cases is the Division, either the Voting
Section or the Criminal Section, working in Georgia and in
Florida?
Mr. Dreiband. Well, Chairman Serrano, as you know, the
right to vote is one of the most important rights we have; it
is secured by the Constitution of the United States and several
laws, including the Voting Rights Act. As I mentioned in my
opening statement, we have participated in various ways through
litigation and otherwise in six Section 2 Voting Rights Act
cases since 2017. With respect to ongoing investigations,
voting or other matters, I cannot comment on those, but I can
assure you that the message that I have delivered to the Voting
Section of the Civil Rights Division, as well as the Criminal
Section of the Civil Rights Division, is that we are committed
to aggressive and zealous enforcement of all of the laws within
our jurisdiction, including the Voting Rights Act in
particular.
That law, as you know, was enacted in 1965, and it was
primarily designed to combat race discrimination in voting, but
it does reach other areas as well, and ensures protections for
people who struggle with the English language, for example, and
other protections as well.
Mr. Serrano. So, with that in mind, how does the Civil
Rights Division prioritize efforts and manage its election-
related workload?
Mr. Dreiband. Well, we do that in many different ways. So
we, for example, have settled cases to ensure the integrity of
state voter laws. We also in the 2016 and 2018 elections
dispersed several people throughout the United States to
monitor the polls.
In fact, in the 2018 election I spent much of the day with
a command center run by our Criminal Section and with our
Voting Section attorneys, who were monitoring in real time as
voting was actually happening, complaints, concerns that people
were raising. We worked in coordination with the Federal Bureau
of Investigation to both monitor the activities on that day
and, in addition, disperse people throughout the United States
to several jurisdictions to monitor the voting and report on
any problems that anyone saw.
We also conduct investigations in various states around the
country to ensure that they are complying with the Federal
voting laws. And then, of course, we engage in litigation
through the Federal court system to enforce various Federal
laws within our jurisdiction.
Obviously, we would prefer to settle cases, if we can, and
oftentimes we are encouraged that States will work with us to
reach an appropriate resolution to a dispute, but, if we have
to, we are prepared to litigate and do litigate cases in the
Federal courts throughout the United States.
Mr. Serrano. Now, I know you can't get into specific cases,
but do we know what the top number of complaints are in voting-
related issues?
Mr. Dreiband. Chairman Serrano, I don't know that data off
the top of my head, but we do take complaints from the public,
and our Voting Section investigates complaints, our Criminal
Section does as well. And we work with the Federal Bureau of
Investigation and at times other components of the Federal
Government as well, for example the Department of Homeland
Security, and other aspects of the executive branch of the
Government to investigate complaints, either alleged violations
of the Voting Rights Act, the National Voter Registration Act,
the Help America Vote Act, and other laws as well.
Mr. Serrano. Could you at a later date give the committee
some numbers just for our information of what is the number one
complaint, you know?
Mr. Dreiband. Chairman Serrano, I will certainly take that
back to the Department and, working with our Office of
Legislative Affairs, provide you with whatever data we can
satisfy concerns you may have, as well as other members of the
subcommittee.
Mr. Serrano. Thank you.
H.R. 1 as passed by the House would add significant new
election system protections; if enacted, how would Voting
Section workload be affected? What resources would help you
carry out your mission as you understand H.R. 1?
Mr. Dreiband. Chairman Serrano, I am not familiar with H.R.
1 and would look forward to reviewing the bill, and in
consultation with the many dedicated and career attorneys in
our Voting Section talk with them. Our Policy Section of the
Civil Rights Division would also look at it. And then I would
be happy to take it back and work with you and your colleagues
on it, as well as in conjunction with what we have at the
Justice Department, it is called our Office of Legislative
Affairs. That office provides a liaison, as you know, between
this subcommittee and other committees of the House of
Representatives, and it is something that we would look at and
weigh in as appropriate.
Mr. Serrano. Mr. Aderholt.
Mr. Aderholt. Thank you.
Of course, we have talked about the Civil Rights Division,
of course it is charged with overseeing the U.S. voting rights
laws. And you have talked a little bit about it, but could you
describe the efforts that you undertook in your division,
particularly during the 2016 and 2018 elections, to monitor
compliance with the Federal voting rights laws?
Mr. Dreiband. Sure. In both the 2016 election and the 2018
election, Ranking Member Aderholt, the Civil Rights Division,
as well as other components of the Justice Department,
dispersed literally hundreds of people throughout the United
States to monitor the polls in several dozen states at several
dozen locations.
And what we did is we took recommendation from the experts
we have in our Voting Section about where we should send
people, and particularly with respect to areas of concern based
on their judgment. Many of the individuals in our Voting
Section have worked at the Department for several decades and
devoted their professional lives to protecting the right to
vote. And so what we do is we take their--and what we did was
took their recommendations and generally followed them, and
then many people went out throughout the United States and
monitored the polls as people were voting.
Meanwhile, back in Washington, we had people from our
Voting Section, as well as our Criminal Section, working with
the FBI and the Department of Homeland Security to monitor
through our command center indications of potential violations
of any of the voting laws, and to do what we could even on
election day to take prompt action, if any was appropriate. And
then later, of course, if any investigations were warranted, we
would investigate any allegations of violations of the right to
vote.
In addition, I was particularly heartened when I first
joined the Department to see that many of our attorneys and
other staff in the Civil Rights Division who do not focus on
voting laws, that is they are focused on say, for example,
disability discrimination or other forms of discrimination,
they volunteered themselves on the election day to help take in
complaints or reports of alleged violations of the Voting
Rights Act or other laws, and worked very hard to do that.
Mr. Aderholt. Well, can you talk a little bit about or give
us some examples of the type of potential violations that you
were on the lookout for in the 2018 and 2016 elections?
Mr. Dreiband. Sure. Well, the voting rights laws protect
everything from the right to vote to be free of race and other
forms of discrimination, to protections related to Americans
and servicemembers who are overseas and their right to vote,
and so--as well as the right to have access to the ballot for
certain jurisdictions where people may struggle with the
English language, for example.
And so we look at those, all of those areas, you know, with
respect to the laws and the standards that govern the laws
within our jurisdiction about the right to vote. Our voting
rights attorneys and other staff and investigators look for
those things. They take in reports of any kind of violation of
that sort, and then we do what we can, either immediately or to
remedy the problem, if we find one, or to investigate
allegations after the fact as well.
Mr. Aderholt. Could you talk a little bit about the
enforcement tools that you have available?
Mr. Dreiband. Well, we have many enforcement tools
available. The enforcement tools that we have do vary by
statute. There are some statutes on the civil side that grant
us the authority to subpoena documents and other information
and witnesses. Obviously, our Criminal Section, working with
the FBI, works through the normal law enforcement process that
the Congress has set up for the criminal laws of this country,
including the use of grand juries. We have access to the
Federal courts, depending on the particular kind of case or
matter that may be involved, either through civil lawsuits or
criminal prosecutions. And we have staff, we have everything
from architects who deal with disability rights issues to
access to voting places by individuals with disabilities, we
have people who speak various languages who help us work with
very vulnerable populations throughout the United States. And
we try to utilize the tools that the Congress has given us to
use to the best we can to try to eliminate all forms of
discrimination within this country by using the statutes that
Congress has authorized us to prosecute and investigate.
Mr. Aderholt. Let me get in one more question, if I could.
The National Voter Registration Act of course is a law that is
designed to expand registration opportunities for all citizens
and ensure proper maintenance of voter registration lists, and
states are required to keep voter lists accurate and also
current. Can you talk about the role that proper maintenance of
voter registration lists play in the national voting integrity
effort?
Mr. Dreiband. Sure. There are two Federal laws that the
Congress has enacted that ensure the integrity of the state
lists of voters, the National Voter Registration Act and the
Help America Vote Act. And I think the design of those laws as
meant by Congress was to ensure the integrity of the voting
system; to ensure that states satisfy their duty under Federal
law to make sure that their lists of voters are accurate, to
prevent voter fraud, and to protect the rights of all Americans
to know that when they cast their ballot they are doing it
through a fair process; and that the states have a duty to
maintain that process and to protect all of our right to vote
when we go to the polls.
Mr. Aderholt. And then, lastly, are there any examples of
litigation regarding the maintenance of voter lists that you
have brought in the past?
Mr. Dreiband. Yes. As I said earlier, Ranking Member
Aderholt, we try, if we can, to settle any kind of disputes
within our jurisdiction if we can reach an appropriate
settlement without litigation.
And so with respect to the integrity of the voting lists we
were able to settle the matters with the States of Kentucky and
Connecticut, and it is mentioned in my statement for the
record, and I commend both the States of Kentucky and
Connecticut for doing so.
In addition, the Justice Department participated in a
matter pending before the Supreme Court of the United States
involving the voter rolls in the State of Ohio, and the Supreme
Court agreed with the Justice Department that the State of
Ohio's efforts to comply with the National Voter Registration
Act and the Help America Vote Act was fully compliant.
Mr. Aderholt. Was not?
Mr. Dreiband. Was compliant; no, that Ohio complied with
the law.
Mr. Aderholt. All right. Thank you.
Mr. Serrano. Thank you.
Now we will begin our 5-minute-per-member round, and you
know what this means.
Mr. Cartwright.
ROLE OF CIVIL RIGHTS DIVISION
Mr. Cartwright. Thank you, Mr. Chairman.
And, Mr. Dreiband, thank you for joining us.
I want to make sure I have a clear understanding of your
role at the Civil Rights Division. Your job is to pursue civil
rights cases against discrimination on the basis of race,
color, sex, disability, religion, familial status, and national
origin; am I correct in that
Mr. Dreiband. Representative Cartwright, the protected
categories do vary from statute to statute, but the categories
that you mentioned are among those that are vested within our
jurisdiction and, as the Assistant Attorney General, it is my
job to direct and help our career staff, our lawyers and
investigators, enforce those very important protections against
discrimination.
Mr. Cartwright. And do you agree that a primary purpose of
both the Civil Rights Division and our Federal civil rights
laws, including Title VII, the ADA and the ADEA, is to protect
the rights of the marginalized and vulnerable communities?
Mr. Dreiband. Title VII of the Civil Rights Act does
protect against race, color, national origin, religion, and sex
discrimination in employment. It is one of the most important
laws that we enforce; it was enacted as part of the Civil
Rights Act of 1964.
The Americans with Disabilities Act, of course, protects
against disability discrimination both in employment and with
respect to various programs of state and local governments and
public accommodations.
Mr. Cartwright. I don't mean to be impolite, but they only
give us 5 minutes and I have a chairman who is going to be
banging that gavel on me any minute, that was a yes-or-no
question and I take it it is a yes.
NUMBER OF CASES BROUGHT BY THE CIVIL RIGHTS DIVISION
Public records indicate the Civil Rights Division has
started 60 percent fewer civil rights cases under President
Trump than under the first 2 years of President Obama, and also
50 percent fewer cases than under President George W. Bush. Do
you know if that is an accurate assessment?
Mr. Dreiband. Representative Cartwright, I don't know what
numbers you are referring to. What I do know, though, is that
we have brought a record of cases under the Fair Housing Act
through our sexual harassment initiative, we brought a
significant increase in human trafficking prosecutions, and we
have participated and brought several other cases under many of
the other laws within our jurisdiction.
Mr. Cartwright. OK, so you don't know.
Do you agree that the biggest decline in new filings has
been in the areas of systemic enforcement misconduct and
violation of disability rights?
Mr. Dreiband. Representative Cartwright, I am not sure what
you are referring to there. The message that I have
consistently expressed to the various sections of the Civil
Rights Division, including our Disability Rights Section, is
that we are committed to zealous and aggressive enforcement of
the civil rights laws.
Mr. Cartwright. Are you telling me that enforcement actions
have increased or stayed the same, or are you agreeing with me
that they have declined since the last two administrations?
Mr. Dreiband. Well, Representative Cartwright, enforcement
efforts with respect to many of the areas of our jurisdiction
have increased, including, as I said, under our Sexual
Harassment in Housing Initiative. We brought a record number of
investigations and a record number of pattern or practice of
sexual harassment lawsuits under that initiative.
Mr. Cartwright. I asked you about violation of disability
rights; have those gone up, have they gone down, or have they
stayed the same? And, if you don't know, it is OK, you can tell
us.
Mr. Dreiband. Representative Cartwright, with respect to
disability rights, I am not sure what you are referring to.
Mr. Cartwright. The Americans with Disabilities Act. I
think you actually even mentioned that.
Mr. Dreiband, the decline is deeply concerning to me, that
is why I am asking these questions. Americans with disabilities
are less likely to be employed today than they were before the
ADA was enacted in 1990. Those that do work are often in low-
paying jobs and earn considerably less than someone without a
disability. Isn't systemic pay and job discrimination an
indicator of a need for increased enforcement?
Mr. Dreiband. Representative Cartwright, I agree with you
that zealous and aggressive enforcement of the Americans with
Disabilities Act is critically important to the protection of
rights of the individuals with disabilities in this country. We
enforce that law in various ways, including in particular with
respect to the right to vote. We have an initiative committed
solely to the voting rights of individuals with disabilities to
make sure that they have access to their right to vote, but we
also enforce the Americans with Disability Act in employment
within the jurisdiction that we have. Our jurisdiction with
respect to employment is limited to public employers and we do
enforce that law, and we enforce it in many other ways as well.
Mr. Cartwright. Would you mind if I followed up with your
office, because we don't seem to see eye-to-eye on the
statistics. It is clear to us that enforcement of civil rights
cases has decreased dramatically under this administration and
I want to see if we can pin you down on that. And, if we can't,
I want to seek a commitment from you to reverse that trend.
Will you work with our office?
Mr. Dreiband. Well, Representative Cartwright, first of
all, I am fully committed to aggressive and zealous enforcement
of the Americans with Disabilities Act and to all of the laws
within our jurisdiction. With respect to working with you and
your colleagues on the subcommittee, I work through our Office
of Legislative Affairs at the Department of Justice and would
be delighted to work with you and your colleagues as
appropriate.
Mr. Cartwright. All right, thank you.
I yield back.
Mr. Serrano. Mr. Palazzo.
Mr. Palazzo. Thank you, Mr. Chairman. I appreciate you
being here today.
HUMAN TRAFFICKING
I would like to address your office's attempts to prosecute
human trafficking. We know human trafficking is prolific in the
United States and, in looking through some of the notes here,
you point out that Mexico is the country of origin of the
largest number of foreign-born human trafficking victims
identified in the United States. Of course, several reasons,
probably because we have a large, 2,000-mile contiguous border
with Mexico and that border is not secure, and at any given
time drugs, human trafficking, foreign nationals with intent to
do Americans harm can just cross our border.
Could you tell me a little bit about--and I know Anne
Wagner, our colleague in the House, has been leading this
effort for several years to address human trafficking and she
has done a wonderful job. Even my home state has taken this
extremely seriously in passing legislation to increase the
penalties of human trafficking, and our law enforcement are
actively engaged. Can you tell me a little bit more about what
your office is doing? And do you see a trend, an upward trend
or a downward trend based on our efforts, and can we do more?
Mr. Dreiband. Yes. We have what we call our Human
Trafficking Prosecution Unit, which is part of our Criminal
Section of the Civil Rights Division, and that unit coordinates
efforts throughout the Federal Government, with the FBI, the
Department of Homeland Security, United States Attorney's
Offices, and even the Mexican Government, among others, to deal
with this problem of human trafficking.
We do see a problem whereby human traffickers will smuggle
people across the border from Mexico into the United States for
the purpose of human trafficking, both with respect to sex
trafficking and forced labor. It is a very serious problem and
it is one where we have seen a significant increase in the
number of prosecutions, in fact an approximately 82-percent
increase from 2013 to 2017 compared to the prior 4-year period.
And just within January of this year we obtained long
sentences for several members of the Rendon-Reyes trafficking
organization. In that case, these were individuals from Mexico
who for more than 10 years smuggled dozens or perhaps hundreds
of women across the border--and young girls as well, some as
young as 14 years old--into the United States and forced them
into prostitution. And working with the Mexican Government
through the U.S.-Mexico Bilateral Human Trafficking Enforcement
Initiative, and with the FBI and with our prosecutors in the
Civil Rights Division, we were able to bust up that
international human trafficking ring. And there are others like
that that we see as well.
Mr. Palazzo. How many others do you feel are out there? And
also you say smuggled; by smuggled, I am assuming that they are
not crossing the ports of entry, they are coming in through our
porous border, correct?
Mr. Dreiband. Well, I think these human traffickers have
different ways of bringing people across the border. They can
bring them--there are various ways they can do it. And so the
problem I think that we are seeing is there is a lot of
deception happening by these human traffickers where they bring
these people in. And these are typically very vulnerable
individuals, both with respect to sex trafficking and forced
labor, and they come into the United States and they find
themselves in these horrible conditions where they are forced
to do things against their will; they are abused, mistreated,
and it is a really terrible thing for them.
And we do what we can to investigate these allegations, to
bring prosecutions when appropriate. And, in addition, through
the Office of Justice Programs we also help--through the
Trafficking Victims Protection Act help to try to remedy the
problems that these things have created for the victims of
human trafficking.
Mr. Palazzo. Well, I hope we can eradicate 100 percent of
human trafficking, especially in this day and age with
technology, and we need to provide the resources to our men and
women at the border, so they can intercept these outfits who
are smuggling young children across our border into the sex
trade and forced labor.
EMPLOYMENT DISCRIMINATION
Not knowing how much time I have, I would like to move to
another question. You say part of your job is protecting U.S.
workers and Buy American and Hire American Executive Order is
something that you enforce. Can you just tell me, what sort of
industries actually abuse this practice the most, and is this
really commonplace or is it something that is less--I guess,
you all are less engaged in, or is this something that you are
highly engaged in?
Mr. Dreiband. It is something we are highly engaged in,
Representative Palazzo.
The right to work in this country free from discrimination
includes the right to work free from national origin and
citizenship discrimination, so we enforce the anti-
discrimination protections that are contained in the
Immigration Nationality Act. Our Immigrant Employee Rights
Section initiated in early 2017 what we call the Protecting
U.S. Workers Initiative. And what we have seen is that there
are times when employers will discriminate because of
citizenship status against American citizens, and our very
dedicated career attorneys have taken very aggressive and
appropriate action to remedy that when we are able to uncover
it and find it.
Mr. Palazzo. I'm sorry, something a little more direct. You
say employers abuse temporary visa programs to bring in, I
guess, foreign or cheaper labor at the expense of American
labor, I guess that is what I was more focused on, because I do
know you pursue the others heavily and rightfully so.
So I guess what industries would be using temporary visa
labor to--and not use American labor, and may be abusing this
process?
Mr. Dreiband. Well, Representative Palazzo, it does vary.
Mr. Palazzo. OK.
Mr. Dreiband. We have seen it, for example, with respect to
agriculture, for example, but it can happen in any industry
really. But the right to work without regard to discrimination
because of citizenship, that does extend to American citizens
as well, and American citizens have a right to work in this
country without employers using their citizenship as Americans
against them, and we have seen that happen, as you said.
Mr. Palazzo. That is one place we can find bipartisan
support is Buy American Hire American.
So, thank you.
Mr. Serrano. Thank you.
Ms. Meng.
Ms. Meng. Thank you, Mr. Dreiband, for being here today and
for your work.
VOTING RIGHTS
Enforcement of the Voting Rights Act of 1965 has been
crucial in increasing the Asian-American communities access to
the ballot. How many cases have been brought by the Voting
Section under the Voting Rights Act since 2017?
Mr. Dreiband. Well, we have--as I said in my statement and
I said in my written submission, we have participated in six
cases under the Voting Rights Act at various levels of the
Federal courts. We are currently litigating a case in Michigan
under the Voting Rights Act.
And as you know, and I agree, Representative Meng, that the
right to vote and the protections of the Voting Rights Act are
among the most important rights that we have as Americans, they
are enshrined in both the Constitution of the United States, as
well as in the Voting Rights Act and in other laws as well.
Ms. Meng. How is the section, Voting Section, assigning
federal observers, and how many employees are detailed as
observers?
Mr. Dreiband. Well, what we do when we decide about how to
assign people is we look at through our experts in our Voting
Section various polling places and jurisdictions that we think,
based on the information available to us, may have been subject
to problems of various kinds where there might be concerns
going into an election, for example under the 2018 election,
about either the right to vote, of potential discrimination
related to voting, the right to language access by the voters
in particular jurisdictions where under the Voting Rights Act
they have a right to the ballot even if they are unfamiliar
with the English language.
And so we take recommendations from our Voting Section
attorneys and leadership there, and we make judgments about how
to disperse our resources throughout the United States.
Ms. Meng. My second question, you have mentioned this a
little, the DOJ has been enforcing the Voting Rights Act for,
let's say, over 50 years now; correct?
Mr. Dreiband. Yes. The Voting Rights Act was enacted in
1965 and the Civil Rights Division has been enforcing it for a
long time.
CENSUS DATA
Ms. Meng. Has the DOJ previously used citizenship from the
American Community Survey to protect voting rights?
Mr. Dreiband. Representative Meng, I am not familiar with
that, with that service, so it is not something that I know off
the top of my head.
Ms. Meng. Has the DOJ lost any Voting Rights Act
enforcement cases in the last over 50 years because it did not
have the citizenship information?
Mr. Dreiband. Representative Meng, I don't know the docket
and the entire history of every case that the Civil Rights
Division has brought since 1965. It certainly is the case
generally that we don't win every case we bring, but--so I
don't know the answer to your question about whether or not in
the last 54 years or so we have ever lost a case based on the
data or the survey that you are referring to.
Ms. Meng. I would like to follow up with your office to see
if there were cases that were lost because you did not have the
citizenship information. Secretary Ross has made reference to
that previously in relation to the census and the need to
include a citizenship question.
LANGUAGE ACCESS
One more question, sorry, before my time expires. In the
2015 memorandum on Civil Rights Division Language Access Plan,
can you update us on the continued community engagement and
outreach activities the Division has undertaken to engage with
limited-English-proficiency individuals and communities?
Mr. Dreiband. Representative Meng, are you asking about
like our efforts under the Voting Rights Act or----
Ms. Meng. Oh, separate. Just outreach and working together
with limited-English-proficiency communities based on the 2015
memorandum that is still on your website.
Mr. Dreiband. I see. Well, Representative Meng, we have
various laws that we enforce that seek to provide language
access to people of limited English proficiency. I think, in
addition to the Voting Rights Act, we have a section that is
very zealous with respect to language access through recipients
of federal funding under Title VI of the Civil Rights Act of
1964. That law prohibits discrimination because of race and
national origin, for example. And what we do see is that there
are times when individuals may struggle with access, for
example, to local courts or other areas where Title VI of the
Civil Rights Act applies, and we do seek to enforce that.
We also enforce the Equal Educational Opportunities Act,
which ensures language access for limited-English-proficiency
speakers through our Educational Opportunities Section, and we
enforce those laws in a variety of ways; through
investigations, through settlements and, if necessary, through
litigation throughout the United States.
Ms. Meng. Thank you. I know my time is up. I would love to
continue working together if there are groups that can be
helpful in working together with the Department.
And then, finally, if I could have 10 seconds, on your
website there was a section to contact one's local FBI field
office to report various types of incidents such as hate
crimes, et cetera. Of the six links, only the human trafficking
link is functioning; the hate crimes, excessive force, force or
threats in relation to reproductive health care services,
damaging religious property, and the right to vote, five out of
six are not functioning. So I hope we can see those up and
working soon.
Mr. Dreiband. Well, Representative Meng, thank you for your
support of the Civil Rights Division. You know, to the extent
our website is not working, it is something that we will look
into, and I thank you for bringing that to my attention. And we
certainly look forward to your continued support and continuing
to work with you.
Ms. Meng. Thank you, sir.
Mr. Serrano. Just a bit of information for members, we will
be providing the Department with any questions for the record
that you may not ask here.
Mrs. Lawrence.
Mrs. Lawrence. Thank you, Mr. Chair.
HATE CRIMES
Under the Hate Crimes Statistics Act of 1990, the FBI is
required to collect and report hate crimes statistic data from
the Nation's 18,000 Federal, state, and local law enforcement
officers. In 2017, the most recent data available, the FBI
reported a 17-percent increase in hate crime, with increasing
crime directed against individuals and institutions based on
race, religion, and sexual orientation.
How has this increase impacted the business of your
organization? What are you doing to address this double-digit
increase in just one year?
Mr. Dreiband. Representative Lawrence, thank you for your
question.
The Attorney General has made the prosecution of hate
crimes a priority of the Department of Justice and the
prosecution of those crimes and the jurisdiction over those
crimes is vested in the Civil Rights Division in our Criminal
Section, and we have seen dozens and dozens of hate crimes
throughout the United States.
First, though, I would like to address, Representative
Lawrence, your point about the data. One thing that we have
done and what the FBI has done is try to obtain a better and
more reliable data about hate crimes reporting. There has been
a challenge in the Federal Government to obtain reliable hate
crimes data. There are some jurisdictions in this country, for
example, that have never reported a hate crime and we know that
they happened.
And so we are working to obtain and are obtaining better
data about that. We then through our Criminal Section and
through the FBI are investigating allegations of hate crimes.
We are bringing many, many hate crimes prosecutions throughout
the United States, including those involving the murder of
people because of their race, because of their sexual
orientation, because of their religion, because of their status
as transgender individuals.
Mrs. Lawrence. Can you tell me, you said he has made it a
priority, what actions does that result in?
So, if something is a priority, obviously we have a real
issue and a problem in America, and you even address we may not
have the real scope of it. So when you say it is a priority, I
want to know what does a priority--how does things change in
the Department? Has there been a request for additional
funding? Have you increased the number of staffing to address
this issue?
Because my concern is that while we are looking at data it
is business as usual. So you can say something is a priority,
but what are you doing to make sure that it is a priority?
Mr. Dreiband. And, Representative Lawrence, it is an
excellent question and an important issue.
What we have done are many different things. We have
increased resources to our Criminal Section. When former
Attorney General Sessions, for example, announced a hiring
freeze at the Department of Justice, he exempted out our
Criminal Section from that hiring freeze. So we were able to
continue hiring people into our Criminal Section, and to expand
and increase the resources available for the investigations and
prosecutions of hate crimes. We have established a website
devoted to hate crimes. We are doing outreach to various
individuals and organizations throughout the United States.
And we have increased significantly our focus on both
investigating hate crimes and prosecuting them when
appropriate, including in places like Charlottesville,
Virginia, which in August 2017 we saw what I regard, at least,
as a very horrific series of events that led to the death of an
individual and severe injuries by dozens of others. And so,
working with the FBI and the United States Attorney's Office
there, we were able to obtain an indictment of an individual
who was involved, we allege, in a hate crime; that case is
pending. We have brought other cases, for example at the Tree
of Life Synagogue in Pittsburgh, where we allege--the case is
pending--we allege that an individual went into a synagogue and
killed several people.
Mrs. Lawrence. Exactly.
My last question, Mr. Chair.
So there is an anniversary of the Matthew Shepard and James
Byrd Hate Crimes Prevention Act. I am a firm believer that your
responsibility doesn't lie just internally, and I am glad to
hear what you are saying. What are you going to do to promote
and be part of educating people on hate crimes, for being
proactive? What is the role of the Justice Department in
ensuring that while we have, I feel, personally, it is my
belief that we have a culture that is nurturing divisiveness
and hate, what is your role and how do you recognize an
anniversary in this country that we are trying to prevent hate
crimes?
And that will be my last question.
Mr. Dreiband. Representative Lawrence, I agree with you, I
think we have a very serious problem in this country. We have
what we call the Hate Crimes Enforcement initiative, and we
have outreach to local police and community leaders to deal
with this issue. The Justice Department and the Civil Rights
Division in particular is primarily a law enforcement agency,
and so we are charged with and take very seriously our
responsibilities under the Shepard-Byrd Hate Crime Prevention
Act of 2009. We are devoting more resources to enforcement of
that law.
And we are seeking through both our enforcement efforts,
our outreach efforts, and our initiative to do everything we
can to eradicate hate crimes and hatred from this country.
Mrs. Lawrence. I close with this, I hope that includes
training staff too on when you look at prosecuting hate crimes
that--the biases that inherently are in our system, that we
train to remove those biases as well.
Thank you. I yield back.
Mr. Serrano. Mr. Crist.
VOTING RIGHTS
Mr. Crist. Thank you, Mr. Chairman. And thank you for being
here today, Mr. Dreiband.
As you probably are aware, this past November an
overwhelming majority of Floridians, nearly 65 percent in fact,
passed Amendment IV, restoring the right of over 1.4 million
Floridians to vote. It was a great day, one that ended a dark
chapter of Jim Crow-era politics in Florida.
As Governor of Florida, I was proud to restore the voting
rights of over 155,000 nonviolent felons, because I believe in
forgiveness and I believe in second chances, and that voting is
in fact a civil right.
And I was curious, do you believe that voting is a civil
right in our country?
Mr. Dreiband. Representative Crist, yes, I believe that
voting is a civil right in our country and in fact, more than
that, it is something that is enshrined in the Constitution of
the United States and in our Federal laws, including in
particular the Voting Rights Act.
I think one of the most important constitutional amendments
in our history is the Fifteenth Amendment to the Constitution,
which guaranteed the right to vote to individuals who were then
experiencing and have since experienced significant race
discrimination in this country, including especially with
respect to their right to vote, and the Voting Rights Act I
think reinforces that as well.
Mr. Crist. Thank you, sir. I am encouraged by that and I
appreciate your answer.
Do you think there should be a Federal policy then to
restore the rights of nonviolent felons to vote after they have
paid their full debt to society?
Mr. Dreiband. Representative Crist, as I said, the right to
vote is one of the most important rights that we have, it is
fundamental to who we are as a democracy. With respect to the
rights of felons to vote, that really is up to lawmakers around
the various states in this country, and you and your colleagues
in the Congress.
Our duty at the Civil Rights Division is to enforce the
laws within our jurisdiction, including the Voting Rights Act
and the National Voter Registration Act, the Help America Vote
Act, and other laws. Right now we do not have a law that we are
trusted with enforcing that seeks to address that issue, but it
is something that really is up to lawmakers in this country.
And our duty at the Civil Rights Division is to enforce the
laws within our jurisdiction and that is what we do.
Mr. Crist. Is it also to enforce the Constitution?
Mr. Dreiband. Yes, of course.
Mr. Crist. Didn't you cite that because of the federal
Constitution that there should be protections of voting rights
and shouldn't that extend to those who have paid their debt to
society?
Mr. Dreiband. Representative----
Mr. Crist. I mean, do you have to have a law? I don't mean
to interrupt, forgive me. I'm sorry.
You cited that it would be nice to have a law, I agree, but
we also have a Constitution. And if the Constitution would
extend that right and give that right to your Department,
wouldn't it be appropriate to enforce that nationwide----
Mr. Dreiband. Representative----
Mr. Crist [continuing]. Under the Constitution?
Mr. Dreiband. Yes, Representative Crist, certainly
constitutional rights are the most fundamental rights we have
in our country and, if the United States were to amend the
Constitution to extend a constitutional right to convicted
felons, then that would broaden the right to vote to those
individuals and would enshrine it in the Constitution.
Right now, the Constitution does not address that issue, as
far as I know anyway, but it is something that I think you and
your colleagues in the Congress and at the various state
legislatures across the country can consider and decide how to
proceed.
Mr. Crist. Thank you. I'm not sure how much time I have
left, but I have another area of a little bit?
Mr. Serrano. One minute.
EMPLOYMENT DISCRIMINATION
Mr. Crist. One minute. As you know, the Department of
Justice filed a brief in the case of Zarda v. Altitude Express,
arguing that Title VII of the Civil Rights Act does not protect
an employee from being discriminated against on the basis of
their sexual orientation. From my understanding, this
interpretation runs counter to the previous administration's
interpretation.
Can you explain to me the impetus for the decision making
and the change, and why did the Department decide to reverse
course?
Mr. Dreiband. Well, Representative Crist, the brief that
you are referring to was filed by the Department in I think in
2017, before I joined the Department, so I did not personally
participate----
Mr. Crist. That is correct.
Mr. Dreiband [continuing]. In that brief.
Mr. Crist. You are correct.
Mr. Dreiband. Generally speaking, Title VII of the Civil
Rights Act is the law that was at issue and is at issue in that
case. That case, as I think relevant to your question, protects
applicants for employment and employees, and even former
employees, from discrimination because of sex. The Federal
Courts of Appeals have split on the question of whether or not
the sex discrimination prohibitions of Title VII of the Civil
Rights Act of 1964 extend protections because of sexual
orientation. That case, as well as other cases presenting
similar issues, are currently pending at the Supreme Court of
the United States and we look forward to the Supreme Court's
decision. And we remain fully committed to enforcing the
protections of law with respect to sex discrimination and the
other protected categories contained in Title VII.
Mr. Crist. You are aware--and this will be it, Mr.
Chairman, in February of 2018 the United States Court of
Appeals for the Second Circuit ruled in Zarda's favor, arguing
that Title VII prohibits sexual orientation employment
discrimination under the category of sex.
Mr. Dreiband. Representative Crist, yes, I am aware of the
decision by the United States Court of Appeals for the Second
Circuit in the Zarda case. As I mentioned, that case then is
now pending before the Supreme Court of the United States, it
has been pending up there since or shortly after the Second
Circuit issued its decision, and we will see what the Supreme
Court does with it.
Mr. Crist. Thank you, sir.
Thank you, Mr. Chairman.
Mr. Serrano. Thank you.
Mr. Case.
CIVIL RIGHTS DIVISION ENFORCEMENT ACTIONS
Mr. Case. Thank you. Mr. Dreiband, there was an extensive
article in Vice News about six days ago that I am looking at
right now. It was by a gentleman named Rob Arthur. The title
was, ``Exclusive: Trump's Justice Department is Investigating
60 Percent Fewer Civil Rights Cases Than Obama's.'' The lead
paragraph says, ``The Trump Administration is pursuing far
fewer civil rights cases, including hate crimes, police bias,
and disability rights cases than the Obama or Bush
administration did, an exclusive Vice News analysis of DOJ data
shows.''
The second paragraph says, ``The DOJ Civil Rights Division,
which has enforced nearly every pivotal moment of rights reform
since its creation in '57 has started 60 percent fewer cases
against potential violations and 50 percent fewer than both,
Obama and Trump.''
And it purports to be based on--for the objective facts in
here, it has got plenty of subjectivity in it, as you can
imagine, but the objective facts purport to be based on actual
DOJ status, mostly online. Are you familiar with this article?
Have you read it?
Mr. Dreiband. Representative Case, no, I am not familiar
with the article and the description of the Civil Rights
Division that you just read to me is inconsistent with what I
have seen since I joined the Department.
Mr. Case. OK. So, you haven't read about it and you haven't
heard about it?
Mr. Dreiband. I have not read the article. It is possible I
may have heard of the article, but I haven't read it.
Mr. Case. Is there some way that we can talk apples-to-
apples about whether, in fact, enforcement actions have
increased, declined, or remained stable over time? I mean, I
understand--in my understanding of enforcement actions, the
limited understanding, is that an enforcement action results
from a formal investigation, so, in other words, an actual
formal action by DOJ for a potential civil rights violation.
Would we be on the same page if we talked in those terms?
Mr. Dreiband. Well, Representative Case, I think it would
depend on the statute and the type of case. Each of the
statutes within our jurisdiction have enforcement mechanisms
and procedures that vary from statute to statute. So, it is
hard to compare, for example, some statutes where we routinely
settle matters civilly, for example, with a criminal
investigation, or matters where we frequently litigate.
Mr. Case. How would you define an enforcement action? How
would you define an enforcement action?
Mr. Dreiband. Well, I would define an enforcement action
first by looking at the particular statute that we might
discuss.
Mr. Case. OK. Let's just start with that. Let's accept that
definition. I accept that. Have those enforcement actions,
whatever the statute is, whatever the department is, have they
gone up? Down? What is happening to the actual enforcement
actions? Because the subjective conclusion of this article--and
it is not a new conclusion; this has been out there for a
while--the suspicion and fear of many that this administration
is not ignoring our civil rights statutes to the same degree as
Republican and Democratic presidents previously, and has some
degree of animus, even, to the enforcement of civil rights
statutes in some areas, at least.
How do you respond to that? What is the empirical evidence
to disprove that?
Mr. Dreiband. Well, Representative Case, I think it is very
unfortunate that anyone would believe the type of myth that you
just described. The notion that the Civil Rights Division is
hostile to civil rights is deeply insulting to me and to my
colleagues at the Civil Rights Division and it is simple
untrue.
Mr. Case. OK. How would----
Mr. Dreiband. With respect to enforcement actions, I can
cite, for example, the fact that our human-trafficking
prosecutions in the most recent four-year period are up by an
eighty-two percent number from the prior four-year period. I
could also point to the fact that the Civil Rights Division,
since 2017, has brought a record number of investigations and
patent or practice lawsuits under our Sexual Harassment in
Housing Initiative under the Fair Housing Act. I could point to
dozens and dozens of hate crimes prosecutions that we have
brought. I----
Mr. Case. I am prepared to accept the empirical evidence
that you are, in fact, you know, enforcing the civil rights
statutes. I am just concerned that there is so much out there,
some of which purports to be based on very objective evidence
from the DOJ saying that is not the case. It may be the case in
some of your departments, but it may not be the case in others.
So, what I am trying to get to the bottom of is, is this
unfair or not? I mean, what do the facts actually show about
whether this administration and this DOJ is continuing to
vigorously enforce the civil rights acts, as prior
administrations have; that is the basic question that I have.
Mr. Dreiband. And, Representative Case, I think it is an
excellent question, and I am here telling you that the message
that I have given to our career staff in the Civil Rights
Division since I joined the department, which was in November
of 2018, is that we support and will continue to pursue
aggressive and zealous enforcement of the civil rights laws.
That includes all of the laws within our jurisdiction. We do
have limited resources, so we have to make judgments about how
to deploy our resources. So, numbers may vary.
But this notion that there is some kind of hostility
towards the civil rights laws is wholly inconsistent with
everything that I have seen since I have joined the Department
of Justice and it is----
Mr. Case. OK. How many attorneys do you have right now?
Mr. Dreiband. We have--I don't recall the exact number; I
mentioned it, it is in my statement--approximately 370
attorneys or thereabouts. It is a rough number.
Mr. Case. OK. Fiscal year--I am just looking at your own
information--fiscal year 2019, continuing resolution, 369
attorneys, allegation is that you are having a little higher
than normal non-retention; in other words, people are leaving
and are not being replaced. I don't know if that is correct or
not, but I do note in your fiscal year 2020 budget request, you
have only asked for an additional two attorneys. So, that means
to me either you think you are fully staffed or you don't have
any--you know, you are not seeing an increase in enforcement
actions or some other reason that I am not sure.
What explains--to me, it strikes me as unusual that we are
seeing only a two-attorney increase, when we feel so much
apparent, you know, increase--I don't know if this is justified
or not--but there feels like more interest, more demand for the
U.S. Government to enforce civil rights actions and, yet, the
attorney load that you are asking for is not very significant.
Mr. Dreiband. Well, Representative Case, of course, the
budget is something that you and your colleagues will
determine. I note here, for example, that in fiscal year 2017,
we had--the numbers that I have in front of me are 278
attorneys and that number went from 278 to 369 in 2018, stayed
that way in 2019, and we are asking or projecting for 371, as
you say.
Obviously, we, in the Civil Rights Division do have limited
resources. It is up to you and your colleagues, here in the
Congress, to determine, you know, how much money to appropriate
to us. So, that is a judgment for you to make.
Mr. Case. Is that your judgment that plus-two attorneys is
sufficient for your needs to enforce our civil rights statutes?
Mr. Dreiband. That, Representative Case, that is the
proposal and we will certainly do our best to enforce these
laws within our jurisdiction and use the limited resources that
we have--obviously, the Government does not have unlimited
resources--and you and your colleagues on this subcommittee and
in the Congress need to make judgments, given the competing
demands that you have about how to allocate the taxpayer
dollars, and we will do everything I can with the resources
that you and your colleagues decide to appropriate to us. We
very much appreciate your support, as well as those of your
colleagues, and we remain committed and will be committed to
enforcing the civil rights laws.
Mr. Case. Thank you.
Mr. Serrano. Ms. Kaptur.
Ms. Kaptur. Thank you very much, Mr. Chairman.
Welcome Mr. Driehaus--excuse me--Dreiband. We had
congressman and mayor from Cincinnati named Driehaus.
CONSENT DECREES
Attorney General Sessions issued a memo right before he
left limiting the use of consent decrees in civil rights
enforcement cases; that was his last act in office. And I am
curious, we know that those instruments put all parties on the
record and I wonder what the impact of his memo has been to
date. How many consent decrees, to your knowledge, have been
entered into by the Civil Rights Division by this
administration by section?
Mr. Dreiband. Representative Kaptur, if I am pronouncing
that correctly, you are correct that former Attorney General
Sessions did sign a memorandum about consent decrees. That
memorandum is limited to consent decrees with state and local
government institutions--cities, counties, states, things of
that nature--that memorandum established a process internally
at the Justice Department for both, standards that govern
consent decrees and the promise for obtaining approval of
consent decrees in the department. They apply to both, the
Civil Rights Division and to all other litigating components of
the department.
In terms of consent decrees versus other forms of resolving
disputes, the way that works and the way we use them is that we
use consent decrees, as well as settlement agreements, to
resolve a dispute in our civil prosecution of the federal civil
rights laws. They do vary in the type of settlement that we
seek to obtain in particular cases. So, we have both,
settlement agreements and consent degrees, and we use them as
best we can using our judgment.
With respect to your particular question about section by
section, I don't know the numbers off the top of my head. We
have 11 sections in the Civil Rights Division; 10 of those 11
involve civil-type claims. One is a policy section that does
not litigate cases, but the other ones do litigate cases,
civilly. Our Criminal Section, of course, they bring
indictments and guilty pleas and things like that and
convictions.
So, with respect to consent decrees, our civil-litigating
sections use them and we use them frequently to usually settle
matters that are filed in federal courts.
Ms. Kaptur. Could you have your staff prepare those
numbers? How long would it take you to submit that to us, on
behalf of this administration?
Mr. Dreiband. I'm sorry, how long--I don't--Representative
Kaptur, I'm not sure how long it would take. I would have to
take that back to the Department of Justice and see what kinda
that we have about it.
Ms. Kaptur. All I am asking is for this administration, by
section, how many of the consent decrees have been entered into
by the Civil Rights Division, how many by section. That should
be fairly easy during this administration, since it has been
sworn in.
Mr. Dreiband. Representative Kaptur, I will look into that
and take that back to the Department and do what--find out what
we can find out for you on that. We certainly appreciate your
support and continue to work with you and your colleagues on
this subcommittee and here in the Congress.
FAIR HOUSING ACT
Ms. Kaptur. Thank you. I just wanted to move to the housing
arena, if I could, on an area I have a great interest in. The
housing section does not appear to have brought a single fair-
housing case based on race discrimination in this
administration. Perhaps my information is not up to date. Why--
could you possibly explain this and why would the Department of
Justice be ignoring the law, a powerful tool that this
particular section provides us? Do you not have any lawyers in
that section?
Mr. Dreiband. Representative Kaptur, we enforce the Fair
Housing Act through our Housing and Civil Enforcement Section.
We have several dozen lawyers in that section and with respect
to the different kinds of cases they bring, they, of course, as
I mentioned earlier, have brought a record number of sexual
harassment investigations and pattern and practice sexual
harassment cases. With respect to race discrimination cases
under the Fair Housing Act, I have instructed them that I
regard race discrimination protections under the Fair Housing
Act as very important and something that I fully support. And I
work with them to do that and to bring those cases, as well. It
is something that we are working on and we are investigating
and litigating all kinds of cases through our Housing and Civil
Enforcement Section. And not just with respect to race and sex
discrimination, but on behalf of individuals with disabilities
and on behalf of other protected categories, as well.
Ms. Kaptur. Well, it is from the data I have--and, again,
it could be wrong--but it appears that the housing section has
not brought a single Fair Housing case in two years since the
administration took office based on race discrimination. Is
that possible?
Mr. Dreiband. Representative Kaptur, that does not sound
correct to me. I don't have the data as I am sitting here
today, but, certainly, race discrimination protections of the
Fair Housing Act, I think, are among the most important
protections embodied in the Fair Housing Act. In fact, the Fair
Housing Act was passed in 1968 primarily to get at race
discrimination in housing, and that law passed shortly after
the terrible and tragic assassination of Dr. Martin Luther
King, Jr., and it was designed to eradicate race and other
forms of discrimination in housing.
I know, as I say, we have seen a significant increase in
sexual harassment, in particular, in housing. And these are
very disturbing cases where what we often see are male
landlords who coerce, threaten, intimidate very often, low-
income and vulnerable women into threats of sexual favors in
exchange for rent or rent discounts, things of that nature, and
we are prosecuting a record number of those.
Ms. Kaptur. Thank you for that.
Mr. Dreiband. Sure. And we also receive referrals from the
Department of Housing and Urban Development where we prosecute
those cases, as well, through our Housing and Civil Enforcement
Section.
Ms. Kaptur. And the way you are structured, do you have
someone in charge of the housing litigation; is there someone
within----
Mr. Dreiband. Yeah, the structure of our--of the Civil
Rights Division, with respect to our Housing and Civil
Enforcement Section, is that we have a deputy assistant
attorney general who reports to my principal deputy and to me.
He is a career attorney who has been at the Department for more
than 20 years. Then, we have an individual who is the chief of
our Housing and Civil Enforcement Section. She, likewise, is a
career attorney and she reports to our deputy assistant
attorney general, and the two of them, working with me and the
other people in our Housing Civil Enforcement Section and the
leadership of that section, investigate and litigate
allegations of housing discrimination, among other things.
Ms. Kaptur. Thank you. So, it would be easy for you to get
back to us fairly quickly on whether what I stated is correct,
and that is that the administration has not brought a single
housing case, Fair Housing case based on race discrimination in
this administration. You could check with that person and get
back to us fairly quickly, right, so you can verify what I am
saying is true?
Mr. Dreiband. Well, Representative Kaptur, certainly, I can
check with the leadership of our Housing and Civil Enforcement
Section----
Ms. Kaptur. Thank you.
Mr. Dreiband [continued]. And, in fact, I talk with them
frequently. I have met with them several times this week, for
example.
Ms. Kaptur. Well, you know, Jones Day has a big legal
operation in Cleveland, Ohio, also, and I would be very, very
interested in the answer to that question, sir. Lou Stokes is
one of my predecessors from Ohio and he was very intent on this
issue, and I admired his work and the work that we have done as
a country to heal these racial divides. So, I would be very
grateful for that information.
Thank you, Mr. Chairman.
Mr. Serrano. Thank you.
POLICE REFORM
Mr. Dreiband, how much staffing and funding does the
Division devote to police reform?
Mr. Dreiband. Well, I would say two of our sections
primarily deal with police departments through the Civil Rights
Division, our Special Litigation Section and our Criminal
Section. But, of course, other sections of the Justice
Department and the Civil Rights Division also do it, as well.
For example, police departments are governed by Title VII of
the Civil Rights Act of 1964 in that they are prohibited from
discrimination because of race, sex, and other protected traits
and our Employment Litigation Section enforces that law. So, it
does vary by statute.
Each of those sections, the three sections that I
mentioned, have several dozen attorneys and investigators and
other professionals who work with them.
Mr. Serrano. Now, from your knowledge, is that particular
dedicated funds amount lower than it is been in the past years?
Has it held steady over a period of time?
Mr. Dreiband. Well, I think the numbers vary. They vary
from section to section in terms of increases or decreases in
staffing. Some sections have more attrition than others. So,
for example, our Criminal Section has seen an increase in
staffing over the last couple of years, but it does vary by
section.
Mr. Serrano. And how many reform agreements are now in
place and how many are under consideration, either in
negotiation or in implementation?
Mr. Dreiband. Chairman Serrano, I'm sorry, what kind of
agreements were you asking about? I did not quite hear that.
Mr. Serrano. Reform agreements.
Mr. Dreiband. Well, Chairman Serrano, we enter into
different kinds of agreements with police departments. They
could be in the form of a settlement agreement of a disputed
matter. They could be in the form of a consent decree, as I was
talking earlier. So, it does vary in terms of the form of the
agreement.
We don't use the term ``reform agreement'' when we settle a
matter with a police department or any other organization or
institution. So, it does vary in terms of the type of
resolution that we have with these organizations. But--so, I am
not sure I can define it more precisely than that.
Mr. Serrano. You mentioned consent decrees and we have an
understanding that there have been less than those agreed to;
is that correct?
Mr. Dreiband. Chairman Serrano, I don't know the numbers of
consent decrees that this Civil Rights Division has entered
into. We have entered into many, many consent decrees through
the various sections of the Civil Rights Division over the last
few years, many of which predate my arrival, obviously. So, I
don't know the numbers off the top of my head. I think it would
vary from section to section of the Civil Rights Division.
Mr. Serrano. OK. Well, you can provide that on the record
and we will also provide you with more information to clarify
our questioning.
Mr. Dreiband. Thank you, Chairman Serrano.
CONSENT DECREES
Mr. Serrano. On November 7th, former Attorney General
Sessions initialed a policy memo to curtail the use of your
consent decrees saying that it is not the responsibility of the
Federal Government to manage non-Federal law enforcement
agencies.
Has the policy been implemented and did it lead to
terminating agreements or setting deadlines?
Mr. Dreiband. Chairman Serrano, you are correct that on
November 7th of 2018, then-Attorney General Jeff Sessions did
sign a memorandum about consent decrees with respect to state
and local government institutions. That memorandum established
certain kinds of procedures, both, with respect to obtaining
approval of consent decrees and standards that govern consent
decrees.
The memorandum has not resulted in any kind of artificial
termination of any consent decree within the jurisdiction of
the Civil Rights Division since it issued, nor have I given any
direction to anyone in the Civil Rights Division to terminate
any existing consent decree, artificially or otherwise, as a
result of that memorandum. So, consent decrees that existed
before that memorandum and that have not yet otherwise expired,
remain in place and our various sections of the Civil Rights
Division continues to enforce them.
You know, we do consult, as a result of the memorandum,
with the Office of the Associate Attorney General, for example,
or the Deputy Attorney General, as appropriate, and we are
continuing, though, marching on and soldiering on with respect
to our law enforcement activities.
Mr. Serrano. Then you wouldn't know how many agreements
were affected and where they were affected?
Mr. Dreiband. Chairman Serrano, I did not hear the last
part of your question.
Mr. Serrano. And you wouldn't know how many of these
agreements were affected and where, at this point?
Mr. Dreiband. Yeah, Chairman Serrano, in terms of the
existing agreements, I don't believe that any of them were
affected at all. We don't read that memorandum to be
retroactive or anything like that to affect pending consent
decrees; rather, it was a directive, at least as I read it, on
a going-forward basis, about how the Civil Rights Division, but
not just the Civil Rights Division, but the Justice Department,
generally, will seek to obtain consent decrees, with respect to
state, local government organizations, and institutions,
respecting, of course, the federalism concerns that are at
issue in those cases, because when we have, you know, state and
local government organizations and the federal government
bringing enforcement actions in those cases.
Mr. Serrano. In your confirmation hearing, you testified
that--and I am quoting, ``The division, Special Litigation
Section, is entrusted with the role of enforcing Federal laws,
protecting the civil rights of individuals in our communities
who interact with state or local law enforcement officers.''
You also said, ``That while intervention may not be
appropriate in every case, the Division will stand ready and
willing to assist State and local authorities, when
necessary.''
With that in mind, what standards should DOJ use to
identify organizations in need of review or reform?
Mr. Dreiband. Yeah, we, through our Special Litigation
Section, we enforce a variety of statutes and we gain
information about alleged violations of statutes in different
ways, through local communities, through advocacy groups,
through individuals. Our Special Litigation Section then
conducts investigations, as appropriate; again, each law varies
from--in terms of the exact process available to us.
For example, some statutes provide subpoena power during
investigations in civil matters and others do not. For example,
the Civil Rights of Institutionalized Persons Act, which is one
of the laws that the Special Litigation Section is entrusted
with enforcing, that does, thanks to amendments by you and your
colleagues in the Congress, does authorize us to issue
subpoenas, for example, to compel production of information.
Under that law, for example, we recently issued findings,
letters against both, a jail in Kentucky and a prison in
Virginia, where we found that there was a pattern of practice
of violations of the Constitution by law enforcement officials
in those cases and we are--and those occurred after lengthy and
thorough investigations by the very dedicated staff and
attorneys in the Special Litigation Section of the Civil Rights
Division, and we are now working with those institutions,
hopefully, to bring about a resolution to those alleged
violations and to make sure that in those cases, the
institutions are complying fully with the Constitution of the
United States and the federal civil rights laws that--within
our jurisdiction.
Mr. Serrano. Thank you.
Mr. Aderholt.
Mr. Aderholt. Thank you, Mr. Chairman.
HATE CRIMES
We talked--I think we talked a little bit about the
prosecution of hate crimes, but let me ask you about the
incidences of hate crimes, in general. Did--and you may have
mentioned this--but clarify this, would you say that the
instance of actual crimes are growing, staying the same, or
decreasing?
Mr. Dreiband. Ranking Member Aderholt, with respect to hate
crimes, I think what I can say is that we think the data are
improving; in other words, the reporting of hate crimes and the
data available to us is better and getting better, and it is
something that the Federal Bureau of Investigations is working
very hard on, along with our Criminal Section at the Justice
Department. So, the data are better, which is helpful.
In terms of an accurate measure of how many hate crimes are
occurring in this country, I think that is more difficult to
say. As I said earlier, we are concerned that there are
jurisdictions in this country that have not reported hate
crimes at all and, yet, we are confident that those hate crimes
are occurring.
So, I think the good news is that the data are better and
we are committing more resources to prosecuting hate crimes, to
reaching out to local law enforcement and community
organizations and individuals to uncover instances of hate
crimes and to take appropriate action where----
Mr. Aderholt. So, it may not be that the number of actual
hate crimes are growing so much, as there is better information
regarding incidences that are out there are being reported more
now than they were in the past; is that safe to say?
Mr. Dreiband. Ranking Member Aderholt, yes. I think, as I
said, the data are better, and that improvement in the data
enables us to identify hate crimes and investigate them, and
when appropriate, working with local law enforcement to bring
appropriate actions, including criminal prosecution, of those
who commit such crimes.
Mr. Aderholt. Let me shift just a bit. I will talk about
hate crime hoax and, of course, they can be as damaging as
actual hate crimes. Or still, hate crimes hoaxes compound the
injury by unjustly defaming the category of individual
identified with the perceived of the characteristics of the
perpetrator or perpetrators.
Has your division ever been involved with the prosecution
of a hate crime hoax?
Mr. Dreiband. Representative Aderholt, I am not familiar of
whether or not the Civil Rights Division has ever prosecuted a
hate crimes hoax. I agree with you that any kind of hoax about
a hate crime is a very serious thing and can damage public
perceptions about victims of hate crimes. They can also involve
criminal misconduct, as well, if, for example, an individual is
falsely reporting a hate crime, may make a material false
statement to an FBI agent, for example, that is a felony.
Likewise, if an individual goes into a grand jury or
otherwise testifies under oath falsely about a hate crime,
that, likewise, would be criminal perjury and could be
prosecuted. So, these are very serious things, but they are
also serious from the standpoint of public confidence in
criminal justice and I think they seek to undermine the victims
of hate crimes when people perpetrate hoaxes about them.
RELIGIOUS LIBERTY
Mr. Aderholt. Public colleges and universities are, of
course, bound by the Constitution, since they are institutions
of government, yet, freedom of speech and religious liberty
come under attack far too often on public campuses. What
responsibilities do public institutions have to afford equal
access to facilities and resources for faith-based student
organizations, including organizations that promote viewpoints
that are unpopular with the leadership of the university
itself?
Mr. Dreiband. Well, Ranking Member Aderholt, religious
liberty is, like voting, one of the most important protections
that we have in the Constitution of the United States. It is
something that the founders enshrined in the First Amendment to
the Constitution of the United States, including, in
particular, the free exercise of religion, and it is something
that public institution, because they are governmental
organizations, have a duty to comply with and to respect the
free exercise of religion of those individuals within their
community.
We have seen in the Civil Rights Division that there are
times when certain public institutions are taking actions that
we regard as in violation of the First Amendment. For example,
we had a case recently, a case called Business Leaders in
Christ v the University of Iowa, where the University of Iowa
de-registered a religious student group, and we concluded that
it did so in violation of the First Amendment.
We filed with the Federal District Court in Iowa, a
statement of interest explaining the standards that govern such
claims and the Federal Court there did agree with us, found
that the University of Iowa had violated the First Amendment
with respect to this religious student group there, and we have
seen that in other circumstances, as well.
Mr. Aderholt. Well, that was going to be my next question.
So, that has been a recent effort that you all have worked on
there with that University of Iowa case?
Mr. Dreiband. Ranking Member Aderholt, yes. That is one
case of various cases where we, at the Civil Rights Division,
have found that various public institutions appear, at least,
to us, to have violated the First Amendment religious liberty
protections. And what we do and have done in those cases,
typically, is to advise the federal courts of this and advise
them of the standards that govern and the standards that these
public institutions should adhere to. And then, you know, the
courts take appropriate action in whatever cases are pending.
Mr. Aderholt. And I am sure that in this particular case,
the University of Iowa took the appropriate action and let this
group back on the campus?
Mr. Dreiband. Well, I don't know what the University of
Iowa has done. The decision was issued very recently, and so I
don't know whether the University of Iowa has come into
compliance with the First Amendment. I certainly hope they
have.
What we do know is that the Federal Court in that case did
agree with us and issued a decision, a very thorough decision,
about the violation of the First Amendment that it found.
Mr. Aderholt. What Federal Court was it that issued that
ruling; do you recall offhand?
Mr. Dreiband. Yeah, it was--it was a federal court in Iowa.
I don't remember which district court it was, but it was in the
state of Iowa.
Mr. Aderholt. All right. Thank you, Mr. Chairman.
Mr. Serrano. Mr. Palazzo.
Mr. Palazzo. All right. Thank you, Mr. Chairman.
RIGHTS OF SERVICEMEMBERS
In your testimony, you talk about protecting the
servicemembers' rights to vote and also their reemployment
rights when they deploy. And we know over the past two decades,
we have had hundreds of thousands of men and women deployed all
over the nation, primarily in the Middle East.
Can you briefly describe your efforts and are they
transpositive or negative, again, in employees and employers
and states, I guess, in one sense, making sure that they are
able to vote when they are serving overseas, but also, their
reemployment upon returning home, just what you have seen in
your office and are we turning them in the right direction?
Mr. Dreiband. Yes, we have, as I mentioned in my written
submission, Representative Palazzo, we did--we are focused on
protecting servicemembers against discrimination and against
deprivation of their rights to vote. So, we enforce a law
called the Uniformed Services Employment and Reemployment
Rights Act, as well as two other laws, I think, that are
relevant to protections, at least within our jurisdiction, for
servicemembers, the Uniformed and Overseas Citizens Absentee
Voting Act--that protects the right of servicemembers who are
outside the United States to vote--the Servicemembers Civil
Relief Act also provides protections.
For example, we have seen cases where certain auto lenders
have seized property in violation of the Servicemembers Civil
Relief Act, foreclosed on mortgages, things like that, when our
servicemembers are outside the United States or might even be
fighting in a place of combat. Under the Uniformed Services
Employment and Reemployment Rights Act, USERRA is what that law
is known as, we have seen instances where servicemembers have
lost their jobs, in violation of the law, or have otherwise
suffered adverse employment consequences. And so, when we found
that--and we have found it--we take appropriate action,
including up to and filing lawsuits against individuals or
organizations that may violate these protections.
Mr. Palazzo. As the chairman of the National Guard and
Reserve Components Caucus, and as a veteran myself, and a
current member of the Mississippi National Guard, we have
over--in fact, we have the largest contingent of National
Guardsmen returning from overseas. They spend a year in the
Middle East, and we have another group from Laurel, the 184th
Sustainment Command that is in the middle of their deployment.
You know, these things are important and, you know, I just
want to thank the employers that continue to hire National
Guardsmen and Reservists, especially in light of the tempo that
we have had over the past 20 years. It is really admirable of
them, and, in fact, in Congress, we have tried to make it even
more appealing by providing tax credits for those who hire men
and women in uniform and that are deployed to help, again, just
incentivize people to continue hiring men and women in uniform,
because they do make some of the best employees out there.
You know, we have kind of focused on protecting the right
to vote. Protecting, you know, the American citizens vote is
extremely important to me. Just last week on HR1, which I think
it is called For the People's Act, and some people think it is
for the politician's act, more of an incumbent protection
program, I mean, we heard crazy things like reducing the voting
age to 16, you know, allowing--you know, we actually had, I
guess, a motion to recommit or a statement to, you know--and it
was by Congressman Dan Crenshaw to basically prohibit people
who are here illegally from voting in our federal elections,
but many of my colleagues thought that it was okay for people
who are here illegally to vote in federal elections.
And when you look at California, California actually has
local ordinance that allows not only illegals to obtain
driver's licenses, but to vote in local elections. What are we
doing to protect our vote? Because I think it sends a horrific
message, and are we doing anything to go after the voter fraud
in these cities by--because, basically, they are in direct
violation of federal law. Because I am assuming if they are
voting in local elections, they are voting in federal
elections, as well.
Mr. Dreiband. Well, Representative Palazzo, first, let me
address your comments about our servicemembers, with which I
agree. Our very dedicated women and men who put on a uniform
are willing, literally, to put their lives at risk to protect
the liberties we have in this country. This is a tradition that
goes back to the Continental Army and during the American
Revolution, as you know, and they do so, among other things,
protect the right to vote.
And I think when we see violations of that right, it is
something that the Justice Department takes very seriously. In
the Civil Rights Division, we are entrusted with enforcing the
civil rights protections related to voting. Voter fraud, when
it happens, is within the jurisdiction of the Criminal Division
of the Justice Department.
And, you know, my focus, as the head of the Civil Rights
Division, of course, is to focus on the laws within our
jurisdiction, but I do know that we have many very fine lawyers
in the Criminal Division at the Justice Department and they
work with the FBI to investigate any claims or allegations of
voter fraud when they happen. It is not something that I am
personally involved in because, as I said, because of the
jurisdiction that we have in the Civil Rights Division, but I
agree with you that it is an important issue and it is one that
we should all be concerned about as Americans.
Mr. Palazzo. Thank you for your public service and thank
you for coming out today. I appreciate it.
Mr. Dreiband. Thank you, Representative Palazzo.
Mr. Serrano. I can't let it pass. My good friend, and I
mean my good friend, Mr. Palazzo, no democrat supported
undocumented folks voting in elections. It is a good approach
that is used. Every time we bring up voter suppression, all the
difficulty that is made in some States for you to vote, then
the other side brings up voting by undocumented.
I don't know what it feels like to be an undocumented
person; I was born a citizen in a territory, but everything I
know about these folks is that they would rather stay in the
shadows. The last thing they want to do is get caught in an
election that they are not supposed to be voting in, because
that would be the end of their stay here or worse, they would
stay here under another circumstance: behind bars. So, I don't
think that that is something for us to worry about.
COMMUNITY RELATIONS SERVICE
Let me ask you one last question and then we will wrap it
up and let you go enforce the laws. Fiscal year 2019 proposed
to put the Community Relations Service in your division. Is
this a good idea in your opinion?
Mr. Dreiband. Well, the Community Relations Service,
historically, has been separate from the Civil Rights Division.
I understand there is a proposal to make it a part of the Civil
Rights Division. The Community Relations Service, historically,
has served a different function than we do in the Civil Rights
Division in that the Community Relations Service has
historically helped work with communities in an amicable way to
calm tensions, to build trust often times when there have
various controversies in a particular community.
And the Civil Rights Division, as I said earlier, and you
referenced, Chairman Serrano, we are primarily charged with
enforcing the laws within our jurisdiction through either
criminal prosecution or civil lawsuits or investigations,
things of that sort.
So, with respect to the proposal, I really think that is
something that you and your colleagues, here in the House of
Representatives and your peers over in the United States Senate
should decide, and whatever you decide and whatever you do, we
will do our duty as best we can. And if you decide, and your
colleagues decide to combine the Community Relations Service
with the Civil Rights Division, we will do our best to make
sure that both, the Community Relations Service and Civil
Rights Division can continue to function as best and as
efficiently as they can, given the limited resources that you
and your colleagues appropriate to us.
Mr. Serrano. Thank you.
Mr. Aderholt, do you have any closing comments?
Mr. Aderholt. I don't have anything else.
Mr. Serrano. Let me just thank you for being here with us
today and I will end the way I started. You know, I come from a
generation of people who saw the Justice Department as the one
place you went to for relief and every time the Justice
Department got involved, it was not to hurt someone unless
someone was doing something wrong; it was to defend the rights
of people and even those who were in the margins of society, in
many ways--financially and, otherwise--felt protected.
And as I said before, for the African-American community,
it became the one place, especially, where the justice could be
brought about. And I would hope that that is still the feeling.
I would hope that that is what you consider to instill in the
people who work in this section and I would hope that we can
continue to have a Justice Department that we can remedy what
is wrong, grow on what is right, and serve the people well. And
I thank you.
Mr. Dreiband. Thank you, Chairman Serrano.
Mr. Serrano. And this hearing is adjourned.
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Wednesday, March 13, 2019.
GUN VIOLENCE PREVENTION AND ENFORCEMENT
WITNESSES
THOMAS E. BRANDON, DEPUTY DIRECTOR, BUREAU OF ALCOHOL, TOBACCO,
FIREARMS AND EXPLOSIVES
CHRISTINE HALVORSEN, ACTING ASSISTANT DIRECTOR, CRIMINAL JUSTICE
INFORMATION SERVICES, FEDERAL BUREAU OF INVESTIGATION
Mr. Serrano. The subcommittee will come to order. We
welcome everyone to our fourth hearing of the year. Today we
are going to examine gun violence prevention and enforcement
efforts.
There is an epidemic of gun violence in our Nation and this
subcommittee has a key role to play in the urgently needed
response as we oversee the Federal law enforcement agencies
tasked with overseeing gun dealers, investigating gun crimes,
and running our background check system, among other things.
That is why I am pleased to welcome our two witnesses today;
Thomas Brandon, the Deputy Director and head of the Bureau of
Alcohol, Tobacco, Firearms and Explosives, also known as ATF;
and Christine Halvorsen, the Acting Assistant Director for
Criminal Justice Information Services, or CJIS, pronounced
CJIS, at the Federal Bureau of Investigation. CJIS, among other
things, operates the National Instant Criminal Background
Check, more commonly known as NICS, pronounced as NICS.
Both agencies play a crucial role in preventing gun crimes
before they occur and investigating them once they do. You also
have a key role in the policymaking and the public to better
understand how guns fall into the wrong hands; how our
government oversees our Nation's firearms dealers and buyers;
and what we need to prioritize. Both agencies also have a key
role in working with state and local law enforcement in these
goals.
There are a large number of issues that have raised
concerns on both sides of the aisle in recent years, from
oversight over federally licensed gun dealers to loopholes in
our background checks system, to delayed denials to gun
trafficking, to the need to more rapidly trace the sources of
crime guns. The list goes on and on.
Unfortunately, we in Congress have too often failed you
just as well. Given the diversity and seriousness of your
missions, we have too often underfunded some of your critical
functions.
Right now, for instance, the New York City Police
Department has more than 39,000 officers and more than 19,000
administrative staff; as of 2019, the ATF has a total of 5,109.
Given your responsibilities, I think it is safe to say that an
increase in staffing is sorely needed.
On the NICS side, funding has grown over time to help
states maintain and update their background check databases,
and continued NICS funding is vital to ensuring that the
background check database is accurate.
Lastly, we also cannot discuss enforcement of our gun laws
without also mentioning previous legislative actions taken by
Congress that have impeded ATF's ability to prevent and
investigate gun violence. This committee, unfortunately, has a
long history of interfering in some commonsense policies to
ensure that the ATF can act in ways that are effective and
efficient. Hopefully, we will get a chance to discuss the
impact of those choices today.
I represent a community that is far too often subject to
gun violence, like so many Members do, not only in this
committee, but in Congress. We are not far from the issue of
illegal guns to have moved from a legitimate federally licensed
firearms dealer to an illegitimate source. So far this year, we
have had 29 shootings in the Bronx. I think we can all agree
that this is too many and that we need to act to prevent this
from happening.
Gun crimes happen all over our Nation and not a day goes by
without a firearms-related death. This violence has a serious
impact on our neighborhoods, not only the serious physical and
emotional impact on families, but also the psychological impact
on the broader community at large. Two weeks ago, the House
took a step toward addressing this epidemic. I look forward to
working with the agencies here today to determine what steps we
can take next.
So, we welcome you again. And, with that, I recognize Mr.
Aderholt, my partner.
Mr. Aderholt. Thank you, Mr. Chairman, for yielding, and I
would like to welcome our two witnesses to the hearing this
morning. It is good to have you here this morning.
The primary criminal enforcement mission of the Bureau of
Alcohol, Tobacco, Firearms and Explosives is to protect the
public from violent crimes. Similarly, the Federal Bureau of
Investigation's predominant mission is to protect the American
public from dangerous criminal threats.
As such, Direct Halvorsen and Deputy Director Brandon, I
know you are both experts on the topic of violence crime and
public safety, and so that is why we certainly welcome your
presence here to the subcommittee this morning. I look forward
to your insights and learning more about the comprehensive
efforts that are underway at your respective agencies to better
understand crime trends and modernize our Nation's efforts to
respond to them.
The complexity of violence and the very nature of criminal
behavior, as was just mentioned in the Chairman's remarks, make
predicting and preventing incidents of violence extremely
difficult. For this reason, I deeply appreciate the
extraordinary efforts of your agencies to work with your
Federal, state and local partners to address the violent issues
of firearms with the help of advanced technology, the improved
intelligence, better coordination, and targeted training and
also enforcement.
All too often, as the case, some in Washington and members
of the media want to blame the presence of guns for acts of
violence, and use tragedy as the very reason to restrict
fundamental rights to bear arms. I believe the Founding Fathers
wisely included the Second Amendment in the Bill of Rights, and
this fundamental freedom protects the right of gun owners and
in turn restrains the presence of criminal activity and
tyranny.
I firmly believe that restricting the rights of gun owners
is not the answer to the issues that we have seen and to the
criminal misuse of firearms in general.
So, with that, I thank the chairman for holding this
important hearing, and I yield back and look forward to your
testimony.
Mr. Serrano. Thank you, Mr. Aderholt.
Director Brandon, it is time for your opening remarks.
Please try to keep your statement to 5 minutes and, as always,
your full statement will be inserted in the record.
Mr. Brandon. Yes, sir.
Well, Chairman Serrano and Ranking Member Aderholt, and
members of the committee, my name is Thomas Brandon and I serve
as the Deputy Director for the Bureau of Alcohol, Tobacco,
Firearms and Explosives, known as ATF. As head of the agency
representing the men and women of the ATF, I want to thank you
for your invitation to appear before you today in order to
address ATF's role in combating gun violence.
The plague of gun violence has enormous impact across
America, from Charleston to Pittsburgh, from Columbine to
Parkland, and throughout our Nation. Whether you live in a big
city or a rural community, whether it is our children in
schools, adults at work, or families attending religious
services, no one is immune to the impact. While a mass shooting
captures the attention of the nightly news, the daily
occurrence of firearms-related violent crime in many of our
neighborhoods takes a heavy toll on the hearts of the entirety
of this great Nation.
ATF shares the Nation's desire to combat gun violence; it
is our job and it is what we do every day. ATF's mission to
protect our communities from violent criminals, criminal
organizations, the illegal use and trafficking of firearms, and
the illegal use and storage of explosives, and acts of arson
and bombings.
I often say ATF's goal is to be a better partner and that
is why a major key to ATF's impact on enhancing public safety
is the work we do every day in partnership with our state and
local law enforcement agencies. We seek to achieve this goal
through hard work in the trenches and through the unique
expertise we provide. The resources we provide to our partners
include the National Integrated Ballistics Information Network,
known as NIBIN, and firearms tracing, the two federal resources
the Major City Chief's Association has identified as far and
away the most valuable federal resources they use in their
fight against firearms violence.
ATF is a small agency with a big mission. Today I would
like to provide you with some examples of what we do with the
resources you all give us, and hope these examples point to
what we can do to have an even bigger impact in combating
violent crime in the future. In my written statement, as you
mentioned, I provided a more complete list of what we do with
the resources you give us, but for my oral testimony I will
highlight just a few.
For the past several years, we have been assessing how we
use the tools we have in order to be ahead of the curve with
regard to violent crime. In fact, I would say we have played a
significant role in actually changing the nature of criminal
investigations, driving change in a way that we use technology
and thus helping to drive change in the way our local law
enforcement partners use technology.
An example of our efforts to expand our investigative
abilities is the transformation of ATF's NIBIN. When a firearm
is discharged, it ejects a shell casing, leaving behind unique
markings on the casing. NIBIN is the only nationwide network
that allows for the capture and comparison of 3-D ballistic
images of spent shell casings recovered from crime scenes and
crime gun test fires. In the past, the technology existed
primarily in our labs to generate evidence for judicial
proceedings, but our efforts have directly caused NIBIN to
become an investigative leads generator, often linking crimes
previously thought to be unrelated.
Since 2016, ATF has provided these NIBIN matching services
at one centralized location in Huntsville, Alabama called our
National Correlation and Training Center. Correlation is the
process of comparing images in the NIBIN system and is cost-
prohibitive for many police departments nationwide. Currently,
ATF conducts correlation reviews for more than 250 law
enforcement agencies, with results within 48 hours or less. We
plan to continue to expand this essential service and our goal
would be to offer it to all NIBIN participants by the end of
fiscal year 2020.
The success of NIBIN is illustrated by a case recently
adjudicated in Detroit, Michigan. In January 2017, a nonfatal
shooting occurred at a Detroit gas station. Months later, in
April 2017, there was another shooting, this one fatal, at a
different gas station. By collecting the shell casings at both
scenes and using surveillance footage from the first nonfatal
shooting, investigators were able to link up both casings to a
single suspect, who was arrested and successfully prosecuted.
A study conducted by Rutgers University regarding the use
of NIBIN in New Jersey found that when you have two shootings
matched through NIBIN there is a 50-percent chance that the
firearm is going to be used in another shooting in the next 90
days. Our protocols are designed to identify and arrest those
violent criminals as soon as possible to prevent them from
engaging in more violence.
As these NIBIN machines and our correlation capabilities
are implemented across the country, ATF will be able to
integrate data from localities throughout the network, allowing
our experts in Huntsville to generate an even higher volume of
actionable investigative leads.
Violent crime knows no boundaries, so our work at the
national level supporting local law enforcement is a key part
of connecting the dots across judicial boundaries.
NIBIN is also the cornerstone of another way we continue to
transform criminal investigations, through our Crime Gun
Intelligence Centers.
Located in each ATF field division, Crime Gun Intelligence
Centers are collaborative efforts that use cutting edge
technology and a dedicated investigative team to identify
shooters and their sources of crime guns. Our Crime Gun
Intelligence Center best practices have revolutionalized the
way criminal investigations are conducted, bringing NIBIN and
our firearms tracing capabilities into a one-stop shop. This
allows us the ability to direct our intelligence to go after
the trigger pullers in an even more efficient and effective way
than ever before.
Let me provide a real-life example from New York as to how
we use Crime Gun Intelligence. In 2009, an enforcer in a
violent drug-trafficking organization shot and killed the
mother of two children. In 2010, another member of this
organization was shot and killed because they feared he would
cooperate with law enforcement. NIBIN linked those two murders
to the same gun and our application of crime gun intelligence,
now generated in all Crime Gun Intelligence Centers, assisted
in identifying and arresting the shooter, who in 2017 was
sentenced to life in prison plus 10 years.
Chairman Serrano, Ranking Member Aderholt, and members of
the subcommittee, I hope I have relayed why I feel that your
investment in ATF is money well spent. We know that in order to
fight violent crime we must be an integrated and resourceful
organization, nimble in responding to an ever-changing
environment with technological sophistication. ATF personnel
know there is no higher priority than protecting the American
public.
Thank you for your time and I am happy to answer any
questions you may have.
[The information follows:]
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Mr. Serrano. Thank you, Director.
At this time Director Halvorsen, you have 5 minutes, and
try to keep it to 5 minutes and we will include your statement
in the record.
Thank you.
Ms. Halvorsen. Good morning, Chairman Serrano, Ranking
Member Aderholt, and members of the subcommittee. My name is
Christine Halvorsen and I am the current Acting Assistant
Director of the FBI's Criminal Justice Information Services
Division, as we heard earlier, otherwise known as CJIS. I am
pleased to be here with you today to discuss the FBI's efforts
to halt the flow of gun violence facing our communities.
Let me first assure you, the people of the FBI remain
committed to doing whatever is necessary to prevent violence
which leads to the tragedies within our communities. For the
last few months of my 23-year career, I have had the honor to
serve alongside the hardworking men and women in the CJIS
Division, who every day are committed to protecting our
communities from violence. I am extremely honored and humbled
to speak on their behalf of the significant efforts we have and
continue to make within the FBI to one day end gun violence.
We are leading several initiatives with our law enforcement
partners to ensure we are all best equipped and positioned to
mitigate and respond to these violent threats. To do this, the
FBI is focusing on partnerships, sharing and evaluating
intelligence, conducting continuous process improvements, and
looking at our policies, procedures, and the development of our
people, so we can better assess our posture against the threats
while upholding the Constitution of the United States.
For example, in order to improve our daily operations, the
FBI has increased staff levels at the National Threat Operation
Center, formerly known to you all as PAL, and that is thanks to
the Committee's support. It has refined its organizational
structure and training to support expanded management and
appropriate referrals to law enforcement to ensure imminent
threats to life and national security events are handled in a
timely and appropriate manner.
It is building and strengthening partnerships with 911 call
centers, suicide prevention hotlines, fusion centers, and other
Federal Government agencies who also receive public tips
through their online or call centers.
Currently, NTOC operates 24/7 with more than 200 members.
The members receive and assess public leads and tips made to
FBI field offices via phone or e-tips, and, when necessary,
disseminate the actual intelligence to action officers. In
calendar year 2018 alone, NTOC personnel answered more than
655,000 calls and 755,000 e-tips.
The NTOC standard operating procedures has also been
modified to ensure standardization. Additionally, NTOC members
are provided threat briefings, threat-to-life, and guidance on
school shooting training, reiterating its responsibility to
escalate threats to life complaints and ensuring critical
information is being relayed clearly, efficiently, and timely
to the appropriate action officer.
A number of important IT changes have also taken effect at
CJIS and they have been implemented to streamline operations,
add critical reporting, and create call auditing features.
CJIS is also responsible, as you said earlier, for the NICS
system, the National Instant Criminal Background check system.
NICS is a computerized system which aids in determining if a
person's criminal history disqualifies them from possessing or
receiving firearms.
I would like to level set the committee on how the FBI
processes NICS transactions. When a requesting business
initiates a NICS transaction, a name and date of birth check is
conducted against three databases for possible matches. For all
FBI NICS transactions where the database checks are negative,
the NICS transaction is proceeded within seconds, sometimes
minutes, and it is purged from the system within 24 hours. For
NICS transactions processed by the FBI where potentially
prohibiting records are returned, the FBI has to initiate a
manual review to determine if the record demonstrates a
prohibition to the firearm possession.
I want to take a second to talk about the detailed manual
review process, so you all can live a day in the life of a NICS
operator. Each manual review is labor intensive, as a reviewer
only has limited information, as well as must be knowledgeable
of the varying state-to-state prohibitions for firearms
possession. At the conclusion of the manual review, the outcome
is noted as either a proceed, deny, or delay.
In most cases, a delay is issued if the FBI lacks the
appropriate information necessary to make a determination. To
obtain this information, the FBI makes requests of their law
enforcement partners to provide the information as soon as
possible. The FBI maintains the transaction as delayed until
they receive the information necessary to make the
determination or, if the information is not received, it is
purged from the NICS system within 88 days.
Since 2010, NICS has experienced substantial increases in
the volume of NICS transactions. For example, for Black Friday
of 2018, they experienced the highest volume for the highest
number of days in the history of NICS. In that one day alone,
NICS processed 182,000 transactions.
To help better equip and position our law enforcement
partners, the FBI continues to provide basic active-shooter
training and response training to sworn law enforcement
officers within the United States, and continues to collect
active-shooter data. From fiscal year 2015 to 2019, the FBI has
trained approximately 58,000 law enforcement officers.
We have developed and delivered courses designed to assist
in the implementation and management of intelligence-led
policing, focusing on reduction of crime violence.
In short, today's FBI shares more information with our
partners than ever before.
Our partnerships are strong and continually we are
assessing where the FBI can do better and making changes
wherever possible. We are working shoulder-to-shoulder with our
partners at every level of law enforcement to halt the flow of
gun violence facing our communities.
We greatly appreciate the support of the Subcommittee in
all that we do. Thank you for the opportunity to appear before
you today and I am now happy to answer any of your questions.
[The information follows:]
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
Mr. Serrano. Thank you. Thank you both for your testimony.
INSPECTIONS OF FEDERAL FIREARMS LICENSES (FFLS)
Mr. Brandon, ATF currently inspects approximately eight
percent of all Federal Firearms Licensees, or FFLs, each year.
What funding and personnel would you need to increase that to
20 percent? And does ATF have a target for what percentage
should be inspected each year? If not, what percentage would
you recommend as a matter of best practice?
And let me tell you that I have been in Congress for quite
a long time and on this committee for quite a long time, it is
very rare to have the chairman or the ranking member, or anyone
say, how much money do you need? It is usually you are asking
too much. So, if you can tell us.
Mr. Brandon. Mr. Chairman, thank you for the question and,
hey, we will take whatever you give us, you know. [Laughter.]
But as far as our industry operation investigators, we have
about say 850, but really about 684 are actually doing the
inspections. Each one, they work their tails off; they do about
40 to 50 inspections per year. And one of the things with these
inspections is that in the firearms industry about 50 percent
of the FFLs, the Federal Firearms Licensees, are new within the
last 5 years. When someone establishes a business, we want them
to be successful. The IOIs personally meet with them, and go
over the regulations and the administrative documents that they
need. So that eats up a lot of the time. We can always do more
with, with IOIs.
And, to answer your question, IOIs, if we had a few hundred
more, could we do more? Sure. We try to maximize with whatever
resources we are allocated.
We are using a new type of way that is like a CompStat with
our inspections, to go after the people that are worthy of
inspection, and we are having oversight at the headquarters
level. Each field division will give us their plan for the
year, their domain assessment, and we will have headquarters
review it to make sure they are inspecting the proper targets.
I have heard it referred to as, you know, the troubled dealers
that we don't have attention on. I have been in my position 7
and a half years now, and we have improved and we continue to
improve, as we should, as any organization should with
continuous process improvement.
But to answer your question--I would say we would need a
few hundred more industry operations investigators to
accomplish the percentage you recommend.
Mr. Serrano. A couple of hundred would bring you to 20
percent, you said?
Mr. Brandon. As best as I can answer right now, sir, yes, I
would be comfortable in saying that that would help us. We
would obviously have more progress, but I believe that would be
accurate.
Mr. Serrano. Last summer, the New York Times did an
investigation of ATF's inspections of gun dealers that revealed
that supervisors downgraded recommendations to revoke these gun
dealers' licenses. How many of these recommendations to revoke
licenses get downgraded each year?
Mr. Brandon. Well, sir, I will get back to the committee
with the specific numbers, but I will explain the process, and
it was a process to be fair, that you didn't have
inconsistencies applied around the country depending on who the
DIO, the Director of Industry Operations was; there is one for
each of the 25 field divisions. So it comes up and is reviewed,
we address the issue and there is national oversight to ensure
there is consistency and fairness applied to the process.
Mr. Serrano. Let me ask you another question. Several years
ago, Congress prohibited ATF from requiring the Federal
Firearms Licensees conduct physical inventories of their
premises. To what extent does this restriction impede ATF's
ability to inspect the FFLs?
Mr. Brandon. Well, sir, we follow the laws that you pass
and the funds you give us to do that, so we operate within the
confines of that.
I will say, there is a program where the FFLs have been
receptive, and when they are victims of a burglary or a
robbery. And we respond as an integrated team of ATF special
agents and ATF industry operations investigators, and along
with the local police. And a key component is that is helping
the FFL determine the inventory, the firearms that were being
stolen, so that they could be entered into NCIC that the FBI
controls. And we know from those burglaries and robberies that
those are no longer lawful commerce, they are crime guns and
they are going to be used to shoot people, and most likely the
people that are going to come up against them are the brave men
and women on patrol in uniform.
Mr. Serrano. Thank you.
NICS
Ms. Halvorsen, I understand NICS relies on three main
databases; the NICS crime database, the Interstate
Identification Index System, and the NICS index, which includes
records not in the other two databases, particularly from
states and other agencies to include mental health records. An
important point is that states provide their information
voluntarily.
Would you agree that it is critical to have timely and
complete information from the states to ensure NICS has what it
needs to make accurate and timely assessments of gun
purchaser's eligibility?
Ms. Halvorsen. So it sounds like you know our process very,
very well. So, yes, the firearms background checks--
Mr. Serrano. Somebody does on staff, for sure.
Ms. Halvorsen. Yes, there you go. [Laughter.]
So, as I had said in my opening statement, the firearms
background checks are only as good as the information we have
at the time that we have it. So the operator--we call them
legal instrument examiners--when they review the NICS
background check request that comes in, they are going off the
information they have at that point in time and then request
further information if we need it.
So, the more timely the information, the quicker we can
make a decision and move forward with the process.
Mr. Serrano. And what records do we need to get state or
federal partners to improve submission of relevant health and
other records?
Ms. Halvorsen. So regular--so I am just confused----
Mr. Serrano. What records do we need to get state or
federal partners to prove submission of relevant health and
other records?
Ms. Halvorsen. So, the Fix NICS Act was a big help to us
with getting the dispositions into the system and working
through that, and having the grants that were funded by DOJ to
help the states get through that has been helpful; we are still
working through that process to get the relevant records that
we need into the system.
Mr. Serrano. Let me just ask a question that I don't have
here. What would say is the morale of the folks that work in
your agencies? Because a lot of times we hear that people feel
that their hands are tied on some of the things they want to
do. What is the sense? If I, you know, was to talk to employees
at ATF, for instance, would I find people who say we could be
doing more, but we are not allowed or we can't do more? What
would I find?
MORALE OF AGENTS IN THE FIELD
Mr. Brandon. Sir, I believe morale in the field, the men
and women that are running and gunning, going after the trigger
pullers and the traffickers providing those trigger pullers
with the gun, they do it with passion. It is not who they
became, it is who they have always been. It is in their DNA to
go after and do this type of work, and I am sure it is the same
in the FBI and all the other law enforcement organizations.
But I would not be doing my job up here of the continual
compression of our budget where the costs have gone up; even
though our budget has gone up, the costs have gone up higher.
And to be candid with you, I have been an agent for ATF 30
years, and the cost of conducting criminal investigations has
gone up. Everybody has a cell phone in their life, so it costs
for digital media exploitation, social media warrants and so
forth, and I know we are not alone. The one thing that they
would maybe feel is that we are underappreciated for the job
that these brave men and women do. We are the smallest
component in DOJ and law enforcement; FBI, DEA, US Marshals,
and then ATF.
But, regardless of that, I attend every academy class
mostly, and I ask them why they come on the job and they come
from other agencies, even from the FBI, you know, and then
the----
Ms. Halvorsen. Hey. [Laughter.]
Mr. Brandon. We love stealing people, the Secret Service,
everybody. And----
Mr. Serrano. You would take people from the FBI?
Mr. Brandon. Oh, we have classes, yeah. But the reason I
say that--and we have a great relationship with the FBI--is the
mission. It is they want to go after--to your point in the
Bronx--they want to go after the people that are hurting
people. These are good Americans that are saying, hey, let us
go after the trigger pullers and the traffickers. I know from
personal experience, there is nothing like locking up a killer.
Mr. Serrano. Thank you.
Mr. Aderholt.
Mr. Aderholt. Thank you, Mr. Chairman.
FIX NICS ACT
As you know, last year when the President signed the Fix
NICS Act, which requires all federal agencies to certify twice
a year that they are uploading criminal record information to
NICS, and requiring the Attorney General, in coordination with
the states, to establish implementation plans to ensure maximum
coordination of reporting records.
Director Halvorsen, let me direct this question to you. Has
Fix NICS--and you alluded to it, but I want to get a little bit
more of a definite answer on this--has Fix NICS made a
difference in states and federal agencies that submit these
relevant records to NICS?
Ms. Halvorsen. So the Fix NICS Act has been very relevant
to the work that NICS is doing every single day. All the
submissions are due March 25th of 2019 by all the agencies that
were required to submit one for the Fix NICS Act. And we have
issued reports in December 2018 and February 2019 and, out of
the 56 agencies that were required, 18 have yet to submit. But
we know that they are on target for the March date.
We have actually created a whole outreach group as well
with our local and state partners that actually are working on
the grants that DOJ has provided to them to help them get
through this. And, again, we are holding their hand through
that process. They are all in different phases, all in
different stages of how to do it, but we are working through
that and technology fixes on how we can better assist them to
get them in. Overall it has been tremendous. Including for the
appeal process. We are under the 60 day deadline every single
week on the appeal process because we are getting the
dispositions in and have been able to, you know, adjust them as
quickly as we possibly can because of the dispositions coming
in.
Mr. Aderholt. What would be the impact on the FBI if all
states require firearm background checks on private sells
across the U.S.?
Ms. Halvorsen. Obviously, the workload would tremendously
increase, but we don't know what that would be, because right
now private sales aren't tracked. So we don't know what the
volume increase would actually be to NICS, but if that was
implemented, obviously our workload would increase.
NICS
Mr. Aderholt. To the extent to which states work on a
collaborative effort with the FBI to conduct NICS checks varies
depending on the willingness of the state governments to act as
a liaison for NICS, Federal Firearms Licensees will contact
either the FBI or the designated state point of contact to
initiate the background checks on individual's possessing or
receiving the firearms.
So, my next question, are states and federal agencies
mandated to contribute records to NICS?
Ms. Halvorsen. At this time, they are not mandated--it is
voluntary.
Mr. Aderholt. What is the difference between a full-time
state point of contact and a non-point-of-contact state?
Ms. Halvorsen. So, when the Brady Handgun Violence
Prevention Act of 1983 was implemented, states could actually
choose one of three options. They could become a full POC
state, a non-POC state, or a partial POC state.
In states designated as a full POC state, FFLs utilize the
POC to submit their NICS check. So all that is done by the
states. In states designated as non-POC, NICS does all the
checks. And then we have other states that we do some handgun
checks or we do long gun checks, and those are the partial POC
states.
Mr. Aderholt. OK.
Ms. Halvorsen. So we kind of have a mix of it all.
Mr. Aderholt. Has NICS volume increased say over the last 5
five years?
Ms. Halvorsen. Yes. In 2018, it was $26.1 million.
Mr. Aderholt. What is the difference in volume that the FBI
processes versus state POCs?
NICS VOLUME
Ms. Halvorsen. We actually don't have that number, so it
would be great to get back to the committee----
Mr. Aderholt. OK.
[The information follows:]
As reported in the National Instant Criminal Background
Check System's (NICS) 2018 Operations Report, the FBI Criminal
Justice Information Services Division's NICS Section processed
8,235,342 background checks in 2018, and state users processed
17,946,594 background checks. Of the state initiated background
checks, 5,293,391 were for the potential transfer of a firearm
and 12,653,203 were for firearm-related permits.
Please note, states may have procedures or regulations upon
which they deny a background check before the NICS is queried;
therefore, the volume provided may not be representative of the
actual total.
Ms. Halvorsen [continuing]. And work with the states to
provide that number to you at a later date.
Mr. Aderholt. OK. If you get back with that, that would be
great.
Can a private seller utilize NICS today?
Ms. Halvorsen. They can, if they go through an FFL, they
are able to go to an FFL and submit the private sale through
the FFL.
RESTRICTING SALES OF FIREARMS/TERRORIST WATCH LIST
Mr. Aderholt. This committee has considered on many
occasions an amendment aimed at the restricting sales of
firearms to persons on the so-called terrorist watch list; does
that amendment raise any concerns with you?
Ms. Halvorsen. I can understand why you ask that question,
because I have been in the Counterterrorism Division since 9/11
and I was New York when 9/11 happened, so I completely
understand the question. But when we look at that, we take each
one of those on a case-by-case to make sure that there are
legal prohibitions. Just because they are on the terrorist
watch list, right, there is a due process that in order. So we
refer those over to the individuals and we work in that 3-day
window to try to determine if there are prohibitions for each
individual that does hit on the watch list.
Mr. Aderholt. Because clearly it is easy to get on the
watch list, because something--when I say easy, it is very
common for people who may not should be on the watch list to in
some way get on the watch list because they may have been
somewhere in various other things.
Ms. Halvorsen. Yes.
Mr. Aderholt. If enacted or something of this nature were
enacted, how would the FBI square the requirements of that
amendment with the constitutional guarantee of due process of
law?
Ms. Halvorsen. So I think we have to wait until the
legislation comes out and work through it with you after it
comes out on implementing procedures and processes behind it,
after we see the language.
NICS
Mr. Aderholt. And this is my last question here. Just as
NICS needs to have the appropriate disqualifying records, it
also is important for NICS not to contain inaccurate records or
records that are prohibiting. What impact on the system do
extraneous or inaccurate records have?
IMPACT OF EXTRANEOUS OR INACCURATE RECORDS
Extraneous or inaccurate records generally do not impact
the NICS functionality, from a system or technical standpoint.
The FBI relies upon the collaboration and cooperation of
agencies nationwide to submit accurate information on
prohibited individuals.
In March 2018, the U.S. Attorney General sent a letter to
the FBI, state governors, and state attorneys general
encouraging improvement in disposition record reporting. The
FBI's goal is to make state and federal prohibiting records
available at the national level. Additionally, the Fix NICS Act
of 2017 has reinvigorated criminal history discussions across
the country.
The FBI has long-standing relationships with record-owning
agencies, and has collaborated with and advocated for record
sharing. The FBI has numerous proactive measures in place to
support agencies in the identification of lacking or missing
information in the applicable databases searched by the NICS.
The list below outlines a few specific resources the FBI has
made available to assist the states in addressing missing or
incomplete records in the applicable databases searched by the
NICS.
The FBI conducts educational outreach to
increase database records and final dispositions, as well as
the identification of other needed pieces of information to
support the immediate identification of prohibiting
information, such as relationship to victim, statute, and
subsection of the conviction;
The FBI provides annual criminal history
dashboards to agency contacts. Each dashboard provides
information about the number of arrests on file in the FBI's
Next Generation Identification (NGI) System, as well as the
number of arrests with and without final disposition data;
The FBI requests that agencies perform self-
audits to identify gaps in providing arrests and subsequent
disposition information to the NGI System;
The FBI provides reports to requesting
agencies containing arrests with missing dispositions that are
older than a year. This supports a continuous self-auditing
tool;
The FBI has dedicated staff performing
research to assist in the location of missing dispositions,
which the FBI then uses to update criminal history records in
the NGI system;
The FBI has dedicated liaison teams who
specialize with the applicable databases searched by the NICS.
They provide regular and ongoing support to record-owning
agencies and contributors with the identification, submission,
and maintenance of data and records;
The FBI created a Disposition Task Force in
2009 and continues through today to collectively pursue methods
to enhance disposition reporting.
The FBI CJIS Division conducts system audits on a triennial
basis. Among other audits, the CJIS Division is responsible for
National Crime Information Center (NCIC) and Interstate
Identification Index (III) audits. The audits are conducted
with state and federal CJIS Systems Agencies (CSA) and include
reviews of local agency/field components within their
applicable jurisdiction or span of control. The audits assess
the performance of the CSA in administering NCIC and III
systems access and services.
Ms. Halvorsen. So we would have to go back and do a study.
We frequently audit the system to make sure that we have
accurate records, and we go back to the different federal
agencies and law enforcement partners to update the records
frequently. But if you need a full impact, I would have to get
back to you on that.
Mr. Aderholt. OK. Yeah, just let us know what impact that
would have----
Ms. Halvorsen. Absolutely.
Mr. Aderholt [continuing]. It would be very helpful.
So, all right, I will yield back.
Mr. Serrano. Thank you, Mr. Aderholt.
So we will start our members round with Ms. Meng. And
please keep in mind, try to keep it to 5 minutes, and remember
that this is simply a love tap.
Ms. Meng. Thank you, Mr. Chairman and Mr. Ranking Member,
for holding this important hearing today, and to both our
witnesses for being here and your work for our country.
DOMESTIC VIOLENCE AND FIREARM POSSESSION
I wanted to ask a question about domestic violence and
firearms, which, as you know, can be a lethal combination. An
average of three to four Americans are murdered by intimate
partners daily, most of these victims are women, and most of
them are murdered by abusers using firearms. Thirty five
percent of women in the U.S. who are killed by men are killed
by intimate partners using firearms.
Ms. Halvorsen, how many default proceeds to prohibited
persons occurred last year and what percentage of them were to
domestic abusers?
Ms. Halvorsen. So it is a good question and a very, very
important topic that you are discussing. I don't have the
numbers on that. We don't do auto proceeds if there are any
hits in the system. So there wouldn't be hits in the system. If
there was, they would go into the delay queue, and then in that
manner it would be processed.
FIX NICS ACT
Ms. Meng. And I know you also mentioned how the Fix NICS
Act has helped, has made a difference; is that also true for
the entry of domestic violence records? How has that changed
from before and after Fix NICS?
Ms. Halvorsen. So we continue to work with our partners on
getting the domestic violence information put into the systems.
Sometimes it is incomplete and inaccurate information we get
it. So, it will hit on it, but it might not have the right code
that we need. So we will reach out and get those codes into the
system that we need in order to make the right determination.
And there are also limitations, we have other factors we have
to prove in that domestic violence, on the relationship, the
violence, based on the statutory requirements right now that
are necessary to make that determination.
Ms. Meng. OK. Do you feel like you have the resources you
need to ensure that agencies put in place state-by-state
implementation plans?
Ms. Halvorsen. To join in, any more resources are always
helpful in the process and adding to that. So, it would be
great. But we do handle them, like I said, and case by case
basis and we do get through each one.
DOMESTIC VIOLENCE AND FIREARM POSSESSION
Ms. Meng. And, Mr. Brandon, what is the ATF doing to be a
resource to local law enforcement agencies to ensure that these
adjudicated abusers don't have access to firearms?
Mr. Brandon. Ma'am, thank you for the question. For
instance, if we received a delayed denial from the FBI, meaning
that the firearm has transferred after 3 full business days,
the Federal Firearms Licensee has that option, and all of a
sudden it is determined that the person has a misdemeanor crime
of domestic violence, that is a priority to ATF and we pounce
on it, you know, because we don't want someone getting hurt by
someone that shouldn't have a firearm.
So we are vigilant with that, I get briefed every month on
that, and we have our eye on the ball. And we work hand-in-hand
with our FBI partners, because they realize that as well. So,
if we get that alert, it goes to the division, we move on it.
Ms. Meng. Thank you.
ACTIVE SHOOTER DRILLS
I also wanted to talk about the importance of active
shooter drills, which are increasing. I am a mom of two young
boys, I am always thinking about their safety, and all our
children across the country. A recent analysis by the
Washington Post found that during the last school year more
than four million students experienced at least one lockdown or
drill, including about 200,000 students in kindergarten or
preschool. Even in my district, we have local synagogues
conducting active shooter and terrorist-prevention training for
their congregants.
INTERAGENCY SECURITY COMMITTEE POLICY AND BEST PRACTICES GUIDE
I saw that ATF was part of the working group to craft the
2015 Interagency Security Committee Policy and Best Practices
Guide, but this guidance was designed to apply only to
buildings and facilities occupied by federal employees. To what
extent was ATF's participation in crafting this guidance, and
can we work together in researching strategic approaches to
preventing this type of violence, specifically in public or
private schools, or even in houses of worship?
Mr. Brandon. Ma'am, thank you for the question. We weren't
consulted, but ATF remains at the ready for any expertise we
have, and we have a lot of tactical experts. We will work hand-
in-hand with our law enforcement partners to protect America.
Ms. Halvorsen. So, I also am a mother of two young
children, so obviously this is a topic that affects me every
day. My kids are paranoid, because my husband is also an agent,
so they live in a different world sometimes than other
children. But we, in the FBI, have held in June 2018, a school
security summit where we brought in all our law enforcement
partners, as well as in this last fall we also brought in
different schools to come in and talk about what the threats
are, not even just from a violent crime aspect, from a counter-
terrorism aspect and other aspects of threats that are facing
them every single day, and walk through that.
And so we are continuing to do that outreach. We continue
to work with them, and get them to understand what the current
threat environment looks like and how they can operate within
that, while still keeping laughter inside the schools.
Ms. Meng. Thank you.
I yield back.
Mr. Serrano. Thank you. The beauty of being a Member of
Congress, you recognize the gentlewoman from New York, where it
was pretty chilly this morning, and now we recognize the
gentleman from Hawaii, where it was not, I imagine.
Mr. Case. My apologies for that, Mr. Chair. [Laughter.]
Thank you to both of you. And I want to first of all say
thank you to you and all of the great people that serve with
you. You know, you have got a tough job here. You are on the
front lines of what I believe and many believe is now clearly a
public health epidemic, and you are obviously on the front
lines of a continued political divide on whether and to what
extent to regulate guns.
What I am focused on, I hear, is not so much that policy
side, but the appropriations side of this, which is, as the
Chair said, do you have the resources you need to do your job.
And I will say up front that a big-picture, you know, high-
altitude observation is that the system simply seems to be
getting overwhelmed at some times with the not only increasing
gun violence, but with increasing demands on the existing laws,
much less the new laws, that I and other people propose to
increase protections.
FBI RESOURCES
And so the basic question is, is the Federal Government
keeping up with the resources, both financial and positions,
for you to do your job?
And I use one example, and correct me if I am wrong, but if
I understand this correctly, there were somewhere in the range
of 6,000 checks that really weren't completed in time in a
recent fiscal year; is that correct, is that about right?
Ms. Halvorsen. So it is not that the checks weren't
completed on your question, are you speaking about the gun
retrievals that were referred over to ATF?
Mr. Case. No, I am talking background checks. So within the
3-day period that they did not come back within 3 days.
Ms. Halvorsen. So it is a very cumbersome process. It is
not that the checks weren't completed, it was sometimes we
don't get all the information in order to make the
determination on the checks. So there is a difference there
that----
Mr. Case. OK. Well, I don't want to get into the semantics.
The point is that we have a very tight time frame and that time
frame was not within 3 days, and therefore there was a sequence
of events that occurred in terms of people being able to
acquire the guns, right?
Ms. Halvorsen. Correct.
Mr. Case. OK. So that is a lot. And the question is, do you
have the resources to--you know, obviously, many of us propose
to extend that deadline, because we think it is too tight to
start with, but even assuming that deadline, 6,000 not to be
completed within that period, that is a logistical issue,
because at the right level, I suppose, of funding and
positions, you could in fact whittle that 6,000 down
significantly.
So I am looking at your budget, I am just looking at the
budget that we got, at least the skinny budget, we don't have
the detail yet, and I am just looking in the NICS portion and
it says here, ``Increases by $4.2 million, 40 positions,'' and
if I calculate that correctly that is an increase of about
close to four percent in terms of money and about six percent
in positions. That just doesn't seem to me to be a lot of money
and positions to increase by, considering the testimony that
you have given and all of the other evidence in terms of what
seems to be a real problem in implementing the current law,
much less, you know, changes in the law, just from a resources
perspective. Do you share that perspective?
Ms. Halvorsen. So, the 40 bodies absolutely help, so we
want to thank the committee for funding those bodies, because
they absolutely help the staff that was there. In the FBI, we
have statisticians that work off of the data. When we know gun
sales are increasing, and we have to surge, we end up surging
employees from other areas that are critically needed to assist
in the gun check process. So when we have those peak times like
Black Friday, we have people already trained up who can assist
in that.
So the FBI is continuing to surge employees back and forth
to assist with the checks that we are doing.
Mr. Case. What you are describing to me is a good-faith
effort to accommodate existing limitations, that is not the
question I am asking. The question I am asking is, are you
adequately resourced, in your view, or do you believe--I am
going down the lines of the Chair's question, which is do you
have what you need?
Ms. Halvorsen. More resources----
FBI RESOURCES CONT'D
Mr. Case. You have got public safety in your hands and do
you have the resources that you need? And I make the point
again, I think that the budget requests in this department
seems to be pretty skinny for getting the job done, considering
the trends and considering your testimony.
So I am just asking you straight out, do you think that
this is an adequate budget request?
Ms. Halvorsen. So I know for the 2020 budget, which we
still haven't received yet, that we would be looking to make a
budget request enhancement.
Mr. Case. OK. Well, I am telling you what the budget says,
because I have it, and it says four percent money and six
percent positions.
Ms. Halvorsen. That was for fiscal year 2019, correct?
Mr. Case. No, I think that is the 2020 program enhancement
proposal.
Ms. Halvorsen. OK, we are requesting it. OK, sorry.
Yes, so I think the more resources we have, the better off
we would be in having that surge of resources back and forth.
Mr. Case. It seems that there has been--you know,
obviously, in a budget process there is a policy judgment
component to it and there is an internal discussion as to what
is adequate, and there are cost-benefit analyses and tradeoffs
and, you know, all the things that go into a budget.
What has your familiarity been with those discussions? Was
there a discussion about whether proposed increases in this
department should be limited or enhanced, or maximized or--you
know, what is the priority in terms of background checks?
Ms. Halvorsen. The priority in background checks is trying
to get through all the background checks, right, before the 3-
day window closes, to minimize the risk that we possibly can,
and to actually also allow people who should be possessing
weapons, to allow them to possess weapons.
Mr. Case. I guess I'm not trying to be too hard on you at
least, but you are in----
Ms. Halvorsen. No, it is all right.
Mr. Case. I just wonder whether this had the priority that
it deserved, so that is what I am trying to get to from a
budget perspective.
Ms. Halvorsen. So it absolutely does have the priority,
because we wouldn't be surging individuals off of other
programs to surge to meet the need when we need to.
Mr. Case. Well, you wouldn't have to surge them if you had
adequate funding to start with. So I don't want to go back to
that surge thing, because that is getting taken away from
somewhere else.
Ms. Halvorsen. Correct.
Mr. Case. Okay. So that is a temporary solution, not a
permanent solution.
Ms. Halvorsen. Correct, absolutely.
APPROPRIATIONS RIDERS
Mr. Case. OK. Mr. Brandon, you made reference to
implementing the law, as is your charge, and I am asking you a
little bit about whether we need to change some of that law.
And I get to it from appropriations, because in some of these
areas you are subject to appropriations riders, you are subject
to appropriations riders that have been included in recent
years and in, you know, various areas to include restrictions
on gun dealer physical inventories, working with other federal
agencies, creating searchable databases of records, multiple
gun traces, looking for patterns, those are all appropriation
riders that are limitations on your funding without actually
being laws per se, but they have the effect of law.
Do you believe that we should reverse some of those
appropriations riders, would that help you do your job better?
ATF RESOURCES
Mr. Brandon. Sir, can I get the same question as Christine
did about funding? [Laughter.]
Mr. Case. Yes, you can. I didn't see your funding go up at
all in the area of--if you want that question, I will ask you
that question, because I'm not sure I saw----
Mr. Brandon. Sir, I love ATF, I love America, I like guns,
I hate gun violence. And, truth be told, our budget for 2020,
if it goes and we salute, we will have to let go of--trim 377
positions. So ATF won't be as able to do what it can do today.
In 2019, we cut $40 million to keep status quo. You hear people
say trim the fat, then we trimmed into muscle, and now we are
trimming into bone.
I can't end my career as an ATF agent who loves America,
loves our partnerships, and knows the consequence of ATF not
being properly funded. I don't care if you are a Democrat or
Republican, I am an American, and I have seen people suffer
from gun violence my whole career. So maybe that is the
saturation point.
So, thank you for letting me answer your question.
Mr. Case. I thank you for your incredible candor. That is
what I want, you know, that is what we want. We want to know,
are you adequately resourced? I look at the fiscal year 2020
budget, saw no increase in your area focused on gun violence,
and I wondered the same thing, what is the policy judgment that
goes into that?
Mr. Brandon. And, Sir, if I could tell you, the Deputy
Attorney General, he has been phenomenal, former Attorney
General Jeff Sessions, when I mentioned the Correlation Center.
When our pass-back came back last year, I didn't even get a
call it was so bad. If it wasn't for them fighting for us, we
would have been crushed.
You see the benefit of this Correlation Center. When those
rounds are in the street, we don't know if the person is male,
female, white, black, or brown, but we know we have got a
trigger puller. And to get the money issue--we have been
robbing Peter to pay Paul to deliver on everything, and it is
the drip, drip, drip, and now we are cutting into bone.
And so I thank you for letting me do that, and hopefully
you can see that I am not trying to be political, I am trying
to be honest as, you know, and I am assuming, you know, under
oath.
Mr. Case. Thank you.
Mr. Serrano. Mr. Cartwright.
Mr. Cartwright. Thank you, Mr. Chairman. And, Director
Brandon, thank you for your candor as well, and thank you for
both of you being here today.
CHARLESTON LOOPHOLE (H.R. 1112)
I want to talk about the Charleston Loophole bill that the
House just passed, H.R. 1112, which of course is designed to
close that loophole by preventing individuals from purchasing
firearms from a gun dealer without a background check. The
Administration opposed the bill and I am trying to figure out
why. We are talking about a law that would simply ensure that
people who can't pass a background checks are not able to
purchase a firearm from a licensed gun dealer.
The problem is, as it stands today, there is 3-day waiting
period and, after the 3-day waiting period, people who are not
supposed to get a gun can pick one up from a gun store if the
FBI has not finished the background check, hence the reason for
H.R. 1112.
The FBI reports that in 2017 6,004 firearms were
potentially sold by gun stores to criminals because of this. So
criminals, including violent felons, dangerous fugitives,
domestic abusers, people like that, because the FBI had not
completed their work in the 3-day time allotted, that was an
increase of nearly 2,000 guns from 2016.
So the first question for you, Mr. Brandon, is how would
passage of H.R. 1112 impact the ATF's efforts to prevent gun
violence?
Mr. Brandon. So, thank you for the question. Obviously, I
am in the executive branch, and the Administration came out
with a statement of administrative position that they oppose
it. So I will just say that I can tell you what the consequence
would be if more time is allowed, say from Christine's folks.
So, obviously, the more time you have, the more time then
you have time to make a decision. I think transferring a
firearm is an important decision, but the consequence would be
that there would be less delayed denials for ATF agents to go
out and track down and getting these guns. Then the agents
would have more time--and I keep referring to it--going out to
capture the people that are shooting people, which is a smaller
number of people. We know how to do it with our intelligence-
led, risk-based, Crime Gun Intelligence Centers.
So that is the downstream. If there is more time, there is
less delayed denials, and that is just making a logical
inference of, the more time you have, the more time you have to
make a better decision.
Mr. Cartwright. Thank you, sir. I thought so too.
OK. So, when these loopholes are default proceed
transactions, in other words where the 3 days goes by and the
background check isn't done and the person gets the gun, do you
have to go out and collect these firearms or conduct an
investigation if the purchaser is later denied by the NICS?
DELAYED DENIALS
Mr. Brandon. Yes, sir, there is a process. We work hand-in-
hand and we act on those delayed denials within 48 hours, and
then they will get--if they meet these parameters for
prosecution for each judicial district, it will be referred to
the ATF field office.
First, they will try to just reach out to the person to see
if they will bring the firearm back to the Federal Firearms
Licensee, or transfer it to a non-prohibited third party that
won't reside with the person. If they don't, then it is, you
know, going out to retrieve the firearm from the person that is
prohibited from possessing it.
Mr. Cartwright. So, Director Brandon, this is not a pop
quiz and, if you don't have a ballpark off the top of your
head, I won't blame you, but do you have any statistics
regarding how successful ATF is at recovering firearms in
delayed denial cases?
Mr. Brandon. Sir, yeah, I won't guess at numbers, but I
will say that there was an OIG review a few years ago that
said, when we get the information from the FBI, it is 99
percent that the system is working accurately. And myself and
my team, we put a focus on these delayed denials and, God
forbid, like a Charleston, nobody wants that to happen. The FBI
and ATF, no organization wants to say, hey, the person got the
gun, they shouldn't have had the gun.
And I just want to comment, we have great relationships
with the firearms industry. A lot of the big box stores, even
though they say, yeah, we can do it, they make it their policy
not to transfer it until they hear from the FBI. So that is
something that we try to do within our authority just to share
things with them and, to be honest, I guess the margin of
profit on a firearm is less than the accessories that would be
sold with it, but it is not worth their headache to have a
public relations nightmare.
Mr. Cartwright. Understood. Thank you for that.
DANGER OF RETRIEVING FIREARMS
So I am delving into your world right now and I am kind of
imagining the picture, and I want to get confirmation from you,
if I can. Isn't that potentially dangerous where you have to go
out and retrieve a firearm that somebody that really should not
have got hold of a firearm in the first place has? You are
talking about dangerous people and retrieving their guns from
them that they never should have got; isn't that potentially
dangerous?
Mr. Brandon. Sure, sir, and it is analogous to the man and
woman in uniform on patrol, they pull over someone, they don't
know what they are going to be dealing with. Even though we
have the advantage of doing some work-up, you never know if it
is high risk, low risk. It is unknown risk. So it is dangerous,
inherently dangerous, retrieving a firearm from someone.
CHARLESTON LOOPHOLE (H.R. 1112)
Mr. Cartwright. That is what I thought. So wouldn't H.R.
1112 keep your agency from having to go through that exercise,
going out to pick up guns from dangerous criminals that can't
legally have them?
Mr. Brandon. Well, sir, like I mentioned, the downstream
effect where the people that wouldn't have to be doing that,
would be going out after the trigger pullers. So it would be
probably be even more dangerous, because we know these people
are actually pulling the trigger and shooting people.
But to your point, it would have less touch points with the
public if downstream there are less delayed denials.
Mr. Cartwright. So wouldn't this bill help your agency
devote its very scarce resources to other important
investigations and activities?
Mr. Brandon. Sir, whatever laws you pass, we will follow.
And then being, again, in the executive branch, you know, the
chain of command goes up to the White House and we follow our
marching orders, but we will always act within the
appropriations and laws that you pass.
Mr. Cartwright. And I want to ask the same question for
you, Ms. Halvorsen. Would the passage of H.R. 1112 eliminate or
greatly reduce the time and money that you need to spend on
sending out firearm retrieval referrals to the ATF?
Ms. Halvorsen. So just coming back on, obviously, surging
resources, we surge that so we can meet the 3-day window; it
would absolutely stop us needing to be able to surge resources
to meet that 3-day window. And as we work through the process,
right, any more time would absolutely assist in the process.
Mr. Cartwright. And it would save money too, wouldn't it?
Ms. Halvorsen. That, sir, I don't know. We would have to
come back and look at that on saving money.
Mr. Cartwright. Very good. Thank you so much.
I yield back, Mr. Chairman.
GAO REPORT: FIREARMS PROSECUTIONS
Mr. Serrano. A 2016 Justice IG order of the handling of
firearm purchase denials noted a big drop in prosecutions since
fiscal year 2013. A recent GAO report requested by this
subcommittee found that DOJ rarely prosecuted individuals who
falsify information, such as not disclosing felony convictions.
In 2017, of 112,090 denials, ATF referred 12,710 for further
investigation, resulting in only 12 prosecutions. In contrast,
GAO found three states that reviewed their denials that had had
a higher proportion of referrals and a high conviction rate.
GAO recommended ATF assess the use of warnings to
applicants who misrepresented their eligibility for gun
ownership rather than pursue prosecution in lieu of
prosecution.
Deputy Director Brandon, has ATF taken action on these
recommendations?
Mr. Brandon. Yes, sir. In fact, it was a year ago yesterday
that then-Attorney General Sessions sent a memo out to all his
U.S. Attorneys across the country, which, incidentally, they
have been crushing it with firearms prosecutions, but he
addressed that specific issue about lie-and-try. There have
been some U.S. Attorneys in certain areas of the country that
have increased that.
The numbers are still relatively small, but the percentage
looked like it is a high percentage increase. But I would like
to get back to the committee with those specific numbers to
answer your question regarding standard denials, which is when
the firearm didn't transfer, the person lied on the form, and
the U.S. Attorney's Office prioritized their resources to
maximize prosecutions of all the cases they have.
Mr. Serrano. Well, that is the thing. I can tell you that
in conversations amongst Members of Congress, not in a formal
setting, one of the concerns is the low prosecution rate as we
interpret it and as many in the press interpret it.
So did I ask you the right question or is there something
else we could be doing?
Mr. Brandon. No, sir. I could just show you, someone has
three violent felonies or a misdemeanor crime of domestic
violence, and we see that there is a standard denial and they
didn't get that, we will work with the U.S. Attorneys. And, to
be honest, the cuffs have been slapped on a few of them, you
know, recently I have gotten them through our notification
system.
So it has improved and I give Attorney General Sessions
credit for cracking the whip with the U.S. Attorneys, and they
are moving.
DELAYED DENIALS
Mr. Serrano. And could you tell us to what extent your
divisions use warnings in denial cases?
Mr. Brandon. Yes, sir. This goes into the regulatory
process, you know. At ATF, we want people to be successful in
their business, if they're operating legal businesses with
lawful commerce, but we can't be a capture component of our
regulatory component. So, unless something is really egregious,
like as far as a warning letter or a warning conference, it is
progressive to try to get them in compliance, but if they don't
and they fail to do that, we will go after their license.
We have done that and that is where we have a national look
at that, so we are consistent. Where one businessperson says,
hey, I was treated differently because, I was in Alabama,
another was in Pennsylvania. So that is why it was brought up
to the national level to be fair to these businesspeople.
GAO REPORT
Mr. Serrano. Now, the GAO report also showed a patchwork of
policies where each ATF field office and each U.S. Attorney's
Office had different standards for investigating and
prosecuting individuals who falsify information on their
applications and referring cases to state and local
authorities.
How can we do a better job coordinating these efforts?
Should we have someone overseeing these policies to ensure we
are all going in the same direction?
Mr. Brandon. Sir, one of the things which we established
with myself and my team is that every year the Special Agent in
Charge for the field division and whatever judicial districts
he or she has to certify that there is what the U.S. Attorney
will accept for these standard denial cases, and I think that
been helpful.
And the other thing in working with getting the information
from the FBI, collaborating, is how can we share this
information with state fusion centers. So it can be beneficial,
because you say, hey, you may not want to prosecute this guy,
but say he is a gang member, and he is trying to buy a gun, it
can be intel that can be used.
In past committees I have been asked that question, we went
back and worked as a team. And I really think that is a good
way of saying, instead of letting the information sit on
standard denials, you know, if they are not going to be
prosecuted, how do we share that in an intelligence capacity,
and that maximizes public safety and that is how we have
approached it.
GAO REPORT: FIREARMS PROSECUTION
Mr. Serrano. Now, do we know if different U.S. Attorneys
have different standards?
Mr. Brandon. Sir, I will have to get back to you. I was
going through a bunch. I believe, just my experience, I think
there are 93 judicial districts. I think it would be a
statistical improbability to say you have got 93 U.S. Attorneys
who are usually--whatever, you are Democrat or Republican, they
are usually spirited people and that they have to be consistent
across the lines, because they are all addressing different
things, and I know you know that, sir, with all your
experience.
ATF RESOURCES
Mr. Serrano. So here is the question you love to be asked.
Would additional resources enable ATF to pursue more
prosecutions of individuals who falsify or misrepresent their
status on Form 4473, which is the firearms transactions record?
Mr. Brandon. Yes, sir, obviously more resources would lead
to potentially, more but--and, again, it all goes back to what
gets prosecuted. And with our limited resources, to be candid,
I have been saying, if we are not in step with the U.S.
Attorney, we are out of step with him or her, because we don't
want to waste our time investigating something that is not
going to get prosecuted. So, you know, front load it, you know,
work as a team, work with our partners, and have maximized
value to the American taxpayers to say, hey, go after the
violent people that are wreaking havoc, particularly in the
inner cities and other areas of the country. I don't want to
leave out rural areas, but we could do more with more, sir.
And I don't want to beat a dead horse, I believe I said
what I said to Mr. Case, on behalf of the men and women of ATF,
who I am very proud of.
FIREARMS TRANSFERS
Mr. Serrano. Firearm retrieval is a term used by NICS for
the action recommended after a background check is unresolved
within the 3-business-day time frame, and an FFL proceeds with
a firearms transfer, but subsequently learns that the request
should have been denied, the NICS section then notifies ATF
that a prohibited person is in possession of a firearm and ATF
can undertake action to retrieve the firearm.
In 2017, 6,004 referrals for retrieval were made to the
ATF, but the NICS section and ATF assessed that in 1,140 of
these cases the transfer was undetermined.
What does transfer--what does that mean, transfer
undetermined?
Mr. Brandon. Sir, I think it is, we will get the
information from the FBI saying, hey, the firearm was
transferred, it is a delayed denial. The branch that is in
Martinsburg, West Virginia that looks at this for ATF will have
all the documents for each judicial district to say look at the
criminal history. Here is what I am fairly confident in saying.
Say the guy had a dope conviction of under 25 grams of cocaine
in 1980, nothing else, would the U.S. Attorney's Office
prosecute? I would be 99.9 percent accurate, absent any other
intelligence, that it would say, hey, refer that to the
division to be looked at to investigate, because that is the
filter. Because there is such a volume--it is a prudent step.
But say it comes back going, hey, guess what, this guy has a
misdemeanor crime of domestic violence, he whooped the hell out
of his wife or former partner and everything like that, and
that was only 12 months ago or 6 months ago. Get that thing to
the division, you know, and let's go get that gun from that
guy.
The U.S. Attorneys--when you have that type of threat to
public safety, they will go after them, but that is the type of
filter, sir, that has happened, and that is why the numbers go
down to what goes to the field.
Mr. Serrano. One last part to this. Does ATF have a
responsibility to confirm that a prohibited person has not
taken possession of a firearm in such cases?
DELAYED DENIALS
Mr. Brandon. Yes, sir. I mean, the delayed denial will
indicate that they did take possession of it, and then we will
work to make sure that, like I said, they can return it to the
gun shop, turn it over to a third party that is not prohibited
and not cohabitating with them, or that we will go and get the
firearm from them.
Mr. Serrano. Thank you.
Mr. Aderholt.
Mr. Aderholt. I have got one more question for Director
Halvorsen, before I go to Director Brandon.
FIX NICS ACT
What has the FBI done to ensure that it is complying with
this 60-day requirement on the Fix NICS Act?
Ms. Halvorsen. Thanks for asking that question, because it
has been a big effort at CJIS that they are actually very proud
of and that they have worked very hard. And so we have actually
moved resources from one other area of CJIS over to this group
and they have actually automated a significant amount of the
process, and because of the automation that we have put in
place and some technical enhancements, they are able to get
through the backlog and with the new cases coming in every
single day--usually within a 45-to-48-day time frame.
NATIONAL INTEGRATED BALLISTIC INFORMATION NETWORK (NIBIN)
Mr. Aderholt. Of course, it was back in 1999 that the ATF
established the NIBIN, which provides federal, state and local
partner agencies an automated ballistic imaging network. And I
notice that NIBIN's programs can be expensive and not every
district has a NIBIN site.
What is the key goal of NIBIN? And that would be for you,
I'm sorry, Director Brandon.
Mr. Brandon. Thank you, sir. I thought it went to the FBI
for a second.
Mr. Aderholt. Yeah, I was----
Mr. Brandon. So the key goal of NIBIN is, again, like I
mentioned, it is to identify the people that are pulling the
trigger--and this is where law enforcement, I believe, more so
at the local level, but us as federal partners working, we used
to target whole areas in a neighborhood. And, to be honest, you
can go in there and, you tick off a lot of the people, you
know, because they think, hey, why are you focusing on this
area and me?
What NIBIN helps us do is drill down to the small numbers
that the locals know better than anyone of who is pulling the
trigger, because it is a smaller percentage of criminals that
are actually doing the shootings, and NIBIN gives you that
critical lead. We have tried to maximize the use of NIBIN. The
Phoenix PD, a wonderful PD that uses NIBIN, they open up other
PDs in the suburbs to come and submit casings to them. So it is
a cost-efficient way and it can relate shootings that may
happen in Chandler, Arizona and Phoenix, Arizona, sir.
VIOLENT GUN REDUCTION STRATEGY
Mr. Aderholt. OK. Can you talk a little bit about why it is
vital to overall violent gun-reduction strategy.
Mr. Brandon. Yes, sir. And, again, I mentioned about our
Correlation Center and if I can--I know time is short, Mr.
Chairman--someone pulls a trigger on a gun, a semi-automatic
pistol, and a casing comes out. What's critical for the police
chief, he or she makes it a policy, and not just policy, but a
changed culture--I have been around where if no one is shot,
they clear the run, they move on, and the casings could be
still lying in the street. You have a comprehensive collection
plan of those casings. Those casings go into NIBIN. Someone
doesn't know the shooting and all of a sudden, there is someone
that is dead or there is a non-fatal shooting. It could match
that up.
We have used it as a leads generator which is the game
changer. We were critically faulted by Sam Houston University--
it was funded by a Bureau of Justice Assistance study, I think
in 2012--12 months to 18 months--the information is not timely
relevant and actionable. We have changed it down to 48 hours
through the Correlation Center and with these PDs
comprehensively, picking that evidence up in there.
So, to answer your question, it is a vital technology,
along with our Crime Gun Intelligence Centers, with e-tracing,
and with other technology that can help us find the casings--
they call it gunshot detection technology--I call it like the
fish-finder, and so forth. You put all of that together, sir,
and I think it is what you all want. Hey, find the people that
are really doing the shootings and that will have the most
value for your limited resources to take these people off the
street. And we don't care--state, federal--they are the ones
causing harm on everybody.
GROWTH IN COMMERCE OF FIREARMS AND PERMIT PROCESSING
Mr. Aderholt. ATF's work has seen a significant increase
due to the expansion and growth of commerce within our
industry, as you noted earlier, and, certainly, I commend ATF's
effort to establish the e-forms, which is the electronic filing
process to help reduce submission and processing times, as well
as data-entry backlogs. And I believe Congress provided a
combined 23 million in fiscal year 2018 and fiscal year 2019
for activities at the national--of the National Firearms Act
Division to continue improving the processing of the Act's
application to further develop and implement ATF's next
generation of e-form systems.
E-FORM FILING
Can you give us an update on the improvement to the e-form
filings process and to the reduction in the processing of
backlogs.
Mr. Brandon. Yes, sir, and thank you for the question. I
want to stress, because we have our criminal enforcement side
and we have our regulatory mission of firearms and explosives
industries, and we are sensitive to that equally as well, so we
appreciate that funding. One of the things we did with the
appropriations you gave us, is that we put it on contracts
because in order to expand the electronic forms and the speed,
we had internal IT issues. And so, we have gone to the cloud.
It is posted on the ATF website, but I can have it provided to
the committee on the waits. I think now for Form 1, we are down
to a month. When we were shut down, we were prohibited from
acting on any certain forms unless they are related to the law
enforcement, military, or to our government contracts.
So, we had our wait time down to five months. It is gone up
a few more months, but our goal is to get that down. But we
also did a look at the touchpoints on how we can be more
efficient and effective. So, with this money, we saw an IT
issue and now we have contracts that are going to help us speed
up the reply from NFA for the fingerprints and so forth, that
we can have this down to days instead of months to wait, and
that is what those funds are doing.
With the CR & A team, we were not able to put them on
contracts right away so they work now on it from the 2018
money. But, that will help speed up us processing those forms
and we thank you for that attention.
NATIONAL FIREARMS ACT
Mr. Aderholt. Can you describe just briefly how the
National Firearms Act restricts the sale and the purchase of
firearms.
Mr. Brandon. Yes, sir. Guns are a sensitive issue, but 1934
was the enactment of the National Firearms Act. So, it was
machine guns, silencers, you know, the old tommy guns, and
Congress, you all ruled and said, Hey, we want to regulate
this. So, that is where we have the person's name. We have
their address. We have the make, model, and serial number of
the firearm, and there is a picture and photographs that come
along with it, and the person can't get that firearm until that
is approved and then they can't even transfer that firearm to
someone else unless it is approved. So, that is how the
National Firearms Act works and it is for those items that
Congress declared exceptionally risky to public safety: machine
guns, silencers, short-barreled rifles, and short-barreled
shotguns.
ACTIVE SHOOTER INCIDENTS
Mr. Aderholt. You, as we all know--and it is very
unfortunate Americans have increasingly faced incidents of
indiscriminate violence in schools and shopping malls and other
public places. Can you elaborate for just a moment on efforts
that the ATF and the FBI are involved with to help minimize and
respond to when there is an active-shooter incident.
Mr. Brandon. What is the response?
Mr. Aderholt. Yeah, just how you can help minimize or how
you all help respond to those particular instances.
Mr. Brandon. Sure. Well, one of the things that I am very
proud of, is that we established an internet investigation
center dealing with firearms commerce over the internet, people
doing illegal things, and so forth. A byproduct of that, sir,
is that our folks became good where they detected information
about potential school shooters or other acts of violence. We
don't publicize it, but we immediately share the information
with the locals and just within the last few months, I think I
have had two or three that have come up to me and I tell our
folks, hey, jump on it.
And I have to say, the locals are happy when FBI, ATF, and
the U.S. Marshals respond to scenes together. That is the DOJ
response now and I think we have really improved on that for
the better. But I just share that, sir, because you asked about
threats to school safety or workplace violence. Our
investigation center, they have developed an expertise and we
share it with everybody rapidly, to answer your question.
Mr. Aderholt. Ms. Halvorsen?
ACTIVE SHOOTER INCIDENTS CONT'D
Ms. Halvorsen. Thanks for the question. We are making a lot
of steps. I mean, it really comes down to partnerships and
sharing intelligence, and if we are all sharing the
intelligence, together, we can put the pieces together a lot
quicker to try to stop these events from happening.
And those partnerships, over the years, have changed. You
should not be meeting someone for the first time in your
community, right, especially a law enforcement partner the
first time on an active-shooter situation. You should be
training together, which we are doing with our law enforcement
partners and also our federal partners. You should be having
active-shooter plans together and meeting together, and that is
what we, as the FBI, have been doing throughout the different
communities through our SACs.
NICS
Mr. Aderholt. I think it was you, Director Brandon, you
mentioned that it is important to prosecute individuals who lie
on their 4473 forms, and if a person is denied the ability to
purchase a gun because the NICS indicates that they are an
illegal alien, do you think that the individual should be
prosecuted and this information be transmitted to the law
enforcement partners at ICE, due to the danger of criminal
alien groups like we have seen with MS-13?
Mr. Brandon. Sir, that is a great question. And if it
doesn't get prosecuted at the district level by the U.S.
Attorney, based on their parameters I will give you an example.
The southwest border, our folks in Phoenix, Arizona, have taken
that information and they share it with ICE. If they are going
for an immigration hearing, we want you to know that this
person tried to buy a firearm in this state.
So, that is where--hopefully, I am answering your
question--is that we are trying to maximize that standard
denial intelligence that we get in knowing they will say, oh,
we are not going to get prosecuted, but what can we do? And we
are putting it through the state fusion centers and at local
levels, again, where you have immigration issues, we will share
that and they can use it as they see fit.
Mr. Aderholt. So, the bottom line is they should be
prosecuted, so absolutely.
Mr. Brandon. Yeah, so, MS-13, I hate them, right? In going
after MS-13, we do that. The FBI does that. We are working
hand-in-glove locking up MS-13 gang members that are shooting
and chopping people and everything like that. I don't know what
your political stripe is or whatever, but how could anybody
argue against that?
Mr. Aderholt. Thank you, Mr. Chairman.
Mr. Serrano. Mr. Case.
Mr. Case. Thank you. Ms. Halvorsen, Fix NICS, status of
implementation and do you have the adequate resources to fully
and timely implement?
Ms. Halvorsen. So, we have already been implementing Fix
NICS for months now. We are obviously, as I testified to
earlier, within that 45- to 48-daytime window on the appeals,
which is under the 60 day mandate, and part of that, too, is we
have hired contractors to help us, as well, which I forgot to
mention. They go out and get dispositions for us that we
haven't been able to get and they research dispositions to fill
that void of dispositions, as well, through the resources there
to adequately address that process.
As far as working with our partners, I mean there are a lot
of partner agencies involved here with Fix NICS, including our
local, state, and tribal partners, right, and our federal
agencies.
Mr. Case. What's the status of the implementation plans at
the state level?
FIX NICS: STATE LEVEL
Ms. Halvorsen. So, at the state level, we are still working
with each state individually and their plans are due back by
March 25th, next week or the week after----
Mr. Case. I see.
Ms. Halvorsen [continuing]. And so, we have some of the
plans ready, and we are working with each individual state and,
actually, each individual municipality, because everybody is
different on what stages they are at, so everybody has
different needs. So, we have plans with each one of those to
address----
Mr. Case. Do you feel that you are adequately resourced to
implement fully, timely right now?
Ms. Halvorsen. So, the FBI is addressing it with the
adequate resources that we have. It is whether the local----
Mr. Case. That is the diversions from other places?
Ms. Halvorsen. No, actually, these were----
Mr. Case. Internal?
Ms. Halvorsen [continuing]. Part of the--bodies that we
received in fiscal year 2019 that we have helped put over
there.
APPROPRIATION RIDERS
Mr. Case. OK. And then, let's see, going back to kind of my
appropriation-rider set of questions, I think there is one that
is appropriate for you which is a rider requiring the
destruction of records of background checks through which the
buyers are approved within 24 hours of approval. So, then, is
that correct, as a matter----
Ms. Halvorsen. I'm sorry, can you repeat that. A rider?
NICS
Mr. Case. Background checks have to be destroyed within
20----
Ms. Halvorsen. If they are proceeded.
Mr. Case. Pardon?
Ms. Halvorsen. If they are proceeded.
Mr. Case. Right. Within 24 hours.
Ms. Halvorsen. Yes, I'm sorry.
Mr. Case. Do you have any concerns with that? And the
scenario that sometimes I think about, and others do as well,
is, fine, the background check is destroyed. You have got a
concern over a particular person and you want to know whether
that person has actually purchased any firearms within recent
history. Is the destruction of that background check a
hindrance from knowing that?
Ms. Halvorsen. So, we are just following the legislation as
it is passed.
Mr. Case. I understand, but I am asking you whether you
think the legislation is or should be continued as an
appropriations rider or otherwise from your perspective on
adequately figuring out whether somebody is a risk.
Ms. Halvorsen. Yeah, I think that is a discussion we have
to have further about it with also our other agency partners,
because it is not just an impact on the FBI; it is an impact on
all the partners if that is changed.
Mr. Case. Do you have a view on that?
Mr. Brandon. Sir, I am going to have to defer to the FBI.
Mr. Case. Wait a minute, you can't both defer to each
other. I'm sorry, somebody has to answer the question.
Mr. Brandon. No, I feel what you are saying is, this is the
law, we follow it. But the general theme is, if you have more
time and access to information, can that be for making better
decisions or leading to investigations?
Mr. Case. But just having information that is no longer
available that may be relevant in a particular situation; that
is what I am concerned about.
Mr. Brandon. Yes, sir. And that is where I would think it
would be a healthy discussion for all of you. I will just say
when I make a decision, when I have proper information and I
have enough time, I usually make better decisions.
APPROPRIATION RIDERS
Mr. Case. OK. And then, Mr. Brandon, I am going back to my
original question on the appropriations riders that I think are
in your bailiwick. So, I have got a couple here that have been
accumulated over recent years. Again, these are riders that you
are functioning under right now. One does not require gun-
dealer physical inventories, as I understand it. Another
hinders or also disallows you from working with other federal
agencies in certain areas. One does not allow you to create
searchable database of records. And I think the third one that
I think you may be talking about, which is not pursuing
multiple gun traces to look for patterns, are you familiar with
all of those restrictions and do you have a view as to whether
any of them should be repealed?
Mr. Brandon. Sir, what was the first one?
Mr. Case. OK. I have got--the first one says, no
requirement of physical inventories for gun dealers.
Mr. Brandon. Sir, like you said, it is an appropriation
restriction. It becomes like law. We abide by it. I just share
that, you know, people are operating legitimate businesses and
if you are operating a businesses to stay in business and
maintain an inventory, that would be something I think that you
all should discuss.
Mr. Case. Yeah, OK. The second one, as I understand it--and
I may not have the deals--restrict your ability to work with
other--coordinate your efforts with other federal agencies. Are
you familiar with that one?
Mr. Brandon. Sir, are you talking about trace information?
APPROPRIATION RIDERS CONT'D
Mr. Case. I think trace is separate from this particular
area. If I don't have adequate information, then I----
Mr. Brandon. I don't know of anything that prohibits us
from working with any law enforcement organizations--state,
federal, local, or tribal.
Mr. Case. OK. So, let's then, take the trace information
restriction. Can you speak to that?
Mr. Brandon. Sure. I think it is the Tiahrt Amendment.
Actually we were a supporter of it because we were afraid of
undercover investigations and undercover agents, in particular,
being jeopardized and hurt because that information could be
subject to Freedom of Information Act requests. The historical
record on that is we support that.
Now, we share trace information with law enforcement
agency. They get it. What they do with it, it is their
decision; we leave it up to them to make the proper decision of
who they share that with. But that is something that has been
beneficial to prevent some long-term undercover investigations
on gun trafficking and going after store purchasers--and
undercovers dealing with them--that could be compromised if it
wasn't protected information.
Mr. Case. OK. Thank you.
Mr. Serrano. Mr. Cartwright.
Mr. Cartwright. Thank you, Mr. Chairman.
ATF'S RESOURCES
Mr. Brandon, you expressed unequivocally the point that ATF
is underfunded. And you are not the first one on Capitol Hill
to say that recently. The House Judiciary Committee held a
hearing on H.R. 8 on February 6th of this year and there were
several witnesses who testified that ATF is not properly
funded. In fact, one law enforcement witness said it was an
open ``secret'' in law enforcement that ATF was--is
underfunded.
I have read your testimony and it is to have been me that
you are trying to take ATF in a new direction with respect,
particularly, to technology- and intelligence-based policing,
in fact, you just mentioned internet investigations.
This Congress is clearly motivated to address violent gun
crime in this nation and I want to make sure that as we pass
common sense gun-safety laws, we properly enforce--we properly
fund the agencies tasked with enforcing those laws. The
question is, I'd like to hear from you, what could be done with
another twenty-five, thirty-five, $45 million dollars in your
budget and how would you prioritize the use of those additional
funds?
Mr. Brandon. Well, thank you, sir, for the question. Like I
mentioned, we have robbed Peter to pay Paul, as far as the
Correlation Center is concerned--You hit the point and from my
statement, myself and my team, we have really worked hard to
say, where do we bring value?
The Police Foundation did a report in 2016, actually, for
the new Trump Administration coming in, in 2017. The number one
thing that the major city chiefs wanted was NIBIN. The second
thing was eTrace. The last thing that they wanted was what we
were doing, or the surges or enhanced enforcement initiatives.
They don't want a flash in the pan; they want sustainability
and we knew that, and that is where we have pivoted as a team.
So, to accomplish those objectives, for instance, in 2019,
we couldn't buy any government cars for our employees. We had
to cut and we delivered for the Administration, as we should,
because, again, they were being supportive. But we knew these
$40 million in cuts in 2019 were not sustainable and now we are
going into 2020, and I don't want to be technical, but when the
2019 budget was being formulated, the CR was still going on for
2018. So, they started with a number that was 20 million lower
than what we got, and so, we were already in the hole and
digging out.
So, I am not an alarmist by nature, and I am fiscally
conservative, but I wouldn't be doing my job speaking to you
distinguished folks if I did not rightfully say that ATF needs
to be funded. And I think it was Art Acevedo, (phonetic)--he is
the police chief and now the head of the major city chiefs that
mentioned that. We are a good investment.
NICS
Mr. Cartwright. All right. Thank you for that.
And, finally, I am also concerned with a situation that
occurred recently in Aurora, Illinois, in which a man killed
several co-workers with a firearm that he ``legally'' purchased
years earlier from a gun store. And I say ``legally'' because
that sale never should have happened, based on the shooter's
1995 felony conviction in another state.
Now, Illinois conducts their own background checks and
apparently, they missed the conviction from the other state in
their query of the shooter's criminal history in 2014. The
State even issued this man a firearm-owner identification card
prior to the sale, further demonstrating this flaw in the
system.
My question is, do either of you have any information
regarding the number of times a person with an alternate permit
or other state firearms purchase card successfully purchased a
firearm when they would or should have failed a standard NICS
background check or even a state-run background check?
Ms. Halvorsen. Obviously a tragic situation that happened
there, but we don't have the data right now. We would have to
go to each individual state and get that data and compile it
for you.
NICS CONT'D
Mr. Cartwright. OK. Same answer?
Mr. Brandon. Just so you know, when he got picked up, it
was because he went for a CCW permit to carry a gun and it was
the fingerprints that I needed and I think what happened was it
showed the state system--I think it was Mississippi--they did
not have the records from the FBI to be able to alert them.
Mr. Cartwright. Would it not make sense to require a state
that issues an alternate permit periodically to update the
record via a comprehensive background check, and if so, do you
have any recommendations as to what the interval should be for
those updates?
Ms. Halvorsen. Again, when we do the checks, right, the
information is only as good as what is in the systems and what
we have from the states. So, we, again, work very hard to try
to get them to update their information as we see it when we
conduct audits in our system and we feel that that information
needs to be updated, and so, that is how we go about making the
decisions----
Mr. Cartwright. The question is, it is one of those ``what
should be'' questions.
Ms. Halvorsen. So, the more information you have and the
more time you have to make the decisions, the better off the
decision is going to be.
Mr. Cartwright. Do you agree? Would it make sense to
require updates like that?
Mr. Brandon. Yes, sir. I know that we accept, and I think
it is by law that if someone has a--are updating that to make
sure, should that person still have that, they could go ahead
and get it done and they wouldn't have----
Mr. Cartwright. So, it would make sense to require updates.
Do you have a recommendation on how often?
Mr. Brandon. No, sir. I just think that anything that you
all decide that tightens things up to make sure that the proper
people get firearms and the ones that don't, don't----
Mr. Cartwright. All right. I thank you both.
I yield back.
Mr. Serrano. Ms. Kaptur.
Ms. Kaptur. Thank you, Mr. Chairman. I apologize I am late.
I had other activities outside the building I had to take care
of this morning.
Let me say to Directors Brandon and Halvorsen, you both
have such impressive backgrounds. Thank you for your service to
our country.
And I have to say to Director Brandon that I noted your
work in Detroit and your degree from University in Michigan--
Oakland--in Oakland. These are areas just 20 minutes from my
district in Toledo. So, you have seen--you have both had
tremendous experience.
My question really goes to--first of all, you have my
support and probably more support than you want--but I am
interested in patterns of criminal activity. Probably one of
the most important books I have read is by Sam Quinones,
Dreamland, because I was trying to understand the drug trade in
much more depth.
And, generally, when something horrible happens, whether it
is ISIS-related or whether it is a gang-related crime, there is
a story in some newspaper somewhere in the country and they
report on that. But I am interested in patterns, patterns of
criminal activity.
PATTERNS OF CRIMINAL ACTIVITY
And so, I am going to ask you in two areas, if you could
comment on this and anything additional that I could do to help
you collect the data and interpret it to guide us. Obviously,
Northern Ohio is a big concern of mine--I represent it--and we
have a lot of crime, a lot of gun activity, and I don't believe
that some of it is just isolated.
So, first, in terms of major shootings in this country that
have occurred going back, let's start with something like
Virginia Polytechnic where we lost a lot of innocent people and
the perpetrator was mentally ill or we go to Sandy Hook--same
thing. If I were to ask you to go back into your database and
to string together the crimes that were major crimes like that
and the gun, the weapon, is there a pattern that we can follow
that would tell us something, especially when they are mentally
ill, of what happened, rather than just an incident or
something like that? Is there something about where we can
learn about where they got the weapon or what can this pattern
of continuing murder across our country, what do you know,
maybe, that hasn't been organized in a way to educate the
public?
So, I am very interested in mass murder and mental illness
and guns and I am very interested, particularly from my region,
in gang-related violence with guns and the drug trade. Ohio is,
unfortunately, at the top of the list in terms of the number of
deaths per capita. So, we have plenty of evidence of what these
individuals are capable of doing. But it tendency to be
reported incident by incident by incident and you don't get a
sense of, well, where's most of it coming--where did the gun
come from or guns come from and who are these individuals
connected to?
Do you have any ability to create some order in our minds
in either of these important areas, either gang-related crimes
with guns or mental illness and guns going back, and help us
understand the guns and where they came from, and how to--do
you have the ability to do that in your data system?
PATTERNS IN CRIMINAL ACTIVITY
Ms. Halvorsen. I love the way you are thinking and where
you are going with this and you think big picture, and these
are conversations that we have all the time, especially on
intelligence-driven organizations on how do we address this,
right, how do we address all the threats that are coming at us?
So, one of the things that the FBI has worked towards with the
Unified Crime Report system that we had for years, was always
summary-based reporting, meaning that a summary would be
written on the crimes in nine categories and it would just not
really have a geographical or any breakdown on what types of
crime.
The other problem with the Unified Crime Reporting was if
it was an assault with, you know, a break-in and a trespass,
right, the highest crime there would be the only one that would
get reported; you wouldn't get both. So, you wouldn't know that
a robbery actually caused the assault or the assault caused a
robbery. You had no idea.
NIBRS
So, now, we have gone to the National Incident-Based
Reporting System, the NIBRS system, which we are still working
through, and by January 1st of 2021, all our local and state
partners are going to be contributing into the NIBRS system, we
hope. We are working with it right now.
Ms. Kaptur. Is that in Ohio?
Ms. Halvorsen. Yeah. And we are working with all----
Ms. Kaptur. Toledo?
Ms. Halvorsen. We are working with every single state to
report into NIBRS. Some are further along in the process than
others, but NIBRS is incident by incident, and what we have
seen is that the law enforcement agencies that have been able
to come onboard sooner into that system are now able to
reallocate their resources much more quickly to the areas of
violence that are occurring because they have an incident
breakdown. We have actually created a web interface.
Before, they had to wait until we issued the report. Now,
every day they can go into one of the statistics they are
reporting and actually use it as a tool, themselves, and run
their own statistics. They can even use it at roll call to
determine where they are going to allocate their resources that
day.
So, what we have seen is that it is been very, very
instrumental to strategically go after the threat instead of
waiting for the summary report to come out, you know, twice a
year or once a year.
Ms. Kaptur. Each member, I mean, we know our districts, and
it would be very interesting, to the extent that you can help
us understand--unwind what's going on there. We are not going
to ask for confidential information, but right now it is so
diffuse.
I ask myself, as a member, you know, how can I help my
local sheriffs? How can I help the local chiefs of police? What
can we possibly do to--and with the young people with these
guns, I am saying to myself, Where do they--how does all this
get in here? And I just don't have a clear path because right
now--so, it'll take till 2020; I hope I am still here--but I am
concerned about the lack of focus, and maybe it is just held by
law enforcement be officials and we are not allowed to know all
that.
But I just don't feel that we are doing enough, certainly,
in the mental illness area. You never read a story where you go
back 20 years starting with when Russell Weston came into the
Capitol here and killed two of our police officers and tried to
get in the majority leader's office and all that, and it is
like a story and then it fades.
But what if you piece together all of them, what is it
telling us? I think there is something there that is a bigger
message that we need to understand and I don't think we have
it.
CJIS
Ms. Halvorsen. So, I would absolutely invite you to come
out to CJIS, just to sit down with our folks who gather the
crime-specific data, and let them walk you through the process
of how they do that and the relationships we have with our law
enforcement partners and how they use that information and
also, to walk you through the intelligence, how we use intel to
drive those operations, as well.
Ms. Kaptur. Can I listen to Mr. Brandon, Mr. Chairman?
Might I have an additional 30 seconds to listen to his reply?
Thank you.
Mr. Brandon. Thank you, sir.
CRIME GUN INTELLIGENCE CENTERS
Ma'am, I have a specific answer to your question. It is our
Crime Gun Intelligence Centers. We have established these, and
exactly what you are asking for, that is what we have drilled
down on. What Mr. Cartwright observed is we are using
technology and intelligence and working collaboratively with
our law enforcement partners to go after the trigger-pullers--
who is pulling the trigger--and who is supplying that trigger-
puller with the firearm, and we call them a trafficker. So, it
is the two Ts; the trigger-puller and the trafficker. Our Crime
Gun Intelligence Centers have been uniquely designed to answer
your question.
We would be happy to give you, with respect of time,
separate presentations. We invite you all down to our
Correlation Center in Huntsville, Alabama. But exactly what you
are asking, we have been working at it.
Ms. Kaptur. I have to go to Huntsville to find this?
Mr. Brandon. No, we will come to you or we will go
wherever. What's wrong with Huntsville?
But I share that, ma'am, because that is where we are
providing a service to the police departments, I believe, in
your jurisdiction, that can get that correlation service.
Because, as you know, you go into whole neighborhoods and you
say, hey, we are going to target it, and you tick a lot of
people off, innocent people that may just be living there
because that is where they live, instead what you are asking
is: Who is shooting people and how are they getting the guns?
That is what we are solving in Crime Gun Intelligence Centers.
So, thank you, Mr. Chairman, for letting me have that time.
Mr. Serrano. Mr. Crist.
Mr. Crist. Thank you, Mr. Chairman. I want to apologize,
too. I had a conflicting committee meeting and apologize for
running late. Thank you for running this hearing.
Thank you, Ms. Halvorsen for being here and Mr. Brandon. I
appreciate your presence today and what you do and your service
to our country.
My home state of Florida has been devastated in recent
years by gun violence and mass shootings. In both, the Pulse
nightclub and Parkland High School mass shootings, neighbors
and co-workers were warned--warned, rather, the FBI.
The Pulse shooter was openly sympathizing with terrorists
at work. His co-workers called the FBI tip line. The FBI opened
an investigation and put a tail on the individual, but nothing
became of it. Then he illegally bought a weapon and used it to
kill 49 people and wounding 51 more, many critically. For them
and for our state, particularly in the Pulse situation, the
LGBT community and the Latin community, the wounds will never
heal.
There were multiple warnings about the Parkland shooter.
His YouTube comment about becoming a school shooter was
reported to a local FBI field office. One month before the
shooting at Marjorie Stoneman Douglas, a young woman who knew
the shooter, called the FBI tip line and for the next 14
minutes, provided specific details about the shooter, talking
about animal mutilation, severe temper, violent threats,
stockpiling weapons, social media, all in a transcript.
He killed 17 people six weeks later, including 14 high
schoolers. The Stoneman Douglas kids changed this country. They
demanded that we put the lives of our children, the lives of
their friends and loved ones first. They should not have had to
be because Parkland never should have happened.
With both Pulse and Parkland, the FBI was alerted. In both
cases, that did not stop it. What exactly went wrong? And I
want to know the failures that occurred in the Bureau, how your
policies and procedures have changed, and where the failures in
our laws gave these two monsters access to weapons of war and
what this committee can do to support you to make sure that
these kinds of things don't happen again, please.
MASS SHOOTINGS
Ms. Halvorsen. So, very tragic events. And in my 23 years,
I actually worked gangs in New York before I came to
headquarters, and so I saw a lot of this, right, throughout my
whole entire career and then worked counterterrorism right
after 9/11, as well, so I have seen a lot of this. So, my heart
goes out to the families and having been on the other side of
having to tell families and victims and working through all
that, right.
And so, we continue to work with the Parkland families. It
is the men and women who work in CJIS who answer those calls--I
gave statistics earlier--they handled 655,000 calls last year
and 755,000 e-tips that come in. Not every call is a threat to
life, but they have to go through each call to figure out if it
is a threat to life.
We have changed all our procedures since Parkland to work
through that. They have gotten enhanced training. They get
threat briefings now. They get briefings on how to handle
potential school shootings. They have gotten new standard
operating procedures that they are operating by. We have more
supervisor review. We have implemented new procedures in the
chain of approvals and how to get through those approvals. We
have technology enhancements that enables them to get the
information to their fingertips a lot quicker, and we are
actually working to get the information out to the field
offices very quickly and have implemented procedures on top of
the field offices on how they are handling those threats that
are coming in, to work with our partners and our fusion
centers, as well, to get the information in the action
officer's hand.
And that is why in my opening statement, I don't talk about
an FBI agent, you know, who gets information. It is an action
officer who can action that information very quickly, that we
are working towards.
And so, we have put all those procedures in place and
continue to work in modifying our processes as the threats
happen. We don't want any of these to happen anymore, either.
This is what we have worked so hard for. This is why we joined
the organizations that we did: to keep the public safe.
And every time something like this happens, it kills us
inside, as well, and we strive harder and harder to make sure
that it doesn't happen.
FBI RESOURCES
Mr. Crist. Is there a specific goal or amount that you
would like this committee to help provide you in order to
further prevent these things from happening? Have you thought
about that?
Ms. Halvorsen. Yeah, and it goes to the question that you
posed; I really would love for you to come out to CJIS and sit
with these people who are taking these calls every day and
going through that to see, really, what they are dealing with
on a daily basis and how they are going through it so you have
that education.
I have been out there now for two months as acting
Assistant Director. I have been in the Bureau 23 years. It is
my first experience out there. I knew they did great work, but
they do amazing work every day. As a matter of fact, just this
weekend, we actually referred a threat-to-life issue to our Los
Angeles Field Division. Within an hour time frame of receiving
it, they--it was an individual who was making threats online--
quickly identified, through getting a 2307(d) order who that
individual was online. Then they went out to the house and
found out that person had mental illness issues and was off
their meds, right, and they were able to stop this person from
committing violence before it even happened and was able to
work with the family to get this person the treatment that they
needed.
They are doing things like that every day, and so it would
be great for you to come out and see the work that they are
doing and the changes that we have made and where we are going.
And especially from your constituency, coming out there and
saying, well, this really doesn't work because this is what
they told me, it would be great to get your feedback, as well,
on the work that we are doing out there, as well.
MISSION OF ATF
Mr. Crist. Sure. Thank you very much.
And, just briefly, Mr. Brandon. You are at ATF. How would
you describe the primary mission of your agency?
Mr. Brandon. Sir, we are guns. It is about 82 percent of
our budget, as far as enforcing the federal firearms laws. We
also, I guess the catchy phrase--bang, boom, and burn--you
know, where it is most people don't realize that we are
involved in arson investigations. We have the Federal Fire
Research Laboratory, the only fire research asset in the
federal government, and we support our federal, state, and
local partners, and tribal partners with that.
But our main mission is violent crime; particularly,
firearms--violent crime related to firearms or criminal acts of
arsons or criminal bombings. Obviously, whenever I hear you say
the T-word, our role is to be no better partner to the FBI
dealing with terrorism, and so I think that the ATF and FBI
have made strong progress and have a great working relationship
that benefits the American people. It is the public first.
Mr. Crist. Yes, sir. So, is it safe to say, then, to
summarize, that it is your mission to primarily prevent violent
crime by the usage of guns?
Mr. Brandon. That would be our primary mission, sir, yes.
ATF RESOURCES
Mr. Crist. In the--how much money do you need more to do
that, and then I am done?
Mr. Brandon. About 60 million.
Mr. Crist. Did the president recommend that?
Mr. Brandon. Sir, I don't know, and you know, I salute to
the administration. I am here testifying under oath and being
honest. Like I said, you cut fat. You say we are cutting at the
muscle; we are cutting at the bone. That is the truth with the
ATF.
Mr. Crist. Thank you, Mr. Chairman.
DEFINITION OF ``UNDETERMINED''
Mr. Serrano. Thank you. A couple more questions. First of
all, I admit to the guilt of having try to invent a new word.
The word is ``undetermined,'' but that has actually brought us
to yet another dilemma we have, is that we still don't know
what undetermined--transfer undetermined means. Does it mean
the fact that the transfer or does it mean eligibility of the
purchaser? I mean, what does transfer undetermined mean? We
don't want to leave this hearing not knowing what that means.
Ms. Halvorsen. Just from the FBI's perspective on that
question, when we have a disposition--when we have a delay
queue disposition come back and we are able to make the
determination that that person should have been a deny and then
we refer it over to ATF. If it is after that 3-day time window
from the 4 to 30 days, they have the ability to purchase a
weapon during those 4 to 30 days. At day 31 they have to come
back in and re-apply, so from the 31 to 88 days.
In that 4 to 30 days, when we refer it over to ATF, we
don't know if they have gotten a weapon or not. We can't tell
if the sale occurred or not. So, in that 6,000, it is not that
all 6,000 got weapons; they just had the ability to get
weapons. And to the point of some of our partners working with
some of the big gun sellers, they will not sell if you are
still in that delay queue. So, some of those 6,000 may not have
been people who fully got weapons.
Mr. Brandon. Sir, on delayed denials, we don't leave
anything undetermined. If it comes from the FBI and it looks
like they have gotten a firearm, we track it by month. I get
briefed monthly with my executive team and there has to be a
resolution. Often times, there can be problems with obtaining
court documents, which frustrates the FBI--rightfully so--and
even with us having more time than 3 business days, we can say,
hey, 30 days, 60 days, we are still trying to retrieve these
records. But we don't leave anything undetermined, and that is
tracked monthly and briefed up to me.
OVERSIGHT OF FEDERAL FIREARMS LICENSEES (FFLS)
Mr. Serrano. Thank you. Previous ATF reports have indicated
that nearly 60 percent of guns used in crimes can be associated
with only 1 percent of federally licensed firearms dealers. Do
you think that the ratio is still accurate? Does the ATF know
who the troublesome gun dealers are? And what does the ATF do
to make sure that these dealers are subject to additional
oversight and enforcement?
Mr. Brandon. Sir, that is a great question. And as I
mentioned earlier, we have a continuous process improvement and
this is one of the areas that we can improve. In fact, just
three weeks ago, I was briefed on how we are going to have
better oversight at the national level--the Division may say,
these are our problematic federal firearms licensees that we
need to inspect.
And I don't know if you are familiar with the term
``CompStat'' it started at NYPD, but it is used in data to
question people's decisions and modeling. We are using a new
computer product with analytics to question these assumptions.
I really think it is going to take ATF in a more precise way of
going after, to what you are saying, these dealers that are
really not following the law and making and diverting lawful
commerce into the black market where they become crime guns.
Mr. Serrano. One last question, and it is almost a fun
question, except that it is not; it is a very sad question, a
new threat. The whole issue of 3-D printer guns. What kind of a
threat do you see and what should law enforcement and Congress
consider doing to address the threat?
3-D PRINTED GUNS
Mr. Brandon. Sir, I know I dealt with this a few years ago,
and it was the Undetectable Firearms Act that was renewed. I
think it was called the Liberator firearm, a piece of plastic,
3-D printed, but you have to, to be compliant with the law,
have a piece of metal that can be detected through a TSA
security machine when walking through.
The threat we didn't see is maybe gang members doing this,
but the threat to public officials or for any type of
assassinations in which the 3-D firearms would be undetected
and reassembled and so forth. What we see are self-made,
unserialized firearms, which are legal to do. It is not illegal
to make your own firearm and not serialize it, as long as you
are not in the business of selling guns.
I had a briefing where our divisions in Los Angeles, San
Francisco, and Miami are seeing an uptick in this, in
particular, with gang members. One of these self-made
unserialized firearms was used in a school--a community college
shooting a few years ago. And so, they are not necessarily 3-D
printing, but going to these legal firearms and this person, I
believe, was prohibited, so he made his own gun, which the part
he bought is not regulated and they can make some minor
modifications now and get unregulated parts like the barrel,
the upper receiver, assemble it, and that is a threat to public
safety. That is something that we are looking at.
Mr. Serrano. Yeah, I suspect it is one that we are going to
be looking at a lot because it is available to a lot of people
and it creates, yet, another problem for all of us to deal
with.
Mr. Brandon. Sir, you have people saying you have hobbyists
that legitimately--you know, I mean, I like guns and there are
hobbyists that like making their own guns, but it also opens it
up for the people who are prohibited that are not going to go
into an FFL and go through a FBI background check NICS check
and then say, hey, get this, three holes, drill it, get these
parts, slap it, I have got my own gun and nobody knows the
difference. We have a number of shootings that they are
involved in.
Mr. Serrano. Thank you.
Mr. Aderholt.
Ms. Kaptur.
Ms. Kaptur. Thank you, Mr. Chairman, very much.
I wanted to go back to my question about mental illness and
guns. For the most recent year for which you collect figures,
how many fatalities have there been in our country due to
shootings with guns? Sixty thousand? I think you probably have
that number.
Ms. Halvorsen. I don't have that number on hand.
FIREARMS AND MENTAL ILLNESS
Ms. Kaptur. Okay. Because I am going to ask you if you
could go back and get that number and, also, then, of that
percentage, how many of those were due to an individual with a
weapon who was mentally ill. Do you have the ability in your
dataset to identify that or not?
Ms. Halvorsen. No, we don't.
Ms. Kaptur. Well, how sad is that? I want to just say this
because I am going to ask you to work with your colleagues in
other branches of the government. I will go through this, and I
am looking for a report. I don't know who to go to for the
report, but you are a good place to start.
If I go back to when Officer Gibson and Chestnut were shot
here in 1998--both Chairman Serrano and I were present during
that horrible incident--that was 1998. That perpetrator was a
schizophrenic and had traveled all the way across the country
looking for a purple light here in the Capitol. A few years
later in Virginia, at Virginia Polytechnic, we had a mass
shooting and the perpetrator was a paranoid schizophrenic. One
of our dearest colleagues, Gabby Giffords was shot here or shot
in her home community in 2011--the same thing with her
perpetrator.
And each of these incidents happens in an isolated way,
which I go back to my original line of questioning, is there
any way you can work with your colleagues across the
establishment of the federal government, to look at the numbers
of how many people die from these crimes annually--some are
domestic violence; that may be one of the highest categories--
but the mental illness issue is not tangential. There are many
crimes where people--and we are not going to solve this problem
until we look it right in the face. Every sheriff I represent
across Northern Ohio, half the people in their jails are
mentally ill, and most of them spend time in juvenile detention
facilities as kids and they merely graduate into the adult
institution as adults.
So, we are holding this population, through
deinstitutionalization that they said didn't work back in the
1980s--everybody was released--and now we have got sick people
at the juvenile level who are filling our juvenile detention
facilities and then they just graduate and they go in the adult
facility. So, this is how we are handling mental illness as a
country.
So, the people, the casualties that are resulting from
these individuals--Sandy Hook was another one, right--we act--
we are all shocked and we all go home. And I am saying to
myself that I think the data can really help us if we could
assemble that. And I am very interested in where they got the
gun. We know the Sandy Hook perpetrator got it from his mother.
She was taking him to a shooting range and he was not stable--
oh my goodness.
So, we have really work to do in this country, but I am
asking, do you have the ability in your own agencies or with
your colleagues across the federal government, to go back to
1998, start with the shooting right here, where did Russell
Weston get his gun? Is that on the record somewhere? And then,
what his diagnosis was, and then deal with the people over at
NIMH and figure out what happened? How did this guy get through
the net?
MASS SHOOTINGS
And do the same with these mass shootings across our
country and enlighten the American people. I think that would
be a great contribution. Do you have the ability to participate
in that type of effort? Or lead it?
Mr. Brandon. Ma'am, as I mentioned, when there is a mass
shooting, ATF, FBI, and U.S. Marshal Service is going to
respond. We have all come up with our roles, which we have been
defining under the Deputy Attorney General's leadership. The
ATF's mission is always follow the gun. We are going to learn
to say, How did this person get the gun? Were any federal laws
violated? Did anybody conspire to get this person the gun?
And I do believe that the FBI and even the Secret Service
do a study looking back at saying, what is the historical
nature?
I can tell you anecdotally--and my chief of staff is here--
when I hear of these shootings I say, I bet the person
purchased it in the last three to four months. They are not
prohibited, but they have a mental illness. And I have been
pretty good at just doing it. I am picking that up just going,
Oh, my God, there is another tragedy, you know, and you
mentioned Newtown. Everybody knows where they were. It is like
the 9/11 tragedy when you hear about that.
But the other thing I have learned from talking with folks
is that people that have mental illness, they are not violent,
you know, a lot of them. So, it is really drilling down to
which mental illness, because painting people with a broad
brush can be unfair, because they can be victims of violence
themselves.
So I think your question is well put, and also, I think the
ATF, FBI had testified with a Secret Service representative--
she was a Ph.D.--that would look into trends and shootings. So,
it is something that I think there is information there that
can answer your question and the FBI can get back to you on.
Ms. Kaptur. I would really be grateful and we will try to
put some language in a report.
Ms. Halvorsen. Thanks.
MENTAL HEALTH AND FIREARMS
Ms. Kaptur. Try to put some language in there to get that
kind of--wouldn't that interest my other colleagues on this
committee--on this subcommittee?
And I am not saying--I know the mental illness community
resists this because they don't want to view the mentally ill
as largely violent--and they aren't--but there is a subset, and
it is like what do we do as a country to identify this
possibility and avoid these casualties?
Ms. Halvorsen. This is a very, very complex problem and it
is something that is going to need a whole-of-government
approach going forward on it. So, I appreciate you offering
that up and following up with us on that.
And I will tell you on the JTTFs, the National JTTFs, we
have been working very hard with Health and Human Services to
get a Task Force Officer that is from Health and Human Services
on the JTTFs, even if they are part-time, so that when we are
going through our counterterrorism cases, we can actually
review it through them if we think there may be some mental
illness involved and figure out how we work through the process
around that person. And how do we handle that case?
Do we have other tools in the toolbox, right, that we can
actually help, instead of putting them in prison, are there
other things that we can do to get them help? And they are the
subject-matter experts on it; we are not, right, as law
enforcement. We are not mental health professionals; they are.
And so, we are working with that on the counterterrorism
investigations and I know they are trying to work through that
on some of our criminal investigations, as well, but it is a
step in the right direction, but it has to be a whole-of-
government approach moving forward on this.
Ms. Kaptur. Thank you, Mr. Chairman.
Mr. Serrano. I want to thank you for joining us today. It
is been very informative and we are on your side. We know the
work that you need to do. We want you to do more of it. We want
you to have the opportunity to do it better, as I am sure you
want to improve on it, and as time goes on as we get this bill
ready, we will keep that in mind and our conversations will
continue.
So, thank you so much, and this meeting is adjourned.
[Whereupon, at 12:34 p.m., the subcommittee was adjourned.]
[Clerk's note: The Department did not respond with answers
to submitted questions in time for inclusion in the record.]
Tuesday, March 26, 2019
NATIONAL SCIENCE FOUNDATION
WITNESS
DR. FRANCE A. CORDOVA, DIRECTOR, NATIONAL SCIENCE FOUNDATION
Mr. Serrano. The subcommittee will come to order.
I would like to welcome NSF Director, Dr. France Cordova,
to the subcommittee. Good morning.
The National Science Foundation is an independent federal
agency charged with promoting basic research and education in
science and engineering. In doing so, it is a major source of
federal support for U.S. university research in the STEM
fields. NSF's investments in STEM education help train the next
generation of scientists and engineers. As you know, Dr.
Cordova, I am a strong supporter of NSF and I believe that its
programs help our Nation to be the world leader in major
discoveries, innovations, and scientific breakthroughs.
The President's budget proposal for fiscal year 2020
requests $7.06 billion for NSF, which is a $1.01 billion, or 12
percent, decrease from the 2019 enacted level. Within the
total, the President's budget also proposes $5.66 billion for
the Research and Related Activities account, which is a cut of
$858 million, or 13.1 percent below the current level. These
proposed levels of funding endanger the core missions at NSF.
For example, if the requested amount is enacted into law,
the number of competitive awards for fiscal year 2020 would go
down from 11,600 awards in 2018 to 10,400. In a given year, NSF
awards grants to over 1,800 colleges, universities, and other
public and private institutions in 50 states, the District of
Columbia, and Puerto Rico. Cutting funding for NSF will
inevitably leave many schools without this much-needed
education and research funding.
The President's budget blueprint for fiscal year 2020 also
requests $823.4 million in funding for the Education and Human
Resources account within NSF. This represents a cut of $86.5
million or 9.5 percent. The President's budget proposal would
accomplish this decrease by cutting programs that increase STEM
participation, including programs that help minorities. I will
strongly oppose this and will work to make sure that minority-
serving institutions receive robust funding for STEM research.
Another issue of importance to me is the Arecibo
Observatory in Puerto Rico. The President's budget for fiscal
year 2020 proposes a total of $4.26 million for the Observatory
from NSF's MPS and GEO accounts, which is a reduction of $3.28
million from the fiscal year 2019 enacted level. I strongly
support the Arecibo Observatory and its mission.
In short, NSF helps our economy grow, sustains our economic
competitiveness, and enables us to remain the world leader in
innovation. We will continue to work in a bipartisan manner to
ensure that it is well funded.
Thank you once again, Dr. Cordova, for joining us today and
I look forward to your testimony.
Now I would like to recognize my friend and ranking member,
Mr. Aderholt.
Mr. Aderholt. Thank you, Mr. Chairman. And I just want to
say that I think in light, everyone is a little disappointed to
hear about your announcement yesterday regarding your
retirement, and I just want to say it has been a pleasure
working with you over the years. And of course you are a
tireless advocate for not only your constituents, but also for
all the things that we work for on this subcommittee and so
many things on the Appropriations Committee overall.
So we will certainly miss serving alongside you in
Congress, but wish you the best in the next chapter of your
life.
Dr. Cordova, thank you for being here today, and it is an
honor to have you here to discuss the National Science
Foundation fiscal year 2020 budget. Looking at your resume, you
have a commendable career and we appreciate your service.
As you well know as much as anybody, going back to 1950,
the National Science Foundation has been successfully carrying
out its mission to promote American science and engineering by
supporting fundamental research and STEM education.
Furthermore, last year alone the National Science
Foundation funded 11,700 research awards, supported over
380,000 teachers, scientists, and students. And this support is
key, because research spurs innovation, innovation drives our
U.S. economy, and enhances our national security. This allows
the U.S. to make improvements technologically and to create
new, thriving industries, spur job growth, and make the
workforce more efficient.
Even in times of fiscal restraint, this committee has
remained supportive of NSF's efforts to ensure that students,
scientists, and universities have the funds they need to carry
out their vital research.
This committee has also worked hard to ensure that NSF and
of course all agencies under our jurisdiction are held
accountable to remain and remain exceptional stewards of the
taxpayer dollars. Of course, the fiscal year 2020 request for
the NSF is what we are here going to be discussing today, and
our goal today is to discuss the details of that request and
gain a better understanding from you, Dr. Cordova, about the
priorities for the coming year.
In particular, it would be good to hear about the
proposal's impact on programs like EPSCoR; NSF's investment in
advanced manufacturing, artificial intelligence, quantum
information science; and the ongoing Antarctic Infrastructure
Modernization for Science Construction Project. It will be
important for this committee to understand how NSF plans to
continue carrying out its mission in fiscal year 2020 to
support basic research throughout the country, while having an
increased focus on a group of long-term interdisciplinary
research projects known as the Ten Big Ideas.
So, Dr. Cordova, with that, I look forward to your
testimony. And, Mr. Chairman, I yield back.
Mr. Serrano. Thank you, Mr. Aderholt.
Dr. Cordova, you are recognized at this time. We will hold
you to 5 minutes, but please understand that your full
statement will be inserted in the record.
Dr. Cordova. Thank you very much, Mr. Chairman, Ranking
Member Aderholt, Congresswoman Meng, and all the members of the
subcommittee and staff. It is really a pleasure to be with you
today.
And, Chairman Serrano, let me also reiterate Mr. Aderholt's
comments about your announcement yesterday. We are just so
indebted to you for your service to the Nation. Thank you very
much.
The President's fiscal year 2020 budget request for the
National Science Foundation is $7.1 billion. This request makes
targeted investments in basic research within a constrained
budget environment. The details of the budget request are laid
out in my written testimony; however, I would like to take the
next few minutes to highlight the value our agency has brought
to the Nation.
In 2020, the National Science Foundation will celebrate its
70th anniversary. I have been thinking about this milestone.
Every day, we interact with advancements that would not be
possible without the National Science Foundation. I bet one of
the first things we all did today was grab our mobile phones to
read our emails, check the news, and check the weather. The
touchscreen interface that we have become so accustomed to was
developed by an NSF-funded scientist, as was the lithium ion
battery that powers smartphones and laptops.
And that weather forecast you rely on to make decisions
every day was made more accurate by Doppler radar, a product of
Government-funded research, including NSF.
The barcodes that do everything from scanning goods at the
grocery store to tracking our packages as they travel across
the country, to getting us into airplanes, that technology was
made possible by NSF-funded researchers.
You might use a GPS-based app to find your away around in a
new city or to find an alternate route home in heavy traffic.
In its early days, Qualcomm relied on SBIR funding from NSF to
develop technology that changed the face of wireless
communications globally.
Indeed, one of the wonderful things about basic research is
that you never know where it might lead and whom it might
benefit someday. A great example is how research in economics
has saved lives by transforming our system of kidney
transplants. Nobel Prize-winning, NSF-supported scientists used
research into game theory to develop software that could match
kidney donors with recipients more efficiently, speeding up a
process where time is precious.
Sometimes basic research is criticized at first for seeming
silly or wasteful or unworthy of federal resources. It is hard
to imagine this today, but when linguist William Stokoe began
to look at American Sign Language in the 1960s, NSF was
criticized for supporting his work by those who did not
appreciate sign language as a possible means of communication.
However, his use of NSF funding to publish the Dictionary of
American Sign Language revolutionized education for deaf
individuals, improving the lives of so many.
Often, discovery requires persistence in the face of
incredible odds. A century after Einstein predicted their
existence and with 40 years of NSF support, the LIGO facility
detected gravitational waves produced by the collision of two
black holes. In doing so, a new era of discovery in
astrophysics began.
This is the type of high-risk, high-reward research that
NSF is uniquely charged with undertaking.
From Nobel Prize-winning work for interpreting the genetic
code in its function and protein synthesis, to mapping the
wheat genome, to making 3D printing a reality, NSF supports the
discoveries and discoverers that keep the United States a
global leader in innovation.
As we look towards celebrating NSF's 70th anniversary, I am
focused on positioning the agency to continue this work so that
my successors may come before this body and herald the next
great breakthroughs.
That is why we developed NSF's Ten Big Ideas. The Big Ideas
strategically focus on areas ripe for discovery, areas that
will allow NSF and the Nation to continue to push into the
frontiers of science. With other science agencies, we are
positioning our Nation to continue to lead research in
artificial intelligence and quantum information science.
We continue to invest in large research facilities that
keep the U.S. at the forefront of discovery, building the
world's most powerful solar observatory in Hawaii, for example,
and that observatory will see first light this summer. We are
investing in super computers, robotics, and advanced
manufacturing. We will stimulate convergence across scientific
disciplines to foster the type of integrated research needed to
address our most pressing needs.
And, perhaps most importantly, we continue to invest in
people. Discoveries don't happen without discoverers. We have
to continue to light the imagination of the next generation, to
nurture them as they find their way to the sciences; we have to
ensure that we are reaping the benefits of our country's
diversity, creating an environment free from all types of
harassment, and supporting them in their academic careers.
Mr. Chairman, I would be remiss not to also thank this
committee and you and your colleagues for the historic level of
funding provided for NSF in fiscal year 2019. With that
funding, we are making investments that keep America at the
cutting edge of scientific discovery and keep Americans leading
the world in scientific achievement.
Thank you for your time today and your continued strong
support of NSF and our mission. None of the advancements I have
described would be possible without Congressional support.
[The information follows:]
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
Mr. Serrano. Thank you. Thank you so much for your
testimony.
NSF BY THE NUMBERS
Director Cordova, the Administration's fiscal year 2020
budget request is a significant reduction of $1.1 billion below
the fiscal year 2019. Can you tell us how many fewer research
grants will be awarded and how many fewer graduate fellowships?
Dr. Cordova. Yes. If I do the math that both you and Mr.
Aderholt just mentioned--you mentioned that we would be funding
about 10,400 grants this year, and he mentioned that we were
funding 11,700 grants in fiscal year 2018--then that is about
1,200 to 1,400 fewer grants overall with this budget.
As for the graduate research fellowships, our 2020 request
is for funding 1,600 graduate research fellowships; in fiscal
year 2018, we funded 2,000.
Mr. Serrano. How many?
Dr. Cordova. Two thousand new ones last fiscal year and we
can fund 1,600 new ones in fiscal year 2020, so 400 fewer.
Mr. Serrano. Significant decreases.
What other reductions will your budget request, if enacted,
result in?
Dr. Cordova. Pardon me?
Mr. Serrano. What other budget reductions--if your budget
request is enacted----
Dr. Cordova. Yes.
Mr. Serrano [continuing]. What other reductions will take
place?
Dr. Cordova. As was mentioned, the budget is reduced about
12 percent from previous levels and that is a reduction in just
about all of our programs. A few we have kept at the levels of
fiscal year 2018, but basically the answer is that just about
all of our programs will see some reductions.
Mr. Serrano. For several years now, not all of the NSF
programs to expand participation of groups traditionally under-
represented in science have been held flat; your budget request
cuts many of these programs. How much of the demand do these
programs meet?
Dr. Cordova. It is all about capacity, Chairman. With
additional investment, we can fund more programs; more need is
there. Every year, we leave about $4 billion--and that is at a
total funding level of around $8 billion--we leave about $4
billion's worth of good proposals on the cutting room floor,
and those are proposals that are rated very good to excellent.
With the recent--just as one concrete example--with the
recent call for mid-scale proposals, those are proposals for
instrumentation facilities in the range between a few million
dollars, what we call our major research instrumentation
program is below that, and the major facilities, which cost
over $100 million, we received $4.7 billion in proposals just
for that one opportunity from several hundred people. So there
is enormous demand out there.
Whatever our budget is, NSF will fund the best possible
research. We have this amazing merit review process that is the
gold standard, and it will judge which are the top proposals.
Mr. Serrano. Yeah, I am concerned about that, because just
in your opening statement you listed so many wonderful things
that have been done, and you even listed the fact--you
commented on the fact that some people might not have approved
at the time and thought it was perhaps a waste of money or
something and yet it turned out to be wonderful. So we worry
that these cuts are really harming our future.
Look, I know that budgets are tight at times, but there are
certain areas that should not take heavy cuts because they make
life better for all of us and keep our country where it should
be.
BROADENING PARTICIPATION PROGRAMS
Let me ask you, what are the major gaps in participation
that NSF does not have programs to address? Are there areas
missing still?
Dr. Cordova. When I came to NSF 5 years ago, I was very
concerned about broadening participation, and I looked
carefully into NSF's programs for that. We do spend a lot of
money on broadening participation. That is part of our mission
to encourage people of all ages to have access to STEM
education--young people in particular to want to become
scientists and engineers--and to supply the next generation
with the types of discoveries I talked about.
I was concerned that we are still not moving the needle. We
still have a large, untapped group of people, women and
minorities, who don't have access or encouragement in science
and engineering. And so I looked at the programs we have and
asked if there some things that we should stop doing? Should we
change the way we are doing things? And I found that the
programs that are doing broadening participation are very good
programs. There are excellent programs in different parts of
the country with different kinds of missions; some are directed
towards students and provide them scholarships.
One great example is the Hostos Community College program
in the Bronx, which you know about. It is such an important
program to get students the capacity, the knowledge, to then go
on to a 4-year program like the Grove School of Engineering at
CUNY.
But we still had gaps in that and we still really need to
move the needle on participation of everybody, so we started
the INCLUDES Program. The INCLUDES Program is one of our Big
Ideas and it is funding programs, 70 or more now, all across
the United States in different areas, and the whole goal of it
is to increase the representation of women and minorities in
particular in STEM education. And this program now is really a
network of networks. We have the different pilot programs
grouped into alliances around the country. And now we have a
backbone organization that is run by SRI; they are doing
evaluation and assessments of the programs, and they are
networking all the investigators together. Because, Chairman,
the basic challenge is how do you scale really good ideas, how
do you make them scalable so that the whole country can
understand that these are good models to replicate? And that is
what the INCLUDES Program is really trying to do that hasn't
been done much before.
Mr. Serrano. Thank you.
Let me just touch on one subject area before I turn--one
further subject area before I turn it over to the ranking
member.
ARECIBO OBSERVATORY
The Arecibo Observatory is the second-largest single-dish
radio wavelength reflector and has been in service since 1963.
Although multiple agencies perform research at the Arecibo
Observatory, NSF's Division of Astronomical Sciences has the
longstanding responsibility for basic site maintenance and
upkeep. We provided $16 million in disaster relief funding to
repair and upgrade this facility because of Hurricane Maria.
Can you give us an update on the status of the repairs at the
observatory?
Dr. Cordova. Yes. In fact, I am going to Puerto Rico next
week just to see how they are doing there and to check in on
the observatory, and also to talk with universities like the
University of Puerto Rico and its campuses.
And I actually have used Arecibo data in the past. I am an
astrophysicist; this is my line of work and research. We spent
about $2 million of that $16 million to date starting on the
repairs. We have asked OMB and Congress to approve a 5-year
spend plan so that we could, in an orderly fashion, address
everything that we needed to address in terms of repairs and
modest upgrades to this facility.
So we very much appreciate that much-needed money for the
upgrades. It is just an outstanding facility that has made
amazing discoveries, including Nobel Prize-winning discoveries.
Mr. Serrano. And, with that in mind, over many decades the
Arecibo Observatory has produced some valuable scientific
research and discoveries. That is why I believe that the
Federal Government should maintain ownership of this facility,
even if it is administered and run by an educational
institution or a private party.
You will commit to not transfer the title of the
observatory to a private party?
Dr. Cordova. We have no plans to transfer the title in
fiscal years 2019 and 2020. I think you know that the whole
discussion about title transfer was something that was surfaced
by the management entity, the University of Central Florida;
that has been of interest to them, but we have no plans to do
that in the next two fiscal years.
We are hopeful that the University of Central Florida will
engage other partners, as they have committed to do, to be part
of funding the Arecibo Observatory. We know that NASA has upped
its commitment to $4.65 million, and we have also given a grant
to Brigham Young University to build a receiver that costs on
the order of $5 million, a new receiver that will open up new
capabilities for the observatory. And so we continue to fund
assets that will help the observatory.
Mr. Serrano. You will know that the answer is, while I am
still in Congress, it is OK. So you guys get ready, all right?
No, I think we have a lot of friends who support the
observatory.
Mr. Aderholt.
ESTABLISHED PROGRAM TO STIMULATE COMPETITIVE RESEARCH (EPSCOR)
Mr. Aderholt. Thank you, Mr. Chairman.
Traditionally, Dr. Cordova, the distribution of NSF
research dollars has not been uniform cross the country, but
the Established Program to Stimulate Competitive Research,
commonly known as EPSCoR, helps to address this problem. Of
course, EPSCoR promotes scientific progress nationwide by
strengthening research capacity and competitiveness at
universities in particular states. So, last year alone, Alabama
received over $14 million through EPSCoR to stimulate
competitive research.
Unfortunately, in the fiscal year 2020 request EPSCoR is
reduced by $24 million from the fiscal year 2019 enacted level.
The last time the EPSCoR was funded at a similar level was back
in fiscal year 2012.
I just wanted to get your opinion of what the rationale
would be in reducing this important program?
Dr. Cordova. The EPSCoR program is an extremely important
program, and I have been to many EPSCoR states. I actually live
in an EPSCoR state. New Mexico is my home, and I have been able
to see firsthand the amazing things that are being done to
raise capacity, research infrastructure, and research itself in
the EPSCoR states.
The EPSCoR funding is formulaic; it is by congressional
design. And so when our budget goes up, the EPSCoR funding goes
up in line with--it is like an index fund, it goes up with our
total budget and, when it goes down, it goes down according to
the formula. So it is exactly the amount that we have proposed
in 2020 is according to the formula as set out by Congress.
Mr. Aderholt. But at this level what would be the impact on
states like Alabama that, you know, have a lot of institutions
that rely on these funds to build the capacity they need to
compete nationally?
Dr. Cordova. The need for research investment is great in
EPSCoR states. It is great throughout the country. It is just,
as I said earlier, a matter of capacity. With increased
investment, we can fund more. But whatever investment we have,
we will always use it very wisely. We will fund the very best
possible research and that includes in Alabama.
ADVANCED MANUFACTURING
Mr. Aderholt. Of course, manufacturing is a key industry in
Alabama and, of course, in many states. I am very supportive of
any efforts that create additional jobs and opportunities for
manufacturers throughout the country. I was pleased to see that
the fiscal year 2020 request includes $268 million to
revitalize American manufacturing.
Can you take a moment just to explain how this research
investment will help the manufacturing industry grow and
flourish? And also how it could potentially help our American
manufacturers to be more competitive with foreign entities?
Dr. Cordova. Yes. Well, this is of course a priority of the
Administration, and it has been a priority of the National
Science Foundation for a long time. We have no fewer than four
of our directorates involved in funding programs in advanced
manufacturing, which, as you know, is a very broad topic. Our
Computer and Information Science and Engineering Directorate,
our Biology Directorate, our Math and Physical Sciences
Directorate, and of course our Engineering Directorate all fund
programs in advanced manufacturing. And this is everything to
do with the smart work force of the future.
One of our Big Ideas, and you mentioned those, Mr.
Aderholt, in your remarks, is called the Future of Work at the
Human-Technology Frontier. And in order to fund the best
possible research that will impact what the future of work
looks like, we are going to have to have smarter machines and
smarter approaches in order to help the worker.
And so I have been able to see the progress of this Big
Idea and the kinds of investments we are making. I have seen
some recent examples that have to do with the factory floor in
enabling humans and individuals to have additive manufacturing,
and things like virtual reality and robotics to assist them in
doing jobs that they couldn't possibly do all by themselves. It
is really very inspiring to see the kinds of work that we are
funding in advanced manufacturing.
Mr. Aderholt. How do you or how will you ensure that all
areas of the country benefit from these investments in the
manufacturing sector research?
Dr. Cordova. The same way we do with all of our programs.
Our calls for proposals are open to the entire country and we
have an emphasis on advanced manufacturing, we have an emphasis
on the American worker. I am a member of the President's
National Council for the American Worker, and there our main
subject is skilling and re-skilling of the American workforce.
And for NSF, there are two main programs where we do that.
One is our Advanced Technological Education Program, which is
in many, many community colleges throughout the country, and
people are welcome to take courses in learning all sorts of
technology occupations. I visited some of those sites and it is
absolutely amazing the kinds of projects that are going on in
our community colleges, the equipment that they have to train
people, and the quality of their faculty to teach them.
So that is one our programs. And we keep putting, with the
graciousness of Congress, more money into the Advanced
Technological Education Program.
Then we have a number of other programs. For example, our
Convergence Accelerator that we are just now starting, we put
out the first call for the accelerator projects last week. And
these are all projects that welcome everyone from around the
country to conceive ideas to accelerate research in three main
areas; one of those is big data, but the other two are in re-
skilling and up-skilling the workforce and matching the workers
to the work. And so we are very excited about seeing the
results of those, and we think that that is going to be a big
push. We are asking for proposals on a short time scale, and we
are hopeful that they will achieve outcomes within the next
couple of years. We think this could be a real game-changer.
Mr. Aderholt. Thank you, ma'am.
Mr. Chairman.
Mr. Serrano. Thank you.
We will now begin our first round for members, adhering to
the 5 minute rule.
Mr. Cartwright.
DEVELOPING A ROBUST SCIENCE AND TECHNOLOGY WORKFORCE
Mr. Cartwright. Thank you, Mr. Chairman, and thank you to
our distinguished witness for being here today.
I want to start by talking about a 2018 New York Times
article by Dr. Maria Zuber, the former Chair of the National
Science Board and Vice President for Research at MIT. She
expressed deep concern about our Nation failing to make
necessary investments in research, in graduate education, in
training, to produce the knowledge and workforce that we need
to compete with the investments being made by China and other
nations.
Dr. Zuber explained that China's spending on research and
development has grown by an average of 18 percent every year,
while the U.S. is spending just by 4 percent. The potential
consequence of this funding disparity, among others, is that
China now claims more than 200 of the fastest supercomputers,
while the United States has fewer than 150.
Dr. Zuber concluded, quote, ``We cannot continue to advance
the frontiers of knowledge and lead the world in innovation
without funding for students and equipment, and when the only
long-term federal commitment is to fiscal uncertainty,''
unquote.
Even President Trump is quoted as saying in the U.S.
National Securities Strategy Report that, quote, ``Losing our
innovation and technology edge would have far-reaching negative
implications for American prosperity and power.''
My first question for you is, what is the consequence of an
inability to compete with China and other nations when it comes
to science and technology? In layman's terms, what happens to
the U.S. if we don't have a robust science and technology
workforce?
Dr. Cordova. We clearly need a robust science and
technology workforce. This is a competitive world in which
things are changing very rapidly, Mr. Cartwright, and that is
why NSF cares so very much about its investment in the best
possible research. That is one of the reasons that we stepped
up with a new strategy called NSF's Ten Big Ideas. They are
addressed towards what are the pressing needs of the country,
whether it is in quantum information science or artificial
intelligence, advanced manufacturing in 5G, and clearly
broadening participation in STEM education. There are many,
many needs of our country and we have to be competitive in all
of those.
And so we will do our part. I co-chair three of the six
committees of the National Science and Technology Council that
are really moving ahead as part of the Administration and all
of the executive branch agencies to do our best to be
competitive.
Mr. Cartwright. Well, I think it is obvious that NSF
recognizes that its funding supports research that is a primary
driver of economic growth in this country.
According to Nobel Prize winner and MIT economics professor
Robert Solow, since World War II, half of American economic
growth can be traced to advances in science and technology. Our
investments in NSF will produce real family-sustaining jobs.
VALUE OF BASIC RESEARCH TO ECONOMIC GROWTH
The question is, how do you explain how NSF funding drives
economic growth?
Dr. Cordova. The NSF funding is mainly about funding
fundamental research that is at the basis of technology and
innovation. Without making the fundamental discoveries, you
then can't go to application and outcomes.
I mentioned in my opening remarks several examples of where
fundamental research, whether it is in communications or any
form of research, physics, chemistry, or materials, has led to
amazing technology. And one example I gave had to do with our
cell phones and our laptop computers. Sure, Apple put them all
together, but it had to have the ingredients, and we make the
ingredients. There are several technologies that are involved,
for example, in cell phones and every single one of them, when
you look at them in detail, was first funded by a government
agency and several of them by the National Science Foundation.
So, if we don't press on doing the fundamental research,
then we will have nothing left to invent applications for, to
put things together, and create the technologies of the future.
When I go into a hospital, I just marvel because I know that
NSF research is at the foundation of so much of the equipment
that is used on me as I am examined. When people try to
understand better, predict what various things that I have,
what is going to be their outcomes, it is because of
fundamental research that we have the equipment that we do in
hospitals, in our cars and airplanes, and so forth.
Mr. Cartwright. Well, my last question then is, with this
kind of gargantuan return on investment in NSF funding, why
would anyone in the world want to cut NSF funding given that
its funding drives our economy, enhances our national security,
and advances this Nation's leadership globally?
Dr. Cordova. We are grateful to Congress for giving us a
historic budget for fiscal year 2019 of $8.1 billion; I can
thank you for that.
Mr. Cartwright. Well, this fiscal year 2020 budget proposal
for NSF puts the agency back to where it was in fiscal year
2012. That doesn't sound like much of an investment in the
future. We have to invest in the future in areas like, as you
mentioned, artificial intelligence and quantum computing.
This committee has made it clear year after year that we do
not support Draconian cuts in the NSF budget, despite this
Administration proposal.
Thank you, and I yield back.
Mr. Serrano. Thank you.
Ms. Meng. I'm sorry, Mr. Palazzo.
Mr. Palazzo. Thank you, Mr. Chairman.
Director Cordova, thank you for being here today. It is
good to see you again. I think the last time we had you at our
hearing was in 2017. Well, it is a shame we didn't have a
chance to hear from you last year.
ENGAGING WOMEN AND MINORITIES IN STEM FIELDS
I want to speak with you today about STEM management,
particularly those programs geared towards women and the under-
served communities. My time serving as chairman of the Space
subcommittee taught me the importance of STEM programs and the
President's budget proposal reduces the funds available for you
to engage women and minorities.
So my question is, how are you planning to provide
opportunities for those interested in STEM fields?
Can you discuss how this budget request affects programs
like the PBS program SciGirls, and the Computer Science For All
Program?
And, third, has the ADVANCE program increased women's
participation in science and engineering fields? And anything
else you would like to add.
Dr. Cordova. Well, thank you very much for those questions.
As you can imagine, those are close to my heart.
I was a young girl once who wanted to be a scientist, and I
didn't have the encouragement from family or teachers, because
the vision of what a scientist was looked very different from
me. In fact, when I was NASA's Chief Scientist, my first day in
the office, a senior official came in to me and he said
jokingly, but he said, ``you don't look like a chief
scientist'', because we have these pre-conceptions. And so that
is something that we really want to change through programs
like--you mentioned a couple, SciGirls, which is on television
in a lot of places, and the ADVANCE Program. We are trying to
make an impact through other things like our sexual harassment
policy that moves to reduce harassment, which can be a barrier
to advancement for women, and to participation and engagement.
So at Purdue University, when I came in as president, we
were just submitting the proposal for the ADVANCE program, our
first. I was the principal investigator for that, so for almost
the whole time I was there I led that program at Purdue
University. And there our special effort was to advance in
particular minority women, Hispanics and African-American
women, through the professoriate.
And so I know, because I have been there firsthand, that
these programs really can make a difference.
My inspiration, if you were to ask me how being a young
person without a family and teachers that were motivating, it
was from just a program very much like SciGirls; it was a
program on television. This one happened to be about neutron
stars that also convinced me to become an astrophysicist. These
informal education programs, as well as the more formal
programs like the ADVANCE program, which insists on
institutional commitment to really rectify a situation and make
it possible for those pathways to be open to women, are just so
very important.
So I am really proud that NSF has the diversity of programs
with a diversity of ages for entering into the programs. It
hits young girls, middle school girls, and it hits women in the
professoriate.
Mr. Palazzo. Well, thank you, Director Cordova.
And I yield back.
Mr. Serrano. Ms. Meng.
Ms. Meng. Thank you, Director, for being here today, and
Mr. Chairman and Ranking Member, for holding this meeting.
I want to echo the concerns that have been mentioned by the
chairman, by Mr. Palazzo, about encouraging STEM--building a
STEM workforce, especially for those from minority communities.
I know we've talked about cuts of funding to programs like
historically black colleges and universities' undergraduate
program, tribal colleges and universities' program, for
example.
I wanted to specifically ask, I know you talked about your
work at Purdue for African-American and Latino women, but I
wanted to know about Asian-American and Native American Pacific
Islander-serving institutions. This program provides grants and
other forms of assistance to institutions to expand their
capacity to serve this community. I notice that NSF's budget
does not have dedicated funding streams for these institutions.
Can you explain how NSF currently funds these institutions and
reaches out to the AAPI community?
Dr. Cordova. Our programs are open to all and we have a
relatively new program over the last few years called INCLUDES.
There are about 75 projects all over the country and some of
them have that particular goal. They can have all sorts of
goals of broadening participation. And the whole idea there is
that they are networked into each other so that they can share
best practices and so the whole effort of broadening
participation can scale up. So that is one way that we do it.
And we have many programs like Computer Science For All,
our Discovery Research for Pre-K through 12 programs, our REU
programs, our graduate research programs for graduate fellows,
all of which welcome the populations that you are talking
about. Even though we don't have a specific program, we do have
programs where we welcome the diversity of the population to
join them.
Ms. Meng. Wonderful. If we can ever collaborate in any way,
especially in my home state of New York, please feel free to
let me know.
QUANTUM INFORMATION SCIENCE
I wanted to talk about a field that you mentioned, quantum
information science, which is a whole new field. There is a
race in this field to develop and retain talent. We can have
the best plans and long-term strategy for quantum research, but
if we don't grow this talent in our country, we will be left
behind. I'm told by industrial researchers that you cannot just
take engineers or physicists and teach them quantum
engineering, that it's a whole separate and new field.
What is the Administration doing to develop the workforce
necessary to meet our industry needs for quantum-trained
talent? I know that some applications may be several years
away, so how can we retain the talent we developed? And can the
NSF DOE centers that were authorized in H.R. 6227 help develop
this talent needed?
Dr. Cordova. The answer to all those questions is yes.
There is a very vigorous effort on the part of this
Administration to step up our efforts and investment in quantum
research, and even a few years ago, NSF stepped up with one of
its Ten Big Ideas called ``The Quantum Leap.'' And so we have
been funding at NSF quantum sciences, quantum research for
decades, and in fact NSF funded 31 Nobel Prize winners who won
for specific quantum inventions and discoveries.
We are a part of the group in the National Science and
Technology Council that worked with the White House to put
together a strategic plan under OSTP's leadership for quantum
information science, and that plan was put out just a short
while ago. That plan also calls for--and the congressional
language, because Congress, of course, passed their quantum
initiative, which is just great--it called for OSTP to lead in
an effort to really get us to the next level. And so there is a
group that has been formed in OSTP under Jake Taylor's
leadership and NSF has contributed members to that, as have
other agencies.
So this is really top of mind for all of us agencies
working together, quantum. And as for young people, part of the
quantum strategic plan actually specifically addresses raising
a quantum workforce, and what is needed is investments at a
very young age. Just as we are trying to get all students to
think more computationally and to be computer literate, we also
want them to be quantum literate. And there are professors in
our universities and faculty in many places who believe that
very young people can learn quantum principles.
And quantum physics was one of my favorite subjects in
graduate school and just like anything else, like calculus, if
you learn it at an early age, it is new enough and different
enough, it is like learning another language, and it is
actually quite fun to put yourself in that space. There are
those of us who really believe that you can learn the
principles of quantum science and computer science, which are
inextricably linked through quantum information science, at a
very young age.
Mr. Serrano. Thank you.
Mrs. Lawrence.
Mrs. Lawrence. Thank you, Mr. Chair, and thank you for
being here.
DEVELOPING AN ETHICAL FRAMEWORK FOR ARTIFICIAL INTELLIGENCE
On February 27th, I introduced a resolution, H.R. 153, to
encourage the ethical development of AI. How do you plan on
incorporating ethical and social studies into the AI research
NSF supports?
Dr. Cordova. Thank you, Mrs. Lawrence, Congresswoman
Lawrence, for your leadership on this. Having an ethical
framework for artificial intelligence is extremely important.
As you know, artificial intelligence is a very broad
collection of approaches, and it promises all sorts of
opportunities, but also a lot of challenges. So what NSF is
doing to help provide leadership in this area--and it is
leadership that is, frankly, coincident with the
Administration's plan for this country to be a leader in
artificial intelligence--is to fund some specific proposals
that have to do with ethics and bias, fairness and
transparency, and accountability and explainability in
artificial intelligence.
We released just a short while ago, a few months ago, a
call for proposals from our Computer and Information Science
and Engineering Directorate, working with our Social,
Behavioral, and Economic Science Directorate and an entity
called the Partnerships for Artificial Intelligence, which is a
collection of about 50 industries, foundations, and nonprofit
organizations. All of us are working together to request
proposals from the community at large that deal with these very
important subjects.
In addition, our computer science branch is working with
Amazon and we just signed a memorandum of agreement to develop
proposals and fund research on fairness in artificial
intelligence.
We are fast becoming a real leader in this area and it is
just incredibly important that at the outset of doing new
research that you also incorporate things like bias and
fairness, and accountability and transparency. So I am really
glad we are pursuing this.
ARTIFICIAL INTELLIGENCE SAFETY RESEARCH
Mrs. Lawrence. How is NSF prioritizing research funding to
address safety problems?
Specifically, there are particular AI safety research
questions you hope to address in the future research, such as
about reducing unsafe exportation by AI systems. What is your
feeling on the safety?
Dr. Cordova. Well, safety is incredibly important, and the
programs that I just mentioned will also be welcoming proposals
in this area. Safety is an extremely important part of all
research and particularly in artificial intelligence.
So one of our Ten Big Ideas is on the Future of Work at the
Human-Technology Frontier. This is about machine learning and
robotics, artificial intelligence in general, helping the
worker to have a safer work environment, and to augment human
capabilities so that we leave individuals free to work in a
healthy, safe environment to do the creative things, and the
robots and machines are doing the things that are more
dangerous, that are heavier, et cetera.
So safety is all part and parcel of the basic research that
we do.
EVALUATION AND ASSESSMENT
Mrs. Lawrence. My last question. You are saying all of the
right things when it comes to STEM, when it comes to inclusion
of women and minorities; however, how do you monitor success?
Have you set internal goals that says that we want to have what
percentage of impact of improvement? Who monitors that?
And my concern is that--and I have seen it where someone
will talk about a wonderful plan, but no one monitors it and
there are no specific goals. What are your goals as related to
increasing those in the workforce?
Dr. Cordova. Congresswoman Lawrence, I am a person who is
not fond of saying that was a great question, but I will say it
this time, that is a great question.
So I too was very concerned when I first came to NSF, now 5
years ago, about evaluation and assessment of our programs. And
we have been funding through our merit review process, which is
an amazing process that identifies great research. We have been
funding spectacular work, but how do we assess and evaluate it?
And how do we then transfer that knowledge to others, so that
they can replicate it and so that it is scalable, so that
everybody can take advantage of what we have just invested in?
So we are changing things up. Our INCLUDES program, which
is one of our Ten Big Ideas, is a great example of that. In the
INCLUDES program, we insist as part of the proposals that
people have identified what are the goals and what are the
metrics to achieve those goals. And then we hired a backbone
organization, SRI--they are our first backbone organization--
which is charged with making sure that those are done and then
coming up with overall evaluation and assessment schemes, so
that we can sit or stand before a body like this one and say
that, for that program, here is what we set out to achieve,
here is what we did achieve, this is why it is important, this
is what is replicable about it, and this is how we would scale
it.
So I couldn't agree more. And that goes way beyond any
specific program; that has to do with all of our programs. We
do have an Evaluation and Assessment Office--it is within our
Office of Integrated Activities--and they are charged with
doing evaluation and assessment of specific programs. But we
haven't yet achieved a goal that I would like us to achieve:
that every single program, whether it is the INCLUDES program
or anything, has built within it a framework for metrics for
evaluation.
So you have hit on something that is very close to me and I
am committed to seeing that idea furthered, you know.
Mr. Serrano. In other words, that was a great question.
[Laughter.]
Mr. Crist.
Mr. Crist. Thank you, Mr. Chairman. And thank you, Dr.
Cordova, for being with us today.
HARMFUL ALGAE BLOOMS
I appreciate that the National Science Foundation is
working to tackle issues of scientific and societal importance
through the Ten Big Ideas. However, there are a lot of other
societal issues important to my district, like harmful algae
blooms, climate change, and civil rights, that are not included
in the big ideas.
Considering that the agency's budget proposes a top-line
cut of almost 12 percent, while also investing more money in
the Big Ten, what are you going to do to make sure that the NSF
continues to support research to address issues that are not
included in the Big Ideas?
Dr. Cordova. Well, that is a great question too----
Mr. Crist. Thank you.
Dr. Cordova [continuing]. Because I come from a Big Ten
institution, Purdue University----
Mr. Crist. You are a Boilermaker.
Dr. Cordova [continuing]. And, as you know, there are more
than ten members of that. So there will be more than ten
members of the Big Ideas pretty shortly.
One of the big ideas is called NSF 2026, and it is called
2026 because the year 2026 will be the 250th birthday of our
country. We thought it would be great to have a whole suite of
new Big Ideas ready for investment by that time, so we set on
that goal. We sent out a call last summer for new Big Ideas to
everybody in the Nation, everybody that is greater than 14
years old, because for some legal reasons you can't be younger
than 14 because it comes with a monetary prize.
So we had all those proposals in as of the end of October
and they are being evaluated. There are many, many hundreds of
those proposals. They are being evaluated internally right now,
and we expect to make an announcement on the winners, who will
also be asked, some subset of them, to produce videos and all.
We want to make it a very public thing that the public can have
this opportunity to suggest Big Ideas that are appropriate and
fundable for the National Science Foundation. So we intend to
have a big splash on that.
RAPID AWARD MECHANISM
Your more specific mention of things like algal blooms,
these are incredibly important to the National Science
Foundation also and we have other programs, like our RAPIDS
Program. RAPID is an acronym, but what it really means is that
you, if you are interested in something that just happened, a
disaster, a tornado, an earthquake, hurricanes, algal blooms,
infectious disease, you can propose to attack that problem
immediately and you don't have to wait 6 months to be funded,
you can be funded within just a few weeks' time. That is called
our RAPIDS Program initiative.
We also have one of our Big Ideas, called Navigating the
New Arctic, and there are algal blooms in the Arctic going on
as well and so that is another opportunity for research
funding.
Mr. Crist. Thank you.
The RAPIDS Program you mentioned, I'm curious, what is the
level of funding that is available there presently?
RAPID RESPONSE RESEARCH (RAPID) AWARDS
RAPID is a type of proposal used when there is a severe
urgency with regard to availability of, or access to, data,
facilities, or specialized equipment, including quick-response
research on natural or anthropogenic disasters and similar
unanticipated events. Principal Investigators must contact the
NSF Program Officer(s) whose expertise is most germane to the
proposal topic before submitting a RAPID proposal. This will
facilitate determining whether the proposed work is appropriate
for RAPID funding.
A RAPID award may be for up to $200,000 and up to one year
in duration. The award size, however, will be consistent with
the project scope and of a size comparable to grants in similar
areas. Only internal merit review is required for RAPID
proposals. Under rare circumstances, Program Officers may elect
to obtain external reviews to inform their decision. If
external review is to be obtained, than the PI will be informed
in the interest of maintaining the transparency of the review
and recommendation process. The two standard NSB-approved merit
review criteria will apply. No-cost extensions and requests for
supplemental funding will be processed in accordance with
standard NSF policies and procedures. Renewed funding of RAPID
awards may be requested only through submission of a proposal
that will be subject to full external merit review. Such
proposals would be designated as ``RAPID renewals.''
The number of RAPID awards and total funding levels vary
each year due to the nature of the award mechanism.
NSF RAPID Mechanism
Awards and Funding Levels
------------------------------------------------------------------------
FY 2015 FY 2016 FY 2017 FY 2018
------------------------------------------------------------------------
Number of Awards............ 199 158 134 265
Total Funding, in millions.. $19.62 $14.30 $10.48 $23.70
------------------------------------------------------------------------
Dr. Cordova. I would have to get back to you on that; I
don't know specifically what the level of funding is. But the
unique thing about that program, Congressman Crist, is that it
is--I can't say it is infinite, because it is not, but it is
very open-ended, because any program officer--because they all
have the capacity, the wherewithal to fund the RAPIDS Program,
and they make those decisions internally, because they have to
be made very quickly. Once in a while, if they really don't
understand the science, then they can go out and get a quick
assessment of it, but most of those, because of the urgency,
are made internally, and they can be made by any of the
different directorates.
So, to my knowledge, but I will get back to you with the
details, we don't have a specific budget, because one year we
can have a Zika or an Ebola crisis, or a host of natural
disasters and hurricanes, and the next year perhaps not so
many. And so it would ebb and flow with the amount of proposals
and the quality of the proposals that we get in to do them.
Mr. Crist. How does that work? I mean, you can just put
more money when bad things happen or reduce money when they
don't?
Dr. Cordova. Well, no. People have some flexibility within
their budgets to fund these awards. It is all about what is the
level of funding being proposed. Most of the RAPIDS proposals
are--and, again, it is about the details--are on the order that
a small team of people wants to go and be ready in the case of
tornados or in the case of disease, and they are just not very
big in a funding sense of proposals. These are not multi-
million-dollar proposals; they are more in the hundreds of
thousands of dollars.
Mr. Crist. I see.
HARMFUL ALGAE BLOOMS FUNDING
And my last question. A Government Accountability report
from 2016 that details agency expenditures on harmful algal
blooms show that the NSF was at the time the agency with the
second-highest algal bloom expenditures. I know the report is a
little outdated at this juncture, but can you elaborate on some
of the things the National Science Foundation has been doing to
address the environmental, economic, and health impacts of
harmful algal blooms, particularly Red Tide.
HARMFUL ALGAL BLOOMS AND RED TIDE
NSF continues to fund research on Harmful Algal Blooms
(HABs). In FY 2018, NSF supported 39 awards, totaling over $14
million. NSF-funded HABs research spans several disciplines and
includes basic research related to bloom initiation and demise;
organismal and ecological research related to understanding the
formation of HABs; infrastructure and technology development to
sense and model HABs; and the development of ecofriendly
technologies for controlling HABs.
NSF funded research also addresses the environmental,
economic, and health impacts of HABs through several programs,
including the Ecosystem Studies program. One award, funded by
this program, applies advanced, water quality sensing
technology to measure spatial patterns and changes in real time
to detect early warnings in lakes where HABs are expected to
occur. The goal of this research is to develop a new approach
for prediction of ecosystem changes pertaining to HABs that
will aid in the management of resulting water quality and
public health issues (NSF Award #1754712).
As HAB events are temporally limited, NSF has supported
researchers using the Rapid Response Research (RAPID) award
mechanism. This mechanism is used when there is a severe
urgency with regard to availability of, or access to, data,
facilities, or specialized equipment. In FY 2018, two of the 39
HAB awards were funded via the RAPID mechanism.
Dr. Cordova. I don't know the details on the programs; we
can get you that information. I know that we definitely have
programs within the Geosciences Directorate and the Division of
Ocean Sciences specifically, and also in the Arctic program to
address algal blooms, and we can get you a list of the programs
that we have funded there, but they are very, very much of
concern to the agency and we do fund those programs.
FUNDING NSF'S MISSION
Mr. Crist. And I misspoke. Finally, do you think that the
proposed budget going forward that we are looking at today is
sufficient for what your mission is?
Dr. Cordova. In any given year, just based on our merit
reviews of the rankings of proposals, we leave about $4 billion
on the cutting room floor--that is proposals that are rated
very good to excellent. About $2 billion of those proposals are
rated above the average rating of the proposals that are
funded.
In a recent call for Mid-scale Research Infrastructure
proposals, we received about 400 proposals, which totaled $4.7
billion worth of funding. So there is great need out there.
Whatever our budget is, we will fund the very best possible
research using our merit review process.
Mr. Crist. So do you believe it is sufficient or not?
Dr. Cordova. I----
Mr. Crist. I am not trying to be difficult.
Dr. Cordova. I think that the capacity of this country to
do amazing research is just tremendous, and all I can say is
that we will try to meet the needs for doing great research,
the needs of the country, and the curiosity and the imagination
of our proposers with whatever funding Congress gives it. And
thank you very much for our fiscal year 2019 budget also, which
is giving us great capacity to fund excellent research.
Mr. Crist. Thank you, Doctor.
Thank you, Mr. Chairman.
Mr. Serrano. Mr. Case.
INTERDISCIPLINARY RESEARCH
Mr. Case. Good morning, Doctor. You are obviously very
passionate about the National Science Foundation, as are many
of us, a national institution, and I appreciate your own
personal passion and work, but you are here representing our
President and our Administration in presenting really his
overall budget priorities, and that is what we are after here
is priorities.
And, you know, I read your testimony, I listen to your
words, and it all sounds incredibly good. I look at your
testimony and you talk about the importance of the National
Science Foundation, the critical importance of basic research
across the world, the contributions not only to science, but to
the economy. And I read through your specific programs, the
survey telescopes, the big ideas, I agree with all of it; I
appreciate in particular the advancement of the Daniel K.
Inouye Solar Telescope. And then I get to the one catch line,
which is that NSF fiscal year 2020 budget request is 9.6 below
fiscal year 2018 and 12.6 below fiscal year 2019.
And I ask the basic question, which Mr. Cartwright and
which Mr. Crist just asked, what is going on? Budgets reflect
priorities. And the inescapable conclusion that I come to when
I read the testimony and listen to your answer is that NSF in
general is not prioritized within this President's and this
Administration's budget. I cannot explain a reduction of over
10 percent over the last fiscal year when you have thanked this
committee a couple of times already for the increase in funding
in fiscal year 2019, and of course a 10-percent increase, and
then Mr. Cartwright's observation that we are now back to
fiscal year 2012 levels.
I just ask you the basic question, what am I to make of
that?
I look at your budget splits, I see reductions of almost 10
percent in your basic programs, and then I do see of course an
increase for major research equipment and facilities
construction of almost 20 percent. I am not sure if that is
related to your big ideas. I am wondering whether what is
actually going on is you have shifted from kind of a broader,
more inclusive research prioritization to really focusing in on
a few to the exclusion of many.
Dr. Cordova. We fund science and engineering across all
disciplines, everything, except for biomedical science, and all
of our directorates. When the budget goes up, they all take
part in it, and, when it goes down, everything is decreased.
We believe that all of the disciplines, that is what our
whole convergence theme is about, need to work together to
address major challenges and, in order to do that, we need to
fund all aspects of science and engineering, because we never
know where the next breakthrough is going to come from.
And so the Ten Big Ideas specifically--well, six of them
are research ideas and four are enabling ideas like convergence
and all disciplines coming together, like inclusion and
broadening participation--they are a strategic framework to
look ahead and say where the country is going. And they are
very, very broad, they came out of the core, and they will go
back into it once they are funded for a few years and new
strategic thrusts emerge.
But I hope sincerely that we are funding all areas of
science and engineering, because they are all very, very
important for our mission.
NSF BUDGET PLANNING
Mr. Case. Was there a direction at the National Science
Foundation to cut 10 percent and find out how to cut it, or was
there a more educated process to decide within each of your
departments as to the prioritization there?
I am looking, for example, at biological science, 9.7
percent cut; computer information science and engineering, 8.1
percent; basic engineering is 13.3-percent reduction; math and
physical science, 16.5 percent; social behavior and analytic
economic science, 5.6 percent; Polar programs, 19.6 percent.
I mean, these are all reductions, they are all in some
range. How were those reductions made? I mean, was this a
bottom-up assessment of National Science priorities or was this
a top-down direction to simply reduce the budget?
Dr. Cordova. Well, first of all, the President's budget is
a 5-percent reduction below the fiscal year 2019 request in
non-defense spending, in order to shrink the deficit from
nearly 5 percent of GDP in 2020 to under 1 percent of GDP in
2029. And the President's budget reflects that steps we take
today to reduce the deficit will help the Nation remain
globally competitive and allow our children and grandchildren
to remain unencumbered by today's spending. So that is the
overall framework for the 5 percent.
And beyond that, if you are asking for details, we at the
National Science Foundation all work--when we have a target
that we are working for, we work very closely together. It is a
bottom-up and a top-down process where we decide what it is
that are priorities of Congress, priorities of the
Administration, and priorities of the scientific community
through input like all the reports, studies of the National
Academy of Sciences and our advisory committees--we put all of
that together and we come out with a budget that reflects where
we think we need to go.
Mr. Case. Did you have a budget cut directive--back to my
question--did you have a budget cut directive to get to 10
percent or was there a more deliberate, thoughtful, generating
bottom-up process that assessed that, for example, in the area
of biological sciences, you know, we needed to cut by almost 10
percent in that department to arrive at some kind of a merit-
based assessment?
Dr. Cordova. I think, as I said, Congressman, that the
overall framework is the President's initiative to get us back
on course with a big deficit that our country is facing and
that requires some pulling back on the funding that we have in
non-defense spending and, within that framework, we made very
conscious decisions about what to do internally.
And I think if you look across the various directorates and
you compare them with things that we did in the last couple of
years, for example, in fiscal year 2018, we got the money late
enough, an extra $300 million, that we gave it towards one-time
funding of specialty facilities that were in great need of
repair, Arecibo and others are included in that.
And that pushed up certain units in fiscal year 2018. Once
they had spent that one-time funding, then we had that money to
apply across the board in fiscal year 2019. And so there are
little puts and takes as we go along because of one-time needs.
But in setting the 2020 budget, we had this overall
framework of minus 5 percent below the 2019 cap level, and then
we went about making conscious decisions about where to take
that from. I think you will find that those, the puts and
takes, are very fairly done within that framework.
Mr. Case. Well, they are distributed fairly evenly, I will
give you that, but still it is a big cut overall. And that is
what I am trying to get at is what kind of prioritization am I
supposed to make of that, not only within the scientific
community, but kind of across the federal budget. And I
understand you are not going to speak to the rest of the
federal budget, you are here to talk about the National Science
Foundation.
But, again, I am asking you what is actually going on under
the surface of this President's budget in the area of
scientific research, which we all agree is critical to this
country?
Dr. Cordova. This is the President's budget. I think you
can see that there are priorities of the Administration that
are right in sync with NSF priorities in artificial
intelligence, quantum research, wireless communications,
advanced manufacturing and all. So we do have the priorities of
the Administration in our budget.
Mr. Case. OK. Thank you very much.
Mr. Serrano. Thank you.
ANTARCTIC INFRASTRUCTURE MODERNIZATION FOR SCIENCE (AIMS)
Director Cordova, your budget request includes a request
for $98 million in funding to continue work on the
modernization of the McMurdo facility in Antarctica. Could you
briefly walk us through this project?
Dr. Cordova. Yes. So the----
Mr. Serrano. When we are talking about Antarctica, I am
telling staff, I get very nervous about asking you to walk us
through just in case it is melting, you know, so----
[Laughter.]
Dr. Cordova. Well, the AIMS project really started
conceptually with the blue ribbon panel that was conducted
several years ago now, led by Norm Augustine, in which a panel
of very distinguished scientists and engineers evaluated the
situation at the McMurdo Station, which is one of three
stations that make up the U.S. Antarctica program and that NSF
runs on behalf of the country.
And McMurdo is the first station that you arrive at there
on the continental coast, and it is by far the largest station,
and it is an important depot for logistics to the South Pole
and logistics to all the camps where research is done around
the McMurdo area.
It is an aging facility. It is something like 40, 50 years
old, and it looks like an old mining town that has been left
unattended for decades. I first went there in 1996 when I was
NASA's Chief Scientist as part of the team to evaluate the
conditions at the South Pole station. As a consequence of the
Senate's and Congress' look at that, the South Pole station was
refurbished, but not McMurdo. And so McMurdo, in the
intervening years, has just become more and more in need of
refurbishment.
So the AIMS project was our attempt to come up with a
modernization for science program--it stands for Antarctica
Infrastructure Modernization for Science--to address this. And
it is a very ambitious program. It will address logistics, it
will get rid of a lot of old, crumbling buildings there, and
put things together in a much more streamlined, efficient plan
in order to be able to handle logistics in a better, cheaper,
faster way, eventually, but not without an initial cost in
order to pay for it.
So that cost has just been determined by a design review. A
final design review was just completed a few months ago and
presented to our National Science Board in February of this
year, and they approved that cost, which is about $410 million,
and it is starting right away. We are ready and doing
procurements for the ships that will then take all the supplies
down there on the next season, which starts in October.
ANTARCTIC OPERATIONS
Mr. Serrano. You know, this question comes to mind, it is
not a prepared question. So we are there doing some work,
research and so on now, what other countries are in that
continent?
Dr. Cordova. There are many, many other countries that are
there, and you can see the flags flying of more than a dozen,
maybe close up to two dozen nations. I don't even know. At the
last time I counted the flags, there were 17, but there may be
more nations that are involved in Antarctica.
Mr. Serrano. Thank you.
As I understand it, due to the harsh weather and remote
location, there are only certain times of the year this work
can be done. How will the timing of appropriations impact the
completion of the project?
Dr. Cordova. The----
Mr. Serrano. You know, we tend not to always be on time.
[Laughter.]
Dr. Cordova. Well, we kind of figured that out a few years
ago when we had a shutdown that started on October 1st and I
think in 2013, and so we now--for Antarctica operations in
general, we forward-fund the operation, so that we don't get
stuck with people and equipment and everything during the
crucial season, which goes from October to February.
For this project, we are fine for starting out for the
coming year, because the Board did approve it and we have the
funds--thank you, again, for fiscal year 2019 funds--to do the
procurements. And so by the time the icebreaker goes and breaks
the ice and the supply ships follow it to McMurdo, we will have
it all ready.
But, in general, your question is a very good one that
appropriations are important on time, so that we can make the
procurements, because, once you miss that deadline of when the
icebreaker comes and breaks the ice there, then you have lost
the entire season.
Mr. Serrano. You know, I may be the only Member of Congress
who ever so often makes a sound, like gridlock does not bother
me, because gridlock is a result of democracy. There are
countries where the budget is always on time, you know, because
there are only a couple of people making the decision, and here
we have a lot of people making the decision.
MID-SCALE RESEARCH INFRASTRUCTURE
Your budget request includes $75 million for the new Mid-
scale Research Infrastructure program, which would invest in
research facilities smaller than a telescope, for example, but
larger than what can be funded within existing programs. Can
you give us some examples of what sort of projects these would
be?
Dr. Cordova. Sure. As I mentioned earlier, we got a few
hundred proposals for our first Mid-scale launch, and those
just recently arrived, and they total about $4.7 billion in
requests. I can't talk about those specific proposals, of
course, because they are being evaluated, but I can give you
several examples of projects that we are doing that are within
that frame of a few million dollars to about $70 million.
One is Advanced LIGO Plus. Advanced LIGO Plus was financed
because of the augmentation we got in fiscal year 2018, and so
we funded it over 2018 and continuing into 2019, and that
project is within that budgetary amount. And that is going to
open up a huge volume of the universe to be able to detect
gravitational waves.
We have funded upgrades to the Alvin submersible vehicle to
study our oceans--that is also in the same monetary framework.
We funded improvements to NHERI, which conducts earthquake
research and has a shake table that needed refurbishment. We
funded a refurbishment to the Palmer Pier. In Antarctica,
Palmer is one of our three stations that desperately needed
funding and that was also in that same money framework.
And then, finally, we funded the two detectors for the
Large Hadron Collider, which are done together under MREFC. Our
upgrade is a $75 million contribution, so that would have fit
within that area.
So you can see then from Geoscience to Engineering, to Math
and Physical Sciences, they all have very important projects
that can be done as mid-scale projects. There is just
tremendous demand out there.
And, as technology improves, there are more and more
projects that are going to be costing less money. And I guess I
could mention Computer and Information Science and Engineering
and their recent $60 million award for the Frontera system, a
supercomputer, a high-performance supercomputer at the
University of Texas Austin, that is also within that framework.
So it doesn't matter what discipline you are in; there are
a lot of important projects that can be done.
SEXUAL HARASSMENT POLICY
Mr. Serrano. In September of 2018--this is my last
question--NSF released a new policy on dealing with sexual
harassment by foundation grantees, including the possibility of
terminating grant funding because of harassment.
Is it your sense that the policy is working and how many
complaints have you received?
Dr. Cordova. It is our sense that the policy is working for
a couple of reasons. We have gotten tremendous feedback from
the community over how important this is, and it will hold
institutions accountable for the conduct of researchers. That
in itself makes people feel more empowered in the work and the
research they are doing. It was a real eyeopener to see how
devastating harassment can be within the science and
engineering communities.
Universities are being very responsive and calling us at
the first inkling that something is amiss just to get our
advice, even as they are proceeding with their own inquiries
and investigations. We have teams that have gone out, as you
probably know, for a long time and have checked on Title IX
compliance, and so those teams are continuing to be out there.
But I think, as far as your question is concerned on how
many, that is a question that is changing, as you can imagine,
as we proceed and I would have to ask our Office of Diversity
and Inclusion to get back to you with specific numbers.
NSF'S SEXUAL HARASSMENT POLICY
There are three levels of reporting associated with NSF's
Sexual Harassment Policy: (1) notifications--when NSF-funded
awardee institutions submit notifications through a secure
portal to ODI as required by the new harassment term and
condition which became effective October 22, 2018; (2)
complaints--when individuals who believe that NSF-funded
awardee institutions violated Title IX and they elect to file
allegation(s) of sexual harassment with ODI; and (3)
communications--when anyone informs ODI of alleged instances of
sexual harassment regarding NSF-funded awardee institutions
that may lead to a complaint.
Since NSF's release of Important Notice No. 144 on
February 4, 2018, stating that NSF will not tolerate sexual
harassment, we have received scores of communications
pertaining to allegations of sexual harassment, which led to
six formal complaints filed with ODI. Since the effective date
of the harassment term and condition (October 22, 2018), NSF
has received eight notifications from NSF-funded awardee
institutions regarding their PIs or Co-PIs being subjected to
administrative action because a harassment complaint was filed
against them (i.e., administrative leave, barred from entering
campus) or findings were made in harassment investigations
conducted by the NSF-funded awardee institution. It is
important to note that an NSF-funded awardee is required to
make notification to ODI only if there is a finding/
determination, placement on administrative leave or the
imposition of any administrative action by the NSF-funded
awardee institution's against the PI or Co-PI regarding sexual
harassment on an award made or supplemented after the effective
date of October 22, 2018.
Under the new term and condition, which became effective
approximately six months ago, a few NSF-funded awardee
institutions have elected to remove or replace a PI or Co-PI
which was supported by NSF. In this short period of time, NSF
hasn't required any NSF-funded awardee institutions to remove
or replace a PI or Co-PI as a result of the new term and
condition.
You have to realize that we actually put this into force as
of the end of October, I think it was October 26th of this past
year, so there has been relatively little time for--and we had
a shutdown in the middle of that--for universities, for things
to happen since that time. So we can also expect that we really
need to evaluate any rise in the number of such instances over
the next couple of years; that will be the important marker
here.
Mr. Serrano. Have any investigators had their grant funding
withdrawn?
Dr. Cordova. Under this program that we just started, this
new term and condition as of late October, not to my knowledge.
But, again, our people that are doing that would have to get
back to you.
We are notified and we have been for a long time when
investigators commit a transgression, and we have been on top
of it and looked into it before this, using our Title IX
wherewithal, and there universities have removed investigators.
And then when the research is implicated, when they have NSF
funding, then we work with the universities to see if that
research should continue or not with a different principal
investigator or whatever to make accommodations for the
research itself without the investigators.
But it is really, in the end, up to the institutions to do
something and then--right now they are required to report to us
when they have done something so that we don't get the
information secondhand, as we had previously. But there have
been people that have been removed from research by the
universities in the past.
Mr. Serrano. Thank you.
Mr. Aderholt.
Mr. Aderholt. Thank you.
AIMS ESTIMATE INCREASE
Let me follow up with the AIMS project that you talked
about a little earlier. Of course, the budget request includes
$98 million to continue the construction and I understand the
project is now, as you mentioned, $410 million. Why have the
cost estimates increased?
Dr. Cordova. So, as I mentioned, we just finished with the
final design review and the independent cost estimate, and both
of those came out together at the number that we proposed to
the National Science Board for their approval of $410 million.
So those were the numbers after very good studies were done.
That is an increase from the original estimate, back in the
first days of conceiving the project, those are increased for a
couple of reasons. One is because commodities price markets
have just changed, and things are more expensive now than they
were in the past, and also the whole construction industry in
this country has changed because of natural disasters like
hurricanes, and so that has changed the market as well.
So, assessing all those factors is why we have a design
review and why we have independent cost estimates to get a
really good number. So we will be held to that number as far as
our no-cost-overrun policy is concerned.
Mr. Aderholt. As it proceeds over the coming years, you
don't expect there will be additional costs at this point?
Dr. Cordova. We hope that our cost estimates are very good
ones. There are always what we call unknown unknowns, things
that you couldn't even imagine that would happen, and then we
will have to deal with that, but that would apply not just to
AIMS, that would apply to any facility that we have anywhere.
NSF'S ROLE IN VORTEX SOUTHEAST
Mr. Aderholt. Of course, as you know, tornados are a real
concern in my home state of Alabama, and of course other states
in the Southeast as well, and we have had a lot of destructive,
deadly tornados over the years. Just earlier this month, we had
23 people that lost their lives when an EF-4 tornado tore
through the eastern part of the state, and that is why research
at VORTEX Southeast are so important. It brings the federal
agencies together to better understand how environmental
factors affect tornados, the formation of them, their
intensity, and of course their path.
Can you talk about NSF's role in the VORTEX Southeast and
how NSF has worked with NOAA to build a research campaign to
study the unique characteristics of tornados there in the
Southeast.
Dr. Cordova. First of all, Congressman Aderholt, our hearts
go out from the National Science Foundation to those whose
lives were lost or disrupted by those tornadoes. And,
unfortunately, tornadoes, hurricanes, floods are events that we
have had to live with. And our goal at NSF is to do the
research that is needed to better predict those kinds of things
and what their consequences could be to help people to get out
of harm's way, and to also help with recovery. So prediction
and resilience and recovery are what we fund research about.
Now, with NOAA we do have a collaboration on the VORTEX
program. As you know, it is run out of NOAA's National Severe
Storms Laboratory in Oklahoma, and that began with a workshop
in 2015 in Huntsville, Alabama, and that field work is ongoing
and was in effect when those deadly tornados struck earlier
this month.
NSF has contributed a lot to tornado research. I mentioned
in my oral remarks about the development of mobile Doppler
radar. Kelvin Droegemeier, the new Director of OSTP and a
former vice chairman of the National Science Board, which is
the policy arm of the National Science Foundation, is a tornado
researcher and we have funded a couple of the centers that he
has headed up on this tornado research.
So we stand ready to work with our partners at NOAA and
NSSL to support scientists to conduct this vitally important
research.
Mr. Aderholt. Is--oh, you know, how would NOAA's proposal,
as I understand it, to terminate funding for the VORTEX
Southeast in fiscal year 2020 impact your work at NSF?
Dr. Cordova. As I said, we are committed to research and
that project has been a particularly good one. We will continue
to fund through our PREEVENTS program in engineering and
geosciences, we will continue to be funding the research that I
mentioned on prediction and resilience and prevention. I don't
know the details of NOAA's budget, of course, but our
commitment there is to do this important research.
ARTIFICIAL INTELLIGENCE AND GLOBAL COMPETITIVENESS
Mr. Aderholt. And I know earlier there was a question about
artificial intelligence, and you talked about that in your
comments and I think you answered the question. Just to follow
up on that, in your opinion, is the United States, do you think
it has fallen behind competitors such as China when it comes to
funding artificial intelligence research and other emerging
technologies?
Dr. Cordova. I don't. We continue to have very high
standing among the top organizations and research institutions,
universities that are doing this kind of research, we still are
in the--whatever number you take, top 20, top 10--we still have
the leading groups in this country that are doing that
research.
We have a tremendous amount of talent and innovation out
there. We have a great plan. The White House in 2016 produced
an artificial intelligence strategic plan, which is being
evaluated by the present Administration. We have a select
committee on artificial intelligence that I co-chair with the
head of DARPA to work with all the agencies to put us ahead in
artificial intelligence. And, very importantly, we have a
remarkable industry that surrounds, that is involved, engaged
with artificial intelligence, and that is a very creative force
and that industry, working together with the government and
with non-profits, that just can do amazing things.
We have meetings continually with industry and the White
House, and with all the other agencies, on where we need to be
leading in artificial intelligence. And just NSF alone, I
estimate by counting across all directorates, is spending
something like $492 million on artificial intelligence even
within this budget. That is really counting broadly over all
the things we do in computer science and with high-performance
computers to enable artificial intelligence, but it is all
relevant, because artificial intelligence is really a
collection of things, a collection of approaches.
The basic research that we are doing on artificial
intelligence I think is going to be the real game-changer.
There is a lot of innovation in very selected areas of
artificial intelligence that are coming out of industry and
will continue to come out of industry. But if you think of
something like the Internet or the World Wide Web, those came
from government funding, and I believe that the real innovation
that is going to come in artificial intelligence is also going
to come from government funding and it is going to start with
basic research.
Mr. Aderholt. Are you collaborating with international
partners in doing--to advance the research regarding artificial
intelligence?
Dr. Cordova. We are collaborating with selected
international partners, yes. There is, as you know, a huge
hunger to do all aspects of artificial intelligence and
countries in Europe and Great Britain are among them. We fund
investigators, they fund their own investigators, and we do
partnerships together. You know, much of the research that is
produced and the majority of publications have international
teams of authors, and we have gained so much from other
countries by working with their best people, their most
talented people, and I think that is definitely the wave of the
present and the future.
Mr. Aderholt. Thank you.
I yield back.
Mr. Serrano. Well, we have no more questions. We want to
just mention that we will have additional questions for the
record.
Dr. Cordova. Of course.
Mr. Serrano. We want to thank you for your testimony today.
We want to thank you for your advocacy on behalf of your
agency. We are very supportive of NSF and we will continue to
be as your process develops.
So, thank you for your testimony today.
Dr. Cordova. Thank you, Chairman Serrano.
Mr. Aderholt. Thank you.
Dr. Cordova. Ranking Member Aderholt, thank you.
Mr. Serrano. And the hearing is adjourned.
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Tuesday, March 26, 2019
MEMBERS' DAY
Mr. Serrano. The hearing will come to order. This
afternoon, we have a great opportunity to hear from our
colleagues in Congress about the programs and agencies that
they care about. The CJS bill covers a lot of territory, so it
is important that as we move forward with the fiscal year 2020
appropriations process, we try and put in priority what is
important to those who serve with us.
Last year, I noted to Chairman Culberson that it is
interesting that every member who came before us asked for
further investment in the areas covered by this subcommittee.
No one comes here to tell us to reduce funding for our agencies
or programs. It shows the importance of investing in our Nation
and everything from scientific research to a fair and equitable
justice system to economic development and beyond.
I look forward to hearing from our witnesses. And with
that, let me turn to my colleague, Mr. Aderholt.
Mr. Aderholt. Thank you, Mr. Chairman. And thank you for
yielding. And certainly, as you mentioned, this subcommittee
covers a wide swath of issues, important federal funding from
combating crime and terrorism, promoting trade, forecasting the
weather, invest in basic research, and of course, space
exploration.
And so I also want to thank the chairman for holding this
Member Day hearing and allowing members from the House to be
able to come before our subcommittee and to talk about issues
that are important to them. I think it is vital that members do
have an opportunity to convey their priorities and to educate
us on the issues that are important to them. We want every
member to know that we are listening to you and we want to try
to accommodate every way we can as we proceed through the
appropriations process.
So with that, thank you again, and I yield back.
Mr. Serrano. Thank you, Mr. Aderholt. I just want to
reinforce your comments. We may not keep you here a long time,
but it doesn't mean we are not listening and we are not taking
notes. Trust me.
So our first witness, speaker, presenter is my colleague
and brother from New York, chairman of our democratic caucus,
Mr. Jeffries.
STATEMENT OF HON. HAKEEM S. JEFFRIES, A REPRESENTATIVE IN
CONGRESS FROM THE STATE OF NEW YORK
Mr. Jeffries. Good afternoon, Chairman Serrano, Ranking
Member Aderholt, and distinguished members of the subcommittee.
Thank you for the opportunity to testify on funding priorities
for the fiscal year 2020 Commerce, Justice, Science, and
Related Agencies Appropriations Bill.
Before I say anything further, let me just state on the
record our gratitude. The people of New York are grateful for
the 45 years of iconic, legendary, distinguished service that
you, Chairman Serrano, have provided to the people of the south
Bronx, who are much better off for you having taken this public
service journey. And we look forward to continuing to work with
you through the balance of the 116th Congress.
I am here to request that the First Step Act receive the
full funding amount authorized by law. The First Step Act
became law on December 21st of last year, when it was signed
into law by President Trump, after passing the House of
Representatives and Senate with overwhelming bipartisan
support, led in a significant fashion by Congressman Doug
Collins.
A key component of this important legislation was the
authorization of $75 million per year for the Bureau of Prisons
to expand and develop opportunities for incarcerated
individuals to participate in programming and productive
activities shows to reduce the risk of recidivism. This
programming will provide returning citizens with the necessary
tools for a successful and lasting transition back into their
communities.
It will also make our federal prisons more effective places
of rehabilitation and eventually reduce overcrowding and save
taxpayer dollars.
Today, there are more than 180,000 inmates in the federal
prison system. Almost every single one of them will be released
at some point in time. However, high rates of recidivism
suggests that we can do much better to prepare currently
incarcerated individuals for reentry. Research has shown that
programming, like the kind authorized by the First Step Act,
will dramatically reduce recidivism and save taxpayer dollars.
According to a recent study, inmates who participated in
correctional education programs were 43 percent less likely to
recidivate than inmates who did not. Congress passed the First
Step Act to give individuals in the Bureau of Prisons' custody
a better chance to return to a productive law abiding life.
Funding for the law's implementation is critical to achieve
this goal.
We have seen many examples of educational, vocational, and
faith based programming, making a real difference in the lives
of incarcerated individuals. While the BOP currently offers
literacy classes, English as a second language, parenting
classes, wellness education, and adult continuing education,
demand greatly exceeds supply.
One study found that 70 percent of incarcerated individuals
who wanted to take an education program in order to expand
their knowledge or skills and to increase their chances of
getting a job upon release, expressed an interest, but only 21
percent were actually studying for a formal degree or
certificate because of the lack of capacity.
Further, BOP has reported long waiting lines for work and
educational programs. It is critical that we provide everyone
who wants to participate an opportunity to do so. While the
expanded programming and associated earn time credits will lead
to significant long term cost savings for taxpayers and
improved public safety, the First Step Act must be fully funded
at $75 million per year over a 5-year period to make these
benefits possible.
This is an opportunity to make a transformational
investment in the lives of incarcerated and formerly
incarcerated individuals, giving them a chance to be bigger
than the mistakes that put them behind bars, and to continue
the progress that we have made in a bipartisan way on criminal
justice reform.
Once again, I thank the distinguished chairman and ranking
member for your time and consideration.
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Mr. Serrano. Thank you, Mr. Jeffries. So we usually at
these meetings don't ask many, if any, questions. But we want
to first congratulate you on a bipartisan bill passing, which
is unique every so often. And secondly, an important question,
is there someone in the Senate asking for this amount also?
Mr. Jeffries. It is my understanding that Chairman
Grassley, who was the lead sponsor in the Senate, along with
several other members on the Democratic side of the aisle are
fully supportive of the $75 million and will work to carry the
load on the Senate side as well, since that was a critical and
important part of the legislation.
Mr. Serrano. Great. Is that all? Thank you, Mr. Jeffries--
--
Mr. Jefferies.. Thank you, Mr. Chairman.
Mr. Serrano [continuing]. For your testimony. We will call
you when we get the money.
Mr. Jeffries. I hope so.
Mr. Serrano. Don't call us. We will call you. Mr. Posey is
next.
----------
THE HONORABLE BILL POSEY, A REPRESENTATIVE IN CONGRESS FROM THE
STATE OF FLORIDA
Mr. Posey. Thank you----
Mr. Serrano. Welcome.
Mr. Posey [continuing]. Mr. Serrano and Ranking Member
Aderholt for holding this hearing today. You actually want to
hear from members about what their priorities are, and thank
you for the opportunity to come before you and talking about
keeping America's Space Program first in the world.
As you know, the United States is the only nation to have
landed humans on the moon and return them safely to Earth. It
is among the greatest achievements in the history of mankind
and has significantly contributed to America's leadership in
the world.
The Apollo Missions opened the door to other significant
accomplishments, like building space shuttles to test the
limits of human space flight, prolonged, robotic exploration of
Mars, launching a space-based telescope that can see far beyond
our solar system, and conducting scientific research on the
International Space Station that is benefitting those of us on
Earth, as well as enabling us to understand and prepare for
challenges of long-term space missions.
In 2010, Congress authorized a construction of NASA's Space
Launch System, that you will hear referred to as the SLS, as a
successor to the space shuttle that will be capable of
launching both cargo and human crews into space. The idea is to
build a powerful rocket that will enable humans to return to
the Moon and eventually travel to Mars and other deep space
destinations. The SLS and its Orion crew capsule have received
strong bipartisan funding support by Congress over the past 9
years.
Today, I ask you to continue that support in order to keep
the SLS program on track and ready for its first mission next
year. I respectfully urge you to consider a total funding level
of $2.15 billion for the Space Launch System for fiscal year
2020, which would preserve the fiscal year 2019 approved
funding level and avoid the proposed $400 million reduction in
the Administration's budget request. This funding is necessary
to complete the rocket and build the necessary infrastructure
on the ground to support the first launch.
Specifically, no less than $200 million is needed for the
exploration upper stage, which will make it possible to have
both human crews and cargo on board the same flight. The Orion
crew capsule will serve as the exploration vehicle that will
carry astronauts to space atop the SLS. For 2020, 1.5 billion
is needed to continue building this cutting edge Orion vehicle,
the only capsule currently being designed and assembled which
can protect our astronauts below Earth orbit, in Moon orbit,
and around Mars.
Lastly, we need to continue our efforts to build the
infrastructure needed on the ground support for safe and
successful launches. Exploration ground systems are critical to
our space launch capability. Put simply, without strong launch
systems on the ground, the rockets don't go anywhere.
I am requesting that the committee keep this mission on
track by providing $590 million for the exploration ground
systems in fiscal year 2020 and an additional $50 million to
continue the construction of the second mobile launcher, which,
when completed, will give us a unique multiple launch
capability and further protect our national security. This will
also preserve the fiscal year 2019 approved funding levels.
You can't help being impressed with the progress and
development of the commercial space sector. I am excited about
launching American astronauts from American soil, aboard both
the Boeing Starliner Crew Vehicle and SpaceX Crew Dragon. These
low Earth orbit missions are important for sustaining our
research being conducted on the International Space Station,
allowing NASA to plan bold, deep space exploratory missions.
One final point, as I have often said, space is critical to
our national security. It is the ultimate military high ground,
and whoever controls space will control the destiny of the
world. That is why it is so important that we maintain
America's leadership in space.
The Defense Intelligence Agency released a report in
January entitled ``Challenges to Security in Space,'' which
discusses plans by China and Russia to develop their own
versions of super heavy lift space vehicles similar to our own
SLS. Now is the time to double down on America's space program
and commit the resources necessary to keeping America first in
space. It would be foolish to relinquish this military high
ground to Russia and China, who perhaps do not have America's
best interest in mind.
I want to again thank you, Chairman Serrano, and Ranking
Member Aderholt, and the committee for your time today. Space
has been one of the truly bipartisan issues in Congress. I very
much enjoyed working across the aisle on issues. Our
achievements in space have served to unify our Nation and the
world.
I ask my colleagues to join as we continue to build a
foundation for the next decade to be defined by human
exploration, scientific discovery, and American achievement.
Thank you very much.
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Mr. Serrano. Thank you, Mr. Posey. Just one point to make
and that is in the change of ranking member and chairman in
this committee, one thing did not change and it is our respect
and our love for the work that NASA does. So your words are not
falling on closed ears here.
We can't tell you you can walk out with the money, but we
can tell you that it is not just an exercise in making a
statement.
Mr. Posey. I have never felt that way in this committee.
Mr. Serrano. Thank you.
Mr. Posey. I thank you. Bless you, Mr. Chairman.
Mr. Aderholt. I appreciate your comments on that, and I
agree, and we appreciate your testimony. Thanks so much.
Mr. Posey. Thank you.
Mr. Serrano. Ms. Jackson Lee, please join us.
----------
THE HONORABLE SHEILA JACKSON LEE, A REPRESENTATIVE IN CONGRESS
FROM THE STATE OF TEXAS
Ms. Jackson Lee. Mr. Chairman, thank you, first of all, for
giving me this opportunity, Mr. Aderholt. Both of you, I have
had the opportunity in the years that I have served to work
with, and I thank you very much for your very sincere and
important work on committees that I have overlapping
jurisdiction as a member of the Judiciary Committee.
So these are very important issues before me. I would like
to generally make a statement dealing with the work of the
issues of commerce, the issues of justice, and the issue of
science. Much of this are economic engines that are important.
I have been on the Science Committee for a number of years in
my early service to this Congress. It is an important
committee. And I still remain on the Judiciary Committee.
As it relates to commerce, one of the important
responsibilities of commerce is a census. That is the lifeline
of the American people in ensuring that the work of counting
Americans, everybody that is here, is important. And I am a
strong supporter of $8 billion and may need a little bit more
for the census because I think we need to address concerns with
our very diverse population.
As I recall, in the Constitution, it is to count every
single person. It doesn't ask them for any litmus test, or who
they are, or what--but they are in this country and they need
to be counted. So I hope that some of the extra attachments or
extra restraints about asking questions on citizenship and
otherwise, that we realize that the constitutional fathers
intended that every single person be counted.
Let me now indicate my concern on criminal justice reform,
advancement of scientific knowledge and space exploration, and
expanding the economic opportunity.
I support $300 million for community oriented policing. I
think we need to restore that. Remember that program came in
under the 1990s with President Clinton. I will tell you, our
law enforcement celebrate the opportunity to invest in good law
enforcement, rebuilding the trust and confidence between the
law enforcement and community. And I think the COPS program can
help that.
I support $75 million for the National Instant Background
Check. As a member of the Judiciary Committee, we have just
passed legislation regarding universal background check. But we
also had the NICS fixed that individuals who were able to
squeak through and get guns, like Dylann, like the gentleman
who went into a South Carolina church in Charleston, South
Carolina and killed nine worshipers. This money is very
important.
I support $450 million for the Byrne Justice Assistance
Grant just passed on the floor of the House, a reauthorization
of the juvenile block grant, and the bullying intervention and
prevention. Talk to any parent in America's schools and
neighborhoods. They are crying out for intervention programs
dealing with bullying and cyber bullying. My legislation deals
with that. Byrne grants can be very helpful in a number of
issues from juvenile justice, crime prevention, education, and
corrections.
I support $255 million for the State Criminal Alien
Assistance Program and support and recognize the critical role
of this program, and particularly in Texas.
I support $150 million for Second Chance Act. This is
something that I worked on with Danny Davis. He was the lead.
But it provides grants to government agencies and I would like
to see us ensure $150 million. I would argue that there are so
many people that are impacted by this that I would like and
hope the committee could consider increasing that amount.
I support $500 million for the Violence Against Women Act.
I wrote the bill that is now headed towards the United States
Congress floor of the House. We have passed it at a hearing in
the subcommittee, marked it up in the full committee. It is an
important initiative that has a large amount of funding for our
law enforcement to be able to prosecute. And we realize that
domestic violence is an epidemic, and the importance of
providing law enforcement, and counseling, and all of that. And
so this is a very important funding source.
I support $35 million to prevent the trafficking of girls.
Houston, Texas has been called the epicenter of trafficking.
Trafficking is all around the world. And the one point that I
would make about trafficking, again, I ask and encourage
increased funding. The one thing about trafficking is it is
recycling. These girls can be recycled and these boys can be
recycled. You can use--drugs is one thing, but you can make
money on cycling these children in the trafficking business and
we need to stamp out trafficking. And so I would support
increasing that.
Two hundred fifty million dollars for the juvenile justice
programs. I have mentioned earlier the importance of these
programs. I am looking to reform the juvenile justice system.
Many people don't realize, and I certainly would hope this
could support best practices, that juveniles are not sentenced.
They are sent to the juvenile system with no sentence. And
literally, they can stay there until they are 21.
I think credible adults and family members would want to
see a better pathway for their young people for them not to be
part of the recidivism of someone who stays in a system for 8
years or more because they come in at 12 or 13 and they have
infractions. And all of a sudden, they are there until they are
21 years old.
And so I am hoping that maybe language could suggest that
states need to be more effective and creative with how they
house juveniles.
I support $125 million for the Debbie Smith DNA backlog. I
have worked on this issue with a number of my colleagues. And
this has to do with the DNA labs. And before we got our hands
into it, DNA labs are dealing with rape kits across the Nation,
it was appalling. We have made a great difference. I hope $125
million is, in fact, sufficient, but I would encourage
consideration on that one as well.
Let me quickly say the Civil Rights Division, it is
something that I hope we can look at in a bipartisan way. It is
a very important set of agencies. It is $30 million--I just
want to make sure that they are able to deal with the intrusion
of outsiders, Russian adversaries and others, into our election
process. I want them to be able to protect the voting rights,
to protect civil rights, to be able to stand in the courts
against hate crimes. And they really need to be assured with
the resources, the investigatory resources that they need. I
would encourage an increase in the $30 million, but I support
it.
Five hundred million dollars for Legal Services is a vital
organization. Many times, they are the only lifeline--if you
don't have a public defendant, only lifeline for the vulnerable
in things like disabilities benefits, families.
Finally, with science, I support 1.25 for NASA's Commercial
Crew Program, but I also support ensuring that the Orion, which
is our product, comes back online, which is our ``space
shuttle'' that we can work on.
I support $40 million for the National Space Grant College
and Fellowship Program. Science has created such an energy of
economic infusion and I enjoy being on the Science Committee
because of the opportunities for protecting research and
development. But I think with your leadership on these issues,
you can know that this--these dollars create an economic
engine.
I support $35 million for the Hispanic-Serving Institutions
Undergraduate Program at the National Science Foundation
because we need to diversify science and make sure everyone has
an opportunity.
And I mentioned economic opportunity, so I support 32
million for Minority Business Development and $275 million for
the Economic Development.
Let me conclude by saying this. The Justice Department is
very important to all of us. It is the anchor of justice and
the anchor of being the people's lawyer. And so I am just
concerned that as you proceed with your review, I know there is
an authorizing committee, that we can look to the Justice
Department, not to file frivolous lawsuits, and that they hold
up what the American people want. And I am a victim of that. I
am a victim of that because I am from the State of Texas. And
so now there is a lawsuit to completely dismantle the
Affordable Care Act using the case in Texas, when Texas has
been the largest state--someone said that some other states
have been competing with them--the largest state of uninsured
individuals.
We can't afford to lose access to healthcare, preexisting
condition. And my state is being used to abolish the Affordable
Care Act with no replacement. I don't know who makes decisions.
I assume, obviously, the President controls every--but there is
a Department of Justice.
So I would just offer to say you have the oversight over
this committee and just know that we are suffering. And I don't
know how this lawsuit is going to play out. Obviously, my state
leaders were involved in it. But it is sad and I would just
hope that we would look to do what is for the greater good of
the American people.
I thank you very much again for your leadership. And it is
a lot of work. And I hope that my comments about supporting
certain important elements of the work will play a role because
I think it would benefit not only the 18th Congressional
District in Texas, but the whole Nation.
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Mr. Serrano. Well, thank you, Congresswoman Jackson Lee. I
suspected when I saw you that you were going to cover a vast
area because your advocacy has been that for so many years in
Congress where you cover a lot. In fact, I think the only thing
you left out was the Congressional pay raise. That is never
going to happen, so forget it.
I just want to tell you that so many of the things you
mentioned are of great interest to both the ranking member and
the chairman. I have a special interest in the census and
everyone, in short, because the census really tells us who our
country is, who we are, and how we can go forward.
In fact, I would either--having been born in a territory of
Puerto Rico, I would even want the territories to be included
in the final count. They are not now, so there are American
citizens who don't get counted in the population of the United
States. And I know the Constitution says count the people
amongst the states, but they didn't envision holding a colony
for 120 years or so. So there is a lot, but there is so many
other things you mentioned are things that we will be talking
about.
Thank you for your testimony.
Ms. Jackson Lee. Thank you so very much.
Mr. Aderholt. Thank you for your testimony.
Ms. Jackson Lee. Thank you. Thank you for the time given.
Thank you.
Mr. Serrano. Mr. Brooks. Congressman Mo Brooks.
----------
THE HONORABLE MO BROOKS, A REPRESENTATIVE IN CONGRESS FROM THE
STATE OF ALABAMA
Mr. Brooks. Thank you Subcommittee Chairman Serrano and
Ranking Member Aderholt. It is a pleasure to be with you today.
I come to emphasize the importance of the Space Launch
System, commonly referred to as SLS, to achieve America's space
goals. As a Nation, America must strive to inspire the next
generation. The SLS is America's catalyst that inspires our
next generation of engineers and explorers. Alabama's Marshal
Space Flight Center has played a vital space role for NASA and
America. In a way, America's space program was born in Alabama.
By way of one example, we designed and engineered the
Apollo 5 rocket that took American astronauts to the moon.
Today, we play an integral role in the designing, engineering,
and testing of the SLS. NASA and its suppliers great work is
turning science fiction into reality.
The SLS helps ensure America's continued dominance in
space, a dominance that includes returning astronauts to the
moon for long-term exploration and exploration to Mars and
beyond.
I support NASA's goals and believe the SLS is integral to
achievement of those goals because it is the only vehicle that
can generate the thrust and lift necessary to send the Orion
spacecraft, astronauts, and a large cargo to the Moon on a
single mission.
The SLS will be the most powerful rocket that man has ever
created. The lift capabilities of the SLS are unparalleled,
with transformative capability. There is no other rocket built
or in production with anywhere near the capability of the SLS.
America's long-term space priorities will benefit from
staying the course. The SLS will be the most powerful rocket
ever built, and the only rocket powerful enough to carry the
weight of the Orion spacecraft or the Deep Space Gateway to the
moon, both of which are necessary to accomplish America's space
policy goals.
It is important that Congress stay the course, support
existing law, and provide required funding so that America can
once again achieve greatness in space exploration.
America's space program has been and should remain a
bipartisan area for Congressional support. I ask that this
committee to continue the spirit of bipartisan cooperation in
space policy by supporting SLS. Adequate funding for the SLS is
critical to achieving our Nation's space policy.
The Appropriations Committee has been consistent over the
past several years in providing the funding needed for these
programs, and I ask this committee and subcommittee to continue
to support full SLS funding in the fiscal year 2020 Commerce,
Justice, Science Appropriations bill.
Thank you for the opportunity to be with you today.
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Mr. Serrano. Thank you. As I said before, we take very
seriously all of these programs that fall under this category,
the NASA programs and so on. And this committee has always been
very favorable to NASA and to these programs. So we will take
that into consideration. And we welcome your thoughts as we
have heard them, and we thank you for them.
Mr. Brooks. Thank you, Mr. Chairman.
Mr. Aderholt. I will just say you articulated, I think, the
issues very well and I certainly look forward to working with
you to help make our space program here in the United States
second to none. So thanks for your testimony.
Mr. Brooks. Thank you, Congressman Aderholt.
Mr. Serrano. Congresswoman Haaland.
----------
THE HONORABLE DEBRA A. HAALAND, A REPRESENTATIVE IN CONGRESS
FROM THE STATE OF NEW MEXICO
Ms. Haaland. Good afternoon. Thank you for having me.
Chairman Serrano, Ranking Member Aderholt, and members of
the subcommittee, thank you for this opportunity to speak about
some key priorities for the CJS bill. It is an honor to be
here. I appreciate the hard work that all of you do. And
Chairman Serrano, I thank you for the years of service to our
country.
I am going to first talk about the 2020 census. Many areas
of my state of New Mexico are rural. In fact, there is more
rural areas than there are urban areas, with little to no
broadband access. This makes it a challenge to conduct the
census. New Mexico has some of the worst poverty rates in the
Nation. In fact, half of our population is Medicaid eligible.
So it is essential to our state that we have a successful 2020
census to ensure both proper representation in this body and
the proper distribution of federal resources to our
communities.
The Census Bureau faces a number of challenges, including
the present Administration efforts to add an inflammatory
question about citizenship that put the success of the 2020
census in jeopardy. I urge you to fund the Census Bureau at the
level needed to get an accurate count, including establishing
partnerships with hard to count communities and conducting the
necessary outreach. And that would include Indian tribes, not
just in New Mexico but across the country.
Next, I would like to talk about gun violence. Every day,
100 Americans die from gun violence and hundreds more are shot
or injured. Last month, I joined students at Cleveland High
School in Rio Rancho, New Mexico, who were victims of gun
violence. They had a shooting at their school. Thankfully, no
one was physically harmed in the incident that the students'
experienced, but the emotional distress is very real.
Students' greatest worry should be preparing for their next
exam, not dodging the next bullet. Guns are the second leading
cause of death for American children and teens. Our nation is
facing a gun violence epidemic that needs solutions, not just
thoughts and prayers.
An important part of this solution is improving the
background check process, to ensure that guns do not get in the
wrong hands. I urge the committee to include $100 million for
the National Instant Criminal Background Check System program,
NICS.
Next, I would like to address sexual assault. I also urge
the committee to support survivors of sexual assault and law
enforcement efforts by providing at least $49 million for the
National Sexual Assault Kit Initiative, the level passed by the
House in fiscal year 2018. My own state of New Mexico has seen
the benefit of these grants; at the end of 2018, the state lab
cleared its backlog. But there is still work to be done.
Backlogs persist in many of the other labs across the
state, and I imagine in the country. Every rape kit that
remains untested represents a missed opportunity to bring
closure and healing to a survivor, and compromises our public
safety. Sexual assault survivors deserve better, and Congress
should support any efforts that bring about more justice.
And with respect to Indian country. Indigenous people face
serious problems in our country. The U.S. Commission on Civil
Rights' Broken Promises report that just came out a few months
ago details the government's breach of the trust responsibility
and neglect of federal obligations, causing a lack of funding
for fundamental services for Native Americans.
The chronic lack of funding has led to a severe lack of
resources for tribal public safety and justice systems,
resulting in Native Americans experiencing some of the Nation's
highest rates of crime and victimization. The DOJ also reported
more than four in five Native women have experienced violence
within their lives, more than half enduring sexual violence.
In urban areas, the silent crisis of missing and murdered
indigenous women is increasing. To address this crisis in the
Native American community, I urge the committee to provide
robust funding for victim advocates in state courts, especially
for indigenous people experiencing this more than normal,
higher rate of sexual assault and domestic violence in urban
locations.
Thank you for this opportunity to address you. And if you
need any other information, we would be happy to.
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Mr. Serrano. Well, we thank you for your testimony today.
The issues you bring up are very important issues that this
committee will be looking at from the census to sexual assault,
sexual violence. And all of them are issues that are very, very
important. And it is good to have members that can give us
first hand information on many issues. So we thank you for your
testimony.
Ms. Haaland. Thank you, Chairman.
Mr. Serrano. Mr. Aderholt?
Mr. Aderholt. Thank you for your testimony. We look forward
to working with you. And thanks so much for being here today.
Ms. Haaland. Thank you very much.
Mr. Serrano. And now we have is our next witness, Chairman
Visclosky. I am not going to make that mistake of calling you
anything else.
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THE HONORABLE PETER J. VISCLOSKY, A REPRESENTATIVE IN CONGRESS
FROM THE STATE OF INDIANA
Mr. Visclosky. Mr. Chairman, thank you very much and I look
forward to continuing to sit with you on full committee for
next year.
Mr. Serrano. You are welcome, Mr. Chairman.
Mr. Visclosky. You have my full statement for the record.
Mr. Serrano. Yes.
Mr. Visclosky. I would like to summarize it. I am here on
behalf of two priorities. The first is the funding for the
International Trade Commission and secondly, appropriate
funding for the implementation of the Civil Rights Cold Case
Records Collection Act of 2018.
The ITC, the International Trade Commission, does very
important work as far as enforcing our laws to protect American
workers against illegally traded goods and services. The Office
of Management and Budget just submitted a request for $91.1
million under the law. The ITC submits an independent budget
estimate, and their request is for $101 million. And that is
the request I am here to support.
In fiscal year 2020, the ITC will need additional resources
to conduct analysis required by the American Manufacturing
Competitiveness Act of 2016. This law requires the ITC to
collect petitions to suspend or reduce certain tariffs in the
forthcoming miscellaneous tariff bill.
Further, section 232 and three stages of section 301
tariffs have required the ITC to revise their harmonized tariff
schedule of the United States 13 times this past year, as
compared to 3 times in a typical year. And finally, the ITC
does need to update and modernize their information and
technology infrastructure, and manage an increasing and complex
case load.
Secondly, I am here to testify on behalf of the funding to
fully implement the Civil Rights Cold Case Records Collection
Act of 2018. I understand there are negotiations going on
between your subcommittee, as well as the subcommittee on
financial services and government general as to the appropriate
venue to fund this effort.
I do understand that thoughtful consideration will take
place and a resolution will happen. I think for too long,
families of lynching and other hate crime victims have gone
without information regarding crimes against their ancestors. I
remain deeply cognizant of the legacy of racial inequality that
continues to be present today in the United States. And I
believe that we should do everything in our power to confront
and address the suffering caused by racial terror and violence.
And with that, I do thank you for your time today.
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Mr. Serrano. Well, we thank you and you know how the system
works. And we add to that that we take very seriously your
concerns, and we will take it and keep it in mind as we move
along. Mr. Aderholt?
Mr. Aderholt. I would just say thank you. Of course, you
are not stranger to this subcommittee. So good to have you back
today with us. So thanks for your testimony. There is a lot
today.
Mr. Serrano. Thank you, sir. Thank you. The meeting is
adjourned.
W I T N E S S E S
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Page
Brandon, Thomas E., deputy director, Bureau of Alcohol, Tobacco,
Firearms and Explosives........................................ 205
Prepared statement........................................... 210
Brooks, Hon. Mo, a Representative in Congress from the State of
Alabama........................................................ 330
Prepared statement........................................... 332
Cordova, France A., director, National Science Foundation........ 261
Prepared statement........................................... 265
Dreiband, Eric, assistant attorney general, Civil Rights
Division, U.S. Department of Justice........................... 117
Prepared statement........................................... 121
Answers to submitted questions............................... 163
Freilich, Michael H, director, NASA, Earth Science Division...... 1
Prepared statement........................................... 12
Haaland, Hon. Debra A., a Representative in Congress from the
State of New Mexico............................................ 335
Prepared statement........................................... 337
Halverson, Christine, acting assistant director, Criminal Justice
Information Services, Federal Bureau of Investigation.......... 205
Prepared statement........................................... 218
Jackson Lee, Hon. Sheila, a Representative in Congress from the
State of Texas................................................. 321
Prepared statement........................................... 325
Jacobs, Neil, assistant secretary of commerce, Environmental
Observation and Prediction..................................... 1
Prepared statement........................................... 7
Jeffries, Hon. Hakeem S., a Representative in Congress from the
State of New York.............................................. 311
Prepared statement........................................... 314
McHenry, James, director, Executive Office for Immigration Review 63
Prepared statement........................................... 67
Posey, Hon. Bill, a Representative in Congress from the State of
Florida........................................................ 316
Prepared statement........................................... 318
Visclosky, Hon. Peter J., a Representative in Congress from the
State of Indiana............................................... 339
Prepared statement........................................... 341