[House Hearing, 116 Congress]
[From the U.S. Government Publishing Office]
BUSINESS AS USUAL? ASSESSING HOW DHS CAN
RESUME OPERATIONS SAFELY
=======================================================================
HEARING
BEFORE THE
SUBCOMMITTEE ON
OVERSIGHT, MANAGEMENT,
AND ACCOUNTABILITY
OF THE
COMMITTEE ON HOMELAND SECURITY
HOUSE OF REPRESENTATIVES
ONE HUNDRED SIXTEENTH CONGRESS
SECOND SESSION
__________
JUNE 16, 2020
__________
Serial No. 116-70
__________
Printed for the use of the Committee on Homeland Security
[GRAPHIC NOT AVAILABLE IN TIFF FORMAT]
Available via the World Wide Web: http://www.govinfo.gov
__________
U.S. GOVERNMENT PUBLISHING OFFICE
43-088 PDF WASHINGTON : 2021
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COMMITTEE ON HOMELAND SECURITY
Bennie G. Thompson, Mississippi, Chairman
Sheila Jackson Lee, Texas Mike Rogers, Alabama
James R. Langevin, Rhode Island Peter T. King, New York
Cedric L. Richmond, Louisiana Michael T. McCaul, Texas
Donald M. Payne, Jr., New Jersey John Katko, New York
Kathleen M. Rice, New York Mark Walker, North Carolina
J. Luis Correa, California Clay Higgins, Louisiana
Xochitl Torres Small, New Mexico Debbie Lesko, Arizona
Max Rose, New York Mark Green, Tennessee
Lauren Underwood, Illinois John Joyce, Pennsylvania
Elissa Slotkin, Michigan Dan Crenshaw, Texas
Emanuel Cleaver, Missouri Michael Guest, Mississippi
Al Green, Texas Dan Bishop, North Carolina
Yvette D. Clarke, New York Jefferson Van Drew, New Jersey
Dina Titus, Nevada
Bonnie Watson Coleman, New Jersey
Nanette Diaz Barragan, California
Val Butler Demings, Florida
Hope Goins, Staff Director
Chris Vieson, Minority Staff Director
------
SUBCOMMITTEE ON OVERSIGHT, MANAGEMENT, AND ACCOUNTABILITY
Xochitl Torres Small, New Mexico, Chairwoman
Dina Titus, Nevada Dan Crenshaw, Texas, Ranking
Bonnie Watson Coleman, New Jersey Member
Nanette Diaz Barragan, California Clay Higgins, Louisiana
Bennie G. Thompson, Mississippi (ex Jefferson Van Drew, New Jersey
officio) Mike Rogers, Alabama (ex officio)
Lisa Canini, Subcommittee Staff Director
Katy Flynn, Minority Subcommittee Staff Director
C O N T E N T S
----------
Page
Statements
The Honorable Xochitl Torres Small, a Representative in Congress
From the State of New Mexico, and Chairwoman, Subcommittee on
Oversight, Management, and Accountability:
Oral Statement................................................. 1
Prepared Statement............................................. 2
The Honorable Dan Crenshaw, a Representative in Congress From the
State of Texas, and Ranking Member, Subcommittee on Oversight,
Management, and Accountability:
Oral Statement................................................. 3
Prepared Statement............................................. 4
The Honorable Bennie G. Thompson, a Representative in Congress
From the State of Mississippi, and Chairman, Committee on
Homeland Security:
Oral Statement................................................. 7
Prepared Statement............................................. 8
Witnesses
Mr. Anthony M. Reardon, National President, National Treasury
Employees Union:
Oral Statement................................................. 9
Prepared Statement............................................. 11
Dr. Everett B. Kelley, National President, American Federation of
Government Employees, AFL-CIO:
Oral Statement................................................. 15
Prepared Statement............................................. 16
Mr. Brandon Judd, National President, National Border Patrol
Council:
Oral Statement................................................. 21
Prepared Statement............................................. 23
Appendix
Questions From Honorable Bonnie Watson Coleman for Anthony M.
Reardon........................................................ 35
Questions From Honorable Bonnie Watson Coleman for Everett Kelley 37
Questions From Honorable Bonnie Watson Coleman for Brandon Judd.. 38
BUSINESS AS USUAL? ASSESSING HOW DHS CAN RESUME OPERATIONS SAFELY
----------
Tuesday, June 16, 2020
U.S. House of Representatives,
Committee on Homeland Security,
Subcommittee on Oversight, Management,
and Accountability,
Washington, DC.
The subcommittee met, pursuant to notice, at 12:05 p.m.,
via Webex, Hon. Xochitl Torres Small [Chairwoman of the
subcommittee] presiding.
Present: Representatives Torres Small, Titus, Watson
Coleman, Barragan, Thompson, and Crenshaw.
Ms. Torres Small. The Subcommittee on Oversight,
Management, and Accountability will come to order.
Let me begin by thanking all of my colleagues for joining
us today for the first fully remote proceeding for the
Committee on Homeland Security.
The COVID-19 pandemic has interrupted all of our daily
lives and the ability of the House to safely conduct its
business. I want to thank my colleagues for coming together,
despite differences and reservations regarding continuing our
business in a remote setting, to move forward in a productive
bipartisan manner for the benefit of our constituents and our
country. I look forward to the day when we can all safely meet
together in person, and I am so grateful to have all of you as
colleagues.
With that, I turn to the topic of today's hearing, the
Department of Homeland Security's DHS plans to resume
operations in the wake of the coronavirus pandemic.
First, I want to acknowledge that many of DHS's employees
never stopped working during the pandemic. They faced
unprecedented challenges, and I thank them for continuing to
carry out their important missions during these challenging
times. That said, the pandemic has required the Department to
significantly adjust its operations in ways it never had to
before. Employees that could work remotely shifted to telework,
procedures for those that couldn't were altered or suspended
altogether. For example, the Federal Law Enforcement Training
Center, FLETC, which trains law enforcement officers across DHS
and other Federal agencies, halted all in-person trainings for
12 weeks. DHS also closed immigration service centers and
enrolled centers for Trusted Traveler Programs, such as the
Transportation Security Administration's PreCheck and Customs
and Border Protection's Global Entry.
As DHS resumes these operations, it is important that the
Department have plans in place to adequately protect the work
force's health and safety, such as regularly cleaning
facilities, adjusting work spaces to align with social
distancing guidelines, and providing personal protective
equipment. Since infection rates have begun to rise in some
areas of the country, comprehensive testing, especially for
front-line operators, and contract tracing is also necessary to
minimizing exposure.
Given the Department's mission, most DHS employees have
continued to work on the front lines, answering the call to
protect our Nation from a variety of threats. But the recent
pandemic has required considerable and unparalleled sacrifices
from these dedicated public servants. Many have been working
around the clock to coordinate assistance and response efforts,
and front-line operators face an even greater-than-normal risk
of exposure to this deadly virus.
All the while, workers are juggling concerns about the
well-being of their loved ones and family commitments, with
most schools and day cares closed. I worry about what toll this
will have on employee retention and the already low morale, an
issue this subcommittee has explored during a hearing earlier
this year.
The Department itself is not immune to the virus. To date,
DHS has experienced over 1,600 COVID-19 cases, including 10
deaths among its work force. My condolences go out to the
families and friends of those employees that have succumbed to
the disease.
Now, more than ever, it is important that DHS ensure its
work force feels safe and supported as it carries out its vital
mission to protect the homeland. To that end, I support
providing hazard pay to front-line workers who face increased
exposure to the virus while on duty, and look forward to
hearing from our witnesses today on their views of DHS's effort
to protect the work force and any recommendations for how we in
Congress can support the Department as it resumes operations.
Thank you again for joining us today.
The Chair now recognizes the Ranking Member of the
subcommittee, the gentleman from Texas, Mr. Crenshaw, for an
opening statement.
[The statement of Chairwoman Torres Small follows:]
Statement of Chairwoman Xochitl Torres Small
June 16, 2020
Let me begin by thanking all of my colleagues for joining us today
for the first fully remote proceeding for the Committee on Homeland
Security. The COVID-19 pandemic has interrupted all of our daily lives
and the ability of the House to safely conduct it.
While I understand that some of my colleagues may have reservations
about continuing with our business in a remote setting, and I look
forward to the day when we may all safely meet together in person, I am
grateful that we have been able to come together to move forward in a
productive, bipartisan manner for the benefit of our constituents and
the country.
With that, I turn to the topic of today's hearing, the Department
of Homeland Security's (DHS) plans to resume operations in the wake of
the coronavirus pandemic.
First, I want to acknowledge that many of DHS's employees never
stopped working during the pandemic and I thank them for continuing to
carry out their important missions during these challengeing times.
That said, the pandemic has required the Department to significantly
adjust its operations in ways it never had to before. Employees that
could work remotely shifted to telework. Procedures for those that
couldn't were altered or suspended altogether.
For example, the Federal Law Enforcement Training Centers (FLETC)--
which trains law enforcement officers across DHS and other Federal
agencies--halted all in-person trainings for 12 weeks. DHS also closed
immigration service centers and enrollment centers for trusted traveler
programs, such as the Transportation Security Administration's (TSA)
PreCheck and Customs and Border Protection's Global Entry.
As DHS resumes these operations, it is important that the
Department have plans in place to adequately protect the workforce's
health and safety. Such as regularly cleaning facilities, adjusting
workspaces to align with social distancing guidelines, and providing
personal protective equipment. Since infection rates have begun to rise
in some areas of the country, comprehensive testing--especially for
front-line operators--and contact tracing may also be key to minimizing
exposure.
Given the Department's mission, most DHS employees have continued
to work on the front lines answering the call to protect our Nation
from a variety of threats. But the recent pandemic has required
considerable and unparalleled sacrifices from these dedicated public
servants. Many have been working around the clock to coordinate
assistance and response efforts, and front-line operators face an even
greater-than-normal risk of exposure to the deadly virus. All the
while, workers are juggling concerns about the well-being of their
loved ones and family commitments with most schools and daycares
closed.
I worry about what toll this will have on employee retention and
already low morale--an issue this subcommittee explored during a
hearing earlier this year. The Department itself is not immune to the
virus. To date, DHS has experienced over 1,600 COVID-19 cases,
including 10 deaths, among its workforce.
My condolences go out to the families and friends of those
employees that have succumbed to the disease. Now, more than ever, it
is important that DHS ensure its workforce feels safe and supported as
it carries out its vital mission to protect the homeland.
To that end, I support providing hazard pay to front-line workers
who face increased exposure to the virus while on duty.
I look forward to hearing from our witnesses today on their views
of DHS's efforts to protect the workforce and any recommendations for
how we in Congress can support the Department as it resumes operations.
Mr. Crenshaw. Thank you, Chairwoman Torres Small.
I want to start my statement by remembering and
commemorating the life and service of Border Patrol Agent Johan
Mordan. Agent Mordan's watch ended last Thursday, June 11, in
New Mexico. Agent Mordan volunteered to serve and protect our
Nation's border. While most of America was shut down and many
in Government worked from home, Agent Mordan continued to be on
the front lines with the many men and women of the DHS whose
mission does not allow them to work from home. We are forever
grateful to these men and women. I am grateful we can have this
hearing today about the important topic of getting all of DHS
back to work for the American people.
DHS has over 200,000 employees tasked with protecting the
American homeland. Although COVID-19 is a significant threat to
the American people, the threat of terrorists, criminals, and
others who wish us harm does not diminish simply because our
focus may be elsewhere. Because terrorism does not take sick
leave, it is essential DHS leadership maintains operational
capabilities throughout this pandemic while striving to keep
its employees healthy. Although many DHS employees perform
duties that do not allow them to telework, for those that are
able to telework, DHS quickly initiated telework policies to
protect those employees.
As part of the reopening of America, the Office of
Management and Budget and the Office of Personnel Management
issued guidelines based on information from the CDC for the
heads of all Federal agencies to utilize in making decisions
regarding returning employees to on-site work. Those guidelines
allowed agency heads to exercise a great deal of discretion. It
is my understanding that DHS has been developing plans for
return to work that include a lot of flexibility for its work
force and take into account underlying conditions as well as
specific circumstances of employees.
As DHS begins to transition back to normal operations
around the country, the health and safety of the employees
returning to on-site work is of the utmost importance. Given
that many DHS employees continue to work at their duty
stations, the Department should focus its plans on keeping all
DHS employees, whether in the office or in the field, safe and
healthy as we continue to battle COVID-19.
As we move toward reopening facilities, it is important to
realize that the health and safety of employees is intertwined
with the health and safety of the American public that they
serve. Employees at DHS must be protected from individuals with
COVID, but also need to protect individuals visiting DHS
facilities from being exposed to COVID. This will require
proper screening tools for anyone entering the facilities or
work sites, and adequate protective gear and barriers for both
the employees and the individuals they serve.
Some DHS employees, such as those at USCIS which operates
on a fee-based model, are facing the real possibility of losing
their jobs and income due to agency activities having been put
on hold during the pandemic. Although it is important to keep
people healthy by preventing exposure to COVID, we should keep
in mind that health is also tied to having enough money to meet
basic needs. The loss of jobs and businesses from the wide-
spread closures is a real public health threat that must also
be addressed. Unemployment can lead to both physical and mental
health issues. There is plenty of evidence for that already. We
must get creative in addressing this shortfall as well.
DHS needs to have a plan in place for addressing the needs
of employees as well as the public. The plan must have
sufficient flexibility built in to allow for modifications as
information on containing the virus continues to evolve. I look
forward to hearing from our witnesses today on the needs of the
employees they represent and the steps DHS should take to
protect them.
While I am pleased to participate in this important hearing
today, I would prefer we conduct ordinary hearings in person,
and I want to be on the record saying that. There is no reason
our small subcommittee cannot safely meet in our committee
room, and I hope that is what we do next time, and I hope this
is the last time we have this virtual hearing and look forward
to working together to make that a reality.
I yield back.
[The statement of Ranking Member Crenshaw follows:]
Statement of Ranking Member Dan Crenshaw
Thank you, Chairwoman Torres Small.
I want to start my statement by remembering and commemorating the
life and service of Border Patrol Agent Johan Mordan. Agent Mordan's
watch ended last Thursday, June 11 in New Mexico. Agent Mordan
volunteered to serve and protect our Nation's border. While most of
America was shut down and many in Government worked from home, Agent
Mordan continued to be on the front lines with the many men and women
of the Department of Homeland Security whose mission does not allow
them to work from home. We are forever grateful to these men and women
and I am grateful we can have this hearing today about the important
topic of getting all of DHS back to work for the American people.
DHS has over 200,000 employees tasked with protecting the American
homeland. Although COVID-19 is a significant threat to the American
people, the threat of terrorists, criminals, and others who wish us
harm does not diminish simply because our focus may be elsewhere.
Because terrorism does not take sick leave, it is essential DHS
leadership maintains operational capabilities throughout this pandemic
while striving to keep its employees healthy.
Although many DHS employees perform duties that do not allow them
to telework; for those that are able to telework, DHS quickly initiated
telework policies to protect those employees.
As part of the reopening of America, the Office of Management and
Budget and the Office of Personnel Management issued guidelines based
on information from the CDC for the heads of all Federal agencies to
utilize in making decisions regarding returning employees to on-site
work. Those guidelines allowed agency heads to exercise a great deal of
discretion. It is my understanding that DHS has been developing plans
for return to work that include a lot of flexibility for its workforce
and take into account underlying conditions, as well as specific
circumstances of employees.
As DHS begins to transition back to normal operations around the
country, the health and safety of the employees returning to on-site
work is of the utmost importance. Given that many DHS employees
continued to work at their duty stations, the Department should focus
its plans on keeping all DHS employees, whether in the office or in the
field, safe and healthy as we continue to battle COVID-19.
As we move toward reopening facilities, it is important to realize
that the health and safety of DHS employees is intertwined with the
health and safety of the American public that they serve. The employees
at DHS must be protected from individuals with COVID, but also need to
protect individuals visiting DHS facilities from being exposed to
COVID. This will require proper screening tools for anyone entering the
facilities or worksites and adequate protective gear and barriers for
both employees and the individuals they serve.
Some DHS employees, such as those at USCIS, which operates on a
fee-based model, are facing the real possibility of losing their jobs
and income due to agency activities having been put on hold during the
pandemic. Although it is important to keep people healthy by preventing
exposure to COVID, we should keep in mind that health is also tied to
having enough money to meet basic needs. The loss of jobs and
businesses from the wide-spread closures is a real public health threat
that also must be addressed. Unemployment can lead to both physical and
mental health issues. We must get creative in addressing this shortfall
as well.
DHS needs to have a plan in place for addressing the needs of
employees, as well as the public. The plan must have sufficient
flexibility built in to allow for modifications as information on
containing the virus continues to evolve. I look forward to hearing
from our witnesses today on the needs of the employees they represent,
and the steps DHS should take to protect them.
While I am pleased to participate in this important hearing today,
I would prefer we conduct OMA hearings in person. There's no reason our
small subcommittee cannot safely meet in our committee room. I hope
this is the last time we have a virtual hearing and look forward to
working together to make that a reality.
I yield back.
Ms. Torres Small. Thank you, Ranking Member Crenshaw.
With that, I will yield to the Ranking Member for the
purpose of a colloquy.
Mr. Crenshaw. Yes, the colloquy.
Thank you, Madam Chairwoman. Could you please explain our
agreement on committee procedures during these remote
proceedings?
Ms. Torres Small. I thank the Ranking Member. Let me begin
by saying that standing House and committee rules and practice
will continue to apply during remote proceedings. Members will
be expected to continue to adhere to the rules of the committee
and the House. During the covered period as designated by the
Speaker, the committee will operate in accordance with House
Resolution 965 and the subsequent guidance from the Rules
Committee in a matter that respects the rights of all Members
to participate. The technology we are utilizing today requires
us to make some small modifications to ensure that the Members
can fully participate in these proceedings.
Mr. Crenshaw. Thank you, Madam Chairwoman. Could you
elaborate on your plans for rehearsal sessions before remote
proceedings?
Ms. Torres Small. Thank you. Given these new circumstances,
the committee plans to hold rehearsals before our first remote
hearings and markups in the full committee or in the
subcommittee, in furtherance of House rules and regulations.
These rehearsals should help iron out technical issues and
ensure that Members remain connected if they must change
devices or locations.
Mr. Crenshaw. Thank you, Madam Chairwoman. Could you
elaborate on how Members may expect to be recognized during a
remote proceeding?
Ms. Torres Small. Thank you. First, to simplify an order of
questioning, I will recognize Members for their 5-minute
questioning based strictly on seniority basis as determined by
our committee roster, a departure from our previous procedure.
Members must be visible to the Chair in order to be considered
as present for the purposes of establishing a quorum or for
voting. Members should also make every effort to remain visible
on the screen throughout the proceeding. If a Member
experiences issues with their video stream, they may proceed
with solely audio to ensure connection, provided they have been
identified previously.
At the beginning of this hearing, Members are on mute.
Members may unmute themselves in order to be recognized for
purposes of their 5-minute questioning of witnesses. At the
conclusion of speaking, Members will be expected to then mute
themselves to prevent excess background noise. If a Member does
not mute themselves after speaking, the clerk has the directive
to mute Members to avoid inadvertent background noise. Should a
Member wish to be recognized to make a motion, they must unmute
themselves and seek recognition at the appropriate time.
Mr. Crenshaw. Thank you, Madam Chairwoman. What could a
Member expect should they encounter technical issues during a
remote event?
Ms. Torres Small. In the event a Member encounters
technical issues that prevent them from being recognized for
their questioning, I will move to the next available Member of
the same party, and I will recognize that Member at the
appropriate time slot provided they have returned to the
proceeding. Should a Member's time be interrupted by technical
issues, I will recognize that Member at the next appropriate
spot for the remainder of time once their issues have been
resolved. If I should encounter technical issues myself, the
Vice Chair of the committee, if available, or the next most
senior Member of the Majority shall assume the duties of the
Chair until I am able to return to the proceeding.
Mr. Crenshaw. Thank you, Madam Chairwoman. What should
Members expect regarding a decorum during a remote event?
Ms. Torres Small. Thank you. Members are reminded that they
are only allowed to attend one virtual event at a time. Should
they need to attend another committee's proceedings, please
fully exit the hearing before entering another proceeding.
Finally, all Members are reminded that they are expected to
observe standing rules of the committee decorum for appropriate
attire and should have a professional and apolitical background
when they are participating in any remote event.
Mr. Crenshaw. Thank you, Madam Chairwoman. What should
Members expect if a witness loses connectivity?
Ms. Torres Small. Thank you. In the event a witness loses
connectivity during testimony or questioning, I will preserve
their time as staff address the technical issue. I may need to
recess the proceedings to provide time for the witness to
reconnect.
Mr. Crenshaw. Thank you, Madam Chairwoman. Finally, what
should Members expect if a vote is called during a remote
event?
Ms. Torres Small. Thank you. House Resolution 965 requires
Members to be visible, present, to have their vote recorded
during a remote event. Members who join the proceeding after a
vote is called and who are not called upon for their vote
should seek recognition from the Chair to ensure their vote is
recorded. Should a Member lose connectivity during a roll call
vote, I will hold the vote open for a period of time to address
the technical issue and provide Members with an opportunity to
have their vote recorded.
Mr. Crenshaw. Thank you. I yield back.
Ms. Torres Small. With that, I ask unanimous consent to
waive committee rule 8(A)(2) during committee remote
proceedings under the covered period designated by the Speaker
under House Resolution 965.
Without objection, so ordered.
The Chair now recognizes the Chairman of the full
committee, the gentleman from Mississippi, Mr. Thompson, for an
opening statement.
Mr. Thompson. Thank you, Chairwoman Torres Small and
Ranking Member Crenshaw, for holding this hearing today. It is
fitting we are here to discuss the Department of Homeland
Security's efforts to resume operations. The fact that we are
holding this hearing remotely demonstrates that we have all had
to adapt to operate because of coronavirus pandemic.
Many of our Nation's communities are still experiencing
increased rates of COVID-19 infections and death. Even in areas
where rates have improved, public health officials warn of
future outbreaks if people do not continue smart practices.
These include social distancing, wearing a mask or facial
covering, and frequent hand washing. Yet the President refuses
to do these things. Time and time again, we see him fail to
take advice of medical professionals seriously.
I fear that in his haste to reopen America ahead of
doctors' advice, President Trump will try to force Federal
workers back to their offices in an attempt to convince
Americans it is safe to return to business as usual, but it is
not safe. Pushing Federal workers to resume operations without
taking measured precaution needlessly puts them at risk.
This is especially true of DHS, whose work force is already
in harm's way with 85 percent working on the front lines.
Tragically, 2 of DHS's component agencies have some of the
highest infection and deaths rates among Federal Government
agencies. The Transportation Security Administration has
announced that 667 employees have tested positive and 5 have
died from COVID-19 on this website. Customs and Border
Protection has publicly posted that 482 of its employees have
tested positive and 5 have died.
Therefore, it is critical that DHS have a plan in place to
protect the health of its employees before reopening facilities
or resuming operations. That plan should allow employees who
have proven that they can do their jobs from home can continue
to work from home. This is especially important in metropolitan
areas such as Washington, DC, and New York City, where many
workers rely on public transportation. If employees cannot work
at home, DHS must take every precaution to keep them safe.
That is why I supported TSA's request for supplemental
appropriations of personal protective equipment, which was
included in the CARES Act. I also join several of my colleagues
on this subcommittee to co-sponsor H.R. 6655, the Hazardous
Duty Pay for Frontline Federal Workers Act. This bill will
create a separate pay category to compensate front-line
workers, including TSA employees, for their increased risk of
exposure to COVID-19 while on duty.
I welcome and appreciate our witnesses for joining us
today. I look forward to hearing their thoughts on how we can
best support the Department's work force during these
challenging times. I urge the administration to ensure all
Federal agencies protect the health of America's public
servants.
I yield back, Madam Chair.
[The statement of Chairman Thompson follows:]
Statement of Chairman Bennie G. Thompson
June 16, 2020
It is fitting we are here to discuss the Department of Homeland
Security's (DHS) efforts to resume operations. The fact that we're
holding this hearing remotely demonstrates that we have all had to
adapt how we operate because of the coronavirus pandemic.
Many of our Nation's communities are still experiencing increasing
rates of COVID-19 infections and deaths. Even in areas where rates have
improved, public health officials warn of future outbreaks if people do
not continue smart practices. These include social distancing, wearing
a mask or facial covering, and frequent hand washing. Yet, the
President refuses to do these things.
Time and time again, we see him fail to take the advice of medical
professionals seriously. I fear that in his haste to reopen America
ahead of doctors' advice, President Trump will try to force Federal
workers back to their offices in an attempt to convince Americans it is
safe to return to business-as-usual. But it is not safe. Pushing
Federal workers to resume operations without taking measured
precautions needlessly puts them at risk. This is especially true of
DHS, whose workforce is already in harm's way, with 85 percent working
on the front lines. Tragically, two of DHS's component agencies have
some of the highest infection and death rates among Federal Government
agencies.
The Transportation Security Administration (TSA) has announced that
667 employees have tested positive and 5 have died from COVID-19 on its
website. Customs and Border Protection (CBP) has publicly posted that
482 of its employees have tested positive and 5 have died.
Therefore, it is critical that DHS have a plan in place to protect
the health of its employees before re-opening facilities or resuming
operations. That plan should allow employees who have proven they can
do their jobs from home to continue to work from home. This is
especially important in metropolitan areas, such as Washington, DC and
New York City, where many workers rely on public transportation.
If employees cannot work from home, DHS must take every precaution
to keep them safe. That is why I supported TSA's request for
supplemental appropriations for personal protective equipment, which
was included in the CARES Act. I also joined several of my colleagues
on this subcommittee to co-sponsor H.R. 6655, the ``Hazardous Duty Pay
for Frontline Federal Workers Act.'' This bill would create a separate
pay category to compensate front-line workers, including TSA employees,
for their increased risk of exposure to COVID-19 while on duty.
I welcome and appreciate our witnesses for joining us today. I look
forward to hearing their thoughts on how we can best support the
Department's workforce during these challenging times. And I urge the
administration to ensure all Federal agencies protect the health of
America's public servants.
Ms. Torres Small. I now welcome our panel of witnesses and
thank them for joining us today. Our first witness is Dr.
Everett Kelley, national president of the American Federation
of Government Employees, which is the largest union
representing Federal employees Nation-wide. AFGE represents
nearly 100,000 employees across DHS headquarters and several of
its components, including the Transportation Security
Administration, Customs and Border Protection, U.S. Citizenship
and Immigration Services, and U.S. Coast Guard.
I apologize that, unfortunately, we have lost the AFGE
witness, and he is trying to reconnect. So I think we may--
let's see. We are trying to reconnect now. I will continue
reading his bio, and if we are unable to get him by that point,
we will take on this first challenge of a remote hearing. I
think we are going to go ahead and move to our first--our
second witness from NTEU. OK. I will read the AFGE--I will read
Dr. Kelley's bio as well.
Dr. Kelley has been a member of AFGE since 1981 and became
national president in February 2020.
Our second witness, Mr. Tony Reardon, serves as the
national president of the National Treasury Employees Union.
NTEU represents 150,000 Federal employees, including personnel
at Customs and Border Protection and the Federal Law
Enforcement Training Center, or FLETC. Mr. Reardon has been
with NTEU for 30 years and was elected national president in
August 2015.
Our final witness, Mr. Brandon Judd, serves as the
president of the National Border Patrol Council, which
represents more than 16,500 Border Patrol agents. Mr. Judd is a
Border Patrol agent with over 20 years experience and is
currently assigned in Montana.
Without objection, the witnesses' full statements will be
inserted into the record.
I now ask each witness to summarize his statement for 5
minutes, and we are going to begin with Mr. Reardon. Please
proceed.
STATEMENT OF ANTHONY M. REARDON, NATIONAL PRESIDENT, NATIONAL
TREASURY EMPLOYEES UNION
Mr. Reardon. Chairwoman Torres Small and Ranking Member
Crenshaw, thank you very much for the opportunity to testify on
behalf of over 27,000 front-line Customs and Border Protection
officers, agriculture specialists, and trade enforcement
specialists at CBP. These men and women are stationed at 328
air, sea, and land ports of entry and in preclearance
operations overseas. They ensure the efficient processing of
legitimate trade, travel, and asylum seekers who present
themselves at the ports, and stop illicit trafficking of
people, drugs, weapons, and money.
Throughout the pandemic, most ports of entry remained open
and staffed by CBP Office of Field Operations, or OFO,
employees, 24 hours a day, 7 days a week, at great risk to
their health and safety. The CBP work force, as of June 9, has
more than 459 confirmed COVID-19 cases, according to CBP-wide
figures, and many more employees in quarantine. Of these
employees, 5, who have worked for OFO at the international
ports of entry, have died after contracting COVID-19, so I want
to honor these NTEU members by name.
CBP technician Van Dong worked in agriculture secondary at
Los Angeles International Airport. CBP Officer Richard McCoy
worked at the Fort Lauderdale/Port Everglades port of entry in
Florida. CBP Officer Omar Palmer, CBP Officer CK Yan, and field
technology officer James Taylor, who all worked at John F.
Kennedy International Airport. NTEU mourns the losses with the
families and friends of these officers and appreciates their
service to our country.
In my written testimony, I have listed workplace safeguards
that, absent the development of a successful vaccine, are
needed at the international ports of entry. These safeguards
include free on-site testing, contact tracing, increased work
area cleaning, plexiglass barriers, sufficient PPE, and social
distancing protocols.
In addition to ensuring workplace safeguards, one of the
most critical pandemic-related issues facing CBP employees at
the ports of entry is the reduction in user fees collected due
to the drastic drop in international commercial travel, and to
a lesser extent, trade volume since March 2020. These user fees
fund 40 percent of CBP OFO's budget, including 8,000 CBP
officer positions. That is roughly one-third of the entire CBP
work force at the ports of entry.
Without supplemental appropriated funding to support these
CBP officers between now and the end of fiscal year 2020, we
are greatly concerned that this loss of user fee funding will
result in furloughs at a time when this work force is most
needed to facilitate the flow of legitimate travel and trade as
the economy recovers.
Recently, NTEU and 15 leading court leaders asked House and
Senate appropriators to provide funding in either a DHS
supplemental funding bill or in the next COVID recovery package
to make up for user fees lost because of the pandemic and to
help CBP respond effectively to the COVID-19 related challenges
they must overcome now and in the future.
It is our understanding that new trade and travel volume
data collected by CBP shows a user fee funding shortfall of
over $400 million in fiscal year 2020 and the need for over
$1.5 billion through fiscal year 2021 to cover the user fee
shortfall through the next fiscal year. This supplemental
funding would help to ensure that current CBP officer staffing
levels are maintained and that CBP does not lose the hiring and
staffing advances that they finally started to gain after years
of effort and much appreciated funding support by Congress as
trade and traffic volumes increase.
So NTEU implores you to support additional funding now so
that CBP officers can stay on the job during the economic
recovery. CBP employees at the ports of entry already face many
challenges in the course of their work, and concerns about
their health and safety or being furloughed as the country
reopens for business should not be among them.
Thank you very much, and I am happy to answer any questions
that you may have.
[The prepared statement of Mr. Reardon follows:]
Prepared Statement of Anthony M. Reardon
June 16, 2020
Chairwoman Torres Small, Ranking Member Crenshaw, and distinguished
Members of the subcommittee, thank you for the opportunity to testify
before you today. As national president of the National Treasury
Employees Union (NTEU), I have the honor of leading a union that
represents over 27,000 Customs and Border Protection (CBP) Office of
Field Operations (OFO) employees, including CBP officers, agriculture
specialists and trade enforcement personnel stationed at the 328 land,
sea, and air ports of entry across the United States (U.S.) and 16
PreClearance stations at airports in Ireland, the Caribbean, Canada,
and the United Arab Emirates. CBP's OFO pursues a dual mission of
safeguarding American ports, by protecting the public from dangerous
people and materials, while enhancing the Nation's global and economic
competitiveness by enabling legitimate trade and travel. CBP OFO
employees are responsible for border security, including anti-
terrorism, immigration, anti-smuggling, trade compliance, and
agriculture protection at U.S. ports of entry.
I commend the committee for holding this hearing and closely
monitoring the Department of Homeland Security's (DHS) plans for
bringing more employees back to their worksites, their implementation
of guidance, and how they are keeping employees safe. As more Federal
agencies begin to call employees back to their workplaces, many
employees have expressed a significant amount of anxiety and fear about
their ability to return to work safely. Their fears are understandable
as more than 2 million Americans have been infected with COVID-19 and
more than 115,000 U.S. residents have already died from this virus.
As coronavirus began to spread in the United States, the ports--
including airports and land border crossings--were fully staffed and
personnel were interacting with international travelers, many of whom
came directly from or had recently traveled to places where the virus
was already being widely transmitted between individuals. As volume of
travelers fell, CBP OFO began adjusting work schedules by providing
some Weather and Safety Leave (WSL) for CBP Officers and Agriculture
Specialists. These temporary CBP OFO work schedules allowed CBP port of
entry employees to limit exposure to the virus and were the product of
urgent discussions between employee representatives and management,
with the twin goals of delivering the mission while promoting the
health of these employees. Indeed, those two goals merge, because
effective mission delivery is not possible without a healthy workforce.
These temporary schedule adjustment agreements were reached in late
March as the number of international travelers at airports fell by over
90 percent and crossings at the northern and southern ports of entry
dipped by as much as 75 percent. This allowed CBP to adjust schedules
to limit the number of CBP personnel at ports while still meeting
operational needs. It additionally allowed OFO personnel to more fully
comply with Centers for Disease Control and Prevention (CDC) guidance
to limit the spread of coronavirus by staying home, social distancing,
and avoiding groups as much as possible. The agreements were a smart
way for local port officials to protect their employees, follow public
health recommendations and respond to the lower volumes of
international travelers. Under the revised schedules, CBP employees who
were on leave were subject to recall and ready to return to the port at
a moment's notice, should the need arise.
After initially permitting WSL at the Northern and Southwest Border
land ports, to NTEU's great consternation, in early April CBP
unilaterally canceled the use of WSL at the land ports. Therefore, for
the most part, CBP officers at these land border crossings have
continued to work throughout the last 3 months of the pandemic at great
risk to their health and safety. The CBP workforce as of June 9 has
more than 459 confirmed COVID-19 cases, according to CBP-wide figures,
and many more employees in quarantine.
Sadly, we have lost 5 officers who worked at the international
ports of entry to COVID-19. I want to take a moment to honor these NTEU
members by name: CBP Technician Van Dong worked in Agriculture
Secondary at the Tom Bradley International Terminal, Los Angeles
International Airport; CBP Officer Richard McCoy worked at the Fort
Lauderdale/Port Everglades Port of Entry in Florida; and CBP Officer
Omar Palmer, CBP Officer Ching Kok `CK' Yan, and Field Technology
Officer James Taylor all worked at John F. Kennedy International
Airport. NTEU mourns these losses with the family and friends of these
officers and appreciates their dedicated service to our Nation.
The pursuit of the safest possible working environment for CBP
employees at all ports of entry, trade, enterprise services, and
operations support facilities has been NTEU's paramount concern during
the COVID-19 crisis. Throughout the pandemic, most international air,
sea, and land ports of entry remained open and are staffed by CBP OFO
employees 24 hours a day, 7 days a week, 365 days of the year. There
are unique, on-going challenges to make sure health and safety
precautions at all CBP worksites are comprehensive and effective. As
international trade and travel struggles to return to normal, our CBP
members deserve every possible safety precaution CBP can implement.
NTEU is working with CBP to ensure the following safeguards:
On-site, free wide-spread COVID-19 and antibody tests for
CBP employees. To date, DHS has not provided on-site testing
and will not until there is a Government or DHS-wide policy.
NTEU also requested that CBP provide real-time notification of
positive cases among employees.
A contact tracing protocol that requires notification of CBP
OFO employees exposed to asymptomatic travelers who
subsequently test positive for the virus. NTEU is seeking a
less restrictive time exposure requirement. NTEU has concerns
that current DHS Guidance that CBP follows is insufficient to
precisely define the duration of time that constitutes a
prolonged exposure. Recommendations vary on the length of time
of exposure from 10 minutes or more to 30 minutes or more.
Brief interactions are less likely to result in transmission;
however, symptoms and the type of interaction (e.g., did the
person cough directly into the face of the individual) remain
important.
Increased cleaning of all terminals and work areas,
including shared vehicles, staggering lanes, and cleaning
booths between officer rotations, not just between shifts. CBP
has told us that staggering lanes and cleaning booths between
rotations is a ``best practice,'' but acknowledged that it may
be cost-prohibitive at some ports.
Plexiglass barriers on primary booths and in detention areas
and promoting social distancing where possible. CBP
acknowledged NTEU's concerns about limited space in soft-
secondary areas which may prevent maintaining safe social
distances. They will do what they can to maintain such
distances, particularly to ensure that safe distances exist
between members of the public and officers working the counter.
Proper and sufficient Personnel Protective Equipment (PPE)--
masks, gloves, sanitizer, and wipes--for all employees,
including agriculture specialists, and non-uniformed trade
personnel. To promote officer safety, CBP requires N95 masks be
worn in secondary when working in close proximity to others and
that surgical masks be worn in primary booths. NTEU also
strongly supports requirements for travelers to wear masks
while being processed in air, sea, and land port primary
booths.
Adequate notice of return to work and adjusted work schedule
policies to ensure appropriate physical distancing and
staggered shift arrivals and departures.
Maximize telework and other flexibilities, particularly for
employees with children whose schools or child-care facilities
are closed and those who rely on public transportation where
social distancing may not be possible to get to work.
Authorize telework or WSL for ``high-risk'' CBP employees
and for employees whose work is portable and are not assigned
to front-line work at the ports.
Allow WSL for quarantined and symptomatic employees who are
still able to work. CBP has resisted providing WSL to
symptomatic employees who are still working from home, saying
they must take sick leave.
Provide safety suits for CBP officers and agriculture
specialists entering confined spaces, such as ship holds.
Provide parking subsidies to reimburse employees who choose
to drive to work because of concerns with using public
transportation.
In addition to Congressional support needed to ensure the above
safeguards are in place and sustained at the ports of entry until an
effective vaccine is made available, legislation is also needed to
further support employees. NTEU applauds the House for passing last
month a fourth coronavirus legislative relief package that includes
NTEU-backed provisions supporting and protecting Federal employees
during the pandemic. The Health and Economic Recovery Omnibus Emergency
Solutions (HEROES) Act, H.R. 6800, includes several NTEU-supported
provisions that would impact Federal employees, including:
Creating a HEROES Fund that would provide Federal employees
with additional premium pay of $13 per hour, up to a maximum
$10,000 for those whose basic pay is less than $200,000, for
either those who have regular or routine contact with the
public or those who must report to a worksite where social
distancing is not possible and other preventative measures are
not available;
Continued telework for all eligible Federal employees
throughout the pandemic, plus incentives for agencies to expand
their telework programs.
Allowing Federal first responders, including CBP officers,
to stay in their current law enforcement retirement plans even
if they are unable to meet the physical requirements of their
position due to exposure to coronavirus and are moved to other
civil service jobs.
A presumption that Federal employees who work with the
public and are diagnosed with COVID-19 contracted it in the
workplace, for workers' compensation purposes.
Eliminating out-of-pocket costs for COVID-19 treatment under
the Federal Employee Health Benefit Program.
Extending the emergency leave provisions in the Families
First Coronavirus Relief Act to all Federal employees.
As Congress continues negotiations on legislation to respond to the
impacts of the COVID-19 pandemic, we ask that you include additional
language supporting Federal workers on the front lines who bear a
significant share of the burden in responding to this crisis.
Legislation is needed to address the need for expansion of carry-
over annual leave hours due to the inability of Federal workers to take
annual leave during the pandemic. Under current law, carry-over hours
are limited to 240. Many CBP families have canceled their scheduled
vacations this year due to pandemic-related inability to travel,
destination shutdowns, and required quarantines. We believe the earned
annual leave of employees who are unable to take leave as they continue
the important work of Government and adhere to stay-at-home orders
should be protected beyond the 240-hour limit. NTEU supports Rep.
Wexton's bill (H.R. 6733) to ensure at least front-line workers
responding to the pandemic can carry over excess annual leave. We urge
Congress to pass it and to extend this benefit to all Federal workers.
While many CBP personnel would be eligible for additional pay from
the Heroes Fund included in the HEROES Act if it were enacted, NTEU
believes CBP employees and other Federal personnel should already be
eligible to receive hazardous duty pay under existing law. Because of
the nature of their jobs, many CBP employees have regular contact with
the public and difficult to practice social distancing while working at
the air, sea, and land ports of entry. According to the Schedule of Pay
Differentials Authorized for Hazardous Duty Pay, one such hazard is:
``Exposure to Hazardous Agents, work with or in close proximity to . .
. (5) Virulent biologicals. Materials of micro-organic nature which
when introduced into the body are likely to cause serious disease or
fatality and for which protective devices do not afford complete
protection.'' NTEU submits that COVID-19 exposure falls within this
hazard, but to date, CBP has said that it does not, and has not paid
either Hazardous Duty Pay or Environmental Differential Pay to those
employees that are exposed to COVID-19 because of their work for CBP.
NTEU urges Congress to pass a provision, like that in H.R. 6379, which
would clarify that employees who have contact with the public and may
be exposed to an individual who has or has been exposed to COVID-19 are
eligible for this pay differential.
Last, the Federal Law Enforcement Training Center (FLETC) has
reopened on a limited basis. NTEU has been told that students will be
screened upon returning, quarantined for 14 days prior to the
commencement of formal class training, tested twice during the
quarantine period, and be provided ample PPE. In addition, class sizes
will be smaller and other additional new practices have been put in
place to ensure social distancing. Nevertheless, we have concerns about
staff and instructors leaving at the end of each day and the chance
that they could then bring the virus into the classrooms. We have
raised those concerns and now FLETC will be testing high-contact
instructors (e.g. PT and Firearms) weekly.
fiscal year 2020 cbp budget shortfall
One of the most critical pandemic-related issues facing CBP OFO is
the reduction of user fee funding that is threatening Nation's economic
recovery as international trade and travel struggles to return to
normal. This budget shortfall is a result of the reduction in customs
and immigration user fees collected due to the drastic drop in
international commercial travel, and to a lesser extent, trade volume
since March 2020. As you know, CBP collects fees under the Consolidated
Omnibus Budget Reconciliation Act of 1985 (COBRA) and immigration
inspection user fees to recover certain costs incurred for processing
air and sea passengers and various private and commercial land, sea,
air, and rail carriers and shipments. The source of these user fees are
commercial vessels, commercial vehicles, rail cars, private aircraft,
private vessels, air passengers, sea passengers, cruise vessel
passengers, dutiable mail, customs brokers, and barge/bulk carriers.
COBRA and immigration user fees together fund 40 percent of CBP's
OFO budget, including 8,000 CBPO positions. That is roughly one-third
of the entire CBP workforce at the ports of entry.
Due to the COVID-19 pandemic, travel and trade volume has fallen
precipitously resulting in a significant reduction in the amount of
user fees collected and a massive user fee shortfall of several
hundreds of million dollars for CBP in fiscal year 2020. CBP is
projecting that they will spend all the fees they collect this year as
well as any surplus from prior years before the end of fiscal year
2020.
Further, the agency anticipates low fee collections due to a
continued diminishment of travel volumes into fiscal year 2021 due to
the pandemic's continued disruption of fee generating commerce. The
length and degree of disruption caused by the pandemic is still
unknown. Without appropriated funding to support these CBP officers in
fiscal year 2020, we are gravely concerned that this loss of user fee
funding could result in furloughs at a time when trade and travel will
be struggling to return to normal.
U.S. businesses rely on the safe and efficient movement of goods
and people across our borders and are all working to safely resume
international travel and travel. Keeping current CBP officer staffing
levels will be necessary to successfully transition into a more robust,
safe, and delay-free travel environment and improve cargo movement.
Also, CBP will likely lose the hiring and staffing advances that they
finally started to gain, after years of effort and much appreciated
funding support by Congress, which will negatively impact cross-border
travel, passenger processing and trade facilitation in future years as
the economy returns to normal.
The critical issues that American businesses are facing to recover
from this pandemic require quick, decisive action so that our
Government can best facilitate the flow of travel and trade as the
economy recovers. Without supplemental appropriated funding to support
these CBP officers between now and the end of fiscal year 2020, we are
gravely concerned that this loss of user fee funding will result in
furloughs at a time when this workforce is most needed to facilitate
the flow of legitimate travel and trade as the economy recovers.
Recently, NTEU and 15 industry leaders, including air and seaport
authorities, the Border Trade Alliance and the U.S. Chamber of
Commerce, have asked House and Senate appropriators to provide funding
in either a DHS supplemental funding bill or in the next COVID recovery
package to make up for user fees lost because of the pandemic and to
help CBP respond effectively to the COVID-19 related challenges it must
overcome now and in the future. It is our understanding that new trade
and travel volume data collected by CBP shows a shortfall of over $400
million through fiscal year 2020 and a need for over $1.5 billion in
fiscal year 2021 appropriations to cover user fee shortfall through the
next fiscal year.
This fiscal year 2020 CBP OFO supplemental funding request will
help to ensure that current CBP officer staffing levels are maintained
as trade and traffic volumes increase. NTEU implores you to seek
additional funding now so that CBP officers can stay on the job during
the economic recovery. CBP employees at the ports of entry already face
many challenges in the course of their work and concerns about their
health and safety or of being furloughed as the country reopens for
business should not be among them.
In closing, we all understand Federal workers' anxiety about their
own safety during this pandemic as they work to keep our country safe.
As leaders, it is important that we continue to do everything we can to
mitigate the risks they face, and we need to encourage them to do so on
an individual basis, for their own safety as well as their coworkers.
We deeply appreciate your efforts to support and protect Federal
employees throughout this crisis and encourage you to continue to
provide strong oversight to help ensure the safety of all Federal
employees in this unprecedented time.
Ms. Torres Small. Thank you for your testimony.
I now recognize Dr. Kelley to summarize his statement for 5
minutes.
STATEMENT OF EVERETT B. KELLEY, NATIONAL PRESIDENT, AMERICAN
FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO
Mr. Kelley. OK. Thank you so much.
Chairwoman Torres Small, Chairman Thompson, Ranking Member
Crenshaw, and Members of the subcommittee, my name is Everett
Kelley, and I am the national president of American Federation
of Government Employees. Thank you for the opportunity to
testify today. However, I first of all want to recognize Border
Patrol Agent Mordan who lost his life recently in the line of
duty, and would like the privilege of taking 10 seconds of my
allotted time just to think about him for a moment.
[Moment of silence observed.]
Mr. Kelley. Thank you so much. Just want to remember him
and pray for his family.
For those on the front line, the decision to reopen should
be about preventing additional dangers to the health and safety
of this vital work force. These are people who show up and do
their jobs with their lives on the line, when the safety of
their families is not ensured, even when they don't take
practical steps to protect them.
We are learning a lot about what it takes to beat the
pandemic and provide protection until there is an effective
vaccine or treatment, social distancing, wide-spread testing,
contact tracing, and rapid response to new outbreaks. Without
these, we don't want to experience repeated resurgence where
thousands more will suffer and die. Every effort should be made
to avoid this outcome, not only at DHS, but throughout the
United States and the world.
Resuming operations safely must be considered broadly, both
in terms of what is safe for the public we serve and what is
safe for the DHS employee and work force. If it only occurs
when new cases and deaths rates are still increasing, we risk
further infection among the great men and women who are working
to keep our country safe.
On April 20, OMB released its only guidelines--or guidance
on reopening. The guidance was planned for a three-phase
reopening based first on 14 days of declining case of COVID-19,
adequate testing, and hospital capacity. It didn't call for
provisions or personal protective equipment, but did indicate
that agencies should not move from one thing to the next until
work spaces were equipped with protective measures, such as
high dividers and more frequent cleaning.
The guidance indicated that, in the first phase, employees
with vulnerable health conditions were to be provided telework
or weather or safety leave. AFGE responded to OMB by setting
forth 6 preconditions for reopening we believe should be met,
emphasizing that the administration's efforts to promote
reopening were premature and unwise. The preconditions outlined
were universal testing, use of science-based standard for a
safe return to work, equal treatment of the work force in
implementing preventive measures making our workplace safe,
including the provision of personal protective equipment,
sending home symptomatic employees, and working with unions to
battle this pandemic.
To this last point, DHS employees on the front line and
those who are teleworking are safer when the Department
demonstrates a willingness to engage with the work force and
their unions in order to gain their views, hear their concerns,
and entertain their suggestions on how best to proceed in the
context of the risk created by the pandemic.
Time doesn't allow me or permit me to go into details about
the experience our members have faced during this pandemic, but
what I will tell you is FEMA employees still need FDA-approved
PPE as hurricane season has started. Both passengers and TSOs
must be required to wear masks, and TSOs need FDA-approved
surgical masks to be provided by TSA.
CIS employees need to stay on the job. They couldn't--they
shouldn't, rather, be furloughed or RIF'd. Law enforcement
officers need full retirement benefit if they become disabled
and their families need support, and survivors, if they lose
their lives during the COVID-19. And all of the front-line DHS
work force need premium pay, automatic resumption of workplace
illnesses, and the stringent application of workplace safety
standard.
Let me emphasize my point about CIS. This crisis looms
immediately before us. I urge this committee to work with
leadership and appropriations members to make sure that this
threat of RIF and furloughs does not happen and CIS is provided
funding in the next COVID administration passed by Congress.
Although CIS is characterizing the layoff as furlough,
their process in their layoff actions in accordance with work
procedures. Such procedure requires that RIF notice to be
issued to employees if the furlough may last more than 30
calendar days. By using RIF notices rather than furlough
notices, CIS can extend their layoffs up to 1 year. The bottom
line is that CIS is placing employees in the status of being
furloughed and potentially RIF'd at the same time.
Now, such action to prevent these CIS furloughs or RIFs is
extremely urgent, and I ask you to act on those. I thank you
for the time that you have given me today. Thank you so very
much.
[The prepared statement of Mr. Kelley follows:]
Prepared Statement of Everett B. Kelley
June 16, 2020
Chairwoman Torres Small, Ranking Member Crenshaw, and Members of
the subcommittee: My name is Everett Kelley, and I am the national
president of the American Federation of Government Employees, AFL-CIO
(AFGE). On behalf of the 700,000 Federal and District of Columbia
employees represented by our union, I thank you for the opportunity to
testify today on the subject of reopening the Department of Homeland
Security (DHS) in a safe and responsible manner.
AFGE represents employees in several DHS components, including
Border Patrol, the Coast Guard, Immigration and Customs Enforcement
(ICE), the Transportation Security Administration (TSA), the Federal
Emergency Management Agency (FEMA), the Citizenship and Immigration
Service (USCIS), and the Federal Marshalls Service. Employees in all of
these components have been working bravely and courageously throughout
the pandemic, most on the front lines at their regular duty stations,
and many more who have been working remotely to carry out the mission
of their agencies. In fact, we estimate that just 20 percent of the DHS
employees we represent have been working remotely or have been on some
kind of leave during this pandemic.
Three months of data have produced a good amount of knowledge
regarding what it takes to beat the pandemic and provide protection
until there is either an effective vaccine or an effective treatment.
First, there must be consistent and strict facilitation and enforcement
of social distancing, and social distancing has to be in place for a
period of sufficient length so that the number of infected people is
reduced to a small fraction of the population. In addition to social
distancing, we need testing, tracing, and the ability to isolate so new
outbreaks can be identified and everyone who has been exposed can be
quarantined. A premature end of social distancing, a failure to follow
through with testing, contact tracing, and isolation is a guarantee of
resurgence and a guarantee that thousands more will suffer and die.
Every effort should be made to avoid this outcome, not only for DHS but
throughout the United States and the world.
We do not have firm data on the number of DHS employees who have
contracted the virus and we do not know how many DHS employees have
died from COVID-19. TSA reports that infections among its workforce
number 667 and 5 TSA employees and 1 TSA contractor have died from the
virus. TSA also reports that over the past 2 weeks, 19 airports have
reported the existence of new infections.
We do not have data on infections or deaths from the other DHS
components, but it is reasonable to believe that there are large
numbers of infections. And of course, one infected individual is likely
to have transmitted the virus to others so the number of DHS-related
cases will be larger than reported infections.
As such, ``Resuming Operations Safely'' must be considered broadly,
both in terms of what is safe for the public we serve and what is safe
for the DHS workforce. In each case, it would be wrong to rush into
reopening because no matter how scrupulously safety protocols might be
followed, if DHS components resume operations that have been closed in
order to mitigate the spread of COVID-19 when the virus is still
spreading, when new cases and death rates are still increasing, it will
have been too soon.
omb guidance and afge response
On April 20, the Office of Management and Budget (OMB) released the
only Government-wide guidance to date on reopening. Importantly, even
OMB said that its phased reopening should not proceed until 3 important
criteria were met: 14 days of declining numbers of reports of flu and
COVID-19 symptoms, 14 days of declining confirmed cases of COVID-19 or
14 days of a declining percentage of positive tests, assuming a steady
or rising number of tests, and third, the existence of adequate
capacity at local hospitals to treat all cases of COVID-19 without
having to resort to crisis triage and the availability of robust
testing of health care workers.
In addition to these criteria for entering the first phase of
reopening, OMB emphasized that Federal agencies would have broad
discretion to reopen on their own terms, and that reopening should
occur on a local and regional basis.
No reopening was to occur until the OMB criteria had been met, and
reopening was to occur when the criteria had been met on a regional
basis.
There were to be 3 phases of reopening. During the first phase,
maximum telework would continue, return to work sites would be
staggered by hours and/or by days, managers were ``encouraged'' to
continue to approve weather and safety leave for those are not
telework-eligible or are in Centers for Disease Control and Prevention
(CDC) identified categories of ``most vulnerable.'' This last includes
people over the age 65 and ``people of all ages with underlying medical
conditions, particularly if not well controlled, including:
People with chronic lung disease or moderate to severe
asthma
People who have serious heart conditions
People who are immunocompromised
Many conditions can cause a person to be immunocompromised,
including cancer treatment, smoking, bone marrow or organ
transplantation, immune deficiencies, poorly controlled HIV or
AIDS, and prolonged use of corticosteroids and other immune-
weakening medications
People with severe obesity (body mass index [BMI] of 40 or
higher)
People with diabetes
People with chronic kidney disease undergoing dialysis
People with liver disease.
During phase one, employees ``may'' wear face coverings at work;
they are not required, and they would not be supplied by the employer.
``Customer-facing'' operations are to put in place entry protocols like
visual and temperature checks, and agencies are supposed to have
adequate supplies of disinfectant, hand sanitizer, paper towels, soap,
and hot water. Buildings are supposed to be cleaned more frequently
than usual and efforts are to be made to facilitate social distancing
at work. Case-by-case accommodations for employees are supposed to be
made. The second phase would be entered when all the criteria for entry
into phase one continue to be met, but agencies are supposed to take
steps to alter office and work sites to prevent the spread of the virus
such as building higher walls on cubicles and changing the
configuration of ``public use'' areas of work sites such as locations
where copiers and supplies are stored and utilized. Maximum telework
should be continued. Again, accommodations for particular employees are
supposed to be made on a case-by-case basis.
Phase three as discussed in the OMB memorandum is supposed to be
entered when all the phase one criteria continue to be met. Phase three
includes a return to pre-pandemic rules for telework, with face
coverings and social distancing optional. Accommodations for
individuals would be permitted, again on a case-by-case basis.
I responded to the OMB guidance with a letter to Acting Director
Voughton April 22. I have received no response to this letter. My
response set forth 6 preconditions for reopening that AFGE members
believe should be met prior to reopening. I emphasized my view that the
administration's efforts to promote reopening were premature and
imprudent. It is now almost 9 weeks later and in States that reopened
too early such as Texas and Florida, the data are showing a resurgence
of the pandemic. We are not seeing, however, a reversion to ``stay at
home'' directives that are supposed to precede any reopening.
In my letter on behalf of AFGE members, I called for the following:
1. Universal testing for COVID-19 because we cannot assess
correctly the risk of transmission until we know the extent of
infection. I argued that only with universal testing will it be
possible to implement prudent policies for the use of public
transportation, for social distancing inside Federal offices
and other work sites, and other appropriate precautions,
especially those that involve direct interaction with the
general public.
2. Science-based standards for the safe return to work because the
administration has politicized its response to the pandemic
from the earliest days, at first denying its existence, later
minimizing its severity, and then rushing to reopen even while
cases are increasing, when effective treatment does not exist,
and a vaccine is still months or even more than a year away.
Based on our own research, we follow the recommendations of
epidemiologists and other public health experts who cite 14
days of exponential decline in new cases within a region before
easing quarantine and shelter-at-home restrictions. With regard
to the definition of a local area, we urged Federal employers,
including DHS, to use the areas defined in the General Schedule
locality pay system. For areas within the ``Rest of US''
locality, regions should be defined by Census data on commuting
used to describe Combined Statistical Areas or Metropolitan
Statistical Areas.
3. Treat all workers equally, because no one is low-risk, tens of
thousands have died who were young and healthy before
contracting the virus. We also urged full accommodation be
provided to anyone who needs measures to ensure that
individual's safety and health.
4. Federal workplaces must be safe workplaces, because we want to
be certain not only that no one contracts the virus at work; we
want Federal employees to know that they will not be bringing
the virus home with them after work. We asked that all Federal
work sites be supplied with items that help minimize the spread
of infection such as employer-supplied FFDA-approved masks and
other PPE, hand sanitizer, facilities for hand washing
including soap and hot water, tissues, interior infrastructure
that meets safety and health standards to allow proper
distancing, dividers, regular disinfecting of work spaces, and
areas for isolation, and filtering systems for air circulation.
We asked that Federal work sites be fully OSHA-compliant and
operated within CDC guidelines, even as OSHA has failed to
issue any emergency standards to protect workers from COVID-19.
5. Symptomatic employees be sent home on leave because in order to
protect workers at the work site, employees or on-site
contractors who develop a COVID-19 infection, or who display
any symptom known to be related to COVID-19 must be removed
from the workplace immediately and all remaining employees must
be notified immediately. We further urged that contact tracing
be employed and all those who report contact with the
symptomatic employee must be removed from the workplace as well
and permitted either to work remotely or receive weather and
safety leave for a minimum of 14 days.
6. Last but certainly not least, we reminded Mr. Vought that all
agencies must comply with their obligations with their union.
In DHS, like other agencies, there has been much variation
among the components regarding willingness to engage with
front-line employees in order to gain their views, hear their
concerns, or entertain their suggestions for how best to
proceed in the context of the risks created by the pandemic.
The DHS Chief Human Capital Officer has had weekly calls with union
representatives to keep us apprised of the agency's overall plans, but
as useful and constructive as these conversations have been, they are
no substitute for real cooperation and dialog on a local level. Reports
from the AFGE bargaining councils representing employees of DHS's
various components indicate that they have not responded to demands to
bargain over the return to work.
dhs components' response so far
AFGE's FEMA Council reports that its top priority is that testing
becomes available for all employees prior to return to work. As
hurricane season approaches, it is important to recognize that FEMA
employees will be traveling from all over the country, from different
States with vastly different levels of infection, social distancing
rules, and use of PPE. They are concerned not only that they might be
bringing infection with them, but they also believe that without
universal testing they will be at risk of contracting the virus from
others. Further, FEMA employees report that the agency has been
promising to provide masks to employees for more than a month and so
far, employees have received no masks. Cloth masks will, however, be
entirely inadequate to protect FEMA employees.
FEMA employees, like all other DHS employees, need FDA-approved
surgical masks to help prevent them from transmitting the virus and to
protect them from others who may be emitting droplets or particles that
contain the virus. Notably, the Occupational Safety and Health
Administration (OSHA) published information last week that said,
regarding cloth face masks, that they ``are not considered personal
protective equipment (PPE)'' and they will ``not protect the wearer
against airborne transmissible infectious agents due to loose fit and
lack of seal or inadequate filtration.'' (https://www.osha.gov/SLTC/
covid-19/covid-19-faq.html). As such, we are asking that adequate
supplies of FDA-approved masks, not cloth masks, be provided to all DHS
employees returning to or continuing to work at their regular duty
stations.
uscis and the threat of furloughs
What could be worse than a return to work that is poorly planned
and inexpertly executed? No return at all. We received notice that as
many as 13,400 of the agency's 18,700 employees (71.7 percent) would be
furloughed beginning August 3, 2020 if USCIS does not receive an
emergency supplemental appropriation from Congress. The agency claims
that a reduction in fee revenue caused at least in part by the COVID-19
pandemic is the rationale for these threatened furloughs.
We urge you in the strongest possible terms to take action to
provide funds to USCIS specifically to prevent furloughs and keep the
agency functioning. Furloughs of this magnitude would make it entirely
impossible for the agency to carry out more than a tiny fraction of its
mission. With a loss of nearly three-fourths of its workforce, work,
student and visitor visa petitions, asylum and citizenship/
naturalization applications, green cards, and refugee applications will
not be processed. Please note that USCIS facilitates lawful
immigration, it helps law-abiding immigrants attain a legal status as
permanent residents and when and if they meet all legal criteria,
eventually become U.S. citizens.
USCIS has worked with House and Senate Appropriations staff to
identify the need for an emergency supplemental appropriation of $1.2
billion to prevent these furloughs. The agency would use $571 million
to fund the jobs for the remainder of the current fiscal year and would
use the additional $650 million for the start of fiscal year 2021. The
$1.2 billion would compensate the agency solely for the amount already
budgeted for operational needs and to allow it to continue to meet
payroll for the 13,400 Federal employees currently under threat of
furlough. We recognize the enormous economic pain that the COVID-19
pandemic has caused throughout our Nation and the world. But the United
States should not and need not discontinue its capacity for
administering legal immigration processes. But without this
supplemental appropriation, that is exactly what will happen.
Please also recall that the employees of USCIS, 14,500 of whom are
in AFGE bargaining units, are middle-class Americans who live and work
in communities all across the Nation. They take great pride in the work
they do on behalf of DHS and the mission of their agency. They earn
modest salaries in return for public service. These furloughs would
completely destroy their ability to support themselves and their
families and worsen the already precarious economic situation of their
communities.
Although we have asked USCIS to share with us the specifics of how
and why they came to need the $1.2 billion and how exactly they would
spend the money once it is appropriated, they have declined, to date,
to share this information. One verbal response indicated that a
substantial portion of the requested funds would be devoted to paying
contractors. We want to make sure that if the supplemental
appropriation is granted, that it be conditioned on it being spent at
least in part to ensure that there be no furloughs of any of USCIS's
Federal employees. The emergency appropriation supplement should not be
granted if the agency intends to use the money solely or even primarily
to pay contractors and proceed with its plan to furlough its own
workforce. Thus, we urge you to require USCIS to forgo furloughing any
of its own workforce as a condition of receiving the supplemental
appropriation it has requested.
legislative measures to protect the dhs workforce from the impact of
covid-19
AFGE strongly supports the provisions of the HEROES Act that would
affect Federal employees. In particular we support the extension of
paid emergency sick leave and partially-paid emergency leave under the
Family Medical Leave act to first responders. We also strongly support
the HEROES Act's provision of a $13 per-hour pay differential for
front-line employees which would benefit the almost 80 percent of DHS
employees who, by virtue of their duties, were required to continue
working at their regular duty station throughout the pandemic.
The HEROES Act also created a presumption of workplace illness for
COVID-19 so that Federal employees who are working on the front lines
and contract the virus during the pandemic will be eligible for Federal
workers' compensation benefits without having to prove that they
contracted the disease atwork. The HEROES Act also includes a provision
that would allow certain law enforcement officers (LEOs) to retire and
retain LEO retirement eligibility if they contract COVID and are unable
to fulfill the duties of their jobs but are employed in other Federal
work.
There are several additional measures that were not included in the
HEROES Act that we urge Congress to enact in subsequent legislation. We
ask that Congress intervene to allow Federal employees who are not
currently enrolled in a Federal Employees Health Benefits Program
(FEHBP) health plan the opportunity to purchase and join the program
during this public health emergency. This provision is especially
necessary for the part-time work force at TSA. Up until this year, TSA
provided a full employer subsidy for its large part-time workforce. In
2019, the TSA administrator announced abruptly that the agency would
end this practice, cutting compensation for this already poorly-paid
work force and making health insurance coverage unaffordable for them
and their families.
Transportation Security Officers are also under a separate and
unequal personnel management system that provides no due process in the
work place and no ability to appeal to an independent arbitrator. This
has been a problem since the inception of TSA 18 years ago, but the
pandemic sheds a new light on the unfairness of lacking basic work
place rights, whistle-blower protections and a voice to protect jobs
and lives. This committee, through the leadership of Chairman Thompson
led the full House to pass H.R. 1140, the ``Rights for Transportation
Security Officers Act'' in March. This bill should be a part of COVID
response legislation and considered in the process of reopening DHS.
Many DHS employees likely had approved annual leave denied or
canceled because they were required to work because of the exigencies
of the pandemic; it is unclear whether they will be permitted to
reschedule this leave because the pandemic's future remains uncertain.
These employees face the possibility of having to forfeit unused annual
leave unless Congress intervenes to permit additional carry-over
(higher maximum ceilings) of leave due to COVID-19. A similar problem
could arise due to employees' illness rendering them unable to use
annual leave. Thus, we ask that future COVID-19-related legislation
include permission for increased carry-over of unused annual leave for
front-line employees who are unable to use their leave for reasons
directly related to leave having been denied due to scheduling issues
connected to the pandemic.
collective bargaining and covid-19
The eventual return to work for DHS employees, regardless of which
component of the agency they work for and regardless of the standards
by which component management makes its decisions, will require
collective bargaining with the affected employees. Notice to employees
of impending changes in practices and procedures regarding numerous
issues ranging from work place health and safety to PPE to issues
surrounding transportation to and from work, telework, scheduling of
work, accommodations of pre-existing health conditions or new risks
arising from COVID-19, issues arising out of work-related travel,
performance, training, leave, and privacy concerns with regard to
contact tracing are but a few of the issues that agencies will be asked
to bargain over with AFGE.
Throughout the pandemic, at agencies throughout the Government,
AFGE has asked management to restore labor-management committees so
that front-line workers can be made aware of new information affecting
their work and their agency's operations, and management can benefit
from the insight and experiences of those carrying out the agency's
mission. In most if not all cases, the administration's formal
hostility to recognizing the value of cooperative labor-management
relations has won out over the common-sense notion of working together
to promote the best interests of the agency and its workforce. We ask
the committee to use its authority to try to persuade the agencies to
set aside the anti-union, anti-collective bargaining stance that the
administration has advocated in order to make the return to normal
operations, when it occurs, as safe as possible for both the DHS
workforce and the American public we serve.
conclusion
One of the worst tragedies associated with this pandemic is that
now that we have sufficient knowledge of what is necessary to stop the
spread of the disease, it is likely that the Federal Government will
move forward with reopening too soon. As a consequence, instead of
stopping the spread of COVID-19, the Government itself will contribute
to the continuation and possible worsening of the pandemic. The vast
majority of DHS's workforce are front-line, ``essential'' employees who
have been at their regular-duty stations throughout the pandemic.
Taking the necessary steps to protect them--universal testing, strict
social distancing, provision of adequate Personal Protective
Equipment--might at one point have been impossible due to insufficient
supplies. But today there is no excuse.
There should be no re-opening unless and until it is genuinely safe
to return. There should be no re-opening unless and until DHS and other
Federal agencies have the full capacity to test, protect, trace, and
inform their workforces, and unless and until genuine, objective data
on the status of the pandemic shows it has subsided.
Ms. Torres Small. Thank you for your testimony.
As I recognize Mr. Judd to summarize his statement for 5
minutes, please allow me to add to the condolences and extend
my own very personal ones because of the work that Agent Mordan
did in my district and the hard work that is called upon for
Border Patrol agents. Thank you for your presence here today,
thank you for your representation of them, and my deepest
condolences to the family as well and gratitude for their work.
STATEMENT OF BRANDON JUDD, NATIONAL PRESIDENT, NATIONAL BORDER
PATROL COUNCIL
Mr. Judd. I would like to start by thanking both
Congressman Crenshaw and Congresswoman Torres Small for
extending that heartfelt condolences to the family of Agent
Mordan. This was a great individual who was working to protect
his country when he passed away. Unfortunately, we have buried
way too many Border Patrol agents who have been out trying to
do the best that they can to protect this Nation.
I want to thank you for having this hearing, both
Congresswoman Torres Small and Congressman Crenshaw. As you
already said, the NBPC represents 14,500 rank-and-file agents
of the Border Patrol. On behalf of these men and women, I would
like to thank you for having this hearing.
During this time of great civil unrest, I would be remiss--
because I am a uniformed law enforcement officer, I would be
remiss if I did not recognize the situation surrounding George
Floyd. I was thoroughly disgusted to see video of Officer
Chauvin with his knee on George Floyd's neck. I was even more
disgusted when I watched as Officer Chauvin failed to show the
slightest modicum of human decency as Mr. Floyd begged for his
life. I was mortified that a person who was supposed to be the
good guy was worse than the criminals law enforcement officers
come in contact with on a daily basis. Officer Chauvin's
actions can never be repeated, but just as important, the men
and women in law enforcement must understand and believe that
we are not above the law, and we all must believe that racism
has no place in society, especially in law enforcement.
With that being said, it would be absolutely unfair to
paint a picture of all law enforcement simply because of what
one man did. That individual must be held accountable. All law
enforcement also must look at this, learn, and try to do
better.
I would like to address the topic of this hearing. Border
security has gone completely uninterrupted during this
pandemic, and I want to thank DHS for doing all that they can
to make that happen. While the men and women of the Border
Patrol are no strangers to dealing with extraordinary
circumstances, including communicable diseases, in their
everyday jobs, the COVID-19 pandemic has created unique
challenges. I am proud to say Border Patrol agents across the
country have risen to the occasion to protect our borders, even
in the face of unprecedented circumstances, but we could not do
it alone.
After nearly 23 years in the Border Patrol, I can
emphatically say that without the support of this
administration, we would not succeed, and President Trump's
quick action to initiate Title 42 authorities has driven
illegal immigration numbers to the lowest levels in my career.
This has allowed us to detect and apprehend the vast majority
of those that have entered our country illegally over the past
few months, and it has undoubtedly prevented additional cases
of COVID-19 from coming to U.S. communities.
As you are undoubtedly aware, and as I previously stated,
since the onset of COVID-19 pandemic, the Border Patrol has
generally fared well along the Southwest Border from a border
security's perspective. Additionally, from a health and safety
perspective, we have also generally fared well and have been
incredibly fortunate that the number of COVID-19 cases among
agents has thus far been low. The men and women of the Border
Patrol have been able to continue border security missions
while also protecting our agents with little to no disruptions.
With the Border Patrol as an example, I believe the Federal
Government can operate at high levels while also managing the
spread of COVID-19. As a microcosm, I think that we can look at
the Border Patrol and we can say, because of all of the
different ways that we patrol the border, we are also in office
settings. We are in the field. We deal with individuals that
come in the most dire of circumstances. They are held in stash
houses, in locations that have diseases that run rampant. Yet
because of the actions that have been taken, the simple, little
actions that do not cost money, the Border Patrol has been able
to continue to operate. I believe that in office settings, the
Federal Government can also continue to operate and exceed the
levels of service that the U.S. citizens require and expect of
the Federal Government.
There are certain concerns that we have that we need to
address. The need for additional space is going to be critical.
Even if Border Patrol continues to expel illegal immigrants
under Title 42, the size of a potential surge of the country of
origin of illegal immigrants, the willingness of countries to
take their own citizens, and the health status of the
individuals we apprehend are all factors that are going to
drive the need for more capacity. Catch and release in a
pandemic is simply not an option.
We have had good success processing detainees in the field.
This is one of the reasons I believe we have kept our COVID-19
infections low. By processing in the field, we are not exposing
an entire Border Patrol station to a potential infected
individual.
One limiting factor is internet connection. Without proper
connection, we cannot conduct criminal background checks and
enter biometric data on the detainees. As you know, internet
connectivity is spotty at best along the border. However, with
the military technology available, it could give us this
connection, and it is my understanding that it can be done at
minimal cost.
Border Patrol currently does not have any testing capacity
for agents. Instead, we must rely on local medical facilities,
which in border communities are already overstretched. Given
that COVID-19 will remain a threat until a vaccine is
developed, Border Patrol leadership needs either develop this
capacity in-house or contract out the function, the most
effective method available.
Ms. Torres Small. Mr. Judd, I apologize. Your time has
expired. If you wouldn't mind just wrapping up.
Mr. Judd. Absolutely.
There are many things that can be done in the Federal
Government that don't cost the taxpayer money that will allow
us to continue to operate as the Federal Government.
I appreciate your time and look forward to answering any of
your questions.
[The prepared statement of Mr. Judd follows:]
Prepared Statement of Brandon Judd
Tuesday, June 16, 2020
Chairwoman Torres Small and Ranking Member Crenshaw, my name is
Brandon Judd and I am the president of the National Border Patrol
Council (NBPC). The NBPC represents the 14,500 rank-and-file field
agents in the Border Patrol. On behalf of these men and women, I would
like to thank you for both having this important hearing on how we can
safely operate in a COVID-19 environment and for being such stalwart
supporters of the men and women of the Border Patrol.
During this time of great civil unrest, and because I am a
uniformed law enforcement officer, I would be remiss if I did not
address the senseless murder of George Floyd.
I was thoroughly disgusted to see the video of Officer Chauvin with
his knee on George Floyd's neck. I was even more disgusted when I
watched as Officer Chauvin failed to show the slightest modicum of
human decency as Mr. Floyd begged for his life. I was mortified that a
person who was supposed to be the ``good guy'' was worse than the
criminals law enforcement officers come in contact with on a daily
basis. Officer Chauvin's actions can never be repeated, but just as
important, the men and women in law enforcement must understand and
believe that they are not above the law; and we all must believe that
racism has no place in society, especially in law enforcement.
I hope you will judge me by my actions and not my words.
Throughout my career, and as the head of the NBPC, I have
personally led the charge for accountability in the Border Patrol. Last
Congress, I worked with Senator Kamala Harris' staff on Body Worn
Camera legislation. Well before ProPublica exposed the reprehensible
Facebook postings by Border Patrol agents, I notified career Border
Patrol managers at the highest levels of the inappropriate and
unprofessional content that was being posted. I've filed numerous
reports of misconduct, including one report of a high-level manager
ordering his agents to target individuals of Muslim decent, regardless
of whether or not they were U.S. citizens. Thankfully, not one rank-
and-file agent, that I know of, followed through on the career
supervisor's order. I've also helped other Border Patrol agents file
reports of misconduct that they witnessed in the workplace.
I have been entrusted to enforce the immigration laws of the United
States. This charge is a great responsibility and it should mean that I
am more accountable to the law and certainly not above it. No law
enforcement officer is above the law and thankfully, the vast majority
of my colleagues believe the same. We believe those officers that would
put themselves above the law like Officer Chauvin, have no place in law
enforcement and I will re-emphasize that racism has absolutely no place
in society, especially in law enforcement.
In light of the aforementioned, I hope you will judge my testimony
accordingly.
border security uninterrupted
While the men and women of the Border Patrol are no strangers to
dealing with extraordinary circumstances, including communicable
diseases, in their everyday jobs, the COVID-19 pandemic has created
unique challenges and I am proud to say that Border Patrol agents
across the country have risen to the occasion to protect our borders
even in the face of unprecedented circumstances. But we could not do it
alone.
After nearly 23 years in the Border Patrol, I can emphatically say
that without the support of this administration we would not succeed,
and President Trump's quick action to initiate Title 42 authorities has
driven illegal immigration numbers to the lowest levels in my career.
This has allowed us to detect and apprehend the vast majority of those
that have entered our country illegally over the past few months and it
has undoubtedly prevented additional cases of COVID-19 from coming to
U.S. communities.
I also want to highlight the dedication to the border security
mission exhibited by members of the National Border Patrol Council
during this pandemic. For the first 2 months of the pandemic, members
of the National Border Patrol Council who are designated to be on 100
percent official time, voluntarily took themselves off of official time
and returned to their regular duty assignments in the field. To my
knowledge, we are the only Federal employee union in the Nation that
took this action.
As you are undoubtedly aware and as I previously stated, since the
onset of the COVID-19 pandemic, the Border Patrol has generally fared
well along the Southwest Border from a border security perspective.
Additionally, from a health and safety perspective, we have also
generally fared well and have been incredibly fortunate that the number
of COVID-19 cases among agents has thus far been low. The men and women
of the Border Patrol have been able to continue our border security
mission while also protecting our agents with little to no disruptions.
With the Border Patrol as an example, I believe the Federal Government
can operate at high levels while also managing the spread of COVID-19.
preparing for the worst
While the border security and public health picture amongst agents
is currently positive overall, I want to implore the subcommittee not
to assume that everything will be ``just fine'' going forward. I am
hopeful that the situation along the Southwest Border will remain as it
is but I am deeply concerned that due to the uncertain and complex
nature of COVID-19, the situation along the border could spiral out of
control and turn dangerous and deadly soon; and it could happen with
little to no warning. The evolving and ever-changing scientific, public
health, and economic landscape of this pandemic has made forecasting
what comes next nearly impossible--even for our Nation's top experts.
This uncertainty leaves the Border Patrol with only one option--to hope
for the best and prepare for the worst. Now is the time to plan and
prepare for the worst-case scenarios.
Unfortunately, there is a long history of Border Patrol leadership
not leading and not preparing for what lies ahead. In fact, whether it
was the 2014 Unaccompanied Alien Children (UAC) crisis or the 2019
surge that we just experienced this past summer, recent history has
shown that the agency rarely has contingencies for worst-case scenarios
and is ill-prepared to deal with crises along the border.
I am deeply concerned that Border Patrol leadership is again not
taking adequate steps now to prepare for what could very likely come
our way in the near future. Whether it's the draw of our economic
recovery or the downturn of the Mexican economy; an overwhelmed health
care system in Mexico due to a COVID-19 outbreak among Mexican
communities or the draw of excess hospital capacity in the United
States; there are many plausible scenarios that could lead to a massive
surge in illegal immigration and a resulting crisis along our Southwest
Border.
As I just stated, now is the time to plan and prepare for the
worst-case scenarios. If we keep operating under the same model, I am
afraid that we will sadly once again fail to protect our citizens,
employees, and individuals crossing our border. And with the grim
realities of COVID-19, the consequences of not planning and preparing
could be catastrophic and heartbreaking.
The NBPC is eager to begin preparations immediately and in that
spirit, I am pleased to share with the subcommittee the below
recommendations that we believe will make a significant difference in
Border Patrol operations, the health and safety of our agents and the
individuals that we encounter, if implemented. We welcome your feedback
and would greatly appreciate your support for these measures.
steps we need to be taking now
Additional detention capacity.--The need for additional space is
going to be critical even if Border Patrol continues to expel illegal
immigrants under Title 42. The size of a potential surge, the country
of origin of the illegal immigrants, the willingness of countries to
take back their own citizens, and the health status of the individuals
we apprehend are all factors that are going to drive the need for more
capacity. Catch-and-release in a pandemic is simply not an option.
In-field processing.--We have had good success processing detainees
in the field. This is one of the reasons that I believe we have kept
our COVID-19 infections low. By processing in the field we are not
exposing an entire Border Patrol station to a potentially infected
individual. One limiting factor is internet connection. Without proper
connection we cannot conduct criminal background checks and enter
biometric data on the detainees. As you know, internet connectively is
spotty at best along the border. However, there is military technology
available that could give us this connection and it is my understanding
that it can be done at a minimal cost.
Testing.--Border Patrol currently does not have any testing
capability for agents. Instead, we must rely on local medical
facilities which in border communities are already overstretched. Given
that COVID-19 will remain a threat until a vaccine is developed, Border
Patrol leadership needs to either develop this capability in-house or
contract out the function.
Temperature screening.--The most effective method available to
quickly determine whether an individual may be symptomatic is body
temperature screening. There are numerous vendors that make thermal
cameras that can determine, at a safe distance, whether an individual
is running a fever. We need to acquire this capability to both protect
the agents and ensure that detainees who are sick are properly
segregated from other detainees and treated.
Preparing OFO officers to back up Border Patrol.--The Border Patrol
has a long history of sending agents to assist at ports of entry when
the Office of Field Operations is overwhelmed. Apart from the 2019
crisis and only in the Rio Grande Valley, OFO has rarely been deployed
to assist the Border Patrol. We need to be prepared to redeploy OFO
officers to deal with a potential surge of illegal immigration. OFO
officers have the same legal authorities that I have as a Border Patrol
agent. They are terrific partners that can be helpful with detainee
processing, transportation, and detention while the port traffic
remains at low levels.
I hope you will take these suggestions into consideration, some of
which come at no cost to the taxpayer.
Again, I would like to thank you for the opportunity to testify on
behalf of rank-and-file Border Patrol agents and I am happy to answer
any questions that you might have.
Ms. Torres Small. Thank you very much, Agent Judd.
I thank all of the witnesses for their testimony. I will
remind each Member that he or she will have 5 minutes to
question the panel. I will now recognize myself for questions.
I understand that DHS headquarters developed guidance for
resuming operations, but it is allowing individual components
to take the lead on when and how they reopen facilities and
resume functions that were paused or modified due to the
coronavirus pandemic. As we have noted just recently, we are on
limited time here, so I would ask each witness, starting with
Mr. Judd, to just very briefly describe the level of engagement
your representatives have had with individual DHS components on
their plans for reopening, just how you have engaged.
Mr. Judd. We have had a high level of engagement. I
continue to communicate with Commissioner Morgan as well as
Chief Scott on a regular basis. As far as what needs to be
done, Chief Scott has done a very good job of allowing his
sector management to determine what needs to be done to reopen
facilities fully. Again, I appreciate the level of commitment
that he has shown to making this happen.
Ms. Torres Small. Thank you, Mr. Judd.
Dr. Kelley, your extent of engagement with representatives?
Oh, I apologize. If you can go off mute. There you go.
Mr. Kelley. Thank you so very much, OK. Let me just say,
first of all, you know, unlike Council President Judd, we have
had, you know, any number of attempts to try to get the various
agencies to communicate with us and work with us, you know,
however, we have been unsuccessful. Most of DHS, you know, we
have just not been able to get them to allow us to come to the
table and share, you know, in the responsibility, I am going to
call it responsibility because I think that is what we all
have, you know, getting our workers back to work safely, you
know. I would leave it with that.
Ms. Torres Small. Thank you, Dr. Kelley.
Mr. Reardon.
Mr. Reardon. Yes. Thank you for the opportunity to answer
this question. We have had, actually, a pretty high level of
discussion with CBP. We talk to DHS on a weekly basis, you
know, with Angie Bailey, the NCO, and we have had engagement
with her, and also just directly with the Acting Commissioner
Morgan, who I personally met with on a couple of occasions. We
have routine and on-going conversation with the leadership,
among other folks that comprise the leadership at CBP. So we
have had a considerable amount of interaction with them.
Ms. Torres Small. Thank you, Mr. Reardon.
I understand that the Federal Law Enforcement Training
Center, FLETC, put a significant amount of time and effort into
developing its plans to resume operations. These plans require
students to arrive on campus 14 days before resuming in-person
trainings. FLETC also plans to test students at least twice for
COVID-19 during that 14-day period and test staff who engage
regularly with students weekly. However, not all staff will be
tested, and staff do not stay on campus housing, which means
they must travel in and out between the campus daily.
Mr. Reardon, do you believe FLETC has done everything it
can to mitigate infection risks to its employees' and students'
health before resuming operations?
Mr. Reardon. Well, you know, I think that they have done--
they have certainly put together a plan, and I think you
articulated certainly my understanding of the plan that they
put in place pretty well. You know, one of the concerns that I
do have, however, and you mentioned it, is you have got staff
who are going home. They are going out into the community, and
then they are coming back in and, you know, it seems to me that
it would probably be pretty--it would be appropriate to ensure
that they are being tested as well. I think, you know,
furthermore, it is important that there is a robust testing and
contact tracing program put in place at FLETC as well.
Ms. Torres Small. Thank you, Mr. Reardon.
Mr. Judd, in the remaining 40 seconds, do your agents have
enough PPE for themselves and the people they interact with to
keep themselves safe right now?
Mr. Judd. That is one of the things I am very grateful that
DHS did well ahead of time. They gave us plenty of PPE. We have
been able to protect ourselves as well as those individuals
that we come in contact with. If this is what has been done
Department-wide, I think that we are in a very good place.
Ms. Torres Small. Thank you, Mr. Judd.
I yield the remainder of my time, and now recognize the
Ranking Member of the subcommittee. Oh, I apologize. Yes. I now
recognize the Ranking Member of the subcommittee, the gentleman
from Texas, Mr. Crenshaw, for questions.
Mr. Crenshaw. Thank you, Madam Chairwoman. I do need to say
I hope in the future, if we are going to do oversight of DHS
and see how they are going to get back to work, we need to have
someone from DHS present, and I need to be on record saying
that. It should not be up to the Minority with our one witness
to make sure that there is somebody from the Department to come
to the hearing.
The other thing I need to say, and it is in response to the
Chairman's very partisan comments about the President trying to
ignore doctors' advice every single day as he doesn't wear a
mask. He knows very well that the President gets tested
sometimes multiple times a day and, therefore, there is no need
to wear a mask.
If we are going to talk about science-based getting back to
work, then we actually have to use some science, and we
actually have to ask some doctors. Doctors have told us over
and over again the reason you wear a mask is to prevent you
from sneezing or coughing on somebody else and possibly getting
them infected. It doesn't prevent you from getting infected. We
have to remember these very basic things.
We have learned a lot in the last few months. We made a lot
of mistakes, and we continue to apparently advocate for those
mistakes. The Chairman said we are getting back to work too
early, that we opened up too early. That is nonsense. If
anything, the data shows that we opened up way too late, way
too late. We know this in hindsight. I am not blaming anybody
for this.
But this notion that we should continue instilling fear in
people is very, very harmful to our society. There is risk in
this world, and we are never going to get around to fully
mitigating every possible cause of harm.
Since the start of stay-at-home orders and social
distancing, America's grocers and nurses and other essential
workers have continued to go to work. They felt a sense of duty
to actually do that, so I am going to be asking some questions
here about why. Some of these demands are very reasonable. Some
of them go well beyond what our private industry and what our
grocers have been doing every single day.
I also have to point to some more data which shows that the
vast majority of cases that we see come from residential
origins. They are not coming from health care workers. They are
not coming from first responders. This is coming--this is all
from New York. We have got the most cases. We have the most
data. They are not coming from transit workers either. This
tells us something. This informs us about how this disease is
actually spread, and it is probably not spreading in office
spaces where people are separated by cubicles and offices.
OK. Dr. Kelley, I want to start with you. There was--again,
many of the things you guys are asking for are perfectly
reasonable and understandable, but some of it is, I think,
unattainable. For instance, the 14 days of exponential decline.
Do you mind expanding on exactly what you mean by that, because
that goes a bit beyond what even CDC guidelines are, which I
also think are misguided? But please explain how that is
possible and how you might compare that demand to a geographic
area that has decided to open. Will you not send your Federal
workers back in an area because you might see a daily spike or
something even though everybody else in that area might be back
at work?
Mr. Kelley. I think, first of all, you know, we should be
very concerned about the entire population of the United States
of America, you know. Certainly, I am personally concerned
about the welfare and well-being of the members that I
represent. But after universal testing and the identification
of the extended risk by location, the Federal Government should
apply prudent apolitical science-based standard on the safe
return of Federal employees to their work site.
Now, you know, entomologists and other public health
experts recommend the standard of 14 days of exponential
decline in new cases within a region before erasing quarantines
and shelter-at-home restrictions. For Federal employees, the
region should be defined by community areas----
Mr. Crenshaw. I understand the guidance. I understand the
guidance. I am asking you to think through it. Because here is
the thing: In Houston, you could have, you know, a plateau of
100 cases a day, which is basically what we have, between 100
and 200 cases a day. We have never really changed. So you are
saying we can never go back to work here?
Mr. Kelley. No, I am not saying that.
Mr. Crenshaw. That is 4 million people, right? Because I
mean, that is what I mean, like, we have to think through some
of these guidelines.
Mr. Kelley. I certainly think that we have to think through
the guidelines. However, I think that because there have been
so much, you know, inconsistencies across the board, you know,
and we have to be consistent as the Federal Government. That is
all that I am saying. We should be consistent. We should make
sure that our entire Federal Government system is ready to go
back.
Mr. Crenshaw. But, sir, you are implying allowing for some
flexibility, right, just based on that simple thought
experiment that I just gave you? Because you could have New
York City declining by thousands every single day, but they
still might have another 5,000 cases a day. Do you see what I
am saying? Like, sir, I just want to--I think--and I think
maybe we are agreeing that there must be some flexibility
within those guidelines.
It looks like I am already out of time. That went fast. I
yield back.
Ms. Torres Small. Thank you, Ranking Member.
The Chair recognizes for 5 minutes the gentleman from
Alabama, Mr. Thompson.
Mr. Thompson. Well, I will be from Mississippi, but----
Ms. Torres Small. I am so sorry.
Mr. Thompson. Oh, that is all right.
Ms. Torres Small. I am so sorry.
Mr. Thompson. I have been called a lot worse.
Let me be clear. Whatever we do in bringing the work force
back, it should be with the advice and guidance of the medical
experts. We can't assume anything else other than what the
medical experts say.
Our President toured a facility in Maine last week without
a mask on. All the work that plant did last week they had to
throw out because he didn't wear a mask. So I am clear about
wearing masks. I am clear about setting an example. The notion
that we now have a colleague who came back to Washington last
week and sat on the floor of the House of Representatives
without a mask, and his whole family now has COVID-19, puts the
entire U.S. House of Representatives at risk.
So with that as a backdrop, I want us to all recognize that
this is a serious, serious matter. Wearing a mask is not a sign
of weakness. It means that you understand the challenges that
you are confronted with. So I look forward to us making sure
that as we bring the work force back, we do it in a manner that
we consult with the medical experts and get the proper
guidance, so we don't put those individuals at risk or the
people they come into contact with. I compliment the Chairwoman
for having this kind of discussion.
So, Mr. Reardon, do you see a need for more engagement at
the DHS headquarters level around how do we bring people back
and clear guidance or are you satisfied with the engagements
that is going on now?
Mr. Reardon. Well, Mr. Chairman, I will say that I am
somebody who always believes that more engagement rather than
less is good. I think there are opportunities in terms of
guidance that goes out. You know, for example, I think the
guidance that exists around how long you need to be face-to-
face with somebody, you know, before you--that later on has
been determined to have COVID-19, is--I think it is important
to figure out, you know, how we deal with that.
Right now, the guidance says, well, it is anything from you
talked to the person for 10 minutes to 30 minutes. I know after
a lot of conversations that I have had with a lot of my chapter
leaders around the country, they don't have a real good
understanding of, so what is the guidance really saying? What
does it mean?
So I think that anything that can be done to increase the
amount of communication. You know, I think it is one thing to
put out guidance, and I think CBP and ultimately DHS have done
a decent job of putting out some guidance, but I think there
needs to be some follow up so that people understand exactly
what does that guidance mean, and how do I use that in certain
situations? You can't deal with every situation, I get that.
Mr. Thompson. So are you saying that sometimes the guidance
is not clear to the people you are sharing it with?
Mr. Reardon. My sense is that at times, the guidance isn't
completely clear, and folks don't know exactly how to implement
the guidance. So I think more conversation around that, more
communication is helpful.
Mr. Thompson. So, Dr. Kelley, what has been your experience
with the guidance coming either from DHS or TSA or any of your
other members?
Mr. Kelley. We have participated in some weekly meetings,
but we do believe that more engagement and consideration of
workers' influence is very much needed in this particular
situation. The guidance has been, you know, kind-of--you know,
many of them are unsure what the guidance says, just like
Brother Reardon said. But if there would be more engagement, I
think we can get a better sense of exactly what the guidance is
saying.
Mr. Thompson. Thank you.
I yield back, Madam Chair.
Ms. Torres Small. Thank you, Mr. Chair. We appreciate your
understanding.
The Chair recognizes for 5 minutes the gentlewoman from
Nevada, Ms. Titus.
Ms. Titus. Well, thank you very much, Madam Chairwoman.
Thank you for holding this committee.
I would like to just ask Dr. Kelley some questions. Lou
Correa, who is Chairman of the Subcommittee on Transportation
and Maritime Security of this committee, and I wrote to the TSA
administrator about health care for part-time TSA workers, and
we had the Chairman's support in this, and I thank him very
much for that, Mr. Thompson. We then introduced a bill that is
H.R. 6647, Health Care Opportunities for Transportation
Security Administrative Employees. We believe that if you are
on the front lines, even if you are part time, during these
dangerous days where you are really getting exposed, that you
should be entitled to health care.
We see it here in Las Vegas that air travel is picking up.
More people are going through our airports. Our TSOs are more
in danger of being exposed. Could you address what some of the
challenges are that they are facing, and give us your opinion
about part-time employees receiving that kind of coverage like
everybody else?
Mr. Kelley. Thank you. Yes. I appreciate you and the
Chairman on your efforts to make sure that these employees have
the necessary protection that they need. You know, in these, so
many times, the employees are put in a lot of stressful
situations. They are constantly concerned about their welfare,
their well-being, whether or not they are going to carry some
illness home to their family, you know, because in their mind,
and in my mind as well, it doesn't matter if you work 20 hours
a week, you know you are still exposed for those 20 hours, or
if you work 40 hours a week. So the exposure is still there. So
we are hoping that we can get funding down the road with this
particular issue.
Ms. Titus. Well, thank you. I hope so too because you are
right, they are exposed when they are there.
I would also ask you, we are hearing more about, as we
reopen, how we are going to do it in the airports? Are we going
to take people's temperature? What happens to somebody who has
found to have a fever? Where do they go? Who is responsible?
The airlines, of course, don't want that responsibility. The
airports don't especially want it, and they are starting to
want to push it off to TSOs, but their job is more security
than it is health care. Could you talk about that as well?
Mr. Kelley. Well, you know, once again, I do applaud the
work that the TSOs do every single day, they are very patriotic
employees, and we have seen it over and over again, but they
are not medical professionals. I think that this is a task that
needs to be assigned to a medical care professional and not a
TSO officer. They do an outstanding job at, you know, making
sure that the public fly safely, but I don't know how well they
will fare if they have to become a medical professional.
Ms. Titus. Thank you. Those are my questions.
I will yield back, Madam Chairwoman.
Ms. Torres Small. Thank you, Congresswoman Titus.
The Chair recognizes for 5 minutes the gentlewoman from New
Jersey, Mrs. Watson Coleman.
Mrs. Watson Coleman. Thank you very much, Chairwoman. I
appreciate this hearing. Thank you to each of the witnesses for
the information that you shared.
I first want to respond to the Ranking Member's concerns
about not having administration representatives at the
committee meetings. We have consistently invited members of
this administration, the DHS administration, and other offices
to come before us, and they have declined to do so. So it isn't
that we don't want to hear from them, because we most assuredly
want to hear from them. Ultimately, they are the ones that are
going to be held responsible, and we want to make sure that we
are doing all the work that we need to do to ensure that when
we do reopen, we reopen safely, that the people we serve are
safe, that the people who are doing the work are safe, and that
we know what to do should there become a re-shutdown. So I just
want to put that on the record so that the record represents
more than just sort-of one perspective on what is happening in
the world.
I have a question. There was a question that was raised to
Mr. Judd, Mr. Kelley, and Mr. Reardon regarding their
interaction with the Department of Homeland Security, and Mr.
Judd responded good interaction, strong. Mr. Reardon said high
level with CBP and DHS, routine interaction with DHS
leadership. Mr. Kelley said not very successful in working with
DHS. So I want to drill down a little bit. I want to know a
couple of things, and if they can just be ripped off really
quickly, that would be fine.
So, Mr. Judd, Mr. Kelley, and Mr. Reardon, tell me the
components, the offices that you deal with, and then tell me
the individuals that you have been seeking or having
interaction with. Mr. Kelley in particular, I want to know from
you, where have you not gotten the kind of feedback and from
whom that you thought you needed in order to have this
discussion about how we move forward safely?
Those are my questions, Madam Chair. I want to hear from
everyone. We can start with Mr. Judd, and then we can go to Mr.
Reardon, and then we can end with Mr. Kelley.
Mr. Judd. Thank you. I will be glad to answer. I have
communications with the top level in Border Patrol. That is
directly with Chief Scott. I have had communication with the
top level in CBP, which is Acting Commissioner Morgan. If need
be, I can go to DHS and speak with the DHS chief of staff, John
Gountanis but I haven't needed to go there. I haven't needed to
exercise that privilege. I have been able to work through the
issues with Chief Scott and Acting Commissioner Morgan.
Mrs. Watson Coleman. Thank you.
Mr. Reardon. This is Tony Reardon. I will jump in there. At
DHS, as I think I mentioned earlier, I have a weekly call with
Angie Bailey, the CHCO at DHS. With regard to--you are on mute.
Mrs. Watson Coleman. Here we go.
Mr. Reardon. Still muted. I can't hear you.
Chief Human Capital Officer. Sorry.
Mrs. Watson Coleman. Thank you. Your employees work under--
--
Mr. Reardon. Yes. The Office of Field Operations within
CBP, and we also represent some employees at the Federal Law
Enforcement Training Center.
So Angie Bailey I deal with, as I said, weekly. I also have
had quite a few interactions with Acting Commissioner Morgan,
as well as Deputy Commissioner Robert Perez. We have, I don't
know if I would say daily, but we have very frequent
interactions with Executive Assistant Commissioner Todd Owen at
CBP in the Office of Field Operations. Then, of course, you
know, we have chapter leadership locally around the country,
and they deal with local management and the DFOs that are
around the country, so we have, I mean, quite a bit.
Mrs. Watson Coleman. Thank you.
Mr. Kelley.
Mr. Kelley. OK. Can you hear me now? OK.
Well, first of all, you know, as I have mentioned, you
know, we have participated in some weekly calls, but we would
like to have more communication between the agency leadership
and the workers. We should have more communication between
agency leadership and--like the TSO counsels, TSA counsels, or
the FEMA counsel, or--you know, we are just not getting that
level of communication, and I think we need that if we are
going to be successful.
Ms. Torres Small. Thank you, Mrs. Watson Coleman. I
apologize, but your time has expired and I appreciate the
questions.
Now, the Chair recognizes for 5 minutes the gentlewoman
from California, Ms. Barragan.
Ms. Barragan. I thank you, Chairwoman Torres Small, for
convening this hearing.
As the States and the local governments begin to reopen and
people start to physically return to work, we must keep in mind
that the pandemic is not over. The coronavirus is still
impacting all aspects of life daily. Cases are still on the
rise, and health experts predict a second wave of infections.
You don't have to look any further than to look and hear Dr.
Fauci and his concerns that he has expressed and the medical
data that he is relying upon.
I want to, you know, say that, in California alone, we have
seen infections top 151,000, and nearly 5,100 people just in
Los Angeles county have died. That accounts--that accounts for
lots of lives that are being impacted. So I think it is
critically important that we are having this conversation on
workers and asking what can be done to make sure that when we
try to go back to some sense of normalcy, that we do so safely.
Mr. Judd, I would like to start a question to you. In your
statement, you advocated for Border Patrol to get thermal
scanners in an effort to screen the health of migrants at the
border. However, makers of these scanners have cautioned that
they are not intended for medical use and can only scan for
elevated skin temperatures, which can be caused by a variety of
other factors, for example, physical exertion while outside in
warm climate like the Southern Border.
Mr. Judd, what information has led you to believe that this
would be an effective screening measure for the Border Patrol?
I think you are on mute, sir.
Mr. Judd. Can you hear me now?
Ms. Barragan. I can hear you now. Thank you.
Mr. Judd. OK. I went to my personal doctor. I have been to
the doctor several times during the pandemic, and they have
told me that these scanners work very well. We have also done
our own personal research. Again, I am not saying that it is
the be-all, end-all, but it is one of those indicators that we
need to look at. We need to be available to identify when
somebody is showing certain symptoms of the pandemic, of COVID-
19, to ensure that it is not spread throughout the United
States. So we need to look at all of the different things that
we can possibly use, and that is just one tool that would help
us look for indicators.
Ms. Barragan. OK. Well, thank you. I guess my caution is,
if the makers of the devices themselves are warning they are
not for medical use, would that be the best use of our
resources? But thank you for your insight on that.
Mr. Judd, one more question for you. We have certainly seen
the reports about the use of CBP agents and ICE agents at
protests nationally, certainly in Washington, DC. What are CBP
agents doing at these protests? Can you shed some light? It
certainly instills fear amongst immigrants who want to exercise
their First Amendment rights, and the militarized exercise, you
know, scares citizens too.
I believe that DHS has confirmed that CPB will be active in
Arizona and California. Can you give me some insight on what
CBP officers are doing there?
Mr. Judd. Yes. First and foremost, we don't make that
decision on our own. We are not the ones who decide whether or
not we are going to go in and help. What we do is, when we
receive requests for assistance from other law enforcement
agencies, then we go in and we assist them, under their
authority, not under--not under any authority under any
immigration authority. So we are not there to arrest anybody
for immigration violations. We are not the military, so we are
not militarizing anything. We are law enforcement, so we are
assisting our local law enforcement partners when they ask for
assistance.
Ms. Barragan. OK. Thank you, sir.
Mr. Kelley--Dr. Kelley--I apologize for that--U.S.
Citizenship and Immigration Services, which is funded by fees
paid by applicants, recently announced it expects to run out of
funding by the end of this summer. The agency noted a drop-off
in applications during the pandemic, which likely exacerbated
issues caused by the administration's policy aimed at curbing
legal immigration over the past several years.
Dr. Kelley, how do you think this budget shortfall will
affect the components' ability to adequately provide staff with
PPE and modified facilities to adhere to social distancing
guidelines?
Mr. Kelley. I think that it vastly affects the ability to
provide that care for those employees and immigrants. I think
that we have to make sure that they are funded adequately so
that we can ensure that the protection is there.
Ms. Barragan. All right. Thank you, sir.
I yield back.
Ms. Torres Small. Thank you.
I thank the witnesses for their valuable testimony and the
Members for their questions. I also thank everyone for their
patience as we work through the bugs that we have seen in the
midst of all of this and, again, reiterate my gratitude for
everyone's willingness to do this on-line forum hearing.
I also want to thank the committee staff, both the Majority
and the Minority, for working on this issue. We will continue
to work to find ways to make sure that relevant witnesses are
able to attend these formats, and I look forward to working on
that with the Minority as well.
The Members of the subcommittee may have additional
questions for the witnesses, and we ask that you respond
expeditiously in writing to those questions. Without objection,
the committee record shall be kept open for 10 days.
Hearing no further business, the subcommittee stands
adjourned.
[Whereupon, at 1:15 p.m., the subcommittee was adjourned.]
A P P E N D I X
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Questions From Honorable Bonnie Watson Coleman for Anthony M. Reardon
Question 1. During the hearing, you were asked about the level of
engagement your representatives have had with DHS and individual
components on their plans for re-opening.
In instances where you described the level of engagement as
positive, please provide more details on the type of information your
representatives received. How frequently and in what format was this
information provided?
Answer. NTEU has had frequent conversations (at least once a week)
with CBP Office of Field Operations leadership and two meetings with
the CBP Commissioner since mid-March 2020 where we were able to discuss
employee health and safety issues.
For non-uniformed personnel, our engagement has and continues to be
positive. OFO continues to maximize telework for employees whose work
is portable.
For uninformed personnel, initially, the CBP Field Offices and Port
Directors worked collaboratively with employee representatives toward
the objective of safeguarding CBP employees at the ports which sent an
encouraging and strong message to CBP employees that CBP cares about
their well-being and that of their families. This collaboration boosted
employee morale.
As a result of these discussions and collaboration, in late March
OFO worked with NTEU to use weather and safety leave (WSL) to
temporarily revise work schedules and reduce staffing at ports of entry
when and where appropriate to protect the health of the work force
while still meeting operational demands. This created opportunities for
social distancing at ports of entry in accordance with Centers for
Disease Control recommendations while maintaining operational capacity
and ensuring there would be a cadre of healthy CBP officers available,
as necessary. The revised schedules were carefully designed to ensure
that operational demands were still being met. In addition, CBP
personnel placed on WSL were on standby and were required to remain
ready to report to work at any time.
On April 6, 2020, CBP implemented reduced hours of operations at 45
ports of entry along the Northern and Southern Borders due to
diminished cross-border traffic. However, on that same day CBP
announced that it was immediately canceling WSL for CBP officers at
Northern and Southern land border ports of entry and requiring full
staffing.
The stated rationale for the decision was that CBPOs are needed to
be ready to assist Border Patrol should they need assistance stopping
an anticipated influx of COVID-19 infected migrants crossing the
borders between ports. Aside from the fact that there is no evidence
that such a threat exists, this is a short-sighted decision, to say the
least, from a health and safety perspective. As we all know, taking
advantage of reduced traffic at the border by reducing staffing reduces
the overall exposure of the workforce to the coronavirus. There is a
scientific and medical consensus that the spread of the virus is slowed
by safe social distancing and limiting interactions between
potentially-infected individuals and others. This is particularly true
now that it is widely accepted that asymptomatic individuals may
transmit the virus.
Requiring CBP officers to show up to work when it is not
operationally necessary runs directly counter to this consensus. It
puts at grave risk the long-term health of the CBP workforce as this
country fights the pandemic, which in turn puts the security of this
country at risk. This decision unnecessarily puts the health and safety
of CBP officers at risk, potentially undermining their mission and
exacerbating community spread of COVID-19 at our borders.
After consultation with NTEU, CBP agreed to continue 1 day of WSL
per week for CBP agricultural specialists on the Northern and Southern
Borders, but NTEU was not able to convince CBP to reinstate WSL to all
CBP officers.
NTEU never expected the current rate of WSL usage would continue
indefinitely so it was not surprising that we were notified by OFO in
late May that it would begin to reduce the amount of WSL used by CBPOs
and agriculture specialists in conjunction with reopening the economy.
Field Offices were expected to start discussions with local NTEU
chapters about the drawdown process and those with high-risk medical
conditions would remain on WSL and teleworkers would continue working
from home.
Despite assurances from the agency that it would be a gradual
process, some ports abruptly canceled weather and safety leave as of
Monday, June 8, without consulting local NTEU chapters. NTEU has raised
this issue with CBP, which agreed that WSL hours must be gradually
reduced in accordance with discussions between local NTEU chapters and
local port management and give employees enough notice to adjust their
personal and family obligations and schedules.
We strongly opposed the agency's decision to not provide the WSL to
all ports during the COVID-19 pandemic. It was a smart way to reduce
employee contacts with the public and limit their time in crowded
facilities, and it should not be revoked unless the workload at the
port demands it. Local port arrangements on WSL was a smart way to help
protect employees and their families from the coronavirus risk. That
risk has not gone away (and in many border States has increased) as the
economy reopens and that is why NTEU will continue to insist that all
health and safety protocols, including reinstating WSL where
appropriate, are followed at the ports.
NTEU has also had weekly or bi-weekly calls with the DHS chief
human capital officer to raise issues and hear what they are planning
agency-wide. We have consistently used these calls as an opportunity to
ask when DHS will be implementing testing for all employees whose jobs
require them to be at the work site and an effective contact tracing
protocol based on the testing. Unfortunately, while DHS has been
talking about piloting an app for contact tracing, nothing has been
rolled out yet. And currently, the only place DHS is conducting wide-
spread testing is at FLETC and they seem to be nowhere near able to
conduct wide-spread testing across DHS. We are concerned that this lack
of testing and contact tracing, coupled with DHS's policy to require
potentially exposed personnel to continue to report to work and self-
monitor for symptoms rather quarantine unless they have an unprotected
exposure within 6 ft for at least 15 minutes, could lead to significant
spread of the virus. DHS is not acting fast enough in this area.
Question 2. In instances where you would not describe the level of
engagement as positive, please provide more details on how these DHS
offices or components were non-responsive to your representatives. What
information would have been helpful to your organizations?
Answer. On June 19, NTEU was informed that OFO would be required to
provide 810 CBP officers to work at Border Patrol checkpoints in the
Rio Grande Valley (RGV) and Laredo Sectors, for 120 days. Deployed
officers would also be monitoring border surveillance cameras for
illegal crossings. Deployments were to commence as early as June 29,
with solicitations beginning June 22. NTEU had been in regular contact
with CBP OFO and we were given no warning that this was being
discussed. It appears that the decision was made quickly, at the
Department level, with OFO only being informed on June 19, as well.
The justification for the deployment, as explained to NTEU, is the
increasing numbers of apprehensions and ``got aways'' in these areas.
DHS/CBP wants to decrease the number of ``got aways'' by having more
Border Patrol agents on patrol, which creates the need for more
checkpoint and surveillance camera staffing. Apprehended individuals
are immediately deported under Title 42 authority.
CBP OFO plans to meet the directive by detailing 810 SCPBOs and
CBPOs in 2 separate 60-day temporary duty assignments--505 to the RGV
and 305 to Laredo. Additional Air and Marine, ICE, and DOD personnel
will also be deployed to the 2 sectors. Detailed CBP officers will
assist Border Patrol by manning 3 Border Patrol checkpoints, 2 in the
RGV and 1 in Laredo. Because of COVID-19 infection concerns at these
hotspots, detailed officers will be required to wear surgical masks at
the primary checkpoints and N95s in secondary.
Volunteers were solicited from the major airports, the numbers,
which include supervisors and front-line officers, currently breakout
as follows: ATL (36); Dulles (35); ORD (32); DFW (20); Houston (46);
LAX (100); FLL (30); MIA (148); Orlando (12); JFK (170); NY/Newark
(90); SFO (60). Officers from Brownsville and Laredo currently
assisting the Border Patrol make up the difference between these
numbers and the 810 officers that OFO is required to provide.
NTEU and OFO have been discussing deployment details, including
excusals for involuntary deployments should there be insufficient
volunteers. CBP officers who are high-risk because of underlying
medical issues will not be detailed. Officers detailed for 60 days will
be allowed to volunteer for a second 60-day assignment. There will be
no opportunity to return home during the 60-day assignments. Detailed
officers will be flown to San Antonio or smaller airports (e.g.,
McAllen) near the border. They will be housed in hotels and assigned 4
officers per rental car.
There are several issues surrounding this deployment that are worth
noting:
1. NTEU questions the necessity of any deployment and the quick
turnaround. NTEU has seen no justification or data that
indicates a need for this. We have anecdotal reports of Border
Patrol agents at the Southwest Border with not enough work to
do--which begs the question about whether this deployment is
even justified. It is true there has been an increase in Border
Patrol arrests in the last month or so, as well as reported
``got-aways'' but we are still nowhere near the activity of 1
year ago. NTEU has asked CBP for more information about why
they need to do this, and we urge the committee to do the same.
2. It is NTEU's understanding the funding for these Temporary Duty
Assignments (TDYs) will come from other CBP programs.
Reportedly, DHS ``found'' available funds and submitted a
reprogramming request to House and Senate appropriators on June
30. Appropriators have 15 days to review this request.
As with any TDY, there is concern about leaving home ports
understaffed. Travel volume remains down but as it starts to pick up,
airport and airline officials are not going to want long lines of
international travelers. This deployment not only pulls people away
from their homes, but it moves officers from around the country to this
COVID-19 hotspot. Between traveling, staying in a hotel, sharing
vehicles, etc., the risk to our members is potentially catastrophic.
As of July 5, CBP has had 1,058 Federal employees test positive for
COVID-19. Five CBP officers at airports of entry have died as a result
of the virus and many more are quarantined due to exposure. This
deployment increases the odds of the virus spreading among CBP's
workforce at the ports of entry as well as to the public.
This deployment has been postponed for now, presumedly until this
reprogramming funding is approved. It is important that appropriators
know that these TDYs are a waste of money and unnecessarily expose CBP
officers to greater risk of contracting and spreading the coronavirus.
NTEU urges the committee to contact your colleagues on the House
Appropriations Committee and ask them to deny the fiscal year 2020
reprogramming request to fund these TDYs.
In sum, NTEU's engagement with CBP's OFO has been positive,
overall. Unfortunately, OFO has been directed by CBP and DHS to take
actions, with little to no notice, which has negatively impacted our
ability to collaborate on reopening plans that accomplish CBP's mission
while also addressing the health and safety interests of the workforce.
Questions From Honorable Bonnie Watson Coleman for Everett B. Kelley
Question 1. During the hearing, you were asked about the level of
engagement your representatives have had with DHS and individual
components on their plans for re-opening.
In instances where you described the level of engagement as
positive, please provide more details on the type of information your
representatives received. How frequently and in what format was this
information provided?
Question 2. In instances where you would not describe the level of
engagement as positive, please provide more details on how these DHS
offices or components were non-responsive to your representatives. What
information would have been helpful to your organizations?
Answer. Most of the engagement I would describe as ``positive'' has
been limited to communications between AFGE staff in our National
office and officials at DHS tasked with engagement with the union. The
DHS chief human capital officer has met regularly with National union
representatives and provided very limited information about the
components' plans regarding COVID-related policies. While they have
shared reopening protocols, they have been far less forthcoming with
information regarding the rationale and underlying data connected with
the impending CIS furloughs/layoffs.
With respect to engagement that I would not describe as positive,
it would be the engagement with the workforce, including elected union
representatives by the agencies within DHS. Unless it serves their
motives, agencies have been quite rigid with respect to workforce
communications and engagement with union representatives. Because of
the President's Executive Orders issued in May 2018, union
representatives have little or no official time to provide
representation to the bargaining units. In 2017, he issued an Executive
Order ending labor-management relations. As a result, even as USCIS is
preparing to furlough over 70 percent of its work force, it has forced
union representatives to be on leave status when discussing the terms
of the furlough and its impact on represented employees. At the Coast
Guard, the union has suggested a different staffing rotation for
return-to-work than the agency has proposed, but the union's request
has been ignored. Coast Guard management proposes rotating every other
day between being in the office and on telework, dividing the workforce
into two separate groups to allow for spacing. The union proposed every
other week. This provides for more continuity of work and allows for a
thorough cleaning between rotations of one group of staff and the
other. At TSA, even as the virus is raging, the agency has decided that
those personnel with compromised health conditions must return to work.
Early attempts to engage with all DHS components with respect to
provision of personal protective equipment and other safety measures
were widely ignored and most communications from the union had to be
conducted on leave status. These are discussions about measures to
protect the health and the lives of the workforce. They should not have
to be conducted on leave status. Agency representatives are able to
communicate with the workforce on agency time; union representatives
cannot suggest ways to keep people from dying without taking annual
leave to do so. In every coronavirus relief package that Congress has
taken up thus far, AFGE has proposed that labor-management relations
resume for the purpose of addressing workforce needs during the
pandemic. For agencies within DHS, this involves thousands of workers
on the front lines. Insisting on this communication is essential to the
lives and health of our workforce.
Thank you for the opportunity to provide a more thorough response
to the committee's questions and thereby assist in your important
conduct of oversight. Should you have additional questions, please
contact Julie Tippens, [email protected].
Questions From Honorable Bonnie Watson Coleman for Brandon Judd
Question 1. During the hearing, you were asked about the level of
engagement your representatives have had with DHS and individual
components on their plans for re-opening.
In instances where you described the level of engagement as
positive, please provide more details on the type of information your
representatives received. How frequently and in what format was this
information provided?
Answer. I do not have regularly-scheduled meetings with agency
leadership to discuss operational issues confronting the Border Patrol.
However, I have had multiple conversations with leadership at Border
Patrol, CBP, and DHS throughout the pandemic to address concerns I have
had. This includes Acting Secretary Wolf, Acting Commissioner Morgan,
and Chief Scott and overall, I would describe these interactions as
positive. At the sector and station level, local presidents and shop
stewards have an on-going dialog with their respective leadership to
address their specific concerns.
Question 2. In instances where you would not describe the level of
engagement as positive, please provide more details on how these DHS
offices or components were non-responsive to your representatives. What
information would have been helpful to your organizations?
Answer. Let me give you 2 concrete examples. The first is a larger
DHS issue and involves the process under which agents would be eligible
for hazardous duty pay given their exposure to COVID-19. Right now, it
is almost impossible for agents to establish exposure. This is because
there is no testing capability for either the agents or the illegal
immigrants we detain. Moreover, most of the detainees are expelled
under Title 42 back to Mexico within 2 hours of apprehension. This is a
classic Catch-22 by design. The agents are being exposed but do not
have the documentation to establish the exposure. Although this issue
is currently being litigated, I have asked DHS leadership proactively
address this issue to allow agents to receive the hazardous duty pay
they are entitled to under the law.
On a more local level, there have been issues with individual
agents not being allowed to self-quarantine. Currently there are almost
1,000 agents who have been exposed to COVID-19 that are under self-
quarantine. However, we have had multiple instances of agents who have
been exposed to COVID-19 who were denied the ability to self-quarantine
by their supervisors. The union has raised this issue with their
respective leadership with inconsistent results.
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