[Senate Hearing 107-769]
[From the U.S. Government Publishing Office]
S. Hrg. 107-769
DEPARTMENTS OF COMMERCE, JUSTICE, AND STATE, THE JUDICIARY, AND RELATED
AGENCIES APPROPRIATIONS FOR FISCAL YEAR 2003
=======================================================================
HEARINGS
before a
SUBCOMMITTEE OF THE
COMMITTEE ON APPROPRIATIONS UNITED STATES SENATE
ONE HUNDRED SEVENTH CONGRESS
SECOND SESSION
on
S. 2778
AN ACT MAKING APPROPRIATIONS FOR THE DEPARTMENTS OF COMMERCE, JUSTICE,
AND STATE, THE JUDICIARY, AND RELATED AGENCIES FOR THE FISCAL YEAR
ENDING SEPTEMBER 30, 2003, AND FOR OTHER PURPOSES
__________
Part 1 (Pages 1-811)
Department of Commerce
Department of Justice
Department of State
Federal Communications Commission
Federal Trade Commission
Nondepartmental witnesses
Securities and Exchange Commission
The judiciary
deg.
__________
Printed for the use of the Committee on Appropriations
Available via the World Wide Web: http://www.access.gpo.gov/congress/
senate
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COMMITTEE ON APPROPRIATIONS
ROBERT C. BYRD, West Virginia, Chairman
DANIEL K. INOUYE, Hawaii TED STEVENS, Alaska
ERNEST F. HOLLINGS, South Carolina THAD COCHRAN, Mississippi
PATRICK J. LEAHY, Vermont ARLEN SPECTER, Pennsylvania
TOM HARKIN, Iowa PETE V. DOMENICI, New Mexico
BARBARA A. MIKULSKI, Maryland CHRISTOPHER S. BOND, Missouri
HARRY REID, Nevada MITCH McCONNELL, Kentucky
HERB KOHL, Wisconsin CONRAD BURNS, Montana
PATTY MURRAY, Washington RICHARD C. SHELBY, Alabama
BYRON L. DORGAN, North Dakota JUDD GREGG, New Hampshire
DIANNE FEINSTEIN, California ROBERT F. BENNETT, Utah
RICHARD J. DURBIN, Illinois BEN NIGHTHORSE CAMPBELL, Colorado
TIM JOHNSON, South Dakota LARRY CRAIG, Idaho
MARY L. LANDRIEU, Louisiana KAY BAILEY HUTCHISON, Texas
JACK REED, Rhode Island MIKE DeWINE, Ohio
Terrence E. Sauvain, Staff Director
Charles Kieffer, Deputy Staff Director
Steven J. Cortese, Minority Staff Director
Lisa Sutherland, Minority Deputy Staff Director
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Subcommittee on Commerce, Justice, and State, the Judiciary, and
Related Agencies
ERNEST F. HOLLINGS, South Carolina
DANIEL K. INOUYE, Hawaii JUDD GREGG, New Hampshire
BARBARA A. MIKULSKI, Maryland TED STEVENS, Alaska
PATRICK J. LEAHY, Vermont PETE V. DOMENICI, New Mexico
HERB KOHL, Wisconsin MITCH McCONNELL, Kentucky
PATTY MURRAY, Washington KAY BAILEY HUTCHISON, Texas
JACK REED, Rhode Island BEN NIGHTHORSE CAMPBELL, Colorado
ROBERT C. BYRD, West Virginia
(ex officio)
Professional Staff
Lila Helms
Jill Shapiro Long
Luke Nachbar
Dereck Orr
Jim Morhard (Minority)
Kevin Linskey (Minority)
Katherine Hennessey (Minority)
Administrative Support
Nancy Olkewicz
C O N T E N T S
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Tuesday, February 26, 2002
Page
Department of Justice: Office of the Attorney General............ 1
Tuesday, March 5, 2002
The judiciary:
Supreme Court of the United States........................... 131
Federal judiciary............................................ 143
Thursday, March 7, 2002
Federal Communications Commission................................ 183
Securities and Exchange Commission............................... 225
Tuesday, March 12, 2002
Department of State: Office of the Secretary..................... 237
Wednesday, March 13, 2002
Department of Commerce: Office of the Secretary.................. 307
Tuesday, March 19, 2002
Department of Commerce: National Oceanic and Atmospheric
Administra-
tion........................................................... 365
Federal Trade Commission......................................... 405
Nondepartmental Witnesses
Department of Commerce........................................... 429
Department of Justice............................................ 455
Department of State.............................................. 467
Related agencies................................................. 472
DEPARTMENTS OF COMMERCE, JUSTICE, AND STATE, THE JUDICIARY, AND RELATED
AGENCIES APPROPRIATIONS FOR FISCAL YEAR 2003
----------
TUESDAY, FEBRUARY 26, 2002
U.S. Senate,
Subcommittee of the Committee on Appropriations,
Washington, DC.
The subcommittee met at 10:01 a.m., in room SD-138, Dirksen
Senate Office Building, Hon. Ernest F. Hollings (chairman)
presiding.
Present: Senators Hollings, Mikulski, Leahy, Kohl, Murray,
Reed, Gregg, and Domenici.
DEPARTMENT OF JUSTICE
Office of the Attorney General
STATEMENT OF JOHN ASHCROFT, ATTORNEY GENERAL
opening remarks of senator ernest f. hollings
Senator Hollings. General Ashcroft, they have a vote on and
maybe it would be better for your presentation if we run to get
that vote and come back quickly.
Attorney General Ashcroft. Sure.
Senator Hollings. Let me then call the committee to order.
There are two votes. We will at least let you present your
statement here. It will be included in its entirety. We welcome
you to the committee and you can highlight your statement as
you wish or deliver it in full. I think that would be the
better way, since we have two votes.
attorney general opening statement
Attorney General Ashcroft. Mr. Chairman and members of the
subcommittee, I am honored again to appear before this
subcommittee to present the President's budget request for the
Department of Justice.
First, an overriding priority of this Department of Justice
and of this budget is to protect America against acts of
terrorism and to bring terrorists to justice. Since my last
appearance before you, America and the world have been awakened
to a new threat from an old evil, terrorism.
I appear before you today acknowledging that September 11
alerted us to a danger that a number of you on this
subcommittee have labored long and hard to mitigate and to
prevent. To the degree that we find ourselves in a position to
respond effectively to the challenges posed by terrorism, it is
because of your foresight.
I appreciate the leadership of the members of this
subcommittee in providing to the Department of Justice the
necessary resources to meet the terrorist threat and to improve
the Nation's border security. Your direction to develop an
interagency counterterrorism plan, conduct preparedness
exercises, to train and equip the Nation's first responders,
maintain a counterterrorism fund for emergency circumstances,
all of these things have made this a safer Nation.
The fiscal year 2003 budget request that I present to you
today builds upon your support and seeks to enhance further the
Department's ability to prevent and combat terrorism, and even
as the men and women of the Department of Justice go about the
urgent task of protecting America from terrorism, we do so
within a framework of justice that upholds other goals, as
well. Indeed, our dedication to identifying, disrupting, and
dismantling terrorist networks will help ensure the fair and
vigorous enforcement of the law in other areas. We remain
committed to reducing the demand and supply of illegal guns,
enforcing the gun laws, and protecting civil rights. We
recognize, however, the need to prioritize our commitments and
to husband our resources. Today, more than ever, lives depend
on the careful understanding of our responsibilities and the
exemplary performance of our duties.
For fiscal year 2003, the President's budget requests $30.2
billion for the Department of Justice, $23.1 billion in
discretionary funding and $7.1 billion for the Department's
mandatory and fee-funded accounts. Federal law enforcement
programs increase by 13 percent over funding enacted in the
fiscal year 2002 Department of Justice Appropriations Act.
counterterrorism budget request
The Department's fiscal year 2003 budget seeks $2 billion
for program improvements and for ongoing activities funded in
the fiscal year 2002 counterterrorism supplemental. Resources
are also requested for improving immigration enforcement and
services, enhancing Federal detention and incarceration
capacity, reducing the availability of illegal drugs, and
supporting proven programs aimed at reducing drug use,
providing services for the Nation's crime victims, protecting
civil rights, ending trafficking in human beings, providing
streamlined resources to support State and local law
enforcement, and defending the interests of the United States
in legal matters.
To help secure our Nation's borders, we are proposing
program improvements totaling $856 million, including $59.1
million from fee-funding for the Immigration and Naturalization
Service. Of this amount, $734 million is dedicated to improving
border security. We are requesting $362 million to begin a
multi-year effort to provide a comprehensive land, sea, and air
entry-exit system for the United States and $372 million to
hire 570 new Border Patrol agents and additional immigration
inspectors to improve air, sea, and land ports-of-entry
inspections.
As a result of the attacks of September 11, the FBI, with
the cooperation of other Federal, State, local, and
international law enforcement, is conducting the largest
criminal investigation in history. In the 2002 counterterrorism
supplemental, this subcommittee led Congress in providing much-
needed assistance to the FBI in responding to and investigating
the terrorist attacks, and we are deeply grateful for your
leadership in this respect. Our 2003 budget builds on this
assistance with a request of $411.6 million, including funding
for 263 new FBI special agents; $223 million for increased
intelligence, surveillance, and response capabilities; $109
million for information technology projects; and $78 million
for enhanced personnel and information security.
The establishment of the Joint Terrorism Task Force program
has enhanced the FBI's ability to promote coordinated terrorism
investigations among FBI field offices and their respective
counterparts in Federal, State, and local law enforcement
agencies. Our budget seeks $15.7 million to support a total of
56 Joint Terrorism Task Forces throughout the country. That is
one in each FBI field office.
As accused terrorists are brought to justice in the Federal
court system, there is an increased need for enhanced security
measures. To support the heightened security required by the
United States Marshals Service at the Federal courthouses, our
budget seeks $34.7 million to close security gaps at courthouse
facilities, with the greatest physical security deficiencies
being addressed. Also, it seeks the resource to purchase new
security equipment for new courthouses and for those undergoing
significant renovation. It seeks those resources to provide
additional security personnel for terrorist-related court
proceedings and to provide security staffing to keep pace with
the opening of new courthouses and the creation of new
judgeships.
Another critical element in our battle against the
terrorist threat is working to develop and enhance
interoperable databases and telecommunications systems for the
Department's law enforcement activities. Our budget seeks $60
million to continue narrowband investment in radio
infrastructure for key areas such as New York and along the
northern and southwestern borders.
drugs budget request
As I mentioned earlier, our efforts to combat terrorism
enhance enforcement of the law across the board. The heightened
vigilance of law enforcement and the increased awareness and
sense of responsibility of citizens spills over into more
effective enforcement of the law in all areas and we are
working to reduce both the demand for and the availability of
illegal drugs. Drugs not only weaken the fabric of our society,
but also threaten our national security.
The Organized Crime Drug Enforcement Task Force program is
the centerpiece of the Department of Justice's drug strategy to
reduce the availability of drugs. That task force, OCDETF,
combines the talent of experienced Federal agents and
prosecutors with support from State and local law enforcement,
thereby uniquely positioning OCDETF to conduct multiple
coordinated investigations across the country to root out and
eliminate all pieces of a drug organization.
For fiscal year 2003, our budget seeks $14.8 million
through OCDETF to provide field support for DEA's Special
Operations Division coordinated investigations. The
Department's fiscal year 2003 budget also seeks $13 million for
drug abuse and crime prevention programs under the Office of
Justice Programs. Our budget includes $52 million for the drug
courts program, $77 million for the residential substance abuse
treatment program, and that is a 10-percent increase in funding
over fiscal year 2002.
voting and civil rights enforcement
Essential to this republic is the freedom and privilege of
every citizen to vote. The Federal Government has become an
active participant in establishing rules for the conduct of
elections on matters ranging from voter registration to
protection against discrimination. In fiscal year 2003, the
Department requests $400 million for a new 3-year program, and
in the 3 years that would total $1.2 billion, for States to
improve State and local jurisdictions' voting technologies and
administration, including voting machines, registration
systems, voter education, and poll worker training. This new
program will provide States with matching grants for election
reform, so the $1.2 billion should have the impact of a $2.4
billion investment.
The Department of Justice is charged with protecting the
civil rights of all Americans. Our fiscal year 2003 budget
seeks $3 million for the Office of the Inspector General to
address a statutory requirement of the USA PATRIOT Act for the
review of complaints alleging abuses of civil rights and
liberties and to provide audit oversight of the Department's
counterterrorism programs. Further, we request $2.8 million to
promote effective investigation, prosecution, and response to
hate crimes.
Senator Hollings. General, if you could hold on there, we
have only 2 minutes to vote.
Attorney General Ashcroft. I understand. Thank you.
Senator Hollings. We will be right back. The committee will
be in recess.
The committee will come to order. I apologize, Mr. Attorney
General, but you are used to this. Have you completed your
statement?
Attorney General Ashcroft. I would like to continue with my
statement, if I may.
Senator Hollings. Please do.
other justice department requests
Attorney General Ashcroft. Thank you, Mr. Chairman, members
of the committee. We at the Department of Justice are committed
to building and strengthening an immigration services system
that is effective, that ensures integrity, and promotes a
culture of respect. We are making good progress toward
achieving President Bush's goal of a 6-month average processing
time for all applications. To help ensure additional progress,
our budget request seeks $40 million to begin implementation of
the administration's comprehensive restructuring of the
Immigration and Naturalization Service.
The Department of Justice is charged with safe, secure, and
humane confinement of detained persons awaiting trial,
sentencing, or awaiting immigration proceedings. The need for
Federal detention bed space has more than doubled in the last 5
years, from 32,000 detainees in 1996 to 67,000 detainees in the
year 2001.
To enhance coordination, to manage the rising detainee
population, and exercise financial control of Federal detention
operations, which are currently the responsibility of the INS,
the Marshals Service, and the Bureau of Prisons, the Office of
Detention Trustee was created by Congress last year. That was a
wise decision. As you recommended in the fiscal year 2002
conference report, our budget proposes to consolidate the $1.4
billion under the detention trustee to provide bed space for
the anticipated detainee population in the custody of the
Marshals Service and the INS.
For the Bureau of Prisons, our fiscal year 2003 budget
seeks $348.3 million for additional prison activations and for
the completion of construction previously authorized by
Congress.
Finally, following the September 11 terrorist attacks,
Congress passed and the President signed into law legislation
establishing the September 11 Victims Compensation Fund of
2001. The value of approved claims through the fund is
estimated at $5.4 billion through 2004. Our fiscal year 2003
budget reflects $2.7 billion in estimated victim compensation
payments. In addition, the Department's budget includes a total
of $41 million for the administrative costs of the fund's
special master.
Mr. Chairman, as you well know, September 11, 2001, changed
our Nation, redefined the mission of the Department of Justice.
Defending our Nation and its citizens against terrorism is our
top priority. To fulfill this mission, we are devoting all
resources necessary to eliminate terrorist networks, prevent
terrorist attacks, bring to justice those who kill Americans in
the name of murderous ideologies.
Chairman Hollings, Senator Gregg, members of the
subcommittee, what I have outlined for you is the principal
focus of President Bush's fiscal year 2003 budget request for
the Department of Justice. Our request builds upon the firm
foundation laid by Congress in the days and weeks following
September 11, a foundation of resolve backed by resources and
American strength married to American purpose.
I want to thank you for your leadership and for the
leadership of this subcommittee both in providing the
Department critical additional funds in the wake of the
terrorist attacks and in supporting the work that lies ahead.
And if I may, I would like to thank the members of your
staff, those for whom we so rarely pause to offer public
expressions of our gratitude, Lila Helms, Jill Shapiro Long,
Dereck Orr of the majority staff, Jim Morhard, Kevin Linskey,
and Katherine Hennessey of the minority staff. They all work on
an ongoing basis with Justice officials and our staff at the
Justice Department to enhance the safety and security of the
Nation.
prepared statement
I thank you for your facilitation of this hearing and for
your service to the American people and I want to thank them in
the same way. I look forward to working with you on this
project proposal and other issues, and Mr. Chairman, I thank
you for allowing me to make this statement.
[The statement follows:]
Prepared Statement of John Ashcroft
Mr. Chairman and Members of the Subcommittee: I am both honored and
pleased to once again appear before the members of this Subcommittee to
present the President's budget request for the Department of Justice.
For fiscal year 2003, the President's budget requests $30.2 billion for
the Department of Justice, including $23.1 billion in discretionary
funding and $7.1 billion for the Department's mandatory and fee-funded
accounts. Included in the total amount requested is $548 million for
Civil Service Retirement System and Federal Employees Health Benefits
Program costs which are currently funded centrally through the U.S.
Office of Personnel Management. The first and overriding priority of
this budget supports the top priority of the department: to protect
America against acts of terrorism and to bring terrorists to justice.
The challenges we face are complex and unprecedented.
The Department's fiscal year 2003 budget seeks $2 billion for
program improvements and ongoing activities funded in the fiscal year
2002 Counterterrorism Supplemental to support our number one priority.
Resources are also requested to address several of the Department's
other priorities, including: improving management of immigration
services and enforcement; enhancing federal detention and incarceration
capacity; reducing the availability of illegal drugs and supporting
proven programs aimed at reducing drug use; providing services for the
Nation's crime victims; addressing civil rights; providing streamlined
resources to support state and local law enforcement; and legal
representation and defense of U.S. interests.
preventing and combating terrorism, including securing the nation's
border
In response to the heinous attacks on September 11, 2001, the full
resources of the Department of Justice, including the Federal Bureau of
Investigation, the Immigration and Naturalization Service, the U.S.
Attorneys offices, the U.S. Marshals Service, the Bureau of Prisons,
the Drug Enforcement Administration and the Office of Justice Programs,
were deployed to investigate these crimes and to assist survivors and
victim families. In addition, to combat the threat of terrorism, I have
directed the Department of Justice, including all 94 U.S. Attorneys'
offices and 56 FBI field offices, to begin implementing the USA PATRIOT
Act that was passed overwhelmingly by Congress and signed by President
Bush. This offensive against terrorism will enable law enforcement to
make use of new powers in intelligence gathering, criminal procedure
and immigration violations. With these new provisions, the fight
against terrorism will have the full force of the law while protecting
Constitutional civil liberties.
The world has changed dramatically since my last appearance before
this Subcommittee. You have been instrumental in making sure that our
government is poised both to respond to and prevent future terrorist
attacks. I appreciate the support of this Subcommittee and that of the
Congress in providing the necessary resources required by the
Department of Justice to meet the challenges presented by terrorism and
to improve the Nation's border security. The Counterterrorism
Supplemental appropriation passed this fiscal year provided much needed
resources to enable the Department to both prevent future attacks and
investigate the terrorist attacks on our country. The fiscal year 2003
budget request that I present to you today builds upon this support and
seeks to further enhance the Department's ability to prevent and combat
terrorism.
Border Security
Illegal overstays of visitors and others coming temporarily into
the United States pose a potential risk to homeland security. Overstays
result in approximately 40 percent of individuals remaining in this
country illegally. Currently, our Nation does not have a reliable
system to track the entry and exit of these individuals in order to
determine who may have overstayed. In addition, we do not have
sufficient ability to detect, identify and locate short-term visitors
who may pose a security risk to the United States. In the wake of
September 11, 2001, the need is more urgent than ever to secure the
safety of our citizens and our homeland. To secure gaps in our Nation's
borders, we are proposing program improvements totaling $856 million
and $187 million for ongoing activities funded in the fiscal year 2002
Counterterrorism Supplemental appropriation.
In addition, this budget will support an increase of over 2,200 new
positions for INS. This request will enable the INS to deploy
additional enforcement personnel together with advanced, state-of-the
art technology and systems to better prevent illegal entry into the
country, target individuals who threaten our safety, and thereby
undermine the security of our Nation, and assist with non-citizens
entering and exiting the United States. Components of the Border
Security initiative include implementing a comprehensive Entry/Exit
system, deploying force multiplying equipment, and integrating separate
information systems to ensure timely, accurate, and complete
enforcement data.
Our fiscal year 2003 budget includes a total of $380 million, of
which $362 million is new funding, to provide initial funds for a
multi-year effort to develop a comprehensive land, sea, and air Entry/
Exit system for the United States. The new Entry/Exit system will
provide enhanced information technology and upgraded facilities along
our Nation's borders. This budget also increases personnel for INS to
carry out its enforcement mission. For fiscal year 2003, we are seeking
$141.3 million to hire 570 new Border Patrol agents and for other
border security related increases; which would complete the addition of
the 5,000 agents authorized by the Illegal Immigration Reform and
Immigrant Responsibility Act of 1996 by the end of fiscal year 2003.
This will increase the number of Border Patrol agents to a record level
of more than 11,000 agents, more than double the level in 1993.
Specifically, this request includes $76.3 million to hire, train, and
deploy an additional 570 Border Patrol agents, $25 million to re-deploy
approximately 285 Border Patrol agents to the Northern Border, $10
million for twin engine helicopters, $2 million for a comprehensive
study of INS law enforcement compensation, and $28 million to enhance
INS' ENFORCE database and processing system and add biometric
equipment.
INS must balance its resources between its dual responsibilities of
facilitating legal travel across our borders--tens of millions of
people a year cross our borders--and detecting those who should not be
allowed to enter the United States. To facilitate achievement of these
goals in the post-September 11th world, our budget requests $85.9
million to enhance air, sea and land ports-of-entry inspections. These
additional resources will enable the INS to hire, train, and deploy 700
additional inspectors to enhance security at air and sea ports-of-entry
and 460 inspectors to enhance border security at land ports-of-entry.
The INS Intelligence program provides strategic and tactical
intelligence support to INS offices enforcing the provisions of the
Immigration and Nationality Act, and assists other federal agencies in
addressing national security issues. INS intelligence efforts also
support coordination of anti-smuggling/terrorism strategies with the
FBI; completion of a U.S.-Canada bilateral common threat assessment
among all concerned agencies on border zones' vulnerabilities; and
increased automation in the intelligence collection and analysis
process. The fiscal year 2003 budget includes an enhancement of 78
positions and $10 million to expand the INS intelligence program.
In the days following the September 11th terrorist attacks on
America, homeland security received a new and urgent emphasis within
the law enforcement community, including the INS. To provide the INS
with adequate resources to meet this challenge, our budget requests $6
million to enhance INS' participation in Joint Terrorism Task Forces
(JTTF). JTTFs are a critical component of our coordinated law
enforcement strategy. This funding will enable INS to enhance its
support of the FBI's investigation into the September 11th terrorist
attacks. These task forces conduct investigations of other foreign
threats to national security and work cooperatively with other federal
law enforcement and intelligence agencies, placing particular emphasis
on disrupting and dismantling terrorist cells and supporters in the
United States by using criminal and administrative tools.
Our budget also seeks resources for additional legal positions to
litigate special interest cases involving issues of terrorism, foreign
counterintelligence, national security and other sensitive matters,
such as cases involving human rights abuses. Special interest cases
require multiple levels of coordination throughout the government, and
attorneys must frequently work with other law enforcement and
intelligence agencies both inside and outside the United States.
To effectively combat the terrorist threat that faces our Nation,
the INS must have a sufficient physical and information technology
infrastructure to support and protect its employees. To support our
facility and security needs, the fiscal year 2003 budget includes an
increase of $145 million for construction and an additional $13 million
and 172 positions for security upgrades. The Department's construction
request for INS will provide for the planning, design, and construction
of INS facilities along the border. Many of the Border Patrol and
Inspection facilities were built prior to the 1970's and cannot
accommodate the tremendous growth in the number of agents. The
requested resources for physical security enhancements will allow INS
to implement security improvements at 157 locations nationwide based on
vulnerability to terrorist attacks and general security requirements.
Our fiscal year 2003 budget also seeks $83.4 million and 15
positions to expand and upgrade INS computer systems, including desktop
computers, network servers, re-engineered data communications and
enhanced computer security. INS data communications technology has not
kept pace with increased demand. These resources are required to
design, build and sustain an information technology infrastructure that
can accommodate INS' steadily increasing workload and rapidly growing
workforce. An additional $3.7 million is requested to fund training
needs to expand fraudulent document training, curriculum development,
materials and incidental expenses related to the Trafficking Victims
Protection Act of 2000.
Enhancing the FBI's Counterterrorism Capabilities
As a result of the events of September 11, 2001, the FBI, with the
cooperation of other Federal, state, local and international law
enforcement, is currently conducting one of the largest criminal
investigations in the history of the United States. Because of the
support of this Subcommittee and that of Congress, the FBI was provided
$745 million in the fiscal year 2002 Counterterrorism Supplemental
appropriation for costs to respond to and investigate the September
11th terrorist attacks, including additional resources for Trilogy (the
FBI's information technology upgrade program), the National
Infrastructure Protection Center, Computer Analysis Response Teams,
intelligence production, technical programs, and other programs. Given
that Congress must consider myriad funding priorities, Director Mueller
and I are very grateful for these additional resources provided to the
Bureau. The men and women of the FBI continue to be on the front line
of our Nation's efforts against terrorism, working in concert with
other Federal, state and local agencies to prevent additional terrorist
attacks and to bring to justice those who commit crimes against our
citizens and our interests. The work of the FBI is critical to winning
this war.
Timely and useful intelligence is key to preventing terrorist
attacks. The FBI's efforts to identify and neutralize terrorist
activities require a comprehensive understanding of current and
projected terrorist threats. In order to enhance the FBI's
counterterrorism programs, our budget seeks $411.6 million in program
improvements, including additional resources to enhance information
technology projects, surveillance, intelligence, investigative and
response capabilities, the aviation program, and security. Our budget
also reflects $238 million in funding for ongoing activities funded in
the fiscal year 2002 Counterterrorism Supplemental appropriation.
For information technology critical to the FBI's efforts to combat
the threat of terrorism, our total budget request for the FBI includes
an increase of $109.4 million to support several new and ongoing
projects. These resources will support projects such as the FBI's
efforts to scan and digitally store 5 million documents related to
terrorist groups and organizations, data management and warehousing,
collaborative capabilities, information technology support for Legal
Attaches, continuity of operations for FBI Headquarters and offsite
facilities, state-of-the-art video teleconferencing capabilities and
increased staffing and funding to support FBI mainframe data center
upgrades. Funding is also sought to perform necessary maintenance on
enterprise-wide legacy systems, applications and the Trilogy network.
The FBI's Information Assurance initiative will unite security
policies, procedures, technologies, enforcement, administration, and
training into a comprehensive proactive program. Maintaining adequate
system security safeguards is critical. Our budget includes $48.2
million in additional funding for this program. Our budget also seeks
an additional $29.9 million to enhance other security programs at the
FBI, including funds for headquarters and field personnel, security
training and background investigations of personnel who are granted
access to FBI information or facilities, guard services and other
items.
The Department's fiscal year 2003 budget requests $61.8 million in
additional funding to enhance the FBI's surveillance capability to
collect evidence and intelligence. These resources will enhance both
physical and electronic surveillance capabilities and enable automated
sharing of information collected as electronic surveillance
intelligence and/or evidentiary material.
Our budget also seeks $46.1 million for the FBI's aviation program
to fund personnel, aviation assets and operational support. Resources
are also sought to expand several critical components of the FBI's
overall counterterrorism program, including $31.6 million to expand the
FBI's response capabilities, $32.3 million to provide enhanced
technical program support, $21 million to enhance the National
Infrastructure Protection and Computer Intrusion Program's ability to
respond to computer intrusions and threats, $7.7 million for additional
analytical capacity throughout the FBI, and $6.4 million for the FBI's
Strategic Information and Operations Center and the New York field
office's operation center.
The establishment of the Joint Terrorism Task Force (JTTF) program
has enhanced the FBI's ability to promote a coordinated effort among
FBI field offices and their respective counterparts in Federal, state
and local law enforcement agencies in connection with terrorism
investigations. Our budget seeks $15.7 million to support a total of 56
JTTFs throughout the country. Additional resources will fund rental
space and renovation of offsite facilities, as well as operational
expenses, such as state and local overtime and supplies. To continue
support for the FBI's toll-free line for collecting tips from the
public on suspected terrorist activities, an additional $1.5 million is
included in our budget request.
Additional Enhancements To Counterterrorism Infrastructure
As accused terrorists are brought to justice in the Federal Court
system, there will be a need for enhanced security measures. The United
States Marshals Service protects the Federal Courts and ensures the
effective operation of the judicial system. To support the heightened
security measures at federal courthouses as a result of the September
11th attacks, our budget seeks $34.7 million to: (1) close security
gaps at courthouse facilities which have the greatest physical security
deficiencies; (2) provide security equipment for new courthouses and
those undergoing significant renovation; (3) provide additional
security personnel for terrorist-related court proceedings; and (4)
provide security staffing to keep pace with the opening of new
courthouses and the creation of new judgeships. To enhance the ability
of the U.S. Marshals Service to participate in the FBI's Joint
Terrorism Task Force program, we are seeking $2.4 million in fiscal
year 2003. Nine million in additional funding also is being requested
to provide increased security and detainee staffing along the Southwest
Border.
Another critical element in our battle plan against the terrorist
threat is working to develop and enhance interoperable databases and
telecommunications systems for the Department's law enforcement
activities. The pooling of information resources capabilities can
greatly increase efficiency and decrease the time involved in cases.
For these efforts, our budget seeks $60 million to continue narrowband
investment in radio infrastructure for key areas such as New York and
along the Northern and Southwest borders. An increase of $23 million is
also requested to continue the development and deployment of the Joint
Automated Booking System and a joint fingerprinting system, that
integrates INS' IDENT fingerprinting system with the FBI's IAFIS
system. To support additional information and anti-terrorism physical
security measures at the Drug Enforcement Administration, we are
requesting $24.7 million.
The fiscal year 2003 budget request for the Department seeks $35
million in the Attorney General's Counterterrorism Fund to reimburse
DEA's Special Operations Division for the cost of providing
intelligence support to the FBI and other agencies conducting
counterterrorism activities. This funding will complement the FBI's own
intelligence capacity by providing additional collection and analysis
capabilities to fight terrorists. For the Department's Office of
Intelligence Policy and Review, $2 million is requested to address an
anticipated increase in Foreign Intelligence Surveillance Act requests.
The Department's budget request also includes $3 million to assess the
vulnerability of chemical facilities.
Counterterrorism Coordination in the Department of Justice
Consistent with Section 612 of the Department's fiscal year 2002
Appropriations Act, the President's Budget includes a proposal to
enhance coordination of the Department's counterterrorism efforts. Our
proposal will consolidate this coordination effort in the Office of the
Deputy Attorney General. The budget includes a total of $2 million to
fund a permanent cadre of well-qualified staff to support the Deputy
Attorney General in coordinating all Department of Justice efforts to
protect the United States against the threat of terrorism. Under the
proposal, I have directed the Deputy Attorney General to be the
individual responsible for coordinating all functions of the Department
of Justice relating to national security, particularly the Department's
efforts to combat terrorism directed against the United States. To
assist the Deputy Attorney General in this effort, I am also
establishing the National Security Coordination Council (NSCC) of the
Department of Justice, which will be directed by the Deputy Attorney
General. The NSCC will coordinate policy, resource allocation,
operations, long-term planning and information sharing. The NSCC will
also be a repository of expertise and a forum through which the Deputy
Attorney General will be prepared to represent the Department in
interagency forums. Mr. Chairman, we are committed to working with you,
Senator Gregg and members of the Subcommittee to strengthen the
Department's counterterrorism programs.
supporting victims of crime
The World Trade Center, Pentagon, and Pennsylvania tragedies were
moments of indefinable horror and grief for this Nation. Although no
amount of assistance can ever begin to compensate the surviving victims
of the September 11th tragedies or the families and loved ones, the
Department is committed to using the resources available to help
victims and families of those who were physically injured or killed as
a result of the terrorist attacks on September 11th. While we can never
undo the damage that has been done, this fund will assist thousands of
individuals and families in rebuilding lives that were shattered by the
indiscriminate evil of terrorism.
Following the September 11th terrorist attacks, Congress passed and
the President signed into law the Air Transportation Safety and System
Stabilization Act (Act). The Act established the September 11th Victim
Compensation Fund of 2001 (Fund) to provide a permanent and indefinite
appropriation for making payments on approved claims to personal
representatives of deceased individuals and those physically injured as
a result of the terrorist-related aircraft crashes that day. The value
of approved claims, through 2004, is estimated at $5.4 billion. Our
fiscal year 2003 budget reflects the $2.7 billion in estimated payments
for Victim Compensation payments. In addition, the Department's budget
includes a total of $41 million for the administrative costs of the
Fund's Special Master.
For the Department's Crime Victims Fund, we are seeking $50 million
to fully fund the Emergency Terrorism Reserve and to provide $25
million in additional assistance for the states. The Emergency
Terrorism Reserve may be used by the Department to respond to incidents
of terrorism and mass violence by providing supplemental grants to
states for victim compensation and victim assistance and by providing
direct compensation to victims of international terrorism occurring
abroad.
improving management of immigration services and enforcement
The Administration is committed to building and strengthening an
immigration services system that ensures integrity, provides services
accurately and efficiently, and emphasizes a culture of respect. The
INS is tasked with upholding this commitment and ensuring that
resources are used effectively to manage and deliver immigration
services. Our restructuring plan for INS will create the organizational
structure to support the President's goal of achieving a 6-month
average processing time for all applications. Mr. Chairman, I am
personally committed to working with you and the Members of the
Subcommittee on the INS restructuring proposal so that we may improve
benefits processing and strengthen enforcement of our immigration laws.
For fiscal year 2003, our budget request seeks $40 million to begin
implementation of the Administration's comprehensive restructuring of
the INS. To attain the President's goal of a six-month processing time
for all applications, we are also seeking an additional $50.5 million
from fee collections. An additional $1.5 million is sought to enhance
the statistical capabilities of INS' Office of Policy and Planning and
to expand the successful Alternatives to Detention program.
For the Executive Office of Immigration Review, the fiscal year
2003 budget seeks an additional $10 million, including $800,000 in
redirected resources, to coordinate with INS initiatives, which are
anticipated to increase the Immigration Judge caseload and the Board of
Immigration Appeals caseload by 27,800 cases.
managing increased federal detention and incarceration capacity
The Department of Justice is charged with the safe, secure, and
humane confinement of detained persons awaiting trial, sentencing,
immigration proceedings or removal from the United States. The need for
federal detention bed space has more than doubled in the last five
years, from 32,000 detainees in 1996 to 67,000 detainees in 2001. This
dramatic increase has resulted in greater dependence on state and local
governments and private contractors to provide bed space for federal
detainees. Currently, the INS, U.S. Marshals Service and the Bureau of
Prisons are responsible for detaining prisoners. To enhance
coordination, manage the rising detainee population, and exercise
financial control and efficiency in federal detention operations, the
Office of the Detention Trustee was created in the Department of
Justice. For fiscal year 2003, our budget proposes to consolidate $1.4
billion under the Detention Trustee to provide bed space for the
anticipated detainee population in the custody of the U.S. Marshals
Service and the INS. Our budget seeks an increase of $95.6 million for
the Department's detention programs. Total funding includes resources
to accommodate detention space for housing INS detainees, to house U.S.
Marshal detainees, and to fund the increase in the oversight
capabilities of the Office of the Detention Trustee.
For the Bureau of Prisons, our fiscal year 2003 budget seeks $348.3
million for additional prison activation and completion of previously
authorized construction projects. Specifically, $206 million is
included to continue construction of a medium security facility, a
secure female facility, and to expand three other facilities. For
additional prison activations and an institutional population
adjustment, $142.3 million is included in our fiscal year 2003 budget.
This additional funding will provide resources to activate four new
facilities, including Federal Correctional Institution (FCI)--
Glenville, West Virginia, United States Penitentiary (USP)--Big Sandy,
Kentucky, USP-McCreary County, Kentucky, and USP-Victorville,
California, and to expand USP Marion, Illinois and FCI Safford,
Arizona. These facilities will add over 5,000 critically needed beds to
reduce overcrowding.
reducing the availability of illegal drugs and supporting proven
programs aimed at reducing drug use
Today, more than ever, drug enforcement can play a critical role in
protecting our national security by starving the financial base of
criminal organizations and depriving them of the drug proceeds that may
be used to fund terrorist activities. Drugs not only weaken the fabric
of our society, but also threaten our national security. The recent
attacks perpetrated on our Nation illustrate the connection between
drug trafficking and terrorist attacks. In Afghanistan, the Taliban,
which controlled opium production and directly taxed the drug trade,
opened its doors to Osama Bin Laden and the al Qaeda organization. Drug
trafficking provides terrorists a steady source of resources to finance
their operations. Our budget includes a $17.4 million resource
reprogramming proposal, utilizing prior year resources available to
DEA, to implement an Afghanistan Initiative, Operation Containment,
that will employ a multi-faceted approach to identify, target,
investigate, disrupt and dismantle transnational heroin trafficking
organizations in Central Asia. The established link between the
proceeds generated from the sale of Afghan heroin and terrorist
activities makes combating heroin production in Central Asia critical
to the security of the United States.
The Organized Crime Drug Enforcement Task Force (OCDETF) program is
the centerpiece of the Department's drug strategy to reduce the
availability of drugs. OCDETF combines the talent of experienced
federal agents and prosecutors with support from state and local law
enforcement, thereby uniquely positioning OCDETF to conduct multiple
coordinated investigations across the country to root out and eliminate
all pieces of major drug organizations. For fiscal year 2003, our
budget seeks an increase of $14.8 million through OCDETF to provide
field support for DEA's Special Operations Division coordinated
investigations. This funding will enhance OCDETF's ability to conduct
complex, multi-district investigations developed from Special
Operations Division intelligence and coordination. These resources will
be used by DEA and the Department's Criminal Division; and will also be
used to fund state and local overtime.
DEA conducts financial investigations to detect and disrupt the
international and domestic flow of illicit money. To support these
financial investigations and enhance regulatory and cooperative and
public-private efforts to prevent money laundering, our fiscal year
2003 budget proposes a program improvement of $4.1 million. For fiscal
year 2003, we are also seeking $24.6 million for DEA's Diversion
Control program. These resources will be used to strengthen DEA's
enforcement capabilities to prevent, detect, and investigate the
diversion of controlled substances, particularly OxyContin.
Increasing abuse of OxyContin has led to an increase of
associated criminal activity.
The Department's fiscal year 2003 budget also seeks $13 million for
drug abuse and crime programs under the Office of Justice Programs.
Specifically, we are seeking $4 million to expand the Arrestee Drug
Abuse Monitoring (ADAM) program to 10 additional sites. The ADAM
program is the only federally funded drug use prevalence program that
directly addresses the relationship between illicit drug use and
criminal behavior. ADAM data assist practitioners and policy makers in
understanding, anticipating and responding to their community's
changing drug problems. Our budget also includes $52 million for the
Drug Courts Program, a $2 million increase, and $77 million in funding
for the Residential Substance Abuse Treatment Program, a 10 percent
increase in funding over fiscal year 2002.
advancing civil rights
Essential to our republic is the right of every citizen, from every
walk of life, to be treated equally under the law. This includes every
citizen's right to vote. The Federal Government has become an active
participant in establishing rules for the conduct of elections on
matters ranging from voter registration to protection against
discrimination.
In fiscal year 2003, the Department requests $400 million for a new
three-year program (totaling $1.2 billion) to improve state and local
jurisdiction's voting technologies and administration, including voting
machines, registration systems, voter education, and poll worker
training. This new program will provide states with matching grants for
election reform. This proposal is consistent with the recommendations
of the National Commission on Federal Electoral Reform headed by former
Presidents Ford and Carter. The Office of Justice Programs (OJP) will
have primary responsibility for administering the program, in
consultation with the Department of Commerce's National Institute of
Standards and Technology, which will provide expertise on voluntary
technical standards.
Our budget seeks $2.8 million to promote effective investigation,
prosecution, and response to hate crimes. This amount includes $1.5
million to study the effect of hate crime legislation by examining 6
sites that have hate crime laws and 8 with little or no such
legislation; and $1.3 million to develop and provide hate crimes
awareness training and technical assistance, and to disseminate
successful program strategies. Our fiscal year 2003 budget also seeks
$3 million for the Office of the Inspector General to address a
statutory requirement in the USA PATRIOT Act requiring the review of
complaints alleging abuses of civil rights and liberties, and to
provide audit oversight for the Department's counterterrorism programs.
enhancing the department's legal activities
The Department of Justice is often described as the largest law
office in the Nation. We serve as counsel for the citizens of this
Nation and represent them in enforcing the law in the public interest.
For fiscal year 2003, our budget seeks $32.5 million for the Civil
Division to increase its use of automated litigation support (ALS)
services to successfully resolve extraordinarily large and document-
intensive cases. ALS is an indispensable method of managing millions of
pages of documents, performing electronic discovery, executing court-
ordered trial presentation systems, and generating real-time
transcripts. In addition, to address the burgeoning defensive docket in
United States Attorneys Offices, our budget seeks an additional $2
million. These resources are necessary to adequately defend the
government from unwarranted claims and to fairly resolve meritorious
claims. Our budget requests an additional $11 million to complete the
third and final phase of the overall telecommunications convergence
initiative in United States Attorneys Offices throughout the Nation:
implementing Internet Protocol telephony. This convergence will enable
the U.S. Attorneys to encrypt all transmissions, share resources and
use telecommunications bandwidth more effectively, and reduce overall
operating and maintenance by establishing a common, standardized
telecommunications infrastructure.
For the United States Trustee Program (USTP), we are proposing an
additional $6.3 million from fee collections. Specifically, our budget
requests $5.8 million to enable USTP to develop systems to more
effectively uncover material misstatements in bankruptcy schedules and
statements of financial affairs. An increase of $500,000 is requested
to establish a pilot program and curriculum to provide personal
financial management instructions.
streamlining assistance available to state and local law enforcement
The fiscal year 2003 budget proposes a refocusing of spending
directed toward state and local assistance. This budget refocuses and
redirects funding toward core Federal counterterrorism prevention and
investigations. Between last year's appropriation and next year's
budget proposal, discretionary spending on Federal law enforcement
grows almost 19 percent. Meanwhile, the Administration also refocuses
and redirects state and local assistance; although funding through the
Department of Justice decreases, the President's budget includes new
funding for first responder preparedness through the Federal Emergency
Management Agency.
For fiscal year 2003, we propose a new $800 million program, the
Justice Assistance Grants Program (JAGP), that consolidates the Local
Law Enforcement Block Grant (LLEBG) and the Byrne Formula Grant Program
into a single grant program under the Community Oriented Policing
Services (COPS) program. Consequently, we are proposing to eliminate
the LLEBG and Byrne Programs in their current form. The consolidation
of these two programs should result in a simplified application process
for participating state and local governments, and greater flexibility
for local law enforcement agencies in the use of block grant funds.
States may use these resources for statewide initiatives, technical
assistance and training, and support for rural jurisdictions in the
areas of enforcement, prosecution and court programs, prevention
programs, corrections programs and treatment programs. Local funding
may also be used for these purposes and can be combined with funding
from other jurisdictions to form regional projects. This program also
includes $15 million to facilitate the USA Freedom Corps by encouraging
citizen participation in law enforcement, community safety and
terrorism preparedness; and $60 million for the Boys and Girls Clubs.
Also, within COPSs, we are seeking $65.6 million in targeted
assistance to police departments. This amount includes an increase of
$15.6 million for the Police Corps, a scholarship and training program
designed to improve local police response to violent crime by
increasing the number of officers on the beat with advanced education
and training. It also includes a total of $50 million for COPS
Technology Grants. To improve the mechanisms for ensuring state court-
based data are properly transferred to the criminal record, we are
seeking an additional $25 million. These resources will enhance the
capability of the FBI's National Instant Check System to provide
immediate feedback. Our budget also seeks an increase of $6.1 million
to expand the Internet Crimes Against Children Task Force Program by
establishing a regional task force in at least 40 states and expanding
capacity-building activities through research, training and technical
assistance.
The fiscal year 2003 budget provides over $3.2 billion for state
and local law enforcement grant programs. However, it also prioritizes
scarce federal resources and includes proposed reductions and
eliminations of some of the current grant programs. Reductions are made
primarily in the following areas: (1) Byrne Discretionary and Formula
grants; (2) Local Law Enforcement Block Grant; and (3) State Criminal
Alien Assistance Program.
other important activities
Our budget seeks $48.5 million to enhance several items of critical
importance to the Department. Specifically, we are seeking $36.5
million to enhance various FBI data management and warehousing
techniques and to provide new administrative support and financial
systems. Additionally, $10 million is sought to begin planning and
initial deployment of a new Departmental Financial Management System.
This funding will provide much needed resources to address financial
system material weaknesses cited by the Department's auditors. For the
FBI, our budget also seeks $867,000 for the Federal Convicted Offender
Program to manage and type federal convicted offender DNA samples,
purchase equipment, and fund miscellaneous expenses related to this
effort. The DNA Analysis Backlog Elimination Act of 2000 authorizes the
FBI to collect DNA samples from individuals convicted of qualifying
offenses. The USA PATRIOT Act of 2001 expands the list of qualifying
offenses to include terrorism-related offenses and other crimes of
violence.
conclusion
Chairman Hollings, Senator Gregg, Members of the Subcommittee, I
have outlined for you today the principal focus of President Bush's
fiscal year 2003 budget request for the Department of Justice. I look
forward to working with you on this budget proposal and other issues.
Thank you. I would be pleased to answer any questions you might
have.
Senator Hollings. I thank you, General Ashcroft, for the
outstanding work you have been doing on counterterrorism. I
think the committee will want to help you continue your
progress. I want to get into a couple of things there.
I think being hardfast on law enforcement is not
inappropriate when the enemy has infiltrated you, you do not
know who they are and everything else like that. You have got
to be on the side of extreme care.
NEED FOR SPECIAL COUNSEL IN ENRON CASE
Let me ask about the Enron matter now. I commend you. You
have recused yourself, not that there is a conflict of interest
but there could be a conflict of interest, and I understand the
same with your chief of staff and even the U.S. Attorney's
Office for the Southern District down there in Texas. They have
had to set themselves aside due to all kinds of contacts.
Now the case is in the hands of our friend Larry Thompson.
On that score, I am worried about it for the simple reason that
he has been deputized and continues to be the Deputy Attorney
General in charge of counterterrorism in the Department of
Justice, which is a full-time job. Credit goes to our
distinguished ranking member who was there and chairman this
time last year for having the first real full hearing of the
entire Cabinet on counterterrorism. The fact was, on September
11, that is what we were debating, this subcommittee's
appropriations on counterterrorism.
But right to the point, you do not want the Department of
Justice to go all the way through with this case, whatever the
result is and say, well, wait a minute, the fellow that was in
charge, he was for 20 years working with the law office that
represented Enron and Arthur Andersen, so he does not have a
conflict of interest but the appearance of a conflict of
interest is still there, just like with yourself.
I do not see how these are not extraordinary
circumstances--you have got chief executives committing
suicide, you have got all the evidence being shredded over 1\1/
2\ months and everything else of that kind, all of them taking
the Fifth Amendment and what have you. You do have
extraordinary circumstances so you have got to use the highest
care to make sure of the impartiality. And like I said, there
is no use to come to the end of the investigation and then say,
well, wait a minute, this is a gentleman who worked in that law
office, as you well know, for some 20 years.
There should not be the least appearance of a conflict. It
ought to be Archibald Cox or some individual of your own
choosing, and under the law, you can appoint a Special Counsel
and that would end any misgiving that anybody could have about
the final report. What is your comment?
Attorney General Ashcroft. When presented with these
issues, I have given my duty to carry out the responsibilities
that have been entrusted to me very careful consideration. I
have had a very, very careful awareness of and adherence to the
Government-wide regulations and rules regarding conflicts of
interest and these rules set forth various relevant factors,
including financial and personal relationships, and any
decision on these matters, obviously, is very fact-specific.
Based on the careful review of the applicable laws and
regulations that apply to all Government workers and in light
of the totality of all the circumstances, I believe that it was
my responsibility to recuse myself.
Senator Hollings. Right.
Attorney General Ashcroft. Once I recuse myself, I do not
make further judgments about the case. I do not involve myself
in the case.
Senator Hollings. No, but you know your Deputy Attorney
General intimately and you work closely together. You still do,
I take it, I hope so, on counterterrorism. You have testified
very strongly here this morning about the efforts made in the
Department of Justice on counterterrorism and the officer in
charge under the law right now is that same Larry Thompson. So,
I mean, you recused yourself, but you are working with him
closely.
If you had an outside individual like an Archibald Cox that
would be at your selection, then there would be no question. I
just hate to see all this good work done and then an accusation
of a conflict come at the end of the road. This thing is going
to live with us for a long time, apparently, from the effect it
has had on the market and you can see all the different
happenings in different committees.
Senator Stevens and I actually recommended a select
committee, rather than have all this duplication. Right now,
for example, at my Commerce Committee, we are having Mr.
Skilling and Ms. Watkins up for the second time and they will
probably appear four more times at least on the Senate side and
five or six more times over on the House side.
So I think to really get to the bottom of everything and
save time and what have you, and on behalf of the Department of
Justice's best interests and you, the Attorney General, I
understand that you have recused yourself, but why do you not
recuse Thompson?
Attorney General Ashcroft. Further judgments about this
matter regarding other people or myself are inappropriate once
recused. I have recused myself and withdrawn myself from this
matter. It is my responsibility under the Government-wide
regulations and rules and guidance to make that judgment. Once
I have done that, I do not deal with the matter further.
Senator Hollings. Then we can bring up Mr. Thompson. You
are saying that he has to deal with it, is that right? You have
given over the Attorney General's job to Larry Thompson? You
have still got the authority under the law.
Attorney General Ashcroft. My responsibility----
Senator Hollings. I hear your statement, but, I mean, you
have still got the responsibility under the law.
Attorney General Ashcroft. I have the responsibility in
accordance with the Government-wide rules and regulations in
settings where I believe the totality of the circumstances
might provide a basis for an appearance or an actual conflict
of interest to withdraw myself, and I have done so, and having
withdrawn myself, I will not have further involvement in this
matter.
Senator Hollings. We asked that Larry Thompson appear with
you. Why did he not?
Attorney General Ashcroft. I am not able to answer that,
sir. I will urge Mr. Thompson, when inquired of by the
committee, to make himself available to the committee. We want
to work with this committee.
Senator Hollings. I appreciate it. Let me just get into one
other matter, then, because I hope on the first round--I am
delighted to see the attendance that we have--to hold ourselves
probably to 10 minutes at the most on the first go-around.
ANTITRUST ENFORCEMENT CLEARANCE AGREEMENT
With respect to the Department of Justice's memorandum of
understanding with the Federal Trade Commission that came to
our attention last month here in January, that, in essence, as
I see it, would change jurisdiction from the FTC to the
Antitrust Division the media mergers and the matters of
antitrust and Federal Trade Commission conflicts of interest
and everything else of that kind, the public interest
particularly. The Federal Trade Commission has a broad
jurisdiction, intentionally so, a concurrent jurisdiction in a
sense with the antitrust laws, but it has got a broader charge
than the Antitrust Division in respect to the public interest
and it can head off antitrust violations and it does not get
into the technicality, it can get into intent and everything
else of that kind, and has worked extremely well. Why? Why is
that being done?
Attorney General Ashcroft. As you have appropriately
stated, there is concurrent jurisdiction in the Federal Trade
Commission and the Antitrust Division of the Department of
Justice in regard to Hart-Scott-Rodino notifications of
proposed mergers. To negotiate on each case when it comes
before on an ad hoc basis provides a delay in the context of a
statute, which requires rather prompt action or else there is a
presumption that the merger is to go forward.
We believe that the antitrust laws and the antitrust
enforcement are very important. Let me just say that
competition is the basis for American productivity and success
and we think it is an arena that needs to be safeguarded and
the allocation and decisions made here should be merit-based
and not driven by other considerations.
In conferring with past leaders of the Departments, both
the Department of Justice and the Federal Trade Commission, we
have a letter signed by seven of them that states that it would
be helpful to allocate these resources and to make an agreement
to allocate these resources rather than to wait for each case
to come up, basically, to recognize the expertise that is being
developed in working on these cases. You mentioned, I think,
the telecommunications and media arena.
Senator Hollings. Right.
Attorney General Ashcroft. Over the past 5 years, for
example, there have been 45 such cases. They have all been
handled by the Department of Justice and there is an expertise
there that has been assembled in the Department of Justice to
handle these cases. Over the course of the past 10 years, I
think the numerics are something like 154 cases handled by the
Department of Justice with about 22 cases handled by the FTC,
although the FTC handled small cable merger cases in local
areas rather than the large cases.
It seemed to make sense that these agencies get together
and agree that where there is an expertise that has been
developed, we could have a kind of allocation, which is
understood and roughly divides the work, but focuses on and
capitalizes on the capacity and expertise of these agencies in
resolving these issues in favor of preserving and protecting
the competitive marketplace.
I think that that is an important aspect of making sure
that we have vigorous and effective antitrust enforcement, and
it is with that in mind that this idea took shape. I think I
have answered your specific question. I do not know that I
should go further in explaining the concept.
Senator Hollings. I am back to the expertise within the
intent of Congress. You are right in what you say, but the
intent of Congress was that they have concurrent jurisdiction
because the Federal Trade Commission does not have to prove a
criminal act and they have broader authority. You can have a
monopoly and not use the monopoly to thwart or damage trade,
for example, or competition, but you could have that monopoly
not being exercised in the public interest and that is why the
Federal Trade Commission looks at these things.
We in the Congress have been working with this jurisdiction
issue. There is the intent of Congress and now you are going to
start legislating. You are going to take it away. Under the
proposed memorandum of agreement, there are not going to be any
more media cases before the Federal Trade Commission. I am
chairman of the Commerce, Space, Science, and Transportation
Committee. We have authorizing responsibility for the Federal
Trade Commission and they did not come running and say, wait a
minute, they did not ask us. They did not ask anybody in
Congress. The consumer groups come running and tell me, they
say, they did not ask us, and when we look into it, Mr. James
asked Mr. Simms, his law partner, whom I take it he is going
back to practice with when he gets through with you. That does
not look like it is up to snuff.
Attorney General Ashcroft. May I comment on that?
Senator Hollings. Yes, sir, please do.
Attorney General Ashcroft. Both the leadership of the FTC
and the leadership of the Antitrust Division initially
conferred with past chairmen of or past directors of their
divisions, both Republican and Democrat, to help develop this
list as a working arrangement to, in some ways, formalize what
has been an informalized agreement. As you mentioned,
telecommunications and media over the last 5 years, it is 46
major cases at the Justice Department, none at the Federal
Trade Commission. So this is not changing things substantially,
it is providing a framework in which these things are done more
promptly so that the work does.
Now, I just wanted to indicate that the conferring was
bipartisan and with individuals who were experienced in this
process by both the--it is my understanding, this is what I
have been told, I was not at any of these meetings--by both the
Chairman of the Federal Trade Commission and his predecessors,
both Republican and Democrat, and in the predecessors to Mr.
James in the Antitrust Division, both Republican and Democrat,
and seven of the previous leaders in this arena have indicated
in a letter that they believe a concept of providing this kind
of framework, certainly not something that would make it
impossible to adjust. As a matter of fact, it should be a
flexible framework.
But this framework would help expedite our capacity to work
in these matters and to do the work that the Congress has
assigned, and that is the spirit in which that agreement was
developed and I think it has the potential of being helpful
rather than--in the 30-day clock that begins running when the
filing is initially made, sometimes over half that time period
has been lost because a decision has not been made which agency
is going to pursue the matter. That makes it rather short, the
2-week interval during which a request for documentation and
information would be generated, and I think the idea that is
commended by the past chairmen and directors of these
departments and is commended by this kind of framework is that
you get better opportunity to work immediately during the 30
days without losing time.
Senator Hollings. As you say, we look at the people who
really have a direct interest and who enacted the law. I have
been with it 35 years and with that authorizing committee,
Federal Trade Commission, I cannot find anybody in the Congress
that says that is a good idea. I will ask that the
distinguished Attorney General review that very closely for us.
Senator Gregg.
ATTORNEY GENERAL RECUSALS
Senator Gregg. Thank you, Mr. Chairman.
General Ashcroft, it was not going to be the line of
questioning I was going to pursue, but I was interested in the
questions that the chairman asked you regarding recusal. He may
have a valid point. I am not familiar with Mr. Thompson or his
background involvement here, but he may have a very legitimate
point here.
I am wondering, I presume that when you made your decision
to recuse yourself, it was based on the fact that when you were
involved in Government in another role, specifically as United
States Senator, you may have received contributions from Enron
or you may have voted on issues which had a direct impact on
Enron, such as issues involving the marketability of power, is
that correct?
Attorney General Ashcroft. I think it is clear to say that
the totality of circumstances surrounding my responsibilities
and my history led me to believe that in accordance with the
guidelines in a matter as sensitive as this matter, where there
could be criminal prosecutions that I should----
Senator Gregg. I think your decision was a correct one. I
would just note that I suspect if you were to apply the
standard you applied to yourself to the Congress, we would have
to recuse the majority of Members of Congress.
Attorney General Ashcroft. I have thought about that, and
without trying to give legal advice to the Congress----
Senator Gregg. Do not.
Attorney General Ashcroft [continuing]. I do note that----
Senator Gregg. It is a comment. It does not need a
reaction.
Attorney General Ashcroft. I just would note that I have a
unique responsibility as Attorney General to oversee criminal
investigations, which may, in the eyes of some and certainly in
the calculations of others, make a difference.
Senator Gregg. I understand the difference there.
I wanted to follow up, though, on one of the issues
involving terrorism, and I appreciate the courtesy you showed
this committee in acknowledging our efforts in this area under
the chairman's and my efforts. Other members of this committee
have been extremely involved. Senator Mikulski has been
extraordinarily involved in this issue.
TRANSFER OF NDPO AND ODP TO FEMA
We have tried to develop a variety of different efforts to
support the fight against terrorism and most of it was done
before 9/11. One of the decisions we made early on was that we
needed one-stop shopping for local and State officials to be
able to come to the Federal Government and find out where to
go, what to do, and how to get information and how to get
support for their people, and we started something called the
NDPO, which unfortunately withered on the vine at FBI because I
do not think the FBI wanted to do it. Then the responsibility
of NDPO was taken over by OJP.
The question I have for you is, when a crisis occurs, and I
asked you this question when we had our joint hearing back a
few months ago, back 1 year ago----
Attorney General Ashcroft. I hope I can remember my answer.
Senator Gregg. I remember your answer, and I am sure it
will be the same today.
Attorney General Ashcroft. I am afraid you do.
Senator Gregg. When a crisis occurs, who is responsible at
the site, at the event?
Attorney General Ashcroft. It is our understanding, and we
believe it is the case that the FBI is responsible for crisis
management.
Senator Gregg. That is correct.
Attorney General Ashcroft. For consequence management,
which is once the site has been secured and for things like the
investigative purposes, consequence management moves to other
individuals.
Senator Gregg. I guess the follow-up to that question is
this. If the FBI is going to be on site and is under--as you
know, this committee directed that every State develop a
statewide domestic preparedness plan. I think we have received
almost every State in now with a----
Attorney General Ashcroft. We have about 46 States that
have submitted their plans.
Senator Gregg. And that was as a result of an initiative
out of this committee. One of the things we wanted in that plan
was coordination with the Federal Government, and I believe
this is primarily accomplished through the FBI. If the FBI is
on site, in charge, and is going to be in a command position
over the resources that arrive once the disaster has exceeded
local capabilities recognizing that the first group on the
ground is going to be the first responders--the local police,
fire, and medical--should these people not have gone through
the Department of Justice training programs or a process which
gave them entree into the Department of Justice versus some
other agency?
Attorney General Ashcroft. Well, that is--we certainly
believe that the Department of Justice will continue to do a
lot to train and we would expect that the nexus between our FBI
presence in crisis management and those who are at the scene
would be a well-developed relationship. I believe you may be
headed toward a question about focusing some of these resources
in another agency, and the President has made the decision that
integrating some of those resources in FEMA would provide the
right kind of cooperating continuity of people who work with
first responders. There are different views on that.
Senator Gregg. I said OJP before. I meant ODP. But the
issue is, what is the role here of FEMA? What is the role of
ODP? What is the role of FBI in the first responder training
initiatives? To step back even further, again at the initiative
of this committee, we set up five training sites, which have
turned out to be superb. I think they are doing a superb job.
Eighty thousand people have gone through those, first
responders. These training centers have all been under the
direction of ODP. How long did it take us to get those sites up
and running and get ODP orchestrated in a way that it was able
to effectively run people through those different training
exercises? You were not there then, so you may not recall.
Attorney General Ashcroft. It took some time, and I think
that there has been great value in the training and that value
has been understood and is appreciated. So while I support the
administration's position of moving this matter to FEMA, I do
not have to repudiate the fact that much of what you have done
and what these hard-working individuals have done has been a
great success. I think you are correct in characterizing the
training as having been very valuable and the development of
the plans by the States as being very constructive. So much
work has been done that has been successful.
Senator Gregg. I think it almost took us 2 years to get
this thing up and running, and I am just wondering if, when we
transfer it over to FEMA, we are going to see a significant
disruption in their program. FEMA is not a grants organization.
It is a response organization. It has never handled grants and
it has never handled the management of this type of a grant
structure. I am just wondering if you or anybody in your office
has made an evaluation as to how much time it is going to take
to reorganize this thing at FEMA period and what are we talking
about in terms of a gap as a result of this transfer?
Attorney General Ashcroft. I know that there are transition
plans in terms of transferring the responsibilities in funding
and it is thought that there would be a lot of transition of
personnel and I think it is----
Senator Gregg. They have already sent letters to people at
Justice asking them what they are doing and when they are
coming to FEMA, have they not?
Attorney General Ashcroft. I have not seen such letters,
but I understand that there is an expectation that people will
move and that would minimize any kind of disruption. But I do
not know of any study that has evaluated the transfer for
purposes of finding out what kind of gaps would be developed.
DECISION ON FEMA TRANSFERS
Senator Gregg. My time is about up, but let me ask you one
last question on this because we worked very hard to get this
working right and we have got it working right and now we are
taking the chairs and we are moving them around the deck. Maybe
it is going to work better as a result of it. But I have not
necessarily been convinced of this, although I give the benefit
of the doubt to the administration because you have got the
final call on these and this is an issue of such significance.
But can you give us a little background as to what
Justice's position was in the debates leading up to this
decision? Did you agree with the FEMA decision?
Attorney General Ashcroft. You know, when the President
asked me to be the Attorney General of the United States he
asked that I advise him, but he asked that I advise him
privately and I think it would be inappropriate for me to start
down the road----
Senator Gregg. Well, what advice did you give to FEMA?
Attorney General Ashcroft. Pardon?
Senator Gregg. What advice did you give to FEMA? I do not
ask you for the advice you gave the President. I know that that
is----
Attorney General Ashcroft. In handling these issues, do the
very best you can. This is very important.
And now that people are focused on it--as you well know,
very few people had your sensitivity to this issue of
terrorism, and prior to September 11, I think we only had four
States that had submitted plans and we had asked for plans but
States had not made this a priority. There are others,
obviously, now. I think the rest of the country has arrived
where you have been for some time in understanding the urgency
of this. So we have made a lot of progress recently and will
continue to make progress and some of the grants are now being
made, which I would expect to continue to be made.
Senator Gregg. I appreciate those gracious remarks and with
those I will certainly stop asking you questions.
Senator Hollings. Senator Mikulski.
FIRST RESPONDERS FUNDING
Senator Mikulski. Thank you very much, Mr. Chairman and
Senator Gregg and, of course, the Attorney General.
Senator Gregg and Mr. Chairman, as you know, I chair the
subcommittee that funds FEMA. I, too, want to very much support
the administration in its efforts on homeland security. I met
with Governor Tom Ridge and Joe Allbaugh from FEMA exactly on
this transfer. It is my position that I do not want to poach on
this subcommittee or on the Justice Department but would hope
there could be some type of discussion on this.
Tomorrow, I will be holding a hearing on FEMA and its
preparedness for the future and also this particular matter,
because I want to be sure that FEMA is prepared, just generally
in its consequence management responsibility, that we do the
best job for the first responders, who are police and fire, and
at the same time that we do not raid the money in our COPS
program to fund the Office of Domestic Preparedness.
Colleagues, I invite you to come to the hearing tomorrow,
whether you are on the subcommittee or not, because, one, I
value you, and also, Senator Gregg, when you chaired this
committee, your leadership was really commendable on the
counterterrorism. You did get momentum, organization, and
money, I believe, into the ODP. So I think there is a lot of
conversation that needs to go on with Governor Tom Ridge, with
us, with other representatives in the administration.
Again, my concern is, what is the best support that we can
give to the first responders? What is the best way to do that?
And at the same time--those are organizational issues--I am
deeply troubled that in looking at the COPS on the beat--I will
call it the COPS on the beat--program that there have been
reductions in universal hiring, the schools program, the COPS
technology, and others to move it over to ODP.
Mr. Attorney General, am I right in that assessment? Let us
join together here, because I am not into--before I get it, I
think we have got a lot of talking to do, or if I get it at
all. I am not interested in what subcommittee or in what
agency. What I am interested in is the empowerment of the first
responders.
But Mr. Attorney General, in all of this talk of
reorganization and consolidation, are we cutting the COPS
program to fund ODP and move it over as there is a possibility
of transition to FEMA, or have I misread the appropriations?
Attorney General Ashcroft. I think it would be unfair to
say that the transfer, the administration's transfer of ODP to
FEMA is based on a cut in the COPS program. First of all, let
me say how much I appreciate your goal-oriented approach to the
ODP matter. Frankly, I support the administration's move and I
think it is clear that we need to find the way that would best
serve those first responders. You have characterized that
wonderfully.
Now, the COPS program has been a miraculous success. It is
one of those things that Congress hopes will happen when it
sets up a program. It was designed to provide funding for
100,000 new police officers. I think funding was eventually
provided for up to 111,000 new police officers. The police
officers were to be funded for a period of time during which a
local agency would have the option of understanding how
valuable the additional police presence would be. My staff
tells me that at the end of these police exposures as a result
of Federal funding, 92 percent of the police forces then
continue these officers because they have understood the value
demonstrated by the presence of these officers in the
community.
Now, what is happening is that this program has succeeded--
--
REDUCTION OF COPS PROGRAM
Senator Mikulski. Mr. Attorney General, I do not mean to
interrupt you. I am not trying to be brusque. According to the
analysis that I got, COPS is cut by almost 80 percent, ending
the police hiring program, the COPS in school program, cutting
the COPS technology program by two-thirds. Are those factual
statements or has my briefing material been incorrect?
Attorney General Ashcroft. I think what we have
demonstrated here is that the program has succeeded in getting
the number of cops that were anticipated and it will continue
to pay those who have been hired until their term is finished,
but the objective of the program having been met, there is no
further funding for additional hirings beyond 100,000 in this
area.
ROLES IN CRISIS MANAGEMENT
Senator Mikulski. I see. I would like to switch gears now
to an issue raised by Senator Gregg, the whole issue of who is
in charge. In our marathon hearings of over 3 days of hearings
in terms of our preparedness on the issue of counterterrorism,
the issue of who is in charge came up. I think we really need
to clarify that, Mr. Attorney General, because it is true FBI
is crisis and FEMA is consequence, but at a local response, it
is often the mayor and his or her local police chief or fire
chief that are in charge at the scene. When the FBI arrives, it
is not to manage the crisis nor the coordination of the
agencies for evacuation, medical treatment, et cetera, it is to
treat it as a crime scene, and that has also resulted, it
seemed in both--well, certainly in the anthrax situation--a lot
of bumping into each other over what was the primary
responsibility, the management of the public health incident or
treating it as a crime scene.
Could you tell me, what is the FBI's role in crisis
management or is it really to be law enforcement and to treat
it as a crime scene, looking for evidence for future
prosecution against these thugs, and we feel both very
passionate about these despicable attacks, but do you see where
I am? The mayor thinks he is in charge.
Attorney General Ashcroft. First of all, we want to work
cooperatively with everyone regardless of who is in charge, but
I think it is important. You raise a very important issue, and
I would indicate to you that perhaps of greatest importance is
that the first thing we want to do when the FBI has a
responsibility for crisis management is to prevent the next
attack. Prevention is our first priority. It misstates or
misunderstands our priority to think that prosecution is our
first priority.
Very frequently, events that are terrorist-related are not
isolated. We learned that painfully in the September 11
disaster, when, as a matter of fact, some American citizens who
were flying on the last plane, which landed on Pennsylvania
soil instead of Pennsylvania Avenue, they took the matter into
their own hands.
The first responsibility of the FBI is to learn what can be
learned and try to determine whether there is some other part
of this----
Senator Mikulski. If I have got some time here, let us take
the anthrax situation. Let us take, whether it was at Brentwood
or whether it was here with us, the FBI arrives on the scene.
The CDC arrives on the scene. The Capitol Police arrive on the
scene. We are leaving the scene. A lot is going on here.
Now, when the FBI arrived, did they evaluate, in looking at
their situation, did they say, our job then is to prevent the
next anthrax attack? What did the FBI do there and what did the
FBI do in New York? Was it looking to prevention? I am sure
there was an international alert and all of those things, but
do you see my point? What do they do when they arrive at the
scene?
Attorney General Ashcroft. Well, they try to secure the
scene and part of that securing the scene is to try and make
sure that we do not have additional people put in jeopardy, to
try and learn if there is additional explosives to go off,
whether there are charges placed or other things----
Senator Mikulski. Oh, you are in charge of the scene?
Attorney General Ashcroft. The FBI has a crisis management
responsibility. Until the scene is secured in that respect, the
FBI has that responsibility.
Senator Mikulski. Does it override a mayor and the police
and fire chief?
Attorney General Ashcroft. We believe that the FBI manages
the scene during the time of crisis, and we do not override but
we work with and help coordinate these efforts.
Senator Mikulski. Do you see my point?
Senator Hollings. I understand it.
Senator Mikulski. I appreciate the Attorney General, but I
think the FBI has a very mixed role here, and an honorable
role, so we are not disputing that. I do believe that
prevention, the FBI's role in prevention is absolutely
critical. I believe its expertise in explosives and other
things are absolutely crucial. Its international networks, et
cetera, are crucial. But it is also my observation that it is
the local executive and their first responders that are really
the initial being in charge. So we need a lot to talk about,
and Mr. Attorney General, we also look forward to talking with
you about the FBI, its preparedness in order to protect us.
I think my time is expired, but I really would like to
thank my colleagues. Our hearing tomorrow is in the morning and
we would invite you to be as vigorous as you want in the FEMA
questioning.
Senator Hollings. We thank you, Senator, for your
leadership and understanding of the duplicity here.
Senator Reed.
LIBERIAN DEFERRED ENFORCED DEPARTURE
Senator Reed. Thank you very much, Mr. Chairman. Thank you,
Mr. Attorney General.
Let me first thank you and commend you for your treatment
of the Liberian community in the United States. Last September,
at the direction of the President, you extended DED, deferred
enforced departure, for these people. We have a large
population of Liberians in Rhode Island, and as you well know,
for 10 years now, they have been in limbo. They came here with
temporary protective status. That has been revoked. Now you
have allowed them to stay. And as you are aware, I am sure, the
last 2 weeks have seen another turn for the worse in Liberia
with attacks on the capital and chaos.
I would like to work for a longer-term solution so that
every year, these people do not wait until the last hour and
you and the President have to step in and defer their
departure. I hope I could work with you on that, Mr. Attorney
General, and I wonder if you might give us some comments on
your perspective at the moment on the Liberian situation.
Attorney General Ashcroft. First of all, let me commend you
for your sensitivity to this problem. The compounding
difficulties, which are a result of recent developments do not
make the situation any easier. The current designation of the
Liberian deferred enforced departure designation expires on
September 29 of this year, and prior to that date, the
Immigration and Naturalization Service must coordinate with our
Department of Justice, with the Attorney General's office, with
the National Security Council and the Department of State to
determine whether or not we should further extend. I can
imagine that it is very difficult for individuals to look down
into the future and not know whether there is going to be an
extension or not.
I would be very happy to confer with you about any attempt
that you wanted to make, and I understand that you have filed
bills to help resolve this. I guess that another bill has been
filed in the House. Has Congressman Kennedy done so?
Senator Reed. That is right.
Attorney General Ashcroft. I would be happy to confer with
you about those measures. The situation obviously is chronic.
It is not something that just has arisen and has gone away. It
is a long-term situation and it is one which, if something is
not done on the long term, we are going to have to keep dealing
with it on an interim and short-term basis.
NICS--GUN SHOW LOOPHOLES
Senator Reed. Thank you, Mr. Attorney General. Let me turn
now to another issue with respect to the war on terrorism.
After September 11, you sent to the Hill numerous pieces of
legislation designed to give you the full panoply of authority
to preempt and prevent terrorist attacks. But from my
standpoint, there was one glaring omission and that was the
failure to recommend the closing of the gun show loophole.
As you well know, in many parts of this country, unless the
State has a background check law, a private seller at a gun
show is not forced or required to conduct any type of
background check on a potential purchaser, and this is not just
an academic situation. In September of last year in Detroit,
Ali Boumelhem was convicted of illegally obtaining weapons
which he shipped to Lebanon, apparently for the benefit of the
Hezbollah. He was using his brother to buy weapons from a
licensed dealer because he was a felon and could not survive a
thorough background check. It turns out that prior to 1998, he
would buy the weapons himself, simply lie about his felony, and
since there was not a NICS check, he got away with it.
In addition to that, there have been reports that last
November, Conor Claxton, a man accused of being a member of the
Irish Republican Army, testified in Federal court in Fort
Lauderdale that he and his associates had gone to south Florida
gun shows to buy thousands of dollars worth of handguns,
rifles, and high-powered ammunition to smuggle to Northern
Island.
On October 30 in Texas, Mohammad Navid Asrar, a Pakistani,
pleaded guilty to immigration charges and illegal possession of
ammunition and authorities said that in the last 7 years, Mr.
Asrar had bought several weapons at gun shows, including
handguns and rifles. I do not know if he bought them from a
licensed dealer or a private dealer to be exact. He is
suspected to have links to al Qaeda.
So this is not an academic exercise. As you well know, too,
we have found in the safe houses in Afghanistan manuals that
instruct terrorists to exploit our lax gun laws, and so I would
hope that we could deal with this issue promptly as we have
dealt with so many others by closing the gun show loophole in a
comprehensive way and I wonder if you could give me your
thoughts on that.
Attorney General Ashcroft. First of all, I agree with you
that we need to make sure that we keep the guns out of the
hands of these individuals who would terrorize and disrupt our
freedom. In the event that the Congress makes changes in that
respect, I will enforce those changes substantially.
I have taken steps on my own to direct better enforcement
of our laws which prohibit the acquisition of guns by illegal
aliens. I have directed in the NICS system that the immediate
determination rate be improved so that we will improve our
accuracy to ensure that prohibited persons, including
prohibited aliens, do not receive firearms in violation of the
law. I requested that the FBI send all non-citizen firearm
purchase requests to the INS Law Enforcement Support Center to
check against INS databases. The FBI expects this process to be
fully automated by late fiscal year 2002, so sometime close to
fall. All non-citizen checks will be delayed until all the INS
systems are queried and the responses evaluated by the FBI so
that we do not have people falling through the cracks. The FBI
estimates that approximately 3 percent of the incoming call
volume will be sent through this procedure of special checks
with the INS. Only NICS checks for non-citizens will be
affected by this process, not other NICS checks.
In addition, I would cite two improvements that are made,
not to say that others could not be made, but on June 28, I
directed the FBI to increase to the fullest extent practicable
the percentage of NICS checks resulting in an immediate
response of ``proceed'' or ``deny,'' because if there is too
much lag, it is just a ``proceed'' that comes as a result of no
action.
In September, the FBI implemented an enhancement to the
NICS system, a logarithm that filters out false positive hits
and records erroneously matched records, pardon me, erroneously
matched to descriptive data of the purchaser against the NICS
database. As a result, the NICS immediate determination rate
has increased by 5 percent so that we do not have an absence of
determination, which results in an inappropriate authorization.
So I think this is a challenge and one that we need to work
on and I am doing administratively what I believe we can do to
keep the guns out of the hands of those prohibited aliens.
Senator Reed. Mr. Attorney General, if I understand the
system, if one was a non-citizen, approached a private seller
at a gun show in a State without a background check, none of
these provisions would be triggered at all?
Attorney General Ashcroft. If the person is not a federally
licensed vendor, you are correct.
Senator Reed. And that is the whole purpose of the gun show
loophole bill, to apply to these non-federally licensed
vendors, so----
Attorney General Ashcroft. Licensed vendors at gun shows
are already covered.
Senator Reed. I commend you for your enhancement of the
licensed dealers. The hole, the vulnerability, the gap which
this very, very astute and ruthless terrorist organization
looked to and tried to exploit is the non-licensed dealers.
Attorney General Ashcroft. The President supports closing,
I believe, the gun show loophole as you describe it.
Senator Reed. So you would support legislation that would
close the gun show loophole?
Attorney General Ashcroft. This administration does support
closing the gun show loophole.
Senator Reed. Would you send a proposal up here? I already
have a very good proposal, but you might consider looking at
it.
Attorney General Ashcroft. Thank you.
Senator Reed. Thank you, Mr. Attorney General. One more
issue with respect to this whole area, because I believe it is
an important one. I believe you, from your response, obviously
understand how important it is.
NICS CHECKLIST
After September 11, I met with some officials from the
Department of Justice and the Bureau of Alcohol, Tobacco and
Firearms. They indicated to me that immediately after September
11, the audit log of approved gun sales was checked under the
NICS system with the Government's terrorist watch list. That
also was reported in the New York Times. And so it was clear
that in the wake of the tremendous crisis, in the wake of
looking everywhere for possible terrorists and terrorist
attacks, these NICS records were deemed to be vitally important
to be looked at.
But you intervened shortly thereafter to prohibit any type
of comparison of terrorist watch lists and NICS records. You
indicated your interpretation of the law that such a comparison
was not appropriate. I will disagree on that issue, but it
raises a fundamental question.
Again, in the space of all of these proposals to
aggressively attack terrorism, you did not send a proposal up
here to ask Congress to clarify the use of the NICS list in
comparison with the terrorist watch list. Would you be in favor
of doing that? I know Senator Schumer and I are sponsoring
legislation to affect that or clarify the situation.
Attorney General Ashcroft. May I just clarify a moment what
I believe happened?
Senator Reed. Yes, please.
Attorney General Ashcroft. At the request of the Bureau of
Alcohol, Tobacco and Firearms, ATF, about 180-some names were
checked against the NICS audit log, which includes information
about approved gun transfers. The counsel at the FBI developed
reservations about that in light of his belief, which I believe
to be appropriate, that the law prohibits the use of NICS
records for anything other than auditing the NICS system with
one exception. If in auditing the NICS system you detect a
violation of the law, that can be referred for prosecution.
If that law is to be changed, I believe that it will have
to be changed statutorily. And in the event that it is changed
statutorily, we would have continued--were it to be changed, we
would continue on a course that had originally been started but
was withdrawn when counsel for the FBI decided that it had not
proceeded appropriately.
It is my understanding that I intervened in that setting.
It is my understanding that counsel for the FBI said, wait a
second, we are outside the limits of our authority and we are
in a prohibited area in accordance with the law which was
enacted relating to NICS.
Senator Reed. Thank you, General, for clarifying the
situation, but as I understand the situation now, the operative
rule is that these lists cannot be compared--the NICS list
cannot be compared with a terror watch list. Is that the
operative rule today, the law?
Attorney General Ashcroft. When the NICS process is made,
checking whether or not to issue a gun, the NICS system can
inventory databases to find out if the individuals are
ineligible. But any NICS record that is maintained is not
eligible after that point for subsequent cross-reference to
other investigative efforts.
Senator Reed. Just a final point to clarify my
understanding. You said in your response that the ATF had
requested access to the NICS list to check some type of watch
list, that you did not intervene, but that the counsel for the
FBI intervened and stopped that process so there was no cross-
checking of lists. Am I led to believe that if----
Attorney General Ashcroft. I think there may have been some
cross-checking done----
Senator Reed. Right, but it was terminated----
Attorney General Ashcroft. It was terminated----
Senator Reed [continuing]. Before it was complete.
Attorney General Ashcroft. That is correct, and I would be
corrected if my staff were to tell me that I had intervened,
but I thought that the FBI counsel----
Senator Reed. No. No. Mr. Attorney General, I do not want
to leave that suggestion if it is not supported by the facts.
The point I want to establish, I want to understand what the
law is today because you seemed to imply in your response that
except for the inhibitions of the FBI general counsel, this
process would have continued, and then I thought I heard you
say----
Attorney General Ashcroft. No. No. I agreed with his
judgment on the statute.
Senator Reed. Okay.
Attorney General Ashcroft. I need to clarify one other
thing----
Senator Reed. Yes, Mr. Attorney General?
Attorney General Ashcroft [continuing]. Which my staff is
helping me on this detail. Denials in the NICS system are
available for----
Senator Reed. These are the approved purchases we are
talking about?
Attorney General Ashcroft. It is approved purchases, and
persons who are denied and subject to prosecution for
attempting to purchase a gun illegally.
Senator Reed. Again, I think our exchange at least suggests
an ambiguity in this issue which might require legislative
correction, and again, your support for such would be
appreciated.
Attorney General Ashcroft. Thank you.
Senator Reed. Thank you very much, General.
Senator Hollings. I am delighted to recognize our former
chairman, Senator Domenici.
COUNTERTERRORISM RESPONSIBILITIES
Senator Domenici. Thank you very much, Mr. Chairman.
First, I want to say to the Attorney General, in this new
war we have, the war on terrorism, you have a very big job and
the Justice Department has a lot of responsibility. I commend
you for the way you have handled the job so far and, hopefully,
you will remain vigilant and things will continue to break our
way under your leadership.
This subcommittee has a lot to do with the success of your
office in the war on terrorism. People talk about how we are
going to engage America in this war, and right here at this
table in this subcommittee, when we finally write up this
appropriation bill, we will have a lot to do with how we are
going to engage ourselves in this war.
While that is going on, there are a lot of programs that
are part of the great American ongoing scene that you have to
fund and operate. I have at least 8 or 10 that intrigue me and
that I am interested in, some of them having New Mexico
impacts. I am not sure I will get them all asked. If I do not,
I will bundle them up and submit them to you and would ask that
you submit your answers to the committee in whatever the
chairman says, 10 days, 2 weeks, whatever is his requirement.
Attorney General Ashcroft. We will try and be very prompt.
MENTAL HEALTH COURTS
Senator Domenici. I want to quickly cover mental health
courts and just say to you that we are experimenting across the
land with a very small program, $4 million, to set up mental
health courts. It is only for misdemeanors, but I think people
would be shocked in this country if they knew that the jails of
our cities and counties house more mentally ill people than do
our hospitals or institutions that we have set up in an effort
to help the mentally ill. There are more of them in our jails,
in our county jails, in particular, than there are in our
hospitals, which is a rather frightening approach indicating
that America has got some resources that it ought to put in the
right places.
We started with mental health courts and I would like to
ask you if you would have your staff give you a quick briefing
on the mental health courts and ask if you could see your way
clear to support them. They are new. They will handle
misdemeanor cases. What happens is the entire framework of this
small court system, of this new mental health court program,
gears itself to the problems of misdemeanors of mentally ill
people. There is a special way to treat them, a certain kind of
help that is available. I think it is a very small amount of
funding to put up, even though you are burdened with many
programs, to see if we cannot do better in this area. Would you
comment on that, please?
Attorney General Ashcroft. First of all, I am very pleased
to ask my staff for an additional briefing on this matter. One
of the things that is a responsibility of our judicial system
is to try not just to punish the offender, but to prevent
future difficulties. In remediating offenses of those who are
mentally ill, sometimes the close supervision that comes in a
so-called mental health court setting can be valuable. I
appreciate your mentioning it to me and will ask for additional
information in accordance with your request from those who are
responsible in the Department for these issues.
VAWA--NEW MEXICO
Senator Domenici. I thank you very much. Now on behalf of
the State of New Mexico, I want to ask you--I will submit this
narrative also so I will not have to use the time of the
subcommittee, but New Mexico has been denied funding in its
efforts with reference to violence against women. We have an
office, like most States do, with reference to violence against
women. It turns out that New Mexico's statute, which is
supposed to enable us to receive the money, is not written
exactly as your lawyers think it should be written. Therefore,
New Mexico is being denied its grant because we have not met
the statute properly and have not passed legislation that puts
us in a position to qualify.
I think the denial under those circumstances, especially
since the grant was given heretofore with the same facts, it is
more than we ought to take as a State. I would ask you if you
would consider it a good faith effort, and if you would, give
New Mexico a 1-year waiver so they might proceed and not lose
the money while they get together with the State legislature
and attempt to rectify the statutory shortcoming.
Attorney General Ashcroft. I am aware of this unfortunate
situation. It is my understanding that the State legislature
recently passed domestic violence legislation necessary to
comply, and if they have not, that is another situation. But it
would be very pleasing to be able to rectify this, and absent
their having done so, I will consider your request.
Senator Domenici. I believe you will find that they have
not rectified it.
Attorney General Ashcroft. They have not.
Senator Domenici. They are out of session. They do not come
back in until a call and there will not be a call this year. I
think we really ought not be left without the money, and if you
would take a look into this situation, we would appreciate it.
Attorney General Ashcroft. Thank you.
RADIATION EXPOSURE COMPENSATION PROGRAM
Senator Domenici. Thank you very much. You also have
another area, just to recognize the diversity of what you do, a
radiation exposure compensation program.
Attorney General Ashcroft. Yes.
Senator Domenici. Now, this is a very serious program.
Nobody wanted it at the beginning because it cost so much money
that subcommittees asked why they should be charged with those
large amounts of money when the budgeteers are not giving us
enough, nor are the appropriations chairmen giving us enough
money. But we have, one way or another, finally set this
program where it is sailing along. We had a very disgraceful
situation, as you probably know, where certain recipients,
entitlees, were walking around with IOUs in today's world,
literally an IOU from the Federal Government saying, we ran out
of money but we owe you as compensation under these particular
radiation exposure statutes.
I have a series of questions, following our attempt to set
this program straight with an amendment that I was privileged
to offer. I would ask you, if you can, for the record, to
submit to us information on whether all the IOUs have been
paid, for instance. Would you break down a category on the
number of claims paid State by State? There are about eight or
nine questions so that we will know that you are focusing on
the program, and you are getting on with spending the money
that is there.
You should know and the Senators should know, that after
all of this effort, we do have plenty of money because we have
open-ended it out of frustration. Since we do not know what the
amount is, we have said, as much money as you need to pay IOUs.
Do you have any observations regarding the program? In any
event, will you answer our questions so we will know the status
of the program?
Attorney General Ashcroft. I will answer your questions,
Senator, and my observation is that IOUs are a one-way street.
I do not think the Federal Government, when it comes time April
15, likes to get an IOU from you, so when we have to pay our
bills, we ought to give.
I would add that the enactment of the National Defense
Authorization Act for Fiscal Year 2002 ensures that funding
will be available to pay the claims----
Senator Domenici. That is right.
Attorney General Ashcroft [continuing]. Including $172
million in fiscal year 2002 and $143 million in fiscal year
2003. Our estimates, we believe that these amounts will be
sufficient to ensure that the Government actually pays the
meritorious claims of Americans who lost their health, and in
some cases, whose lives were lost.
I will be happy to receive the list of specific questions
and to make written responses to them. I think we are making
great progress, not as a result of any great work by the
Department, but the Congress stepped up to the plate here and
provided a basis for us to do this in a far better way.
Senator Domenici. I thank you very much, and I thank the
Senators here who helped when that amendment was offered on the
defense authorization bill and everybody supported getting the
IOUs paid. It seemed to be a situation you would not like to go
home and answer to your constituents. I told them I would never
come back to their area until it was fixed. It was fixed, and I
went back to see them.
SANTA TERESA PORT OF ENTRY
IOUs have left the scene.
I have two other questions with reference to ports of entry
in New Mexico that I will just raise briefly with you. We have
a little port of entry called Columbus. It desperately needs to
be open all day and all night because it is the only port in
that area that can handle that kind of a commercial load. We
need somebody to look at when you are going to be able to
provide the additional personnel needed for this port to do its
job.
We have a brand new port called Santa Teresa, which I am
stating so that your staff will know of my concerns. It has a
similar problem. It is underfunded and they have to cut back on
their services because we do not have enough staff to keep it
open.
I might say to my fellow Senators, when the United States
of America declares that we are going on alert, we all wonder,
what does that mean? I can tell you, with reference to ports of
entry, it means that they clamp down tremendously on those
going through. As a result, if you do not give them more
personnel, the lines get enormous and the backlogs get extreme
because we are on alert and we are checking the cars and trucks
more carefully than we would otherwise.
But nobody recognizes the problem they have with money, and
I am asking in this regard that you take a look. These ports
are really doing their job with way too little money in terms
of the personnel they need. Do you have an observation or
comment regarding either of these two ports?
Attorney General Ashcroft. Well, I spent some time on the
Southwest border, particularly in the El Paso sector and over
to Santa Teresa, which is--and we are pleased that we have that
facility there and it is an exemplary facility and there are
hard-working people there, but there is no question that it is
stressed. Inspectors from the El Paso point of entry have been
detailed to assist so that we could get to a 24-hour, 7-days-a-
week basis there at Santa Teresa. The two new positions are to
be deployed to Santa Teresa in this fiscal year, so we hope to
be making progress.
You are correct that when we go on high alert, it stresses
us and it stresses the country commercially. We came close to
having some of our manufacturing concerns in America be
incapable of continuing manufacturing because the part streams
that came from Canada and Mexico to these manufacturers were
curtailed. In a system of just-in-time inventory, you threaten
to be unable to continue.
So we will address these issues regarding Santa Teresa and
Columbus, did you say?
Senator Domenici. Columbus, yes.
Attorney General Ashcroft. I do not remember having been to
Columbus, and I hope that means I have not been there----
Senator Domenici. I do not think you would have. It is a
very small port, and if you went to the El Paso region, it is
quite a distance, about 1 hour and 15 minutes' ride.
Attorney General Ashcroft. I think we went to Santa Teresa,
which has got some new facilities there----
Senator Domenici. Brand new.
Attorney General Ashcroft [continuing]. Very nice
facilities. But we will work in this respect.
Senator Domenici. Thank you very much. Thank you, Mr.
Chairman.
Senator Hollings. Senator Murray.
Senator Murray. Thank you very much, Senator Hollings, for
having this committee hearing. I really appreciate the
opportunity to ask some important questions from the Attorney
General. Welcome to you for being here today.
Attorney General Ashcroft. Thank you.
DOD PARTICIPATION IN NORTHERN BORDER SECURITY
Senator Murray. Mr. Attorney General, last December, you
announced that the administration would send the National Guard
personnel to the northern border to help with border security
issues. This is an extremely important issue to my State.
People's lives have been impacted. The economy has been
impacted. We have a tremendous amount of traffic going back and
forth across the border that since September 11 has really
halted and slowed and caused tremendous distress to those
communities. So your announcement was extremely important and I
really appreciate the fact that some relief is on the way. But
more than 2 months have passed since that announcement and not
a single Guardsman has yet been deployed to the border.
Now, I have been working closely with Governor Ridge, the
Department of Defense, and the Washington National Guard.
Governor Ridge has been really good to work with. In the last
week, he has gotten personally involved in this and I really do
appreciate it. But it is kind of astounding to me, when our
borders are so important, and we all understand that now, why
it has taken 2 months for the northern border to get help and I
wish you could explain that to us on this committee.
Attorney General Ashcroft. Well, first of all, let me agree
with you that we need to have the right kind of inspecting
capacity and deployed resource on the northern border. We have
about 5,500 miles of border with Canada and we have had fewer
than 400 people staffing, manning that border, as opposed to
the Southwest border, which has about 2,000 miles and we have
had 9,000 people on the Southwest border.
Senator Murray. We are acutely aware of that in my State.
Attorney General Ashcroft. So we, in the midst of the
situation, and we have had some threats regarding even
terrorism. As you know, one individual, the millennium bomber,
came across the northern border in your area, and fortunately,
our sensitivity to terrorism and its potential allowed us to
intercept that situation.
But we were able to iron out the funding and other resource
allocation matters with the Department of Defense and the
memorandum of agreement, or MOA, was signed on February 15.
About 700 Department of Defense personnel will assist and we
should have those moving very quickly, now that the agreement
has been signed. But the Department of Defense, obviously, is
engaged in other very serious responsibilities and these--I
wish we had been able at an earlier time to reach the kind of
understandings about the deployment. We have been keenly aware
of both threats to our security that could exist and the
impairment to commerce that comes when you have to have a
setting where you do not have adequate personnel.
So we are going to have those individuals. They will be
assisting in physical inspection of vehicles----
Senator Murray. Do you know when they will be actually on
the ground in our States?
Attorney General Ashcroft. Senator, I think I have to--I
hear that the DOD personnel are expected to be in place in 2
weeks. I do not know if that means in Washington. I will be
happy to try and learn specifically when we can expect that to
happen.
[The information follows:]
National Guard Deployment
The Immigration and Naturalization Service (INS) signed a
Memorandum of Agreement (MOA) with the Department of Defense
(DOD) on February 15, 2002. Under this MOA, DOD will provide
port-of-entry security, perform physical examination of
vehicles, and manage traffic flow as well as provide limited
air and intelligence support to assist in monitoring potential
illegal activity along the northern border. All DOD personnel
providing support to the Border Patrol under the MOA were on
duty on the northern border by March 18, 2002. The support
consists of a total of 6 aircraft with 63 pilots and crewmen.
In addition, there are a total of 16 DOD personnel to support
the Sector Intelligence Centers (SIC).
One aircraft with 11 pilots and crewmen and 5 support
personnel for the SIC are assigned for duty in Washington
state. Mobilization of 29 DOD personnel to Washington state
ports-of-entry (POEs) to assist Immigration Inspectors began on
March 15, 2002. As of March 19, 2002, all 29 DOD personnel were
on duty at POEs.
LIMITATIONS ON AGREEMENT WITH DOD
Senator Murray. We would really appreciate knowing that.
One of my concerns is that the MOAs are only for 179 days. Do
you think that is an adequate amount of time?
Attorney General Ashcroft. Well, we have asked for the kind
of long-term commitment to the northern border in this budget
request that we believe we can hire long-term professionals as
part of INS, the Border Patrol, to undertake these
responsibilities. We believe that is an attainable and
achievable matter with what we believe will be the appropriate
resourcing.
Senator Murray. I agree with you, what we really need to do
is to get the Customs/INS/Border Patrol agents in place and not
just rely on the Guard, but I am concerned that 179 days will
not be long enough, particularly when budgets here take quite a
bit of time to get through and people need to be hired and
trained. Will you support us on an extension of that if 179
days proves to not----
Attorney General Ashcroft. I will do everything I can to
make sure that we secure the border properly, and I would be
willing to make a request for additional help.
Senator Murray. I appreciate that response.
Senator Hollings. You have actually got $25 million in here
for 285 Border Patrol agents to be transferred from the
Southwest border to the Northwest border. I just visited the
Border Patrol school down in----
Senator Murray. Last year's budget did make increases. We
need to make further increases in the budget today, but it is
going to take a while.
Let me ask you one other question on this. It is my
understanding that the deployment order for the National Guard
to the border will be conducted in accordance with Title X and
that the Guardsmen will be deployed without any weapons. Now,
my concern is that deploying these soldiers unarmed really
severely limits their ability to guard the border because it
will now fall upon the INS and the Customs Service agents to
protect the soldiers in addition to securing the border. Is
that how we envision the National Guard helping us and do you
support the decision to deploy the Guard under Title X?
Attorney General Ashcroft. Senator, the Guard is going to
provide assistance to the immigration inspectors, examiners,
and Border Patrol. We believe that that assistance is going to
be very valuable in helping us carry over until we can put our
own people there.
I am not in a position--I do not know. I will have to just
say, I am not sure what would be the need for or benefit to
asking the Guard to be armed. There is a little sensitivity
here that I think is important for us to note. The border
between the United States and Canada is not a militarized
border and we do not want to signal that it is and our friends
in Canada are sensitive appropriately that we do not signal
that we are somehow arming the border.
So one of the reasons we want to use conventional resources
promptly and Border Patrol and INS resources is that that,
again, puts us back in the sense of regularity about the way we
would enforce the border. It may be with that in mind that this
determination has been made, but the best part of my answer was
when I said I do not know, and I will have to try and get back
to you.
Senator Murray. I do appreciate that, but I think you
should know there is a concern that we are deploying a number
of people unarmed and it is not easy to be out there on a
border patrol, as I think you well understand, and I think
there is a concern that because this is under Title X that
unarmed personnel on the border will just mean that our Border
Patrol will have more people to protect. I would appreciate
hearing back from you when you know that.
Attorney General Ashcroft. Thank you.
[The information follows:]
Arming the National Guard
The position of the Department is that the National Guard personnel
activated by the Department of Defense (DOD) to provide support to the
Immigration and Naturalization Service (INS) on the northern border not
be armed. The reasons for this are:
--The DOD personnel assigned to provide aviation support to the
Border Patrol remain subject to DOD rules for the use of force,
which states that the soldiers will not be armed.
--DOD personnel assigned to support INS will not participate in the
pursuit, surveillance, search, seizure, apprehension, arrest,
investigation, interrogation or detention of any individual; or
any other form of law enforcement activity.
--DOD personnel will not be placed in a position or be required to
perform a task that calls for the use of force, lethal or non-
lethal.
--No DOD aircraft or aircrew will be required to land or conduct
operations in a ``hot'' zone.
--An armed INS Border Patrol agent will be transported aboard each
flight of DOD aircraft.
--An Immigration Inspector will directly supervise DOD personnel
while on duty at the port.
--The 16 DOD personnel supporting the Border Patrol Sector
Intelligence Centers will be working in an office environment.
REDUCTION OF THE COPS PROGRAM
Senator Murray. Mr. Chairman, I do not have much time yet
and I know Senator Mikulski asked about the COPS program. Let
me just reiterate my concern about that, as well, and the
program cuts to that.
We are asking a lot of our local law enforcement since
September 11. I have received dozens and dozens of letters from
our local law enforcement officers from all over our
communities who are deeply concerned that they are getting a
real double standard here, where we are asking a lot of them to
protect citizens in situations none of them envisioned a year
ago, and cutting the COPS program says to them that we are not
going to stand behind our commitment to help them. So I hope
that we can reinstate this program in our budget and that we
can do the right thing to support the cops that are working so
hard to protect our citizens today.
Attorney General Ashcroft. Thank you.
Senator Hollings. Very good. Senator Kohl.
Senator Kohl. Thank you very much, Senator Hollings.
Mr. Attorney General, good to see you.
Attorney General Ashcroft. It is a pleasure to see you.
PROJECT CHILD SAFE
Senator Kohl. Mr. Attorney General, in last year's CJS
bill, we included a provision calling for the Justice
Department to develop a safety standard for child safety locks
and to report to Congress by January 15. This standard has not
yet been developed, and until it is, no Federal funds can be
spent for the distribution of safety locks. We included this
language after the Consumer Product Safety Commission released
a study which found that 30 of the 32 safety locks then
available on the market could not pass the most basic safety
tests.
While we continue to believe that the purchase of a safety
lock should be mandatory, we also strongly believe that the
locks, obviously, must work. Can you tell us which experts the
Justice Department is working with to write the report and can
you tell us when it will be completed?
Attorney General Ashcroft. First of all, I thank the
Senator for this inquiry. The Office of Justice Programs has
been working with the Consumer Product Safety Commission and
with a group known as the American Society of Testing and
Materials to develop the national standards for gun safety
locks. I have been told that those standards should be
available in the next 60 days, sometime during April of this
year, and I would hope that that is an accurate forecast. I
know that it was mandated by January, but they are obviously
not here.
Senator Kohl. So are you saying that----
Attorney General Ashcroft. April is the projected date, and
we are working with the Consumer Product Safety Commission and
the American Society of Testing and Materials in the
development of the standards.
SAFE EXPLOSIVES ACT
Senator Kohl. All right. Thank you so much.
Mr. Attorney General, as you know, Senator Hatch and I have
introduced legislation that creates uniform Federal regulations
for the sale or purchase and the possession of explosive
materials. In some States today, it is easier to get enough
explosives to take down a house than it is to buy a gun, to get
a driver's license, or even to obtain a fishing license. The
Safe Explosives Act that he and I authored would extend the
same requirements currently in place for interstate purchases
of explosives to intrastate purchases.
Mr. Attorney General, can you tell us whether the Justice
Department supports this legislation?
Attorney General Ashcroft. First of all, we are in the
process of reviewing the legislation, which I think, if I am
not mistaken, that is the measure you submitted on February 14
with Senator Hatch and Senator Cantwell and maybe Senator
Schumer, I think were the parties. This certainly seems like
the kind of objective that we ought to be able to support and I
cannot announce a final conclusion on a study of the
legislation at this time, but we will continue to review it and
look forward to working with you on it. It is the kind of
objective that we ought to be able to work together on to
support.
REDUCTION OF THE COPS PROGRAM
Senator Kohl. I know that Senator Mikulski talked about the
COPS program and Senator Murray mentioned it herself. I do not
want to belabor it unless there is something that you have not
said yet with respect to that. All the indications are that the
COPS program has been successful. As you know, it is a way in
which we at the Federal level help to support the hiring and
deployment of officers, which is clearly a good thing, or at
least we all think it is a good thing. The 80 percent cut in
funding would indicate that you all do not think it is such a
good thing. Correct that misinterpretation if that is what it
is that I have.
Attorney General Ashcroft. Let me just say to you that I
think it is a good thing. I think it has worked very well. The
objective of the legislation was to make it possible for the
law enforcement community in America to understand and develop
100,000 new officers on the street. I do not know of a Federal
program that has been more successful in that respect.
Funding was, I think, for 111,000 eventually, and the most
important part about that was that as the funding expired, in
something like 92 percent of all the cases, the local law
enforcement officials said this was a good idea. The purpose of
the statute was to introduce us to the value of these
additional law enforcement officers, and we are going to pick
up that cost and continue with those officers.
So there are two groups of people that say that this has
been successful. One group says this has been successful. This
is a program that worked, that achieved its objective. Now we
can do some other things. Another group says, this is a program
that worked. It is successful. We ought to do more of this.
So, frankly, I think that is where we are. Certainly, the
Department of Justice is gratified by the success of this
program and I wish all of our programs had the 92 percent sort
of endorsement ratio of after having been in place, that they
were so successful that the local authorities thought they were
willing to put up the money to continue them. That is a
wonderful endorsement.
The decision on the part of the administration to do some
other things that relate to the Federal Government's
responsibilities with the resources is not a repudiation of the
success or value of the program, which I think everyone agrees
is one of the most successful programs we have ever had.
Senator Kohl. I do not know what to take of your answer, so
I am just going to sort of leave it there. I think you are
saying it is a great program, it has been a great success, and
we are moving in another direction, which is okay. I mean, I
appreciate that.
Attorney General Ashcroft. I think that is a fair
characterization, Senator. It accomplished its purpose. It said
to local law enforcement, try some of these people for a period
of time, see if they are worth it. They concluded that they
were. It demonstrated the fact that hiring more people makes a
difference in the quality of life and the level of crime and I
think----
Senator Kohl. Does it say that, in your honest judgment, we
have reached the limit of----
Attorney General Ashcroft. No, I think it says that----
Senator Kohl [continuing]. The limit of what success there
is in hiring additional law enforcement?
Attorney General Ashcroft. I think it says that it has
demonstrated very clearly that if you put additional resources
into the law enforcement mix, you can improve the quality of
life for people. That having been demonstrated, for local
decision makers, they need to decide whether they want to put
more resources into law enforcement or whether they feel that
they are at the right level. The program initially was designed
to demonstrate that concept.
I think it is clearly and overwhelmingly understood. A 92
percent endorsement rate backed by funding at the local level
indicates that the law enforcement officials know and local
decision makers know that if they want to devote additional
resources, they can probably expect to see additional return in
public safety.
Senator Kohl. I thank you. I thank you, Mr. Chairman.
Senator Hollings. I thank you.
Senator Leahy, the chairman of our Judiciary Committee as
well as a distinguished member of our Appropriations Committee.
Senator Leahy. Thank you.
Senator Hollings. Like Kato's famous couplets, you can make
your own little laws and sit attentive to your own applause.
Senator Leahy. I am impressed, Mr. Chairman. I really am. I
will wait for the full translation of that. We Northerners have
to work on that accent just a bit.
Senator Hollings. Oh, yes. That is all right.
Senator Leahy. I actually served with the distinguished
Senator from South Carolina for over a quarter of a century on
this committee.
Attorney General Ashcroft, I apologize for not being here
earlier. I am also the chairman of the subcommittee that
handles foreign aid and the administration was testifying on
the foreign aid budget and I was at that.
POSTCONVICTION DNA
I will put my full statement in the record. I do appreciate
these hearings, Mr. Chairman. I have written a number of
letters over the past several months to the Department of
Justice and I realize we have had some difficulty with the
mail, but almost miraculously, within hours of this hearing,
all these--I have been waiting for answers for several months--
they suddenly got answered.
In fact, I received one letter I sent 6 weeks ago
concerning the Department's decision to set aside its plans to
offer $750,000 in grant money for postconviction DNA review
programs. I just want to make sure I understand the answer. I
had asked the question, does the Department intend to use
alternative funds for postconviction testing grants? The
response said you have asked NIJ to look into DNA initiatives.
Is this a way of just saying we are not going to spend a dime
on postconviction DNA testing? I realize out of a $30 billion
budget it is $750,000, but insofar as that was specifically in
legislation, what is going to happen?
Attorney General Ashcroft. First of all, I agree with you
that these hearings are valuable and they do provide a basis
for a better service through the mail.
My staff indicates to me that a number of your letters were
answered very recently, and that is appropriate.
Senator Leahy. It focuses one's attention.
Attorney General Ashcroft. Thank you. Just to give you an
idea, in terms of what we requested for DNA work in the next
year's budget----
Senator Leahy. No. No. What about the $750,000 that is
there now?
Attorney General Ashcroft. The $750,000, I believe, is the
money that was allocated to assist New York in identifying
victims that died in the World Trade Center----
Senator Leahy. We voted tens of billions of dollars to make
available for New York and elsewhere in post-September 11. Out
of those billions of dollars, there was not money for that DNA
testing, or the $20 billion that the President reassured New
York they were getting, there was not money for that? We had to
take it out of the postconviction DNA program? Is this just a
nice way of saying, hey, we do not like that program, so let
us----
Attorney General Ashcroft. I think it is----
Senator Leahy [continuing]. Cloak it in terrorism and say
we are going to give it somewhere else?
Attorney General Ashcroft. No, I do not think that is an
accurate characterization.
Senator Leahy. I am just asking. I am just a lawyer from a
small town in Vermont and I do not understand how you figure it
in the big city, but it just seems to me that out of the
billions of dollars for post-September 11 terrorism things that
we could have found the money there and not had to take it out
of this program, which had been specifically authorized.
Attorney General Ashcroft. I have asked about this and the
answer that I have been given is this, and I believe it is the
appropriate answer, that the Director of the National Institute
of Justice had some concerns about the $750,000 project, about
the methodology and the usefulness of the eventual findings
from the proposed research project, which would have provided
almost no funding for the actual testing of convicted offenders
for DNA.
Moving this resource to provide and meet these other needs,
I think, reflects not a repudiation of the value of
postconviction DNA studies, but it reflects the fact that this
did not appear to be a study which was going to return the kind
of value on postconviction DNA that was appropriate and,
therefore, was seen as an opportunity to support the effort to
assist the identification in the World Trade Center.
Senator Leahy. Are we ever going to have money for
postconviction DNA testing?
Attorney General Ashcroft. In our proposal for this year,
next year, pardon me, fiscal year 2003, the DNA breakout is
convicted offender backlog reduction, which is a postconviction
sort of thing, $15 million requested; DNA no-suspect backlog
reduction, that is where you have DNA from the crime scene, at
$25 million; a DNA lab improvement program, $35 million is
requested; and DNA research and development, $5 million is
requested. Now, all of those----
Senator Leahy. But there is no money in between now and
then?
Attorney General Ashcroft. Okay, yes.
Senator Leahy. It is a heck of a note if you are on death
row and it comes up prior to----
Attorney General Ashcroft. Let me go over this year's
resources. The convicted offender backlog reduction component
is $26 million that is available this year. The DNA no-suspect
backlog reduction amount this year is $35 million. The DNA lab
improvement is $35 million. And the DNA research and
development fund is at $5 million again for this year.
Senator Leahy. All right. Let me ask you an area where I am
not sure I fully understand your answer, Attorney General, but
let me do a follow-up question and hope I get the answer prior
to our next budget hearing, or maybe we will have an
authorizing committee hearing.
NORTHERN BORDER SECURITY
I know Senator Murray asked about the northern border and
the Justice Department budget calls for substantial increases
in funding for border security. That is something I have called
for for years, certainly especially since September 11. In
fact, I included language in the PATRIOT Act authorizing
tripling the number of Border Patrol agents, INS inspectors,
Customs Service officers. The President's budget builds on what
we did in the appropriations bill last year, Mr. Chairman, and
I think that is on the right track.
I note your budget calls for half of the new Border Patrol
positions to be on the northern border. It is silent about the
percentage of new INS inspector positions to be assigned to the
northern border. Why not a similar earmark for inspectors? Are
they needed?
Attorney General Ashcroft. Well, let me say this, that I
believe inspectors are needed on the northern border. We are,
as I mentioned to Senator Murray, eager to have the assistance
of the National Guard troops to assist us with inspections and
other processing at the borders. We need for those borders to
be open and working and regular and free-flowing and secure all
at the same time.
I have visited the northern border with that in mind and I
was distressed in my recent visit to see people reassigned from
the rest of the country there. So I know that filling in there
has made it difficult across the board now.
Senator Leahy. But General, I live an hour's drive from
that same northern border and you could send up National Guard.
They are not trained the way Border Patrol are. They are
certainly not trained the way INS inspectors are. I can tell
you right now, not from any expertise but just going to that
border, we need INS inspectors, we need Border Patrol, both,
not just from a security point of view but from a very
significant economic point of view.
Canada is our largest trading partner. Talk with your
fellow Cabinet member, Secretary Abraham, and ask him what
happens with Michigan, for example, if you cannot move things,
a free-flow through. That is going to affect all the way down
into your State of Missouri. It is not just security. We want
people to move back and forth, plus the fact that we have a
wonderful advantage of having a country as friendly as Canada
next to us.
We authorized, for example, $50 million for INS to improve
technology for monitoring that northern border and to purchase
additional equipment. Does your budget request money under that
authorization? These are the things I would think we need.
Attorney General Ashcroft. The President's budget on the
northern border would reflect about a 148-percent increase over
the authorized individuals from the year 2001. In particular,
in the next year's budget, we are seeking an enhancement of 150
individuals in inspectors on the northern border. We are----
Senator Leahy. Are those INS?
Attorney General Ashcroft. Yes, sir. The use of the
National Guard is not to suggest that we think the National
Guard has the capacity to do this with the expertise of the
INS. It is designed to be a fill-in measure to try and help us
in a stopgap way pending the development of the additional INS
resources and the training and the hiring which is obviously a
challenge.
Senator Leahy. I would ask that you look very closely at
that, because you and I are in agreement. It should not be the
job of the National Guard. I have great admiration for the
National Guard. I am the co-chairman of the Guard Caucus. But I
want them for the things they are trained to do. They have
helped out since September 11. Within a matter of hours, the
Vermont National Guard was flying patrols around the clock over
New York City, our F-16s based out of Burlington, Vermont,
armed with sidewinders. They did that for a very long time. The
Guard in your State of Missouri has been one that has responded
very well. They all do.
But we need INS inspectors, we need Customs agents, we need
those who are trained for this very specialized thing. Just as
we could not ask them to go out and do some of the things the
Guard does, it is not good to have the Guard be asked to do
that when we can put these personnel along our northern border.
STATE AND LOCAL ASSISTANCE GRANTS
The administration is going to repackage a number of
Justice Department grant programs, cutting their funding.
Programs targeted for elimination include the State and local
law enforcement block grants, they got $400 million, I believe
this year; Byrne law enforcement block grants for efforts to
improve our State and local courts, and they got, what was it,
about $500 million this year. The plan would cut more than $1.6
billion from the $2.5 billion appropriated this year for State
and local law enforcement grants put into a new $800 million
justice assistance program.
It would be very serious, coming from a rural State. We
rely, a lot of rural States, a lot of rural areas of large
States rely on these grants to combat crime. They have proved
very, very effective for State and local law enforcement
agencies. How does this new justice assistance program, which
results after you cut $1.6 billion out of the money we give to
local and State law enforcement now, how does this really help?
Attorney General Ashcroft. Well, we believe the program
will be an effective program of assistance with the kind of
flexibility and capacity of the recipient governments to
enhance security. There is obviously a need for us to do some
things federally that we have not done, and as we seek to find
ways to have the resources to do federally, it is not as
possible for us to be as generous as we might otherwise be with
funding in providing assistance at the State and local level.
Senator Leahy. But you were a Governor and you were an
attorney general of your State. I was a State prosecutor. We
both know that in law enforcement, most law enforcement is done
at the State and local level and done best and our people want
it done that way. I mean, you like to know that you can call
your local police department or you can have your local
district attorney respond or your sheriff or State police or
whatever else.
I think you may very well want to look at that, because I
know that the Congress is going to look at the fact that do we
really improve the safety in the small towns of Missouri or
Vermont or South Carolina or anywhere else if we are cutting
back on the, whether it is the Byrne grants or anything else
that have gone to those small communities or to the States.
I would suggest you look very closely at that because I am
not convinced that that is going to improve law enforcement. I
mean, we have seen crime come down every year for 8 years, but
part of that has been because of our dramatic increase in money
to the COPS program and other things over those 8 years to
help.
TRILOGY
One other area I would ask you to look at is an FBI
initiative, I think it is an extremely important one, the
Trilogy program to upgrade their information technology. The
counterterrorism supplemental for 2002 included almost $250
million for advanced computer equipment and software. The FBI
has requested another $109 million in fiscal year 2003. But the
law requires--as important as this is, the law requires you,
that is, as head of the Justice Department, and the FBI to
submit quarterly status reports on Trilogy. That is in the
fiscal year 2001 law. That has not been done. Will you be able
to start providing a current status report on Trilogy?
Attorney General Ashcroft. Senator, I will have to get back
to you on what the situation there is. I can----
Senator Leahy. I know you want to follow the law. We just
want----
Attorney General Ashcroft. I do want to follow the law. It
is my responsibility to enforce the law. Frankly, I want to be
very responsive to you and to members of this committee and to
the United States Congress. I have a great respect for the law.
The delivery of Trilogy software has not been delayed. The
expedited network and desktop rollout will help the FBI. Let me
make an inquiry about the appropriate reports and let me make a
report as promptly as I can. I will be happy to do that.
[The information follows:]
Status Report on Trilogy
The Department of Justice (DOJ) appreciates the support
that Congress has given its Trilogy information technology
upgrade project, and understands the oversight role that
Congress plays in ensuring that the large amount of funding
that it has provided is used appropriately. Indeed, Trilogy is
one of the FBI's top priorities, and it must be managed and
executed properly.
The fiscal year 2001 Appropriations Act directed the FBI to
submit quarterly status reports on the implementation of the
Trilogy plan to the Appropriations Committees. The DOJ and FBI
take this reporting requirement seriously and have worked
diligently with each other and with the Office of Management
and Budget over the last year to comply fully with this
requirement and expedite the review process so that timely
reports can be transmitted to Congress.
The first quarterly report was transmitted to Congress on
June 29, 2001. The second and third quarterly reports were
jointly transmitted to Congress on February 26, 2002.
The fourth report was prepared by the FBI but did not
include the most recent information on accelerated Trilogy
implementation. Therefore, the FBI decided to submit it with
the fifth report to provide a more updated and accurate
description of the Trilogy program as it currently stands. The
fifth report reflects recent developments regarding Trilogy
acceleration and fully explains how the program has been
accelerated and improved to reflect the FBI's response to the
terrorist attacks. The fourth and fifth quarterly reports were
jointly transmitted to Congress on March 19, 2002.
In summary, DOJ and FBI take reporting requirement
responsibilities very seriously and remain committed to keeping
Congress informed on the progress of the Trilogy program. At
this time, DOJ has transmitted the first five quarterly status
reports to Congress. The FBI is currently working on the sixth
report.
Attorney General Ashcroft. May I just--I may have created a
wrong impression in response to one of the questions about
local law enforcement in saying that, in some instances, we
have had to allocate our resources to Federal responsibilities.
I think, overall in the President's budget, assistance to local
and State agencies will have a substantial increase. But as it
related to the programs you mentioned, some of them are less
than they were previously.
But I would be happy to present you and I will provide an
accounting of that, but I think it is between $1.8 and $2
billion of overall increase for State and local law enforcement
in the budget request this year in recognition of the point you
are making, that law enforcement at the local and State level
is very important to national security.
[The information follows:]
State and Local Funding
While there is a reduction and consolidation of DOJ state
and local grant programs, the Administration proposes an
overall increase in federal resources in fiscal year 2003 that
are targeted to support the state and local emergency first
responders. These federal funds are consolidated within the
Federal Emergency Management Agency's $3.5 billion request.
TOBACCO LITIGATION
Senator Leahy. How much total funding do we need to
continue the tobacco litigation?
Attorney General Ashcroft. We have asked in this budget for
about $25 million----
Senator Leahy. Is that going to be enough?
Attorney General Ashcroft [continuing]. For this year's
expenditures. That would be combined with perhaps other
resources to assemble the kind of database, evidentiary
database and the organization of the hundreds of thousands of
documents that are necessary. We believe that is an amount that
is appropriate to and will provide a basis for us to sustain
the lawsuit in this year, to continue the lawsuit and to
continue to prosecute the lawsuit vigorously.
Senator Leahy. If it is not enough, do you have other
sources where you can get money?
Attorney General Ashcroft. We have sources that have been
used previously that relate to the health care fraud and abuse
fund. I believe that is one of the sources that have been
tapped from other agencies that have provided available
resources to help sustain the cost of developing the
evidentiary basis for the trial.
Senator Leahy. Mr. Chairman, I will put my other questions
in the record, but I wonder if I might have the indulgence of
the Chair to ask one more question.
Senator Hollings. Sure, all you want. Go ahead.
CIVIL RIGHTS OF ARAB AMERICANS
Senator Leahy. How about Federal civil rights enforcement?
There were a rash of crimes against Arab and Muslim Americans
after September 11. Some were shocking. One, a man who shot, as
I recall, one person who was not a Muslim but he just shot him
dead. He was a Sikh. When asked why, he said, ``Because I am an
American.'' Well, that shames all Americans and I know you
share my views on that and I thought President Bush's
statements, strong statements against that kind of
discrimination against fellow Americans was very, very good and
I publicly praised the President for that and the Department of
Justice for speaking out on it, too.
Now, when you came before the Senate Judiciary Committee in
December, you said the FBI has commenced approximately 300
Federal criminal investigations involving post-September 11
attacks on Arab or Muslim Americans or others based on their
ethnicity, their actual ethnicity, or in some cases, of course,
their perceived ethnicity.
But you say that, to date, there have been only eight
Federal cases resulting from approximately 300 investigations,
so in about 97 percent, there were none. Even if you count all
the State prosecutions, there appear to be about 60 total cases
out of 300 investigations. Is that because there was nothing
there or is this because of a policy determination on such hate
crimes?
Attorney General Ashcroft. This Justice Department and this
administration will prosecute hate crimes vigorously whenever
the evidence provides a basis for that kind of prosecution. I
thank you for commending the President. His leadership was
immediate after September 11 in visiting mosques and convening
leaders of the Muslim faith. I personally visited mosques
myself and----
Senator Leahy. And I commend you for that, too.
Attorney General Ashcroft. We have worked with local
prosecutors in developing cases wherever that was appropriate
and wherever that was the right course of action. The
deplorable settings where individuals struck out, injured,
killed individuals based on ethnic differences is intolerable.
We have made every resource that we could possibly make
available to help in this respect devoted to it.
If you look carefully at the incidents, the graph of the
incidents was that early on, there was a higher, very high--
pardon me, let me be careful about this--the incidence of
offense was high at the early stages and went down dramatically
as we worked in the enforcement area. We will continue to work
with local authorities and with Ralph Boyd, the Assistant
Attorney General for Civil Rights and the Criminal Division of
the U.S. Attorney General's Office as well as the Criminal
Division of the Civil Rights Division of the U.S. Attorney's
office.
Senator Leahy. Would you ask them, then, to give me updated
figures on the number of complaints made, the number of
investigations made, but then the number of prosecutions that
resulted?
Attorney General Ashcroft. I will be very happy to provide
you with complete data.
[The information follows:]
Hate Crimes Since 9/11
The Federal Bureau of Investigation (FBI) initiates hate
crime investigations based upon receipt of sufficient
information from a source known to be reliable. Federal hate
crime statutes require a crime to be motivated by bias and
specify that the criminal behavior interferes with a
``Federally protected activity.'' The ``Federally protected
activities'' are specified in the statutes and must be present
for a federal prosecution. Additionally, some matters labeled
by the victims as a ``hate crime,'' are in fact ``hate
incidents'' that do not rise to the level of a criminal act
which fall within the FBI's civil rights jurisdiction.
Therefore, investigations are initiated only when, after
reviewing a complaint, it is determined that there is
sufficient information to establish that a crime was likely
committed and that potential federal jurisdiction exists.
The FBI has initiated 332 hate crime investigations
involving Arab/Muslim/Sikh-American victim individuals/
institutions since September 11, 2001. Since March 14, 2001, of
the 332 investigations, 167 cases are ongoing and 165 have been
closed. Additionally, approximately 85 individuals have been
charged with state or local crimes in connection with the
aforementioned 332 hate crime investigations.
The United States Attorneys' Offices do not track the
number of Arab-American victims. However, a new criminal
program category called Hate Crimes Arising Out of Terrorist
Attacks on the United States was created post September 11,
2001. From its inception through March 14th, 56 criminal
referrals have been received and 9 federal cases have been
filed under this new category.
HATE CRIMES LEGISLATION
Senator Leahy. Have you taken a position on S. 625, the
hate crimes legislation introduced by Senator Kennedy that was
reported out of the Judiciary Committee and was sent to the
full Senate?
Attorney General Ashcroft. No, we have not.
Senator Leahy. Will you be?
Attorney General Ashcroft. I do not know. I have not seen
the legislation.
Senator Leahy. We wrote to you about it. I got an answer
back that expressed support for another bill that was
introduced in a prior Congress. Would you be able to get me the
Department's position on S. 625?
Attorney General Ashcroft. We will be happy to receive your
request and respond to it.
[The information follows:]
Hate Crimes Legislation
The Department's position on the pending hate crimes
legislation is informed by our recent experience in responding
to bias-motivated crimes which have unfortunately arisen in the
wake of the tragic events of September 11. Since that date, the
Civil Rights Division, which prosecutes bias-motivated crimes
under several existing federal statutes, has investigated over
300 cases of alleged discriminatory backlash against
individuals perceived to be of Middle-Eastern origin, including
Arab Americans, Muslim Americans, Sikh Americans, and South-
Asian Americans.
Additionally, the Department recently indicted Darrell
David Rice for the 1996 murder of Julianne Marie Williams and
Laura ``Lollie'' S. Winans in the Shenandoah National Park. The
four-count murder indictment specifically invokes a federal
sentencing enhancement that was enacted to insure justice for
victims of hate crimes. In this case, the federal sentencing
enhancement provides for increased punishment if the fact
finder at trial or, in the case of a plea of guilty or nolo
contendere, the court at sentencing determines beyond a
reasonable doubt that Rice intentionally selected either victim
as the object of the offence because of the victim's actual or
perceived gender or sexual orientation. If convicted of any of
the charges in the indictment, Rice could face the death
penalty.
The Department of Justice appreciates the leadership
Senators Kennedy and Hatch, as well as other members of
Congress, have shown on the important issue of hate crimes.
Your leadership is reflected in the fact that the Senate
Judiciary Committee has now voted to send S. 625 to the full
Senate. As your question notes, in my previous responses to the
Committee I observed that then-Governor Bush indicated during
the Presidential campaign that he supported Senator Hatch's
proposed hate crimes legislation, which was introduced during
the 106th Congress and which shares several features with S.
625. As I explained in my earlier response, these common
features include provision by the Attorney General of
assistance in the investigation or prosecution of any violent
crime that constitutes a felony and is motivated by animus
against the victim by reason of the membership of the victim in
a particular class or group; grants by the Attorney General to
state and local entities to assist in the investigation and
prosecution of such crimes; and the appropriation of $5,000,000
for the next two fiscal years to carry out the grant program.
As you know, S. 625 is an important proposal which would
amend the federal criminal code in numerous significant
respects. The Department of Justice continues to review and
evaluate the constitutional and policy issues raised by the
proposed amendments to the federal criminal code in S. 625. At
the same time, we are continuing to fulfill our important
mission of enforcing the existing laws relating to bias-
motivated crimes that fall within federal jurisdiction.
Senator Leahy. Mr. Chairman, I appreciate this very much.
The hate crime things worry me very much as an American. I know
they do you. My maternal grandparents came to this country not
speaking a word of English and I know that they faced a lot of
prejudice because of that. Both my grandfathers were
stonecutters in Vermont. My paternal grandfather died when my
father was barely into his teens.
At that time, Vermont was a far different place. My father
used to, in looking for work, the signs were either no Irish
need apply or no Catholics need apply. The Italian side of my
family, again, the very same thing. I know from your own deep
faith how abhorrent you find those days, as I do.
But we want to make sure, all of us, whether in the
Department of Justice, the administration, or the Congress,
that we do not find ourselves going back to that kind of a dark
time in our country. We have gone way beyond that in Vermont,
fortunately. But the ability to judge people based on their
race or religion always lurks beneath the surface and we all
have a responsibility to make sure that this country, which is
founded on ideals that go way beyond that, stick to those
ideals.
Thank you. Thank you, Mr. Chairman.
Senator Hollings. Thank you, Senator.
[The statement follows:]
Prepared Statement of Senator Patrick J. Leahy
Mr. Chairman, I join you in welcoming Attorney General Ashcroft to
the Subcommittee today. During the past year the Justice Department has
confronted the unprecedented and daunting challenge of protecting the
United States against international terrorism in the wake of the
attacks of September 11, 2001, and the subsequent anthrax attacks. The
Justice Department, under the leadership of the Attorney General,
deserves credit for sustaining the confidence of the American people in
the government's ability to assure their safety.
I want to congratulate the Attorney General and the vast array of
law enforcement and other officials, for the completion of a peaceful
and secure Winter Olympics. I know that the Attorney General was
personally involved in making sure that security was strengthened for
public events away from the Olympics facilities.
While the Attorney General and I have not always agreed on
particular actions, I respect the strength of his commitment. We worked
together on the USA PATRIOT Act last year and demonstrated that the
Congress and the Executive Branch can work together to combat terrorism
and protect individual rights.
Today the Attorney General seeks to describe and justify a $30.2
billion budget request for the Department of Justice in fiscal year
2003, which includes $539.2 million to continue on-going initiatives
funded in the fiscal year 2002 Counterterrorism Supplemental. I support
the Administration's decision to give high priority to combating
terrorism, including border security. We have a duty, however, to take
a closer look at details that may not have been considered when the
Supplemental was adopted last year.
In addition, just in the last day, I have received seven responses
from the Department to outstanding requests for information about the
activities of various Department components. These hearings are very
useful in prompting responses, and I thank the Chairman for convening
the hearing and the Attorney General for his attention to my questions.
border security
The Justice Department's budget calls for increased spending on
border security, and that proposal is a step in the right direction. I
am confident that the Congress will continue on its path toward
fulfilling the goal that we included in the USA PATRIOT Act of tripling
the number of Border Patrol agents, INS Inspectors, and Customs Service
officers, and I am grateful that the Administration appears supportive
of that goal. The security of our borders is not and should not be a
partisan issue. We must all recognize that our northern border needs to
be made dramatically more secure, and we must be willing to provide the
necessary funding. This budget is a good start, and I hope we do more
to make sure that the Northern Border gets the additional personnel and
equipment it needs.
The Northern Border provisions added to the anti-terrorism bill,
enacted last October, authorize a tripling of border security on the
U.S.-Canada boundary. Efforts since then to begin implementing the
Northern Border provisions have originated in Congress and have met
resistance from the White House. The President's new budget plan is the
first movement by the Administration toward those goals. The budget
calls for a $1.2 billion increase for INS law enforcement efforts, from
$4.1 billion in 2002 to $5.3 billion in 2003. That increase would more
than double the number of Border Patrol agents and INS inspectors. In
his budget, the President has also said that new hiring should focus
particularly on the Northern Border.
The President also proposes a $300 million increase in the Customs
budget for staffing and technology. The President's focus on Northern
Border needs applies here as well and this subcommittee may want to
provide more direction to the Customs Service on where to display new
staff.
federal bureau of investigation
The Justice Department component with plans to grow most sharply is
the Federal Bureau of Investigation. Over a two-year period the FBI
budget will increase from $3.25 billion in fiscal year 2001 to $4.32
billion in fiscal year 2003. The Judiciary Committee held FBI oversight
hearings last year at which some members raised the questions about
whether the FBI needed more money or just better management.
Director Robert Mueller is making management reforms. He announced
the first phase of his FBI reorganization in December. I praised his
action as responding to the need to strengthen FBI intelligence,
security, and information management. He and Deputy Attorney General
Thompson are now taking a wider look at ways to streamline the FBI
responsibilities to enable greater focus on detecting prevention and
the investigation of terrorists. This may require a shift of certain
types of criminals to be handled by other federal agencies and state
law enforcement. The Judiciary Committee will hear from Mr. Mueller and
Mr. Thomson on their plans and the realignment of criminal law
enforcement tasks.
One of the most important FBI initiatives is the TRILOGY program
for upgrading the Bureau's information technology. The Counterterrorism
Supplemental for fiscal year 2002 included $237 million for advanced
computer equipment and software under the TRILOGY program, and the FBI
requests another $109.4 million in fiscal year 2003 for information
technology projects including TRILOGY. I support these investments.
From an oversight perspective, however, I am disappointed that the
Justice Department and the FBI have failed to submit quarterly status
reports on TRILOGY as required in the Appropriations Act for fiscal
year 2001. Such reports are especially important to monitor the
effectiveness of planning and testing for new software. I urge the
Attorney General to provide a current status report on TRILOGY to the
Congress as soon as possible.
Over the past seven years, the growth of the FBI's Joint Terrorism
Task Forces (JTTF) has strengthened national counterterrorism efforts
with full-time participation by other federal agencies and state and
local police personnel, co-located at dedicated facilities with support
funding in 36 FBI field offices. Director Mueller plans an increase in
these task forces to all 56 offices, and I support this plan. After the
September 11th attacks, you formed separate Anti-Terrorism Task Forces
were established by the Attorney General in each U.S. Attorney's
office. Former FBI executives have publicly raised serious concern that
the new Task Forces would ``undermine the capabilities of the nation's
primary agency responsible for the prevention and investigation of
terrorist activity.'' Although a memorandum from Deputy Attorney
General Thompson, dated October 25, 2001, indicates that FBI JTTFs
retain primary authority for operational and investigative matters not
related to prosecutions, the concern expressed by these former FBI
executives about the divided responsibility for investigations through
duplicative task forces should be addressed.
For example, the U.S. Attorneys' Anti-Terrorism Task Forces are
coordinating the current program for interviews of 5,000 nonresident
aliens using state and local law enforcement personnel. The results are
to be compiled in a new database for U.S. Attorneys being designed by
the Justice Management Division. The development of a new database
suggests a long-term investigative role for the U.S. Attorneys-led Task
Forces using state and local law enforcement personnel. The potential
for divided leadership and accountability is troubling. Moreover, it is
not clear whether the Attorney General's Guidelines for FBI
investigations would apply to the investigative activities of the U.S.
Attorneys' Anti-Terrorism Task Forces. These are all questions which I
look forward to discussing with the Attorney General.
improving state and local law enforcement
The Community Oriented Policing Services (``COPS'') Program has
been a resounding success since its inception in 1994, the COPS Program
has awarded over $7 billion in grants to law enforcement agencies,
putting more than 114,000 new law enforcement officers on the street,
and is credited for reducing the crime rate and getting more police
officers on the street. I support the full funding of the program to
keep COPS on course to fund an additional 36,000 law enforcement
officers by the end of 2005 to help maintain communities and reduce
crime.
The Administration's fiscal year 2003 budget cuts COPS by almost
$500 million. Congress appropriated $1,050,440,000 for the COPS program
for fiscal year 2002. Enactment of this budget would mean an end to
police hiring grants and school resource officers; and drastic
reductions in technology, equipment, and support staff grants on which
State and Local law enforcement agencies heavily rely. The request
proposes to cut the Universal Hiring Program by 100 percent, cut the
COPS in Schools program by 100 percent, and cut the COPS technology
program by 67 percent.
The overall budget for COPS does not increase, as the
Administration claims. It proposes to cut more than $1.6 billion from
the $2.5 billion appropriated for fiscal year 2002 for state and local
law enforcement grants, and, in an accounting shift, combines what is
left into a new $800 million Justice Assistance Grant program. The
budget request places that new grant under the COPS account, making it
appear as if overall COPS funds increase, when, in fact, they do not.
The Administration merely repackages many of DOJ grant programs, and
then cuts their funding.
Grant programs targeted for elimination include the State and Local
Law Enforcement Block Grants (LLEBG), which received $400 million this
year; Byrne law enforcement block grants for efforts to improve state
and local courts, which received $500 million for fiscal year 2002; and
aid for states incarcerating illegal aliens, which got $565 million
this year.
I also support full funding of the Edward Byrne Memorial State and
Local Law Enforcement Assistance Program to make grants to states, for
use by states and local units of government, to improve the functioning
of the criminal justice system, with emphasis on violent crimes and
serious offenders, and to enforce state and local laws that establish
offenses similar to those in the Federal Controlled Substances Act. It
has proven to be a highly effective and widely praised grant program to
state and local law enforcement agencies. For fiscal year 2002,
Congress authorized $594,489,000 for the Edward Byrne Memorial State
and Local Law Enforcement Assistance Program, of which $94,489,000 was
for discretionary grants and $500,000,000 was for formula grants under
this program.
The Bureau of Justice Assistance (BJA) makes Byrne Program funds
available through two types of grant programs: discretionary and
formula. Discretionary funds are awarded directly to public and private
agencies and private nonprofit organizations; formula funds are awarded
to the states, which then make subawards to state and local units of
government. I support maintaining the discretionary grant component of
the program.
The President's budget proposes to level-fund the Bulletproof Vest
Partnership (BVP) Grant Program at $25.4 million, even though, through
the Bulletproof Vest Partnership Grant Act of 2000, Congress authorized
$50 million for fiscal year 2003 for the successful program that
protects the lives of local and state law enforcement officers.
To better protect our nation's law enforcement officers, Senator
Campbell and I introduced the Bulletproof Vest Partnership Grant Act
which became law in 1998. That law created a $25 million, 50 percent
matching grant program within the Department of Justice to help state
and local law enforcement agencies purchase body armor for fiscal years
1999-2001. Senator Campbell and I sponsored the Bulletproof Vest
Partnership Grant Act of 2000 to build upon the success of this program
by doubling the annual funding to $50 million for fiscal years 2002-
2004. It improves the program by guaranteeing jurisdictions with fewer
than 100,000 residents receive the full 50-50 matching funds because of
the tight budgets of these smaller communities. For larger
jurisdictions with populations at or over 100,000, the program pays up
to 50 percent of each applicant's total vest costs, based upon any
remaining funds. Specific funding levels for larger jurisdictions are
determined once all applications have been submitted. Given the
projected number of eligible jurisdictions and the limited funds
available, the BVP already may not have sufficient funds to provide 50
percent for applications from larger jurisdictions. The law also allows
for the purchase of stab-proof vests to protect corrections officers
and sheriffs who face violent criminals in close quarters in local and
county jails. I support for the full funding of $50 million for the
Bulletproof Vest Partnership Grant Program for fiscal year 2003.
protecting civil rights
In contrast to the President's proposed budget, I support an
increase in funding for our nation's essential civil rights enforcement
agencies. This funding would allow the Department of Justice Civil
Rights Division to add positions to prosecute hate crimes, deter the
victimization of migrant workers, combat police misconduct, fight
housing discrimination, eliminate discrimination against persons with
disabilities, and protect fundamental opportunities. I am also
disturbed by what could be interpreted as a shift in focus away from
effective civil rights enforcement. Immediately after the September 11
terrorist attacks, the President addressed the nation and reminded us
all that racially, ethnically, and religiously motivated violence would
not be tolerated. I commend the President for his public words on this
critical issue. It is important that the President and Department of
Justice match this admirable rhetoric with real enforcement and
maintain the Department's longstanding leadership role in national
civil rights enforcement during these difficult and eventful times.
The President's proposed budget appears to fall short of the
rhetoric. While that budget calls for increased funding for many
components of the Department of Justice, these increases do not reach
the Civil Rights Division, the chief federal body charged with actually
enforcing U.S. civil rights laws. While I support efforts to fund
election reform in the states and provide education on hate crimes
enforcement to state and local authorities, these efforts are simply no
substitute for maintaining a vibrant federal enforcement role in
securing our most basic civil rights. These rights, all protected by
the enforcement efforts of the Civil Rights Division, include voting,
employment, housing, and disability rights as well as the rights of
institutionalized persons, protection against police abuse and
corruption, protection for victims of trafficking, and hate crimes
enforcement.
As one example, the problems of racial, ethnic, gender, sexual
orientation, and religious discrimination and violence, unfortunately,
stubbornly persist within our borders. We were reminded of these
problems by the rash of crimes against Arab and Muslim Americans after
the September 11 attacks. These acts, and indeed all acts of
discrimination, cut at the very heart of what the terrorists hope to
destroy in the United States our tolerance and our diversity. In recent
answers to questions which you provided based upon you December 6,
2001, appearance at the Senate Judiciary Committee, you note that the
FBI has commenced approximately 300 federal criminal investigations
involving post-September 11 attacks on Arab or Muslim Americans, or
others, based upon their actual or perceived ethnicity. You indicate,
however, that to date there have only been eight federal cases
resulting from these approximately 300 investigations. In short, there
has been no federal prosecution in over 97 percent of these
investigations. I would be remiss if I did not point out this
significant gap between the President's admirable rhetoric and the
enforcement actions of the Justice Department since September 11 and
ask why is it that the Department is prosecuting so few of these
violent crimes?
A second example where rhetoric has outstripped enforcement
involves the protection of voting rights. During your confirmation
hearing, you recognized that ``[v]oting is a fundamental civil right''
and pledged if confirmed that you would ``work aggressively and
vigilantly to enforce federal voting rights laws.'' You assured this
Committee that ``[i]t will be a top priority of a Bush Department of
Justice, part of what I hope would be its legacy.'' Unfortunately, the
President's budget request did not call for any additional resources
for the Department's Voting Rights Section, even though there have been
recent press reports critical of the Department's role in delaying a
redistricting plan for congressional seats in Mississippi are
disturbing.
combating cybercrime
Technology has ushered in a new age filled with unlimited potential
for commerce and communications. But the Internet age has also ushered
in new challenges for federal, State and local law enforcement
officials. These challenges were clearly evident as our nation's law
enforcement officials investigated the recent cyber hacker attacks.
Congress and the Administration need to work together to meet these new
challenges while preserving the benefits of our new era.
The Leahy-Dewine Computer Crime Enforcement Act, which authorized a
$25 million Department of Justice grant program to help States prevent
and prosecute computer crime, is intended to help States and local
agencies in fighting computer crime. Grants under the bipartisan law
may be used to provide education, training, and enforcement programs
for local law enforcement officers and prosecutors in the rapidly
growing field of computer criminal justice. All 50 States have now
enacted tough computer crime control laws. They establish a firm
groundwork for electronic commerce, and protecting this part of our
critical infrastructure. Unfortunately, too many State and local law
enforcement agencies are struggling to afford the high cost of training
and forensic work needed to realize the potential of State computer
crime statutes. I support funding for these important initiatives.
curbing drug trafficking and abuse
Drug use and abuse is a contributing factor to spousal and child
abuse, property and violent crime, the spread of AIDS, workplace and
motor vehicle accidents, and absenteeism in the workforce. The Senate
has already passed a version of S. 304, the Hatch-Leahy Drug Abuse
Education, Prevention, and Treatment Act to aid States and local
communities in their efforts to prevent and treat drug abuse. It
establishes drug treatment grants for rural States and authorizes money
for residential treatment centers for mothers addicted to heroin,
methamphetamines, or other drugs. This legislation also will help
States and communities reduce drug use in prisons through testing and
treatment. It will fund programs designed to reduce recidivism through
drug treatment and other services for former prisoners after release.
In addition, this bill will reauthorize drug courts and authorize
juvenile drug courts. Finally, the bill directs the Sentencing
Commission to review and amend penalties for a number of drug crimes
involving children. The bill will authorize $1.4 billion in
appropriations over four years. I hope that the Congress will send this
bill to the President soon and that the Justice Department will work
with us for full funding of the programs it authorizes.
improving forensic science services and reducing the dna backlog
Forensic science is widely accepted as a key to effective
administration of justice, but State crime laboratories are now
seriously bottlenecked. Backlogs in many laboratories have impeded the
use of new technologies, such as DNA testing, in solving cases without
suspects and reexamining cases in which there are strong claims of
innocence as laboratories are required to give priority status to those
cases in which a suspect is known. Timeliness and quality concerns in
the forensic science services threaten the administration of justice in
the United States. Two years ago, Congress passed the Paul Coverdell
National Forensic Sciences Improvement Act, which authorizes the
appropriation of $134.7 million for fiscal year 2003 to improve State
forensic science services for criminal justice purposes. Congress also
passed the DNA Analysis Backlog Elimination Act of 2000, which
authorizes the appropriation of $40 million for fiscal year 2003 to
reduce the backlog of untested DNA samples in our nation's crime labs.
I support full funding of each of these programs.
ENRON RECUSAL
Senator Hollings. General Ashcroft, with respect to closure
here on this Enron matter, you recused yourself not because you
had a conflict of interest but there could be an appearance.
Similarly, your chief of staff could be an appearance. All the
U.S. Attorneys down in the Southwest District of Texas have set
themselves aside so there could not be any appearance of a
conflict there. Yet you try to isolate yourself from reality
and give it to the Deputy Attorney General who has got an
appearance of a conflict in that he is coming from the firm
that represented both Enron and Arthur Andersen. You do not
want to leave all that work done and still have an appearance
of impropriety, I would think, is that not the case?
Attorney General Ashcroft. Sir, I am from this matter
recused, but it is my understanding that the career ethics
officials at the Department have indicated that this is not a
matter which would trigger additional activity. It is not a
matter for me to handle since I am recused from this issue.
Senator Hollings. No, you designated him. You did not
recuse yourself from that responsibility. You designated the
Deputy Attorney General and the law says under extraordinary
circumstances--you can go back. We had extraordinary
circumstances with Waco and that was all settled when the
Attorney General then appointed our friend, Senator Danforth
from Missouri, and he made his investigation and that ended all
the controversy about it.
Now you have got it all boiling up with respect to how
powers are going to be and who has got a conflict of interest
and everything else, so we could bring Mr. Thompson up. I am
confident that he is an honorable individual. I know he is from
an outstanding law firm. I think our friend General Griffin
Bell, the former Attorney General, heads up the firm, so I have
got no question about it. But to have him come and say, well,
only 2 percent of the work, or only 1 percent of the work, or I
never did any of that work, that was up on the 10th floor or
whatever it is, does not satisfy the public feeling in
response, because I am feeling it. I am trying to sort of
testify before you, giving you a chance.
We can haul him up. There is no reason to try to embarrass
him or drive home the point. You can clear it up immediately by
picking out an Archibald Cox or someone like that and then
there is no more question. That is what you intended to do when
you recused yourself. It was not to give it to somebody else
who needed to be recused, is that not the case?
Attorney General Ashcroft. I recused myself after carefully
reviewing the guidelines that are provided in the Government,
with the advice of the ethics professionals in the office, that
for me to persist would be inappropriate. I did so without
making any specific judgments about other individuals that
might have the same responsibility to make evaluations,
cooperating with the career ethics officers at the Department.
I did not make decisions for the other individuals who recused
themselves and obviously have not tried to make decisions for
those to supercede the judgment of the Career Ethics Office or
to interfere with the decision making in a matter about which I
am recused because I do not want to be involved in a matter
where it has been determined that I should not be involved.
Senator Hollings. And you determined that you should not be
involved on account of--you did not have a conflict of interest
with Enron. It could have been an appearance due to the
contribution they made in one of your campaigns, I think, is
that not the case?
Attorney General Ashcroft. Considering the totality of the
circumstances, we decided in conjunction with the ethics
officers that it was appropriate for me to recuse myself.
Senator Hollings. That almost sounds like the Fifth
Amendment these fellows are taking.
Let us go right to the job. You have got a full-time job
and Larry Thompson is the Deputy Attorney General in charge of
counterterrorism. He ought not to have any other thing on his
mind. And you are still the Attorney General. You cannot recuse
yourself from reality. You have got to get with the program and
make a decision. Now, if the decision is that that you have
made and it is going to stand, so be it.
FEMA TRANSFERS
Let me move to another thing that you and I are totally
familiar with, and that is, having been Governor, we have dealt
with disasters. Last year, I think FEMA had, of the 45
disasters, whether they were earthquakes or hurricanes or
tornadoes or what have you, forest fires, there was only 1 with
respect to terrorism, or the 2 at the Pentagon and in New York
on 9/11. We know that FEMA is now doing a heck of a good job
from what I can understand.
I remember way back with Hurricane Hugo, we had to sneak in
the marines from Parris Island to help us because they could
not come unless they were ordered to by FEMA, and similarly
with Hurricane Andrew. I will never forget, I was on the phone
with Governor Lawton Chiles at the time down in Florida saying,
hurry up, they are ready to go. They are right at Fort Bragg.
They are ready to fly in with tents, stoves, everything else,
set up a little city down there at Homestead, and it took him 4
or 5 days to get it through with FEMA, but we are doing a way
better job now. We have got it straightened out and there is
more or less a process developed for hurricanes and other
natural disasters.
Incidentally, since I mentioned Homestead, the first police
that you saw on TV that night after the weather had cleared
were police officers, 42 Spanish-speaking police officers from
the city of Charleston with generators, water supply, and
everything else. The police force of Homestead had been wiped
out. Their homes had washed away and they were trying to care
for their families. So they have helped us and we helped them
and a culture of cooperation has developed with that regard.
This particular subcommittee was asked to consider giving
State and local counterterrorism programs to FEMA by Vice
President Cheney and we considered it. However, we kept it
under the Attorney General's Office per the PATRIOT Act, that
was only signed on October 26, less than 4 months ago. The
Attorney General shall make grants described in subsections (b)
and (c) to States and units of local government to improve the
ability of State and local law enforcement, fire department,
and first responders to respond to and prevent acts of
terrorism. That is the first paragraph of the PATRIOT Act on
first responders.
Yet the President has submitted a budget that decimates
local law enforcement, decimates the cops on the beat,
decimates the school resource officers, and the first
responders. The Office of Domestic Preparedness (ODP) got $650
million in this particular budget, 2002's budget, but for next
year they get zero. It is my understanding that the response
that you have received of disapproval has been bipartisan and
unanimous from what I can learn. I have not heard anybody in
the Congress say this is a good idea, or in law enforcement.
We just had a hearing last week on security, seaport
security to be exact. We had the Commissioner of Customs. We
had the Commandant of the Coast Guard. I had two mayors of the
two biggest cities practically in the State of South Carolina,
and one Democratic and one Republican, and just out of
curiosity, I said, let me ask you a question about the Office
of Domestic Preparedness (ODP). Do you think it ought to stay
where it is or be transferred to FEMA where ODP has developed,
as Senator Gregg has just pointed out, a training consortium at
Fort McClelland, Nevada, New Mexico, Texas, Louisiana, and now
first responders across the country are getting the training
they need. We have gotten, like you have testified, 46 plans,
like you testified, a miraculous success.
And you and I have been in politics a long time. We do not
mess with something that is working just to give it to Joe
Allbaugh who does not know anything about domestic
preparedness. He has never been associated with it in his life,
or anybody at FEMA. That is a non-starter as far as this
subcommittee is concerned.
We had not been consulted about moving ODP other than the
testimony we had back in May, and at that time, our Republican
chairman, Senator Gregg, was in charge and he communicated that
with the administration. Yet you come with next year's budget
and decimate the local law enforcement programs and transfer
ODP.
Incidentally, let me commend you on the new FBI Director.
He has been working with local law enforcement. In fact, the
first thing he said at the chiefs' conference and so forth, I
think it was up in New York, that he was going to start working
with them and they gave him a standing ovation. Mueller is on
the right track and everybody prides themselves on you and the
Attorney General and the Justice Department.
In fact, the Republicans said, wait a minute, on this
airline security. We want it under the Department of Justice.
When it passed the Senate, we had passed it out of our
committee with the Department of Transportation. They said, no
way. We want it with the Department of Justice, and we got a
unanimous vote, all Republicans and all Democrats. But in order
to get stuff moving in that conference, I went back to the
Department of Transportation.
With ODP, within the Department of Justice, you have got
the confidence. You have got the abilities. You have got the
training. You have got the culture developed. You have got the
money. We cannot say we are fighting counterterrorism when we
are mixing up everybody in new assignments and everything else
of that kind. In this committee's opinion, and you can see on
both sides, there is no support whatsoever for transferring
ODP. You are the best witness we have got that this should not
be transferred. You testified positively about how ODP is
working in your Department.
I yield to you, and I want to thank you for your appearance
here today, but I want to yield to you if you have got any
comment.
Attorney General Ashcroft. I am grateful for the work that
has been done. I would again reiterate the fact that had it not
been for this committee and the membership of this committee
that understands the threat of terrorism, we would have been
far less prepared and far less capable of handling this matter
in the way that it has been handled. The chairman and Senator
Gregg have both had an ability to foresee these needs. That is
commendable.
I want to thank the members of our Department that have
done a good job. I believe they have done a good job in moving
in this direction. But this administration has made the
decision, and I support that decision, and I believe that we
can make a change which will provide for excellent service. As
Attorney General, that is my responsibility and I will do what
I can to pursue it if that is the final outcome of this debate.
ADDITIONAL COMMITTEE QUESTIONS
Senator Hollings. The committee is indebted to you for your
appearance here today. It will stay open with respect to
questions to be submitted by the members here and give you a
reasonable time to respond.
[The following questions were not asked at the hearing, but
were submitted to the Department for response subsequent to the
hearing:]
Questions Submitted by Senator Ernest F. Hollings
antitrust division
Question. General Ashcroft, could you provide the Committee the
number of workyears, number of FTE's, and funding levels for media
antitrust cases handled by the Antitrust Division for each of the last
10 years. Can you provide that same information for telecommunications
cases?
Answer. The requested information for media matters is provided in
Attachment 1. The information for telecommunications cases is in
Attachment 2.
ATTACHMENT 1.--ANTITRUST DIVISION--MEDIA MATTERS
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
1992 1993 1994 1995 1996 1997 1998 1999 2000 2001 2002 \1\
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
Salary...................................................... $298,889 $159,730 $346,326 $169,344 $496,152 $1,167,189 $1,685,266 $1,350,313 $1,765,304 $1,211,448 $767,062
Benefits.................................................... 46,328 25,557 61,300 24,894 84,842 191,419 283,125 232,254 284,214 212,003 141,139
Travel...................................................... 12,963 8,663 18,502 12,611 41,681 93,684 62,002 14,628 13,157 10,576 13,586
Rent/Comm/Util \2\.......................................... .......... .......... .......... .......... .......... .......... .......... .......... .......... .......... 14
Printing.................................................... .......... 363 689 .......... 6,635 7,332 31,344 10,201 .......... 8,858 468
Services.................................................... 11,876 8,987 15,059 18,833 75,881 90,869 225,002 19,026 232,348 34,845 12,686
Supplies \2\................................................ .......... .......... .......... .......... .......... 4,843 .......... .......... .......... .......... 11
Equipment \2\............................................... .......... .......... .......... .......... .......... .......... .......... .......... .......... .......... ..........
-----------------------------------------------------------------------------------------------------------------------------------
Subtotal \3\.......................................... 370,056 203,300 441,876 225,682 705,191 1,555,336 2,286,739 1,626,422 2,295,023 1,477,730 934,966
Expert Witness \4\.......................................... .......... 6,091 3,181 1,723 117,809 216,784 474,542 47,143 397,961 175,743 7,271
-----------------------------------------------------------------------------------------------------------------------------------
Total................................................. 370,056 209,391 445,057 227,405 823,000 1,772,120 2,761,281 1,673,565 2,692,984 1,653,473 942,237
===================================================================================================================================
FTE......................................................... 5.3 2.7 5.9 2.9 9.1 20.5 25.3 19.8 26.1 18.6 12.5
Number of Staff............................................. 58 27 47 22 63 114 127 140 161 118 95
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
\1\ As of February 28, 2002.
\2\ Expenditures for Rent, Communication and Utilities, and Supplies and Equipment were allocated from general Division accounts not identified by matter and used for multiple Division matters
irrespective of commodity area.
\3\ Antitrust Division appropriation funding.
\4\ Department of Justice Fees and Expenses of Witness Account.
Notes:
Consistent with information previously provided to the Senate Appropriations Subcommittee by the Federal Trade Commission, ``Media Matters'' includes enforcement actions and substantial
investigations in the general media, Multichannel Video Programming Distribution (MVPD), radio and television sectors.
Financial, FTE and staff data is not available by commodity area for quick look preliminary investigations prior to issuance of a case number. In addition, due to incomplete time reporting by
commodity area, employee salary and benefit values for 1996 and prior years may not be fully reflective of total effort.
ATTACHMENT 2.--ANTITRUST DIVISION--TELECOMMUNICATIONS MATTERS
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
1992 1993 1994 1995 1996 1997 1998 1999 2000 2001 2002 \1\
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
Salary...................................................... $163,001 $296,328 $984,682 $420,947 $305,432 $1,383,073 $977,535 $1,268,149 $1,778,268 $558,690 $130,348
Benefits.................................................... 25,265 47,412 174,289 61,879 52,229 226,824 164,226 218,122 286,301 97,771 23,984
Travel...................................................... 2,584 8,234 30,079 61,570 8,646 57,676 30,018 8,704 13,098 3,012 ..........
Rent/Comm/Util \2\.......................................... .......... .......... .......... .......... 6,251 .......... .......... .......... .......... .......... ..........
Printing.................................................... 317 .......... 310 1,286 990 .......... 383 16,374 12,626 2,443 ..........
Services.................................................... 1,619 12,828 492,965 83,084 67,518 156,770 7,373 86,447 835,199 1,302 ..........
Supplies \2\................................................ .......... 57 .......... .......... .......... .......... .......... .......... .......... .......... ..........
Equipment \2\............................................... .......... .......... .......... .......... .......... 3,400 .......... .......... .......... .......... ..........
-----------------------------------------------------------------------------------------------------------------------------------
Subtotal \3\.......................................... 192,786 364,859 1,682,325 628,766 441,066 1,827,743 1,179,535 1,597,796 2,925,492 663,218 154,332
Expert Witness \4\.......................................... 11,696 8,100 51,813 27,605 256,635 18,444 48,969 144,350 1,549,848 11,400 ..........
-----------------------------------------------------------------------------------------------------------------------------------
Total................................................. 204,482 372,959 1,734,138 656,371 697,701 1,846,187 1,228,504 1,742,146 4,475,340 674,618 154,332
===================================================================================================================================
FTE......................................................... 3.4 5.7 18.1 7.2 4.9 22.1 15.7 21.8 28.1 8.6 1.7
Number of Staff............................................. 31 45 80 43 64 102 76 89 113 78 30
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
\1\ As of February 28, 2002.
\2\ Expenditures for Rent, Communication and Utilities, and Supplies and Equipment were allocated from general Division accounts not identified by matter and used for multiple Division matters
irrespective of commodity area.
\3\ Antitrust Division appropriation funding.
\4\ Department of Justice Fees and Expenses of Witness Account.
Note:
Financial, FTE and staff data is not available by commodity area for quick look preliminary investigations prior to issuance of a case number. In addition, due to incomplete time reporting by
commodity area, employee salary and benefit values for 1996 and prior years may not be fully reflective of total effort.
coordination between agencies
Question. Department of Transportation officials have been quoted
in recent press articles saying that the United States-Mexico border
could be open to long-haul Mexican trucking operations by June of this
year. As you know, last year the Congress required additional safety
measures be implemented both at the border and by the Department of
Transportation before the Administration could open the border to long-
distance Mexican-domiciled trucks operating beyond the current
commercial zones.
What level of coordination has there been between the Department of
Transportation and your agencies on establishing or increasing
operations at the border in anticipation of this influx of Mexican
trucks? Please describe.
Answer. The Department of Transportation's (DOT) NAFTA Land
Transportation Implementation Working Group includes representatives
from the Immigration and Naturalization Service, the U.S. Customs
Service, the Internal Revenue Service, the Department of Commerce, and
the Department of Justice's Environment and Natural Resources Division.
The working group has met twice to make plans for a Land Transportation
Conference to provide information to the United States, Canadian and
Mexican carriers. The conference will be held May 28 through 31, 2002.
The DOT Land Transportation Standards Sub-committee (LTSS) met with
Canadian and Mexican delegations in October 2001, to discuss issues
relating to cross border operations including plans for an outreach
program.
background checks
Question. The United States is required by the USA PATRIOT Act to
begin conducting criminal background checks on drivers of commercial
motor vehicles that haul hazardous materials, yet there is no agreement
for doing criminal background checks on Canadian and Mexican drivers
that haul similar hazardous materials.
Answer. The DOT Federal Motor Carrier Safety Administration (FMCSA)
is the regulating authority for motor carriers. The FMCSA has published
regulations in the Federal Register. Mexico-domiciled motor carriers,
their vehicles and their drivers operating in the United States are
subject to all of FMCSA's safety requirements. Section 350 of the DOT
Appropriations Act prohibits Mexico-domiciled motor carriers from
transporting hazardous materials in a placardable quantity beyond the
border zones until the United States has completed an agreement with
the Government of Mexico ensuring that drivers of such placardable
quantities of hazardous materials meet substantially the same
requirements as United States drivers carrying such materials.
Question. Given the security concerns associated with our borders
since September 11th, how can we justify letting these drivers into the
United States without holding them to the same standard that United
States drivers will be held to?
Answer. Drivers must meet the DOT FMCSA standards. All aliens
admitted to the United States must establish admissibility under the
Immigration and Nationality Act (INA), and Mexican and Canadian drivers
who are inadmissible under the grounds of inadmissibility contained in
section 212(a) of the INA are not eligible to enter the United States,
unless they have obtained a waiver of inadmissibility. However, there
is no specific ground of inadmissibility under the INA prohibiting the
entry of drivers who have not complied with FMCSA standards. A Mexican
driver must also apply to the Department of State and be approved for a
B-1 (visitor for business) visa to enter the United States.
Question. What confidence do we have in the ability of the Canadian
or Mexican governments to perform background checks on their drivers
who haul hazardous materials on our roads? Will these background checks
be performed to the same standards as the checks conducted on United
States drivers?
Answer. The Canadian government has a comprehensive criminal
database. We are not aware of what information is available to the
Mexican government.
______
Questions Submitted by Senator Daniel K. Inouye
methamphetamine
Question. Background: The State of Hawaii, and in particular, the
county of Hawaii, has a large and substantial problem with crystal
methamphetamines (ice, meth, or crystal meth). As this drug spread
across Asia, it first found a foothold in Hawaii, and then crossed the
rest of the way, where it has quickly spread across the rest of the
nation.
The crystal meth problem in Hawaii has reached crisis proportions
not only because of the inordinately high incidence of meth abuse, but
because of the many negative ``side effects'' that arise from the
widespread production and use of the drug. The manufacture of ice in
both urban and rural meth labs, of course, churns out the drug itself,
but also pollutes the environment with toxic chemical byproducts. The
drug itself creates dangerous behaviors during and immediately after
use, as addicts plummet from their high into depression and desperate
craving for more of the drug. The long-term health consequences of meth
addiction are only just beginning to be understood.
Additionally, meth is extremely addictive, and has permeated all
levels of society to the extent that cultures of family-based drug use
have begun to manifest. Treatment of addiction, therefore, becomes even
more problematic as traditional support networks, such as family and
friends, are eroded as the high prevalence threat to the State of
Hawaii spreads.
With this background in mind, I would like to ask you several
specific questions about Department of Justice (DOJ) resources
available to combat this pernicious threat to the State of Hawaii.
What DOJ resources are available to help in the detection and
eradication of meth labs--particularly meth labs in remote and
inaccessible rural areas such as those that abound in the county of
Hawaii?
Answer. The Drug Enforcement Administration's (DEA) methamphetamine
strategy addresses the diversion of precursor chemicals from legitimate
commerce into this criminal activity. DEA has vigorously pursued those
individuals and firms, both domestic and international, which have
supplied clandestine methamphetamine laboratories. DEA has seized tons
of pseudoephedrine destined for methamphetamine laboratories and will
continue to do so as part of an overall strategy.
In 2002, approximately $70,473,000 was appropriated within the
Office of Community Oriented Policing Services (COPS) account for state
and local law enforcement programs to combat methamphetamine
production, to target drug hot spots, and to remove and dispose of
hazardous materials at clandestine methamphetamine labs. COPS
administers these funds. Within the amount provided, the conferees
included $20,000,000 to be reimbursed to DEA for assistance to state
and local law enforcement for proper removal and disposal of hazardous
materials at clandestine methamphetamine laboratories. The President
has included $20 million to continue these efforts in fiscal year 2003.
The Office of Justice Programs Bureau of Justice Assistance (BJA)
also provides funding to the State of Hawaii under its Byrne Formula
Grant Program and to the state and its counties under its Local Law
Enforcement Block Grant (LLEBG) program. Byrne Formula awards are made
to the State Administering Agency, the Hawaii Department of the
Attorney General, for distribution to the 4 counties (Hawaii, Maui,
Kauai, and Honolulu city/county). The Attorney General's Office
advertises the availability of the funds and receives proposals from
the police department and the four prosecutor offices. Since fiscal
year 1999, the State Attorney General has made subgrants of:
--$555,611 to the Kauai Police Department, the Maui Police
Department, the Hawaii County Police Department, the Department
of Land and Natural Resources, and the Honolulu Police
Department for the statewide narcotics task force. This funding
has been applied to multi-jurisdictional task force programs
that integrate federal, state, and local drug law enforcement
agencies and prosecutors for the purpose of enhancing
interagency coordination, exchanging intelligence, and
facilitating multi-jurisdictional investigations.
--$599,738 to the Kauai Police Department, the Maui Police
Department, the Hawaii County Police Department, and the
Honolulu Police Department for programs to target the domestic
sources of controlled and illegal substances, such as precursor
chemicals, diverted pharmaceuticals, clandestine laboratories,
and cannabis cultivation.
Under the Local Law Enforcement Block Grant Program:
--$963,172 has been awarded to Honolulu, Hawaii to support community
prosecution and a drug court initiative, and $32,000 has been
awarded for the detection of clandestine labs.
--Approximately $5,000 was provided to Maui County for a drug-court
initiative.
While the Byrne Formula and LLEBG programs are not requested in the
2003 President's budget, purposes funded therein remain eligible for
funding under the new $800 million Justice Assistance Grant program,
which provides grantees with a single-source funding mechanism. Byrne
Discretionary funds are also authorized to be used for this purpose.
Question. What DOJ resources are available for the environmental
clean up of meth lab sites?
Answer. Funding for the environmental clean up of meth lab sites is
primarily available through funds made available to DEA by Congress
through the COPS methamphetamine initiative although several
jurisdictions are using part of their congressional earmark funds to
accomplish this. In 2002, Congress has provided $20 million to DEA for
such purposes. While funds may be used for these purposes under the
Byrne Formula and LLEBG programs, this is a decision made by each state
or local jurisdiction.
With regard to resources for the environmental cleanup of
clandestine drug laboratories, DEA does not currently have a contractor
in Hawaii to perform these services. No qualified contractor(s)
submitted a proposal when DEA requested proposals in 1997. However, DEA
did fund one cleanup each in fiscal years 1998 and 2000. As long as
funding is available, DEA will fund cleanups (i.e., the removal of
chemicals and contaminated apparatus) for both DEA and state/local
seizures of clandestine drug laboratories in Hawaii through purchase
orders.
Question. What DOJ resources are available for enhancing efforts to
stop the sale of crystal meth?
Answer. In addition to the regular staffing levels and their
cooperation with other federal and state and local agencies, DEA has
made four successful deployments of one of its Mobile Enforcement Teams
(MET) to Hawaii since September 2000. As their name implies, MET teams
are deployed to provide help in those investigations where their
assistance will be most effective.
Question. What DOJ resources are available for treating addiction
to crystal meth?
Answer. Most DOJ drug resources are focused on investigation and
prosecution of drug violations. Federal Government resources for drug
abuse treatment are administered by the Department of Health and Human
Services' Substance Abuse and Mental Health Services Administration.
Within the Department of Justice, DEA has no resources for drug
treatment, though DEA's Demand Reduction Coordinators (DRC) and
headquarters staff inform communities about effective treatment when
conducting demand reduction training. In upcoming community
mobilization training, a treatment component is included as part of the
training.
Within the Office of Justice Programs, Byrne Formula Grant Program
funds may be used to develop programs to identify and meet the
treatment needs of adult and juvenile drug and alcohol dependent
offenders and to develop programs to demonstrate innovative approaches
to enforcement, prosecution, and adjudication of drug offenses and
other serious crimes. Funding may also be available through OJP's
Residential Substance Abuse Treatment (RSAT) program for state and
local jails, the Drug Courts program, and the Indian Alcohol and
Substance Abuse Program, all of which provide treatment services. These
programs primarily target populations that have been incarcerated, are
on probation or parole, or are facing adjudication.
Question. What DOJ resources are available to develop and implement
innovative responses, such as the drug court program, to the crystal
meth problem that break away from the traditional model of arrest,
incarceration and treatment, parole, and release?
Answer. OJP's Drug Courts Program Office is available for this
purpose. The State of Hawaii currently has two adult drug courts in
operation, one on the island of Oahu and the other on the island of
Maui. The Hawaii Drug Court Program also has a Family Court component
that works with Child Protective Services parents. The Oahu drug court
received its first clients in January of 1996. Since that time, the
program has admitted approximately 500 individuals, graduating nearly
50 percent.
Despite the fact that 90 percent of clients in the Hawaii Drug
Court program are methamphetamine dependent, grant applications from
Hawaii's Drug Court Program do not specifically target methamphetamine
treatment as there is currently no single proven methodology with
methamphetamine abusers. The Hawaii Drug Court Program uses principles
applicable to any dependency and applies techniques and components,
such as careful assessments, which have been demonstrated as effective
with meth users to provide the best individualized care within the
restrictions of its resources. The program use a comprehensive approach
in treating drug court clients as opposed to a more targeted approach.
DEA's demand reduction program recognizes the value of drug courts
in helping communities deal with their drug abuse problem. DEA's new
Integrated Drug Enforcement Assistance initiative, unveiled by DEA
Administrator Asa Hutchinson in December 2001, will promote the
implementation of drug courts in communities as an effective tool in
dealing with the drug abuse issue.
Funding under the Byrne Formula Grant Program and the Local Law
Enforcement Grant Program is available to state and local agencies for
innovative program responses. Between fiscal year 1999 and fiscal year
2002, BJA provided approximately $12.34 million to the state of Hawaii
under the Byrne Formula program. The state has elected to use $859,204
for programs to improve operational effectiveness of courts by
expanding prosecutorial, defender, and judicial resources, and
implementing court delay-reduction programs.
The RSAT Formula Grant Program assists states and units of local
government in developing and implementing residential substance abuse
treatment programs within state and local correctional and detention
facilities in which prisoners are incarcerated for a period of time
sufficient to permit substance abuse treatment. This program addresses
the issue of substance abuse dependence and the direct link to public
safety, crime, and victimization by providing treatment and services
both within the institution and in the community after release. In
2003, $77 million is requested under the President's budget, a $7
million increase over the previous level. Since 1999, over $1.1 million
has been provided to the State of Hawaii under this program.
The Indian Alcohol and Substance Abuse Program targets the link
between alcohol and substance abuse and crime in Indian Country by
funding tribal detention and probation-based demonstration projects
that provide services such as placing arrestees and offenders in
detoxification centers, halfway houses, in-patient treatment
facilities, and home detention. In 2003, $4.989 million is requested
under the President's budget.
Question. What DOJ resources are available for education and
outreach programs to prevent the recruitment of new users?
Answer. DEA's demand reduction program uses full-time DEA special
agents as Demand Reduction Coordinators (DRCs) that work with
communities to implement and promote drug prevention programs in a
variety of venues. These DRCs work with community coalitions and others
to educate community leaders, adults, youth, and businesses about the
dangers of drug abuse. DRCs are available to communities throughout the
United States, including Hawaii, to put on drug education programs.
The Office of Juvenile Justice and Delinquency Prevention (OJJDP)
administers the Drug-Free Communities Support Program through an
interagency agreement with the Office of National Drug Control Policy
(ONDCP). The Drug-Free Communities Support Program is designed to
strengthen community anti-drug coalitions and reduce substance abuse
among youth. The program seeks to enhance collaboration, cooperation,
and coordination among all sectors and organizations within communities
that demonstrate a long-term commitment to reducing substance abuse
among youth. Community coalitions that receive funding through the
Drug-Free Communities Support Program focus on a combination of drugs
and use a multi-sector, multi-strategy approach to reducing substance
abuse among youth. Among the strategies employed to reduce substance
abuse among youth are information dissemination, media campaigns,
community events, community education through a sports certification
program, and training for youth. Currently, 463 community anti-drug
coalitions receive Drug-Free Communities Support Program funding.
Grantee coalitions are located in all 50 states, the District of
Columbia, Puerto Rico, and the U.S. Virgin Islands.
Under a BJA grant to the National Crime Prevention Council (NCPC),
funding has been applied to education and outreach related to meth
abuse. Through the NCPC's rapid response training and technical
assistance unit and with DEA collaboration, BJA offers a comprehensive
planning, training and technical assistance program covering
enforcement, treatment, prevention, and continuing care. The states and
local jurisdictions may also elect to use their Byrne Formula funds and
LLEBG funds for this purpose.
Question. What DOJ resources are available for the pre-arrest
intervention and treatment of meth addicts?
Answer. DEA has no resources for these activities but recognizes
their value in dealing with the drug abuse problem. However, as stated
previously, DEA's DRC and headquarters staff inform communities about
effective treatment.
Under a BJA grant to the NCPC, funding has been applied to
education and outreach related to meth abuse. Through the NCPC's rapid
response training and technical assistance unit and with DEA
collaboration, BJA offers a comprehensive planning, training and
technical assistance program covering enforcement, treatment,
prevention, and continuing care. The states and local jurisdictions may
also elect to use their Byrne Formula funds and LLEBG funds for this
purpose.
Question. What DOJ resources are available for addressing the
crystal meth problem among juveniles and adolescents?
Answer. As stated earlier, the vast majority of federal drug
prevention funding is administered by HHS; the Safe Schools initiative
within the Department of Education; and the ONDCP's national anti-drug
media campaign.
Within DOJ, the demand reduction program enlists full-time DRCs and
other DEA special agents to present anti-drug abuse programs to a
variety of audiences including youth. These might take place at schools
or other locations such as Boys and Girls Clubs. DRCs also work closely
with education professionals to provide training to teachers, School
Resource Officers, etc. on drug abuse among the youth of their
community. Presently, Hawaii is serviced by the DRC in the DEA Los
Angeles Field Division. DEA Administrator Hutchinson's goal is to
double the number of field special agents in the Demand Reduction
Program and to ultimately place a DRC in every state by the end of
fiscal year 2003.
Funding is available for addressing the crystal meth problem among
juveniles and adolescents through the Byrne Formula and Discretionary
Grant Programs and through congressional earmarks for methamphetamine
funding initiatives. State and local jurisdictions may also use LLEBG
funding to address drug problems among the target populations listed.
However, the bulk of OJP's available funding for addressing crystal
meth problems among juveniles and adolescents is housed within the
OJJDP in OJP.
OJJDP administers the Drug-Free Communities Support Program through
an interagency agreement with ONDCP. The Drug-Free Communities Act of
1997 (Public Law 105-20) created the Drug-Free Communities Support
Program. On December 14, 2001, Public Law 107-82 reauthorized the
program through fiscal year 2007. The Drug-Free Communities Support
Program is designed to strengthen community anti-drug coalitions and
reduce substance abuse among youth. The program seeks to enhance
collaboration, cooperation, and coordination among all sectors and
organizations within communities that demonstrate a long-term
commitment to reducing substance abuse among youth. Community
coalitions that receive funding through the Drug-Free Communities
Support Program focus on a combination of drugs and use a multi-sector,
multi-strategy approach to reducing substance abuse among youth.
Currently, 463 community anti-drug coalitions receive Drug-Free
Communities Support Program funding. Grantee coalitions are located in
all 50 states, the District of Columbia, Puerto Rico, and the U.S.
Virgin Islands.
Two grantee coalitions are located in Hawaii. The Kawaihau
Community Leadership Coalition, with the County of Kauai as its fiscal
agent, has received funding through the Drug-Free Communities Support
Program since October 1, 1998. Coalition goals are to reduce substance
abuse in the Kawaihau District and to build a community coalition
through the objectives of increasing community information, developing
awareness of the effects that drugs have on the community, and
providing education to strengthen family resiliency skills. The
coalition uses multiple approaches to reduce substance abuse among
youth, including information dissemination, a media campaign, community
events, community education through a sports certification program, and
training for youth. The Ewa Beach Coalition, with the Coalition for a
Drug-Free Hawaii as its fiscal agent, was awarded a Drug-Free Community
Support Program grant beginning October 1, 2001. The coalition is
focusing on decreasing risk factors (e.g., poor academic performance,
family conflict, early initiation of problem behaviors) and increasing
protective factors (e.g., family attachment) to reduce substance abuse
among youth. Coalition initiatives include school-based programming,
family strengthening and parent involvement initiatives, substance
abuse intervention and outreach, community events, and media
initiatives.
OJJDP also administers the Drug Prevention Demonstration Program,
which is funded under Title V of the Juvenile Justice and Delinquency
Prevention Act of 1974, and which was appropriated $10.976 million in
fiscal year 2002. This program awards discretionary grant funds to
grantees to develop, demonstrate, and test programs to increase
perceptions among children and youth about the unappealing aspects and
danger of drug use. OJJDP uses these funds to demonstrate, test, and
evaluate promising programs that address the reduction of risk factors
and the enhancement of protective factors that affect the use of drugs
among children and youth. Building on its work replicating the Life
Skills Training (LST) Initiative, the program will continue to fund LST
projects but also will be expanded to support other drug prevention
programs that are promising for students at all grade levels. OJJDP
also uses these funds to provide training and technical assistance to
jurisdictions to support replication efforts. Technical assistance
activities include conducting project readiness and needs assessments,
developing training materials, and monitoring program implementation
and evaluation efforts. Funding provided under OJJDP's Drug Prevention
Demonstration Program is available for programs that address the
crystal meth problem among juveniles and adolescents.
OJJDP also administers the Juvenile Accountability Block Grant
(JAIBG) Program. This program encourages accountability-based reforms
of juvenile justice systems in states and local jurisdictions. JAIBG
funds can be used for 12 purpose areas, including building juvenile
detention facilities, hiring prosecutors, establishing gun and drug
courts, improving juvenile probation programs and testing youth in the
juvenile justice system for controlled substances such as crystal meth.
______
Questions Submitted by Senator Patrick J. Leahy
september 11th victim compensation fund
Question. In the Justice Department's fiscal year 2003 Budget
Request Highlights, the cost for the Special Master to administer the
September 11th Victim Compensation Fund is listed as $10 million. In
your opening statement in the Commerce, Justice, State subcommittee
hearing on the Justice Department's fiscal year 2003 budget requests,
however, you stated that the Department's budget includes a total of
$41 million for the administrative costs of the Fund's Special Master.
Please account for the discrepancies in these numbers.
On January 17, 2002, I was joined by Senators Kennedy, Schumer and
Clinton in writing to Special Master Kenneth Feinberg on the Interim
Final Regulations governing the Fund. Please tell me when you expect
these regulations to be finalized and released to the public.
Answer. As you know, Special Master Kenneth R. Feinberg announced
the Final Rule for the September 11 Victim Compensation Fund on March
7, after numerous meetings with family members and other interested
groups, along with the review of thousands of public comments over the
past few months. A copy of the Final Rule is available at the
Department of Justice website at ``http://www.usdoj.gov/
victimcompensation.'' MACROBUTTON HtmlResAnchor http://www.usdoj.gov/
victimcompensation.
As for the apparent discrepancy in budget requests, $41 million is
indeed the request for administrative costs the $10 million referred to
in the Budget Request Highlights is the increase over the $31 million
current services level. The $41 million will fund: additional claims
examiners, additional Justice Department attorneys and support, the
walk-in facilities, the hotline, hearing officers, and hearing process
support including paralegals and space to hold hearings in locations
where victims live.
The claims, although smaller in number than previously anticipated,
will be incredibly complex and require a much higher level of
individual scrutiny. We therefore project that an increase of $10
million beyond the annualization of $31 million will be necessary to
meet the surge of labor-intensive claims.
northern border inspector earmark
Question. I included language in the USA PATRIOT Act authorizing
tripling the number of Border Patrol agents, the Immigration and
Naturalization Service (INS) inspectors and Customs Service officers.
The President's budget builds on what we did through the appropriations
process last year, and I believe we are on the right path.
The budget request calls for half of the new Border Patrol
positions to be on the northern border, but is silent about the
percentage of new INS Inspector positions to be assigned to the
northern border. Why not include a similar northern border earmark for
inspectors?
Answer. The northern border has been the focus in the deployment of
new 2002 positions. In fact, 625 (74 percent) of the 848 new 2002 land
border inspectors have been approved for deployment to the northern
border. In 2003, INS will deploy additional positions to the northern
border as appropriate. The focus, however, in fiscal year 2003 will be
to ensure that the security and integrity of the small southern border
ports are met as well as addressing traffic management challenges.
Additional resources will also be dedicated to address the needs for
Dedicated Commuter Lane processing and Enrollment Centers. INS has,
therefore, not earmarked positions for one border over another until
deployment is imminent so that all of the operational field
requirements can be weighed and prioritized.
technology funding request under the usa patriot act
Question. The USA PATRIOT Act authorized $50 million for the INS to
improve technology for monitoring the northern border and purchase
additional equipment for use at the border. Have you requested any
funding in your budget under that authorization? If so, what funding
requests fall under that authorization? If not, why not?
Answer. The INS has requested the following technology/equipment
under this authorization for the northern border and received the funds
appropriated as part of the fiscal year 2002 Counterterrorism
supplemental budget for the northern border.
[In millions of dollars]
------------------------------------------------------------------------
Technology/Equipment Requested for Northern
Border Sectors Requested Appropriated
------------------------------------------------------------------------
Integrated surveillance Intelligence system
(ISIS):
Installation of 57 sites at northern 23.6 23.6
border sectors..........................
Sensors.................................. 8.0 8.0
Remote video surveillance operations..... 6.0 6.0
--------------------------
ISIS Subtotal.......................... 37.6 37.6
==========================
Infrared night-vision scopes................. 1.0 1.0
Single-engine helicopters.................... 6.0 6.0
==========================
Total Northern Border Technology/ 44.6 44.6
Equipment Requested...................
------------------------------------------------------------------------
In addition, the President's fiscal year 2003 budget includes our
further requests for technology and related equipment for the northern
border.
--$10 million for two twin-engine helicopters to improve border
access along the northern border and other critical areas where
high mountains, extreme weather conditions and over-water
operations are regularly encountered.
--$28 million, of which approximately $5 million would be for the
northern border for 10-print fingerprint machines for the
Border Patrol and Joint Terrorism Task Force (JTTF) sites to
provide electronic access via livescan devices to the Federal
Bureau of Investigation's (FBI) IAFIS and other automated
databases; to integrate the 10-print livescan machines with
ENFORCE; to complete deployment of the ENFORCE intelligence
module; to increase ENFORCE external interfaces; and to provide
associated system training and maintenance. The northern border
portion of this request is not a standalone request, and could
not be accomplished separately from approval of the entire
request.
northern border recruiting and retention
Question. What steps is the Justice Department taking to fill
quickly the additional Border Patrol and INS inspector positions for
which Congress has already appropriated funds? Do you need additional
funding for recruiting and retention? Have you found increased
attrition among northern border personnel, who are often receiving only
one day off a month since the terrorist attacks?
Answer. The INS is taking a number of aggressive actions to quickly
fill the additional Border Patrol and inspector positions appropriated
in fiscal year 2002. These actions are coupled with actions to decrease
the losses in the Border Patrol agent and immigration inspector
occupations. Decreasing our losses is key to achieving our fiscal year
2002 hiring goals.
We are currently taking the following actions to fill the Border
Patrol and immigration inspector positions quickly:
--We have about 300 Border Patrol agents dedicated to the recruiting
mission.
--Recruitment efforts are ongoing at colleges and universities.
--INS has placed advertising in more than 300 newspapers, magazines
and Internet sites. In addition, INS is working on a number of
initiatives in support of marketing and ``branding'' (enhancing
the image of INS as an employer and promoting INS career
opportunities), as well as developing new recruitment
pamphlets, recruitment displays, and a television commercial
and movie trailers. INS is sponsoring radio traffic reports in
five markets, including Washington, D.C.
--The recruitment announcements for both Border Patrol agents and
inspectors have been extended several times.
--The INS hired 551 new Border Patrol agents by the end of February
2002. To hire the remaining 1,956 agents, we currently have
43,000 applicants (who have taken or are scheduled to take the
written examination) and expect to receive a total of 70,000
applications by the end of fiscal year 2002. We currently have
8,000 selectees in our hiring queue. These selectees are
undergoing background investigations, medical examinations and
drug tests.
--The INS hired 285 new immigration inspectors by the end of February
2002. To hire the remaining 1,690 inspectors, we have
centralized the selection process at the National Hiring Center
in order to streamline the process as much as possible. As a
result, we currently have 49,600 applicants (who have taken or
are scheduled to take the written examination) and 4,700
selectees (who are currently undergoing background
investigations, medical examinations and drug tests) in the
hiring queue. About half of these selectees are from the
centralized selection process begun February 1.
postconviction dna review
Question. The Department sent a response on February 25, 2002, to a
letter that I sent over 6 weeks ago concerning the Department's
decision to set aside its plans to offer $750,000 in grant money for
post-conviction DNA review programs. In response to the simple
question: ``Does the Department intend to use alternate funds for post-
conviction testing grants?'', the Department response said that the
National Institute of Justice has been asked to look into DNA
initiatives.
Does this mean ``no?'' How is it that the Department cannot find
$750,000 in a $30.2 billion budget to use for this important program?
Answer. The Department is working to assist states in improving
their overall forensic capabilities, as well as the general state of
information and technology available to the field. In fiscal year 2002,
the Department's National Institute of Justice (NIJ) will target $66
million for research to make DNA identification technology more
portable and inexpensive, enabling law enforcement in the field to
access it more quickly and easily. Additionally, easier and quicker
access will enable states to work more effectively in reducing the
immense DNA sample backlog still existing across the nation. Finally,
the availability of this new technology will make it possible for
states to afford to conduct any post-conviction DNA testing they deem
likely to be of significance in reviewing a conviction. However, the
Department does not plan to undertake a national effort to promote and
fund post-conviction DNA.
shift in fbi responsibilities
Question. Director Mueller announced the first phase of his FBI
reorganization in December, and I praised his action to strengthen FBI
intelligence, security, and information management. He and Deputy
Attorney General Thompson are now taking a wider look at ways to
streamline the FBI responsibilities. This may require a shift in some
responsibilities from the FBI to other federal and local law
enforcement agencies in order to focus the FBI on detection, prevention
and investigation of terrorists. In what areas do you foresee a shift
in FBI responsibilities?
Answer. The Director and his management team are now developing a
comprehensive strategy to permanently shift resources to prevent and
fight against terrorism. The FBI plans to present this strategy to the
Department, Administration, and the Congress soon, but is still working
to identify areas where it can redirect resources without compromising
investigative priorities or partnerships with law enforcement and other
government agencies. Given the elevated condition of the current
terrorist threat to the United States, the FBI must make hard decisions
to focus its energy and available resources on preventing additional
terrorist acts and protecting our nation's security. At the same time,
the FBI will continue to pursue and combat international and national
organized crime groups and enterprises, civil rights violations, major
white-collar crime, and serious violent crime; but at a level of effort
consistent with resources available to support the capabilities of our
federal, state, and local partners.
trilogy
Question. One of the most important FBI initiatives is the Trilogy
program for upgrading the Bureau's information technology. The
Counterterrorism Supplemental for fiscal year 2002 included $237
million for advanced computer equipment and software under the Trilogy
program, and the FBI requests another $109.4 million in fiscal year
2003 for information technology projects including Trilogy. These are
important investments. From an oversight perspective, however, I am
disappointed that the Justice Department and the FBI have failed to
submit quarterly status reports on Trilogy as required in the
Appropriations Act for fiscal year 2001. Such reports are especially
important to monitor the effectiveness of planning and testing for new
software. Will you provide a current status report on Trilogy to the
Congress as soon as possible?
Answer. The Department of Justice (DOJ) appreciates the support
that Congress has given its Trilogy information technology upgrade
project, and understands the oversight role that Congress plays in
ensuring that the large amount of funding that it has provided is used
appropriately. Indeed, Trilogy is one of the FBI's top priorities and
it must be managed and executed properly.
The fiscal year 2001 Appropriations Act directed the FBI to submit
quarterly status reports on the implementation of the Trilogy plan to
the Appropriations Committees. The DOJ and FBI take this reporting
requirement seriously and have worked diligently with each other and
with the Office of Management and Budget over the last year to comply
with this requirement fully and expedite the review process so that
timely reports can be transmitted to Congress.
The first quarterly report was transmitted to Congress on June 29,
2001. The second and third quarterly reports were jointly transmitted
to Congress on February 26, 2002.
The fourth report was prepared by the FBI but it did not include
the most recent information on accelerated Trilogy implementation.
Therefore, the FBI decided to submit it with the fifth report to
provide a more updated and accurate description of the Trilogy program
as it currently stands. The fifth report reflects recent developments
regarding Trilogy acceleration and fully explains how the program has
been accelerated and improved to reflect the FBI's response to the
terrorist attacks. The fourth and fifth quarterly reports were jointly
transmitted to Congress on March 19, 2002.
In summary, DOJ and FBI take reporting requirement responsibilities
very seriously and remain committed to keeping Congress informed on the
progress of the Trilogy program. At this time, DOJ has transmitted the
first five quarterly status reports to Congress. The FBI is currently
working on the sixth report.
joint terrorism task forces and anti-terrorism task forces
Question. On February 26, 2002, the Department responded to my
December 20, 2001, letter with questions about the FBI and Justice
Department Terrorism Task Force structures. Over the past 7 years, the
FBI's Joint Terrorism Task Forces have strengthened counterterrorism
efforts with full-time participation by other federal agencies and
state and local police personnel. Director Mueller plans an increase in
these task forces to all 56 offices, and I support this plan. After the
September 11th attacks, the Attorney General formed separate Anti-
Terrorism Task Forces in each U.S. Attorney's Office. Former FBI
executives have publicly raised concerns that the new Task Forces would
``undermine the capabilities of the nation's primary agency responsible
for the prevention and investigation of terrorist activity.'' Why does
the Department need duplicative Task Forces in the U.S. Attorneys'
Offices?
Answer. The Joint Terrorism Task Force (JTTF) Program and the Anti-
Terrorism Task Force (ATTF) Program are the mechanisms through which
the Department of Justice coordinates its anti-terrorism activities.
JTTFs are focused on investigating terrorism, while the ATTFs are
responsible for ensuring communication and coordination at more and
higher levels of government. The missions of these two entities are not
duplicative.
JTTFs are established through FBI field offices, and are designed
for coordinated, operational investigation of terrorist activities. The
JTTFs are composed of FBI agents and other investigators in federal,
state, and local law enforcement agencies. All JTTF members must have
top secret clearances, which grant them access to information that is
developed throughout the course of an investigation.
In response to the events of September 11, 2001, the Attorney
General directed each United States Attorneys Office to establish an
ATTF for broader coordination of our anti-terrorism efforts across the
country. The ATTF's three main purposes include: (1) facilitation of
information sharing between federal and state authorities in order to
detect and prevent terrorist attacks; (2) coordination of local anti-
terrorism efforts within each district; and (3) serving as a standing
organizational structure for a coordinated response to any terrorist
incidents that might occur in the district. The membership of the ATTFs
include federal, state, and local agencies that can contribute to local
anti-terrorism efforts, even if they are not directly involved in
criminal law enforcement. At present, ATTF participants need not have
security clearances.
Because the state and local membership of the ATTFs exceed the
state and local departments represented on JTTFs, the ATTFs also
provide a force-multiplier when we engage in manpower intensive
operations. For example, we enlisted the ATTF members to search for and
locate several thousand non-immigrant aliens in just over 30 days
without diverting resources necessary for ongoing JTTF investigations.
The ATTFs include the JTTFs in the federal districts where JTTFs
exist. In those districts where a JTTF exists, the FBI retains and
exercises primary operational authority, in coordination and
consultation with the ATTF and the United States Attorneys Anti-
Terrorism Coordinator, over all JTTF investigative activities that are
not related to an ongoing prosecution.
foreign terrorist tracking task force
Question. The interagency Foreign Terrorist Tracking Task Force
(FTTTF) was created in October 2001 to enhance U.S. efforts to prevent
terrorist activity by ensuring that federal agencies coordinate their
efforts to bar terrorists and their supporters from entering the United
States. Please provide the charter for the Task Force and describe its
specific functions and responsibilities. What is the level of Resources
and funding provided by the Department to this Task Force in fiscal
year 2002 and requested for fiscal year 2003?
Answer. The FTTTF was created by the Attorney General pursuant to
Homeland Security Presidential Directive-2 (HSPD-2), issued on October
29, 2001. A copy of this document is attached (Attachment 1). HSPD-2
directed that the FTTTF ensure that, ``to the maximum extent permitted
by law, federal agencies coordinate programs to accomplish the
following: (1) deny entry into the United States of aliens associated
with, suspected of being engaged in, or supporting terrorist activity;
and (2) locate, detain, prosecute, or deport any such aliens already
present in the United States.''
Since November 1, 2001, government agencies have begun designating
personnel resources to the FTTTF. Currently, personnel are committed to
the FTTTF from: DOJ, including FBI, INS, and the Drug Enforcement
Administration (DEA); the Treasury Department, including the U.S.
Customs Services; the Department of Health and Human Services,
including the Social Security Administration; and components of the
Department of Defense (DOD) and other members of the Intelligence
Community. Plans are underway for additional agencies to detail
personnel.
The FTTTF has identified a number of specific projects which it can
coordinate or run to fill gaps in existing government efforts relating
to prevention of terrorist activities. For example, the FTTTF is
pursuing projects to: (1) create a unified, cohesive lookout list; (2)
identify foreign terrorists and their supporters who have entered or
seek to enter the United States or its territories; and (3) detect such
factors as violations of criminal or immigration law which would permit
exclusion, detention or deportation of such individuals.
In addition, the FTTTF is in the process of identifying other
intelligence-related projects that it can support through its
collaborative capability to co-locate data from multiple agency
sources. In this respect, the FTTTF will not duplicate any existing
governmental activity, but shall supplement and support existing
functions to promote the interests of national security through
improved information sharing.
The Department of Justice has identified for fiscal year 2002 a
requirement of approximately $20 million in partial year costs to
support the FTTTF. It is anticipated that in fiscal year 2003, the
FTTTF will require full year funding to continue operations, as well as
some additional costs currently being supported by the DOD.
anti-terrorism task forces
Question. If the U.S. Attorneys' Anti-Terrorism Task Forces request
state or local law enforcement agencies to conduct investigative
activities for the Justice Department, will those state or local
investigative activities be coordinated by the FBI and subject to the
Attorney General's guidelines for FBI investigations?
Answer. In those districts where an FBI Joint Terrorism Task Force
(JTTF) exists, the FBI will retain and exercise primary operational
authority over all JTTF investigative activities. As a result, these
investigative activities will be coordinated by the FBI and subject to
the Attorney General's Guidelines. JTTFs are currently authorized in 47
of the FBI's 56 field offices, and the FBI is seeking to expand the
program to the remaining 9 field offices.
In those instances in which there is no JTTF in a district and the
Anti-Terrorism Task Force (ATTF) requests state or local law
enforcement agencies to conduct investigative activities, there will be
some coordination with the FBI in all instances, because the FBI is an
important participant in each ATTF. The extent and nature of
coordination with the FBI may vary with the request. For example, in
the effort to interview non-immigrant aliens, the United States
Attorneys were specifically directed to coordinate the assignment of
interviews and the conducting of interviews with the FBI Special Agents
in Charge in each district. Likewise, the extent to which state and
local investigative activities are subject to the Attorney's General
Guidelines may vary. If state and local agencies undertake
investigative activities with no involvement from the FBI, the
Guidelines will ordinarily not apply. There may be instances in which
state and local law enforcement agencies have entered into memorandums
of understanding with the FBI requiring that the agencies adhere to the
Guidelines in the course of joint investigations. In such instances,
the agencies' activities will be subject to the Guidelines.
professional security officer career program
Question. The FBI budget includes additional funding of $48.2
million for Information Assurance and $29.9 million for other security
programs. How much of these funds will be allocated to the development
of a career security officer program? What additional funds, if any,
would be needed to implement a robust security career program including
security career program boards, identification of career development
paths, ensuring opportunities for non-special agent personnel,
providing appropriate security performance appraisals, establishing
training and experience requirements for security management positions,
and implementing an education and training program for FBI security
personnel?
Answer. The FBI's fiscal year 2003 budget request does not include
any resources for the development of a professional security officer
career track. The request does, however, include $2,425,000 to educate
employees, including security officers, about security policies,
procedures and methods. Moreover, the FBI anticipates that a workforce
study being conducted by Resource Consultants Incorporated will assist
in identifying the knowledge, skills, and abilities required by
professional Security Officers and will assist in the development of a
program outline the FBI plans to complete by the end of calendar year
2002.
The FBI's recently created Security Division will work with human
resources personnel during fiscal year 2003 to expand the program
outline into a career security program, including establishment of
career security program review boards; identification of career
development paths; development of critical elements for security
performance appraisals; establishment of training and experience
requirements for security management positions; and implementation of a
comprehensive education and training program for all FBI security
personnel. The FBI will be in a better position to determine what
additional resources, if any, will be needed upon completion of program
development.
internet-based regional information sharing system and internet-based
law enforcement online program
Question. The Attorney General's prepared statement says that a
``critical element in our battle plan against the terrorist threat is
working to develop and enhance interoperable databases and
telecommunications systems for the Department's law enforcement
activities.'' The USA PATRIOT Act authorized the expansion of the
Internet-based Regional Information Sharing System (RISS) funded by the
Bureau of Justice Assistance to enhance the investigation and
prosecution abilities of participating enforcement agencies in
addressing multi-jurisdictional terrorist conspiracies and activities.
The FBI has a complementary Internet-based Law Enforcement Online (LEO)
program that provides public and private controlled multi-level access
areas for specialized public safety organizations and disciplines. Both
programs enable state and local governments to collaborate with federal
agencies and with each other on counterterrorism, homeland security,
infrastructure protection, and other law enforcement matters. Such
Internet-based collaboration could include organizations with
significant roles in homeland security and infrastructure protection.
Please provide a plan with associated funding requirements for a
unified Internet-based information architecture including RISS and LEO
that meets the Department's needs to serve all organizations tasks that
are necessary for coherent homeland security, infrastructure
protection, and law enforcement efforts.
Answer. As reflected in the Attorney General's statement on the
subject, DOJ regards the interoperability of databases and
telecommunications systems as a crucial aspect in thwarting terrorism.
The Department believes that a system combining the strengths of both
the BJA's Regional Information Sharing System (RISS) and the FBI's Law
Enforcement Online (LEO) may provide the most effective means of
achieving this interoperability. Such a system could provide federal
and non-federal law enforcement agencies varying levels of access to
information they need to perform their missions more effectively. DOJ
is continuing study to determine the most feasible manner of combining
the two systems. The Department is near closure on the issue and will
be able to provide a plan soon.
Question. The Attorney General's prepared statement says that he
aims to establish a National Security Coordination Council (NSCC) of
the Department of Justice. Please provide the charter for the NSCC.
What are the specific functions of the NSCC, including its detailed
responsibilities for policy coordination, resource allocation,
operations, long-term planning and information sharing? What will be
its role in foreign counterintelligence and espionage matters, in
foreign intelligence matters beyond counterterrorism, and in matters
handled by the Office of Intelligence Policy and Review and the Joint
Foreign Terrorism Tracking Task Force.
Answer. The Attorney General's memorandum dated, March 5, 2002,
entitled, ``Establishment of the National Security Coordination
Council'' responds to this question.
Office of the Attorney General,
Washington, DC, March 5, 2002.
MEMORANDUM FOR HEADS OF DEPARTMENT COMPONENTS
FROM: THE ATTORNEY GENERAL
SUBJECT: Establishment of the National Security Coordination Council
Nearly five months after the devastating terrorist attacks of
September 11, 2001, the Department of Justice stands at the forefront
of President Bush's efforts to secure the American homeland. Throughout
the Department, we have made great strides toward fully deploying the
arsenal of justice to combat terrorism, and we have done so without
compromising our commitment to the rule of law. But there is much work
to be done.
The assaults on America that occurred on September 11, and the
supreme imperative to prevent further terrorist attacks, mandate a more
coordinated effort to combat terrorism and address other national
security challenges, both within the Department of Justice, and in the
Department's interaction with other law enforcement and intelligence
agencies.
Therefore, effective immediately, I hereby establish the National
Security Coordination Council (NSCC) of the Department of Justice,
which shall be chaired by the Deputy Attorney General. It shall be the
principal mission of the NSCC to ensure a more seamless coordination of
all functions of the Department relating to national security,
particularly the Department's efforts to combat terrorism directed
against the United States.
Under the Deputy Attorney General's leadership, the Council will:
--(1) Centralize and coordinate policy, resource allocation,
operations, and long-term planning of DOJ components regarding
counter-terrorism, counter-espionage, and other major national
security issues;
--(2) Monitor the implementation of Department policy to ensure that
components are taking all necessary and appropriate actions to
prevent and disrupt the occurrence of terrorist attacks in the
United States;
--(3) Provide an institutionalized Department forum for crisis
management;
--(4) Promote coordination and information-sharing within the
Department, between DOJ and other federal agencies and
interagency bodies, and between DOJ and state and local law
enforcement authorities, to prevent, prepare for, and respond
to terrorist attacks within the United States;
--(5) Frame national security issues for resolution by the Deputy
Attorney General or the Attorney General; and
--(6) Ensure that positions advanced by the Deputy Attorney General
on behalf of DOJ at interagency meetings of the National
Security Council, the Homeland Security Council, and other
interagency forums reflect input from DOJ national security
components.
In addition to the Deputy Attorney General, the NSCC's members will
include the following Department officials with responsibility for
national security matters: Chief of Staff to the Attorney General; FBI
Director (with appropriate participation by the Executive Assistant
Director for Counter-Terrorism/Counter-Intelligence); Assistant
Attorney General, Criminal Division (with appropriate participation by
the Terrorism and Violent Crime Section, the Office of International
Affairs, and other Division components); Commissioner of the
Immigration and Naturalization Service; Assistant Attorney General,
Office of Justice Programs; and Counsel, Office of Intelligence Policy
and Review.
The NSCC will meet on a bi-weekly basis or more frequently as
needed. In addition to the Deputy Attorney General and the permanent
members listed above, other senior Department officials as well as
senior officials from the Central Intelligence Agency and other
government agencies--will be invited to attend NSCC meetings when
appropriate. The NSCC will receive staff support from attorneys in the
Office of the Deputy Attorney General with expertise in national
security matters, and from ODAG administrative personnel. The functions
and personnel of the Executive Office of National Security will
henceforth be incorporated into the NSCC's operations.
The establishment of the NSCC marks a new chapter in the Department
of Justice's commitment to protecting the safety and well-being of the
American people. I call upon all Department officials and employees to
dedicate themselves to the success of this vital effort.
tobacco litigation resources
Question. The President's budget seeks $25.2 million for litigation
support in continuing the Justice Department's lawsuit against the
tobacco industry. Department officials, however, claim that they will
need up to $45 million in order to comply with fact and expert
discovery requirements established by the court, and for the litigation
team to prepare for trial, scheduled to begin in July 2003.
What is the total funding needed to continue the tobacco
litigation?
If the $25 million requested in the President's budget is not
sufficient to cover all those expenses, where are you getting the rest
of the money? In other words, what other departments or sources will
contribute to the costs of the tobacco litigation?
Answer. During fiscal year 2002, current funding of $38,200,000 is
sufficient to meet anticipated costs through September 30, 2002.
Although most of these funds come from the Health Care Fraud and Abuse
Control account (HCFAC), the Department will cover the $3,000,000 for
costs of experts that are likely to testify, as well as $1,800,000 for
a portion of the tobacco team's salaries and benefits.
With respect to fiscal year 2003, the team will need an estimated
$44,400,000. The funds will be needed to prepare for and undertake a
July trial. We anticipate that fiscal year 2003 funding will likely
come from a combination of sources, as in the past: (1) we have asked
Congress to approve the $25,200,000 program increase sought in the
President's budget for litigation support services that the team will
need to build the factual support for the government; (2) we will
continue to cover a portion of the salaries and benefits out of our
base funds of $1,800,000, and we will continue to cover the $3,000,000
for our testifying experts; and (3) the Department will likely seek to
use its own HCFAC funding to meet the balance of the estimated tobacco
litigation expenditures.
Fiscal year 2003 will continue to be a costly year for the
litigation. However, some costs are likely to be incurred in fiscal
year 2004, and perhaps beyond, depending on the outcome of the trial
and subsequent appeal decisions. Accordingly, we do not have cost
estimates beyond fiscal year 2003.
improving state and local law enforcement
Question. The Administration aims to repackage a number of Justice
Department grant programs and cut their funding. Grant programs
targeted for elimination include the State and Local Law Enforcement
Block Grants, which received $400 million this year; and Byrne law
enforcement block grants for efforts to improve state and local courts,
which received $500 million this year. The plan would cut more than
$1.6 billion from the $2.5 billion appropriated this year for state and
local law enforcement grants, and would combine what is left into a new
$800 million Justice Assistance Program. Please explain how the new
Justice Assistance Program would work, and why state and local law
enforcement agencies would lose $1.6 billion in the repackaging
process.
Answer. The first and overriding priority for the Department is
counterterrorism. This is reflected throughout our budget, which
refocuses our resources in support of our top priority. As part of this
refocusing, the Administration proposes reducing or eliminating several
grant programs. This redirection within the Justice budget enables our
law enforcement efforts to increase by 13 percent to address the threat
posed by terrorism.
The Justice Assistance Grants (JAG) Program is a formula grant
program that will provide assistance to states and local governments to
support a broad range of activities to prevent and control crime and
improve the criminal justice system. It would replace the Edward Byrne
Memorial Formula Grant Program and the Local Law Enforcement Block
Grant (LLEBG) Program with a single funding mechanism that will allow
easier administration by both grantees and the Bureau of Justice
Assistance (BJA). The President's budget for fiscal year 2003 proposes
this new program, funded under the Community Oriented Policing Service
(COPS) appropriation account, at the $800 million level. This
represents a reduction of only $195 million from the combined Byrne and
LLEBG funding enacted in last year's CJS appropriations bill. This does
not include the one-time, supplemental appropriation to the Byrne
program for counterterrorism grants.
Activities funded under the current Byrne Formula Program or LLEBG
program would continue to be eligible for funding. Funds provided to
states may be used for statewide initiatives, technical assistance and
training, and support for local jurisdictions. Local jurisdictions can
work together with other local jurisdictions to develop regional
projects supported by their JAG funds.
There are several advantages to the new program:
--Simplifies and Streamlines Policies, Practices, and Procedures.--
Along with combining funding streams for programs of similar
purposes, the JAG streamlines reporting requirements and
reduces general administrative tasks at federal, state and
local levels.
--Enhances State and Local Control.--Grantees will have greater
flexibility to use funds, enhancing their ability to address
community problems with a wider variety of solutions.
--Supports Collaboration and Communication.--The consolidation
encourages greater sharing of information and coordination
between state and local governments.
--Promotes Best Practices.--The consolidation will enhance the
ability of federal, state, and local governments to exchange
new and successful practices.
As reflected throughout the fiscal year 2003 President's budget,
the primary and overarching priority for the Department is to bolster
resources to respond more effectively to the threat of terrorism. As a
result, the Department had to redirect existing resources from other
program areas. Overall, the Office of Justice Programs is requesting a
decrease of $1.651 billion from the 2002 enacted level for the State
and Local Law Enforcement Assistance appropriation account. This
decrease includes the proposed elimination of the Byrne formula and the
LLEBG programs ($900 million), largely offset by the $800 million
requested under the COPS appropriation account for the JAG.
Other decreases requested include the proposed reduction to the
Juvenile Accountability Incentives Block Grant program of $34.45
million and the proposed elimination of the State Criminal Assistance
Alien Assistance ($565 million), Tribal Prison Construction ($35.191
million), Missing Alzheimers ($.898 million), Edward Byrne
Discretionary Grants ($94.489 million), Cooperative Agreement ($20
million), Victims of Trafficking ($10 million), and Motor Vehicle Theft
Prevention programs ($1.298 million). Increases are proposed for RSAT
(+$7 million), Drug courts (+$2 million), and technical assistance on
hate crimes prevention (+$1.3 million). While assistance to state and
local jurisdictions is reduced in the Department's budget, significant
new resources are requested for state and local jurisdictions in the
Federal Emergency Management Agency's budget of $3.5 billion.
civil rights and hate crimes
Question. In connection with the Judiciary Committee's December 6,
2001 oversight hearing and again at the February 26, 2002 Commerce,
Justice, State Appropriations Subcommittee hearing, you were asked for
the Department of Justice's position on S. 625, hate crimes legislation
that was reported by the Judiciary Committee to the full Senate on July
26, 2001. Your written response to the Judiciary Committee's prior
questions indicated support for more limited legislation previously
sponsored by Senator Hatch and not even introduced in this Congress,
without expressing any views on S. 625, the pending legislation and the
focus of the question. Again, at you more recent appearance on February
26, 2002, you did not give a firm position on S. 625. Given your
willingness to express a specific view on other legislation from prior
Congresses, and the fact that S. 625 is the bill that has actually been
reported to the full Senate, we again ask that you please provide the
Department's views on S. 625.
Answer. The Department's position on the pending hate crimes
legislation is informed by our recent experience in responding to bias-
motivated crimes which have unfortunately arisen in the wake of the
tragic events of September 11. Since that date, the Civil Rights
Division, which prosecutes bias-motivated crimes under several existing
federal statutes, has investigated 350 cases of alleged discriminatory
backlash against individuals perceived to be of Middle-Eastern origin,
including Arab Americans, Muslim Americans, Sikh Americans, and South-
Asian Americans. These cases are more specifically described in the
next answer.
Additionally, the Department recently indicted Darrell David Rice
for the 1996 murder of Julianne Marie Williams and Laura ``Lollie'' S.
Winans in the Shenandoah National Park. The four-count murder
indictment specifically invokes a federal sentencing enhancement that
was enacted to insure justice for victims of hate crimes. In this case,
the federal sentencing enhancement provides for increased punishment if
the fact finder at trial or, in the case of a plea of guilty or nolo
contendere, the court at sentencing determines beyond a reasonable
doubt that Rice intentionally selected either victim as the object of
the offence because of the victim's actual or perceived gender or
sexual orientation. If convicted of any of the charges in the
indictment, Rice could face the death penalty.
The Department of Justice appreciates the leadership Senators
Kennedy and Hatch, as well as other members of Congress, have shown on
the vital issue of hate crimes. Your leadership is reflected in the
fact that the Senate Judiciary Committee has now voted to send S. 625
to the full Senate. As your question notes, in my previous responses to
the Committee I observed that then-Governor Bush indicated during the
Presidential campaign that he supported Senator Hatch's proposed hate
crimes legislation, which was introduced during the 106th Congress and
which shares several features with S. 625. As I explained in my earlier
response, these common features include provision by the Attorney
General of assistance in the investigation or prosecution of any
violent crime that constitutes a felony and is motivated by animus
against the victim by reason of the membership of the victim in a
particular class or group; grants by the Attorney General to state and
local entities to assist in the investigation and prosecution of such
crimes; and the appropriation of $5,000,000 for the next 2 fiscal years
to carry out the grant program.
As you know, S. 625 is an important proposal which would amend the
federal criminal code in numerous significant respects. The Department
of Justice continues to review and evaluate the constitutional and
policy issues raised by the proposed amendments to the federal criminal
code in S. 625. At the same time, we are continuing to fulfill our
important mission of enforcing the existing laws relating to bias-
motivated crimes that fall within federal jurisdiction under existing
law.
Question. S. 625 is particularly critical now since that
legislation would both broaden federal hate crimes jurisdiction and
provide support for state prosecutions. You noted in your written
responses based on your December 6, 2002 testimony and it was brought
up again at the February 25 hearing that the FBI has commenced
approximately 300 federal criminal investigations involving post-
September 11 attacks on Arab or Muslim Americans, or others, based upon
their actual or perceived ethnicity. You indicate, however, that to
date there have only been 8 federal cases resulting from these
approximately 300 investigations. In short, there has been no federal
prosecution in over 97 percent of these investigations. Please advise
how many of these investigations: (a) have been closed, (b) have been
referred to state authorities, or (c) are still being actively
investigated by federal authorities? What criteria or factors are used
to determine whether a case will be referred to a state or local law
enforcement agency to handle and what, if any, is the federal role
after such a referral?
Answer. Since September 11, the Civil Rights Division (CRT), FBI,
and United States Attorneys' offices have investigated over 300 alleged
incidents involving violence or threats against individuals perceived
to be of Middle-Eastern origin, including Arab Americans, Muslim
Americans, Sikh Americans, and South-Asian Americans.
Of the over 300 federal investigations that have been initiated
since September 11, 75 of the investigations have been closed and 274
investigations remain open. Sixty-five of the federal investigations
have been or are being prosecuted by state and local prosecutors
following coordination and cooperation with federal investigators and
federal prosecutors. Although the Department of Justice does not have
knowledge of every state and local case prosecuted since September 11,
we have information indicating that state and local authorities are
actively pursuing additional cases. The CRT and the United States
Attorney's offices continue to coordinate with local prosecutors in
instances where cases are being prosecuted locally and where there are
also potential federal crimes that have not been charged to consider
whether plea bargains can resolve both local and federal criminal
liability.
To date, federal charges have been brought in 10 cases, and the CRT
and United States Attorneys' offices are working together to prosecute
those cases. In those cases, the Department of Justice believed that
there was an overriding federal interest in prosecuting an alleged
backlash crime that could otherwise be prosecuted locally. The factors
the Justice Department takes into account in making this determination
are: (1) the resources of the local law enforcement agency, both legal
and financial; (2) whether the local prosecution, if completed,
achieved a fair and just result; (3) the potential national deterrent
value of a federal prosecution in a given instance; and (4) whether
other federal interests are implicated, such as the protection of
federal government officials. After the Department has determined in a
case of dual jurisdiction to allow state and local authorities to
prosecute in the first instance, the Department closely monitors the
course of the local prosecution.
crimes against arab americans
Question. Immediately after the September 11 terrorist attacks, we
were reminded of the importance of federal civil rights enforcement by
the rash of crimes against Arab and Muslim Americans after the
September 11 attacks. These acts, and indeed all acts of
discrimination, cut at the very heart of what the terrorists hope to
destroy in the United States our tolerance and our diversity. The
budget request does not appear to match the rhetoric with the resources
needed to maintain the Department's longstanding leadership role in
national civil rights enforcement during these difficult times.
In recent answers to questions which you provided based upon your
December 6, 2001 appearance at the Senate Judiciary Committee, you note
that the FBI has commenced approximately 300 federal criminal
investigations involving post-September 11 attacks on Arab or Muslim
Americans, or others, based upon their actual or perceived ethnicity.
You indicate, however, that to date there have only been eight federal
cases resulting from these approximately 300 investigations. In short,
there has been no federal prosecution in over 97 percent of these
investigations. Why is it that the Department is prosecuting so few of
these violent crimes?
Answer. The Department of Justice is committed to prosecuting
vigorously the laws of the United States. Since September 11, CRT, FBI,
and United States Attorneys' offices have investigated over 300 alleged
incidents involving violence or threats against individuals perceived
to be of Middle-Eastern origin, including Arab Americans, Muslim
Americans, Sikh Americans, and South-Asian Americans.
Of the over 300 federal investigations that have been initiated
since September 11, 75 of the investigations have been closed and 274
investigations remain open. Sixty-five of the federal investigations
have been or are being prosecuted by state and local prosecutors
following coordination and cooperation with federal investigators and
federal prosecutors. Although the Department of Justice does not have
knowledge of every state and local case prosecuted since September 11,
we have information indicating that state and local authorities are
actively pursuing additional cases. The CRT and the United States
Attorney's offices continue to coordinate with local prosecutors in
instances where cases are being prosecuted locally and where there are
also potential federal crimes that have not been charged to consider
whether plea bargains can resolve both local and federal criminal
liability.
To date, federal charges have been brought in 10 cases, and the CRT
and United States Attorneys' offices are working together to prosecute
those cases. In those cases, the Department of Justice believed that
there was an overriding federal interest in prosecuting an alleged hate
crime that could otherwise be prosecuted locally. The factors the
Justice Department takes into account in making this determination are:
(1) the resources of the local law enforcement agency, both legal and
financial; (2) whether the local prosecution, if completed, achieved a
fair and just result; (3) the potential national deterrent value of a
federal prosecution in a given instance; and (4) whether other federal
interests are implicated, such as the protection of federal government
officials. After the Department has determined in a case of dual
jurisdiction to allow state and local authorities to prosecute in the
first instance, the Department closely monitors the course of the local
prosecution.
We are pleased to note that cooperation between federal agents and
local law enforcement officers and between Justice Department
prosecutors and local prosecutors has been outstanding. This is a
testament to local law enforcement nationwide, which has shown the
willingness to, and which has largely been given the legal and
financial resources to, investigate and prosecute vigorously alleged
bias-motivated crimes against individuals perceived to be of Middle-
Eastern origin, including Arab Americans, Muslim Americans, Sikh
Americans, and South-Asian Americans. The Department is aware that, in
rare instances, local authorities may not have the tools or the will to
prosecute a particular bias-motivated crime fully. In those rare
instances, the Department will be prepared to initiate federal
proceedings, if appropriate.
America is well-served by our partners in state and local law
enforcement. If the post-September 11 alleged incidents of violence
were a test of local efforts to prosecute bias-motivated crimes, local
law enforcement passed with flying colors.
Question. Even counting all state prosecutions, no matter how
minor, you stated that there are less than 60 total cases out of 300
investigations. Why is it that in 80 percent of these violent cases no
one at all has been prosecuted in any way? How is the decision made
whether a case will be federally prosecuted or referred to the state
and what is the federal role after such a referral?
Answer. The Department of Justice is committed to prosecuting
vigorously the laws of the United States. Since September 11, CRT, FBI,
and United States Attorneys' offices have investigated over 300 alleged
incidents involving violence or threats against individuals perceived
to be of Middle-Eastern origin, including Arab Americans, Muslim
Americans, Sikh Americans, and South-Asian Americans.
Of the over 300 federal investigations that have been initiated
since September 11, 75 of the investigations have been closed and 274
investigations remain open. Sixty-five of the federal investigations
have been or are being prosecuted by state and local prosecutors
following coordination and cooperation with federal investigators and
federal prosecutors. Although the Department of Justice does not have
knowledge of every state and local case prosecuted since September 11,
we have information indicating that state and local authorities are
actively pursuing additional cases. The CRT and the United States
Attorney's offices continue to coordinate with local prosecutors in
instances where cases are being prosecuted locally and where there are
also potential federal crimes that have not been charged to consider
whether plea bargains can resolve both local and federal criminal
liability.
To date, federal charges have been brought in 10 cases, and the CRT
and United States Attorneys' offices are working together to prosecute
those cases. In those cases, the Department of Justice believed that
there was an overriding federal interest in prosecuting an alleged hate
crime that could otherwise be prosecuted locally. The factors the
Justice Department takes into account in making this determination are:
(1) the resources of the local law enforcement agency, both legal and
financial; (2) whether the local prosecution, if completed, achieved a
fair and just result; (3) the potential national deterrent value of a
federal prosecution in a given instance; and (4) whether other federal
interests are implicated, such as the protection of Federal Government
officials. After the Department has determined in a case of dual
jurisdiction to allow state and local authorities to prosecute in the
first instance, the Department closely monitors the course of the local
prosecution.
Many of the alleged incidents that have been investigated by the
Department of Justice have been closed, the alleged incidents are still
being actively investigated, the Department is coordinating with local
prosecutors to consider whether plea bargains can resolve both local
and federal criminal liability, or the Department has determined in
cases of dual jurisdiction to allow state and local authorities to
prosecute in the first instance. The Department of Justice closes
investigations when the facts indicate that there is no prosecutable
federal crime or when a companion state or local prosecution has
achieved a fair and just result that requires no subsequent federal
prosecution.
Question. You also noted in your prior written responses to
questions that there have been approximately 50 state or local cases
involving hate crimes after the September 11 attacks. Are these 50
cases included in the same 300 investigations you set forth above?
Please provide the following information regarding each of the state
cases to which you refer: (a) identify the state or jurisdiction in
which each case is pending, (b) indicate whether each state charge was
a felony or misdemeanor, and (c) provide any available information
regarding the dispositions and the punishments received, if any.
Answer. Of the over 300 federal investigations that have been
initiated since September 11, 75 of the investigations have been closed
and 274 investigations remain open. Sixty-five of the federal
investigations have been or are being prosecuted by state and local
prosecutors following coordination and cooperation with federal
investigators and federal prosecutors.
Please see Attachment 2 for the information about state and local
prosecutions of which the Department of Justice is aware. Where the
Department is not aware of certain requested facts pertaining to these
state and local prosecutions, the entry is left blank.
Question. What criteria are being employed to determine whether a
hate crime case will be prosecuted in federal or state court? In how
many of these state prosecutions was federal prosecution legally
possible, but forgone in lieu of a state case?
Answer. Since September 11, CRT, FBI, and United States Attorneys'
offices have investigated over 300 alleged incidents involving violence
or threats against individuals perceived to be of Middle-Eastern
origin, including Arab Americans, Muslim Americans, Sikh Americans, and
South-Asian Americans.
Of the over 300 federal investigations that have been initiated
since September 11, 75 of the investigations have been closed and 274
investigations remain open. Sixty-five of the federal investigations
have been or are being prosecuted by state and local prosecutors
following coordination and cooperation with federal investigators and
federal prosecutors. Although the Department of Justice does not have
knowledge of every state and local case prosecuted since September 11,
we have information indicating that state and local authorities are
actively pursuing additional cases. The CRT and the United States
Attorney's offices continue to coordinate with local prosecutors in
instances where cases are being prosecuted locally and where there are
also potential federal crimes that have not been charged to consider
whether plea bargains can resolve both local and federal criminal
liability.
To date, federal charges have been brought in 10 cases, and the CRT
and United States Attorneys' offices are working together to prosecute
those cases. In those cases, the Department of Justice believed that
there was an overriding federal interest in prosecuting an alleged hate
crime that could otherwise be prosecuted locally. The factors the
Justice Department takes into account in making this determination are:
(1) the resources of the local law enforcement agency, both legal and
financial; (2) whether the local prosecution, if completed, achieved a
fair and just result; (3) the potential national deterrent value of a
federal prosecution in a given instance; and (4) whether other federal
interests are implicated, such as the protection of federal government
officials. After the Department has determined in a case of dual
jurisdiction to allow state and local authorities to prosecute in the
first instance, the Department closely monitors the course of the local
prosecution.
Many of the alleged incidents that have been investigated by the
Department of Justice have been closed, the alleged incidents are still
being actively investigated, the Department is coordinating with local
prosecutors to consider whether plea bargains can resolve both local
and federal criminal liability, or the Department has determined in
cases of dual jurisdiction to allow state and local authorities to
prosecute in the first instance. The Department of Justice closes
investigations when the facts indicate that there is no prosecutable
federal crime or when a companion state or local prosecution has
achieved a fair and just result that requires no subsequent federal
prosecution.
Question. The Judiciary Committee has asked the Attorney General in
written questions for information about the process used for reviewing
potential hate crimes cases within the Department of Justice, including
which officials were involved and to what extent the process differs
from the review to which other cases are subjected. Your reply simply
provided the name of the top official with final certification
authority in hate crimes prosecutions. In order for Congress, in both
its oversight and legislative roles, to evaluate whether the extremely
low federal hate crime prosecution rate is due to the narrow scope of
the current law, policy based decisions of the Department of Justice to
forgo federal prosecution in these cases, inadequate resources devoted
to this problem or some other reason, a more thorough response
describing how the review process in these cases differs from other
criminal cases would be helpful. For this reason, please provide a more
complete response to this question. Specifically, please advise what
guidelines or policies, if any, are in place to ensure that these cases
are handled appropriately? Please explain why fewer than 3 percent of
these allegations have resulted in federal prosecution at a time when
the President is publicly condemning such violent acts?
Answer. The process of determining whether to initiate a
prosecution pursuant to 18 Sec. 245 begins after FBI has investigated
the alleged crime in coordination with CRT and United States Attorneys'
offices. After the investigation is completed, attorneys in the
Criminal Section of CRT deliberate with Assistant Attorney General
Ralph F. Boyd, Jr. and other attorneys within the Office of the
Assistant Attorney General. Per section 245(a)(1), no prosecution can
be undertaken except upon the certification of the Attorney General,
the Deputy Attorney General, the Associate Attorney General, or any
Assistant Attorney General specially designated by the Attorney
General. The Attorney General has specially designated Assistant
Attorney General Boyd as the person who must certify that a prosecution
under section 245 may go forward.
With respect to the absolute number of federal prosecutions, the
Department credits the outstanding cooperation between federal agents
and local law enforcement officers and between Justice Department
prosecutors and local prosecutors. This is a testament to local law
enforcement nationwide, which has shown the willingness to, and which
has largely been given the legal and financial resources to, vigorously
investigate and prosecute alleged bias-motivated crimes against
individuals perceived to be of Middle-Eastern origin, including Arab
Americans, Muslim Americans, Sikh Americans, and South-Asian Americans.
The Department is aware that, in rare instances, local authorities may
not have the tools or the will to prosecute a given bias-motivated
crime fully. In those rare instances, the Department will be prepared
to initiate federal proceedings, if appropriate.
mississippi redistricting plan
Question. The President's budget request did not call for any
additional resources for the Department's Voting Rights Section, even
though the recent press reports about the Department's role in blocking
a redistricting plan for congressional seats in Mississippi are
disturbing. During your confirmation hearing, you recognized that
``[v]oting is a fundamental civil right'' and pledged if confirmed that
you would ``work aggressively and vigilantly to enforce federal voting
rights laws.'' You assured this Committee that ``[i]t will be a top
priority of a Bush Department of Justice, part of what I hope would be
its legacy.'' In addition, in your testimony today, you reemphasized
the importance of the right to vote in the context of implementing
election reform.
Nevertheless, according to recent reports, the Department's belated
request for additional information regarding the Mississippi
redistricting plan proposed by elected Mississippi state legislators
and approved by a state judge put that plan at risk of being supplanted
by an alternative plan that is ``favorable to Republican candidates,''
and was ordered by what is described as ``a panel of white Republican-
appointed federal judges.'' The alternative plan may be imposed based
not upon that plan's merits but rather based upon scheduling concerns
stemming from the Department's foot-dragging in the matter. These
allegations are serious and necessitate prompt responses explaining the
Department's actions.
Answer. The Department's request for additional information was
sent to the Mississippi Attorney General on February 14, 2002, well
within the statutorily-imposed 60-day deadline for making
determinations under section 5 of the Voting Rights Act of 1965.
Subsequently, in light of the ruling of the three-judge federal court
that the state's plan is unconstitutional, the Department sent a
routine ``no determination'' letter to the Mississippi Attorney General
informing him that the Department would take no further action at this
time. The Department of Justice has never failed to meet its
obligations under section 5 of the Voting Rights Act of 1965 within the
prescribed statutory time frames. In the past year, the Department has
received over 5,000 section 5 submissions encompassing more than 15,000
voting changes, and has never missed a deadline.
Question. When did the Department first receive the redistricting
plan?
Answer. On December 26, 2001, the Mississippi Attorney General
submitted three voting changes, including the congressional
redistricting plan adopted by the Chancery Court for the First Judicial
District of Hinds County, Mississippi, to the Department. The other two
voting changes submitted for approval involved the creation of a state
legislative committee to address redistricting and a state supreme
court decision, on writ of mandamus, allowing a chancery court to draw
a congressional redistricting plan.
Question. Who within the Department was assigned the task of
reviewing the plan, and how long did that review take?
Answer. The Voting Section of the Civil Rights Division reviewed
the voting changes submitted by the Mississippi Attorney General in
accordance with its usual procedures for reviewing submissions to the
Department pursuant to section 5 of the Voting Rights Act of 1965. On
February 14, 2002, the Department asked the Mississippi Attorney
General for more information concerning certain changes and advised him
of legal concerns regarding whether the submission was final. Also on
February 14, 2002, in an attempt to expedite the Department's decision-
making process, Assistant Attorney General Ralph F. Boyd, Jr. sent a
letter to the Supreme Court of Mississippi, respectfully requesting the
expedited consideration of the state court appeal. On February 19-20,
2002, the Department received additional information from the
Mississippi Attorney General, but the Department never received a
response from the Supreme Court of Mississippi.
Question. Were any memoranda or recommendations prepared by the
Voting Rights Section in connection with the initial review of the
redistricting plan and, if so, please provide for each memoranda: the
date, the author, the recipients and a description of the document?
Answer. Attorneys in the Voting Section prepared memoranda
regarding the redistricting plan, in accordance with their usual
procedures regarding pre-clearance matters submitted to the Department
pursuant to section 5 of the Voting Rights Act of 1965. The Department
has substantial confidentiality interests in such memoranda because of
concerns that their disclosure would chill the candid internal exchange
of information about particular law enforcement decisions. We believe
that this confidentiality is important to ensuring the robust
deliberations within the Department and the integrity of our decision-
making process.
Question. On what date did career trial attorneys in the Voting
Rights Section make any recommendations about the redistricting plan,
and to whom did they make those recommendations?
Answer. We appreciate your interest in the Mississippi
redistricting plan and hope that you will appreciate the Department's
substantial confidentiality interests in the internal deliberations
within CRT relative to this law enforcement matter. Department
decision-makers have long been concerned that disclosure of information
about internal deliberations regarding particular matters would make it
more difficult for them to obtain the candid advice and recommendations
of their subordinates. We would like to explore other alternatives for
accommodating your oversight interests such as through a briefing by
Assistant Attorney General Boyd about the decisions that he made in
this matter, as suggested in his letter of March 19, 2002.
Question. Who reviewed the recommendations of the Voting Rights
Section about the Mississippi redistricting plan?
Answer. The Mississippi redistricting plan was reviewed in
accordance with CRT's usual procedures regarding section 5 submissions
and Assistant Attorney General Ralph F. Boyd, Jr. decided to send the
letters, dated February 14, 2002, which requested additional
information from the Mississippi Attorney General and sought expedited
consideration from the Mississippi Supreme Court.
Question. How much time passed after the career employees in the
Voting Rights Section made initial recommendations on the Mississippi
plan to the office of the Assistant Attorney General, Civil Rights
Division, and the Department's questions to the State of Mississippi?
Were any changes made in the recommendations of the Voting Rights
Section referred to above and, if so, what were those changes?
Did the Department take the actions initially recommended by the
career trial attorneys in the Voting Rights Section and, if not, please
explain how any actions taken by the Department differed from those
initial recommendations?
Answer. With regard to these questions, as indicated above, the
Department has substantial confidentiality interests in its internal
deliberations regarding law enforcement matters, because we want to
protect the candid exchange of views, including advice and
recommendations, that we believe is essential to the integrity of our
decision-making processes. We would like to accommodate your oversight
interests in the Department's decisions regarding the Mississippi
redistricting plan in a manner that avoids these concerns. As indicated
in his letter, March 19, 2002. Assistant Attorney General Boyd would be
pleased to brief you at your earliest convenience about his decisions
in this matter.
Question. When does the Department expect make a final preclearance
decision on the Mississippi redistricting plan now that the state's
Attorney General has submitted answers to the Department's belated
questions?
Answer. On February 26, 2002, a three-judge panel sitting in the
United States District Court for the Southern District of Mississippi
held that the adoption of the chancery court's plan violated Article I,
Section 4 of the United States Constitution and was, therefore,
unconstitutional and a nullity. Requests for a stay of the District
Court's order were denied by the United States Supreme Court. The
Supreme Court is not expected to determine fully whether the plan is
constitutional until its next term. In light of the District Court's
action, the Department has not taken further action, and on April 1,
2002 the Department sent a ``no determination'' letter to Mississippi
notifying it of the Department's position. We will closely monitor the
appeal in this case.
Question. Do you believe that the Voting Rights Section is able to
perform its statutory duties, including completion of preclearance
reviews in a timely fashion? If so, please explain why?
Answer. The Voting Section has sufficient resources to fulfill its
obligations. The Section has successfully shifted some resources
internally to accommodate the numerous voting changes enacted as a
result of the 2000 Census. The Department of Justice has never failed
to meet its obligations under section 5 of the Voting Rights Act of
1965 within the prescribed statutory time frames. In the past year, the
Department has received over 5,000 section 5 submissions, encompassing
more than 15,000 voting changes, and has never missed a deadline.
civil rights division
Question. The President's budget for the rest of the Civil Rights
Division did not propose any of the increases recommended for the
Department's other components. Your assurances about the Department's
continued commitment to strong civil rights enforcement and, in
particular, your responses to the following questions would be
appreciated.
Have the Department's internal priorities in civil rights
enforcement changed in the last year?
Answer. The Department's current civil-rights priorities include
(in no particular order): (1) the enforcement of the Americans with
Disabilities Act of 1990 and the implementation of the Olmstead v. L.C.
decision; (2) the enforcement of statutes prohibiting migrant smuggling
and human trafficking, including the Trafficking Victims Protection Act
of 2000; (3) the investigation and prosecution of alleged incidents
involving violence or threats against individuals perceived to be of
Middle-Eastern origin, including Arab Americans, Muslim Americans, Sikh
Americans, and South-Asian Americans, and the coordination of outreach
efforts to individuals and organizations from those communities to
provide information about government services; and (4) the enforcement
of voting rights and the provision of resources to state and local
governments on voting reform.
Question. Please provide the Committee with any documents
reflecting enforcement policies, priorities or directions to the U.S.
Attorneys' Offices or to the Civil Rights Division.
Answer. Please see documents in Attachment 3.
Question. Please provide the Committee with any documents
reflecting an evaluation over the last year of the propriety or
correctness of any legal arguments which the Department of Justice has
made in previous civil rights enforcement actions.
Answer. The Department constantly evaluates the propriety and
correctness of its legal arguments in light of evolving judicial
precedence and the evidentiary records in particular matters. Its
briefs and other statements of legal positions filed in law enforcement
related litigation reflect these continuing developments. As indicated
above, the Department has substantial confidentiality interests in
internal documents reflecting its deliberations regarding legal
positions in individual matters.
tax division and environmental and natural resources division
Question. The President's budget also calls for cuts in the
Environmental and Natural Resources Division and the Tax Division.
These are the Department's components responsible for enforcing the
environmental laws and bringing cases against tax evaders. Given the
recent tax cuts and changes over the last year in the nation's
environmental regulatory scheme, aggressive enforcement of the
remaining tax and environmental laws should be a priority. Please
explain in detail how the Department plans to implement these cuts in
the Tax Division and the ENRD?
Answer. The request for the Tax Division includes a decrease of
$1.1 million in salaries and expenses below the current services level,
which equates to a reduction in 10 positions.
The Tax Division is fully committed to the fair, vigorous, and
uniform enforcement of the tax laws, and will continue to prosecute tax
crimes and defend and pursue civil claims. We expect to absorb the
requested budget decrease in part by streamlining processes, increasing
productivity, resolving cases in a more cost-effective manner, and
devoting more resources earlier to precedent-setting cases.
Additionally, the President's budget includes a proposal to move
certain tax collection due process proceedings from the United States
District Courts to the United States Tax Court, which will relieve the
Tax Division of the burden of handling those cases.
Tax Division's budget for fiscal year 2000 through 2003:
Million
Fiscal year 2000 appropriation.................................... $67.2
Fiscal year 2001 appropriation.................................... 70.8
Fiscal year 2002 enacted.......................................... 73.8
Fiscal year 2003 President's budget............................... 75.5
The Environment and Natural Resources Division will be able to
absorb the fiscal year 2003 cut of $1,085,000 and 8 positions in the
Environmental Enforcement Section through attrition. In the past 5
years, the Environmental Enforcement Section has had annual turnover of
25-35 people each year. We plan to absorb this cut reduce staff by
replacing 8 fewer staff.
The Environment and Natural Resources Division will continue to
bring cases to address pollution problems in the United States. The
proposed reduction in the number of staff who handle civil enforcement
cases is necessary so that resources can be focused on counterterrorism
efforts.
Attachment 1.--Homeland Security Presidential Directive-2--October 29,
2001
Office of the Press Secretary,
October 30, 2001.
SUBJECT: Combating Terrorism Through Immigration Policies
A. National Policy
The United States has a long and valued tradition of welcoming
immigrants and visitors. But the attacks of September 11, 2001, showed
that some come to the United States to commit terrorist acts, to raise
funds for illegal terrorist activities, or to provide other support for
terrorist operations, here and abroad. It is the policy of the United
States to work aggressively to prevent aliens who engage in or support
terrorist activity from entering the United States and to detain,
prosecute, or deport any such aliens who are within the United States.
1. Foreign Terrorist Tracking Task Force
By November 1, 2001, the Attorney General shall create the Foreign
Terrorist Tracking Task Force (Task Force), with assistance from the
Secretary of State, the Director of Central Intelligence and other
officers of the government, as appropriate. The Task Force shall ensure
that, to the maximum extent permitted by law, Federal agencies
coordinate programs to accomplish the following: (1) deny entry into
the United States of aliens associated with, suspected of being engaged
in, or supporting terrorist activity; and (2) locate, detain,
prosecute, or deport any such aliens already present in the United
States.
The Attorney General shall appoint a senior official as the full-
time Director of the Task Force. The Director shall report to the
Deputy Attorney General, serve as a Senior Advisor to the Assistant to
the President for Homeland Security, and maintain direct liaison with
the Commissioner of the Immigration and Naturalization Service (INS) on
issues related to immigration and the foreign terrorist presence in the
United States. The Director shall also consult with the Assistant
Secretary of State for Consular Affairs on issues related to visa
matters.
The Task Force shall be staffed by expert personnel from the
Department of State, the INS, the Federal Bureau of Investigation, the
Secret Service, the Customs Service, the Intelligence Community,
military support components, and other federal agencies as appropriate
to accomplish the Task Force's mission.
The Attorney General and the Director of Central Intelligence shall
ensure, to the maximum extent permitted by law, that the Task Force has
access to all available information necessary to perform its mission,
and they shall request information from State and local governments,
where appropriate.
With the concurrence of the Attorney General and the Director of
Central Intelligence, foreign liaison officers from cooperating
countries shall be invited to serve as liaisons to the Task Force,
where appropriate, to expedite investigation and data sharing.
Other federal entities, such as the Migrant Smuggling and
Trafficking in Persons Coordination Center and the Foreign Leads
Development Activity, shall provide the Task Force with any relevant
information they possess concerning aliens suspected of engaging in or
supporting terrorist activity.
2. Enhanced INS and Customs Enforcement Capability
The Attorney General and the Secretary of the Treasury, assisted by
the Director of Central Intelligence, shall immediately develop and
implement multi-year plans to enhance the investigative and
intelligence analysis capabilities of the INS and the Customs Service.
The goal of this enhancement is to increase significantly efforts to
identify, locate, detain, prosecute or deport aliens associated with,
suspected of being engaged in, or supporting terrorist activity within
the United States.
The new multi-year plans should significantly increase the number
of Customs and INS special agents assigned to Joint Terrorism Task
Forces, as deemed appropriate by the Attorney General and the Secretary
of the Treasury. These officers shall constitute new positions over and
above the existing on-duty special agent forces of the two agencies.
3. Abuse of International Student Status
The United States benefits greatly from international students who
study in our country. The United States government shall continue to
foster and support international students.
The government shall implement measures to end the abuse of student
visas and prohibit certain international students from receiving
education and training in sensitive areas, including areas of study
with direct application to the development and use of weapons of mass
destruction. The government shall also prohibit the education and
training of foreign nationals who would use such training to harm the
United States or its allies.
The Secretary of State and the Attorney General, working in
conjunction with the Secretary of Education, the Director of the Office
of Science and Technology Policy, the Secretary of Defense, the
Secretary of Energy, and any other departments or entities they deem
necessary, shall develop a program to accomplish this goal. The program
shall identify sensitive courses of study, and shall include measures
whereby the Department of State, the Department of Justice, and United
States academic institutions, working together, can identify
problematic applicants for student visas and deny their applications.
The program shall provide for tracking the status of a foreign student
who receives a visa (to include the proposed major course of study, the
status of the individual as a full-time student, the classes in which
the student enrolls, and the source of the funds supporting the
student's education). The program shall develop guidelines that may
include control mechanisms, such as limited duration student
immigration status, and may implement strict criteria for renewing such
student immigration status. The program shall include guidelines for
exempting students from countries or groups of countries from this set
of requirements.
In developing this new program of control, the Secretary of State,
the Attorney General, and the Secretary of Education shall consult with
the academic community and other interested parties. This new program
shall be presented through the Homeland Security Council to the
President within 60 days.
The INS, in consultation with the Department of Education, shall
conduct periodic reviews of all institutions certified to receive
nonimmigrant students and exchange visitor program students. These
reviews shall include checks for compliance with record keeping and
reporting requirements. Failure of institutions to comply may result in
the termination of the institution's approval to receive such students.
4. North American Complementary Immigration Policies
The Secretary of State, in coordination with the Secretary of the
Treasury and the Attorney General, shall promptly initiate negotiations
with Canada and Mexico to assure maximum possible compatibility of
immigration, customs, and visa policies. The goal of the negotiations
shall be to provide all involved countries the highest possible level
of assurance that only individuals seeking entry for legitimate
purposes enter any of the countries, while at the same time minimizing
border restrictions that hinder legitimate trans-border commerce.
As part of this effort, the Secretaries of State and the Treasury
and the Attorney General shall seek to substantially increase sharing
of immigration and customs information. They shall also seek to
establish a shared immigration and customs control data-base with both
countries. The Secretary of State, the Secretary of the Treasury, and
the Attorney General shall explore existing mechanisms to accomplish
this goal and, to the maximum extent possible, develop new methods to
achieve optimal effectiveness and relative transparency. To the extent
statutory provisions prevent such information sharing, the Attorney
General and the Secretaries of State and the Treasury shall submit to
the Director of the Office of Management and Budget proposed remedial
legislation.
5. Use of Advanced Technologies for Data Sharing and
Enforcement Efforts
The Director of the OSTP, in conjunction with the Attorney General
and the Director of Central Intelligence, shall make recommendations
about the use of advanced technology to help enforce United States
immigration laws, to implement United States immigration programs, to
facilitate the rapid identification of aliens who are suspected of
engaging in or supporting terrorist activity, to deny them access to
the United States, and to recommend ways in which existing government
databases can be best utilized to maximize the ability of the
government to detect, identify, locate, and apprehend potential
terrorists in the United States. Databases from all appropriate Federal
agencies, state and local governments, and commercial databases should
be included in this review. The utility of advanced data mining
software should also be addressed. To the extent that there may be
legal barriers to such data sharing, the Director of the OSTP shall
submit to the Director of the Office of Management and Budget proposed
legislative remedies. The study also should make recommendations,
propose timelines, and project budgetary requirements.
The Director of the OSTP shall make these recommendations to the
President through the Homeland Security Council within 60 days.
6. Budgetary Support
The Office of Management and Budget shall work closely with the
Attorney General, the Secretaries of State and of the Treasury, the
Assistant to the President for Homeland Security, and all other
appropriate agencies to review the budgetary support and identify
changes in legislation necessary for the implementation of this
directive and recommend appropriate support for a multi-year program to
provide the United States a robust capability to prevent aliens who
engage in or support terrorist activity from entering or remaining in
the United States or the smuggling of implements of terrorism into the
United States. The Director of the Office of Management and Budget
shall make an interim report through the Homeland Security Council to
the President on the recommended program within 30 days, and shall make
a final report through the Homeland Security Council to the President
on the recommended program within 60 days.
George W. Bush.
Attachment 2.--State and Local Backlash Prosecutions of Which the
Department of Justice is Aware
Location: DeQueen, Arkansas
Charge: Criminal mischief
Felony/Misdemeanor: Juvenile charge
Disposition/Sentence: Conviction. Sentencing pending.
Location: Mesa, Arizona
Charge: Capital Murder
Felony/Misdemeanor: Felony
Disposition/Sentence: Pending
Location: San Diego, California
Charge: Assault
Felony/Misdemeanor: Misdemeanor
Disposition/Sentence: Conviction. Sentenced to 3 years probation,
$1,000 restitution.
Location: San Diego, California
Charge: Threats and arson
Felony/Misdemeanor:
Disposition/Sentence: Dismissed
Location: Lancaster, California
Charge: Assault
Felony/Misdemeanor: Felony
Disposition/Sentence: Conviction. Sentenced to 4 years
incarceration.
Location: Los Angeles, California
Charge: Threats
Felony/Misdemeanor:
Disposition/Sentence: Dismissed
Location: Moreno Valley, California
Charge: Threats
Felony/Misdemeanor:
Disposition/Sentence: Conviction. Sentenced to 120 days
incarceration.
Location: Bellflower, California
Charge: Threat
Felony/Misdemeanor: Misdemeanor
Disposition/Sentence: Conviction
Location: Los Angeles, California
Charge: Threats, civil rights, and weapons charges
Felony/Misdemeanor:
Disposition/Sentence: Pending
Location: Lawndale, California
Charge: Threats
Felony/Misdemeanor: Misdemeanor
Disposition/Sentence: Conviction. Sentenced to 21 days
incarceration and 3 years probation.
Location: Sacramento, California
Charge: Trespass
Felony/Misdemeanor:
Disposition/Sentence: Conviction. Sentenced to 3 years
incarceration
Location: Frostproof, Florida
Charge: Criminal mischief, throwing deadly missile into bldg.
Felony/Misdemeanor:
Disposition/Sentence: Prosecution terminated
Location: Kissimmee, Florida
Charge: Attempted arson and threats
Felony/Misdemeanor:
Disposition/Sentence: Dismissed
Location: Chicago, Illinois
Charge: Hate crime
Felony/Misdemeanor: Felony
Disposition/Sentence: Conviction. Sentenced to 2 years mental
health probation, 200 hours community service.
Location: Palos Heights, Illinois
Charge: Aggravated battery, use of unlawful weapon.
Felony/Misdemeanor:
Disposition/Sentence: Pending
Location: Evansville, Indiana
Charge: Criminal mischief, DUI
Felony/Misdemeanor: Felony
Disposition/Sentence: Conviction
Location: Indianapolis, Indiana
Charge: Battery
Felony/Misdemeanor:
Disposition/Sentence: Conviction. Sentenced to 65 days, 61
suspended, 40 hours community service, $500 fine and $976 restitution.
Location: Laurel, Maryland
Charge: Malicious vandalism
Felony/Misdemeanor: Misdemeanor
Disposition/Sentence: Conviction
Location: Boston, Massachusetts
Charge: Assault and battery with dangerous weapon
Felony/Misdemeanor:
Disposition/Sentence: Pending
Location: Fairhaven, Massachusetts
Charge: Assault and battery
Felony/Misdemeanor:
Disposition/Sentence: Pending
Location: Sommerset, Massachusetts
Charge: Assault and explosive device
Felony/Misdemeanor: Felony
Disposition/Sentence: Pending against 2 defendants, conviction of
one defendant, sentenced to 1 year probation with a suspended sentence
Location: Lincoln Park, Michigan
Charge: First degree murder
Felony/Misdemeanor: Felony
Disposition/Sentence: Pending
Location: Minneapolis, Minnesota
Charge: Assault and disorderly conduct
Felony/Misdemeanor:
Disposition/Sentence: Conviction. Sentenced to 12 to 20 days
incarceration, $1000 fine
Location: St. Louis, Missouri
Charge: Assault
Felony/Misdemeanor:
Disposition/Sentence: Conviction. Sentenced to 2 years probation,
40 hours community service.
Location: St. Louis, Missouri
Charge: Assault and ethnic intimidation
Felony/Misdemeanor: Felony
Disposition/Sentence: Pending
Location: Manchester, New Hampshire
Charge: Assault motivated by hate
Felony/Misdemeanor: Felony
Disposition/Sentence: Pending
Location: Clifton, New Jersey
Charge: Bias crime
Felony/Misdemeanor:
Disposition/Sentence: Pending
Location: Hammonton, New Jersey
Charge: Harassment
Felony/Misdemeanor:
Disposition/Sentence: Conviction. Sentenced to 30 days
incarceration, suspended sentence, $100 fine
Location: Lower Township, New Jersey
Charge: Criminal mischief and harassment
Felony/Misdemeanor:
Disposition/Sentence: Conviction
Location: Mantau Township, New Jersey
Charge: Ethnic intimidation
Felony/Misdemeanor:
Disposition/Sentence: Pending
Location: West Deptford Township, New Jersey
Charge: Assault
Felony/Misdemeanor:
Disposition/Sentence: Dismissed
Location: Atlantic City, New Jersey
Charge: Terrorist threats and harassment
Felony/Misdemeanor
Disposition/Sentence Pending
Location: Huntington, New York
Charge: Reckless endangerment and DWI
Felony/Misdemeanor:
Disposition/Sentence: Conviction. Sentenced to 3 years probation
Location: Ronkonkoma, New York
Charge: Second degree menacing
Felony/Misdemeanor:
Disposition/Sentence: Conviction. Sentenced to 30 days
incarceration, 3 years probation
Location: Queens, New York
Charge: Assault and criminal mischief
Felony/Misdemeanor:
Disposition/Sentence: Pending against one defendant and one
juvenile. Conviction of one defendant of harassment, sentenced to 100
hours community service
Location: Palermo, New York
Charge: Arson and vandalism
Felony/Misdemeanor: Felony
Disposition/Sentence: Pending
Location: Bellerose, New York
Charge: Trespass
Felony/Misdemeanor:
Disposition/Sentence: Pending
Location: Grand Forks, North Dakota
Charge: Aggravated assault
Felony/Misdemeanor: Felony
Disposition/Sentence: Conviction. 90 days incarceration.
Location: Parma, Ohio
Charge: Burglary, ethnic intimidation, DUI, and vandalism
Felony/Misdemeanor: Felony
Disposition/Sentence: Conviction. Sentenced to 5 years
incarceration.
Location: Cleveland, Ohio
Charge: Discharging firearm
Felony/Misdemeanor:
Disposition/Sentence: Dismissed in connection w/plea to federal
drug charges
Location: Tulsa, Oklahoma
Charge: Aggravated assault and malicious intimidation
Felony/Misdemeanor:
Disposition/Sentence: Pending
Location: Norman, Oklahoma
Charge: Assault
Felony/Misdemeanor:
Disposition/Sentence: Pending
Location: Eugene, Oregon
Charge: Harassment and intimidation
Felony/Misdemeanor:
Disposition/Sentence: Conviction. Sentenced to 30 days
incarceration, 60 months probation.
Location: Meadville Pennsylvania
Charge: Aggravated assault with dangerous weapon, ethnic
intimidation
Felony/Misdemeanor: Felony
Disposition/Sentence: Pending
Location: Lower Marion, Pennsylvania
Charge: Simple assault
Felony/Misdemeanor:
Disposition/Sentence: Pending
Location: Philadelphia, Pennsylvania
Charge: Attempted arson and risking catastrophe
Felony/Misdemeanor:
Disposition/Sentence: Pending
Location: Pittsburgh, Pennsylvania
Charge: Simple assault and ethnic intimidation
Felony/Misdemeanor:
Disposition/Sentence: Pending
Location: Mesquite, Texas
Charge: Capital murder
Felony/Misdemeanor: Felony
Disposition/Sentence: Pending
Location: Dallas, Texas
Charge: Murder
Felony/Misdemeanor: Felony
Disposition/Sentence: Pending
Location: Dallas, Texas
Charge: Robbery and assault with dangerous weapon
Felony/Misdemeanor: Felony
Disposition/Sentence: Pending
Location: North Richland Hills, Texas
Charge: Terrorist threats
Felony/Misdemeanor:
Disposition/Sentence: Pending
Location: Fannett, Texas
Charge: Felony criminal mischief
Felony/Misdemeanor: Felony
Disposition/Sentence: Pending
Location: Alexandria, Virginia
Charge: Assault and battery
Felony/Misdemeanor:
Disposition/Sentence: Conviction. Sentenced to 60 days
incarceration.
Location: Alexandria, Virginia
Charge: Unlawful wounding
Felony/Misdemeanor:
Disposition/Sentence: Pending
Location: Dumfries, Virginia
Charge: Assault
Felony/Misdemeanor:
Disposition/Sentence: Conviction. 1 defendant sentenced to 60 days
incarceration; 1 defendant sentenced to 1 year incarceration (both
sentences suspended).
Location: Hampton, Virginia
Charge: Terrorist threats
Felony/Misdemeanor:
Disposition/Sentence: Diversion. To be dismissed after 100 hours
community service.
Location: Fairfax, Virginia
Charge: Assault and battery
Felony/Misdemeanor: Felony
Disposition/Sentence: Pending
Location: Sterling, Virginia
Charge: Threats
Felony/Misdemeanor:
Disposition/Sentence: Not guilty verdict
Location: Mountainlake Terrace, Washington
Charge: Malicious harassment
Felony/Misdemeanor: Felony
Disposition/Sentence: Conviction. 1 defendant sentenced to 9 months
incarceration; 2 juveniles detained.
Location: Everett, Washington
Charge: Harassment
Felony/Misdemeanor: Misdemeanor
Disposition/Sentence: Conviction. Sentenced to 18 days
incarceration
Location: Seattle, Washington
Charge: Malicious harassment
Felony/Misdemeanor:
Disposition/Sentence: Pending
Location: Seattle, Washington
Charge: Malicious harassment
Felony/Misdemeanor: Misdemeanor
Disposition/Sentence: Conviction. Sentenced to 2 years probation
Location: Seatack, Washington
Charge: Assault
Felony/Misdemeanor:
Disposition/Sentence: Pending
Location: Milwaukee, Wisconsin
Charge: Disorderly conduct
Felony/Misdemeanor: Misdemeanor
Disposition/Sentence: Dismissed
Location: Milwaukee, Wisconsin
Charge: Disorderly conduct
Felony/Misdemeanor: Misdemeanor
Disposition/Sentence: Conviction. Sentenced to 10 days
incarceration, 18 months probation, $1,000 fine.
Attachment 3.--New Freedom Initiative--February 2001
foreword by president george w. bush
My Administration is committed to tearing down the barriers to
equality that face many of the 54 million Americans with disabilities.
Eleven years ago the Americans with Disabilities Act (ADA) made it
a violation of federal law to discriminate against a person with a
disability.
But there is much more to do. Though progress has been made in the
last decade, too many Americans with disabilities remain trapped in
bureaucracies of dependence, denied the tools they need to fully access
their communities.
The unemployment rate for Americans with disabilities hovers at 70
percent. Home ownership rates are in the single digits. And Internet
access for Americans with disabilities is half that of people without
disabilities.
I am committed to tearing down the remaining barriers to equality
that face Americans with disabilities today. My New Freedom Initiative
will help Americans with disabilities by increasing access to assistive
technologies, expanding educational opportunities, increasing the
ability of Americans with disabilities to integrate into the workforce,
and promoting increased access into daily community life.
I look forward to working with Congress to see these proposals
become law.
executive summary
fulfilling america's promise to americans with disabilities
Disability is not the experience of a minority of Americans.
Rather, it is an experience that will touch most Americans at some
point during their lives.
Today, there are over 54 million Americans with disabilities, a
full 20 percent of the U.S. population. Almost half of these
individuals have a severe disability, affecting their ability to see,
hear, walk, or perform other basic functions of life. In addition,
there are over 25 million family caregivers and millions more who
provide aid and assistance to people with disabilities.
Eleven years ago, Congress passed and President George Bush signed
one of the most significant civil rights laws since the Civil Rights
Act of 1964--the Americans with Disabilities Act (ADA). In doing so,
America opened its door to a new age for people with disabilities. Two
and a half years ago, amendments to Section 508 of the Rehabilitation
Act of 1973 were enacted ensuring that the Federal Government would
purchase electronic and information technology which is open and
accessible for people with disabilities.
Although progress has been made over the years to improve access to
employment, public accommodations, commercial facilities, information
technology, telecommunications services, housing, schools, and polling
places, significant challenges remain for Americans with disabilities
in realizing the dream of equal access to full participation in
American society. Indeed, the Harris surveys by the National
Organization on Disability and numerous other studies have highlighted
these persistent obstacles.
Americans with disabilities have a lower level of educational
attainment than those without disabilities:
--One out of five adults with disabilities has not graduated from
high school, compared to less than one of ten adults without
disabilities.
--National graduation rates for students who receive special
education and related services have stagnated at 27 percent for
the past three years, while rates are 75 percent for students
who do not rely on special education.
Americans with disabilities are poorer and more likely to be
unemployed than those without disabilities:
--In 1997, over 33 percent of adults with disabilities lived in a
household with an annual income of less than $15,000, compared
to only 12 percent of those without disabilities.
--Unemployment rates for working-age adults with disabilities have
hovered at the 70 percent level for at least the past 12 years,
while rates are significantly lower for working-age adults
without disabilities.
Too many Americans with disabilities remain outside the economic
and social mainstream of American life:
--71 percent of people without disabilities own homes, but fewer than
10 percent of those with disabilities do.
--Computer usage and Internet access for people with disabilities is
half that of people without disabilities.
--People with disabilities vote at a rate that is 20 percent below
voters without disabilities. In local areas, disability issues
seldom surface in election campaigns, and inaccessible polling
places often discourage citizens with disabilities from voting.
People with disabilities want to be employed, educated, and
participating, citizens living in the community. In today's global new
economy, America must be able to draw on the talents and creativity of
all its citizens.
The Administration will work to ensure that all Americans have the
opportunity to learn and develop skills, engage in productive work,
choose where to live and participate in community life. The President's
``New Freedom Initiative'' represents an important step in achieving
these goals. It will expand research in and access to assistive and
universally designed technologies, further integrate Americans with
disabilities into the workforce and help remove barriers to
participation in community life.
the policy
The ``New Freedom Initiative'' is composed of the following key
components:
Increasing Access to Assistive and Universally Designed Technologies:
Federal Investment in Assistive Technology Research and
Development.--The Administration will provide a major increase in the
Rehabilitative Engineering Research Centers' budget for assistive
technologies, create a new fund to help bring assistive technologies to
market, and better coordinate the Federal effort in prioritizing
immediate assistive and universally designed technology needs in the
disability community.
Access to Assistive Technology.--Assistive technology is often
prohibitively expensive. In order to increase access, funding for low-
interest loan programs to purchase assistive technologies will increase
significantly.
Expanding Educational Opportunities for Americans with Disabilities:
Increase Funding for the Individuals with Disabilities Education
Act (IDEA).--In return for participating in a new system of flexibility
and accountability in the use of Federal education funds, states will
receive an increase in IDEA funds for education at the local level and
help in meeting the special needs of students with disabilities.
Focus on Reading in Early Grades.--States that establish a
comprehensive reading program for students, including those with
disabilities, from preschool through second grade will be eligible for
grants under President Bush's Reading First and Early Reading First
Initiatives.
Integrating Americans with Disabilities into the Workforce:
Expanding Telecommuting.--The Administration will provide Federal
matching funds to states to guarantee low-interest loans for
individuals with disabilities to purchase computers and other equipment
necessary to telework from home. In addition, legislation will be
proposed to make a company's contribution of computer and Internet
access for home use by employees with disabilities a tax-free benefit.
Swift Implementation of ``Ticket to Work''.--President Bush has
committed to sign an order that directs the federal agency to swiftly
implement the law giving Americans with disabilities the ability to
choose their own support services and maintain their health benefits
when they return to work.
Full Enforcement of the Americans with Disabilities Act (ADA).--
Technical assistance will be provided to promote ADA compliance and to
help small businesses hire more people with disabilities. The
Administration will also promote the Disabled Access Credit, an
incentive program created in 1990 to assist small businesses comply
with the Act.
Innovative Transportation Solutions.--Accessible transportation can
be a particularly difficult barrier for Americans with disabilities
entering the workforce. Funding will be provided for 10 pilot programs
that use innovative approaches to developing transportation plans that
serve people with disabilities. The Administration will also establish
a competitive matching grant program to promote access to alternative
methods of transportation through community-based and other providers.
Promoting Full Access to Community Life:
Promote Homeownership for People with Disabilities.--Congress
recently passed the ``American Homeownership and Economic Opportunity
Act of 2000,'' which will permit recipients with disabilities to use up
to a year's worth of vouchers to finance the down payment on a home.
The Administration will work to swiftly implement the recently enacted
law.
Swift Implementation of the Olmstead Decision.--President Bush has
committed to sign an order supporting the most integrated community-
based settings for individuals with disabilities, in accordance with
the Olmstead decision.
National Commission on Mental Health.--President Bush has committed
to create a National Commission on Mental Health, which will study and
make recommendations for improving America's mental health service
delivery system, including making recommendations on the availability
and delivery of new treatments and technologies for individuals with
severe mental illness.
Improving Access.--Federal matching funds will be provided annually
to increase the accessibility of organizations that are currently
exempt from Title III of the ADA, such as churches, mosques,
synagogues, and civic organizations. The Administration also supports
improving access to polling places and ballot secrecy for people with
disabilities.
increasing access to assistive and universally designed technologies--
(title i)
overview
The Administration's commitment to increase access to assistive and
universally designed technologies is based upon the principle that
every American must have the opportunity to participate fully in
society. In the global new economy, America must draw on the talents
and creativity of all its citizens.
Assistive and universally designed technologies can be a powerful
tool for millions of Americans with disabilities, dramatically
improving one's quality of life and ability to engage in productive
work. New technologies are opening opportunities for even those with
the most severe disabilities. For example, some individuals with
quadriplegia can now operate computers by the glance of an eye. As the
National Council on Disability (NCD) has stated, ``for Americans
without disabilities, technology makes things easier. For Americans
with disabilities, technology makes things possible.''
Unfortunately, assistive and universally designed technologies are
often prohibitively expensive. In addition, innovation is being
hampered by insufficient Federal funding for and coordination of
assistive technology research and development programs.
The New Freedom Initiative will help ensure that Americans with
disabilities can access the best technologies of today and that even
better technologies will be available in the future. At the core of
this effort are proposals that reinvigorate the Federal investment in
assistive technologies; improve Federal collaboration and promote
private-public partnerships; and increase access to this technology for
people with disabilities.
summary of proposals
Increases Federal Investment in Assistive Technology Research and
Development:
Rehabilitative Engineering Research Centers (RERCs) are recognized
as conducting some of the most innovative and high impact assistive
technology research in the Federal Government. The 15 RERCs are housed
in universities and other non-profit institutions around the country
and focus on a specific area of research--for example, information
technology access, prosthetics and orthotics, and technology for
children with orthopedic disabilities. To advance research specifically
targeted to the disabilities community, the Administration will
significantly increase funding for the RERCs.
Improves Coordination of the Federal Assistive Technology Research and
Development Program:
There is no effective coordinating body for assistive technology
research and development within the Federal Government. While the
Interagency Committee on Disabilities Research (ICDR) was designed to
coordinate the Federal effort, it has no real authority and has no
budget. The Administration will provide new funding to the ICDR so that
it can prioritize the immediate assistive and universally designed
technology needs in the disability community, as well as foster
collaborative projects between the Federal laboratories and the private
sector.
Promotes Private-Public Partnerships:
There are nearly 2,500 companies working to bring new assistive
technologies to market. Many small businesses, however, cannot make the
necessary capital investments until they have information concerning
the market for a particular assistive technology. To help these
businesses bring assistive technologies to market, the Administration
will establish an ``Assistive Technology Development Fund.'' Housed
under the ICDR, the fund will help underwrite technology demonstration,
testing, validation and market assessment to meet specific needs of
small businesses so that they can better serve the needs of people with
disabilities.
Increases Access to Assistive Technology:
Assistive technology is often prohibitively expensive. For example,
personal computers configured with assistive technology can cost
anywhere from $2,000 to $20,000. The Administration will significantly
increase Federal funding for low-interest loans to purchase assistive
technology. These grants will go to a state agency in collaboration
with banks or non-profit groups to guarantee loans and lower interest
rates.
expanding educational opportunities for americans with disabilities--
(title ii)
overview
Education is the key to independent living and a high quality of
life. Unfortunately, one in five adults with disabilities has not
graduated from high school, compared to less than one of ten adults
without disabilities. The Administration will expand access to quality
education for Americans with disabilities.
Originally passed by Congress in 1975, the Individuals with
Disabilities Act, or IDEA, ensures that children with disabilities
would have a free public education that would meet their unique needs.
The Administration will increase educational opportunity for
children with disabilities by working with Congress to give states
increased IDEA funds. This will help meet the needs of students with
disabilities and free up additional resources for education at the
local level.
summary of proposals
Increases Funding for Special Education.--In return for
participating in a new system of flexibility and accountability in the
use of Federal education funds, states will receive an increase in IDEA
funds for education at the local level and help in meeting the special
needs of students with disabilities.
Establishes the ``Reading First'' Program.--President Bush will
increase Federal funding to students, including those with
disabilities, by creating an incentive fund for states to teach every
child to read by third grade. States that choose to draw from this fund
will be required to initiate, among other requirements: a reading
diagnostic test for students in K-2 to determine where students need
help; a research-based reading curriculum; training for K-2 teachers in
reading preparation; and intervention for students who are not reading
at grade level in K-2.
Supplements Reading First with an Early Childhood Reading
Initiative.--States participating in the Reading First program will
have the option to receive ``Early Reading First'' funding to implement
research-based reading programs in existing pre-school programs and
Head Start programs that feed into participating elementary schools.
The purpose of this program is to illustrate on a larger scale recent
research findings that children taught pre-reading and math skills in
pre-school enter school ready to learn reading and mathematics.
promoting homeownership for americans with disabilities--(title iii)
overview
Homeownership has always been at the heart of the ``American
dream.'' This past year, Congress passed the ``American Homeownership
and Economic Opportunity Act of 2000,'' which reforms Federal rental
assistance to give individuals who qualify the opportunity to purchase
a home.
Rental assistance for low-income Americans, including those with
disabilities, is provided by a program known as Section 8 of the
Housing Act of 1937, administered by the U.S. Department of Housing and
Urban Development (HUD). Residents are provided Section 8 vouchers so
that they can afford rental payments for public housing. And many of
those Section 8 vouchers go to individuals with disabilities.
In addition to increasing independence, homeownership also promotes
savings. Mortgage payments, unlike rental payments, help build net
worth because a portion of the payment goes toward building equity. In
turn, as one's home equity increases, it becomes easier to finance
other purchases such as a computer or further education.
summary of action
Implementation of the Section 8 Program to Allow Recipients to Apply
Their Rental Vouchers to Homeownership:
The Administration will implement Public Law 106-569, which allows
local Public Housing Authorities to provide recipients of Section 8
vouchers who have disabilities with up to a year's worth of vouchers in
a lump-sum payment to finance the down payment on a home.
integrating americans with disabilities into the workforce--title iv
(part a: promoting telework)
overview
Americans with disabilities should have every freedom to pursue
careers, integrate into the workforce, and participate as full members
in the economic marketplace.
The New Freedom Initiative will help tear down barriers to the
workplace, and help promote full access and integration.
Computer technology and the Internet have tremendous potential to
broaden the lives and increase the independence of people with
disabilities. Nearly half of people with disabilities say the Internet
has significantly improved their quality of life, compared to 27
percent of people without disabilities.
The computer and Internet revolution has not reached as many people
with disabilities as the population without disabilities. Only 25
percent of people with disabilities own a computer, compared with 66
percent of U.S. adults. And only 20 percent of people with disabilities
have access to the Internet, compared to over 40 percent of U.S.
adults.
The primary barrier to wider access is cost. Computers with
adaptive technology can cost as much as $20,000, which is prohibitively
expensive for many individuals. And the median income of Americans with
disabilities is far below the national average.
The New Freedom Initiative will expand the avenue of teleworking,
so that individuals with mobility impairments can work from their homes
if they choose.
summary of proposals
Creates the ``Access to Telework'' Fund.--Federal matching funds
will be provided annually to states to guarantee low-income loans for
people with disabilities to purchase equipment to telecommute from
home.
Makes a Company's Contribution of Computer and Internet Access for
Home Use by Employees with Disabilities a Tax-Free Benefit.--The
Administration will encourage businesses to give computers and Internet
access to employees with disabilities by making it explicit that this
provision is a tax-free benefit. By making this benefit tax free to
employees, the proposal will encourage more employers to provide
computer equipment and Internet access, and employees will have greater
options to take advantage of this flexibility for teleworking. For
individuals with disabilities, this flexibility will expand the
universe of potential and accessible employment.
Prohibits OSHA from Regulating ``Home Office'' Standards.--In
November 1999, the U.S. Department of Labor's Occupational Safety and
Health Administration (OSHA) issued an 8-page response to an employer
inquiry asserting that it had the power to regulate home office
standards and hold employers responsible if those standards were not
met. This proposal would have had a chilling effect on teleworking, as
employers would seek to avoid potential liabilities. Although OSHA has
since withdrawn the response, it has not yet foreclosed future action.
The proposal will amend the Occupational Safety and Health Act of 1970
to prohibit OSHA from being applied to the home worksites of employees
who work at home through the use of ``telephone, computer or electronic
device.''
integrating americans with disabilities into the workforce--(part b:
ticket-to-work)
overview
In 1999, Congress passed the ``Ticket-to-Work and Work Incentives
Improvement Act,'' which will give Americans with disabilities both the
incentive and the means to seek employment.
As part of the New Freedom Initiative, the Administration will
ensure the Act's swift implementation.
Today, there are more than 7.5 million Americans with disabilities
receiving benefits under Federal disability programs. According to a
recent Harris Survey, conducted by the National Organization of
Disability, 72 percent of the Americans with disabilities want to work.
However, in part because of disincentives in Federal law, less than 1
percent of those receiving disability benefits fully enter the
workforce.
Prior to the ``Ticket to Work'' law, in order to continue to
receive disability payments and health coverage, recipients could not
engage in any substantial work. The Ticket to Work law, however,
provides incentives for people with disabilities to return to work by:
--Providing Americans with disabilities with a voucher-like
``ticket'' that allows them to choose their own support
services, including vocational education programs and
rehabilitation services.
--Extending Medicare coverage for SSDI beneficiaries so they can
return to work without the fear of losing health benefits.
--Expanding Medicaid eligibility categories for certain working
people with severe disabilities so that they can continue to
receive benefits after their income or condition improves.
summary of action
President Bush Has Committed to Sign an Order to Support Effective
and Swift Implementation of ``Ticket to Work''.--The order will direct
the federal agency to continue to swiftly implement the law giving
Americans with disabilities the ability to choose their own support
services and to maintain their health benefits when they return to
work.
integrating americans with disabilities into the workforce--(part c:
compliance with americans with disabilities act)
overview
When the Americans with Disabilities Act (ADA) was signed into law
on July 26, 1990, it was the most far reaching law advancing access of
individuals with disabilities, workforce integration, and independence.
The law, signed by President George Bush, gives civil rights
protections to individuals with disabilities that are like those
provided to individuals on the basis of race, sex, national origin, and
religion.
In the eleven years since it was signed, the ADA has worked to
guarantee equal opportunity for individuals with disabilities in
employment, public accommodations, transportation, State and local
government services, and telecommunications. The law has been
especially helpful in providing access to jobs, especially in the small
business sector, which has created two-thirds of all net new jobs since
the early 1970s.
To encourage small businesses to comply with the ADA, legislation
was signed into law in 1990 to provide a credit for 50 percent of
eligible expenses up to $5,000 a year. Such eligible expenses include
assistive technologies. Unfortunately, many small businesses are not
aware of this credit.
President George W. Bush believes that the Americans with
Disabilities Act has been an integral component of the movement toward
full integration of individuals with disabilities but recognizes that
there is still much more to be done. He also recognizes that to further
integrate individuals with disabilities into the workforce, more needs
to be done to promote ADA compliance.
summary of proposals
Supports the ADA and Provides Technical Assistance to Small
Businesses.--The President and the Attorney General will ensure full
enforcement of the Americans with Disabilities Act by the Civil Rights
Division of the Department of Justice. In addition, the New Freedom
Initiative will provide resources annually for technical assistance to
help small businesses comply with the Act, serve customers, and hire
more people with disabilities.
Promotes the Awareness and Utilization of Disabled Access Credit
(DAC).--The DAC, created in 1990, is an incentive program to assist
small businesses in complying with the ADA. DAC provides a credit for
50 percent of eligible expenses up to $5,000 a year, including expenses
associated with making their facilities accessible and with purchasing
assistive technologies. Utilization of the credit has been limited
because small businesses are often not aware of it.
expanding transportation options--(title v)
overview
Every American should have the opportunity to participate fully in
society and engage in productive work. Unfortunately, millions of
Americans with disabilities are locked out of the workplace because
they are denied the tools and access necessary for success.
Transportation can be a particularly difficult barrier to work for
Americans with disabilities. In 1997, the Director of Project Action
stated that ``access to transportation is often the critical factor in
obtaining employment for the nation's 25 million transit dependent
people with disabilities.'' Today, the lack of adequate transportation
remains a primary barrier to work for people with disabilities: one-
third of people with disabilities report that inadequate transportation
is a significant problem.
Through formula grant programs and the enforcement of the ADA, the
Federal Government has helped make our mass transit systems more
accessible. More must be done, however, to test new transportation
ideas and to increase access to alternate means of transportation, such
as vans with specialty lifts, modified automobiles, and ride-share
programs for those who cannot get to buses or other forms of mass
transit.
On a daily basis, many non-profit groups and businesses are working
hard to help people with disabilities live and work independently.
These organizations often lack the funds to get people with
disabilities to job interviews, to job training, and to work.
The Federal Government should support the development of innovative
transportation initiatives and partner with local organizations to
promote access to alternate methods of transportation.
summary of proposals
Promotes innovative transportation solutions for people with
disabilities by funding pilot programs.--The proposal provides funding
for 10 pilot programs run by state or local governments in regional,
urban, and rural areas. Pilot programs will be selected on the basis of
the use of innovative approaches to developing transportation plans
that serve people with disabilities. The Administration will work with
Congress to evaluate the effectiveness of these pilot programs and
encourage the expansion of successful initiatives.
Helps create a network of alternate transportation through
community-based and other providers.--The proposal will establish a
competitive matching grant program to promote access to alternative
methods of transportation. This dollar-for-dollar matching program will
be open to community-based organizations that seek to integrate
Americans with disabilities into the workforce. The funds will go
toward the purchase and operation of specialty vans, assisting people
with down payments or costs associated with accessible vehicles, and
extending the use of existing transportation resources.
promoting full access to community life--title vi (part a: commitment
to community-based care)
overview
On June 22, 1999, the Supreme Court decided Olmstead v. L.C.,
ruling that, in appropriate circumstances, the ADA requires the
placement of persons with disabilities in a community-integrated
setting whenever possible. The Court concluded that ``unjustified
isolation,'' e.g., institutionalization when a doctor deems community
treatment equally beneficial, ``is properly regarded as discrimination
based on disability.''
Olmstead has yet to be fully implemented. President Bush believes
that community-based care is critically important to promoting maximum
independence and to integrating individuals with disabilities into
community life.
summary of proposals
President Bush has Committed to Sign an Order Supporting Swift
Implementation of the Olmstead Decision.--The order will support the
most integrated community-based settings for individuals with
disabilities, in accordance with the Olmstead decision. The
Administration will pursue swift implementation in a manner that
respects the proper roles of the Federal Government and the several
states.
promoting full access to community life--(part b: better coordination
of federal resources to address mental health problems)
overview
Currently, there are numerous Federal agencies that oversee mental
health policies, funding, laws and programs including: the Substance
Abuse and Mental Health Services Administration, the National
Institutes of Health, the Health Care Financing Administration, the
Office of Personnel Management, the Social Security Administration, the
Health Resources and Services Administration, the Department of Housing
and Urban Development, the Department of Education, the Department of
Justice, and the Department of Labor.
These Federal agencies are doing valuable work, but they would be
much more effective, efficient, and less duplicative if they were
better coordinated.
With coordination, the competitive advantage of each agency could
be leveraged to provide the most needed and suitable service in the
framework of federal efforts to address mental health.
summary of proposals
President Bush Has Committed to Create a National Commission on
Mental Health.--The National Commission will study and make
recommendations for improving America's mental health service delivery
system, including making recommendations on the availability and
delivery of new treatments and technologies for individuals with severe
mental illness.
promoting full access to community life--(part c: access to the
political process)
overview
There are over 35 million voting-age persons with disabilities, but
currently people with disabilities register to vote at a rate that is
16 percentage points less than the rest of the population and vote at a
rate that is 20 percent voters who have no disabilities.
According to the National Organization on Disability, low voter
turnout among people who are disabled is due to both accessibility
problems at voting locations and the lack of secrecy and independence
when voting. The most recent Federal Election Commission (FEC) report
states that at least 20,000 of the Nation's more than 120,000 polling
places are inaccessible to people with disabilities.
President Bush recognizes that full integration into society must
include access to and participation in the political process.
summary of proposals
Supports Improving Accessibility to Voting for Americans with
Disabilities.--President Bush will support improved access to polling
places and ballot secrecy. He will work with Congress to address the
barriers to voting for Americans with disabilities and to expanding
suffrage for all Americans.
promoting full access to community life--(part d: access to ada-exempt
organizations)
overview
Title III of the Americans with Disabilities Act of 1990 opened
countless businesses and public accommodations to people with
disabilities by mandating that they be made accessible. For
constitutional and other concerns, however, Title III exempts many
civic organizations (such as Rotary and Lions Clubs) and religious
organizations from its requirements of full access.
Americans with disabilities should be fully integrated into their
communities, and civic and religious organizations are vital parts of
those communities. Too many private clubs, churches, synagogues, and
mosques are inaccessible or unwelcoming to people with disabilities. As
a result, people with disabilities are often unable to participate as
fully in community or religious events.
The National Organization on Disability has led a national effort
to make places of worship accessible and welcoming to all Americans.
Many organizations and congregations want to be open to all but have
limited resources to ensure accessibility.
Every effort should be made to ensure that Americans with
disabilities have the opportunity to be integrated into their
communities and welcomed into communities of faith.
summary of proposals
Establishes a National Fund to Provide Matching Grants for
Accessibility Renovations for ADA-Exempt Organizations.--To assist
private clubs and religious organizations in making sure that their
facilities are fully accessible and to expand access for all, the
proposal provides annual Federal matching grants to ADA-exempt
organizations making renovations or accommodations to improve
accessibility. Because all ADA-exempt organizations will be eligible
for the grants, irrespective of whether they are religious or secular,
they would comport with the Supreme Court's test for constitutional
neutrality.
[From the Federal Register, June 21, 2001 (Volume 66, Number 120)]
Title 3--The President
executive order 13217 of june 18, 2001
community-based alternatives for individuals with disabilities
By the authority vested in me as President by the Constitution and
the laws of the United States of America, and in order to place
qualified individuals with disabilities in community settings whenever
appropriate, it is hereby ordered as follows:
Section 1. Policy. This order is issued consistent with the
following findings and principles:
(a) The United States is committed to community-based alternatives
for individuals with disabilities and recognizes that such services
advance the best interests of Americans.
(b) The United States seeks to ensure that America's community-
based programs effectively foster independence and participation in the
community for Americans with disabilities.
(c) Unjustified isolation or segregation of qualified individuals
with disabilities through institutionalization is a form of disability-
based discrimination prohibited by Title II of the Americans With
Disabilities Act of 1990 (ADA), 42 U.S.C. 12101 et. seq. States must
avoid disability-based discrimination unless doing so would
fundamentally alter the nature of the service, program, or activity
provided by the State.
(d) In Olmstead v. L.C., 527 U.S. 581 (1999) (the ``Olmstead
decision''), the Supreme Court construed Title II of the ADA to require
States to place qualified individuals with mental disabilities in
community settings, rather than in institutions, whenever treatment
professionals determine that such placement is appropriate, the
affected persons do not oppose such placement, and the State can
reasonably accommodate the placement, taking into account the resources
available to the State and the needs of others with disabilities.
(e) The Federal Government must assist States and localities to
implement swiftly the Olmstead decision, so as to help ensure that all
Americans have the opportunity to live close to their families and
friends, to live more independently, to engage in productive
employment, and to participate in community life.
Sec. 2. Swift Implementation of the Olmstead Decision: Agency
Responsibilities. (a) The Attorney General, the Secretaries of Health
and Human Services, Education, Labor, and Housing and Urban
Development, and the Commissioner of the Social Security Administration
shall work cooperatively to ensure that the Olmstead decision is
implemented in a timely manner. Specifically, the designated agencies
should work with States to help them assess their compliance with the
Olmstead decision and the ADA in providing services to qualified
individuals with disabilities in community-based settings, as long as
such services are appropriate to the needs of those individuals. These
agencies should provide technical guidance and work cooperatively with
States to achieve the goals of Title II of the ADA, particularly where
States have chosen to develop comprehensive, effectively working plans
to provide services to qualified individuals with disabilities in the
most integrated settings. These agencies should also ensure that
existing Federal resources are used in the most effective manner to
support the goals of the ADA. The Secretary of Health and Human
Services shall take the lead in coordinating these efforts.
(b) The Attorney General, the Secretaries of Health and Human
Services, Education, Labor, and Housing and Urban Development, and the
Commissioner of the Social Security Administration shall evaluate the
policies, programs, statutes, and regulations of their respective
agencies to determine whether any should be revised or modified to
improve the availability of community-based services for qualified
individuals with disabilities. The review shall focus on identifying
affected populations, improving the flow of information about supports
in the community, and removing barriers that impede opportunities for
community placement. The review should ensure the involvement of
consumers, advocacy organizations, providers, and relevant agency
representatives. Each agency head should report to the President,
through the Secretary of Health and Human Services, with the results of
their evaluation within 120 days.
(c) The Attorney General and the Secretary of Health and Human
Services shall fully enforce Title II of the ADA, including
investigating and resolving complaints filed on behalf of individuals
who allege that they have been the victims of unjustified
institutionalization. Whenever possible, the Department of Justice and
the Department of Health and Human Services should work cooperatively
with States to resolve these complaints, and should use alternative
dispute resolution to bring these complaints to a quick and
constructive resolution.
(d) The agency actions directed by this order shall be done
consistent with this Administration's budget.
Sec. 3. Judicial Review. Nothing in this order shall affect any
otherwise available judicial review of agency action. This order is
intended only to improve the internal management of the Federal
Government and does not create any right or benefit, substantive or
procedural, enforceable at law or equity by a party against the United
States, its agencies or instrumentalities, its officers or employees,
or any other person.
George Bush.
THE WHITE HOUSE,
June 18, 2001.
Memorandum
U.S. Department of Justice,
Executive Office for United States Attorneys,
Washington, D.C., March 28, 2001.
TO: ALL UNITED STATES ATTORNEYS
ALL FIRST ASSISTANT UNITED STATES ATTORNEYS
ALL CRIMINAL CHIEFS
FROM: Mark T. Calloway, Director
SUBJECT: Guidance on New Law Concerning Trafficking in Persons
ACTION REQUIRED: Please distribute the attached prosecution guidance
memorandum as appropriate to your attorney staff, including
your Worker Exploitation Task Force Point of Contact.
DUE DATE: None. For information and distribution.
RESPOND TO: Albert N. Moskowitz
Criminal Section Chief
Civil Rights Division
Telephone: (202) 514-3204
Lou de Baca
Involuntary Servitude and Slavery Case Coordinator
Civil Rights Division
Telephone: (202) 514-3204
Thomas Burrows
Child Exploitation and Obscenity Section Chief
Criminal Division
Telephone: (202) 514-5780
Richard C. Smith
Counsel to the Director
Executive Office for United States Attorneys
Telephone: (202) 514-1023
CONTACT PERSONS: Same as above.
Yesterday, the Attorney General announced that the United States
Department of Justice (the Department) will focus its efforts on three
major areas to implement the newly-enacted Trafficking Victims
Protection Act of 2000, Public Law 106-386. Those three areas are
outreach, cooperation, and prosecution. For your review and reference,
I am forwarding to you under cover of this memorandum a transcript of
the Attorney General's press conference of March 27, 2001, at which he
announced his plans to implement the new law.
To ensure that all federal prosecutors are aware of the various
aspects of the Trafficking Victims Protection Act of 2000, the Attorney
General has directed that the attached memorandum, authored by the
Civil Rights Division and the Criminal Division of the Department, be
distributed to all United States Attorneys' Offices. The memorandum
provides important information and guidance on the investigation and
prosecution of criminal cases under the new law.
I ask that you distribute copies of this memorandum to those
Assistant United States Attorneys in your offices to whom you have
given prosecution responsibility for these kinds of criminal cases,
including your previously-designated Worker Exploitation Task Force
Point of Contact. In addition, I encourage you to contact the Civil
Rights Division, the Criminal Division, or the Executive Office for
United States Attorneys, through the persons identified above, if you
have any questions or comments about this important prosecution work.
Attachments as noted
cc: All United States Attorneys' Secretaries
Attorney General News Conference
worker exploitation--march 27, 2001
ATTY GEN. ASHCROFT: Good afternoon. Thank you very much for coming.
Nice to see you.
This past Friday Mr. Kil-Soo Lee was arrested in American Samoa on
a two-count federal complaint charging violations of the Trafficking
Victims Protection Act of the year 2000. These charges are based on
allegations that Mr. Lee held mostly female workers recruited from
Vietnam in involuntary servitude in his garment factory by using or
threatening force to obtain the labor or services of his victims over a
period of nearly two years. That period of time extended from February
1999 until December of the year 2000.
One of my last acts as a United States Senator was to vote for a
law which would curtail this kind of activity. That law was signed on
October the 28th of the year 2000. This law increases the terms of
incarceration for those involved in human trafficking crimes and
broadens the definition of ``trafficking offenses'' to reach the subtle
means of coercion, the techniques of holding workers in against the
will. It's hard to believe that these crimes exist in the United States
of America, but they do. And let me just give you some additional
examples.
On March the 7th a large landlord in Berkeley, California pled
guilty to trafficking women and girls into the United States to place
them in sexual servitude.
On February 15th a defendant pled guilty to using cocaine, threats
and beatings to force homeless African American men to work his
agricultural fields in Florida. Sentencing is still pending.
On February the 2nd a defendant was incarcerated for nine years for
kidnapping a young woman from her family, smuggling her to the United
States of America, and holding her and causing her to engage in sex
acts.
In spring of the year 2000 a defendant was incarcerated eight years
for forcing several Thai women to work as domestic servants in Los
Angeles.
In spring of 1999 six defendants were incarcerated for using
beatings, rapes and threats to force dozens of Mexican women and girls,
some as young as 14 years old, to work in brothels in Florida and in
the Carolinas.
According to the congressional findings, thousands of persons,
primarily women and children, are trafficked into the United States
each year. Many of these women and girls are trafficked into the sex
trade in this country. But these crimes are not limited to the sex
industry. Victims are often forced into labor conditions in illegal
sweatshops, in the agricultural industry and in domestic servitude.
Our greatest challenges in identifying victims of worker
exploitation are victims of trafficking are typically held in fear. We
need to somehow communicate to these individuals that they can avoid
this sense of fear, and they have an opportunity for redress. They
rarely know how to report their crimes. And that's why I'm making the
following announcements today, and frankly using the bully pulpit today
to raise awareness and to let victims know how to report these crimes.
There are three major areas where the department will focus its
efforts to implement enforcement of this law.
First, outreach. We must make the public aware of this problem and
how to report it. A hotline was created last year by the National
Worker Exploitation Task Force, and it was given temporary funding. I
will permanently fund the hotline so that persons can report these
crimes. The number of the hotline is 1-888-428-7581. The hotline will
be staffed by an operator who has access to language-translation
services, so individuals will be able to access the assistance of the
hotline even if they are not skilled in the English language.
In 1999, there were 27 criminal matters opened. But after the
hotline was started in the year 2000, there were 75 criminal
investigations opened. We will advertise the hotline using public
service announcements, and we will distribute information on worker
exploitation to immigrant and other communities by our involvement in
those communities to signal to them the availability of this redress.
I'm also initiating a community outreach program to work with local
community groups; victims' rights organizations; immigrants' rights
organizations; shelters and other groups. We want to inform victims of
the protections and services that are available to them, and to
encourage victims and others to report suspected trafficking crimes.
In addition to this outreach effort, we need to indicate that there
is a reason for us to have a strong effort in prosecution. The second
step, then, of our program is educating prosecutors and other law
enforcement officials. Today the Civil Rights Division, along with the
Criminal Division and the Executive Office of the United States
Attorneys, will issue the first guidance to all federal prosecutors on
this issue. This guidance will detail the law enforcement tools
available under the Trafficking Victims Protection Act.
Today I am also announcing two new attorney positions in the Civil
Rights Division, to pursue infractions of this law and these assaults
upon the rights and dignity of these individuals. These attorneys will
work on the outreach efforts that I have already mentioned. They will
also help train local prosecutors and will act as a resource to make
sure that prosecution efforts undertaken are undertaken with an
awareness of all the resources available from the federal government.
Number three, the third step in our strategy is the step of
cooperation. We need cooperation among law enforcement officials at
every effort and every level.
The Federal Bureau of Investigation plays a critical leadership
role in proactively identifying victims and investigating these crimes,
and the Immigration and Naturalization Service plays a critical role on
the front line. I am directing both the Federal Bureau of Investigation
and the Immigration and Naturalization Service, INS, to work with the
Civil Rights Division to explore ways to identify victims of
trafficking and to refer these cases to the division for prosecution.
This is a matter of serious concern. It is a matter that has been
of concern to the elected representatives of the people in the
Congress. They expressed themselves in terms of the need for
enforcement in this respect in the law enacted late last year, and our
response to that additional capability and responsibility is to
implement this program of outreach, of prosecution, and of cooperation
between the agencies that are required in order for this law and its
prosecution to affect materially the rights of individuals in this
area.
I want to thank you for coming today. I look forward to your
questions.
Yes, ma'am?
Question. Is this a new problem, a growing problem, or is it
something that we're only just now realizing the magnitude of?
ATTY GEN. ASHCROFT: This is a substantial problem. The litany of
circumstances which I read to you today reflects that it is a serious
problem and it has substantial prevalence. I can't--I don't have data
to try and say whether or not this is a problem that is bigger now than
it's ever been before. I just know that it's a serious problem and that
there are the rights of--important rights of individuals that are
seriously affected here. And we're going to take action to move against
the infringement of those rights.
Yes, Ma'am.
Question. Could you go into a little more detail about what
prosecutors need to be educated on with this law?
ATTY GEN. ASHCROFT: Well, the law does two things, basically--the
most recent enactment of the Congress, I should say. And I try not to
be too professorial here, probably because I'm not an expert here, but
the law expanded the definition of force so that a person could be
coerced under the definitions provided for in last year's enactment in
ways that aren't merely physical. Secondly, the penalties under the law
were enhanced as a result of this most recent enactment. And they
provide for penalties of up to 20 years in most cases, but in case of a
death of one of the individuals whose rights were infringed, that could
be as long as life in prison.
In providing additional information to prosecutors--and obviously
we're at a time when there will be some changes made in the prosecution
leadership in the various U.S. Attorney's offices around the country--
we want them to be keenly aware of the fact of these expanded
definitions because they will change the nature of prosecutions, and of
course of the expanded penalties.
Yes.
Question. Can you maybe just tell about what rights people in a
situation have when they have been brought here by force? Do they have
the right to stay here?
ATTY GEN. ASHCROFT: The Victims of Trafficking Act of the year 2000
provided a special standing for those who report these violations, and
people who called the hotline would be eligible for this standing. And
I think it's called a T visa, which is a certain kind of temporary visa
that provides for their ability to remain, pending the resolution of
this matter and the potential that they be placed in a stream of
eligible individuals for naturalization, or for normal processing in
the course of the INS's normal work.
It is thought to be very important.
One of the things that's used to intimidate individuals is the
suggestion that if you report, you'll automatically be deported. Other
coercive tactics taken by those who have abused others have been to
threaten either their families or those remain in other countries. And
we wanted, by virtue of expanding this definition of the nature of
coercion, together with the options of helping individuals with the T
status visas, to make it easier for these violations to be reported and
to give us the opportunity then with the reporting to have the chance
to curtail this kind of activity.
And this effort at enforcement picks up on what the Congress and
the President did in October of last year to say that we want to move
forward. We're welcoming additional information on the hotline. We're
going to try and make sure people know about that with the outreach
program. We've assigned additional resources for prosecution. And
we'll, in addition to the additional resources for prosecution, issue
the guidance protocols which make clear to individuals about this new
option and opportunity. And, of course last but not least, we want to
make sure that the coordination that's necessary to effective
prosecution in this area between the investigative authorities, the
immigration authorities and the prosecutional authorities is all there.
Yes, sir?
Question. I note that on your chart there, you have a Labor
Department logo. And I also noted in the legislation that the State
Department seemed to be the leading agency for this. Can you talk about
how the various government agencies are working together? I guess you
have a national task force on this now?
ATTY GEN. ASHCROFT: Well, that would sure be apparent from the
various--our piece of this, and that's the only thing I'm really
qualified to talk about, is that we want to send a very clear signal
that this is intolerable; that involuntary servitude and slavery, the
illegal sweat shop, is not a part of the United States stands for. It
demeans the work of those who are involved in it and undercuts the
working capacity of those who are not involved.
And it is important, obviously, to the labor community in the
United Sates of America not to have substandard, illegal sweatshop
conditions operated here. And the ability to hold people in those
settings, not to report violations under threat or coercion, and this
potential threat of exposure as illegal aliens, not having the right
documentation, has been one of the means whereby there has been a
restraint on the report of these abuses.
Yes, Kevin?
Question. What about the abuses overseas that's of concern to
senators, that don't involve U.S. citizens, what can you do about that?
ATTY GEN. ASHCROFT: Well, this is designed to focus on areas where
we have jurisdiction to act. And I can't answer your question. I wish I
could tell you that I had a way to make sure that there weren't any
abuses. When people are solicited to come to the United States--I think
what you're making reference to is they're told that there are
opportunities here. I mean, one of the cases I believe relating to
Alaska was that there was a recruitment of women in Russia to be part
of what they were told would be a folk dance operation. It turned out
not to be a folk dancing operation at all; it was something far less
acceptable. So fraud in those kind of inducement situations I think can
become a part of the proof of what the situation is here. But we really
are focused on criminal activity that is involved in coercion and the
repression of the rights of individuals in illegal settings here.
Yes, sir?
Question. How much new money is the Justice Department committing
to the three steps that you mentioned?
ATTY GEN. ASHCROFT: We won't be releasing details on our budget
until April. But I've allocated the two additional attorneys. The
advertising program, which has been contemplated here, is not a funded
program on the part of government, it's a public service announcement
program.
Yes, sir?
Question. On another subject, many privacy and civil liberties
groups have questioned the Justice Department's use of the e-mail
surveillance system, formerly known as Carnivore, now dubbed DSS-1000.
Last year the department retained the Institute of Technology at
Illinois to produce a report on the technological capabilities of this
system, but there still are questions about its legality.
I'm wondering what the administration's position on the use of
Carnivore is, and will you continue to make use of it while this report
of the Justice Department is still pending?
ATTY GEN. ASHCROFT: I have not personally--the report, I believe,
is working its way through the Justice Department at this time. I've
not personally seen it. I have not altered in any way the ability of
the administration to pursue its legal objectives in any kind of its
surveillance activities.
Yes, Mr. Sawyer?
Question. General, on affirmative action, the Supreme Court
yesterday agreed to revisit the Adarand case. And today there's a
District Court decision out in Michigan on the--ruling unconstitutional
the Michigan Law School affirmative action program, and there's a
companion case that ruled constitutional the undergraduate case. Can
you give us any insight and your thinking on that or where the
department is likely to be as these cases make their way through?
ATTY GEN. ASHCROFT: Well, this is a matter of very serious concern.
You may remember that this came up at my confirmation hearing, and as I
noted then, when I was a United States Senator I had a responsibility
to consider legislation and to give my best judgment as to whether the
legislation was constitutional and prudent.
I voted against the reauthorization of set-asides that were at
issue in the Adarand case because the specific language actually came
back before the Senate, and I sided with what I believe to have been
the Supreme Court's judgment there.
However, I emphasized in my hearings that my responsibility as
Attorney General, on a routine basis, might be different than
commenting on what I thought the constitutionality of the law would be.
My responsibility no longer allows me to oppose laws merely because I
have a personal view that they may be imprudent or even that, in my own
best judgment, I think they might be unconstitutional. Rather, my
routine responsibility as Attorney General is to defend acts of
Congress and federal regulations as long as they are in good faith and
a good-faith defense is possible. That would be the routine
responsibility.
Now, the Supreme Court yesterday granted cert again in the Adarand
case. Briefs in that case will be due for filing on the 11th day of
June from the United States government and, as we prepare our positions
in that case, I will consult with the Department of Transportation and
the administration prior to fulfilling our legal responsibility in this
particular matter. The Department of Transportation certainly retains
the authority to reconsider its regulations, and if the Department of
Transportation were to reformulate its regulations, that could alter
the legal landscape significantly.
Now, the Supreme Court's consideration of this case would provide
important guidance to the federal government. The case provides the
court with an opportunity to clarify how the strict scrutiny test
applies to race-conscious federal programs. If the court strikes down
the Transportation Department's regulations, it likely would require
the federal government to reconsider and review or reformulate the
numerous federal race-conscious programs. But prior to participating
further by way of filing briefs on the 11th of June, I'll be conferring
with the Transportation Department and the administration in this
matter.
Question. So that when you said earlier this month that you would
obviously defend the Department of Transportation regulations, you
didn't mean to imply that there wouldn't be this further discussion
about--(inaudible)--
ATTY GEN. ASHCROFT: I can't say that the----
Question. Regulations?
ATTY GEN. ASHCROFT: I can't say that the department won't make a
decision about its regulations in the light of this grant of cert.
Yes, ma'am.
Question. Sir, when will the department make a decision concerning
whether or not to allow closed circuit television for victims of--
families of the Oklahoma City bombing to watch the execution?
ATTY GEN. ASHCROFT: The tragedy of Oklahoma City is one which
continues, and obviously I respect the grief that the families that
were the subject of that tragedy have endured. I have asked the Federal
Bureau of Prisons to provide me with a plan for accommodating the needs
and feelings of those families that would reflect also the interests of
justice in regard to this execution. Prior to making a final decision,
I expect to confer with members of that family group and their
representatives as well as to receive the recommendation of the Federal
Bureau of Prisons, and will announce our plan for accommodating and
appropriately respecting the sensitivities of these families and the
needs of justice.
Question. Has that meeting been set up yet?
ATTY GEN. ASHCROFT: I don't believe it's scheduled.
Question. Mr. Ashcroft?
Staff: We have time for one or two more questions.
Question. There was a report this week that the Justice Department
wants to seek the death penalty against Robert Hanssen; also that the
U.S. attorney might be opposed to that matter. Has the department made
a determination about where it intends to go with this prosecution?
ATTY GEN. ASHCROFT: I really don't want to discuss specific cases.
I think my predecessor was wise in telling me when she came to visit
me, don't start discussing specific cases. Let me just say to you that
as it relates to the death penalty, particularly in cases like national
security cases that involve the compromise of either systems or
information relating to the national security of the United States,
that I believe we have to have an assessment of the national interest
that relates to whether or not the penalty should be the ultimate
penalty or not. And let me just clarify that a little bit if you will.
By the national interest, I mean that there is a national interest
in making sure that we send a signal, that we take very seriously any
compromises of the national interest and the national security by
individuals who would inappropriately leak information or sell
information. But we would also take very seriously the need or
opportunity to ascertain things important for us to know about the
nature of what had happened that might be available to us in the
context of a plea bargain.
And ultimately, when we make a decision in matters like this, the
decision will be made reflecting the national interests of the United
States, both the national security interests reflected in terms of the
information that's been compromised and that which hasn't been
compromised, and the national interests reflected in sending a very
clear signal that the United States of America does not take lightly,
does not view without seriousness, compromises in our national security
and the sale of national secrets.
Yes, ma'am.
Question. Sir, in the wake of the Hanssen case, the FBI tomorrow
will begin an extended polygraph program. There are--some have
mentioned or there's been a suggestion that FBI agents should also
undergo psychological evaluations on a regular basis. Is that
something--is that something that the Justice Department could support?
ATTY GEN. ASHCROFT: You know, I believe that there is going to be a
lot of healthy discussion--and I think it will come from a number of
quarters--about how we can better secure our intelligence effort. And I
look forward to the inspector general's report from within this
department. Inspector General Fine is an individual of great talent,
and I've asked him to look carefully here. I look forward to the
contribution made by Judge Webster, who has extensive security,
international and national security interests experience. And I look
forward to the work of the United States Congress. In particular, I've
dealt with Senator--the Senators on the Intelligence Committee, and I
believe that it's--they will be a part of helping develop a strategy.
I'm grateful for the first steps that are taken in the department, and
particularly in the Federal Bureau of Investigation, to promote
security. We have on a(n) interim basis begun to implement audit
standards so that we can ascertain whether individuals have access to
information for which they have no real use and whether their accessing
of that information is justified and appropriate. The implementation of
some lie detector tests that had not previously been implemented will
be a valuable tool.
In no way do I believe that these interim measures should in any
way curtail the level of the inquiries that are underway in the
Congress, by Judge Webster, or by the inspector general.
While we should--if you could allow the analogy--take whatever sort
of roadside measures are necessary in triage to stop whatever problems
we might think might exist, we need the full set of x-rays, we need the
full diagnosis, and to have a commitment to implementing, on a
continuing basis, anything that will upgrade our capacity. So, we look
forward to the work of these three agencies: the Congress, the
inspector general, and Judge Webster.
And the last thing I would do would maybe quote--oh shoot, I can't
remember who the philosopher was, but someone said that, ``Eternal
vigilance is the price of liberty.'' I don't think we should ever
conclude our evaluation of whether or not there are ways for us to
secure better what we do. This should be a constant review, especially
in the area of national security. And so I hope we will always remain
open to increasing our capacity to reduce and minimize the risk of
breaches that would threaten the security of this nation.
I thank you very much. Nice to be with you.
Guidance on New Law Concerning Trafficking in Persons
This memorandum provides guidance to U.S. Attorneys considering
investigation and prosecution under the newly enacted Trafficking
Victims Protection Act of 2000. See Public Law 106-386. This law
creates several new crimes and sets forth new benefits, services, and
protections for victims of severe forms of trafficking in persons. The
Act defines ``severe forms of trafficking in persons'' as the
recruitment, harboring, transportation, provision, or obtaining of a
person: (1) for labor or services, through the use of force, fraud, or
coercion for the purpose of subjection to involuntary servitude,
peonage, debt bondage, or slavery, or (2) for the purpose of a
commercial sex act in which such act is induced by force, fraud, or
coercion, or in which the person induced to perform such act has not
attained 18 years of age.
Under the Act, those convicted of trafficking offenses may be
imprisoned for up to 20 years and, in some instances, for life. This
represents a significant increase over preexisting involuntary
servitude and slavery statutes, which carried a maximum sentence of 10
years' imprisonment.
The interagency Worker Exploitation Task Force (WETF), which is co-
chaired by the Assistant Attorney General for Civil Rights and the
Solicitor of the U.S. Department of Labor, is helping to coordinate
enforcement efforts against trafficking and slavery.\1\ Criminal cases
generally are staffed jointly by the local U.S. Attorney's office and
the Criminal Section of the Civil Rights Division. The EOUSA point of
contact for the WETF is Richard Smith, (202) 514-1023. The Civil Rights
Division points of contact for the WETF are Albert N. Moskowitz, Chief
of the Criminal Section, and Lou de Baca, the Involuntary Servitude and
Slavery Case Coordinator, (202) 514-3204. The Criminal Division's WETF
point of contact is Tom Burrows, Deputy Chief of the Child Exploitation
and Obscenity Section, (202) 514-5780.
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\1\ To learn more about the WETF (including fact sheets and an
outreach poster) and to access a link to the text of the new
trafficking law, please see: www.usdoj.gov/crt/crim/wetf.htm.
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To help the Department more effectively coordinate enforcement
efforts and data collection, U.S. Attorneys' offices should notify the
Civil Rights Division WETF points of contact about investigations and
prosecutions involving severe forms of trafficking in persons. In
addition, we recommend distribution of this memorandum to AUSAs
handling criminal civil rights, immigration, Mann Act, and OCDTEF/Asian
Organized Crime matters. We likewise recommend distribution to victim/
witness and Law Enforcement Coordinating Committee (LECC) coordinators.
A. New Criminal Statutes
The new criminal statutes created by the Act are codified in
Chapter 77 of Title 18, the peonage and slavery chapter. The text of
the new statutes is attached hereto as Appendix A. The primary
legislative history for the new law is the Conference Report on H.R.
3244, Victims of Trafficking and Violence Protection Act of 2000 (H.R.
Conf. Rep. No. 106-939, 106th Cong., 146 Cong. Rec. H8855 (2000)).
These new statutes are designed to reach the subtle means of
coercion that traffickers often use to bind their victims in service.
Such means include psychological coercion, trickery, and the seizure of
documents. Preexisting slavery and peonage statutes and case law made
it very difficult to prosecute such conduct, but the new statutes
permit federal prosecutors to address this wider range of activities.
There are four new criminal statutes, Sections 1589-1592. Section
1589 creates a new crime of ``forced labor,'' which allows prosecutors
to reach severe forms of worker exploitation that do not rise to the
level of involuntary servitude. Section 1590 allows the prosecution of
traffickers as principals rather than as aiders or abettors. Section
1591 creates a new tool to combat sex trafficking of minors and sex
trafficking by force, fraud, or coercion. Finally, Section 1592
criminalizes the use or destruction of immigration or identification
documents in furtherance of a trafficking scheme.
In addition, newly-enacted Sections 1593 and 1594, which modify all
of the Chapter 77 offenses, provide for prosecution of attempts and set
forth forfeiture provisions and mandatory restitution measures that
strip traffickers of any profits gained from their victims' forced
service.
1. Forced Labor (Section 1589)
Section 1589 criminalizes labor or services obtained or maintained
through forms of coercion not actionable under the standard set forth
in United States v. Kozminski, 487 U.S. 931 (1988). Kozminski limited
the reach of peonage and slavery statutes, 18 U.S.C. Sec. Sec. 1581-88,
to cases in which the labor of the victim was obtained or maintained
through force, threats of force, or threats of legal coercion.
Section 1589(1) prohibits threats of serious harm to, or physical
restraint against, the worker or another person. Importantly, Section
1589(1) does not limit these threats to physical harm. It also reaches
instances ``where traffickers threaten harm to third persons, restrain
their victims without physical violence or injury, or threaten dire
consequences by means other than overt violence.'' 146 Cong. Rec. at
H8881. The relevant individual circumstances of a victim should be
considered when determining whether a particular type or degree of harm
or coercion is sufficient to obtain the victim's labor or services.
Section 1589(2) prohibits the use of a scheme, plan, or pattern
intended to cause the victim to believe that he, she or another will
suffer serious harm or physical restraint unless he or she complies.
Such schemes might include the use of psychological threats, ostracism,
isolation, banishment, starvation, or threats against family members or
property. For example, a trafficker might tell his victim, unfamiliar
with the English language or U.S. culture, that she will be injured or
killed if she leaves the trafficker's ``protection.'' For other
specific examples, see 146 Cong. Rec. at H8881.
Section 1589(3) prohibits the abuse or threatened abuse of the law
or the legal process. Under this standard, threats to report a victim
to the INS may be actionable. This subsection may also provide an
alternative means of prosecuting loansharking threats that maintain
forced labor through threats of legal action in a victim's home
country.
2. Trafficking with Respect to Peonage, Slavery,
Involuntary Servitude, or Forced Labor (Section
1590)
Newly-enacted Section 1590 allows the prosecution as principals
rather than aiders or abettors of those who recruit, harbor, transport,
provide, or obtain persons for labor or services under conditions that
violate any of the Chapter 77 offenses.
3. Sex Trafficking of Children or by Force, Fraud, or
Coercion (Section 1591)
Section 1591 combats trafficking for sexual exploitation by
combining features of the Mann Act and involuntary servitude statutes.
Section 1591 makes it illegal to recruit, move, or harbor a person (or
to benefit from such activities) knowing that the person will be caused
to engage in commercial sex acts, where the victim is either under 18
years of age or is subjected to the commercial sex act by force, fraud,
or coercion. A ``commercial sex act'' is any sex act for which
something of value is given or received.
In light of this new statute, the Mann Act should no longer be the
primary vehicle for sex trafficking cases. Prosecutors should continue
to use the Mann Act for criminal sexual activity not involving
prostitution. Because Section 1591 has not yet been tested, we
encourage you to contact Tom Burrows in the Child Exploitation and
Obscenity Section of the Criminal Division, (202) 514-5780, before
charging under this statute.
a. Interstate commerce nexus
The jurisdictional element requires recruitment, harboring, or
transporting in or affecting interstate commerce. This requirement
could be met with proof such as transporting a person across a state
line for prostitution, as in Mann Act cases. The interstate commerce
requirement of Section 1591 may be satisfied in other ways as well,
such as by proving that the victim was harbored in a brothel that
bought supplies or solicited customers from other states.\2\ Note,
however, that Section 1591 does not apply if foreign but not interstate
commerce is involved.
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\2\ Case law under the federal arson statute, 18 U.S.C.
Sec. 844(i), may be helpful here to establish the jurisdictional
element.
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b. Coercion and fraud for purposes of Section 1591
Coercion can be proven by evidence of (1) actual threats of harm,
(2) a scheme, plan or pattern intended to cause the victim to believe
that harm would result if the commercial sexual acts were not
performed, or (3) threats of legal repercussions against the victim
(e.g. deportation).
Adult victims can only support a charge under Section 1591 if they
engaged in the commercial sexual activity through force, fraud, or
coercion. By including fraud in this section, Congress criminalized a
broad range of activity. For example, prosecutors may present cases
under this statute in which a victim is fraudulently tricked into
sexual activity, such as through a false modeling agency.
c. Comparisons with the Mann Act
The trafficking conduct prohibited under the new statute is in many
ways similar to that prohibited under the Mann Act. Charging both Mann
Act and Section 1591 for the same activity thus may raise a
multiplicity issue. This problem might be avoided by pairing a Mann Act
charge under Sections 2421 or 2423(a) (which do not require a showing
of coercion) and a Section 1591 charge alleging fraud, force, or
coercion. Each fact pattern and charging decision should be reviewed
individually to avoid potential legal defects in the indictment.
As to jurisdiction, Section 1591, in contrast to the Mann Act, only
includes interstate commerce. Section 1591, therefore, should not be
used for international trafficking unless, after the victim was brought
to the United States, there was further movement across states in
furtherance of the trafficking scheme. The jurisdictional element of
Section 1591 may also be met without the border-crossing travel
required by the Mann Act if other effects on interstate commerce can be
proven.
Attempts are punishable under either statute. The Mann Act
explicitly covers attempts, while Section 1591 covers attempts by
virtue of Section 1594(a).
Finally, if the evidence is sufficient for using either the Mann
Act or Section 1591, then the prosecutor may consider whether the
higher maximum sentence under Section 1591 warrants its use.
4. Document Servitude (Section 1592)
An increasing number of victims are held in service not by force or
threats but by the confiscation of (and denial of access to) actual or
purported identification or immigration documents. Section 1592
criminalizes the destruction or withholding of a victim's documents for
the purpose of unlawfully maintaining the victim's labor or services.
Because this section carries a five-year statutory maximum, it may be
useful in plea negotiations.
a. Direct link to trafficking statutes
Section 1592(a)(1) prohibits the confiscation of documents in the
course of a violation of the other trafficking laws. This subsection
thus does not act as a stand-alone crime, but instead increases the
overall statutory maximum sentence available to prosecutors.\3\
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\3\ Under the sentencing guidelines, the requirement that the
document seizure be in the course of a violation of the more serious
offenses may subsume the penalty for the Section 1592 violation into
the more serious crimes.
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Section 1592(a)(2) prohibits the confiscation of documents with the
intent to violate other trafficking offenses. This subsection will
likely be helpful in negotiating plea dispositions, especially with
cooperating co-defendants. To establish ``intent to violate,'' the
investigation should explore whether the defendants intended the
victims to believe that the confiscation of the documents rendered them
incapable of leaving service. This activity may also support charges
under Section 1589(2).
b. Indirect link to trafficking statutes
Section 1592(a)(3), which does not incorporate a direct link to the
other trafficking statutes, prohibits confiscation of a document with
the intent to prevent or restrict a victim's liberty to move or travel,
in order to keep the victim in service. Section 1592(a)(3) applies only
if the person was a victim of a severe form of trafficking.
5. Miscellaneous Provisions
a. Sentencing guidelines
The Act directs the U.S. Sentencing Commission to consider amending
the sentencing guidelines for offenses involving trafficking of
persons. The Commission has already promulgated guideline amendments.
b. Mandatory restitution
Section 1593 provides for special restitution calculations in
Chapter 77 offenses. Restitution is mandatory in these cases.
Restitution should be estimated as the greater of either: (1) the
gross income or value to the defendant of the victim's service or
labor, or (2) the value of the victim's labor as guaranteed under the
minimum wage and overtime guarantees of the Fair Labor Standards Act.
In trafficking cases, restitution should also include costs incurred by
the victim for: medical services relating to physical, psychiatric, or
psychological care; physical and occupational therapy or
rehabilitation; necessary transportation, temporary housing, and child
care expenses; lost income; attorneys' fees, as well as other costs
incurred; and any other losses suffered by the victim as a proximate
result of the offense.
B. Victim Protections
The new statute imposes new responsibilities on investigators and
prosecutors who deal with victims of severe forms of trafficking.
Detailed regulations and guidelines are forthcoming. In the interim,
investigators and prosecutors may wish to consult the following
individuals for assistance with short-term compliance: Camille Bennett,
EOUSA, (202) 305-2161, or Lorna Grenadier, Victim/Witness Specialist in
the Criminal Section of the Civil Rights Division, (202) 514-3204.
1. Access to Benefits and Services
The Act declares alien victims of severe trafficking eligible for
many federally-funded victim and witness assistance programs to the
same extent as aliens admitted to the United States as a refugee under
Sec. 207 of the Immigration and Nationality Act. As a result, the
Emergency Witness Assistance Program (EWAP) should not be viewed as the
central method of securing immediate assistance for trafficking
witnesses.
The Department of Justice and the Department of Health and Human
Services (HHS) are developing a certification process, as required by
the Act, so that adult victims of severe trafficking can receive public
assistance, medical care, housing, and other publicly available
benefits and services, without regard to their immigration status.
Pending further guidance, prosecutors and victim/witness coordinators
should contact Camille Bennett, EOUSA, (202) 305-2161, or Lorna
Grenadier, Victim/Witness Specialist in the Criminal Section of the
Civil Rights Division, (202) 514-3204, for assistance with the interim
certification process.
2. Victim Protection Regulations
The Act requires by April 26, 2001, the promulgation of regulations
guaranteeing victims protection while in federal custody and access to
information about their rights, authorizing victims' continued presence
in United States, and providing mechanisms for training law enforcement
personnel on the needs of trafficking victims. See Section 107(c),
attached as Appendix B. In the interim, prosecutors may contact the
District INS victim/witness coordinator to arrange for a victim's
continued presence or for information about victim access to
information about their rights under the new law.
3. Visa Issues
The new law enhances the protection offered to trafficking victims.
It creates two new nonimmigrant classifications: a ``T'' visa for
victims of severe forms of trafficking and (within the Violence Against
Women Act of 2000) a ``U'' visa for an array of crimes including
trafficking. The T visa is available to individuals who: (1) are a
victim of a severe form of trafficking, (2) are physically present in
the United States or a U.S. territory, (3) would suffer extreme
hardship involving unusual and severe harm upon removal, and (4) either
are under 15 years of age or have complied with any reasonable request
to assist a trafficking investigation or prosecution. The parents,
children, and spouses of victims are also eligible in certain instances
for T visas.
The U visa is available to a broader group of crime victims,
including those who: (1) have suffered substantial physical or mental
abuse due to having been a victim of trafficking; (2) possess
information concerning the trafficking; (3) have been helpful, are
being helpful, or are likely to be helpful to law enforcement; and (4)
have been the victim of criminal activity.
The INS is currently developing regulations for the new visas.
4. Trafficking Versus Alien Smuggling Considerations
Trafficking cases differ from most alien smuggling cases. In
smuggling cases, the strongest witnesses are designated as material
witnesses and the remainder of the smuggled aliens generally are
deported. In trafficking cases, by contrast, all victims typically
remain in the United States as potential witnesses. Indeed, some
federal district courts have ordered that all trafficking victims be
kept in this country, under the theory that those witnesses who are not
likely to testify for the prosecution may be induced to become defense
witnesses under Brady. The Civil Rights Division has developed model
victim interview questions that help to distinguish trafficking/
servitude situations from alien smuggling cases.
Unlike most alien smuggling cases, trafficked persons are victims
of crime. This is a critical distinction. These victims must be treated
in a manner consistent with the Attorney General Guidelines for Victim
and Witness Assistance. Trafficking victims often need medical and
other services to deal with the trauma associated with having been
trafficked. The new Act provides immediate protection and lawful status
as well as potential permanent immigration status to these victims so
that they may pursue legal remedies against their traffickers while
receiving needed services. For these reasons, the common practice in
smuggling cases of designation and deportation is inappropriate in
trafficking prosecutions.
Appendix A--Statutory Language
Title 18, United States Code, Section 1589 (Forced labor)
Whoever knowingly provides or obtains the labor or services of a
person--
(1) by threats of serious harm to, or physical restraint
against, that person or another person;
(2) by means of any scheme, plan, or pattern intended to
cause the person to believe that, if the person did not perform
such labor or services, that person or another person would
suffer serious harm or physical restraint; or
(3) by means of the abuse or threatened abuse of law or the
legal process,
shall be fined under this title or imprisoned not more than 20 years,
or both. If death results from the violation of this section, or if the
violation includes kidnapping or an attempt to kidnap, aggravated
sexual abuse or the attempt to commit aggravated sexual abuse, or an
attempt to kill, the defendant shall be fined under this title or
imprisoned for any term of years or life, or both.
Title 18, United States Code, Section 1590 (Trafficking with respect to
peonage, slavery, involuntary servitude, or forced labor)
Whoever knowingly recruits, harbors, transports, provides, or
obtains by any means, any person for labor or services in violation of
this chapter shall be fined under this title or imprisoned not more
than 20 years, or both. If death results from the violation of this
section, or if the violation includes kidnapping or an attempt to
kidnap, aggravated sexual abuse, or the attempt to commit aggravated
sexual abuse, or an attempt to kill, the defendant shall be fined under
this title or imprisoned for any term of years or life, or both.
Title 18, United States Code, Section 1591 (Sex trafficking of children
or by force, fraud or coercion)
(a) Whoever knowingly--
(1) in or affecting interstate commerce, recruits, entices,
harbors, transports, provides, or obtains by any means a
person; or
(2) benefits, financially or by receiving anything of
value, from participation in a venture which has engaged in an
act described in violation of paragraph (1), knowing that
force, fraud, or coercion described in subsection (c)(2) will
be used to cause the person to engage in a commercial sex act,
or that the person has not attained the age of 18 years and
will be caused to engage in a commercial sex act, shall be
punished as provided in subsection (b).
(b) The punishment for an offense under subsection (a) is--
(1) if the offense was effected by force, fraud, or
coercion or if the person transported had not attained the age
of 14 years at the time of such offense, by a fine under this
title or imprisonment for any term of years or for life, or
both; or
(2) if the offense was not so effected, and the person
transported had attained the age of 14 years but had not
attained the age of 18 years at the time of such offense, by a
fine under this title or imprisonment for not more than 20
years, or both.
(c) In this section:
(1) The term ``commercial sex act'' means any sex act, on
account of which anything of value is given to or received by
any person.
(2) The term ``coercion'' means--
(A) threats of serious harm to or physical
restraint against any person;
(B) any scheme, plan, or pattern intended to cause
a person to believe that failure to perform an act
would result in serious harm to or physical restraint
against any person; or
(C) the abuse or threatened abuse of law or the
legal process.
(3) The term ``venture'' means any group of 2 or more
individuals associated in fact, whether or not a legal entity.
Title 18, United States Code, Section 1592 (Unlawful conduct with
respect to documents in furtherance of trafficking, peonage,
slavery, involuntary servitude, or forced labor)
(a) Whoever knowingly destroys, conceals, removes, confiscates, or
possesses any actual or purported passport or other immigration
document, or any other actual or purported government identification
document, of another person--
(1) in the course of a violation of section 1581, 1583,
1584, 1589, 1590, 1591, or 1594(a);
(2) with intent to violate section 1581, 1583, 1584, 1589,
1590, or 1591; or
(3) to prevent or restrict or to attempt to prevent or
restrict, without lawful authority, the person's liberty to
move or travel, in order to maintain the labor or services of
that person, when the person is or has been a victim of a
severe form of trafficking in persons, as defined in section
103 of the Trafficking Victims Protection Act of 2000;
shall be fined under this title or imprisoned for not more than 5
years, or both.
(b) Subsection (a) does not apply to the conduct of a person who is
or has been a victim of a severe form of trafficking in persons, as
defined in section 103 of the Trafficking Victims Protection Act of
2000, if that conduct is caused by, or incident to, that trafficking.
Section 103 of Public Law 106-386 defines ``severe forms of trafficking
in persons'' as follows:
(8) Severe forms of trafficking in persons.--The term
``severe forms of trafficking in persons'' means--
(A) sex trafficking in which a commercial sex act
is induced by force, fraud, or coercion, or in which
the person induced to perform such act has not attained
18 years of age; or
(B) the recruitment, harboring, transportation,
provision, or obtaining of a person for labor or
services, through the use of force, fraud, or coercion
for the purpose of subjection to involuntary servitude,
peonage, debt bondage,\4\ or slavery.
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\4\ Section 103 of Public Law 106-386 states (4) Debt bondage.--The
term ``debt bondage'' means the status or condition of a debtor arising
from a pledge by the debtor of his or her personal services or of those
of a person under his or her control as a security for debt, if the
value of those services as reasonably assessed is not applied toward
the liquidation of the debt or the length and nature of those services
are not respectively limited and defined.
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Title 18, United States Code, Section 1593 (Mandatory restitution)
(a) Notwithstanding sections 3663 or 3663A, and in addition to any
other civil or criminal penalties authorized by law, the court shall
order restitution for any offense under this chapter.
(b)(1) The order of restitution under this section shall direct the
defendant to pay the victim (through the appropriate court mechanism)
the full amount of the victim's losses, as determined by the court
under paragraph (3) of this subsection.
(2) An order of restitution under this section shall be issued and
enforced in accordance with section 3664 in the same manner as an order
under section 3663A.
(3) As used in this subsection, the term ``full amount of the
victim's losses'' has the same meaning as provided in section
2259(b)(3) and shall in addition include the greater of the gross
income or value to the defendant of the victim's services or labor or
the value of the victim's labor as guaranteed under the minimum wage
and overtime guarantees of the Fair Labor Standards Act (29 U.S.C. 201,
et seq.).
(c) As used in this section, the term ``victim'' means the
individual harmed as a result of a crime under this chapter, including,
in the case of a victim who is under 18 years of age, incompetent,
incapacitated, or deceased, the legal guardian of the victim or a
representative of the victim's estate, or another family member, or any
other person appointed as suitable by the court, but in no event shall
the defendant be named such representative or guardian.
Title 18, United States Code, Section 1594 (General provisions)
(a) Whoever attempts to violate section 1581, 1583, 1584, 1589,
1590, or 1591 shall be punishable in the same manner as a completed
violation of that section.
(b) The court, in imposing sentence on any person convicted of a
violation of this chapter, shall order, in addition to any other
sentence imposed and irrespective of any provision of State law, that
such person shall forfeit to the United States--
(1) such person's interest in any property, real or
personal, that was used or intended to be used to commit or to
facilitate the commission of such violation; and
(2) any property, real or personal, constituting or derived
from, any proceeds that such person obtained, directly or
indirectly, as a result of such violation.
(c)(1) The following shall be subject to forfeiture to the United
States and no property right shall exist in them:
(A) Any property, real or personal, used or intended to be
used to commit or to facilitate the commission of any violation
of this chapter.
(B) Any property, real or personal, which constitutes or is
derived from proceeds traceable to any violation of this
chapter.
(2) The provisions of chapter 46 of this title relating to civil
forfeitures shall extend to any seizure or civil forfeiture under this
subsection.
(d) Witness Protection.--Any violation of this chapter shall be
considered an organized criminal activity or other serious offense for
the purposes of application of chapter 224 (relating to witness
protection).
Appendix B--Victim Protections
Section 107(c), Public Law 106-386, Trafficking Victims Protection Act
of 2000
Trafficking Victim Regulations.--Not later than 180 days after the
date of enactment of this Act, the Attorney General and the Secretary
of State shall promulgate regulations for law enforcement personnel,
immigration officials, and Department of State officials to implement
the following:
(1) Protections while in custody.--Victims of severe forms
of trafficking, while in the custody of the Federal Government
and to the extent practicable, shall--
(A) not be detained in facilities inappropriate to
their status as crime victims;
(B) receive necessary medical care and other
assistance; and
(C) be provided protection if a victim's safety is
at risk or if there is danger of additional harm by
recapture of the victim by a trafficker, including--
(i) taking measures to protect trafficked
persons and their family members from
intimidation and threats of reprisals and
reprisals from traffickers and their
associates; and
(ii) ensuring that the names and
identifying information of trafficked persons
and their family members are not disclosed to
the public.
(2) Access to information.--Victims of severe forms of
trafficking shall have access to information about their rights
and translation services.
(3) Authority to permit continued presence in the united
states.--Federal law enforcement officials may permit an alien
individual's continued presence in the United States, if after
an assessment, it is determined that such individual is a
victim of a severe form of trafficking and a potential witness
to such trafficking, in order to effectuate prosecution of
those responsible, and such officials in investigating and
prosecuting traffickers shall protect the safety of trafficking
victims, including taking measures to protect trafficked
persons and their family members from intimidation, threats of
reprisals, and reprisals from traffickers and their associates.
(4) Training of government personnel.--Appropriate
personnel of the Department of State and the Department of
Justice shall be trained in identifying victims of severe forms
of trafficking and providing for the protection of such
victims.
Memorandum
U.S. Department of Justice,
Civil Rights Division,
Washington, DC, January 11, 2002.
memorandum for heads of federal grant agencies general counsels and
civil rights directors
FROM: Ralph F. Boyd, Jr., Assistant Attorney General, Civil Rights
Division
SUBJECT: Executive Order 13166 (Improving Access to Services for
Persons with Limited English Proficiency)
I am writing to encourage agencies to expedite their work on
limited English proficiency (LEP) guidance documents in order to be in
a position to meet the 120-day deadline set forth in my memorandum
dated October 26, 2001. A copy of that memorandum is attached.
Background
On October 26, 2001, I issued a memorandum to clarify policy
guidance issued by the Department of Justice (DOJ) entitled
``Enforcement of Title VI of the Civil Rights Act of 1964--National
Origin Discrimination Against Persons With Limited English
Proficiency.'' 65 F.R. 50123 (August 16, 2000) (DOJ LEP Guidance). That
policy guidance had been issued to set forth general principles for
agencies to apply in developing guidance on how their recipients can
provide meaningful access to LEP persons and, therefore, comply with
the Title VI disparate impact regulations, as required by Executive
Order 13166.
The memorandum instructed agencies that had issued LEP guidance for
their recipients pursuant to Executive Order 13166 and Title VI of the
Civil Rights Act to notify the Department of Justice, publish a notice
asking for public comment on the guidance documents they have issued,
and, if necessary, clarify or modify its existing guidance. Agencies
that had not yet published guidance documents were to submit agency-
specific guidance to the Department of Justice. Following review by the
Department of Justice and before finalizing their guidance, the
agencies were to obtain public comment on their proposed guidance
documents.
Further agency action
The Department of Justice has learned that some agencies that had
previously published LEP guidance had obtained significant public
comment on those materials following the original publication of that
guidance. The Department therefore believes that it is appropriate for
these agencies to expedite their review of their existing guidance in
light of the comment they have already received and the Department's
October 26 memorandum. These agencies should notify the Department of
Justice of any need to clarify or modify existing guidance by January
25, 2002.
Other agencies, however, have not yet obtained significant public
comment on their previously published guidance. These agencies should
immediately publish a request for comment on their existing guidance
documents. In addition, they should expedite their review of their
existing guidance in light of the comment they will obtain and notify
the Department of Justice of any need to clarify or modify existing
guidance as soon as possible.
If it is determined that an agency's existing guidance should be
clarified or modified, that agency should seek public comment on any
proposed revisions before making them final.
Finally, for those agencies that have not previously published LEP
guidance documents, I request them to expedite their drafting of LEP
guidance documents and to submit them to the Department of Justice as
soon as possible. Following review by the Department and before
finalizing its guidance, each of these agencies must then publish its
agency-specific LEP guidance documents for public comment.
My October 26 memorandum requested that all new LEP guidance
documents be published in final form by February 25th, 2002. Because
many agencies have not yet submitted their guidance documents to the
Department of Justice for review or taken steps to obtain public
comment, I am concerned that they may have difficulty meeting this
deadline. I thus request that all such agencies expedite their
consideration of this matter and notify the Department regarding the
status of their progress regarding the development of LEP guidance by
January 22, 2002.
The DOTs Civil Rights Division, Coordination and Review Section
((202) 307-2222), stands ready to assist agencies in this matter.
Memorandum
U.S. Department of Justice,
Civil Rights Division,
Washington, DC, October 26, 2001.
memorandum for heads of departments and agencies general counsels and
civil rights directors
FROM: Ralph F. Boyd, Jr., Assistant Attorney General, Civil Rights
Division
SUBJECT: Executive Order 13166 (Improving Access to Services for
Persons with Limited English Proficiency)
Federal agencies have recently raised several questions regarding
the requirements of Executive Order 13166. This Memorandum responds to
those questions. As discussed below, in view of the clarifications
provided in this Memorandum, agencies that have issued Limited English
Proficiency (``LEP'') guidance for their recipients pursuant to
Executive Order 13166 and Title VI of the Civil Rights Act should,
after notifying the Department of Justice (``DOJ''), publish a notice
asking for public comment on the guidance documents they have issued.
Based on the public comment it receives and this Memorandum, an agency
may need to clarify or modify its existing guidance. Agencies that have
not yet published guidance documents should submit agency-specific
guidance to the Department of Justice. Following approval by the
Department of Justice and before finalizing its guidance, each agency
should obtain public comment on their proposed guidance documents. With
regard to plans for federally conducted programs and activities,
agencies should review their plans in light of the clarifications
provided below.
Background of Executive Order 13166
The legal basis for Executive Order 13166 is explained in policy
guidance issued by the Department of Justice entitled ``Enforcement of
Title VI of the Civil Rights Act of 1964--National Origin
Discrimination Against Persons With Limited English Proficiency.'' 65
F.R. 50123 (August 16, 2000). This ``DOJ LEP Guidance'' was referenced
in and issued concurrently with the Executive Order.
As the DOJ LEP Guidance details, Title VI of the Civil Rights Act
of 1964 prohibits discrimination on the basis of race, color, or
national origin in any program or activity receiving federal financial
assistance. Department of Justice regulations enacted to effectuate
this prohibition bar recipients of federal financial assistance from
``utiliz[ing] criteria or methods of administration which have the
effect of subjecting individuals to discrimination'' because of their
race, color, or national origin. These regulations thus prohibit
unjustified disparate impact on the basis of national origin.
As applied, the regulations have been interpreted to require
foreign language assistance in certain circumstances. For instance,
where a San Francisco school district had a large number of non-English
speaking students of Chinese origin, it was required to take reasonable
steps to provide them with a meaningful opportunity to participate in
federally funded educational programs. Lau v. Nichols, 414 U.S. 563
(1974).\1\
---------------------------------------------------------------------------
\1\ ``It seems obvious that the Chinese-speaking minority receive
fewer benefits than the English-speaking majority from respondents'
school system which denies them a meaningful opportunity to participate
in the education program--all earmarks of the discrimination banned by
the regulations.'' 414 U.S. at 568.
---------------------------------------------------------------------------
The Supreme Court most recently addressed the scope of the Title VI
disparate impact regulations in Alexander v. Sandoval, 121 S. Ct. 1511
(2001). There, the Court held that there is no private right of action
to enforce these regulations. It ruled that, even if the Alabama
Department of Public Safety's policy of administering driver's license
examinations only in English violates the Title VI regulations, a
private party could not bring a case to enjoin Alabama's policy. Some
have interpreted Sandoval as impliedly striking down Title VI's
disparate impact regulations and thus that part of Executive Order
13166 that applies to federally assisted programs and activities.\2\
---------------------------------------------------------------------------
\2\ See Sandoval, 121 S. Ct. at 1516 n.6 (``[W]e assume for
purposes of this decision that Sec. 602 confers the authority to
promulgate disparate-impact regulations; . . . We cannot help
observing, however, how strange it is to say that disparate-impact
regulations are `inspired by, at the service of, and inseparably
intertwined with' Sec. 601 . . . when Sec. 601 permits the very
behavior that the regulations forbid.'').
---------------------------------------------------------------------------
The Department of Justice disagrees. Sandoval holds principally
that there is no private right of action to enforce the Title VI
disparate impact regulations. It did not address the validity of those
regulations or Executive Order 13166. Because the legal basis for
Executive Order 13166 is the Title VI disparate impact regulations and
because Sandoval did not invalidate those regulations, it is the
position of the Department of Justice that the Executive Order remains
in force.
Requirements of Executive Order 13166
Federally Assisted Programs and Activities.--The DOJ LEP Guidance
explains that, with respect to federally assisted programs and
activities, Executive Order 13166 ``does not create new obligations,
but rather, clarifies existing Title VI responsibilities.'' Its purpose
is to clarify for federal-funds recipients the steps those recipients
can take to avoid administering programs in a way that results in
discrimination on the basis of national origin in violation of the
Title VI disparate impact regulations. To this end, the Order requires
each Federal Agency providing federal financial assistance to explain
to recipients of federal funds their obligations under the Title VI
disparate impact regulations.
In developing their own LEP guidance for recipients of federal
funds, an agency should balance the factors set forth in the DOJ LEP
Guidance. These factors include, but are not limited to (i) the number
or proportion of LEP individuals, (ii) the frequency of contact with
the program, (iii) the nature and importance of the program, and (iv)
the resources available.
As the DOJ LEP Guidance explains, ``a factor in determining the
reasonableness of a recipient's efforts is the number or proportion of
people who will be excluded from the benefits or services absent
efforts to remove language barriers.'' Similarly, the frequency of
contact must be considered. Where the frequency and number of contacts
is so small as to preclude any significant national origin based
disparate impact, agencies may conclude that the Title VI disparate
impact regulations impose no substantial LEP obligations on recipients.
The nature and importance of the program is another factor. Where
the denial or delay of access may have life or death implications, LEP
services are of much greater importance than where denial of access
results in mere inconvenience.
Resources available and costs must likewise be weighed. A small
recipient with limited resources may not have to take the same steps as
a larger recipient. See DOJ LEP Guidance at 50125. Costs, too, must be
factored into this balancing test. ``Reasonable steps'' may cease to be
reasonable where the costs imposed substantially exceed the benefits in
light of the factors outlined in the DOJ LEP Guidance. The DOJ LEP
Guidance explains that a small recipient may not have to take
substantial steps ``where contact is infrequent, where the total costs
of providing language services is relatively high and where the program
is not crucial to an individual's day-to-day existence.'' By contrast,
where number and frequency of contact is high, where the total costs
for LEP services are reasonable, and where the lack of access may have
life and death implications, the availability of prompt LEP services
may be critical. In these latter cases, claims based on lack of
resources will need to be well substantiated.
Finally, consideration of resources available naturally implicates
the ``mix'' of LEP services required. While on-the-premise translators
may be needed in certain circumstances, written translation, access to
centralized translation language lines or other means may be
appropriate in the majority of cases. The correct balance should be
based on what is both necessary to eliminate unjustified disparate
impact prohibited by the Title VI regulations and reasonable in light
of the factors outlined in the DOJ LEP Guidance.
Federally Conducted Programs and Activities.--Executive Order 13166
also applies to federally conducted programs and activities. With
respect to these, the Order requires each Federal Agency to prepare a
plan to improve access to federally conducted programs and activities
by eligible LEP persons. These plans, too, must be consistent with the
DOJ LEP Guidance. Federal agencies should apply the same standards to
themselves as they apply to their recipients.
Procedural considerations
Administrative Procedure Act.--Agency action taken pursuant to
Executive Order 13166 and the DOJ LEP Guidance may be subject to the
Administrative Procedure Act's (``APA'') rulemaking requirements. 5
U.S.C. Sec. 553. Although interpretive rules, general statements of
policy, and rules of agency organization and procedure are not subject
to section 553, courts have ruled that any final agency action that
carries the force and effect of law must comply with section 553's
notice and comment requirements. See Paralyzed Veterans of America v.
D.C. Arena, 117 F.3d 579, 588 (D.C. Cir. 1997). Agencies, therefore,
should consider whether the action they have taken or that they propose
to take to implement Executive Order 13166 and Title VI of the Civil
Rights Act is subject to the APA's requirements. If it is, they must
comply with these statutory obligations. Agencies must bear in mind,
however, that Executive Order 13166 ``does not create new obligations,
but rather, clarifies existing Title VI responsibilities.''
Accordingly, agency action taken pursuant to Executive Order 13166 must
not impose new obligations on recipients of federal funds, but should
instead help recipients to understand their existing obligations.
Executive Order 12866.--Agency action taken pursuant to Executive
Order 13166 and the DOJ LEP Guidance may also be subject to
requirements set forth in Executive Order 12866 (Regulatory Review and
Planning, Sept. 30, 1993). That Order directs agencies to submit to the
Office of Management and Budget for review any ``significant regulatory
actions'' the agency wishes to take. See Sec. 6(a). Agencies,
therefore, should consider whether the action they have taken or that
they propose to take to implement Executive Order 13166 and Title VI of
the Civil Rights Act is subject to Executive Order 12866's
requirements. If it is, they should ensure that the action or proposed
action complies with Executive Order 12866's obligations. With regard
to federally conducted programs and activities, agencies should review
their plans for their federally conducted programs in light of the
clarifications below and make any necessary modifications.
Further agency action
Existing LEP Guidance and Plans for Federally Conducted Programs
and Activities.--Agencies that have already published LEP guidance
pursuant to Executive Order 13166 or Title VI of the Civil Rights Act
should obtain public comment on the guidance documents they have
issued. Agencies should then review their existing guidance documents
in view of public comment and for consistency with the clarifications
provided in this Memorandum. The Justice Department's Civil Rights
Division, Coordination and Review Section ((202) 307-2222), is
available to assist agencies in making this determination. Should this
review lead an agency to conclude that it is appropriate to clarify or
modify aspects of its LEP guidance documents, it should notify the
Department of Justice of that conclusion within 60 days from the date
of this Memorandum. Any agency effort to clarify or modify existing LEP
guidance should be completed within 120 days from the date of this
Memorandum. Agencies likewise should review plans for federally
conducted programs and activities in light of the above clarification.
New LEP Guidance and Plans for Federally Conducted Programs and
Activities.--Agencies that have not yet published LEP guidance pursuant
to Executive Order 13166 and Title VI of the Civil Rights Act should
submit to the Department of Justice, within 60 days from the date of
this Memorandum, agency-specific recipient guidance that is consistent
with Executive Order 13166 and the DOJ LEP Guidance, including the
clarifications set forth in this Memorandum. In preparing their
guidance, agencies should ensure that the action they propose to take
is consistent with the requirements of the Administrative Procedure Act
and Executive Order 12866. The Justice Department's Civil Rights
Division, Coordination and Review Section, is available to assist
agencies in preparing agency-specific guidance. Following approval by
the Department of Justice and before finalizing its guidance, each
agency should obtain public comment on its proposed guidance documents.
Final agency-specific LEP guidance should be published within 120 days
from the date of this memorandum. Agencies likewise should submit to
the Department of Justice plans for federally conducted programs and
activities. The Department of Justice is the central repository for
these agency plans.
Federally assisted programs and activities may not be administered
in a way that violates the Title VI regulations. Each Federal Agency is
responsible for ensuring that its agency-specific guidance outlines
recipients' obligations under the Title VI regulations and the steps
recipients can take to avoid violating these obligations. While
Executive Order 13166 requires only that Federal Agencies take steps to
eliminate recipient discrimination based on national origin prohibited
by Title VI, each Federal Agency is encouraged to explore whether, as a
matter of policy, additional affirmative outreach to LEP individuals is
appropriate. Federal Agencies likewise must eliminate national origin
discrimination in their own federally conducted programs and
activities. The Department of Justice is available to help agencies in
reviewing and preparing agency-specific LEP guidance and federally
conducted plans.
______
Questions Submitted by Senator Herb Kohl
doj's and ftc's plan to divide antitrust responsibilities
Question. The Justice Department and Federal Trade Commission (FTC)
recently proposed a new plan for dividing their responsibilities over
antitrust matters. Under this plan, certain subjects currently split
between the agencies would be assigned only to one--for example, all
communications and media matters would be reviewed by the Justice
Department while all health care matters will be reviewed by the FTC.
In addition, the timetable for resolving contests between the agencies
over who is to review a matter will be expedited.
Why have you proposed this new plan for dividing antitrust
responsibilities between the Justice Department and the FTC? How will
this improve on the current system? Please list the statutory
differences in antitrust enforcement authority that exist between the
Department of Justice (DOJ) and FTC and tell me why these will or will
not make a difference.
Answer. The Clearance Agreement addresses a longstanding problem
with the process for assigning cases to the agencies that in some
significant cases had impeded and delayed antitrust investigation and
enforcement. The clearance system needed to be overhauled to arrest the
trend toward more frequent and time-consuming clearance disputes that
delay the initiation of investigations, and to allow the agencies to
concentrate expertise and resources to investigate more effectively.
DOJ's Antitrust Division (ATR) and the FTC each have jurisdiction
to investigate many of the same types of conduct. The principal ground
for clearance has always been to clear the matter to the agency with
the most recent expertise in the particular product or products to be
investigated. Over time, this clearance methodology has begun to break
down and disagreements have arisen.
Clearance disputes can cause significant delays in antitrust
enforcement, divert scarce agency resources, and strain working
relationships between the agencies. Before either agency commences or
proceeds with an investigation, it must request clearance from the
other agency. In the Hart-Scott-Rodino merger review process, the
initial investigative period is limited by statute to 30 days. Each day
that a clearance matter is unresolved is a day lost to investigation
and enforcement. Timely clearance decisions also are important for non-
merger matters; speed is crucial to ensuring that if there is an
antitrust violation, it is stopped promptly so consumer harm ceases.
An analysis of clearance delays released by the FTC on February 28,
2002, indicates that, since the beginning of fiscal year 2000, the 136
matters in which the agencies formally contested clearance took an
average of three and a half weeks to resolve. In another 164 matters
during this period, clearance took more than one week to resolve,
although no formal clearance dispute occurred. On average, these 300
matters--24 percent of all matters for which clearance requests were
filed during this period--imposed delays of 3 weeks. In some instances,
clearance disputes have delayed investigations for several months.
Whether in merger or non-merger cases, this is wasted time that could
have been used on investigation and enforcement.
The Clearance Agreement addresses the problems caused by delay by
setting forth new and improved procedures to assure that case
assignments will be made promptly so that substantive investigations
can begin sooner. The Agreement clearly allocates to one agency or the
other primary responsibility for certain commodities, based on the
predominant expertise of each agency. The FTC and ATR each has
substantial industry-specific enforcement capabilities with respect to
certain commodities, and thus has had primary responsibility for any
matters arising within these industry sectors. The Agreement is an
effort to formally acknowledge those areas in which the FTC and DOJ
already have such expertise.
The Agreement also assigns dedicated permanent staff to carry out
the clearance function, adopts standardized procedures and terms, and
includes a public commitment to shorten the time period for clearing
matters to the agencies--assuring resolution of even the most difficult
case within 10 days. Under the terms of the Agreement, more than 80
percent of the 300 matters referenced above would have been resolved
within 2 business days. Importantly, the Agreement does not place any
limit on the length of an investigation or otherwise constrain agency
enforcement once it begins. The Agreement also promotes accountability
by placing clearer responsibility for one agency or the other to engage
in ``community policing'' of their assigned industry areas. It provides
clarity to the companies, public interest groups, and the bar, who are
a key source of antitrust complaints and investigative leads for the
agencies.
The Clearance Agreement does not purport to limit the jurisdiction
of either agency. ATR and FTC have largely co-extensive authority to
enforce the antitrust laws. The FTC has authority to enforce the
following antitrust laws: the Clayton Act, 15 U.S.C. Sec. Sec. 12-27,
44 (1994); 29 U.S.C. Sec. Sec. 52-53; and the FTC Act, 15 U.S.C.
Sec. 45 (1994). In addition to its antitrust enforcement role, the FTC
has the authority to enforce a variety of consumer protection laws.
ATR, in turn, has exclusive Federal Governmental authority to
enforce the Sherman Act, 15 U.S.C. Sec. Sec. 1-2 (1994), and shares
with the FTC the federal authority to enforce the Clayton Act. ATR also
engages in competition advocacy before other federal agencies and has
certain statutory obligations to provide advice to federal agencies on
competition agencies. Both agencies also review transactions that are
subject to notification under the Hart-Scott-Rodino Act, 15 U.S.C.
Sec. 18a, et seq.
The FTC and ATR enforce the antitrust laws in a largely consistent
manner. Although the FTC may not directly enforce the Sherman Act, 15
U.S.C. Sec. Sec. 1-2 (1994), it may proceed under Section 5 of the FTC
Act against non-criminal conduct that violates the Sherman Act.
Moreover, occasional attempts to expand the scope of Section 5 beyond
actions that would otherwise violate the Sherman or Clayton Acts have
not met with success, and there is broad consensus that the FTC and the
Sherman and Clayton Acts are functionally coterminous with respect to
civil antitrust enforcement. There is, however, at least one
substantive difference in the enforcement capabilities of the
agencies--in enforcing the Sherman Act, ATR can proceed against
antitrust violations by criminal indictment.
The Agreement does nothing to alter ATR's criminal enforcement
responsibilities. Nothing in the Agreement changes the fact that ATR
handles all criminal matters for all commodities. Likewise, the FTC
will continue to handle all consumer protection matters for all
commodities. In sum, given the high degree of similarity in the
substantive standards applied by the agencies, and the fact that both
are constrained by the jurisprudence of a single federal judiciary, the
allocation of industry sectors is unlikely to have substantive effects
on the outcome of enforcement actions.
title v--juvenile justice local delinquency prevention
Question. When we created the Title V program 10 years ago, we
intended it to be a crime prevention program that gives localities
significant flexibility to design ways to prevent juvenile crime.
Studies show that every dollar spent on prevention funding yields
direct savings of $1.40 to the law enforcement and juvenile justice
system. Unfortunately, over the years, the amount of Title V funding
that has been earmarked for purposes other than local crime prevention
has grown to almost two-thirds of the appropriated amount.
To ensure that Title V continues to be used for prevention
programs, we can either eliminate the earmarks that do not focus on
local prevention programs or expand the pot of money available to crime
prevention. Please tell me how you think we should address the problem
specifically with regard to Title V.
Answer. Title V funds requested in fiscal year 2003 will be used
primarily for prevention purposes. The 2003 President's budget requests
$94.791 million for Title V funding, which represents a slight increase
of $454,000 over the 2002 enacted level. These funds will be used to
support three programs: the School Safety Initiative ($14.967 million),
the Tribal Youth Program ($12.472 million), and the Title V Delinquency
Prevention Program Incentive Grants ($62.319 million). These programs
provide a variety of prevention services to youth and their families,
including youth development, family strengthening, tutoring, mentoring,
health and mental health, alcohol and substance abuse prevention.
state court funding
Question. In the past, the Office of Justice Programs (OJP) has
funded initiatives aimed at improving state court systems. One such
recent project provided training for judges, court personnel,
prosecutors, police agencies and attorneys. The state of Wisconsin
court system would benefit immensely from a similar program that would
train court interpreters. In light of the increasingly diverse
population in Wisconsin, courts are experiencing a serious shortage for
qualified interpreters to act as translators during court proceedings.
What are DOJ's plans to specifically address problems like this and
to improve the quality of justice provided in our state courts?
Answer. Funding available under a number of OJP-administered
programs may be used to address the need for interpreters and to
otherwise improve the effectiveness of the state courts.
--Several grant programs awarded by the Violence Against Women Office
(VAWO) allow funds to be used to hire sign language and foreign
language interpreters to assist the deaf and non-English
speaking victims of domestic violence in court proceedings.
These programs include the Violence on College Campuses
Program, Legal Assistance Program and the Rural Domestic
Violence Program. For example, a community project funded by a
grant to the Morrow County District Attorney's Office in
Oregon, under the Rural Domestic Violence program will include
the hiring of certified court interpreters to assist Spanish-
speaking victims through final case disposition. Also, services
provided under a Violence on College Campuses program grant to
Wake Forest University in North Carolina to assist sexual
assault and stalking victims will include sign language and
foreign language interpreters.
--The Drug Courts Program Office (DCPO) provides grants to support
drug courts that are operational in the state courts. Drug
court protocols aim to improve the quality of justice dispensed
to drug abusing offenders by being respectful of culture and
language in the court and treatment delivery, while holding the
offender accountable. The DCPO has developed training in
cultural competence for operation and planning of drug courts,
which they will begin delivering this year.
--The Judicial Child Abuse Training program, administered by the
Office of Juvenile Justice and Delinquency Prevention (OJJDP),
supports model technical assistance and training programs to
improve the court system's handling of child abuse and neglect
cases. OJJDP is funding 23 model courts in 20 states and the
District of Columbia, where judges are taking leadership roles
in permanency planning, by finding eligible adoptive families.
Each model court is making unique, court-specific changes to
reduce the length of time children spend in foster care and to
improve the timeliness and quality of judicial decision making.
The overall goals of the project are to disseminate
information, offer court improvement training programs and
provide technical assistance widely at the national and state
levels on permanency planning and on model court achievements
for purposes of increasing the number of dependency courts that
improve administrative practice in child abuse and neglect
cases. Culture-specific training for court personnel may be
funded under this program.
--Resources available under the proposed $800 million Justice
Assistance Grant Program, which will fund activities currently
eligible under the Byrne Formula and the Local Law Enforcement
Block Grant programs which it replaces, and under the $215
million Juvenile Justice Accountability Incentive Block Grant
program, which provides funds to states to promote greater
accountability in the juvenile justice system, may also be used
for activities to improve the quality of state court services.
--The 2003 budget includes $63 million (a combination of $60 million
from the Criminal Records Upgrade Program and $3 million from
the National Stalker and Domestic Violence Reduction Program)
to improve state criminal recordkeeping.
office of victims of crime
Question. As you know, the Victims of Crime Act requires that the
Department of Justice identify the victims of a federal crime and
collect information on how to contact the victims or surviving family
members. To be sure, a catastrophic terrorist incident stretches the
Department's capabilities to satisfy this mandate. However, I was
pleased that the Office of Victims of Crime (OVC) activated a toll-free
number and call center by 4:00 p.m. on September 11 that provided
victim information, crisis counseling, and referral assistance to those
in need. And as I understand it, the information collected by this call
center is being used to compile a comprehensive database that will
assist DOJ in meeting its statutory obligations.
But beyond satisfying legal requirements, it is very important that
we support the victims of these terrorist acts--and I suspect this will
be ongoing task for quite some time to come. That is why I am concerned
with reports that OVC has significantly curtailed the operations of the
call center--a service that received more than 80,000 calls in just the
first 2 weeks alone following September 11. Such crisis counseling is
often the first sort of victim assistance someone seeks, and we must
ensure that it remains available at a level that will continue our
support of terrorist victims and their families.
Can you explain to me OVC's rationale for its decision to cut back
the level of service offered by the call center? If not, I trust you
will review the decision made by OVC and offer us an explanation.
Answer. The OVC has decided to modify the level of call center
services because states are currently providing services that are
reducing the need for the call center. However, the call center is
still providing information and referrals when necessary.
The call volume was extremely high during the first 2 weeks
following the September 11 terrorist attacks, and OVC continued to
support the victims and their families from September 11 until November
5, 2001. At that time, in consultations with Family Enterprise, Inc.
(FEI) Behavioral Health (contractor operating the call center), OVC
made the decision to cut back on the number of counselors and hours of
operation based on call volume. The call volume ranged from an average
daily high of 4,166 calls the week of September 11; to 630 calls from
September 16 to 22; to 345 calls from September 23 to 29; to 212 calls
from September 29 to October 6; to an average of 61 calls per day in
November; to 35 calls per day in December; and to 25 calls per day in
January 2002.
Staffing at the call center has been cut back due to the decrease
in the number of calls, however, the services have not changed. The
call center staffing levels averaged 226 during the first week; 62 in
the second week; 48 in the third week; and 45 in the fourth week. As
the call volume began to lessen, adjustments in staffing were made. At
the end of October, 2001, according to FEI, the call center was
averaging 150 calls per day. They were using 8 counselors (4 per shift)
to handle the calls, operating from 8:00 a.m. until midnight eastern
time, Monday through Saturday. FEI indicated that there was little call
volume after 9:00 p.m. and on weekends. Consequently, staff hours were
modified accordingly. On weekends, FEI staff checked voice mail on an
hourly basis and returned calls as necessary. The incoming calls were
for financial assistance, housing, travel and referrals for crisis
counseling.
From September 11 to 16, the cost of staffing alone at the call
center was approximately $559,100. From September 11 to 23, the costs
of rent, computer leasing, etc., was $482,059. Thus, in less than 2
weeks time, OVC expended more than $1,000,000 in support of victim
families through the call center, operating in full activation/crisis
mode. From September 23 to October 6, call center charges were $408,332
and from October 7 to November 9, costs totaled $420,465. Again, the
call center continued in full operational status to ensure that all
victims and their family members received the maximum assistance that
could be provided through the call center.
The call center continues to provide telephone-based crisis support
to victims and victim families and assessment/referral of multiple
needs, including counseling; assessment and referral for housing/
financial resources; travel related requests; other information/
referral; and the Federal Bureau of Investigation (FBI) leads, which
are passed to the FBI. The call center also often receives calls not
related to September 11.
OVC is reimbursing states to provide services, such as individual
counseling, which provide a more personal and frequent contact for
victims and their families. OVC awarded grants from the Antiterrorism
Emergency Reserve in September, 2001 to New York, Pennsylvania, and
Virginia. Pennsylvania used a portion of its funds to create a toll-
free number. Funds provided through the Department of Defense
Appropriations Act for 2002 are supporting counseling programs in
affected states. Pennsylvania is requesting use of these funds to
continue its toll-free number. In addition:
--Virginia created a toll-free number on September 11 using its own
funds.
--New York created a special number for this disaster and continued
to use other numbers already being advertised through the
media.
--New Jersey created a crisis line.
--California used the toll-free number it already had in place for
the crime victim compensation program.
--Massachusetts advertised its Massachusetts Citizens Line as its
toll-free number.
--Connecticut has a toll-free number for crime victims, which was
used for this purpose.
--Victims of Crime Act formula grants funds are not being used for
toll-free numbers. Most states used lines that were already in
place and funded with state dollars.
______
Questions Submitted by Senator Patty Murray
law enforcement in indian country
Question. Attorney General Ashcroft, last summer Senator Feingold
and I initiated a dear colleague letter inviting you to visit Indian
Country to focus on law enforcement challenges facing Native Americans.
Thank you for your response agreeing to visit, or to send a designee. I
realize you recently visited a tribe in New Mexico, but I hope you will
still strongly consider visiting reservations in Washington State and
Wisconsin.
I must commend you for holding the U.S. Border Patrol-Native
American Border Security Conference in January. I know of at least two
Washington State tribes in attendance, the Lummis and the Nooksacks. I
agree we need to foster better coordination between tribes and the
Federal Government to protect our borders effectively. As we improve
homeland security and fight terrorism, tribes can make crucial
contributions to these effort. I am glad the Department of Justice
recognizes this.
But at the same time, I am concerned by some of the cuts to tribal
law enforcement programs proposed in the fiscal year 2003 budget.
Given the disproportionately high incidence of violent crime in
Indian Country, why do you propose to cut the tribal law enforcement
program in the Community Oriented Policing Services (COPS) program by
$5 million, from $35 million last year to $30 million next year?
Answer. Since September 11, 2001, the Department has reprioritized
and shifted funding to address counter terrorism efforts. Because the
Department understands the importance of continued funding for Indian
Country initiatives, these programs were largely exempted from the
proposed funding shifts. The $30 million request will fund an estimated
114 grants that will enable many tribal law enforcement agencies to
hire additional officers or acquire critical law enforcement equipment.
Question. Why do you propose to cut funding for correctional
facilities on Indian lands altogether, from $35.2 million last year to
$0? The modest increase in the Bureau of Indian Affairs' (BIA) budget
from correctional facilities, $3 million, hardly makes up for this
large cut.
Answer. The Indian Country Tribal Prison Construction Program was
intended to alleviate the problems associated with the lack of
institutional bed space and overcrowding resulting from large increases
in the prison population. However, it is increasingly difficult to
justify funding the program in light of the fact that more bed space
has come on line while at the same time the rate of increase in the
total number of prisoners has remained constant. According to Jails in
Indian Country, 2000, a report by the Bureau of Justice Statistics, the
69 Indian Country facilities are presently operating at an average 86
percent capacity. While some individual facilities still have problems,
the same report indicates that 17 facilities operating in Indian
Country are expecting to increase capacity by 1,108 beds by July 2003.
Given that Indian country facilities held 1,775 inmates at midyear
2000, up from 1,621 at midyear 1999, there does not appear to be a
short-term need for more beds at these facilities. In view of changing
priorities and the emphasis on supporting counterterrorism activities,
OJP is not requesting funds for this program in 2003.
Question. And how do you justify flat-lining many of the other law
enforcement programs crucial to reducing crimes against Native
Americans, such as the Tribal Courts Grant Program ($8 million), Tribal
Youth Initiatives ($12 million) and the Indian Alcohol and Substance
Abuse Diversion Program ($5 million)?
Answer. The war on terrorism has compelled the Department of
Justice to re-examine priorities, and funding increases proposed are
largely targeted to counterterrorism activities. As a result, many
state and local assistance programs were either reduced or maintained
at the fiscal year 2002 level. Because the Department understands the
importance of continued funding for Indian Country initiatives, most of
these programs were maintained at the fiscal year 2002 level.
______
Questions Submitted by Senator Pete V. Domenici
radiation exposure compensation program
Question. The Department of Justice estimates that $111.2 million
in Radiation Exposure Compensation Act (RECA) claims were paid in 2001
with regular appropriations ($10.8 million) and the ``such sums as may
be necessary'' language in the fiscal year 2001 Supplemental
Appropriations Act. An estimated 3,828 claims were filed; 1,571 were
approved; 57 were denied; and 727 were pending at the beginning of
fiscal year 2001.
Attorney General Ashcroft, I want to congratulate the Department of
Justice for its hard work to ensure that claimants under RECA are
receiving claims payments instead of IOUs as was the case a year ago. I
commend the Department for aggressively implementing language I
sponsored in the fiscal year 2001 Supplemental Appropriations Bill that
provided ``such sums as may be necessary'' to pay RECA claims approved
by September 30, 2001, to compensate those who sustained injury as a
result of the United States open-air nuclear testing and uranium mining
activities in the 1950's through 1970's.
Will you please tell the Subcommittee how many claims were
approved, and how many IOUs were paid, under the language included in
the Supplemental Appropriations bill for 2001?
Answer. The fiscal year 2001 Supplemental Appropriations Bill
provided a total of $100,650,000 to pay meritorious claims. Of that
amount, $30,525,000 was approved to pay 436 pending IOUs and
$70,125,000 was approved to pay 1,177 claims adjudicated between July
24, 2001 and September 30, 2001.
Question. Would you please provide for the record a breakdown of
the number of claims paid by state and by category of beneficiary?
Answer. The following table lists the number of claims funded by
the 2001 Supplemental, by state and by type of claim.
----------------------------------------------------------------------------------------------------------------
Onsite Uranium Uranium Ore Total
Downwinder Participant Miner Miller Transporter Claims Total Awards
----------------------------------------------------------------------------------------------------------------
Alabama..................... 1 ........... 2 ........ ........... 3 $250,000
Alaska...................... 2 ........... 1 ........ ........... 3 $200,000
Arizona..................... 439 4 19 1 ........... 463 $24,250,000
Arkansas.................... 3 ........... 2 ........ ........... 5 $350,000
California.................. 27 6 7 1 ........... 41 $2,600,000
Colorado.................... 15 ........... 115 13 2 145 $13,750,000
Florida..................... 2 4 2 ........ ........... 8 $600,000
Hawaii...................... 1 2 ........ ........ ........... 3 $200,000
Idaho....................... 12 1 4 ........ ........... 17 $1,075,000
Illinois.................... 1 1 2 ........ ........... 4 $325,000
Indiana..................... .......... ........... 2 ........ ........... 2 $200,000
Kansas...................... 3 2 2 ........ ........... 7 $500,000
Louisiana................... .......... 2 ........ ........ ........... 2 $150,000
Maryland.................... 2 2 ........ ........ ........... 4 $250,000
Michigan.................... .......... 2 ........ ........ ........... 2 $150,000
Minnesota 1 2 ........ 1 ........... 4 $300,000
Mississippi................. .......... ........... 1 ........ ........... 1 $100,000
Missouri.................... 2 1 1 1 ........... 5 $375,000
Montana..................... 2 ........... ........ ........ ........... 2 $100,000
Nebraska.................... 1 1 1 ........ ........... 3 $225,000
Nevada...................... 101 26 9 1 ........... 137 $8,000,000
New Hampshire............... .......... ........... 1 ........ ........... 1 $100,000
New Mexico.................. 5 1 78 14 1 99 $9,625,000
New York.................... .......... 4 ........ ........ ........... 4 $300,000
North Carolina.............. .......... 1 2 ........ ........... 3 $275,000
Ohio........................ 1 1 1 2 ........... 5 $425,000
Oklahoma.................... 3 ........... 5 ........ ........... 8 $650,000
Oregon...................... 9 2 2 ........ ........... 13 $800,000
Pennsylvania................ 1 2 ........ ........ ........... 3 $200,000
South Carolina.............. .......... 1 ........ ........ ........... 1 $75,000
South Dakota................ .......... 1 ........ ........ ........... 1 $75,000
Tennessee................... 1 ........... 1 ........ ........... 2 $150,000
Texas....................... 10 1 2 ........ ........... 13 $775,000
Utah........................ 522 7 39 8 1 577 $31,425,000
Virginia.................... 1 ........... ........ ........ ........... 1 $50,000
Washington.................. 2 2 4 ........ ........... 8 $650,000
West Virginia............... .......... ........... 4 ........ ........... 4 $400,000
Wisconsin .......... ........... 1 ........ ........... 1 $100,000
Wyoming..................... 3 1 2 1 ........... 7 $525,000
-----------------------------------------------------------------------------------
Subtotal.............. 1,173 80 312 43 4 1,612 $100,550,000
Canada...................... .......... ........... ........ 1 ........... 1 $100,000
-----------------------------------------------------------------------------------
TOTAL................. 1,173 80 312 44 4 1,613 $100,650,000
----------------------------------------------------------------------------------------------------------------
Question. Have all pending IOUs been paid?
Answer. There are currently five claims pending where individuals
received IOU letters from the Radiation Program. Two of these claims
are pending because the claimants are pursuing an award under the
Energy Employees Occupational Illness Compensation Program (EEOICPA).
As you know, acceptance of compensation under that program precludes
recovery for onsite participants and downwinders under the Radiation
Exposure Compensation Act (RECA). A third claim remains pending while
the claimant considers the loss of benefits from the Department of
Veterans Affairs should the RECA award be accepted. Finally, the last
two claims are pending because the Radiation Program is awaiting
receipt of acceptance forms from attorneys representing the claimants.
With the exception of those five claims, all IOUs have been paid.
Question. I also congratulate the President and the Department for
proposing in the 2002 budget to make payments for claims under RECA an
entitlement. Congress did enact as part of the Defense Authorization
bill, my amendment to make the RECA program a mandatory program. The
Department has $172 million to pay claims in 2002 and $143 million to
pay claims in 2003, and additional amounts in future years.
Will you please give the Subcommittee a status report on the
payment of RECA claims. How many claims has the Department approved and
how much has been spent out of the Trust Fund to pay these claims since
the inception of RECA?
Answer. Through March 15, 2002, a total of 5,981 claims have been
approved, with a value of $413,597,489.
Question. What is the average amount of the claims approved, the
number of claims denied, and the general reason for denial of these
claims?
Answer. RECA award amounts are fixed by statute. Uranium workers
(uranium miners, mill workers, ore transporters) are eligible for a
$100,000 award; onsite participants are eligible for a $75,000 award;
and downwinders are eligible for a $50,000 award. Due to the
predominance of downwinder approvals, the overall average of awards is
$69,512 over the life of the Program.
Through March 15, 2002, the RECA Program has denied 3,906 claims.
Claims are denied if one or more of the eligibility criteria are not
satisfied. For example, uranium worker claims are typically denied in
cases where the documentation does not establish that the individual
contracted an illness specified under the law. Similarly, downwinder
and onsite participant claims are most frequently denied where the
records fail to establish a covered disease or the individual was
either not present in the affected ``downwind'' area or did not
participate in atmospheric weapons testing.
Question. For the record, would you please provide the Subcommittee
with a breakdown of the types of claims approved or disapproved
(childhood leukemia, other downwinder, onsite participants, or uranium
miners), the number of claims currently pending, and the amounts
disbursed by type of claim paid?
Answer. The following table lists, by category, the total value of
the awards approved by the Radiation Exposure Compensation Program, as
well as the number of claims received, approved, denied and pending
through March 15, 2002.
RADIATION EXPOSURE COMPENSATION PROGRAM--APRIL 1992-MARCH 15, 2002
----------------------------------------------------------------------------------------------------------------
Value of Claims
Awards Received Approved Denied Pending
----------------------------------------------------------------------------------------------------------------
Downwinder...................... $174,120,000 6,768 3,483 1,432 1,853
Onsite Participant.............. $23,685,989 1,469 334 838 297
Uranium Miner................... $207,591,500 4,335 2,082 1,631 622
Uranium Miller.................. $7,100,000 229 71 4 154
Ore Transporter................. $1,100,000 61 11 1 49
-------------------------------------------------------------------------------
TOTAL..................... $413,597,489 12,862 5,981 3,906 2,975
----------------------------------------------------------------------------------------------------------------
Question. For my use, would you please provide this same
information specifically for claims from New Mexico, including the
total claims received, the total claims approved, the total claims
denied and the total claims pending?
Answer. With respect to claims for which the primary claimant
resides in New Mexico, the Department has approved 572 claims, with a
total value of $55,977,799 through March 15, 2002. The following table
lists, by category, the value of awards and the number of claims
received, approved, denied, and pending.
RADIATION EXPOSURE COMPENSATION PROGRAM: NEW MEXICO--APRIL 1992-MARCH 15, 2002
----------------------------------------------------------------------------------------------------------------
Value of Claims
Awards Received Approved Denied Pending
----------------------------------------------------------------------------------------------------------------
Downwinder...................... $800,000 64 16 18 30
Onsite Participant.............. $843,299 49 12 26 11
Uranium Miner................... $52,234,500 1,395 523 660 212
Uranium Miller.................. $1,900,000 62 19 1 42
Ore Transporter................. $200,000 10 2 0 8
-------------------------------------------------------------------------------
TOTAL..................... $55,977,799 1,580 572 705 303
----------------------------------------------------------------------------------------------------------------
Question. How many claims are projected to be filed and processed
under current law in the upcoming year?
Answer. For fiscal year 2003, we presently estimate that 2,225
claims will be filed and 2,620 claims will be processed. It is
impossible to precisely estimate the amount of receipts for this year
because the data is skewed as a result of the mail suspension. The
following chart displays the number of claims filed, by month, for
fiscal year 2001 and the first several months of fiscal year 2002.
RECA CLAIMS RECEIVED BY MONTH--FISCAL YEARS 2001 AND 2002
------------------------------------------------------------------------
Fiscal year--
-----------------
2001 2002
------------------------------------------------------------------------
October............................................... 188 249
November.............................................. 504 \1\ 21
December.............................................. 214 \1\ 25
January............................................... 200 \1\ 175
February.............................................. 233 598
March................................................. 371 \2\ 156
April................................................. 315 .......
May................................................... 438 .......
June.................................................. 349 .......
July.................................................. 358 .......
August................................................ 345 .......
September............................................. 307 .......
-----------------
Total........................................... 3,822 1,224
------------------------------------------------------------------------
\1\ Reflects mail suspension during October 2001-January 2002.
\2\ As of March 18.
Question. Does the Administration have any long-range estimates as
to the number of claims that might still be filed under the Radiation
Exposure Compensation Act under current law and regulations?
Answer. In May 2000, the Congressional Budget Office (CBO) roughly
estimated that about 15,600 claims might be filed under Public Law 106-
245, the Radiation Exposure Compensation Act Amendments of 2000. Since
enactment in July 2000, nearly 5,500 claims have been filed. Using
CBO's estimate, it is possible that an additional 10,100 claims might
be filed over the lifetime of the current law. However, these long-
range estimates only approximately quantify the future of the Radiation
Exposure Compensation Program. As the Department continues to educate
the affected communities of the availability of compensation under the
amended Act, it is possible that a larger percentage of the eligible
claimant population could apply for compensation, thereby exceeding the
current estimate.
first responder training
Question. Attorney General Ashcroft, I support President Bush and
the Administration 100 percent in their efforts regarding the war on
terrorism. There is nothing more important and no higher priority for
this country at this time in history.
This is the first budget that incorporates homeland security into
ongoing federal programs. As a part of that effort, the Administration
proposes to shift the responsibility for first responder training from
the Department of Justice to the Federal Emergency Management Agency
(FEMA), and to significantly increase funding for these activities. I
have some concerns about this proposal that I would like to raise with
you today.
Will the entire activity of first responder training be transferred
to FEMA, or will the Department of Justice retain some aspects of this
critically important function?
Answer. The President's fiscal year 2003 budget proposes to
transfer all of the training programs administered by the Office for
Domestic Preparedness to FEMA. These include the integrated Nunn-Lugar
training program, the Center for Domestic Preparedness at Fort
McLellan, the Domestic Preparedness Consortium, TOPOFF, and similar
situational training exercises. It will not affect terrorism training
for local law enforcement provided by the FBI.
Question. What programs and activities and associated funding and
staff are proposed to be transferred from the Department of Justice to
FEMA?
Answer. The fiscal year 2003 President's budget proposes to
transfer all the Office for Domestic Preparedness (ODP) programs,
activities, and associated funding and staff related to planning,
equipment, training, technical assistance, and exercises. This proposed
transfer includes 59 current positions. The National Institute of
Justice's (NIJ) counterterrorism research and development program will
remain part of the Office of Justice Programs, to be funded directly by
the NIJ instead of through ODP.
Question. Will the shift of first responder training
responsibilities require legislative authorization by the Congress? If
not, what are the appropriate legal authorities the Administration
cites as the basis for proposing and proceeding with this
reorganization of national domestic preparedness and first responder
training?
Answer. FEMA is authorized currently to assume the Office of
Domestic Preparedness' (ODP) preparedness activities. To help states
and localities prepare for disasters, natural or man made, FEMA may
carry out exercises, provide grants, and offer training and technical
assistance. FEMA derives its authority from its primary disaster relief
and assistance statute, the Stafford Act, as well as the Federal Fire
Prevention and Control Act.
However, to eliminate any ambiguity the Administration included
language in the 2003 budget amendments and errata (submitted March 14)
to clarify that FEMA will honor ODP's obligations to its contractors,
local partners, grantees, and staff:
``Provided further, That, the functions authorized under section
819 of the Antiterrorism and Effective Death Penalty Act of 1996 and
section 1014 of Public Law 107-56, as well as such unexpended balances
of appropriations, full-time equivalent personnel, property, and
records as have been assigned to the Department of Justice, shall be
transferred to the Federal Emergency Management Agency: Provided
further, That such transfers are made pursuant to 31 U.S.C. 1531''
Question. In light of the supposition that the Department of
Justice has been responsible for the great majority of first responder
training for so long, in your opinion Mr. Attorney General, do you
think that too much of the first responder training authority has been
relinquished by DOJ? To put it another way, how wise would you
characterize the decision to transfer what could be considered the most
vital aspect of Homeland Security away from the agency with the most
experience in handling that vital function?
Answer. In fiscal year 2003, the Administration is requesting that
funding for ODP's counterterrorism programs be transferred to FEMA. In
May 2001, the President stated his belief that the numerous federal
programs offering training and assistance to state and local
governments be ``seamlessly integrated, harmonious and comprehensive to
maximize their effectiveness.'' This transfer supports the
Administration's coordination and streamlining of all terrorism-related
activities to provide greater program cohesion and efficiency. The
Administration also believes that FEMA, through its newly created
Office of National Preparedness (ONP), is the appropriate federal
agency to be the single point of contact to facilitate and oversee the
President's fiscal year 2003 $3.5 billion First Responder Initiative
and to implement national efforts to build and expand on first
responder training capabilities. The transfer of ODP's first responder
training programs to FEMA will achieve greater integration,
coordination, and effectiveness in the administration of the Federal
Government's counterterrorism training programs.
Question. My understanding is that the President proposed the
transfer of first responder training from the Department of Justice to
FEMA last May. At that time, the program totaled about $30 million for
the National Domestic Preparedness Consortium (NDPC) and additional
amounts for equipment and related expenses. Following the September
11th terrorist attacks, the NDPC grew to a total of $95.7 million plus
another $16 million for training grants and support. In total, the
Administration plans to transfer $234.5 million in first responder
training programs form the Department of Justice, and turn these
programs into a $3.5 billion first responder training program in FEMA
in fiscal year 2003.
I will ask this same question of FEMA--would the Department of
Justice have the capability of implementing a dramatically expanded
first responder training program in fiscal year 2003?
Answer. The Department of Justice could use the National Domestic
Preparedness Consortium and its other training partners to facilitate
some expansion in training, but dramatic growth would be constrained by
the capacity of existing facilities and staff to deliver effective
training. It is our understanding that FEMA will continue to support
the Consortium in 2003, while also providing states with formula grants
for training and examining new methods of training delivery.
Question. Assuming that a comprehensive first responder training
program is developed, it is clear that responding to potential attacks
using weapons of mass destruction--chemical and biological agents, and
even nuclear devices--requires very specialized training. In your
opinion, are there the necessary trainers available throughout the
country to carry out a significant first responder training program,
specifically one that is comprehensive and coordinated to provide a
seamless response to a disastrous attack?
Answer. There are enough qualified trainers to meet the current
demand for first responder weapons of mass destruction training. While
the requested increases in training at all levels of government may
strain this capacity in the short term, there is sufficient untapped
expertise to carry out a larger program in the near future.
mental health courts
Question. Attorney General Ashcroft, as you are aware, the fiscal
year 2002 Commerce, Justice, State, and Judiciary Appropriations Bill
contained $4 million for Mental Health Courts. The funding is the
result of the America's Law Enforcement and Mental Health Project Act,
enacted into law two years ago. The Act authorized the creation of
Mental Health Courts with separate dockets to handle cases involving
individuals with a mental illness.
The specific thrust of Mental Health Courts is simply to provide an
individual with a mental illness and charged with a misdemeanor or
nonviolent offense the option of out-patient or in-patient mental
health treatment as an alternative to incarceration.
Finally, the Department of Justice estimates that sixteen percent
of all inmates in local and state jails suffer from a mental illness
and the American Jail Association estimates that as many as 700,000
persons suffering from a mental illness are jailed each year.
Do you believe Mental Health Courts can alleviate prison
overcrowding and create greater judicial economy within our court
systems?
Answer. Realistically, we do not expect that mental health courts
will alleviate prison overcrowding. However, understanding the enormous
cost that these individuals bring to law enforcement, judicial, and
correctional agencies when these offenders are not treated, many sites
are looking to the local courts to try this new initiative. Many
mentally ill/mentally impaired individuals commit crimes that require
some type of incarceration. Further, they often are not deterred or
coerced from further criminal activity by a series of less-punitive
sanctions or alternatives; many simply will not comply with a court-
ordered treatment plan and may have to be returned to traditional
processing that ends in some incarceration sentence. However, by more
appropriate triage and response to these individuals early in their
processing, mental health courts and the partnerships developed under
this setting will provide this population with the best possible
combination of accountability and treatment. In addition, these
individuals may learn how not to become involved in criminal behaviors
that will bring them back into the system later.
By routing these individuals away from the traditional criminal
court and into mental health courts, state and local governments will
be meeting the objectives of the Law Enforcement and Mental Health
Project Act (Public Law 106-515) and will be addressing the special
needs of the mentally ill/mentally impaired, who have long been an
overlooked population in the criminal justice system. The extent to
which this is achievable on a national basis must also depend on how
mentally ill defendants are treated in state law and state judicial
systems.
Jurisdictions with mental health courts should be able to make a
smaller investment of scarce resources in the court and treatment
process, rather than a larger investment in jail and prison systems,
and may thus see some overall financial savings.
Question. What steps are being taken by DOJ to distribute the $4
million appropriated to implement America's Law Enforcement and Mental
Health Project Act?
Answer. The Bureau of Justice Assistance (BJA) will be guided in
its implementation of this program by the objectives set forth in the
Act. To date, BJA has had several meetings with the Substance Abuse and
Mental Health Administration (SAMHSA) and the Department of Health and
Human Services to discuss coordination of the implementation of this $4
million appropriation. These discussions have explored potential
collaboration on a mental health jail diversion initiative, although no
final agreement has been reached. BJA has also had conversations with a
number of advocacy and special interest groups representing courts,
court administrators, consumer advocates, prosecutors, defenders, law
schools, and other institutions, such as the Bazelon Center and the
Council for State Governments.
BJA convened a 3-day meeting beginning March 18, 2002 to receive
input from the field. A final competitive solicitation for operational
mental health court grants, which will be developed within the
parameters of the Act, will be issued. This forum will also assist BJA
in crafting a technical assistance strategy.
Question. What plans does DOJ have to provide assistance to court
systems seeking to develop and implement a Mental Health Court and does
DOJ plan to offer continued technical assistance after the
implementation of a Mental Health Court?
Answer. BJA recognizes the need for technical assistance not only
among mental health court grantees, but also among those sites that
will implement a court without the support of direct federal funding.
BJA anticipates a substantial investment of funds available under this
appropriation for technical assistance and information dissemination to
assist localities in their efforts to plan, implement, operate, and
assess mental health court initiatives.
black tar heroin and methamphetamine trafficking federal bureau of
investigation (fbi) and drug enforcement and administration (dea)
Question. This Subcommittee has been very helpful over the past 3
years in tackling an issue of great concern to me. That issue is the
serious ``black tar'' heroin problem that has plagued several northern
New Mexico counties.
Both the FBI and DEA have cooperated with the state and local law
enforcement officials in New Mexico to try to break the serious cycle
of black tar heroin trafficking and use. Several major drug busts have
been implemented in this area of New Mexico.
Would you please give the Subcommittee the Department's assessment
of the progress these joint law enforcement operations in breaking the
black tar heroin rings in northern New Mexico?
Answer. Traditionally, Northern New Mexico's primary illegal drug
threat has been the transshipment and distribution of cocaine and black
tar heroin. Since 1999, DEA and FBI, in cooperation with state and
local law enforcement officials, have had three successful joint law
enforcement operations targeting heroin trafficking organizations in
northern New Mexico. The first two operations in 1999 and in 2000
targeted Nayarit Mexican heroin traffickers who were distributing uncut
black tar heroin with purity levels sometimes exceeding 70 percent.
This high purity level led to a dramatic increase in heroin overdose
deaths in Rio Arriba and Santa Fe counties. The 1999 investigation
resulted in 32 federal arrests and 20 state arrests. The 2000
investigation resulted in 13 federal arrests, mostly in New Mexico.
Efforts in 2001 focused on finalizing the prior years' investigations
and ensuring that the law enforcement operations had dismantled the
Nayarit Mexican Trafficking Organizations heroin trafficking network in
northern New Mexico. Law enforcement efforts were evidenced by a slight
decline in the number of overdose death rates in both Rio Arriba and
Santa Fe counties in 2000.
------------------------------------------------------------------------
1999 Drug 2000 Drug
As Reported by the New Mexico OMI Overdose Related Overdose Related
Deaths Deaths
------------------------------------------------------------------------
Santa Fe County................... 15 13
Rio Arriba County................. 46 39
------------------------------------------------------------------------
During June 2001, law enforcement officials in New Mexico jointly
determined that another multi-agency law enforcement operation
targeting heroin traffickers was necessary in northern New Mexico. DEA
deployed the El Paso Field Division Mobile Enforcement Team (MET) to
Rio Arriba and Santa Fe counties in October of 2001. In conjunction
with the Albuquerque DEA Office, the New Mexico Department of Public
Safety, and the Bureau of Justice Assistance (BJA)--High Intensity Drug
Trafficking Area (HIDTA) Region III Narcotics Task Force, the MET has
identified approximately 27 targets for federal prosecution and another
28 targets for state prosecution. Both the United States Attorney's
Office and the First Judicial District Attorney's Office have provided
prosecutorial oversight since this investigation started. Intelligence
gathered during this investigation has reinforced two major issues of
concern for law enforcement entities working in northern New Mexico:
--Unlike the Nayarit heroin traffickers, current heroin traffickers
in Rio Arriba and Santa Fe counties seldom traffic only heroin.
Most often, these dealers traffic both heroin and cocaine, and
occasionally methamphetamine.
--The New Mexico Office of the Medical Investigator (OMI) has
consistently reported that very few overdose deaths in northern
New Mexico are strictly heroin overdose. In almost every
overdose death, the OMI reports a mixture of multiple narcotics
in the victim's toxicology. These substances include heroin,
alcohol, cocaine, methadone, prescription drugs, and other
unknown substances.
--The use of narcotics is a significant issue in northern New Mexico.
Two facts that support this concern are also evidenced in the
New Mexico OMI reports:
--Nearly 50 percent of overdose death victims are in the 30-39 age
range, another 25 percent are 50 years of age or older.
These age ranges indicate long-term drug users and addicts
as opposed to youthful experimenters; and
--Over 80 percent of overdose death victims die in their own homes
or the home of family member, indicating a tolerance of
drug use among family and peers.
While law enforcement efforts in northern New Mexico are
effective and successful, law enforcement alone is not the
answer to this problem. Consequently, following the conclusion
of the current law enforcement operation in northern New
Mexico, DEA will send the El Paso Field Division and the
Albuquerque District Office Demand Reduction Coordinators to
northern New Mexico to provide training and information to area
residents. Additionally, forfeiture proceedings against real
property seized during the 1999 law enforcement operation have
recently been completed. The United States Attorney's Office
and DEA have agreed that the most accessible and suitable of
the two properties seized will be returned to the northern New
Mexico community. Several groups have expressed an interest in
using the facility for a community outreach and drug education
center. Meanwhile, law enforcement efforts will continue, and
DEA will further explore investigative techniques that will be
effective in this area.
Question. An equally serious problem is methamphetamine trafficking
and usage. I believe both the FBI and DEA have encountered this illegal
activity in its law enforcement activities in New Mexico, including
northern New Mexico.
Would you please give the Subcommittee your assessment of the
effect these joint law enforcement operations in northern New Mexico
have had on the methamphetamine trafficking in the area?
Answer. The methamphetamine trafficking problem throughout the
state of New Mexico is two-fold:
--New Mexico's remote and mountainous landscape often provides safe
haven to clandestine methamphetamine laboratory operators
throughout the state. During the late 1980's and early 1990's,
these clandestine laboratories decreased dramatically in
response to precursor control laws which seriously restricted
the availability of essential chemicals needed to manufacture
methamphetamine. However, methamphetamine manufacturers (also
known as ``cooks'') have continually updated and refined
manufacturing procedures to circumvent precursor control laws.
The late 1990's saw the number of clandestine manufacturing
laboratory seizures skyrocket throughout the United States.
While New Mexico has not experienced this problem to the extent
that some Midwestern states have, these clandestine
laboratories have presented a new and costly challenge. During
the first quarter of fiscal year 2002, DEA offices in
Albuquerque and Las Cruces, New Mexico have seized 23
clandestine methamphetamine laboratories throughout the state.
These 23 labs represent only the clandestine laboratories to
which DEA agents have responded and do not include numerous
``chemical clean-ups'' in which state and local law enforcement
authorities have seized necessary precursor chemicals even when
the laboratory was not operational. The majority of these
laboratories are small individual operations, producing
personal use amounts up to an ounce or two of methamphetamine
at a time. A total of 85 clandestine laboratories have been
seized in New Mexico since October 1, 2001. However, only 6 of
the laboratories were capable of producing multi-ounce
quantities of methamphetamine.
Despite the size of these operations, responding to these
laboratories requires an excessive amount of agent hours and
resources. On average, when DEA responds to a clandestine
methamphetamine laboratory, the team consists of five special
agents and a supervisory special agent. The agents must have
specialized training and be accompanied by a ``Site Safety
Officer'' who is trained to supervise the health and
environmental issues that must be considered when disposing of
flammable, explosive, and toxic chemicals and waste products.
The average clean-up cost, for even a small laboratory in New
Mexico is between $6,000 and $15,000. In fiscal year 2002, DEA
has investigated and seized one clandestine laboratory in Santa
Fe County, two clandestine laboratories in San Juan County, and
one clandestine laboratory in Cibola County in northern New
Mexico. The largest areas for the seizure of clandestine
laboratories in northern New Mexico are in Bernalillo County,
primarily in the east mountain area, and in Valencia County,
the Los Lunas/Meadow Lakes area.
Clandestine methamphetamine laboratories are an ongoing law
enforcement issue throughout the United States. While law
enforcement entities throughout New Mexico, including DEA,
continue conducting clandestine manufacturing investigations
successfully, clandestine manufacturing will be deterred.
However, while criminal chemists continue to develop and
improve their ability to circumvent new laws and regulations,
clandestine manufacturing will not be eliminated.
--The second area of methamphetamine trafficking that affects New
Mexico is the distribution and transshipment of Mexican
produced methamphetamine in and through the state. During the
early 1990's, when the first chemical precursor control laws
were having a serious impact on the domestic clandestine
manufacture of methamphetamine, Mexican polydrug trafficking
organizations seized the opportunity and began large scale
production of methamphetamine in Mexican-based laboratories.
These Mexican labs are capable of producing multi-kilogram
quantities of methamphetamine that are smuggled across the
international border in the same manner as other illegal drugs.
New Mexico highways provide a ready corridor for transporting
methamphetamine into the state for distribution and
transshipment through New Mexico to eastern markets. Recent
investigations have shown that large quantities of
methamphetamine in New Mexico are distributed primarily in the
areas of Albuquerque and Farmington.
An ongoing Albuquerque investigation has uncovered a large
Mexican-based organization that routinely distributes multi-
kilogram quantities of methamphetamine in the Albuquerque area.
The largest seizure in this investigation has been 25 pounds.
The most recent cooperative methamphetamine investigation in
the Farmington area resulted in the delivery of 7 kilograms of
methamphetamine to an undercover agent. Recent interdiction
seizures include a highway interdiction seizure of
approximately 2 kilograms of methamphetamine destined for the
Birmingham, Alabama, and a kilogram of methamphetamine
interdicted from a Greyhound Bus passenger en route to Kansas
City, Missouri. Intelligence information obtained from these
investigations indicate that Mexican methamphetamine destined
for New Mexico, routinely crosses the United States-Mexican
Border, or is manufactured by Mexican-based trafficking
organizations within California and sent from areas such as Los
Angeles and/or Phoenix into or through New Mexico. Many of
these trafficking organizations have ties within the Mexican
state of Michoacan.
On March 31, 2001, the FBI's Albuquerque Division, Gallup
Resident Agency, and the New Mexico Region II Narcotics Task
Force initiated an investigation into the seizure of 343 pounds
of methamphetamine from a truck stopped at the Arizona/New
Mexico port-of-entry of Interstate 40. The investigation
revealed that the driver was working for an organization based
in Mexicali, Mexico, which was transporting large quantities of
illegal drugs across the United States. The driver acquired the
343 pounds of methamphetamine in Calexico, California, and was
en route to deliver the drugs to Atlanta, Georgia. The driver
had previously transported 100 kilogram quantities of marijuana
to Atlanta, Georgia, for the same organization.
Disturbingly, undercover investigations indicate that the Mexican
Nationals, who are transporting and distributing these large
quantities of methamphetamine, have access to a seemingly
unlimited supply of methamphetamine. Investigations and
intelligence gathering by federal, state, and local law
enforcement agencies are continuing in an attempt to further
identify and dismantle those individuals and organizations
operating in Mexico, Arizona, and California, that are
supplying New Mexico and other eastern cities.
staffing at santa teresa port-of-entry
Question. Mr. Attorney General, I appreciate the work and mission
of the United States Immigration and Naturalization Service (INS),
especially in the face of the unique demands placed on this agency
after the tragedy of September 11.
As I expressed in a November 2001 letter to INS Commissioner James
Ziglar, greatly increased traffic at New Mexico's Santa Teresa port-of-
entry has created an urgent need for additional INS inspectors to allow
the operation of the port's two processing booths throughout the day.
Traffic has more than doubled in the past several months compared to
fiscal year 2001.
The Santa Teresa port is currently operating with four INS
inspectors, two of whom have been temporarily assigned from El Paso
border crossings. I was pleased to learn recently that two additional
INS personnel will be hired. However, I have been made aware that Santa
Teresa still urgently needs an additional seven Immigration personnel
to adequately handle increasing traffic.
Additionally, I have learned that the Columbus port-of-entry, New
Mexico's only 24-hour non-commercial border crossing, lacks at least
six Immigration personnel to handle current traffic volume.
Adequate staffing for these ports-of-entry is essential both for
efficient commerce and for the safety and security of all parties
involved in the flow of traffic across the border. I am concerned that
despite my long-time role in increasing funding and personnel levels
for the INS, New Mexico's ports-of-entry have continued to endure
personnel shortages, experiencing no measurable benefit from these
increased resources.
Supplemental homeland defense funding has rightfully boosted
resources for INS personnel, particularly along the Northern border.
What assurance can you give me that the Southwest border, and
particularly New Mexico's historically understaffed ports-of-entry,
will receive personnel increases reflective of recent increased federal
resources.
Answer. The INS and the USCS share responsibility for operating the
primary lane. Prior to September 11, 2001, Santa Teresa was operational
from 6:00 a.m. until 10:00 p.m. On average, 20 cars and 52 people were
inspected per hour. Santa Teresa has only two traffic lanes and two
immigration inspectors on duty per shift. Immediately following the
events of September 11, 2001, all ports were instructed to operate
under Threat Level One requiring continuous 24-hour staffing at all
land border ports of entry. This threat level also requires at least 2
on-duty officers, 100 percent trunk inspection or its equivalent and
100 percent queries for all pedestrians. Traffic seeking to avoid
congestion at the nearby El Paso port, frequently diverts to Santa
Teresa. The inability to accommodate the increased regular and holiday
traffic combined with Threat Level One condition, resulted in increased
wait times. However, in January 2002, the average wait time was 15
minutes.
The INS received 848 new land border inspectors in fiscal year 2002
to enhance enforcement efforts and to reduce delays at ports of entry
both north and south. That deployment includes 4 new positions to
Columbus, New Mexico and 2 new positions to Santa Teresa, New Mexico.
The INS has requested an additional 460 new land border inspectors in
fiscal year 2003 to continue securing the ports, enhance enforcement
and return to normal processing times. In order to accomplish that, all
ports, regardless of their geographic location, must be adequately
staffed to ensure that every precaution is taken when determining who
should and who should not be admitted into the United States.
ins restructuring
Question. The Immigration and Naturalization Service's mission
involves carrying out two primary functions. One is an enforcement
function that involves preventing aliens from entering the United
States illegally and removing aliens who succeed in doing so. The other
is a service function that involves providing services or benefits to
facilitate entry, residence, employment, and naturalization of legal
immigrants.
Several critics have concluded that mission overload has impeded
INS from succeeding at either of its primary functions and that the
INS' service and enforcement functions should be separated in order to
better administer immigration law. Consequently, there have been
several proposals to fundamentally restructure the INS.
I am pleased to see that the Administration and you Mr. Attorney
General have come to recognize these problems in the past year and have
formulated a plan that, in some ways at least, builds upon the
separation premise I just mentioned.
Mr. Attorney General, could you please detail your plan to
restructure the INS that will hopefully allow it to effectively and
efficiently administer the immigration laws?
Secondly, can you give this committee any idea of what kind of
financial obligation, if any, the Federal Government might have to
undertake in order to achieve this goal or, at the very least, can you
elaborate on how the overall funding for the INS will take shape once
your plan is initiated?
Answer. Two of the problems that INS continually struggles with
under its current organizational design are: (1) competing priorities
between its enforcement and services responsibilities; and (2)
confusing chains of command. The creation of separate bureaus for
enforcement and services will ensure, on one hand, improved provision
of immigration services by staff dedicated to that function and, on the
other an integrated law enforcement organization that can respond
quickly to combat terrorism, human smuggling operations and illegal
immigration activities at the border and the interior.
The proposed organizational configuration eliminates current
regional and district offices and creates separate area structures for
the Bureaus of Enforcement and Immigration Services. This streamlining
and separation will improve accountability and professionalism through
the establishment of clearly defined chains of command staffed by
individuals with specific expertise at all levels.
It is estimated that the INS restructuring can be accomplished for
approximately $70 million, $40 million of which is included in the
Department's fiscal year 2003 request. More than half (55 percent) of
the costs will be associated with adjustments of facilities, including
space modifications and lease acquisition. Another 38 percent will be
for buyouts and relocations of personnel in the field.
violence against women new mexico funding
Question. In fiscal year 2002, the U.S. Department of Justice (DOJ)
did not award any grants under the ``Grants to Encourage Arrests''
program to New Mexico domestic violence organizations. Several of the
New Mexico programs who had their applications denied were previously
recipients of these grants. These organizations are now struggling to
keep their doors open, cutting back on services that all parties, even
the Department of Justice, agree are making a tremendous difference in
domestic abuse cases.
In various conversations with representatives from the Violence
Against Women Office (VAWO), it was brought to my attention that there
are questions about whether New Mexico law complies with the
requirements of the grant. These questions have apparently existed in
the past, but have not prevented the New Mexico organizations from
receiving the grants. In an effort to ensure that this would not be a
problem in the future, the entire New Mexico Congressional delegation
wrote to the leadership of the New Mexico Legislature and the Governor
to encourage them to fix the problems quickly.
On February 12, 2002, the New Mexico House concurred with the New
Mexico Senate, unanimously passing the legislation that will erase any
of the doubts that might have existed.
Because New Mexico has made a good-faith effort to remove any
doubts that might have existed concerning the eligibility of programs
dealing with domestic abuse, will you provide a one-year waiver to
restore the funding that these programs desperately need?
Answer. The Office of Justice Programs Violence Against Women
Office (OJP/VAWO) does not have legal authority to waive statutory
certification requirements that govern eligibility for funding under
VAWO's Grants to Encourage Arrest Policies and Enforcement of
Protection Orders Arrest Program (Arrest Program). [42 U.S.C.
Sec. 3796hh relating to the Arrest Program, Id. Sec. 3796hh-1.]
However, even if OJP/VAWO had statutory authority to grant such a
waiver, fiscal year 2001 funding for the Arrest Program has already
been allocated among qualified grantees.
On February 27, 2002, the state of New Mexico received $1.1 million
under VAWO's fiscal year 2002 STOP (Services, Training, Officers,
Prosecutors) Violence Against Women Formula Grant Program. Funding from
this award may be used to assist domestic violence programs in New
Mexico.
Question. Because the programs in New Mexico had been receiving
funds through this program in previous years, no one in our state was
aware that there was a problem. Therefore, the denial of funding came
as a surprise. Would you keep me informed as the Department of Justice
reviews the recently-passed New Mexico law to ensure that it erases all
doubt about compliance with the DOJ requirements? Would you also make
sure that I am made aware should something else arise that would cause
the New Mexico programs to be denied funding?
Answer. Every Arrest Program applicant is required, by statute, to
submit a letter of certification. The letter of certification is not a
Department of Justice (DOJ) requirement. The certification requirements
are directly imposed by 42 U.S.C. Sec. 3796hh(c)(1)-(4), which
provides:
``(c) Eligibility.--Eligible grantees are States, Indian tribal
governments, State and local courts (including juvenile courts), or
units of local government that--
``(1) certify that their laws or official policies--
``(A) encourage or mandate arrests of domestic
violence offenders based on probable cause that an
offense has been committed; and
``(B) encourage or mandate arrest of domestic
violence offenders who violate the terms of a valid and
outstanding protection order;
``(2) demonstrate that their laws, policies, or practices
and their training programs discourage dual arrests of offender
and victim;
``(3) certify that their laws, policies, or practices
prohibit issuance of mutual restraining orders of protection
except in cases where both spouses file a claim and the court
makes detailed findings of fact indicating that both spouses
acted primarily as aggressors and that neither spouse acted
primarily in self-defense; and
``(4) certify that their laws, policies, and practices do
not require, in connection with the prosecution of any
misdemeanor or felony domestic violence offense, or in
connection with the filing, issuance, registration, or service
of a protection order, or a petition for a protection order, to
protect a victim of domestic violence, stalking, or sexual
assault, that the victim bear the costs associated with the
filing of criminal charges against the offender, or the costs
associated with the filing, issuance, registration, or service
of a warrant, protection order, petition for a protection
order, or witness subpoena, whether issued inside or outside
the State, tribal, or local jurisdiction.''
According to VAWO's Fiscal Year 2002 Arrest Program Application and
Program Solicitation Guidelines (page 9), eligible applicants are
instructed as follows:
``Eligible applicants must submit as part of the application a
letter signed by the chief executive officer of the state, Indian
tribal government, or unit of local government certifying to the
conditions listed above [(1) to (4)]. If (4) above does not yet exist
in the applicant jurisdiction, the state, Indian tribal government,
state or local court, or unit of local government applying for grant
funds must provide assurances that it will be in compliance with this
requirement by the date on which the next session of the state
legislature or Indian Tribal Legislature ends, or by October 28,
2002.''
The fiscal year 2002 Arrest Program application deadline was
January 31, 2002. VAWO received and reviewed applications from the City
of Albuquerque, Cibola County, Zuni Police Department, and Santa Fe
County. Recommendations for fiscal year 2002 funding for some of the
New Mexico applicants may be made pending final approval. Once VAWO
makes final recommendations for Arrest applicants to receive grant
awards, the recommendations then go through a clearance process in
OJP's Office of the Comptroller and OJP's Office of Budget and
Management Services. If any New Mexico application is approved for
fiscal year 2002 Arrest Program funding, VAWO expects to announce these
awards to the New Mexico delegation by May 1, 2002.
OJP/VAWO does not ordinarily review state laws, practices and
policies to provide legal advice to state officials for the purpose of
certification of state compliance with federal statutory requirements.
State officials/applicants need to conduct their own review and
analysis and subsequently certify that they meet the statutory
eligibility requirements. OJP/VAWO must rely on the state's review and
certification to the federal statutory requirements, since OJP/VAWO
staff are not experts on the laws, policies, and practices of each
state and local government applicant. As a matter of policy or
practice, OJP/VAWO does not look behind applicant letters that include
proper signatures (of Chief Executive Officers) and complete
certifications as specified in 42 U.S.C. Sec. 3796hh(c)(1-4) (i.e.,
certifications using the exact words provided in section 3796hh(c)(1)
to (4)).
However, due to the extraordinary circumstances surrounding this
issue and at the request of the New Mexico delegation, OJP/VAWO
reviewed the newly-passed New Mexico legislation (H.B. 242) and NMSA
Sec. 40-13-3.1. Based on this review (as explained immediately below),
it is not entirely clear to VAWO that the Arrest Program applicants
from New Mexico will be able to meet certification requirements in 42
U.S.C. Sec. 3796hh(c)(3) and (4), regarding mutual restraining orders
and imposition of fees (respectively), as described below.
New Mexico's new law (H.B. 242) does not address mutual restraining
orders, and this may present an issue under certification requirement
(3). OJP/VAWO is aware that courts in New Mexico use a ``Stipulated
Mutual Protection Order'' form that does not meet the standard
described in 42 U.S.C. Sec. 3796hh(c)(3). It is not clear, however,
that New Mexico will need legislation to amend or prohibit use of this
civil court form. For example, VAWO has received a letter from the
Chief Justice of the New Mexico Supreme Court, stating that standard
protection order forms are currently under review. Therefore, it is
possible, assuming the State Supreme Court has such authority and
chooses to exercise it, that court action to prohibit use of this form
may enable appropriate New Mexico officials to determine that they can
certify to the requirement in 42 U.S.C. Sec. 3796hh(c)(3). As mentioned
above, OJP/VAWO will rely on New Mexico officials to determine when (or
if) they may certify to this statutory requirement.
In addition, H.B. 242 and NMSA Sec. 40-13-3.1 do not specifically
address some of the fee issues covered by the certification requirement
provided at 42 U.S.C. Sec. 3796hh(c)(4). The new legislation makes
clear that, in New Mexico, an alleged victim of domestic abuse,
stalking, or assault is not required to bear the cost of (1) filing a
criminal charge against an alleged perpetrator of the offense; (2) the
issuance or service of a warrant; (3) the issuance or service of a
witness subpoena; or (4) the issuance or service of a protection order.
Neither H.B. 242 nor NMSA Sec. 40-13-3.1 address, however, whether such
an alleged victim might be made to bear the cost of filing or
registering a warrant, witness subpoena, or protection order; nor does
either law address the issue of fees for petitions for protection
orders. Finally, neither law addresses whether fees might be charged
with regard to filing, registering, or serving out-of-state protection
orders. OJP/VAWO simply is unable to express an informed opinion on
whether New Mexico can certify to requirement (4), because it is quite
possible that other state laws, policies, or practices--of which OJP/
VAWO is unaware--may govern these issues (e.g., there may be no
requirement under state law to file witness subpoenas or there may be
no requirement to pay any fees for doing so); under such circumstances,
New Mexico easily could certify to (4). To reiterate, OJP/VAWO will
rely on state and local officials to review and analyze New Mexico
laws, policies, and practices with respect to whether victims are
required to bear any of these costs, as part of the certification
process by the Chief Executive Officer for the applicant for Arrest
Program funds.
In an effort to assist applicants, VAWO routinely guides applicants
to page 9 of the VAWO Arrest Program Application and Program
Solicitation Guidelines--B. Certification of Eligibility--for sample
language that may be included in applicant letters once the review and
analysis of state laws, policies, and practices has been completed.
new mexico
Question. The State Justice Institute (SJI) saw its funding cut
from just over $6 million in fiscal year 2001 to $3 million in fiscal
year 2002. While the SJI is requesting $13.55 million for fiscal year
2003, the President is now proposing to zero this out. The Judges in
New Mexico and the American Bar Association inform me that this has
been a very useful program for the judiciary in New Mexico, providing
funding for judicial education programs, court administrative
processes, community-wide education concerning issues such as domestic
violence, substance abuse, and services to pro se litigants.
Are these programs that make a difference in the efficient
administration of justice throughout the country?
What will be the effect on the administration of justice if the
State Justice Institute is not funded by the Federal Government?
Answer. The State Justice Institute was established by Congress in
1984 as a private, non-profit corporation to make grants and undertake
other activities designed to improve the administration of justice in
the United States. It was created as an independent agency, and is not
funded or administered through the Department of Justice. Therefore,
the Department has not undertaken a review of the functions of the
State Justice Institute nor are we able to provide any views on this
issue.
Question. Attorney General Ashcroft, the Chief Justice of the
United States Supreme Court, William H. Rehnquist, and the Chief
Circuit Judge for the Tenth Circuit, Deanell Reece Tacha, have
described the southwest border states as being in ``crisis.'' This
description is based upon the massive number of cases that each federal
judge currently has on his or her docket. Chief Circuit Judge Tacha
expressed her concern about the district of New Mexico in particular.
The district of New Mexico ranked fourth in the nation in criminal
filings per judgeship in 2001.
Based upon the experiences of the United States Attorney practicing
in this district, would you agree that the judicial system in the
district of New Mexico is in a state of crisis?
What would help to alleviate the problems that are making the
administration of justice so difficult?
Answer. I am not in a position to characterize the state of the
judicial system in the district of New Mexico. Congress, the
Administration and the Department have placed considerable emphasis
over the last several years on the accelerated rate of crime along the
southwest border, especially in illegal drug and alien smuggling. This
has led to additional allocations of law enforcement resources for the
southwest border states in recent years. As a result of this increased
law enforcement presence, more immigration and drug-related cases are
being brought at all levels of the judiciary--state, local, and
federal, alike.
In the last few years, the federal criminal justice system across
the entire southwest border has processed an unprecedented volume of
new cases. This has been made possible through a combination of
increased funding received from Congress and a focused Department
Southwest Border strategy. Over the last several years, the Executive
Office for the United States Attorneys has been addressing the issue of
increased violent crime by increasing the number of attorneys and
support staff along the southwest border. Specifically, in the District
of New Mexico, a total of 22 attorneys and 16 support positions have
been added since fiscal year 1997 to help manage this workload. This
heavy workload, in turn, impacts the federal judiciary. Increased
staffing combined with more efficient case processing procedures has
been highly beneficial to the United States Attorneys along the
southwest border. An increase in resources and further refinements of
the court's case processing procedures might yield similar benefits for
the courts.
scaap elimination
Question. Mr. Attorney General, it is clear from the President'
budget request that there is a desire to reorganize grant programs to
states in an effort to make those programs more efficient and more
accessible to the neediest of areas. This desire has resulted in the
proposal to completely eliminate funding for many grant programs that
states have come to rely upon for assistance.
The State Criminal Alien Assistance Program (SCAAP) is just one of
these programs that have been proposed to be eliminated. The purpose of
this program is to reimburse some of the expenditures states make when
they house and/or transport federal prisoners or detainees, an activity
that is vital not only to state interests but federal interests as
well. The two entities working together produces the best results for
everyone. A program such as this is incredibly important in states like
mine where there is a significant amount of human border traffic and
the need for law enforcement is great. We cannot expect states to make
up for federal expenditures out of their own budgets. I again make the
point that this is only one of many programs the President has proposed
to eliminate.
I am aware that the President's budget request proposes a new grant
program that consolidates many of the aforementioned grant programs but
I am concerned that the decrease in funds and no real clear mission for
these new grants will leave many states in the proverbial lurch with
nowhere to turn.
What is your opinion on this matter Mr. Attorney General and do you
have any suggestions for the states that have come to rely on SCAAP
funds in order to assist in an activity that is really federal in
nature?
Answer. One of the Department's top priorities in fiscal year 2003
is to prevent illegal entry of non-citizens into the United States.
SCAAP has provided reimbursement for illegal aliens incarcerated for
state and/or local charges or convictions, but it is not intended to
reimburse for illegal immigrants who are temporarily held in local
jails following their arrest by federal authorities. Such detention
costs are the responsibility of the Immigration and Naturalization
Service. In 2003, the Department of Justice is requesting approximately
$1.4 billion for its new Office of the Detention Trustee to provide bed
space for the anticipated detainee population in the custody of the
U.S. Marshals Service and the INS. The President's budget also requests
$3.2 billion for Immigration Enforcement to stem the flow of illegal
aliens into the United States. This represents a $764 million increase
over the level of funding provided in 2002. We believe that this
increase will result in a reduction of illegal immigration, which in
turn should reduce alien criminal activity in the long term.
In addition, DOJ is directing other resources to border states to
help them with the costs of processing, detaining, and prosecuting drug
cases referred from federal arrests through the proposed $50 million
Southwest Border Prosecution Initiative. The $50 million requested in
2003 will provide financial assistance to county and municipal
governments in Texas, New Mexico, Arizona, and California for the costs
associated with the handling and processing of drug cases referred from
federal arrests. These funds may be used for hiring and training more
prosecutors, probation officers, and court officials, court costs,
detention costs, courtroom technology, administrative expenses, and
indigent expense costs. Grants will be awarded based on a number of
factors, including southwest border county caseloads for processing,
detaining, and prosecuting drug cases referred from federal arrests.
Question. Mr. Attorney General, as you are aware, the President's
budget completely eliminates funding for the State Criminal Alien
Assistance Program, a $565 million reduction from fiscal year 2002. I
understand that the President's budget for law enforcement emphasizes
programs that will have a tangible impact on improving homeland
security or reducing violent crime. However, I am highly concerned
about the impact cutting this program will have for many already-
struggling counties in New Mexico and the southwest.
In past years, I have fought to increase SCAAP resources to relieve
the significant burden imposed on local communities by the costs of
detaining criminal aliens. The State of New Mexico received $1,672,821
in fiscal year 2001 funding through this program. However, a recent
United States-Mexico Border Counties Coalition study detailing costs
associated with processing criminal illegal aliens estimates that New
Mexico's three border counties spend an estimated $4.7 million annually
on criminal justice, law enforcement and emergency medical care for
illegal immigrants.
According to the same study, the five state district courts in New
Mexico's border counties are swamped with caseloads that are more than
four times the national average. These counties' law enforcement and
criminal justice systems are overwhelmed with illegal immigrants who
are apprehended at the border for possession of drugs in quantities too
small to meet the threshold established by the former U.S. Attorney for
federal prosecution.
Border counties are growing faster than any other region in the
nation. At the same time, they have a lower per capita income and a
higher percentage of people below the federal poverty level than any
other region, making them the least able to foot the cost of services
for criminal illegal aliens.
In the face of burgeoning weight on border criminal justice
systems, does the Federal Government have an obligation to assist
states and localities with the disproportionate burden they carry in
adjudicating criminals who have entered the United States illegally?
Answer. As discussed above, the 2003 President's budget has
proposed large increases to the immigration enforcement function of the
Immigration and Naturalization Service, increases which should lead to
a tighter border and a reduction in the numbers of illegal aliens
states must deal with over the long term.
The Federal Government has assisted and will continue to assist the
border states by providing funding targeted at defraying the costs of
adjudicating criminal aliens. To address the burden placed on southwest
border county prosecutors, the 2003 President's budget requests $50
million to continue the Southwest Border Prosecution Initiative.
Originally administered by the Executive Office of U.S. Attorneys
(EOUSA), the Southwest Border Initiative's initial purpose was to
reimburse local district attorney offices along the southwest border
for the costs of processing, detaining, and prosecuting drug cases
referred from federal arrests. In 2001, $12 million was provided.
In 2002, funding was increased to $50 million and responsibility
for the program was transferred to OJP. The program will provide
financial assistance to county and municipal governments in Texas, New
Mexico, Arizona, and California for the costs associated with the
handling and processing of drug cases referred from federal arrests.
These funds may be used for hiring and training of prosecutors,
probation officers, and court officials, court costs, detention costs,
courtroom technology, administrative expenses, and indigent expense
costs. Grants will be awarded based on a number of factors, including
southwest border county caseloads for processing, detaining, and
prosecuting drug cases referred from federal arrests.
Question. Could the cost of law enforcement, criminal justice and
emergency healthcare services for criminal illegal aliens pose a
security risk by draining resources from local entities primarily
tapped for homeland security, such as emergency medical technicians and
law enforcement personnel?
Answer. The 2003 President's budget is requesting $38 billion for
homeland security, an $18 billion increase over the 2002 level.
Included in the $38 billion request is $3.5 billion in assistance for
state and local emergency responder training and equipment and
increased funding adding 570 border patrol agents, 30,000 federal
airport security workers, scores of air marshals and a host of other
law enforcement personnel to deal with homeland security issues. Thus,
it is unlikely that reductions to certain long-standing state and local
assistance programs aimed at reducing and preventing domestic crime
will pose a security risk.
Question. What was the rationale for the Department of Justice
eliminating funding to a program with direct impact on the viability of
the law enforcement and criminal justice efforts of struggling
localities?
Answer. SCAAP is a payment program designed to provide federal
funds to states and localities who incur costs for incarcerating
certain criminal aliens held as a result of state and/or local charges
or convictions. In 2003, the Administration proposes to eliminate SCAAP
funding for the following reasons:
--SCAAP does not advance the core mission of the Department of
Justice. Since 1995, approximately $3.45 billion has been
distributed to eligible state and local jurisdictions. By
statute, SCAAP funds are unrestricted, and recipient
jurisdictions may use these funds for any lawful state or local
purposes, not limited to correctional or even criminal justice
purposes. Thus, in contrast to other programs administered by
the Department, funds awarded under SCAAP do not directly
support efforts to develop the nation's capacity to prevent and
control crime, administer justice or assist crime victims, and
funds awarded are not in any way linked to overall performance
or evaluation data.
--The redirection of SCAAP funds provides resources that will more
directly target specific crime-fighting efforts. Border states
(Texas, New Mexico, Arizona and California), which received a
large proportion of SCAAP funds, will continue to be
beneficiaries of the expanded Southwest Border Assistance
Initiative. Under OJP's Southwest Border Assistance program,
funds may be used for hiring and training more prosecutors,
probation officers, and court officials, court costs, detention
costs, courtroom technology, administrative expenses, and
indigent expense costs. Grants will be awarded based on a
number of factors, including southwest border county caseloads
for processing, detaining, and prosecuting drug cases referred
from federal arrests.
--Redirecting resources from SCAAP will provide needed resources for
other Departmental and Administration initiatives. Funds made
available through the proposed elimination of SCAAP will be
devoted to areas such as federal counterterrorism and
immigration enforcement efforts. This redirection will enhance
DOJ's ability to meet its core mission and operational
priorities.
subcommittee recess
Senator Hollings. We thank you very, very much, and our
next hearing with judiciary will be next Tuesday, March 5, at
10 a.m. in this same room. We thank you very, very much, John.
We appreciate it.
Attorney General Ashcroft. Thank you.
Senator Hollings. The subcommittee will be in recess.
[Whereupon, at 12:35 p.m., Tuesday, February 26, the
subcommittee was recessed, to reconvene at 10 a.m., Tuesday,
March 5.]
DEPARTMENTS OF COMMERCE, JUSTICE, AND STATE, THE JUDICIARY, AND RELATED
AGENCIES APPROPRIATIONS FOR FISCAL YEAR 2003
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TUESDAY, MARCH 5, 2002
U.S. Senate,
Subcommittee of the Committee on Appropriations,
Washington, DC.
The subcommittee met at 10:01 a.m., in room SD-138, Dirksen
Senate Office Building, Hon. Ernest F. Hollings (chairman)
presiding.
Present: Senators Hollings, Reed, Gregg, and Domenici.
THE JUDICIARY
Supreme Court of the United States
STATEMENT OF HON. ANTHONY M. KENNEDY, ASSOCIATE JUSTICE
ACCOMPANIED BY:
HON. CLARENCE THOMAS, ASSOCIATE JUSTICE
SALLY RIDER, ADMINISTRATIVE ASSISTANT TO THE CHIEF JUSTICE
WILLIAM SUTER, CLERK OF THE COURT
PAMELA TALKIN, MARSHAL
ALAN HANTMAN, ARCHITECT OF THE CAPITOL
TONY DONNELLY, DIRECTOR OF BUDGET AND PERSONNEL
OPENING REMARKS
Senator Hollings. Good morning. The subcommittee will come
to order. We have the pleasure of welcoming Justice Kennedy and
Justice Thomas at our hearing this morning relative to the
Supreme Court and its budget. We welcome you both.
Senator Gregg, do you have a comment?
Senator Gregg. It is a pleasure to be here and have the
Honorable Justices join us again. I notice there must have been
a coup d'etat, because the last 3 or 4 years, Justice Souter
was here. He appears to have been replaced.
Justice Kennedy. We have got him busy, Senator.
Senator Hollings. Very good. We recognize you both at this
time and you can present your testimony before the committee.
The full statement will be included in the record and you can
present it or summarize it as you wish.
Justice Kennedy. Good morning, Mr. Chairman and members of
the committee. Justice Thomas and I bring you greetings from
our colleagues. Thank you very much for having this hearing. I
will just summarize my opening remarks, Mr. Chairman.
We have with us today a number of our Court personnel and I
will just proceed down the row so that you can identify them:
Paul AcAdoo, who is with our Marshals Office; General William
Suter, who is the Clerk of the Court, and who I might say runs
the best clerk's office of any court in the country; the
Marshal of our Court, Pamela Talkin; Tony Donnelly, who is our
Budget and Personnel Officer, and who is well known to your
staff. He has been working in very close cooperation with them
and we appreciate that. Sally Rider, the Administrative
Assistant to the Chief Justice is right behind me. We also
have, of course, Alan Hantman, the Architect of the Capitol.
Now, I know, Mr. Chairman, that waiting in the wings, we
have Judge Heyburn and Ralph Mecham of the Administrative
Office and our budget is just about 2 percent of the Courts'
total budget, so I recognize that order of priority.
But it is a pleasure to appear here, Mr. Chairman. You
know, when we talk to judges from abroad in Africa and Russia
and Asia and even in Europe, they talk about this process. They
are fascinated with how we have established judicial
independence. We tell them, as I say in our opening statement,
that the tradition has been, but, of course, it is your
constitutional responsibility and your constitutional right to
determine the level of funding. The tradition has been you give
some deference to us if you are satisfied we have approached
our task in the right way and that we have been prudent and
careful in analyzing the figures.
SUPREME COURT BUDGET
Now, the budget request, because of the vagaries of the
budgeting cycle for our major request, which is the building,
is actually less than last year, and I would be very happy if
we could make that the headline. As we all recognize, however,
we are asking for an operational increase. We are asking for an
increase of $6,288,000 on a base of $40,036,000. That is a 16
percent increase. Two-thirds of that increase is for
adjustments to the existing base.
The staff did question, and I raised the same question,
whether we should have put pay increase for our police in the
adjustment base, but our budget officer assured us that was the
proper thing to do. I might point out that we have lost some of
our very best policemen to the air marshals. They are being
paid so highly that we find it difficult to keep some of our
very best people, but we are filling those positions.
The increased part of our operations and expenses budget,
quite apart from the building, is $2,268,000 and that breaks up
really, Mr. Chairman, into two parts. One, we are asking for 14
positions. I think four of those can be described as relating
to the workload of the Court. We need an extra telephone
operator, we need a case analyst in the clerk's office, and we
need two librarians.
Our workload is increasing. If you look at page 1.11 of the
budget request submission, you will see that we are pushing
toward 9,000 cases a year, and I think we will soon be at
10,000. This means that we must support and sustain and update
our computer function. We are computer dependent. We are
electronic dependent in our Court. We are asking, then, for
five positions for training and upgrading and maintaining and
improving our computer skills. As of this point, we can barely
keep up with what we have, but we want to go to the next level
of learning because the committees of the Congress have always
requested us to do that.
We have five websites. We are heavily dependent on
electronic information for much of the administrative work of
the Court. Just last year, the Clerk of the Court realized how
much time was spent in corresponding with State bar
associations about attorney admissions and attorney
qualifications. That usually took at least two or three letters
each way for each attorney. They devised an electronic system,
and I think 38 States are already on this; and it has just been
marvelous.
We, during the disruptions of September and October, were
very concerned that case filings were in the mail and that they
be protected. The post office protects the filing by the postal
date. But we were concerned that we would just be way behind
because we were not receiving the petition. It would be 2
months before it would come through the mail.
So our Clerk, I think very creatively, got hold of the 30
or 40 biggest printers in the country, found out who had been
printing petitions for certiorari and then contacted all the
attorneys by e-mail and said, send us your filing by e-mail. By
doing that, he was able to pick up 400 cases that otherwise
would have been stalled for a couple of months. We think we
have cured that gap, but that just shows you how we are
dependent on information technology.
The Clerk of the Court prepared for us a list of the hits
on our website for just December of last year and that December
was roughly a normal operating month. We received over
1,200,000 hits on the computer and we had close to 150,000 net
site sessions, where the person asks questions and gets answers
and stays with it for a while. That is why we think this
request is prudent; and we think it is urgent.
The other positions, Mr. Chairman, are for our offsite
facility. That should be up and running in April. That is where
we are doing our mail screening. That is where we moved some of
the hazardous functions that are now in the Court and should
not be there for the maintenance of the Court, the woodshop, et
cetera, and we need those positions for that offsite facility.
BUILDING MODERNIZATION
Ordinarily, Mr. Chairman, as you know, it is the
prerogative of the Architect of the Capitol to present the
portion of our budget which pertains to buildings and grounds,
but since there is such a substantial appropriation there, let
me just quickly review that history.
As you will both remember, we testified in my earlier
tenure on this committee that we were expecting a major request
for building improvement, and we said it could be as high as
$20 million. The architects then found that all of the systems
in the building had to be replaced. We had not known that. When
we first heard figures, we heard them in the area of $170
million and we were simply shocked and notified your staff
immediately. We were concerned that we had given testimony it
would be $20 million and all of a sudden we are hearing $170
million, so we did three or four things.
We met with the Architect of the Capitol and made it clear
that this was not to be an elaborate, precise, historical
reconstruction, where you match the original paint and take a
great deal of time with that. We are respectful of the
building, the building will look beautiful, but it is not a
precise historical reconstruction, and that is a substantial
cost savings.
Second, the Architect told us that it was normal in a
project of this size to have a peer review where other
architects and other estimators, other engineers from the
outside come and ask the necessary questions to make sure that
the budgeting has been done in the appropriate way. We did that
and we hired our own architect to make sure we were asking the
right questions. The result was a project cost of slightly over
$122 million. Over half of it has been appropriated. We are
asking in this budget for the remaining appropriation of $49
million plus.
Mr. Chairman, we were very careful to ask whether there
would be a cost saving if we moved out of the building and the
answer was definitely not. The plan is to more or less work
around us. They propose to come into each chambers only once,
so each Justice is only disrupted one time. The construction,
if authorized by the Congress and if the bidding process goes
as anticipated, should begin in 2003 and we will have to live
with our jackhammers and yours, which are across the street,
until 2009, but we are prepared to do that. We think it is
absolutely necessary for the building.
We are even concerned with this timeline. We are in danger
of a major systems failure and the electric system at any time,
and the same with the air conditioning, but they are patching
it together, finding parts for something that was manufactured
a long time ago. We are the only major building on Capitol Hill
that has not been renovated since it was built. It is 65 years
old. In a way, I think we are maybe the victims of our own
thrift because we have let it go for that long.
But we think it is absolutely necessary and we very much
appreciate the meetings we have had with you and your staff to
explain this figure, to explain the necessity for the project,
and we very much appreciate your recognizing the importance of
preserving the symbolism and the real operational value of the
Court.
prepared statements
In closing, let me say that when we do go to these foreign
countries, I am and Justice Thomas is, all of us in the
judiciary and I am sure you in the Congress are immensely proud
of the judiciary of the United States and we most appreciate
your concern in examining our specific request this morning.
Thank you.
Senator Hollings. Very good.
[The statements follow:]
Prepared Statement of Justice Anthony M. Kennedy
Mr. Chairman and Members of the Committee, Justice Thomas and I
appreciate this opportunity to appear before your Committee to address
the budget requirements and requests of the Supreme Court for the
fiscal year 2003. We bring you greetings from the Chief Justice and
from all of our colleagues at the Court.
We have with us today Sally Rider, Administrative Assistant to the
Chief Justice; Pamela Talkin, Marshal of the Court; William Suter,
Clerk of the Court; and Tony Donnelly, Director of Budget and
Personnel.
Judicial independence as it now exists in the United States is
still a primary objective for emerging democracies in the modern world,
as they seek to establish enduring constitutional structures of their
own. The same question is asked again and again in meetings in Africa,
in the Russian Federation, in Asia, in South America, and it is this:
What are the requisites of judicial independence? One of the points we
stress is that judicial independence is not a single historical event
but instead a constant, never-ending process.
An aspect of this process which fascinates outside observers is the
very implementation of checks and balances that we engage in this
morning. We explain the budget process by saying that while it is the
privilege, and the constitutional responsibility, of the Congress to
determine the funding of the courts, tradition has it that the
judiciary's own assessment of its needs be given some deference. In
this respect, much depends upon the confidence you place in our
submissions. It is our principal objective in coming before you today
to assure you that in making our assessments, we have tried to conform
to the highest standards of caution and prudence.
As is customary, the Supreme Court's budget request is in two
parts. The first is for Salaries and Expenses of the Court. The second
is for Care of the Building and Grounds. To address what we understand
to be the concerns of the Committee, and to allow full consideration of
the major funding request for modernization of our building, we will be
pleased to talk about Buildings and Grounds in much more detail than
usual.
Let me turn first to Salaries and Expenses. With regard to this
portion of the Court's budget, our total fiscal year 2003 budget
estimate is $46,324,000. This is an increase of $6,288,000, or 16
percent, over the budget authority for the current fiscal year, 2002.
Most of the fiscal year 2003 increase represents base adjustments--
that is, required increases in salary and benefit costs and
inflationary increases in fixed costs. Specifically, $3,533,000 of the
adjustment represents required increases in salary and benefit costs.
Also, $487,000 is requested for inflationary increases in fixed costs,
allowing us to keep up with rising costs in all of our operations. This
results in a $4,020,000 increase to the budget base.
We have included in the adjustments to base two items related to
safety and security that generate unavoidable increases in costs. We
request $871,000 to keep our police pay schedule on par with the
Capitol Police pay schedule and to cover police overtime costs, and we
request $237,000 for the increased cost of larger offsite warehouse
facilities, which include an offsite mail screening facility. Both the
police overtime and the offsite mail handling are directly related to
the need for increased security since the terrorist attacks last
September.
In addition, we request $2,268,000 over base adjustments this year
to fund fourteen positions and two program increases. Most of the
increase, $1,911,000, is related to technological improvements in
automation and security. During the last ten years, the Court's use of
information technology has increased to such an extent that an
automated system is now an essential part of every Court function. We
rely on automated systems to docket cases; to draft and publish the
Court's opinions; to procure equipment, books and supplies; and to pay
bills. The automation has increased effectiveness and efficiency; but
automated systems and equipment must be maintained and upgraded. As
computer hackers and other wrongdoers become more sophisticated, we
must try to stay ahead of them and maintain secure, up-to-date data
systems. We were unsuccessful in last year's request for additional
funds and staff to address these critical needs and as a result, our
current resources are stretched to the limit in keeping our existing
systems running. In previous years, this Committee has encouraged the
Court to adopt the most modern work processes by using the latest
technology. We ask the Committee to support our current request for
increases in the Court's automation program in order to enable us to
make necessary improvements. At present, our technical staff must spend
its time maintaining existing, inadequate systems and equipment,
leaving insufficient resources for essential improvements. Security
concerns arising after September 11 only exacerbate the situation.
We request four technical positions in the Court's Data Systems
office: two PC/Network Specialists to test and deploy new equipment and
technology, a Local Area Network/PC Security Specialist to develop and
support Intranet/Internet applications and ensure the security of the
Court's sensitive data, and a Programmer/Analyst to develop new
software applications. The total cost of these four positions is
$216,000.
We also request $100,000 for a consulting service contract to
upgrade the library's research inquiry database. We are requesting an
increase of $1,550,000 to the data systems area of the Court's budget
to fund new software and hardware technologies, to provide training,
and to enhance computer security. The Court will take necessary steps
to ensure cost-effective selection of data systems, and we will try to
achieve savings wherever possible. With this authorization we intend to
fund such activities as: upgrading equipment for Justices, Court staff
and the Court's technology lab; engaging consultants to evaluate and
enhance security measures; increasing automation skill levels of Court
staff; and introducing specialized technology for security.
The remaining $402,000, an increase to the Salaries and Expenses
account, is to add ten positions. Seven of these we asked for in fiscal
year 2002 but did not receive: a telephone operator to perform
telephone console operations duties, a secretary to provide budget,
procurement and other administrative support for the Data Systems
Office, and five logistical support positions for our off-site
warehouse space--which has been expanded to meet modernization needs
and address security concerns such as offsite mail screening. The other
three positions we wish to add are: a library technology assistant to
support three major library systems with training and user support, a
special collections librarian to assist in conserving the Court's rare
books and archival records and briefs, and a case analyst to address
the docketing of an increasing number of cases filed.
Since we appeared before this Committee five years ago, we have
made substantial progress in the planned modernization of the Supreme
Court building. Our building, which is a splendid and revered symbol of
justice in our democracy, has not been updated since it opened in 1935.
Unlike the White House, the Capitol, and most of the government
buildings on Capitol Hill, the Court building has had no major
renovation. Its basic systems fail to meet modern standards. The
heating and air conditioning, and the mechanical and electrical systems
must be replaced. They have long outlived their expected useful lives
and now require constant maintenance in order to avoid a catastrophic
failure. The engineers who designed the electrical system had not heard
of computers, faxes or copy machines. The longer we live with these
outdated systems, the more likely we are to experience a disruptive--
and possibly dangerous--system failure.
The full cost of this project is $122,283,000. Of that sum, the
remaining appropriation required is $49,696,000.
We have worked in close cooperation with the Architect of the
Capitol, the design architects, an independent peer review panel and
our own consulting architect in order to develop the most efficient
plan to modernize and upgrade the building. Even prior to September 11,
we were considering and designing upgrades to security and safety for
building occupants and visitors.
We received the bulk of the funding for the modernization project
in fiscal year 2002 and we appreciate your acknowledgment of this
necessity. This year, we seek the final portion of funding so that we
can keep the project on budget and on schedule. Assuming that we
receive this final funding in this fiscal year, we intend to begin
construction just over a year from now, in June 2003.
We are convinced that this project is essential for the continued
safe and efficient operation of the Supreme Court. We underscore both
the necessity of the work and its absolute urgency. Mr. Alan M.
Hantman, Architect of the Capitol, will present a separate statement to
the Subcommittee regarding this portion of the total budget.
This concludes a brief summary of our request. We will be pleased
to respond to any questions that the Members of the Committee may have.
______
Prepared Statement of Alan M. Hantman
Mr. Chairman, I am pleased to submit a formal statement to present
the budget for the care of the building and grounds of the Supreme
Court.
As background, the Office of the Architect of the Capitol is the
agency responsible in the Legislative Branch for the structural and
mechanical care, maintenance, cleaning, and operation of the buildings
and facilities supporting the Congress, including the Capitol Power
Plant. This responsibility extends to the Botanic Garden and the
structural and mechanical care and maintenance of the Library of
Congress buildings and grounds. This office also undertakes the design
and construction of new facilities and alterations of existing
facilities.
For the Judicial Branch, the Architect of the Capitol, by authority
of 40 U.S.C. 13a-13b dated May 7, 1934, is responsible for the
structural and mechanical care of the United States Supreme Court
building and grounds. My responsibilities do not include custodial
care, which is under the jurisdiction of the Marshal of the Supreme
Court and is provided for in the Court's salaries and expenses
appropriation.
Working with the Court, my emphasis has been on improving the
safety and security of the personnel and building structures. The
fiscal year 2003 request continues the efforts to improve the security
and safety posture. In the past several fiscal years we placed four new
security barricades in the driveways, and upgraded security cameras in
all locations. In fiscal year 2002, we have installed bomb blast window
film and plan to install a digital recorder by late spring to further
increase building security surveillance options. Additionally, we've
started work on the fire alarm system and fire pumps to improve safety.
Although these last two projects are not proceeding as quickly as I
would like, I'm working to complete them as soon as possible.
I'm requesting $53,626,000 to meet the requirements of the Court
for the care of the building and grounds in fiscal year 2003. This
request supports three major areas: $49,696,000 for the Building
Renovation Project, $3,687,000 to maintain current operations and
maintenance services, and $243,000 in program changes. This request is
$13,904,000 or 20.6 percent less than the fiscal year 2002 available
amount of $67,530,000. The funding requested is less than that for
fiscal year 2002 because the funds required to support the Supreme
Court building renovation and modernization project are less than the
amount appropriated last year.
building renovation and improvements
By far, the most significant item in this budget is the funding
requested for the modernization of the Supreme Court building. The
Supreme Court building, unlike other buildings on Capitol Hill, has not
been upgraded since its completion in 1935. At 67 years of age,
virtually all of its building systems have far exceeded any reasonable
life expectancy, and they require an aggressive daily maintenance
schedule to continue operating. In addition, building life safety,
security, and essential building system requirements have advanced
greatly since 1935. It has become critical that the Supreme Court
building is brought up to current standards, since each year that the
project is postponed potential risks increase significantly to more
than 400 occupants and 1,000,000 visitors a year. For example, the
building incorporated the latest in fire resistant technology when it
was built, but modern life safety systems, consisting of fire
detection, fire suppression, fire alarms, and building egress, have not
been provided since the building was completed. Also, security concerns
were significantly different in federal facilities in 1935 than they
are today--especially after September 11. Likewise, essential building
systems, consisting of mechanical and electrical components, have not
been upgraded since 1935. Virtually all systems have become obsolete
and replacement parts are not available.
The remainder of the funding for the building modernization has
been requested in one lump sum in order to keep the project on time and
to award a single construction contract. We have continued to move
forward with the project with an eye toward awarding a construction
contract in the spring of 2003. If we do not receive the remainder of
the funding in this budget cycle, we are certain to face a significant
delay in the project as well as a significant increase in the cost of
the project. A single construction contract is important for several
reasons: to achieve single source contractor accountability for
integration of the components that comprise the life safety, security,
mechanical, and electrical systems; to maximize success in the
performance of the integrated components; to minimize damage to the
historic building by disturbing ceilings, walls, and floors only once;
and to minimize the disruption of court occupants during renovation. A
single construction contract is also the most cost-effective, since
every construction contract must bear an overhead cost to contract,
move on and off the project site, provide tools and equipment, and
disturb ceilings, floors, and walls.
With the support of this Subcommittee, much progress has been made
toward refining the scope and design for the project. The budget
request for this project is now based upon completion of the
preliminary design. I am pleased to report that the cost estimate for
the modernization project remains at $122 million.
As you may be aware, in fiscal year 1999 we engaged in an
independent peer review of the project to objectively evaluate whether
the scope and cost were valid. That effort took place in conjunction
with an additional set of independent reviewers brought in by the
Court. The review took place and the conclusions were threefold: that
the scope was valid, that the cost was reasonable, and that the
renovation was necessary and should not be delayed. We are now in a
position to begin this project with the funding requested in fiscal
year 2003.
Currently, a total of $72,587,000 has been appropriated for the
modernization project. In fiscal year 1998, an amount of $225,000 was
appropriated on an annual basis to provide for a study on improvements
and upgrades to the Supreme Court building and systems. Preliminary
design of this project began in fiscal year 1999 with an amount of
$1,529,000 which was maintained in the budget base in fiscal year 2000
for continued design work, as well as an amount of $2 million for
window upgrades. In fiscal year 2001 an amount of $3.5 million was
provided for continued design work, and in fiscal year 2002,
$63,804,000 was appropriated. The fiscal year 2002 amount consists of
$33,804,000 that was appropriated within the Judiciary Appropriations
Act, 2002, and $30,000,000 that was provided in the emergency security
supplemental for fiscal year 2002, as part of Division B of the Defense
Appropriations Act, 2002. This amount will allow us to continue on
schedule. If we receive the remainder of the funding in fiscal year
2003, construction will begin in mid-2003.
Therefore, to attain the total amount of $122,283,000 for this
project, it is requested that $49,696,000 of $63,804,000 made available
in fiscal year 2002 be retained in the budget base for fiscal year 2003
for full funding for the construction of the project.
operations and maintenance
As noted above, I'm requesting $3,687,000 to maintain current
operations and maintenance services. Costs for current operations and
maintenance services have increased from last year by $111,000 for
mandated pay-related costs and $159,000 for higher costs projected for
utilities, training, exterior point and caulking, and supplies.
program changes
A total increase of $243,000 is requested for program changes. An
increase of $178,000 will support the hiring for three additional
maintenance mechanic positions. The positions are needed to support
significant increases for preventive maintenance for all equipment in
the plumbing, HVAC, and electrical trade disciplines. Another $65,000
is requested for two capital budget projects. These projects are to
upgrade the kitchen fire suppression system ($10,000) and to replace
the metal detectors ($55,000).
I assure the Chairman and Members of this Subcommittee that I will
work closely with you and the Subcommittee staff, as well as the Court
to achieve adequate funding for the care of the building and grounds.
Mr. Chairman, that concludes my statement and I will be pleased to
respond to any questions that you and the Subcommittee may have.
Senator Hollings. Justice Thomas, did you have any comment?
Justice Thomas. Mr. Chairman, I am satisfied with what
Justice Kennedy has said.
Justice Kennedy. He does not always say that.
Senator Hollings. Well, we are glad to get it on record
here.
COURT AUTOMATION
Justice Thomas. But I would like to add that the additions
in the offsite facility as well as the technology area are
basically built upon requests that we made last year. In order
to keep up technologically, we have had to rob Peter to pay
Paul, but this year, Peter is broke, too, and there is just no
way we are going to be able to be current technologically if we
do not make some quick changes. I am beginning to sound like a
broken record because I remember saying that at EEOC when I was
there, and here I am at the Court again saying the same thing.
But we are falling behind and I think it is imperative
that, because we are so information dependent in doing our
jobs, in research and producing opinions and in managing the
caseload, the docket, that we be current technologically. The
Court was much farther behind than many institutions when I
arrived, and it is not because of me that it has caught up
somewhat, but during my decade on the Court, we have moved
quite a bit, but we are still quite far behind. I think it was
critical last year and it is even more critical now that we get
caught up.
So these are sort of redundant requests and they have to be
looked at in the context of our request last year. That is all
I have to add, Mr. Chairman.
Senator Hollings. Very good. I am convinced that the
committee and the Congress will take care of that technological
need. I think at the time when Lewis Powell came to the Court
from Richmond and he said he had a way better office over in
Richmond than he had over here in Washington as a Supreme Court
Justice we were far behind, word processing, computers, and
everything else like that. Technology, of course, will save
tremendous time and burden on the Court. There is no question
there with respect to that, or in this Senator's opinion, with
respect to the construction, that $49.7 million requested to
complete funding for the Supreme Court rehabilitation project.
JUDGES' PAY
There is one question, and it is in the headline in the
morning Post, relative to pay. I think the Court did the proper
thing with respect to not considering that issue further in the
sense that your statement, Justice Kennedy, tradition has it
that judiciary's own assessment of its needs be given some
deference. It is good to have that word ``some.''
Some in the Congress feel that the Court has had an
attitude that tradition has it that the judiciary's own
assessment of its needs be given deference, period. The truth
of the matter is, on both sides of the ledger, that was not the
tradition that prevailed with Justice Powell. In that case, the
Court was not asking enough, and on our own, we increased at
this particular committee level all the programs with relation
to the technological needs.
On the other hand, for the tradition here of the past
several years, judges' pay has been tied to the congressional
pay and that was made permanent in law last year. If there is
any question still, and I am going to look at it and see,
perhaps the judges' inclusion in that 1989 provision for COLAs
be deleted so there is no question about it for the simple
reason that if it were otherwise, the approach that has been
taken by some on the Court or within the judiciary that once we
passed a COLA in 1989, it would be unconstitutional to repeal
that provision from there on. That would be a permanent
increase each year, however the economy developed.
I, for one, am not up to speed and fully read because I
have not had an opportunity this morning. When reading that
Post article, though, I said, wait a minute here, and this
feeling that I expressed is within the Senate and the Congress.
I can tell you that, because we almost had to sneak in to get
last year's pay increase. We had to what we call fence the
money in another budget to make sure that giving you the
increase would not raise a point of order under a certain Rule
28 that it had never been provided that money in either bill.
So we are very respectful of the Court and the tremendous
job the Court is doing. There is no question about that. You
folks do know your needs better than any, but ordinarily
speaking, that pay issue is tough. I happen to think Senators
are underpaid, and I have stated that, not now, but I stated
that 20 years ago and everything else of that kind. I have
school board superintendents and so forth back home that are
paid way more and do not have to keep up two homes or anything
else like that. So we are not trying to hold the judges down,
but we are trying to politically, I guess, get some way to
attract just working people to public service here in the
Congress rather than millionaires.
Having said that, let me yield to my distinguished former
chairman.
Senator Gregg. Thank you, Mr. Chairman.
It is always a pleasure to have members of the Court appear
at this hearing. I have always felt it is a peculiar situation,
and as a result, I have never really taken the opportunity of
the legislative branch to be very inquisitive. I am not sure
what our Founding Fathers had as their basic philosophy here,
but clearly in the separation of power issue, the question of
funding for the Court was one of the gray areas. But it does
come from the Congress and, therefore, we do have a
responsibility in this area, but it is still a peculiar
symposium, in my opinion.
I would say I want to second the chairman's comments
relative to the decision on pay raise. I happen to have
aggressively pursued an effort to delink the two, the court
system and the Congress. I feel very strongly that we need to
pay our Federal judges more in order to attract and keep
quality people on the Federal court, especially on the district
court level, because of the fact that we have got people with
young families and it is very hard for them to raise those
families compared to what they could make if they were not on
the court. But, unfortunately, we have not been able to sell
that to our colleagues. However, someday, hopefully, we will be
able to sell that concept to our colleagues. But in any event,
the authority resides with us and I think the Court's decision
in this area was an excellent one, not that you need our
counsel as to what your decisions are.
We may appear before you as this committee in the future,
as a matter of fact, and since we are not asking you any
questions, hopefully you will not ask us any questions.
It is with an amicus brief on an issue that affects our
jurisdiction rather significantly.
With that, I yield and appreciate the Justices appearing.
Justice Kennedy. Mr. Chairman, our budget traditionally has
not included any request for raise of salaries, and I think the
deference that you and I referred to applies primarily to the
resources of the judiciary rather than to the salaries.
I did not come here prepared to make a statement about
salaries and I am reluctant to state too much, in part because
I fear my remarks might be inadequate to express the feeling of
frustration and disappointment on the part of Article III
judges throughout the United States at having been specifically
denied four different COLAs when all other members of the
Government, save the Congress, received it.
The decision, I will not comment on. It stands. As you
know, even the dissent from failure to grant certiorari is
simply to say we think there is an issue here which should be
heard, that there is an argument on the other side. It is not
an indication of how even the dissenting judges would rule.
Four different Federal judges looked at this and two thought
that the denial of COLAs was constitutional, two thought it was
not. That decision just will simply have to stand and it speaks
for itself.
I will say that from an institutional standpoint, the cloud
of that suit has now disappeared. That suit is over. It is
finished. It seems to me that once again, it is the absolute
urgent responsibility of the Congress of the United States to
address the fact that judicial salaries since 1970 compared
with the national average of salaries, have declined in real
dollar value 36 percent. We are losing, Mr. Chairman, judges at
a record rate, and when you lose a judge who is eligible for
senior status, you have to pay all his retirement, all his full
salary anyway. But then you have to replace that judge by more
judges, so it is not cost effective anyway.
We have a judge, just as one example--had a judge who
probably was among the 10 most knowledgeable people in the
United States on class actions. He handled our asbestos
litigation. He had computer websites. He had models for how
attorneys intervene, et cetera. It was just like a symphony,
the way he conducted that massive suit. We lost him. He left.
He left because the Congress would not even grant him a cost-
of-living raise to keep his salary even.
There are two issues on the salary, as you well know, Mr.
Chairman. One is to keep it from eroding. The other is what the
base level should be compared to whatever benchmark you want to
decide, private practice or law school deans or whatever.
The suggestion has been that there be a commission
appointed to make a recommendation to the Congress, and if that
is what the Congress needs to give it the necessary advice and
guidance in this area, of course that should be done. How this
is done is really for you to decide, but I simply would be
remiss, although I was not prepared to make these remarks, in
not telling you the urgency that my colleagues in the Federal
judiciary feel on this point.
Senator Hollings. I am glad I raised the subject, because
your comments are well taken. Again, they can apply just to my
crowd. I can see, as you give that one example, I can see
Senator Nunn and Senator Bumpers and Senator Ford and Senator
Johnson, and I can start going down a list. They just could not
keep up two houses and everything else and really take care of
their families like they were able to do, and therein lies our
problem. I wish I had you in the Senate to make that argument.
Justice Kennedy. I will come anytime, Senator.
Senator Hollings. We will get you up more and more over
here, because it is well taken.
Senator Gregg.
Senator Gregg. I obviously agree. I agree with the concern.
I think it is very real, and as the Justice knows, this is not
about the belief that we feel that judges are not being paid
fairly. We know they are not being compensated adequately. It
is about Congress. We have hitched our wagon to your star,
regrettably, on this issue.
Senator Hollings. Very good. We appreciate your appearance,
both of you, here this morning.
We will now hear the testimony on the Federal judiciary,
Chief Judge John G. Heyburn.
Justice Kennedy. Thank you very much, Mr. Chairman.
Senator Hollings. Thank you very, very much.
Justice Thomas. Thank you, Senator.
Senator Hollings. Thank you very much, Justice Thomas.
Federal Judiciary
STATEMENT OF JUDGE JOHN G. HEYBURN II, CHAIRMAN,
COMMITTEE ON THE BUDGET OF THE JUDICIAL
CONFERENCE OF THE UNITED STATES
ACCOMPANIED BY:
JUDGE M. BLANE MICHAEL, MEMBER, COMMITTEE ON THE BUDGET OF THE
JUDICIAL CONFERENCE OF THE UNITED STATES
LEONIDAS RALPH MECHAM, DIRECTOR, ADMINISTRATIVE OFFICE OF THE
UNITED STATES COURTS, AND MEMBER, EXECUTIVE COMMITTEE OF
THE JUDICIAL CONFERENCE OF THE UNITED STATES
Senator Hollings. We also have Judge Michael of the Fourth
Circuit and Mr. Mecham from the Administrative Office of the
Courts.
Judge Heyburn, we will be happy to hear from you at this
time, sir.
OPENING REMARKS
Judge Heyburn. Thank you very much, Mr. Chairman, Senator
Gregg. It is my very great pleasure to appear before a
committee of Congress now for the sixth year and represent and
present the judiciary's appropriation request.
As Justice Kennedy indicated, these sessions really never
cease to remind me of the majesty as well as the delicacy of
our Nation's Constitution. The Founding Fathers created an
independent judiciary to protect the rights of all of our
citizens, to enforce the laws that you enact, and to mediate
the disputes between ordinary citizens, States, and our
national government. I appear before you today to share with
you the resource requirements that we believe are necessary to
do exactly that job that the Founding Fathers had in mind.
I am pleased to have with me Judge Blane Michael from the
Fourth Circuit and the great State of West Virginia, and Ralph
Mecham, as you know, the Director of the AO from the great
State of Utah. They will be pleased to answer any of your
questions, as I will.
First, I want to thank you very much for the consideration
in the appropriation that you gave the judiciary last year and
to also thank your staff for the cooperative way that they have
been working with our staff in helping us to answer the
questions that you have pertaining to our request. We believe
that process is absolutely vital and we are here to work
cooperatively with you.
I look forward to answering any questions that you have
about specific parts of our request. But before I have that
opportunity, I want to make just a couple of comments
emphasizing our primary commitments.
First, we do have a commitment, and I have a commitment, to
try to explain and give you all the information necessary to
make as clear as possible what we are asking for and why we
need it. For fiscal year 2003, we are asking for an additional
$500 million, and whether you are from Washington, Kentucky,
South Carolina, or New Hampshire, that is a lot of money. We
recognize that, even though, of course, it is a small amount
compared to the entire Federal budget.
But, we believe that the increase is necessary to handle
the judiciary's additional workload--a workload, I might add,
that is largely uncontrollable. It is thrust upon the court in
a variety of different ways: whether it is additional criminal
cases; whether it is providing counsel for indigent defendants,
who are an increasingly large percentage of those indicted for
Federal crimes; whether it is to fund probation officers to
take care of the increasing numbers of persons who are on
Federal probation, or supervised release; or, whether it is
providing for the increased security needs that we all feel
post-9/11.
Second, we have a commitment to the stewardship of the
funds that you give us each year and we take that stewardship
very, very seriously. We do that by developing staffing
formulas that try to objectively quantify the personnel needs
that we have. We do that by encouraging teleconferencing and
long distance learning, as opposed to travel, for court staff
for educational purposes. We do that by trying to redeploy the
resources that you give us to the proper places, or the proper
court units, as technology changes. We do that by trying to
determine and enforce standards for court buildings so that
they are uniform and adequate. And, we are constantly looking
for ways that we can be better stewards of the funds that you
give us.
We know we do not have all the answers. In hearings such as
this in the past, both before the House and the Senate, we hope
that you believe we have been receptive to your ideas, because
again, we know we are not the final answer to all the difficult
problems that we face.
We know the budget is tight again this year as it has been
in the past, but we are confident that we can do a good job
with the funds you give us. We are one of the few entities that
actually returns funds for use in a subsequent fiscal year. In
fact, in this budget, we have already identified $100 million
in what we term as carryover. It is not money in hand, but we
try to identify for you as early as possible funds which we
believe will be saved in the course of our normal operations
and we have already identified $100 million. That is $100
million that you do not have to appropriate out of your fiscal
year 2003 allocation of funds.
So we are looking forward to working with you. As Justice
Kennedy said, it truly is an independent judiciary that sets
apart our country in so many ways from the rest of the world.
As an institution, we are a pretty conservative lot, I must
say. We do not go out and create cases or look for cases. We
wait for the cases to be brought before us and then we decide
them, and that is how we do justice, one case at a time. And
hopefully, the mosaic of those cases, we can all be proud of,
and not just the decisions we agree with. We can all disagree,
of course, with an individual decision, but it is the way we go
about it and the trust that we place in individual justices and
judges and the responding trust that we receive from the public
that makes our country so special and unique.
We create justice in many, many ways, enforcing our laws
for the poor and the rich, and for people of all colors. We do
it by talking to jurors and making them feel good about their
public service and making them understand their role. We create
justice by sentencing criminals who are dangerous to prisons.
We do that by working with probation and pretrial services
officers to give people who might benefit from a second chance
another opportunity to start on the path of a law-abiding life
instead of one of crime and prison. We do that by safeguarding
our freedom of religion, our freedom of speech, enforcing the
laws against discrimination, and preserving our equal rights.
prepared statements
Chairman Hollings, Senator Gregg, we present to you today
the budget that we believe is necessary to do all those things
and we look forward to working with you.
[The statements follow:]
Prepared Statement of Honorable John G. Heyburn II
introduction
Chairman Hollings, Senator Gregg, and Members of the Subcommittee,
thank you for giving me the opportunity to testify on the judiciary's
fiscal year 2003 budget request. With me today are Judge M. Blane
Michael, Judge of the United States Court of Appeals for the Fourth
Circuit; and Leonidas Ralph Mecham, Director of the Administrative
Office of the United States Courts, who is also the Secretary of the
Judicial Conference and a member of its Executive Committee.
Before addressing our fiscal year 2003 budget request, on behalf of
the entire judiciary I want to express our sincere appreciation for the
generous funding levels provided to the judiciary for fiscal year 2002.
Faced with responding to both the need for additional resources due to
the terrorist and anthrax attacks and continuing fiscal pressure, the
Congress was able to provide significant resources for several of the
judiciary's highest priorities. While we did not receive funding for
all the new probation and pretrial services positions and clerks'
office positions, you provided funding for a significant increase in
the hourly rates paid to private panel attorneys representing
defendants who cannot afford to pay for their representation; the
judiciary's highest priority security needs; the first installment on
the renovation of the Supreme Court building; and a COLA for judges.
Although we did not get all the funding we requested, we are very
grateful that you and your dedicated staff worked with us to fund our
most pressing needs.
budget overview
The judiciary's fiscal year 2003 request totals $5.2 billion, a
10.7 percent or $507 million increase over available fiscal year 2002
appropriations, including the emergency counterterrorism supplemental
funding. Three quarters of this requested increase ($375 million) is
required to continue current operations such as pay and benefit
adjustments, inflationary adjustments, increases in GSA space rental
costs, an increase in filled Article III judgeships, and continuation
of the enhanced security measures taken since the terrorist and anthrax
attacks. The remainder ($132 million) is requested for programmatic and
workload related needs such as: additional bankruptcy court staff to
process an all time high number of bankruptcy filings; additional
probation staff to supervise a record number of offenders released from
prisons and living in our communities; and an increase in district
court staff to handle the projected growth in criminal filings as the
number of Department of Justice prosecutors continues to grow.
In addition to the funds requested, the judiciary has identified
$129.8 million required to implement the Administration's proposed
legislation to shift the full cost for selected retirement benefits for
current employees from the Office of Personnel Management to each
individual agency. If this legislation is enacted, the judiciary would
require a total appropriation of $5.4 billion. A detailed explanation
of our fiscal year 2003 request is included as an Appendix to this
statement.
impact of the september 11th attacks
An independent judiciary that all citizens trust and respect, which
can fairly and expeditiously dispense justice and resolve citizens'
disputes, is a fundamental tenet of our nation. The events of September
11th, and the anthrax incidents that followed, tested the judiciary's
ability to maintain the high quality of justice our country deserves. I
am pleased to report that the men and women of the Third Branch came
together in a remarkable show of pride, teamwork, and patriotism to
make certain that the work of the judiciary continued unabated.
In New York City, the 2nd Circuit Court of Appeals, the Court of
International Trade, and the district and bankruptcy courts, probation
and pretrial services offices, and federal public defender offices for
the Southern District of New York are all located within a few blocks
of the World Trade Center. The judiciary thankfully suffered no
casualties as a direct result of the attacks. The attacks resulted in
some facility damage, a disruption in court operations, ongoing air
quality issues and exerted untold emotional stress on court employees.
However, with the assistance of judiciary staff across the country,
especially those in the Eastern and Northern Districts of New York, the
District of New Jersey, and the Eastern District of Pennsylvania, these
courts were able to continue to function. For example:
--Pretrial services officers from New York Eastern and New Jersey
provided office space and telephones. They assisted in home
confinement/electronic monitoring by following up on alerts for
86 defendants. In many cases, because streets were closed to
vehicles and the subway was not operational, officers walked to
appointments with defendants.
--The bankruptcy court, which was using the judiciary's new case
management/electronic filing system, was up and running within
hours after court executives contacted the Administrative
Office to receive electronic backups.
--The 2nd Circuit Court of Appeals heard oral arguments at the
Association of the Bar of the City of New York while awaiting
permission to move back into its courthouse.
--District Court Clerks offices' staff in the Eastern District of
Pennsylvania, the District of New Jersey, and the Northern
District of New York volunteered to travel to the Southern
District of New York to assist with various processing
functions that were delayed due to the attacks.
impact of the anthrax attacks
The anthrax attacks also had a significant impact on the judiciary.
The most dramatic was the evacuation and temporary closing of the
Supreme Court building. The Court continued to hear arguments at the
ceremonial courtroom in the District of Columbia E. Barrett Prettyman
United States Courthouse. Examples of other impacts on the judiciary
include: finding alternative ways to receive time sensitive case
materials from prosecutors, defendants, and civil litigants without
utilizing the U.S. mail; receiving juror qualification questionnaires
without relying on the U.S. mail to ensure that adequate numbers of
jurors were available to continue trials; significantly scaling back on
the Administrative Office's use of the U.S. mail to communicate with
the courts and relying almost exclusively on electronic communications
via the judiciary's nationwide Data Communications Network; and
responding to anthrax hoaxes to ensure the safety of court facilities.
long-term implications
In response to the terrorist attacks, the judiciary is taking steps
to protect against future incidents that could disrupt the operations
of the judiciary. These steps include heightened security, the
development of a nationwide continuity-of-operations plan, studying the
feasibility of establishing a court operations center located outside
of Washington, D.C., and the continued use of technology to decrease
the courts' reliance on mail to perform routine business (i.e., the
electronic filing of documents, electronic noticing, and processing
juror questionnaires).
Also in the long-term, the workload of the judiciary is expected to
increase. As additional resources are provided to the various law
enforcement agencies of the Department of Justice and additional
Assistant U.S. Attorneys are hired to combat terrorism, the result will
be continued growth in the workload of the judiciary. Any number of
high profile trials could result from prosecutions already known or
probable. These cases will cause increased security and defense
expenditures. Our budget request does not specifically take into
account these potential trials. However, we will monitor the costs of
these proceedings so that Congress and the public can be kept informed.
heightened security
Since the September 11th attacks, the judiciary has significantly
enhanced security at judiciary facilities. The additional resources
appropriated by Congress in the fiscal year 2002 emergency supplemental
will enable the judiciary to maintain the level of court security
officer (CSO) coverage recommended by the U.S. Marshals Service,
procure upgraded X-ray machines for courthouse loading docks and
mailrooms, create 106 new deputy marshal positions to coordinate
security in each circuit and district, begin to address the mail
handling and screening needs of the courts, and provide increased
protection both for CSOs and court facilities, especially those with
high-profile terrorist cases.
The judiciary's budget request for Court Security totals $298
million and will continue the current higher level of security in the
courts for fiscal year 2003. The request is $1.4 million below our
fiscal year 2002 spending plan and takes into account non-recurring
funding for security systems provided in the emergency supplemental.
Working with the U.S. Marshals Service, the judiciary will continue to
evaluate its security needs and will keep the Committee informed of our
requirements.
While not part of the judiciary's budget request, the Marshals
Service is responsible for the security of courthouses, judges,
criminal proceedings, and the transportation and security of prisoners.
The impact of the war on terrorism and the growing number of criminal
cases has had a dramatic impact on the resource needs of the Marshals
Service. The dedication and professionalism which the men and women of
the Marshals Service have displayed since the September 11th attacks
has been immeasurable. The judiciary appreciates that you were able to
provide the Marshals Service with significant funding increases in
fiscal year 2002.
We hope that in fiscal year 2003 the Committee will be able to
continue to provide the Marshals Service with additional staff for
protection of the judicial process. In districts such as the Southern
District of Florida and those along the southwest border, the number of
defendants detained by the Marshals Service has grown dramatically in
recent years, and additional deputy marshals are desperately needed to
secure these potentially dangerous defendants. Additional deputy
marshals are also needed for counterterrorism efforts associated with
the terrorist-related cases the courts are currently hearing and
additional cases that may be heard in the future. We encourage you to
provide the Marshals Service the necessary resources to support their
judicial protection responsibilities.
impact of additional assistant u.s. attorneys (ausas)
Over the past few years, additional resources have been provided to
the U.S. Attorneys to increase gun prosecutions, promote school safety,
combat cyber crime, and establish joint terrorism task forces. As the
number of AUSAs continues to grow to address the priorities of Congress
and the Administration, workload in the judiciary will continue to
grow. The potential growth in criminal filings that could result from
additional AUSAs has a far-reaching impact on the judiciary. Additional
criminal cases brought to federal courts require additional judges to
hear cases, court staff to administer them, pretrial services officers
to supervise defendants released in our communities while awaiting
trial, court-appointed counsel to represent additional defendants, and
more probation officers to prepare presentence reports and supervise
offenders released from prison serving their mandatory terms of
supervised release.
court support staff
The work of the judiciary is largely uncontrollable. The courts
must handle whatever number of civil, criminal, or bankruptcy cases are
filed, fairly and expeditiously. The judiciary cannot control the
number and length of trials, the resulting number of jurors, and the
number of defendants requiring representation. The courts also are
unable to control the number of offenders serving a term of supervised
release or defendants awaiting trial who require supervision. In order
to ensure resources are deployed to match workload demands, the
judiciary has developed scientifically-derived staffing formulas that
are used to construct the budget request and allocate funding to court
clerks' offices and probation and pretrial services offices. Each court
program (courts of appeals, bankruptcy courts, district courts, and
probation and pretrial services) has its own formula which takes into
account the individual workload drivers for the functions performed by
these offices.
The staffing formulas were updated in the summer of 2000 after
completion of an extensive series of analytical studies of the work
performed in clerks' offices and probation and pretrial services
offices. The formulas are used to determine the level of resources
needed to allow the judiciary to provide a consistent level of service
to the bench, bar, and the public, taking into consideration upward and
downward changes in workload. As filings and other workload drivers
fluctuate from year to year, the application of the formulas to
individual court units allows for a corresponding increase or decrease
in funding allocations. This allows the judiciary to ensure that
resources are allocated equitably to all court units based on their
individual workloads.
Although the courts' workload continues to increase in fiscal year
2002 the judiciary was unable, due to funding constraints, to fund
fully its staffing formulas. The judiciary was able to provide some
additional law enforcement resources only to probation and pretrial
services offices where workload is increasing the most.
In fiscal year 2003, the budget requests funding for 1,297
additional FTEs to fund fully the courts' fiscal year 2002 and 2003
workload requirements (461 FTEs for probation and pretrial services and
836 FTEs for clerks' offices). Without sufficient staff, judicial
processes are short-changed, civil and bankruptcy cases are delayed,
support provided to judges and the public deteriorates, and offenders
and defendants living in our communities are not adequately supervised.
probation and pretrial services
Federal probation and pretrial services officers protect the public
through the investigation and supervision of defendants and released
offenders within the federal criminal justice system. A pretrial
services officer supervises defendants awaiting trial who are released
into our communities and provides a source of information upon which
the court can determine conditions of release or detention while
criminal cases are pending adjudication. To support sentence
determinations, which require both uniformity and attention to
individual circumstances, probation officers provide the court with
reliable information concerning the offender, the victim, and the
offense committed, as well as an impartial application of the
sentencing guidelines. Probation officers supervise offenders coming
out of federal prison who are required to serve a term of supervised
release. Many of those under supervised release have substance abuse
and mental health conditions.
In order to highlight the vital role played by these dedicated
officers, I would like to offer an example of an incident where a
probation officer went the extra mile in preparing a presentence report
for the judge.
In March of 2001, a probation officer from the Northern District of
California was assigned a presentence report of a case where the
defendant pled guilty to Conspiracy to Bring Aliens Into the United
States Illegally, Transportation of Minors in Foreign Commerce for
Illegal Sexual Activity, and Subscribing to False Tax Returns. The case
came to the attention of authorities when a minor female died of carbon
monoxide poisoning in one of the defendant's apartment complexes.
Further investigation revealed that this female and other minor females
were illegal aliens who had been smuggled into the United States with
fraudulent visas. The defendant began having sexual relations with many
of the victims when they were as young as 11 years old.
The probation officer left no stone unturned in preparation of the
presentence report. She interviewed each agency involved, including the
city attorney's office, the Immigration and Naturalization Service, the
American Civil Liberties Union-Immigration Rights Project, the victims'
civil attorney, the Internal Revenue Service, and the mental health
professionals who were working with the victims. It was through these
interviews that the probation officer determined the extent of the
psychological injuries to the victims.
The probation officer's presentence report to the Court recommended
that the Court depart upward due to the extreme psychological injury to
the victims. This upward departure was not part of the plea agreement,
and became a point of contention at the sentencing hearing. The judge
believed there was evidence to support this factor and agreed that an
upward departure of two levels was warranted on that basis. The
attorneys agreed to revise the plea agreement to include the upward
departure. The defendant was ultimately sentenced in accordance with
all of the factors that were presented and supported through the
probation officer's extraordinary investigation.
The mission of our probation and pretrial services officers is not
only to protect the public by supervising the activities of offenders
and providing information to the court but it is to help offenders and
defendants get back on their feet and integrate back into our
communities. For example:
In the Western District of Kentucky, an offender recently released
from prison entered the probation office and experienced an emotional
breakdown because his proposed housing had fallen through. With the
help of a probation officer, the offender was admitted to a Crisis
Invention Unit where the offender lived and received emotional
counseling for several months. While the offender was admitted, the
probation officer helped the offender apply for Social Security
benefits and food stamps. The officer also helped the offender secure
an apartment, which he was able to pay for using his Social Security
benefits. The offender is now living on his own, receiving bi-monthly
counseling sessions, and is in total compliance with the terms of his
release.
These are only two examples of the dedication and commitment that
each employee of the Third Branch brings to the job.
In fiscal year 2001, probation and pretrial services officers
supervised a record number of offenders and defendants (139,797) living
in our communities. This is above the federal prisoner population and
is projected to continue to grow in fiscal year 2002 and fiscal year
2003 as the number of offenders released from federal prisons continues
to increase.
The fiscal year 2003 budget requests 461 additional probation and
pretrial services FTEs to provide the additional staff required to
manage this growing workload. Without the additional resources needed
to manage their growing workloads, probation and pretrial services
officers will be unable to maintain their high level of service to the
community. Without adequate staffing, officers will focus most of their
efforts supervising those persons they believe to be the most dangerous
felons released from federal prison, while reducing the level of
supervision over other released offenders who appear to be less
dangerous, but may still pose a threat to the community. In addition,
the officers would be unable to devote sufficient time to prepare
sentencing recommendations to the court and helping struggling
offenders in need of assistance.
clerks' office staff
The fiscal year 2003 budget also requests 836 FTEs to support the
operations of the courts. This includes 494 FTEs for bankruptcy courts
to handle the explosive growth in bankruptcy filings. In fiscal year
2001, bankruptcy filings were a record 1,437,354 and they are projected
to continue to increase. The long term impact of insufficient staffing
in bankruptcy clerks' offices will be seen in longer disposition times,
more case management errors, and reduced level of service to the judges
and the bar. Ultimately this will negatively affect both debtors and
creditors.
The request also includes 289 FTEs for district courts where the
number of criminal defendants is projected to increase by 9 percent in
fiscal year 2002 over fiscal year 2001. This anticipated growth in
criminal workload reflects the projected increases in the number of
cases the U.S. Attorneys offices will be able to prosecute given their
recent increases in funding. Without additional staff to process this
extra work, we can expect delays in civil filings and decreased service
to the bench, bar, and public.
Finally, the request includes 53 FTEs to support circuit courts of
appeals where between fiscal year 2000 and fiscal year 2001, appeals
increased by 5 percent.
defender services
The Sixth Amendment to the U.S. Constitution provides that ``in all
criminal prosecutions, the accused shall enjoy the right . . . to have
the assistance of counsel for his defense.'' In enacting the Criminal
Justice Act of 1964, Congress charged the federal judiciary with
responsibility for providing counsel in connection with federal
criminal prosecutions and related matters and authorized a separate
Judiciary account the Defender Services appropriation to pay for these
appointed counsel services.
As is true of the Judiciary's workload generally, the demand for
appointed counsel services is not within the Judiciary's control. Both
the number and complexity of cases in which counsel must be appointed
are a function of both decisions made by the Department of Justice and
the criminal laws and related statutes enacted by the Congress.
The substantial rate increase you provided for fiscal year 2002
will go a long way toward ensuring that competent counsel are available
to meet the demands. I not only want to reiterate and re-emphasize how
much this milestone is appreciated by those of us in the Judiciary
responsible for managing the appointed counsel process, but also to let
you know that panel attorneys from around the country have asked that
we convey to you directly their appreciation for what you have done. At
a time when the world's attention is likely to be focused on our
federal criminal justice system, we believe that this increase will
have a meaningful, positive impact on how well that system operates.
Excluding funding for panel attorney rate increases, we are seeking
only a modest increase for Defender Services in fiscal year 2003 to
cover workload growth and inflationary increases. Defender Services
obligations are projected to grow by just 7.6 percent in fiscal year
2003. Half of this growth is associated with the need to provide
representation in the greater number of criminal matters that are
expected to be filed in fiscal year 2003 than in fiscal year 2002. The
remainder is needed to fund inflationary increases and mandatory pay
and benefit adjustments.
cost containment and the judiciary's budget process
The Constitution created the judiciary as a separate and
independent branch of government. One of the by-products of the
distinction as a separate branch, is the judiciary's authority to
submit its budget request to Congress through the President ``without
change'' by the executive branch. 31 U.S.C. Sec. 1105(b).
The judiciary takes this authority seriously. The Judicial
Conference of the United States recognizes that the responsibility for
budgetary oversight requires stewardship and fiscal responsibility in
both providing for the judiciary's requirements while considering the
needs of the nation. The Judicial Conference established a Committee on
the Budget, of which I am the Chairman, to assemble and present to
Congress the budget for the judicial branch. In response to a request
from the Congress, the Judicial Conference determined that the Budget
Committee's jurisdiction should be expanded to include an Economy
Subcommittee responsible primarily for: (1) coordinating efforts of the
judiciary to achieve fiscal responsibility, accountability, and
efficiency; (2) advising the Budget Committee on development of
fiscally responsible budget estimates; and (3) coordinating the
development of reliable long-range budget estimates. The Budget
Committee continues to meet each of these objectives.
With the assistance of the professional staff at the Administrative
Office who support the committees of the Judicial Conference, the
Economy Subcommittee and the Budget Committee analyze and debate the
budget requests of the various program committees of the Judicial
Conference. After intensive review, the Budget Committee recommends a
budget request to the Judicial Conference that balances both the
judiciary's responsibility to request sufficient funding to effectively
operate the courts and the judiciary's duty as stewards of the public's
funding.
In addition to the annual review of the budget request by the
Budget Committee, the judiciary on a regular basis retains outside
consultants to evaluate independently our financial and operational
requirements and identify areas for improvements and efficiencies.
While these studies are sometimes undertaken at Congress' behest, more
often the judiciary itself initiates these reviews. Over the past few
years, under the leadership of the Administrative Office, independent
consultants have evaluated the courts' space and facilities program,
the information technology program, the library services program, and
the court security program. Currently, the judiciary is conducting a
comprehensive assessment of the probation and pretrial services system.
Upon completion of these independent program studies, the
Administrative Office and the applicable committees of the Judicial
Conference review the results and implement program changes to improve
the level of service provided by the courts and make the courts more
efficient.
While the judiciary is working at the national level to review
budget requests and conduct independent program reviews, we, with the
assistance of the Administrative Office, also are working at the local
level to ensure that the funding you provide us is spent efficiently.
Chief judges and unit executives receive training on the financial
responsibilities of operating their court; local court unit financial
analysts are trained in budget and accounting; and Administrative
Office staff conduct court audits and program assessments that help
court managers improve the management of their resources. These efforts
are done to ensure that every court--from the large urban courts to the
small rural courts--is effectively managing the funding provided to the
judiciary.
contributions of the administrative office
As I discussed earlier, the Administrative Office plays a pivotal
role in the budgeting and management of the funding you provide the
judiciary. It not only performs important administrative functions such
as personnel, payroll, procurement, space management and planning, and
accounting, but also provides a broad range of legal, financial,
management, program, and information technology services to the courts.
The Administrative Office, under the direction of the Judicial
Conference, is the manager of change in the judiciary. This change
includes: implementing throughout the courts modern automated systems,
such as personnel, accounting, library services, jury management, and
case management; and expanding the use of technologies to assist in the
supervision of offenders and defendants.
The Administrative Office was also instrumental in providing direct
support to the courts to restore operations, upgrade security and
facilitate new mail handling procedures, after the events of September
11. The exemplary performance was commended in a letter I read from the
Chief Judge of the Southern District of New York. He recognized the
Administrative Office for the resource and personnel help that enabled
the court to carry on its business while bearing the burdens of
September 11.
I urge the Committee to fund fully the Administrative Office's
budget request including its modest request for eight additional FTEs.
The Administrative Office is integral to the judiciary's ability to
perform its work. Without the Administrative Office's support, the
judiciary could not continue to improve its efficiency. The increase in
funding will ensure that the Administrative Office continues to provide
program leadership, policy guidance, and administrative support to the
courts, and to lead the efforts for them to operate efficiently.
contributions of the federal judicial center
The Federal Judicial Center is the federal judiciary's education,
training, and research arm. With Judge Smith, I thank you for last
year's programmatic increase, the first such increase in over ten
years, and only the second full current services increase in the same
period. We are grateful.
The Center is vital to our work as judges, and a main element of
its modest 8.7 percent increase this year involves education for
judges. I want also to recognize the Center's education for the
employees in our clerks, probation, and pretrial offices in these
troubled times of employee unease and uncertainty. Center management
training, almost all of it offered by satellite and on the web, has
never been more important and highlights the need for the three
educational technology positions the Center requests.
Center education is also vital to our work as judges. The Center
seeks an increase of $500,000 to allow it to restore its basic judicial
continuing education programs to an annual basis. Since 1999, the
Center's reduced appropriation has meant that district, magistrate,
bankruptcy, and appellate judges may attend one of these seminars no
more than once every eighteen months. This cutback has been a matter of
great concern to judges over the country. The Board of the Center took
the unusual step of adding its own statement to supplement Judge
Smith's justification for this increase.
These programs provide updates on caselaw trends, on innovations in
managing cases, and on such specialized topics as admissibility of
scientific evidence. Furthermore, we can share notes with colleagues
from other courts as well as with the excellent faculty that the Center
assembles. I believe the Center's request deserves the committee's
support and urge favorable action on the full amount.
judicial compensation
Before closing, I would like to express our appreciation for
Congress' approval of a fiscal year 2002 Employment Cost Index (ECI)
adjustment for federal judges, members of Congress and top officials in
the executive branch. The Judicial Conference strongly encourages
Congress to authorize an ECI adjustment for fiscal year 2003, which
will require a provision to waive section 140 of Public Law 97-92.
While the law provides for a 3.1 percent increase, the President's
Budget reduces this adjustment to a maximum 2.6 percent increase. We
urge that Congress take action this year to avoid further salary
erosion.
conclusion
Chairman Hollings and members of the subcommittee, this concludes
my statement. I look forward to working with you and I would be pleased
to respond to any questions you may have.
Appendix
summary
The fiscal year 2003 appropriation request for the Courts of
Appeals, District Courts and Other Judicial Services totals
$4,961,693,000, an increase of $507,705,000 over the fiscal year 2002
available appropriations which included $82,221,000 in emergency
supplemental funding. In addition to appropriated funds, the judiciary
utilizes other funding sources to supplement its appropriations.
Included in these sources of funding are fee collections, carry forward
of fee balances from a prior year, and the use of no-year funds.
Of the $507,705,000 increase in appropriations, 75 percent
($382,134,000) is for adjustments to the fiscal year 2002 base
associated with standard pay and other inflationary increases as well
as other adjustments that will allow the courts to maintain current
services in fiscal year 2003. The remaining 25 percent ($125,571,000)
is needed to respond to continued increases in the courts' workload, as
well as increased requirements for security, magistrate judges, and
federal defender offices. The request for the principal programs are
summarized below.
salaries and expenses
The salaries and expenses of circuit, district, and bankruptcy
courts and probation and pretrial services offices account for most of
the judiciary's request. A total of $4,304,243,000 is required for this
activity. Funding totaling $287,352,000 is expected to be available
from other sources including fee collections and carryforward balances
to fund requirements. This leaves a direct appropriation need of
$4,016,891,000, $409,603,000 above the fiscal year 2002 available
appropriation which included $5,000,000 in emergency supplemental
funding.
Nearly 72 percent of the $409,603,000 increase ($294,157,000) is
needed to fund adjustments to the fiscal year 2002 base for pay and
benefits increases for courts support staff ($115,100,000), pay and
benefits increases for judges ($9,881,000), the filling of vacant
judgeships and increases in senior judges ($13,887,000), additional
space rental costs ($80,784,000), additional information technology
costs ($23,143,000), financing adjustments necessary to maintain
current services ($39,655,000), and inflationary increases in other
operational costs ($11,707,000).
The remaining increases ($115,446,000) will fund 7 additional
magistrate judges and their staff ($2,163,000) to provide an effective,
yet less costly, way of providing help to Article III judges to handle
the growing volume of civil and criminal cases facing the courts;
additional court support staff ($102,727,000) to allow the courts to
keep pace with increases in its largely uncontrollable workload;
enhanced mail handling facilities and services ($10,000,000) to improve
security in mail room operations; medical examinations for probation
and pretrial services officers ($200,000); and distance learning and
web-based training initiatives ($356,000).
defender services
A total of $588,741,000 in appropriations is required for the
Defender Services program to provide representation for indigent
criminal defendants in fiscal year 2003. This represents an increase of
$88,070,000 over the fiscal year 2002 enacted appropriation of
$500,671,000.
Most of the increase ($87,470,000) is needed for adjustments to the
fiscal year 2002 base for inflationary and workload increases. Included
in these adjustments is $18,087,000 for costs associated with
maintaining the base level of representations; $30,066,000 to annualize
the fiscal year 2002 non-capital private panel attorney rate increase
to $90 per hour; $17,142,000 to increase private panel attorney rates
to $113 per hour in all districts beginning April 1, 2003; and a
$22,175,000 net increase associated with 6,300 additional
representations projected in fiscal year 2003.
The remaining increase ($600,000) will fund the start up costs of
two new federal defender organizations. The Congress and the Judicial
Conference have urged us to establish more federal defender
organizations as an alternative to using panel attorneys in districts
where this would be appropriate.
fees of jurors and commissioners
For the Fees of Jurors program, an appropriation of $57,826,000 is
required, an increase of $9,695,000 from the fiscal year 2002 enacted
appropriation of $48,131,000. This increase funds inflationary
adjustments ($450,000); a net decrease in projected juror days
(-$878,000); and financing adjustment required to avoid a cessation of
civil jury trials ($10,123,000).
court security
For the Court Security program, an appropriation of $298,235,000 is
required. This is a $337,000 increase over the fiscal year 2002
available appropriation of $297,898,000 which included $77,221,000 in
emergency supplemental funding.
Adjustments to base include increases of $33,412,000 including
standard pay, benefit, and contractual services increases
($13,273,000); funding to annualize the costs for new deputy U.S.
Marshals funded through the emergency supplemental ($9,800,000);
funding to annualize 24 new court security officers (CSOs) expected to
be brought on in fiscal year 2002 ($584,000); funding for increases
associated with new and existing space including 10 new CSOs and
security systems and equipment ($2,266,000); and funding for the
cyclical replacement of existing security systems and equipment
($7,489,000). These increases are offset by a decrease of $42,600,000
for non-recurring costs that were funded with emergency supplemental
appropriations in fiscal year 2002. This results in an overall net
reduction in funding for base adjustments of $9,188,000.
The remaining increase ($9,525,000) is for program increases. These
include $8,656,000 for security systems and equipment enhancements,
$550,000 for CSO and contracting officer technical representative
training programs, and $319,000 (4 FTE) for additional judiciary-funded
positions at the U.S. Marshals Service to improve the management of the
Judicial Facility Security Program.
______
Prepared Statement of Leonidas Ralph Mecham
introduction
Chairman Hollings, Senator Gregg, and Members of the Subcommittee:
I am pleased to appear before you this morning to present the fiscal
year 2003 budget request for the Administrative Office of the United
States Courts (AO). I appreciate this opportunity and your time.
Let me first take a moment to thank you for your help in conference
on the fiscal year 2002 appropriation for the AO. Your support was
critical in allowing us to maintain our current level of service to the
courts, and for this I am grateful. I also want to express my
appreciation for your leadership in providing the judiciary with the
fiscal year 2002 emergency supplemental security funding necessary to
address some of the most pressing requirements we identified in the
aftermath of September 11th and the anthrax exposures that followed.
Without the assistance of this Subcommittee, we would not have received
the additional resources to heighten mail and building security across
the country; purchase an emergency communications backup system to
ensure that judges and court administrators can maintain contact with
the AO, the U.S. Marshals Service, and General Services Administration
personnel during emergency situations; or improve the physical security
of the Thurgood Marshall Federal Judiciary Building. Your attention to
the needs of the judiciary, and the focus of your staff, is very much
appreciated.
role of the administrative office
Created by an Act of Congress in 1939 to eliminate the separation
of powers issues raised by the Department of Justice's handling of the
judiciary's administrative needs, the Administrative Office of the
United States Courts serves as the central support agency for the
federal court system, with key responsibility for judicial
administration, program management, and oversight.
As such, the AO is the focal point for judiciary communication,
information, program leadership, and administrative reform. Our court
administrators, accountants, systems engineers, analysts, architects,
lawyers, statisticians, and other staff provide professional services
to meet the needs of judges and staff working in the federal courts
nationwide.
response to 2001 terrorism incidents
Nowhere was the exemplary service and outstanding abilities of the
Administrative Office staff more evident than in its response to the
terrorist events of September 11, 2001. Calling upon the judiciary's
existing disaster response group formed in 1992 after Hurricane Andrew,
within hours of the World Trade Center attacks, we assembled an
emergency response team to work with court staff in New York City to
facilitate recovery of communications and computer systems and return
the courts to normal operations as soon as possible.
The emergency response team assisted the courts in acquiring
cellular phones, rerouting e-mail and computer networks, resolving
procurement issues and ensuring that employees were paid accurately and
on time. The team also kept court employees and the public posted on
the status of operations in New York on the judiciary's Internet site.
The anthrax contaminations that followed soon after, and the
ensuing mail delays, required a number of adjustments to court
operations, including the relaxing of rules about the timeliness of and
the means by which cases and pleadings are filed (i.e., electronic and/
or fax). The mail delays also required finding creative ways of
ensuring that juror questionnaires were returned in a timely manner,
guaranteeing that sufficient juror pools would be available to continue
trials.
In addition, the threat posed by contaminated mail required the AO
to reduce significantly paper mailings to the courts and enhance the
use of our nationwide Data Communications Network. The AO expanded its
already widely used e-mail broadcast system and created a series of
electronic mailing lists to target particular court audiences. The use
of these broadcasts went beyond simple letter communications and
included the distribution of documents via the judiciary's intranet. AO
employees are continuing to rely heavily upon e-mail messages, e-mail
broadcasts, faxes, and postings to the judiciary's intranet for
communications with court staff. Fortunately, the judiciary's
investment in information technology, made possible through the support
of this Subcommittee, and the establishment of a nationwide electronic
infrastructure, positioned us to move more quickly toward electronic
communication solutions during this crisis.
AO staff continued assistance by providing information to all
courts on enhanced security, mail handling, testing for anthrax and
responding to threats from anthrax and other biological and chemical
agents. Information was developed and disseminated to highlight health
and safety concerns such as: how to handle crisis benefit issues,
including Worker's Compensation and the Employee Assistance Program;
public health issues; and special information on how to deal with
trauma in the work place.
AO staff also coordinated the judiciary's request for emergency
supplemental funds to provide for additional court security, protective
window film, upgraded x-ray machines, an emergency communications
system, heightened mail screening, and other perimeter security
enhancements for the courts. Working with the Office of Management and
Budget (OMB) we were provided $19.7 million from funds appropriated to
the President to cover the cost of increased court security officer
(CSO) coverage. Then, with your leadership and assistance, the
judiciary received additional emergency security funds totaling $95.4
million in the fiscal year 2002 emergency supplemental.
Longer-Term Implications
As Chief Justice Rehnquist pointed out in his 2001 Year-End Report
on the Federal Judiciary, the Administrative Office played a pivotal
role in ensuring that the federal courts around the country have
effective security precautions and adequate mail screening procedures
in place. But, as the central support agency for the administration of
the federal court system, we must now turn our attention to the long-
range planning aspects of crisis response, identify and address our
vulnerabilities, and determine where changes in court operations are
necessary in light of these newly recognized threats.
Offsite Court Operations Support Center
One significant vulnerability is the location of our key
administrative and operational support systems at the AO in Washington,
D.C. With the encouragement of this Subcommittee, the AO currently is
studying the feasibility of opening a court operations support center
that would provide a separate location outside Washington, D.C. for the
operation of systems critical to the work of the courts. The Support
Center also would provide a location from which key personnel could
operate in the event the Thurgood Marshall Federal Judiciary Building
were forced to close for any reason. From a national perspective, the
Support Center would better ensure the continuity of operations of the
judiciary's information technology infrastructure that supports the
day-to-day operations of the courts so that justice would continue to
be served during any situation that might otherwise disrupt normal
operations.
Continuity of Operations Planning
Outside of Washington, D.C., courthouses are often the most visible
and potentially vulnerable federal facilities. Recognizing this threat,
an emergency preparedness function was established at the AO in
November 2001 to allow us to better focus on crisis response, occupant
emergency planning, and continuity of operations planning. We intend to
develop model continuity of operation plans for use by the courts and
the AO. The objective of these plans is to ensure the capability exists
to continue core business functions throughout the courts, and to
achieve an orderly recovery under all emergency situations.
Acceleration of Move to E-business
Another vulnerability, discussed earlier, was how the routine
business of the courts, including the filing of motions and receipt of
juror questionnaires, was disrupted when mail service became
unreliable. For the past several years, the judiciary has been
progressing toward heavier use of electronic means of transacting
business, including the move toward electronic case filings, as well as
incorporating e-business into our voucher and bill payment operations.
The judiciary is considering whether the move toward these systems can
be accelerated.
Unique Issues Associated with High Threat Trials
The terrorist threat to our nation also means that the federal
courts are likely to be the forum for many more highly publicized and
security-sensitive criminal proceedings. Already we know of three such
trials upcoming--the Zacarias Moussaoui and John Walker Lindh cases in
the Eastern District of Virginia and the Richard Reid case in
Massachusetts. The courts face unprecedented and extraordinary
challenges involving a wide range of issues, including security
concerns, information technology, and furnishing closed-circuit
broadcasts of the proceedings to victims' families. The AO is providing
support and advice to the courts on all of these issues, as we did in
the Oklahoma City bombing cases.
I look forward to working with you and the Members of this
Subcommittee as we develop more specific plans to ensure that the
federal courts are safe and readily accessible to the public, and that
the business of the judiciary can and will continue without disruption
in the event of a terrorist attack, chemical or biological
contamination, or natural disaster.
administrative office budget request
The fiscal year 2003 budget request for the Administrative Office
of the U.S. Courts is $66,912,000, representing an increase of
$2,369,000, or 3.7 percent above fiscal year 2002 available
appropriations. However, when the emergency supplemental funding is
excluded, the fiscal year 2003 increase for the AO is $5,248,000, or
8.5 percent more than the fiscal year 2002 enacted level. In addition
to this amount, the AO's budget request identifies $3,947,000 required
to implement the Administration's proposed legislation to shift the
full cost of selected retirement benefits for current employees and
health benefits for retirees from the Office of Personnel Management to
each individual agency. If this legislation is enacted, the AO would
require a total appropriation of $70,859,000 in fiscal year 2003.
More than three-fourths of the requested increase for the AO,
$4,055,000, is necessary to fund standard pay and benefit cost
adjustments and general inflationary increases to maintain our current
level of service to the courts. The remaining increase of $1,193,000,
which I will describe in greater detail in a moment, is requested to
strengthen our programmatic oversight role, enhance crisis response,
security and safety programs, and allow us to fund an increase in the
transit subsidy benefit for AO employees.
Transit Subsidy
Pursuant to the Transportation Equity Act for the 21st Century
(Public Law 105-78), the AO implemented a transit subsidy benefit for
its employees within available funding in fiscal year 2000. The benefit
is currently $60 per month with a participation rate of approximately
50 percent. Executive Order No. 13150 provided for an increase in the
allowable benefit to $100 per month in January 2002.
The already limited parking available in and around the Thurgood
Marshall Federal Judiciary Building has been reduced by the loss of
parking spaces at Union Station due to security considerations.
Further, the planned construction of Station Place has eliminated a
commercial parking lot immediately behind the AO building where many of
our employees parked. This, coupled with the continuing increase in
traffic congestion in the Washington, D.C. area, has increased AO
employee interest in the transit subsidy program. The requested program
increase of $400,000 will allow us to increase the benefit for AO
employees to the authorized level of $100 per month and cover the cost
of an anticipated increase in the participation rate to 60 percent.
AO Staff Support of the Courts
An increase of $793,000 is requested to provide eight additional
FTE for program oversight. Continuing to develop new programs and
systems while supporting a court system whose proportional growth far
outpaces that of the AO is a daunting task. The staffing level in the
AO has remained approximately the same over the last six years, while
court staffing has grown by 15 percent during the same time period.
To make the most efficient use of the resources provided the AO,
each vacancy that occurs is evaluated and used to fulfill our highest
priority needs. However, because sufficient resources must be committed
to core functions such as payroll, personnel, and financial management,
and to provide support to the committees of the Judicial Conference,
program oversight functions are in serious need of additional
resources. The eight additional FTE we are requesting will enable the
AO to perform more adequately its audit, review, and assessment
responsibilities and, as I have detailed in my testimony, the tragic
events of last fall highlight the need for new resources to staff
adequately our crisis response, security, and safety programs in
support of the courts.
responsibilities and accomplishments
As I mentioned earlier, the Administrative Office has key
responsibility for judicial administration, program management, and
oversight. It supports the Judicial Conference in determining judiciary
policies, and develops new methods, systems, and programs for
conducting the business of the federal courts. The AO also assists the
courts in implementing better management practices, developing and
supporting innovative technologies that enhance the operations of the
courts, and collecting and analyzing statistics on the business of the
federal courts for planning and determining resource needs.
It assists the courts in program management, addressing areas such
as case management, jury administration, defender services, court
interpreting services, and court reporting. One of our major areas of
support is probation and pretrial services. In fiscal year 2001, the AO
assisted the probation and pretrial services offices in supervising a
record number of offenders and defendants (139,797) living in our
community at an average cost of $11 per day. This is above the federal
prison population (120,827), which has an average inmate cost of $55
per day. The AO also provides financial management services to the
judiciary including budget formulation, execution, and accounting; and
personnel and payroll support for 32,000 judiciary employees. It
supports the facilities and security needs of over 800 facilities
housing judiciary operations, and conducts audits and reviews to ensure
the continued quality and integrity of federal court operations.
Throughout 2001, the AO excelled in its day-to-day
responsibilities. Let me take a moment to highlight several areas.
Financial Stewardship
Working with the courts to ensure the efficient and effective use
of resources is a key AO function. We recognize that it is imperative
that we do all in our power to ensure that the monies appropriated to
the judiciary are utilized prudently; assets and resources are
protected from loss, waste, or abuse; operations are efficient and
effective; financial reports are accurate and reliable; and business
practices comply with applicable laws and regulations.
In fiscal year 2001, the AO undertook an initiative to assist chief
judges and court unit executives in carrying out their fiscal
stewardship and management oversight responsibilities. Current
delegations of authority and other financial controls were reviewed to
ensure they are documented, up-to-date, and clearly defined. The AO
also worked to ensure that judges and court managers are provided with
tools to assist them in their oversight responsibilities. To do this,
the AO convened a group of judges and court executives to develop
improved management oversight and stewardship training programs and
guidance. Seminars for chief district and bankruptcy judges were
delivered, a Handbook on Management Oversight and Stewardship for chief
judges and unit executives was published, and a companion educational
program for court unit executives is being prepared. In addition, a
task force on internal controls is working to develop a model internal
control plan for the courts.
Automation
In the area of automated systems, one of our largest initiatives in
recent years is the Case Management/Electronic Case Files (CM/ECF)
project, which permits courts to receive documents over the Internet
and maintain electronic case filings. We began national roll-out of CM/
ECF in the bankruptcy courts last March and will begin implementation
in the district courts this spring. More than 12,000 attorneys have
already filed documents electronically and, in 2001 alone, over 50,000
people signed up for PACER (Public Access to Court Electronic Records),
which facilitates all electronic public access to court data, including
CM/ECF. This new system will save considerable court resources while
also significantly improving public access to federal court records.
Also during 2001, AO staff began delivering the Probation and
Pretrial Services Automated Case Tracking System-Electronic Case
Management (PACTS-ECM) system to the courts. It is a comprehensive
system designed to help probation and pretrial services officers by
making offender case information more easily accessible. The system
electronically generates, stores, and retrieves investigation and
supervision case information, and provides digital images of offenders.
It also will have remote capabilities to allow officer access while in
the field. The PACTS-ECM system will be an invaluable resource as the
number of offenders released from Federal prison who are serving terms
of supervised release escalates.
Our Bankruptcy Noticing Center had a record-setting year, producing
and mailing 84 million notices. By electronically retrieving data from
court case management systems, it generated paper notices at a fraction
of the time and cost that it would have taken if produced by local
courts. The work is performed under contract and managed by AO staff.
This program has saved the judiciary almost $23 million since 1993. We
are continuing to work with the bankruptcy community to move to an
electronic noticing system to avoid postage costs.
And, as detailed in our Report on the Jury System in Federal
Courts, prepared at the Subcommittee's request and delivered on
February 1, 2002, the judiciary has also nearly completed implementing
an electronic Jury Management System that streamlines jury
administration. At the end of fiscal year 2001, 74 of the 94 district
courts were using the system, with complete deployment expected by June
2002.
In addition to leading the development and installation of these
automated systems, the AO has managed the installation of modern audio/
visual technologies in new, renovated, and existing courtrooms across
the nation. These technologies have proved to be useful tools for video
evidence presentation, video conferencing for presentation of
testimony, and electronic record-taking.
Policy Guidance
The AO also provides the courts with policy guidance and direction.
For example, with the enactment of the DNA Analysis Backlog Elimination
Act of 2000, probation officers are required to collect DNA samples for
certain federal offenders. The AO worked with the Department of Justice
and the Federal Bureau of Investigation (FBI) to determine the type of
samples required and the qualifying offenses. The AO then distributed
procedures to all probation offices on how to determine which offenders
require DNA collection, what steps to take to make the collection, and
how to pay for the collection. The AO also aired an educational
broadcast on the Federal Judicial Television Network on the probation
officers' role in DNA collection and sent the courts instructional
videos produced by the FBI. Because of the in-depth instruction on this
new program, DNA collection by probation officers can be done
consistently across the country to meet the goals of the Congress in
collecting DNA from violent offenders.
Another example is the assistance the AO continues to provide
district courts in implementing the Civil Justice Reform Act to ensure
the just, speedy and inexpensive resolution of civil disputes. Working
with a number of judges, the Administrative Office and the Federal
Judicial Center drafted the Civil Litigation Management Manual. The
manual, which has now been approved by the Judicial Conference and sent
to all district and magistrate judges, presents a compendium of
litigation management and cost and delay reduction techniques that will
assist courts in achieving a high level of case management efficiency.
conclusion
Mr. Chairman, Members of the Subcommittee, I hope I have provided
you with a better understanding and appreciation for the wide array of
responsibilities vested in the AO and the seriousness with which we
undertake them. For every issue that affects the judiciary, every new
piece of legislation that expands federal jurisdiction, every
Administration initiative that impacts federal law enforcement, every
congressional request for information, there are personnel at the AO
who must quickly master the subject area and render expert advice.
I am proud of our record of accomplishment and service to the
courts and the American public. And, as I stated earlier, nowhere were
the capabilities of the dedicated AO staff more evident than in the
hours, days, and weeks that followed the terrorist attacks of September
11, 2001. You can count on my efforts to see that this level of service
not only continues but also improves through the active oversight and
stewardship of the resources you have entrusted to us. I ask your
support in accomplishing this by granting the modest increase the AO is
seeking for fiscal year 2003.
Thank you for giving me the opportunity to be here today. I would
be pleased to answer any questions you may have.
______
Prepared Statement of Gregory W. Carman, Chief Judge, United States
Court of International Trade
Mr. Chairman, Members of the Committee: Thank you for allowing me
this opportunity to submit this statement on behalf of the United
States Court of International Trade, which is a national trial-level
federal court established under Article III of the Constitution with
exclusive nationwide jurisdiction over civil actions pertaining to
matters arising out of the administration and enforcement of the
customs and international trade laws of the United States.
The Court's budget request for fiscal year 2003 is $13,777,000,
which is $674,000 or approximately 5.1 percent over the fiscal year
2002 enacted appropriation. This request will enable the Court to
maintain current services and provide for standard pay and other
inflationary adjustments to base. The Court is not requesting any
program increases. I would like to specifically point out that for
eight consecutive years the Court's requested increases have been held
to below 6 percent.
Since the Court is located in Manhattan, New York City, less than
half a mile away from ``ground zero,'' the events of September 11, 2001
have had a direct impact upon the operations of the Court. On September
11th, the Courthouse was evacuated and remained closed for five
business days. Because the Court is a national court, the majority of
its case filings are received via the U.S. Postal Service. Since there
were no mail deliveries for some time after September 11th, the Court
experienced a backlog in receiving and processing its filings. The
Court's telephone system was disrupted for a number of months and only
became fully operational in December 2001. The Court lost its
connection to the Judiciary's Data Communications Network (DCN),
thereby affecting the Court's ability to send and receive external e-
mail and its capability to record obligations and expenditures in the
Judiciary's Central Accounting System. Smoke from ``ground zero''
filtered through the ventilation system forcing GSA to shut all fans
that provide and circulate air throughout the Courthouse. Public
transportation to and from the Courthouse was disrupted for a period of
time, and continues to be problematic in several areas, thus impacting
the ability of some of those who work at and have business before the
Court to reach the Courthouse.
During the period following the September 11th tragedy, the entire
Court staff worked feverishly to ensure that the services of the Court
continued and that the needs of the Court family, bar and public were
met. The staff developed and implemented alternative methods of
connecting to the DCN and arranged to have the accounting data input
into the Judiciary's Central Accounting System. Court staff also worked
closely with GSA to ensure the physical and environmental integrity of
the Courthouse and to obtain cell phones to address our
telecommunications needs. Due to the staff's dedication and team
approach to problem solving, the obstacles encountered after September
11th were handled effectively.
The Court's fiscal year 2003 request includes funds to pay for
increased GSA space rental and building related services costs. The
requested amount, $276,000, includes funds to pay the Court's pro rata
share of operating and maintaining improvements in the security systems
for the perimeter of the Courthouse and Federal Civic Center,
implemented in fiscal year 2002 as a result of the tragic events of
September 11, 2001.
In accordance with its Long Range Plan, the Court, in fiscal year
2003, remains committed to ensuring that the Court's technology
infrastructure will support its short and long term needs, thereby
permitting the Court to operate efficiently and effectively. To this
end, the Court's request includes funds for continuing the internal and
external implementation of the Court's Case Management/Electronic Case
Files (CM/ECF) System and the related file tracking, and scanning and
indexing solutions. Additionally, there are funds in the request for
several ongoing projects, specifically: (1) the Court's Internet and
Intranet Web servers that facilitate the external and internal sharing
of Court information; (2) the online library automation system that
enables the Judges and Court staff to search electronically for books
and resource materials in the Court's Information Resource Center's
collection; (3) a networked records management and tracking system for
all case records; (4) the Court's new phone system, with unified
messaging capability, that enables the Court to address its current and
future telecommunications needs; and (5) the cyclical maintenance of
Court facilities and the replacement of certain furniture with
ergonomic designs that will help to minimize the risk of injury to
Court personnel.
The Court's fiscal year 2003 request will enable the Court to
expand its in-house training programs in the utilization of automation
and technology. Additionally, this request will support the Court's
effort in the education and training of Judges and Court staff by
ensuring the continuation of the Court's interactive training
environment that enables Judges and staff to view and participate in
training programs broadcast through the Federal Judicial Training
Network.
Lastly, the fiscal year 2003 request also includes funds for the
support and maintenance of security system upgrades implemented by the
Court in fiscal years 1999 through 2002.
The Court's commitment to fulfill its mission through the use of
technology will enable it to enhance the delivery of services to the
Court family, bar and public.
I would like to reaffirm that the Court will continue, as it has in
the past, to conserve its financial resources through sound and prudent
personnel and fiscal management practices.
The Court's ``General Statement and Information'' and
``Justification of Changes,'' which provide more detailed descriptions
of each line item adjustment, were submitted previously. If the
Committee requires any additional information, we will be pleased to
submit it.
______
Prepared Statement of Hon. Fern M. Smith, Director, Federal Judicial
Center
Mr. Chairman, members of the subcommittee: Thank you for allowing
me the opportunity to submit a statement in support of the Federal
Judicial Center's annual request for appropriations. This is the third
request I have submitted since becoming Director of the Center in 1999.
I have been a U.S. district judge since 1988.
First I want to thank you for the 7.5 percent increase in our 2002
appropriation. It is our first program increase, and our second full
current services adjustments increase, in more than ten years. The
seven new positions will be of great assistance in our efforts to
provide the federal courts effective distance education.
This statement summarizes our 2003 request and, like last year's,
provides you a brief accounting of some of the Center's major
activities, in particular: Helping the courts deal with the effects of
September 11; promoting the fair and efficient disposition of
litigation; assessing court administration practices; assisting the
judiciaries of foreign countries; and improving the Center workplace.
2003 request
The requested 2003 appropriation of $21,885,000 represents an 8.7
percent increase to provide adjustments to base and modest program
enhancements: a return to a shorter cycle of recurring education and
training programs for federal judges and three new automation
positions.
The Center's statutory Board, which the Chief Justice chairs,
unanimously approved the request before you today. The Board regards
the funds for more timely education for federal judges to be
sufficiently pressing that it prepared its own brief statement in
support of that portion of the request (the statement is included on
the next page).
Judicial education and training programs ($500,000)
Center educational programs last year reached almost 50,000
participants, the great majority of them non-judge employees who
participated in satellite broadcasts and other forms of distance
education. In most respects, distance education has been a great
success.
For federal judges, the Center provides education in several forms,
such as manuals on scientific evidence, satellite broadcasts about the
USA Patriot Act, and small seminars or workshops to orient newly
appointed judges to their new responsibilities or provide experienced
judges assistance in specific areas, such as mediation or intellectual
property law.
Periodic, general continuing education programs for circuit judges,
district judges, magistrate judges, and bankruptcy judges are a
fundamental element of our education for judges. These programs are our
opportunity to assist judges on a variety of subjects, including
updating them on the caselaw interpreting frequently litigated
statutes, describing new techniques of case management, and reviewing
the ethics requirements that govern judges. Moreover, these programs
present opportunities for judges to learn from their colleagues as well
as from the faculty we assemble and to share innovations that have
proven successful and those that have not.
Until 1999, a judge could attend one of our general continuing
education programs once a year. In 1999, we shifted to an 18-month
cycle as our appropriation declined and because we thought that
distance education could compensate for longer intervals between
programs.
That decision has provoked considerable commentary from judges
across the country to their colleagues on the Center Board and to the
staff of the Center. Based on our analysis, we have concluded that
effective third branch education requires restoring these programs to
their original 12-month cycle. Below is the statement of the Board of
the Center, which explains the importance it attaches to this request.
statement of the board of the federal judicial center
approved february 8, 2002
At a telephone conference meeting on October 22, 2002, the Board
approved the Center's 2003 appropriations request for submission to
Congress. This year as every year, we scrutinized the request to be
certain it is responsible and seeks no more than is necessary for the
Center to do its job.
This year's request includes $500,000 to restore the Center's
ability to offer each federal judge the opportunity to attend a three-
day general continuing education program once a year. Typically, the
Board does not burden Congress with direct communications about the
Center's appropriation, relying instead on the Center director for that
task. The special importance of restoring these programs to an annual
basis merits an exception to that practice.
Of all the comments we receive from other judges about the Center's
work, none is as frequent and widespread as the need to make these
programs available on an annual basis. The Center's general continuing
education programs are the core of its educational effort for judges.
They are essential to helping judges meet the challenges of rapid
change, increasing complexity, and growing numbers in the cases before
them.
We remain committed to the use of non-travel alternatives for third
branch education. The staffs of the courts receive almost all of their
education through this medium. Judges, however, need the additional
opportunity for reflective, interactive discussions with colleagues
about common problems and often-sensitive concerns, and need that
opportunity more frequently than twice every three years.
We appreciate your consideration of this special need.
the board of the federal judicial center
The Chief Justice, Chair
Judge Stanley Marcus, U.S. Court of Appeals for the Eleventh
Circuit, Miami, Florida
Judge Pauline Newman, U.S. Court of Appeals for Federal Circuit,
Washington, D.C.
Judge Robert Bryan, U.S. District Court for the Western District of
Washington, Tacoma
Chief Judge Jean Hamilton, U.S. District Court for the Eastern
District of Missouri, St. Louis
Judge William Yohn, U.S. District Court for the Eastern District of
Pennsylvania, Philadelphia
Magistrate Judge Robert Collings, U.S. District Court, District of
Massachusetts, Boston
Chief Judge Robert Hershner, U.S. Bankruptcy Court, Middle District
of Georgia
Leonidas Ralph Mecham, Director, Administrative Office of the
United States Courts, Washington, D.C.
As the Board statement makes clear, this request in no way signals
the Center's retreat from distance education. Our travel budget, with
this request, would still be more than $1,000,000 below our travel
budget in 1995.
A chart we provided in last year's statement shows that 10 years
ago, Center educational programs reached slightly over 10,000
participants, less than half of them through travel-based programs. Our
programs now reach almost 50,000 participants a year, but the number of
participants in our travel-based programs has actually decreased. We
want to continue to exploit cost-effective, non-travel, asynchronous
learning for the employees of the courts and for judges to the degree
it is effective.
At the same time, we recognize, as do other distance learning
proponents, that some face-to-face educational opportunities are
essential, especially for those with responsibilities such as those of
federal judges. Heavy caseloads and the isolation inherent in
performing judicial duties limit opportunities for judges to meet in a
detached atmosphere and discuss the nuances of changing precedents and
case management techniques. The judge's job is becoming more
complicated. Supreme Court decisions, for example, impose on district
judges significant new obligations to evaluate the scientific merit of
proposed expert testimony and to evaluate patent claims. This new
judicial role requires a greater understanding of science and of how to
manage such cases efficiently. These are not subjects or procedures
that lend themselves to learning solely by computer or video screen.
Three additional positions to enhance the Center's use of distance
education technologies ($192,000)
These three positions are needed to support the Center's long-
standing and increasing reliance on distance education technologies
that I described above. Last year, 90 percent of the roughly 50,000
participants in Center programs, and in local training events using
Center services, used distance education technologies, including but
not limited to the Federal Judicial Television Network, which the
Center began operating in April 1998. Since fiscal 1998, the Center has
been requesting 10 additional positions (video, multimedia, and
automation specialists). With the funds provided in 2002, we plan to
hire: 2 software engineers to exploit the Web to its full potential,
especially as we learn more about interactive computer-based training;
1 automation security officer; 1 additional employee for system
maintenance; 1 television assistant for the Media Production Unit; 1
judicial education specialist; and 1 assistant to our Web master.
Our present plan for the three positions we seek in 2003 is to hire
two additional software engineers and one computer-training
technologist to analyze user needs in the development of projects.
center services and activities
Please permit me to describe, as I did last year, some of the
Center's current activities, as a means of accounting to you for our
stewardship of the funds you provide for the Center.
Helping the courts deal with the effects of September 11
The Center's programs for court leaders and managers continually
stress the need for effective leadership. These programs became all the
more timely now that all federal courts are on security alert with the
rest of the country.
Court leaders and managers must be prepared to deal with safety and
with the apprehensions and tensions of court employees, as well as
jurors, witnesses and others who visit our courts. The Center has a
variety of resources, and is developing some new ones, to assist
courts. We are also producing several Federal Judicial Television
Network broadcasts, including a new safety series, begun in December,
for probation and pretrial services officers, and several broadcasts
for court managers and court staff for leading in and coping with
extraordinary circumstances. Cyber crime and cyber terrorism are the
focus of the next program in our ``special needs offenders'' series for
probation and pretrial services officers. Our conference for chief
district judges next month will emphasize leadership, and we will offer
another round of seminars based on President Lincoln's leadership in
times of crisis. The forthcoming revised edition of our Deskbook for
Chief Judges of U.S. District Courts has a chapter on leadership,
conceived before September 11 but particularly timely now.
We are also helping the courts understand the new legal environment
created in the wake of the terrorist attacks. Our two most recent
national workshops for district judges included sessions titled
``Domestic Courts in an Interconnected World'' and last month we
broadcast ``Terrorism and the Law: The U.S.A. Patriot Act and Military
Commissions,'' a balanced program of analysis by law professors,
Justice Department officials, and legislative staff members about the
new law and about the possible relationships between military tribunals
and the work of federal courts.
We have also been sensitive to the greater anxiety and need for
information of the employees in the Thurgood Marshall building and have
instituted a ``September 11'' lecture series, presenting a program once
a month on subjects ranging from ``living in times of crisis'' to the
nature of Islam.
Promoting the fair and efficient disposition of litigation
I described last year our diverse offerings to help judges honor
their responsibility to dispose of cases fairly, quickly, and
inexpensively. This is the major theme of our initial orientation
seminars for newly appointed judges, and we provide judges an extensive
array of manuals and sourcebooks about case-management techniques.
Recent additions include
--Manual on Recurring Problems in Criminal Trials, Fifth Edition;
--Guide to Judicial Management of Cases in ADR, which helps judges
use alternative forms of dispute resolution in appropriate
cases to provide more effective, less costly, and more timely
justice--The Center for Public Resources, a leading nonprofit
organization promoting the use of ADR, especially in commercial
disputes, awarded the Guide its best book award for 2001;
--Effective Uses of Courtroom Technology, A Judge's Guide to Pretrial
and Trial, which we produced in cooperation with the
nonpartisan National Institute for Trial Advocacy, helps judges
understand the new technologies that counsel use and to manage
cases involving them--in fact, a federal judge, faced recently
with the question of whether a civil defendant unnecessarily
ran up production costs by printing out 3 million pages of
paper cited our Courtroom Technology Guide several times for
the proposition that the parties should have met and conferred
on electronic discovery procedures at the outset of the case;
--Redistricting Litigation: An Overview of Legal, Statistical, and
Case-Management Issues, which will provide judges facing the
wave of litigation this year with a resource to understand the
statutory and caselaw framework for redistricting litigation,
the statistical evidence commonly offered in such cases, and
the vagaries of managing the three-judge district courts
convened to hear them; and
--the Judicial Conference's Civil Litigation Management Manual,
produced pursuant to a legislative mandate with the assistance
of Center staff in cooperation with the Administrative Office.
Assessing court administration practices
An important part of the Center's statutory mandate is ``to conduct
research and study of the operation'' of the federal courts. Often that
research leads directly to educational manuals such as those described
above.
The 28 research projects we are currently conducting for Judicial
Conference committees or the courts themselves include assessment of
three ADR programs, the impact on litigation costs of discovery
involving electronic documents, and the special needs of Native
American offenders under federal court supervision. We also developed
``plain language'' class action notices as models for attorneys to ease
confusion in litigation and help everyday citizens understand the legal
documents sent to them in regard to class actions.
At the request of the chair and ranking member of the House
Judiciary Subcommittee on Courts, the Internet and Intellectual
Property, we are conducting an analysis of public orders of chief
circuit judges' handling of complaints filed pursuant to 28 U.S.C.
Sec. 372(c).
Assisting the judiciaries of foreign countries
In the last twelve months, the Center has provided briefings about
the U.S. judicial system to 394 judges and legal officials from 35
countries.
We also provided more substantial assistance, in the form either of
specific in-country technical assistance or seminars held here in the
United States. I should emphasize, as I did last year, that our
briefings as well as our more extensive projects for foreign
judiciaries are not funded from the Center's appropriation. We provide
this assistance at the request of either U.S. government agencies or
foreign institutions, which fund the travel, lodging, and subsistence.
--Puerto Rico's Interamerican Center for the Administration of
Justice and Public Policy has begun its programming. As
discussed at last year's hearings, we have worked with faculty
members of the University of Puerto Rico Law School to help
establish the Interamerican Center and design its curriculum
and services to teach Latin-American judges how to function
under new criminal procedure codes.
--A public defender seminar and observational experiences that we
developed with the law school at American University, and seven
U.S. federal defender offices, provided Venezuelan chief public
defenders with management skills and techniques to help ensure
effective representation for defendants in the Venezuelan
criminal courts.
--An exchange program in India in which an American delegation,
headed by two members of the U.S. Supreme Court, met with the
Indian Supreme Court, other judges, and members of the Indian
bar, about alternative dispute resolution, case management, and
judicial training. I was pleased to be included in the
delegation and am anticipating a visit by members of the Indian
courts to the United States this year.
--Assistance to the Russian Academy of Justice, the Russian
Federation's counterpart to the Federal Judicial Center.
Academy officials spent a week at the Center and then three
Center officials traveled to Moscow to provide on-site
technical assistance.
--The Center provided major assistance to the exchange program
involving the Mexican Supreme Court and an American delegation
headed by Chief Justice Rehnquist. The exchange occurred
shortly after the September 11 attacks. I and the Center's
deputy director were members of the U.S. delegation. As a
follow-on, we hope to arrange a seminar in Washington on
judicial education techniques requested of us by officials of
Mexico's Instituto de la Judicatura Federal.
--Center staff helped Argentina's federal and provincial judiciaries
improve their judicial education capabilities.
--The Center is working with the judiciary of Thailand on the
development of effective case-management procedures and a
court-annexed alternative dispute resolution program.
We have also provided assistance to the growing number of federal
judges whose dockets include problems in transnational litigation, such
as service of process, discovery in foreign countries, and disputes
over choice of law or jurisdiction. Our research suggests that at least
a third of federal judges face such matters on an occasional basis or
more often. That proportion will surely grow. This year we published
International Insolvency, a treatise primarily for bankruptcy judges
with cases that include international parties, issues, or implications.
Improving the Center workplace
Finally, I should mention developments affecting Center employees.
The Center's statute gives it somewhat greater flexibility in personnel
matters than many federal agencies. For example, we adopted a broad
paybanding system in 1993 and implemented a revised system last year
after we concluded that our initial paybands were too broad to allow
effective position classification.
We have had policies in place prior to 1990 permitting flextime for
all employees and, since 1994, allowing employees to choose a
compressed work schedule. All of our employees use flextime and about
46 percent are on compressed work schedules.
In 1997 we established a telecommuting policy applicable to all
Center employees, subject to managers' discretion. I have to say in
candor that the number of employees who telecommute regularly is
currently only 10 employees or about 7 percent of our present staff.
Partly that is because it is not practical to do some Center jobs--such
as video production at home. We also make telecommuting available to
employees on a case-by-case basis, as the needs present themselves. We
believe, however, that we may be able to do more in this regard. Last
year I appointed a broad-based employee committee to review the full
range of our personnel policies and make recommendations to me. The
committee has reported, and we are currently reviewing the
recommendations and determining how best to adjust our policies to
further our ability to give the taxpayers their due while providing
employees flexible work schedules and workplace options. We know that
the latter often contributes to the former.
To encourage employee use of public transportation, we offer our
employees a transportation subsidy and are looking into increasing the
amount from $30 to $60 per month.
Our employees are also eligible to participate in a number of
supplemental benefits programs, such as: pretax health insurance
premium payments, flexible spending accounts to fund health care, child
care, and commuter costs (beyond those covered by the subsidy noted
above), and a long-term care insurance program. We are grateful to the
AO for developing these innovative policies.
Mr. Chairman, I appreciate this opportunity to explain our
budgetary needs for the next fiscal year and to describe some of the
Center's work and its effect on the work of the courts.
______
Prepared Statement of Diana E. Murphy, Chair, United States Sentencing
Commission
introduction
Mr. Chairman, members of the Subcommittee, thank you for the
opportunity to submit a statement in support of the United States
Sentencing Commission's appropriation request for fiscal year 2003. The
Sentencing Commission is an independent agency within the judicial
branch that seeks to respond to national crime and social problems with
effective sentencing guidelines. Our work is intended to serve both the
statutory purposes of sentencing and the needs of communities, victims,
and families affected by crime and the release of offenders. I
currently serve as chair of this important agency.
Our substantial workload each year includes developing guideline
amendments, analyzing sentencing in federal cases, responding to
Congressional directives, and providing information and training on
guideline application. This year, however, we join with the rest of the
nation in diverting resources from our other critical responsibilities
to address the pressing concerns presented by international and
domestic terrorism, achieving homeland security, and preventing
corporate crime. Even before September 11, the Commission was concerned
about penalties for terrorism offenses, and on May 1, 2001, we sent
amendments to Congress that substantially increased penalties for
nuclear, chemical, and biological weapon offenses. These penalty
increases became effective November 1, 2001, less than two months after
the September 11 terrorist attacks, and terrorism is again on our 2002
agenda as we work to implement the USA PATRIOT Act, Public Law 107-56.
After a long period with no commissioners, the Commission was
reborn with the appointment of a full complement of seven voting
commissioners on November 15, 1999. During the period when there were
no commissioners, the Commission's budget was dramatically cut and
staff levels dropped by approximately 20 percent. The new Commission
nevertheless was able to make progress clearing the backlog of
legislative directives that had accumulated during the prolonged
absence of commissioners because of extensive background work staff had
been able to prepare when there were no other ongoing Commission
activities. This helped us accomplish a productive first amendment
cycle, but in the next cycle in fiscal year 2001 we became painfully
aware of how much our needs surpassed the staffing level we could
afford. This realization then affected our appropriation request for
fiscal year 2002.
In a relatively short period since our appointments, the Commission
has completely cleared the backlog of legislative directives, and
Congress has without exception accepted all of the Commission's
amendments. These many amendments have implemented new legislation,
modified existing guidelines, and resolved circuit court conflicts of
guideline interpretation. We have worked hard and made substantial
progress, promulgating amendments covering sexual offenses against
children, human trafficking and peonage, intellectual property
infringement, identity theft, counterfeiting, money laundering,
immigration offenses, and ecstasy and methamphetamine offenses, among
many others. We would not have been able to accomplish this work if
Congress had not responded to our fiscal year 2001 and 2002 requests to
begin restoring our appropriation to permit us to restaff. We are still
below the level we need, however.
The Commission has also received feedback from other sources which
recognizes the quality of our work. The economic crime package passed
by the Commission has just been described by Professor Frank Bowman in
the Indiana Law Review as ``a milestone in the history of the Federal
Sentencing Guidelines.'' Roughly twenty percent of defendants sentenced
under the Guidelines have committed economic crimes. This package marks
the first time in the history of the guidelines that the Commission has
thoroughly rewritten the guidelines governing a major crime category.
According to Professor Bowman, ``the economic crime package is the
first federal sentencing reform initiative in the guidelines era to
have been conducted in the public eye from its inception'' and is a
product of the Commission's now ``more open and deliberative process.''
These guidelines significantly increase penalties for offenses
involving high dollar losses, and provide more discretion to judges in
sentencing defendants who caused or intended relatively low losses. We
expect that judges and other guideline users will find sentencing of
economic crimes easier and more just as a result. In addition, new
information available this year shows the wisdom of our ecstasy
amendment, which was criticized by many as too harsh when promulgated.
This amendment cycle, the Commission is working on many important
issues, including terrorism, corporate crime and organizational
compliance, drug policy, and Native American issues. We also are
developing amendments to ensure that all forms of sex trafficking are
covered by the guidelines and to protect our cultural heritage and
national treasures, particularly in this time of heightened danger. We
remain constrained by inadequate resources, however. We continue to
feel the effects of the appropriation setback before our arrival and
are simply unable to do the job Congress gave us in the Sentencing
Reform Act with our current staffing level. The Commission requests an
appropriation of $13,200,000 for fiscal year 2003 to enable us to hire
six positions necessary for us to carry out our statutory duties.
New policy initiatives continue to be identified by the Commission,
and new crime legislation continues to flow from Congress, the most
recent being the USA PATRIOT Act. In response to this important
legislation, we expect to submit to Congress on May 1, 2002 a complex
multipart amendment that will incorporate the new federal criminal
offenses and increased statutory maximum penalties created by the Act
into the guidelines. We recognize, however, that our work in this
area--like Congress's--will be of an ongoing nature. Rest assured that
the Commission stands ready to assist Congress in any way that our
resources permit.
The Commission has recently formed an ad hoc advisory committee to
study and make recommendations regarding sentencing guidelines for
corporations and other organizations, particularly on making compliance
programs more effective. The organizational guidelines created by the
Commission have spawned complementary efforts by a number of regulatory
and law enforcement authorities and have led to compliance programs
across the country to prevent and detect criminal conduct. The
organizational guidelines have been in place for over a decade,
however, and suggestions have been made as to how they might be
strengthened. The fifteen person advisory committee is made up of
distinguished and experienced individuals, and we expect this group's
contribution to be particularly timely and important in light of recent
developments involving Enron and Global Crossing. It will first meet
this month, and the Commission expects to begin considering the
committee's recommendations in fiscal year 2003.
In fiscal year 2003, the Commission will continue its assessment of
how well the guidelines are meeting the goals of the Sentencing Reform
Act as they reach their 15th anniversary and have been applied to more
than over half a million federal offenders. The purpose of this effort
is to give Congress the information necessary to evaluate whether the
guidelines are fulfilling legislative intent. We are studying the need
to ensure that federal prisons are being used most effectively to
incapacitate offenders with extensive criminal histories and high
recidivism rates. We are also examining whether quantity should play as
large a role in drug sentencing as opposed to other measures of an
offender's culpability and role in the offense. These projects require
staffing and research costs, but we believe Congress and the public
will find value in the results.
The Commission is also forming an ad hoc advisory committee to
study the impact of the Federal sentencing guidelines on Native
Americans. In June 2001, the Commission held a public hearing in Rapid
City, South Dakota, on issues relating to application of the guidelines
to Native Americans. In response to the testimony (placed on the
Commission website), we conducted three intensive training sessions in
South Dakota in fiscal year 2002 to teach local attorneys, other
counselors, and probation officers about use of the guidelines. We hope
to expand this training to include other states with significant Native
American populations. The type of intensive training involved and the
complexities of managing a meaningful advisory process on Native
American issues will require significant resources in fiscal year 2003.
Congress also has increasingly turned to the Commission for expert
advice on sentencing policy. For example, several leading members of
Congress have requested that the Commission examine the current federal
penalties for drug offenses, specifically crack cocaine and powder
cocaine. The Commission is conducting an intensive project which
involves analyzing the court documents for 1,600 cocaine offense cases
sentenced in fiscal year 2000--representing approximately 20 percent of
all Federal cocaine offenses that year. This endeavor involves tracking
important variables such as the offender's function in the offense, the
geographic scope of the offense, and the presence of certain
aggravating factors, including weapon involvement and bodily injury. We
plan to report the results of that project in the near future. The
Commission is scheduled to conduct a similar study for other major drug
types in the near future and, depending on our resources, results of
those studies could be available to lawmakers in fiscal year 2003. In
addition, the Commission has been monitoring the increased prevalence
of abuse of the pain killer Oxycontin and related congressional
hearings and plans to study whether the guideline penalties for
offenses involving the drug are appropriate.
In fiscal year 2003, the Commission must also struggle to handle
the continuing surge in the number of cases sentenced under the
guidelines, for it is required under the Sentencing Reform Act to
collect the data and analyze these cases. The Commission maintains a
comprehensive, computerized data collection system which forms the
basis for its clearinghouse of federal sentencing information. This
comprehensive database is the basis for the Commission's monitoring and
evaluation of guidelines application, for many of its research
projects, and for responding to the hundreds of data requests received
from Congress and other criminal justice entities each year. We
currently are funded and equipped to process approximately 40,000 cases
annually, but for the past four years there have been well over 50,000
cases each year. The projected caseload in fiscal year 2002 is 67,000,
and there is reason to believe it will be considerably higher in fiscal
year 2003.
This appropriation request continues to build on the progress made
over the past few years, gradually reestablishing the staffing levels
necessary to support a fully functioning Commission.
resources requested
The Commission's appropriation request for fiscal year 2003 is
$13,200,000. We understand increases are generally hard to justify and
that the war on terrorism is costly, but the Commission continues to
struggle as a result of budget constraints and prior staffing
reductions and we are playing our role on national problems. Staff
resources have become increasingly stretched as the agency must analyze
the surge of case filings, develop a significantly increased number of
proposed guideline amendments each year, and respond to more directives
and requests from Congress and training needs. The Commission asks that
Congress approve its request for $13,200,000 in fiscal year 2003 to
enable the Commission to meet these increased demands and to continue
to improve its services.
justification
Sentencing Reform Act Requirements
The Commission was created under the Sentencing Reform Act of 1984
as a permanent, independent agency within the judicial branch. Congress
gave the Commission a dual mission: (a) to establish and maintain a
national guideline system for federal sentencing policies and
practices; and (b) to serve as an expert agency and leading authority
on federal sentencing matters.
In fulfilling these basic requirements, the Commission annually
issues a sentencing guidelines manual that delineates penalty levels
for all federal offenses. In addition to encompassing all federal
offenses, the guidelines manual incorporates amendments approved by the
Commission for newly enacted crime legislation passed by Congress. The
guidelines manual is used by prosecutors, defense counsel, and
probation officers in making sentencing recommendations to the court.
Federal district judges must use the guidelines manual when imposing a
sentence, and it must also be relied upon by all federal appellate
judges and the justices of the United States Supreme Court when
reviewing the imposed penalties. Since the first manual went into
effect on November 1, 1987, over half a million defendants have been
sentenced under the guideline system.
In fulfilling the second component of its ongoing mission, i.e., to
serve as an expert agency and leading authority on federal sentencing
matters, the Commission was given continuing statutory responsibility
and authority in many areas, including ensuring that sentencing
policies and practices provide certainty and fairness, that they avoid
unwarranted sentencing disparities while maintaining enough flexibility
for individualized sentences when those are warranted, and that they
reflect advancements in our knowledge of human behavior as it relates
to the criminal justice process.\1\
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\1\ For a complete list of the Commission's responsibilities under
the Sentencing Reform Act, see Appendix A.
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Demonstrated Accomplishments Following Increased Funding
The work of the Commission generally is determined by three
sources: (1) legislative directives by Congress and new crime
legislation; (2) resolution of conflicting interpretations of
sentencing guidelines among the circuit courts of appeals; and (3)
internal priorities that are set by the commissioners following an
annual solicitation published in the Federal Register. Due to the
extended absence of voting commissioners, the current Commission
focused most of its resources the last two amendment cycles addressing
the significant backlog of legislation. As a result of the Commission's
diligent work in this area, there are no outstanding congressional
directives awaiting Commission action. These legislative matters
covered a wide range of criminal conduct of great concern to Congress
and members of the federal criminal justice system:
Nuclear, Biological, and Chemical Weapons.--In response to the
Chemical Weapons Implementation Act of 1998, and a sense of Congress
expressed in the National Defense Authorization Act for Fiscal Year
1997, in April 2001, the Commission significantly increased penalties
for offenses involving the importing and exporting of nuclear,
biological, and chemical weapons. This amendment became effective
November 1, 2001.
Human Trafficking.--In response to an emergency directive contained
in the Victims of Trafficking and Violence Protection Act of 2000, in
February 2001, the Commission amended the guidelines applicable to
peonage, involuntary servitude, slave trade offenses, and possession,
transfer, and sale of false immigration documents in furtherance of
such human trafficking to reflect the heinous nature of these offenses.
The amendment accounts for new offenses and increased statutory maxima
created by the Act. The Commission currently is considering further
changes to address more adequately sex trafficking of children by
force, fraud or coercion in violation of 18 U.S.C. Sec. 1591. This
amendment also addressed adequate penalties for criminal violations of
the Fair Labor Standards Act and the Migrant and Seasonal Agricultural
Worker Protection Act.
Protection of Children.--In response to a directive contained in
the Protection of Children from Sexual Predators Act of 1998, in April
2000, the Commission amended the guidelines pertaining to certain
sexual abuse offenses and distribution of child pornography to provide,
among other things, enhancements for use of a computer in connection
with a sexual abuse offense against a minor and misrepresentation of an
offender's identity in connection with such an offense. In April 2001,
the Commission provided additional increased penalties for violations
of chapter 117 of title 18 and for sexual offenses against children
that involve a pattern of activity.
Stalking.--In response to a directive contained in the Victims of
Trafficking and Violence Protection Act of 2000, in April 2001, the
Commission increased penalties for certain stalking and domestic
violence offenses.
Identity Theft.--In response to a directive contained in the
Identity Theft and Assumption Deterrence Act of 1998, in April 2000,
the Commission added to the fraud guideline a sentencing enhancement
for violations of 18 U.S.C. Sec. 1028 (relating to fraud in connection
with identification documents).
Ecstasy.--In response to an emergency directive in the Ecstasy
Anti-Proliferation Act of 2000, in March 2001, the Commission
significantly increased penalties for the manufacture, importation, or
trafficking of ecstasy and other ``club drugs'' so that they are
comparable to penalties for other major drugs of abuse.
Intellectual Property Offenses.--In response to an emergency
directive contained in the No Electronic Theft (``NET'') Act of 1997,
in April 2000, the Commission made comprehensive changes to the
copyright and trademark infringement guideline to more adequately
account for the harm caused by these offenses.
Telemarketing Fraud.--In response to a directive contained in the
Telemarketing Fraud Prevention Act of 1998, in April 2000, the
Commission promulgated a permanent amendment that provides for three
separate sentencing enhancements for fraud offenses that involve mass
marketing, a large number of vulnerable victims, and the use of
sophisticated means to carry out the offense.
Telephone Cloning.--In response to a directive contained in the
Wireless Telephone Protection Act of 1998, in April 2000, the
Commission added a sentencing enhancement to the fraud guideline for
these offenses.
Methamphetamine and Amphetamine Trafficking.--In response to the
Methamphetamine Trafficking Penalty Enhancement Act of 1998, and
emergency directives in the Methamphetamine Anti-Proliferation Act of
2000, the Commission has amended the guideline's drug quantity table to
conform to new mandatory minimum sentences and significantly increase
penalties for a given drug quantity, added severe sentencing
enhancements for methamphetamine and amphetamine manufacturing that
creates a substantial risk of harm to human life, the environment,
minors, and incompetents, increased the penalties for amphetamine
offenses such that they are identical to the penalties for
methamphetamine offenses, and increased the penalties for offenses
involving certain precursors of methamphetamine.
Firearms Offenses.--In response to Public Law 105-386, which
amended 18 U.S.C. Sec. 924(c) to create a tiered system of mandatory
minimums and presumed maxima in cases in which a firearm is involved in
a crime of violence or drug trafficking offense, in April 2000, the
Commission promulgated an amendment which incorporated the new tiered
sentencing scheme into the guideline pertaining to violations of
section 924(c). In addition, in April 2001, the Commission added a
sentencing enhancement for offenses involving more than 100 firearms.
The Commission currently is considering a proposed amendment that would
improve the operation of the career offender guideline in the context
of section 924(c) offenses.
College Scholarship Fraud.--In response to a directive contained in
the College Scholarship Fraud Prevention Act of 2000, in April 2001,
the Commission broadened an existing enhancement to specifically cover
offenses involving fraud or misrepresentation in connection with the
obtaining or providing of information to consumers regarding college
scholarships, loans, and grants.
Commissioners Complete Longstanding Policy Work
The Commission also has worked hard to address several policy
initiatives that at different points in time have been supported by
various constituents, including the Department of Justice and the
Committee on Criminal Law of the United States Judicial Conference. In
April 2001, the Commission passed amendments that addressed the
following important substantive areas:
Economic Crime Guidelines.--After a number of years of data
collection, analyses, public comment, and public hearings, the
Commission passed a comprehensive economic crime package that, among
other things, provides significantly increased penalties for mid and
high level fraud, theft, and tax offenses involving moderate and large
monetary losses, consolidated the theft, fraud, and property
destruction guidelines, and clarified the definition of loss to include
all reasonably foreseeable harms. Our work in this area was extensive.
Working in conjunction with the Criminal Law Committee of the Judicial
Conference, the Commission conducted a field test of the proposed loss
definition by surveying federal judges and probation officers and
applying the new definition to actual cases. In addition, in October
2000, the Commission sponsored a two day National Symposium on Federal
Sentencing Policy for Economic Crimes and New Technology Offenses at
the George Mason University School of Law. The symposium was attended
by approximately 150 judges, prosecutors, defense attorneys, and
academicians and provided valuable input on the proposed package.
Money Laundering.--Closely related to the economic crimes package,
the Commission worked with the Department of Justice to develop a
revision to the money laundering guidelines that more accurately
captures the seriousness of the money laundering offense conduct. The
new guideline structure ties the penalties for money laundering
penalties more closely to the penalties for the underlying offense that
generated the criminally derived proceeds, distinguishes between
offenders who launder funds derived from their own criminal conduct as
opposed to those offenders who launder funds for others, and provides
significant sentencing enhancements for aggravating money laundering
conduct. The amendment is the culmination of several years work of on
this area.
Counterfeiting.--In response to recommendations from the Department
of Treasury, in April 2001, the Commission voted to provide increased
penalties for (1) manufacturers of large amounts of counterfeit
currency and (2) offenders who possess counterfeiting paper similar to
the distinctive paper used by the United States, or a feature or devise
essentially identical to a distinctive counterfeit deterrent used by
the United States. This amendment to the counterfeiting guideline
addresses recent changes in how counterfeit currency is produced.
Because of the advent of new and inexpensive technology, such as laser
printers, and the availability of illegal copies of currency on the
Internet, offenders now generally print counterfeit currency on an ``as
needed'' basis, with no substantial accumulation of inventory. Thus, an
alternative mechanism to achieve increased sentences was needed for
this class of offenders.
Safety Valve.--In order to ensure that federal prison space is used
to punish serious offenders, in April 2001, the Commission voted to
expand the applicability of the two level reduction for non-violent,
first time drug offenders who meet the safety valve criteria set forth
at 18 U.S.C. Sec. 3553(f)(1)-(5) to defendants who currently receive a
sentence below five years.
Illegal Reentry.--In response to difficulties experienced by
prosecutors with large caseloads and concerns raised by judges,
probation officers, and defense attorneys along the southwest border,
in April 2001, the Commission voted to amend the guideline pertaining
to illegal reentry to provide a more graduated sentencing enhancement
for offenders with prior aggravated felony convictions. The amendment
reserves the most serious sentencing increase for the most dangerous
offenders and may result in a reduction in the departure rate for such
offenses.
Personnel Needed to Meet Other Statutory Duties
Human resource needs of the agency continue to increase as the
routine annual amendment cycle is reestablished, new policy initiatives
are identified by the reconstituted Commission, and new crime
legislation is enacted by Congress. In order to become a fully
functional agency that performs all of its statutory functions in an
exemplary manner, the Commission needs adequate resources, particularly
in the following areas:
Commission Contending with Sharp Increase in Caseload
In fiscal year 2001, the Commission received court documents for
more than 67,000 cases sentenced under the Sentencing Reform Act
between October 1, 2000, and September 30, 2001. The Commission's
organizational structure and physical facilities, however, are designed
and funded to handle only 40,000 cases per year.
For each case received, the Commission extracts and enters into its
comprehensive database more than 260 pieces of information, including
case identifiers, sentence imposed, demographic information, statutory
information, the complete range of court guideline application
decisions, and departure information. This data is vital to the
Commission's deliberations when modifying the guidelines to adjust
federal sentencing policy in a timely manner. Yet due to staff
vacancies, the Commission even now has a backlog of 20,000 cases that
have not yet been processed. The Commission is studying ways to
streamline our work process and achieve efficiencies, perhaps by
receiving court documents by electronic means. Unless additional staff
are hired, however, the Commission will be unable to code data on each
case sentenced under the guidelines and will be forced to rely on less
reliable statistical sampling to guide its sentencing policy
development and to advise Congress on crime policy. Our work depends on
this critical information.
Increased Inquiries from Congress for Commission Expertise
The Sentencing Reform Act gives the Commission the responsibility
to advise Congress about sentencing and related criminal justice
issues. To fulfill this responsibility, the Commission continues to
provide members of Congress and their staffs with timely and valuable
sentencing related information and analyses. Commission staff have
recently responded to requests from Congressional staff for
comprehensive briefings on current data and research concerning crack
and powder cocaine. Now that the Commission has a full complement of
commissioners, Congress is once again turning to the Commission for
advice on sentencing policy, a development that the Commission
enthusiastically welcomes.
In addition to congressional inquiries such as the request
regarding crack cocaine and powder cocaine penalties noted above, the
Congress often asks the Commission to provide expert testimony at
congressional hearings. For example, on March 21, 2001, I testified
before the Senate Caucus on International Narcotics Control about
changes made to the Federal sentencing guidelines for ecstasy
trafficking, in response to the Ecstasy Anti-Proliferation Act of 2000,
Public Law 106-310. I highlighted the harmful pharmacological and
physiological effects of ecstasy, its trafficking pattern, and use of
ecstasy by minors, as well as the significant impact on sentences for
serious traffickers of ecstasy under the amendment.
Each year the Commission also informs Congress's legislative
deliberations by responding to hundreds of congressional requests for
assistance. These inquiries, both written and oral, include requests
for federal sentencing and criminal justice data, analyses of proposed
legislation and how it may impact the guidelines, explanations of
guideline operation, technical assistance in drafting legislation, and
Commission publications and resource materials.
Research and Information Dissemination
The Commission is rebuilding its research staff in order to analyze
sentencing patterns and practices, respond to inquiries about the
effectiveness of sentencing policies, and assess thoroughly the impact
of proposed guideline amendments and new sentencing related
legislation. The Commission's research staff, for example, has taken
the lead in conducting an intensive coding project on Federal cocaine
offenses that we hope to have completed soon. The research staff will
be tasked with the same role for a similar project for other major drug
types that the Commission plans to conduct during fiscal year 2003,
resources permitting.
The research staff also leads the recidivism study the Commission
has undertaken as part of the 15 year assessment of the guidelines.
When the study is complete, the resulting database would provide the
most comprehensive and sophisticated profile of the criminal histories
of Federal criminal offenders and their rates and patterns of
recidivism. The recidivism study is being accomplished through
cooperative efforts with the Federal Bureau of Investigation, the
Federal Bureau of Prisons, the United States Parole Commission, the
Administrative Office of the United States Courts, with research grants
anticipated from the National Institute of Justice. Following its
statutory directive to monitor the guidelines to insure that they are
meeting the purposes of sentencing required by Congress, the Commission
is undertaking this valuable endeavor that will require significant
staff resources.
The Commission also continues to advance its statutorily directed
research and information dissemination through presentations of
analyses at numerous sentencing policy symposia, including the annual
meeting of the American Society of Criminology. In fiscal year 2002,
Commission staff made presentations on, among other things, Federal
drug sentencing policy and drug trafficking trends, sexual predator
offenses, and immigration offenses.
The agency annually publishes an updated Guidelines Manual and an
Annual Report and accompanying Sourcebook of Federal Sentencing
Statistics, which contains statistical charts, tables, and analyses on
sentencing pattern and practices gathered from the agency's extensive
database. The Commission's sentencing database includes information on
sentences imposed for every single district in the country. The
Commission also publishes an annual Guide to Publications and Resources
and continues to add a variety of publications and sentencing data to
its award winning Internet web site.
Increased Training Needs for Larger Federal Criminal
Justice System
Over the last several years, as Congress has devoted increased
resources to law enforcement, the number of federal judges,
prosecutors, probation officers, and defense attorneys who require
training and assistance on how to use the guidelines has increased
accordingly. The Sentencing Reform Act requires the Commission to
provide guideline training, in part because training promotes
uniformity in guideline application and thereby reduces sentencing
disparity, both goals of the Act.
Commission staff provided training on the sentencing guidelines in
2001 to more than 2,500 individuals at approximately 50 training
programs across the country, including ongoing programs sponsored by
the Commission, the Federal Judicial Center, the Department of Justice,
the American Bar Association, and other criminal justice agencies. Each
year the Commission cosponsors a National Sentencing Seminar to train
hundreds of probation officers, prosecutors, and defense attorneys on
guideline application. The program is so popular that we must turn away
people due to the high volume of interest. Commission also play a major
role preparing for and participating in the biennial National
Sentencing Institute sponsored by the Federal Judicial Center and
attended by a large number of Federal judges. Also, as noted above, in
fiscal year 2002, the Commission conducted three days of intensive
training in South Dakota as we embarked on a push to improve guideline
training in and around Indian County. In fiscal year 2003, we hope to
expand those efforts to reach other areas of the nation with large
Native American populations, such as Arizona and New Mexico.
The Commission also maintains a telephone HelpLine service to
answer guideline application inquiries from federal judges, probation
officers, prosecuting and defense attorneys, and law clerks. To expand
the availability and cost efficiency of training and information
sharing, the Commission has joined the Federal Judicial Center and the
Administrative Office of the U.S. Courts in launching a satellite
television network to provide programming on sentencing related issues.
The Commission makes a regular contribution to a news series for
probation and pretrial services designed to update officers on
important information regarding the Commission and its activities.
However, if the Commission is not provided sufficient funding to
restore personnel in other areas of the agency, its quality of training
will suffer because its training staff may have to be utilized for more
pressing projects as they arise.
As a result of its leadership in the corporate compliance area,
Commissioners and staff are regularly invited to share their expertise.
The Commission and the Ethics Officer Association (EOA) jointly sponsor
a series of regional forums about implementing the organizational
guidelines. The Commission also regularly addresses national and
regional compliance organizations and responds to numerous inquiries on
the organizational sentencing guidelines and compliance issues.
Interest and inquiries come from governmental agencies, corporations,
industry coalitions, nongovernmental organizations, and academic
institutions, both within the United States and overseas.
Commissioners Face Large Number of Circuit Conflicts
In addition to its other work, the Commission has primary
responsibility to resolve conflicts in court interpretation of the
guidelines. See Braxton v. United States 500 U.S. 344 (1991). There are
presently more than 40 conflicts between circuit courts, many of which
accrued during the absence of voting commissioners.
The Commission has made significant progress in reducing the number
of outstanding circuit conflicts. In fiscal year 2000, the Commission
promulgated amendments that resolved five circuit conflicts, and in
fiscal year 2001 another nineteen. Among the conflicts resolved last
year are: (i) whether admissions made by the defendant during a guilty
plea can be considered ``stipulations'' for purposes of Sec. 1B1.2(a);
(ii) whether the enhancement in the aggravated assault guideline for
use of a dangerous weapon during such an assault is impermissible
double counting if the weapon used was not inherently dangerous; (iii)
whether the enhancement in the fraud guideline for misrepresenting that
one acts on behalf of a charitable, educational, religious, or
political organization, or a governmental agency applies to a defendant
who works for the entity but diverts benefits; and (iv) whether a
reduction for mitigating role is precluded in the case of a single
defendant drug courier whose base offense level is determined by the
quantity personally handled.
The Commission intends to continue resolving circuit conflicts in
the process of dealing with other policy work. In addition to
monitoring case law to identify circuit conflicts, the Commission
continues to follow cases interpreting New Jersey v. Apprendi, 120 S.
Ct. 2348 (2000) (other than the fact of a prior conviction, any fact
that increases a penalty for a crime above the statutory maximum must
be submitted to a jury and proved beyond a reasonable doubt) to assess
its potential impact on the guidelines.
summation
The Commission has worked very hard with limited resources to clear
the significant backlog of crime legislation that await implementation,
long standing policy initiatives that need completion, and circuit
conflicts that require resolution. With the necessary resources, in
fiscal year 2003 the Commission expects to continue work in important
policy areas such as terrorism offenses, corporate misconduct, the
impact of the guidelines on Native Americans, calibrating criminal
history to account for the risk of recidivism, and drug penalties that
account for the culpability of the offender. We cannot undertake a
policy agenda of any real significance without appropriate staff
levels, however, given the large increase in our caseload and the many
demands on us in working for an effective, certain, and fair sentencing
system.
Appendix A: Statutory Responsibilities
The responsibilities of the United States Sentencing Commission
under the Sentencing Reform Act are:
--ensuring that sentencing policies and practices provide certainty
and fairness, that they avoid unwarranted sentencing
disparities while maintaining enough flexibility for
individualized sentences when those are warranted, and that
they reflect advancements in our knowledge of human behavior as
it relates to the criminal justice process;
--developing means to measure the effectiveness of sentencing, penal,
and correctional practices in meeting the purposes of
sentencing;
--monitoring the performance of probation officers regarding
sentencing recommendations, including application of the
guidelines;
--issuing instructions to probation officers concerning the
application of the guidelines;
--establishing a research and development program within the
Commission to serve as a clearinghouse and information center
for information on Federal sentencing practices;
--consulting with federal courts, departments, and agencies in
developing, maintaining, and coordinating sound sentencing
practices;
--systematically collecting data from studies, research, and the
empirical experience of public and private agencies concerning
the sentencing process;
--publishing data concerning the sentencing process;
--systematically collecting and disseminating information concerning
sentences actually imposed on more than 61,000 cases sentenced
in the Federal district courts each year (and on about 1,000
appellate decisions on sentencing) and the relationship of
those sentences to the factors judges are required to consider
under 18 U.S.C. Sec. 3553(a);
--systematically collecting and disseminating information regarding
the effectiveness of sentences imposed;
--conducting seminars and workshops around the country to provide
continuing studies for people engaged in the sentencing field;
--conducting periodic training programs for judicial and probation
personnel and other persons connected with the sentencing
process;
--making recommendations to Congress on changes that might be made to
statutes relating to sentencing, penal, and correctional
matters that would help to carry out effective, humane, and
rational sentencing policy;
--holding hearings and calling witnesses to assist the Commission in
the exercise of its powers and duties;
--recommending any changes in prison facilities that may be necessary
because of the sentencing guidelines; and
--performing any other functions necessary to permit federal courts
and others in the federal criminal justice system to meet their
responsibilities in the sentencing area.
______
Prepared Statement of Haldane Robert Mayer, Chief Judge, U.S. Court of
Appeals for the Federal Circuit
Mr. Chairman, I am pleased to submit my statement to the Committee
for this court's fiscal year 2003 budget request.
Our 2003 budget request totals $21,893,000. This is an increase of
$2,548,000 over the 2002 approved appropriation of $19,345,000. Thirty-
one percent of the requested increase, $799,000, is for mandatory,
uncontrollable increases in costs. The remaining increase of $1,749,000
is for funding of additional positions and other program increases.
request for program increases
A total of $1,749,000 for program increases is requested. The
breakdown and further justification for each amount follows. The
justifications for the program increases are separated into three
categories: staffing; renovations; and technology advancements.
Two New Staff Positions
The court requests $209,000 to cover the cost of two new positions
for nine months in fiscal year 2003. The positions requested are for a
Deputy to our Circuit Executive position ($130,000) and a Computer
Security Specialist ($79,000).
The position of Deputy to the Circuit Executive has become
necessary to assist the Circuit Executive with the variety of duties
assigned to that office. The Deputy would act in the absence of the
Circuit Executive as well as assist in overseeing the offices that
operate under the direction of the Circuit Executive.
We also request funding to hire a full-time permanent position
entitled Information Technology Specialist. Upon completion of a formal
security review and assessment of the court's electronic information
system, the National Security Agency concluded that the court should
hire an Information Technology Specialist. This person would monitor
and protect the security of the court's information system. The
Information Technology Specialist would insure that all electronic
communications and information in judges' chambers and staff offices
are protected and secure from compromise or unlawful release.
Courtroom Renovations
The court is again requesting $900,000 to begin the long-overdue
renovations of our courtrooms to bring them up to 21st Century security
and technology standards to benefit the judges, attorneys, and
litigants. There have been no upgrades to our courtrooms, with the
exception of new carpet, since the opening of the courthouse in 1967.
We requested this amount in our 2001 and 2002 budget requests. We
have taken our request to GSA with no favorable response. It would be
impossible to reprogram current appropriated funds to renovate the
courtrooms without reducing our staffing levels or cutting back on the
funding for other necessary items such as IT equipment and lawbooks.
Improvements in the Court's Courtroom and Courthouse Computer
Technology and Security
We request $640,000 for program advancements in the area of
technology in the courtrooms, judges' chambers, and staff offices:
$150,000 of this amount is to upgrade the court's e-mail system in
order to be a part of the new judiciary-wide e-mail system now being
implemented nationwide.
The Judicial Conference of the United States recognized that
courtroom technologies are a necessary and integral part of courtrooms.
Based on those findings and the fact that the Administrative Office of
the U.S. Courts (AO) currently is implementing this program in courts
across the country, the court is requesting funding to upgrade the
courtroom technology in one of our courtrooms. The figure of $215,000
was provided to the court by the AO based on its experience to date
with upgrading courtrooms. Not only would this benefit the Judiciary
and the court, it would be a benefit to counsel and litigants. One
phase of this new technology will give counsel the opportunity to argue
a case offsite while connected to the courtroom as if the attorney were
in the courthouse, thus cutting expenses for the litigant.
We request $205,000 to develop and augment a disaster recovery plan
for the court's electronic data system. In the event of a major
disaster, it will be necessary to access the court's computer network
from a remote site as well as locally. This amount is a one-time cost
estimate to put this recovery system in place.
The National Security Agency performed a study of court security
and recommends improved computer security hardware and software to
assist in the detection and prevention of electronic computer attacks
and intrusions to the court's computer network. The cost of upgrading
the security of the court's computer system is $70,000.
I would be pleased, Mr. Chairman, to answer any questions the
Committee may have or to meet with the Committee members or staff about
our budget requests. Thank you.
PANEL ATTORNEY RATE INCREASE
Senator Hollings. Judge, that is the key, working with us
and particularly our staffs here because we have got a good
bipartisan staff that works on these issues. We will not have
any difficulty. In fact, I had a chance last evening to go over
each one of these items and I find them, generally speaking, in
good order except for when you include an adjustment to the
base here on a defender services pay increase. You jump that up
from $90 an hour to $113 an hour for panel attorneys.
Judge Heyburn. Right.
Senator Hollings. What is the justification for that, sir?
Judge Heyburn. Well, I think there are two separate issues
here. We have talked with this committee and the House, as
well, about the need to increase the panel attorney rate and we
were very, very gratified last year when you increased the
hourly rate paid to private attorneys who represent indigent
defendants in Federal court. You raised the rate from $75 in
court--it was even lower in some places--and $60 out of court,
to $90 an hour in and out of court, which is a wonderful
achievement and tremendously appreciated.
We had requested $113 an hour, and at the time we put
together this budget, we had not learned of the results of your
final conference action last year. So the recommendation of the
Judicial Conference and our committee still stands at $113 an
hour as what we believe is necessary to make up for, I believe
it was, 15 years where there was no rate increase.
But you have raised the question, and it is a very
legitimate and proper one, now that the rate has been raised to
$90 an hour. We do not know, of course, what impact that rate
is going to have on the system as a whole because the rate does
not go into effect until May. We know it is going to be
positive. We still believe that the rate needs to be raised to
$113, but it is quite possible that the $90 rate will have a
tremendously beneficial impact.
RATE INCREASE AS AN ADJUSTMENT TO BASE
As to the second issue, whether or not the request for $113
should be categorized as an adjustment to base, I think you
raise a very good question. I think an argument could just as
well be made that this is a program increase rather than an
adjustment to base. We include it as an adjustment to base
because the CJA statute provides for annual inflationary
adjustments and that's what the $113 rate represents. So we
considered it like a pay increase, which we consider an
adjustment to base. However, I think it is fair enough for you
to characterize it as a program increase as well. I think it is
certainly a gray area in terms of how you want to categorize it
in the budget process and I think you raise a good point.
Senator Hollings. Thank you, sir.
Senator Gregg.
COST OF TERRORISM TRIALS
Senator Gregg. Yes, Judge. I am wondering, and maybe you
can get some of your colleagues to comment on this, have you
done an estimate as to how much it will cost us in additional
funds if we have to run another trial along the lines of what
we did for the first World Trade Center bombing? If we bring
the September 11 terrorists back here and put them through a
criminal justice process, I presume the costs are going to be
staggering. Do you have a reserve fund for that? Have you tried
to anticipate some of these additional costs of trying these
terrorists in the United States?
Judge Heyburn. In our budget request that we present to you
today, the possibility of these very expensive trials is not
included. We recognize that they may occur, but the estimates
for defense costs and other associated related costs of
security and the like are based upon the experience that we are
now having in 2002. So the estimate, the way we present our
budget, is based on the actual 2002 numbers, not a projection
of what may happen.
Senator Gregg. So you do not have like a reserve fund,
which is reasonable----
Judge Heyburn. If there was a significant expense in 2003
for a trial such as that, we would simply have to redeploy our
resources, and if we have a carryover, perhaps those funds
could be used. But it is not specifically a part of our budget.
Senator Gregg. Would you expect to submit a supplemental to
us, then, if that were the case?
Judge Heyburn. In the past, for instance, Oklahoma City,
the associated trial costs were significant. There was quite a
bit of comment from both the Senate and the House about the
expense of defending those persons with private lawyers at
Federal expense. I do not know the exact amount, although it
was considerably less than the prosecution's expense. But, we
could get that to you. I know it was in the millions of
dollars. We did not ask for a supplemental on that occasion. It
would have to be a fairly extraordinary expense before we
would, I think, come in with a supplemental.
[The information follows:]
Summary of Funds Expended for the Representation and Defense of Timothy
J. McVeigh from Arrest through Sentencing
Attorneys............................................... $6,741,015
Attorney Support Staff, Housing, and Security........... 1,467,947
Investigators........................................... 1,976,583
Expert and Consulting Services.......................... 3,053,405
Travel.................................................. 541,885
--------------------------------------------------------
____________________________________________________
Total............................................. 13,780,835
OFF-SITE COURT OPERATIONS SUPPORT CENTER
Senator Gregg. The Administrative Office building over here
is a pretty pricey place, very nice, has wonderful trees
inside. Of course, coming from New Hampshire, we are wondering
why the trees are not outside rather than inside, but that is a
technical point.
It would seem that most of the functions of that office
could be done somewhere outside of the District and that the
security issues raised by 9/11 might imply that it might be
better to do those outside of the District. Are you taking a
look at moving the Administrative Offices outside the District
and then freeing up that space for utilization for departments
or agencies which might have to, by their nature, be here in
Washington?
Mr. Mecham. Do you want me to respond to that?
Judge Heyburn. Yes.
Mr. Mecham. Pursuant to direction from your committee, we
are looking at the necessity for some offsite space to meet
emergency needs. One of the things we discovered from 9/11 and
the anthrax situation is that we had inadequate communications.
We could not communicate with the Southern District of New
York, which was virtually paralyzed, and we realized that we
are terribly vulnerable. We could be in a position, if the
building were destroyed or otherwise put out of action, where
we could not pay the judges, the court staff, or the jurors.
Our entire communication system could break down.
However, through your good help, we have a data
communications network now that links all courts and judges
throughout the United States. So, we applauded your request and
are busily engaged in endeavoring to comply with a plan for
certain offsite functions.
RELOCATION OF THE AO
With respect to moving the AO, the AO is the principal
administrative office function for the entire Federal
judiciary. The functions we perform must be done centrally. We
have substantially decentralized much of what we used to do
here. Starting in 1990, I urged strongly that substantial
functions be delegated out to the courts, which they were, and
I think we have struck a nice balance.
In the meantime, the courts have grown over the last 6
years by about 15 percent. Our staff has stayed essentially
flat because we had decentralized substantial activities. But
we still must have a central communication system. You cannot
run that in 92 different courts.
Senator Gregg. Yes, but my point is, it does not need to be
in the District of Columbia.
Mr. Mecham. I think it would be very important to have it
here. The Chief Justice is our boss. If you want to put us
1,000 miles away from our boss, that is something you could do.
I mean, you have that right, but I would not urge that you do
that. Many of our functions relate to the General Services
Administration. We work with them on buildings and grounds and
the planning of buildings. We work closely with the U.S.
Marshals Service. It is very important that we be linked to
them. We also support the Judicial Conference of the United
States, the policy making organization which is headquartered
here in Washington. They will be meeting here next week under
the direction of the Chief Justice.
Senator Gregg. So you are saying, basically, you think you
need to be in the District of Columbia?
Mr. Mecham. I would say very strongly that the AO needs to
be.
Senator Gregg. Rather than in South Carolina or----
Mr. Mecham. Or New Hampshire, even, perhaps New Mexico.
Judge Heyburn. We would love to be in South Carolina.
Judge Michael. West Virginia.
Judge Heyburn. We like West Virginia.
Judge Michael. Very open spaces.
Mr. Mecham. I personally would like to move it to Salt
Lake, now that the Olympics are over, and have it out there.
But, I do not think it would be very practical, Senator, in all
candor, and I tell you that as somebody on the way out the
door, not coming in the door.
Senator Gregg. That was my point. I wanted to get that
information. But you are setting up the emergency--you are
going to get us some papers on how you are going to be able to
handle an emergency that might shut down your----
Mr. Mecham. We shall, and thanks for asking us to do that.
Senator Hollings. Senator Domenici.
SERVICES FOR THE MENTALLY ILL WITHIN THE JUDICIAL SYSTEM
Senator Domenici. Thank you, Mr. Chairman. Two parochial
questions and one general one. Let me take the general one
first.
I have a great concern for the mentally ill and the courts
and the mentally ill and the prisons and jails. It is a
startling reality that in the United States, there are more
seriously mentally ill people in jails--county and city jails
across the land--than there are in all of the hospitals and
institutions that we have that try to take care of them. At the
national level, non-Federal, we are doing some work with mental
health courts with a very small amount of money, thanks to the
Congress, and they get to be experts at how to handle the
mentally ill that are coming before them.
I hope we can develop a lot more expertise and do a better
job across the board, but what does the Federal Government and
the judicial system that we call the Federal system, what do
they do with reference to mentally ill defendants or people
that are accused? What is the process? Is there any way that
was built in to help them and to treat them differently?
Judge Heyburn. I can answer that in a couple of ways.
Number one, and just in terms of the facts and figures, I think
partly with your urging and the urging of others in Congress,
we have dramatically increased the attention and funding for
the U.S. Probation and Pretrial Services System for services to
mentally ill persons who are within the judicial system. I
think the resources that are devoted to that have increased 50
percent over the last couple of years.
From personal experience as a district judge, we from time
to time come into contact with defendants who have serious
mental illness, whether it is a question of their mental
capacity to stand trial or some other mental problem. My
experience with the Federal health system has been a very
positive one. They are professional, and at least as far as
Kentucky is concerned, the hospitals that we can send these
people to are within a reasonable proximity.
They do a good job, and these are very, very difficult
problems when you have a person who has committed perhaps a
serious crime and yet is now--and may have been at the time--
under some mental incapacity and is incapable of standing
trial. It is a difficult problem for a judge and it is also, of
course, difficult for the psychiatrist involved.
I have been very impressed with the ability of the medical
services, which are not directly under our control, of course,
to respond to our particular needs. But, I do not know if that
is the general experience around the country.
Mr. Mecham. Could I just add one thing to that?
Judge Heyburn. Please.
Mr. Mecham. One of our responsibilities here in Washington
is to provide administrative support for Federal probation and
pretrial services throughout the country.
Senator Domenici. Right.
Mr. Mecham. Judge Heyburn is a chief judge and he has a
chief probation officer and a chief pretrial services officer,
as do all the courts. There were about 8,700 offenders and
defendants, or about 6 percent of the 140,000 under
supervision, that received mental health treatment in fiscal
year 2001 at a cost of $8.4 million. It is an expanding thing,
I regret to say, but yet it is important to do and we are doing
our part and we are grateful for the support that this
committee has provided that enables us to do that. As Judge
Heyburn pointed out, we have had a 50 percent increase in
mental health expenditures during the last 2 years.
I should point out, Senator, that we actually supervise
more people through the probation system, about 140,000, than
there are in the Federal penitentiaries, about 129,000, and we
do it at a cost of about $11 per person and the Federal
penitentiary is about $55. So we are a bargain for you.
Senator Domenici. If you could do them all and we would not
need any prisons, that would be fine, but it does not work that
way.
Mr. Mecham. We would probably have to build some prisons to
put them in.
Senator Domenici. Let me, Mr. Chairman, just take a moment
and exchange here with you and for the record some facts with
reference to the mentally ill and the court system and the jail
system.
Actually, more and more medicines are being developed that
help even the most severely mentally ill--schizophrenics, manic
depressives, et cetera, but those drugs, in order to be
effective, are new, they are experimental, and they are very
expensive. One of the problems that we have, whether it is in a
county jail or a city jail or a State jail, is that there is
not enough money to provide the medication that is necessary to
inhibit the hallucinations with which a schizophrenic attempts
to live.
Do we have any such problem with reference to the
availability of resources for medicine, medication, or would
that be under somebody else, Mr. Mecham? Do you have any way of
telling us about that, Judge?
MEDICATIONS FOR THE MENTALLY ILL
Judge Heyburn. I think there is, again, from my own
experience as a district judge, there is always a problem. The
problem that is least controllable for us is when a defendant
is incarcerated prior to trial. At that point in time, even
though they are under the supervision of the Marshals Service,
they are usually placed in a State facility, a State jail, a
county jail for that temporary period of time, and on those
occasions and during that limited period of time, it is more
difficult for us to ensure that they get the proper medicines
that they need, and it comes up more often than we would like.
Now, when they are actually under Federal supervision, that
is not in direct custody but under supervised release, under
home detention, then they are more directly under the
supervision of the Probation Office and their ability to get
the proper medicines is improved as I think the people are much
more attentive.
But as you can imagine, with thousands of county jails
around the country where Federal prisoners may be held for
short times in custody, the quality control, if you will, is
just simply not the same as when they are in the Federal
system.
Senator Domenici. I found out about it today, and I am
going to try to do something to see if we cannot put some
resources into making sure that medicines are available. At
least we can do that much.
STATUS OF LAS CRUCES FEDERAL COURTHOUSE
I have two quick questions about New Mexico. First, I do
not think I have to state the background facts with reference
to New Mexico as a border State and the city of Las Cruces,
which is on the border, and from which the District of New
Mexico is now trying two-thirds of their criminal cases. I
believe we fit the definition of a district in crisis. I would
like to ask, with reference to Las Cruces which is a city about
220 miles from Albuquerque and on the border, about the need
for a new courthouse. It is desperately needed. What is the
status of the courthouse?
Mr. Mecham. Through your good efforts, Senator, the Fiscal
Year 2002 Treasury and General Government Appropriations Act
included $4.1 million for design of the Las Cruces courthouse.
Construction is going to cost about $46 million and it is
scheduled under the judiciary's 5-year prioritized plan, which
obviously you have to agree to or disagree with for next year.
It is the seventh item under the 2004 list. It will not be
ready for construction in 2003 and therefore was not considered
for our 2003 prioritized list. We were directed by Congress to
develop priorities. It was a painful process, but we did it.
So it depends a lot, Senator, on whether or not we can fund
the projects for 2003. The President only recommended one-
fourth of what we need to cover the buildings that are in
fiscal year 2003, so if we go down the priority list, if a lot
of those are delayed, then that is going to push the Las Cruces
project farther down in 2004.
Senator Domenici. Thank you very much.
ADDITIONAL JUDGESHIP FOR NEW MEXICO
There is a bill working its way through conference which
would provide an additional Article III judgeship for New
Mexico, which the judges there have indicated they would like
to house in the city of Las Cruces, county of Dona Ana, where
this enormous build-up of cases is occurring. Could I ask,
based upon your knowledge, would you agree that New Mexico
should have an additional Article III judge if we are going to
have some border judges in a bill which is in conference?
Mr. Mecham. Not only do we agree, we strongly support it.
It is part of legislation which we have submitted to Congress,
which regrettably has not been introduced. We would like to see
54 new judges, but there is a particularly acute need in the
border States, as you point out, including New Mexico, which
has six district judgeships but has a 681 weighted case filing.
We ask for a new judge at 430. Your judges are working hard and
their health is being compromised in at least one case that I
know of. We strongly support an additional Article III
judgeship for New Mexico.
The Senate has not passed a judgeship authorization bill
since 1990, even though the workload has gone up. Mercifully,
your committee, however, has taken the lead to authorize 10 in
1999 and 9 in 2000, and I noticed that the Senate, just before
you adjourned last year, had put 9 judges in the Department of
Justice authorization bill. Unfortunately, it does not include
New Mexico.
Senator Domenici. I understand.
Mr. Mecham. It includes five for the Southern District of
California, two for Texas, two for North Carolina, all of which
are acutely needed, but New Mexico is not in there. I would
hope you would talk to the conferees, Senator----
Senator Domenici. We are.
Mr. Mecham [continuing]. In support of New Mexico and maybe
some of these other judgeships.
Senator Domenici. That is why we asked you, so we can go
there and tell them that you agree.
Mr. Mecham. We agree 100 percent.
Senator Domenici. Thank you very much, Mr. Chairman.
Senator Hollings. Thank you. Senator Reed, you are such a
quiet and polite Senator, I did not----
Senator Reed. I want to apologize. There is a hearing in
Armed Services with respect to the CINCs from the Pacific and
SOUTHCOM and Korea, so I apologize and I have no questions at
this time.
Mr. Mecham. Senator, can I just make one comment while
Senator Reed is here?
Senator Hollings. Certainly.
NEW FEDERAL DEFENDER OFFICE
Mr. Mecham. Chief Judge Torres has complimented Senator
Reed to me and said what a great job he did in supporting a new
defender office in Providence. He phoned me to say that Senator
Reed had already called him to tell him your committee has
approved it and I just want you to know your judges approve of
your good work, Senator.
Senator Reed. I know I came here for some reason.
ADDITIONAL COMMITTEE QUESTIONS
Senator Hollings. Very good. Judge Heyburn, we thank you
and your associates here this morning. Thank you very much.
Judge Heyburn. Thank you very much for allowing us to be
here.
[The following questions were not asked at the hearing, but
were submitted to the judiciary for response subsequent to the
hearing:]
Questions Submitted by Senator Patrick J. Leahy
junkets/efforts to lobby the judiciary through seminars
Question. A number of groups and individuals, including Senator
Feingold, have expressed concerns about the practice of sitting judges
attending resorts for educational seminars bankrolled by corporations
and other groups interested in shaping and influencing the development
of law in ways that would benefit those who fund such seminars, for
example in the area of environmental law or takings law. The Chief
Justice has defended privately funded judicial education seminars.
Nevertheless, I would like to ask each of you whether you have any
concerns about the appearance of impropriety created by the attendance
of federal judges at educational seminars funded by private groups,
including groups that may have interests in the outcome of federal
litigation?
Answer. Several ethical guidelines bear on the question whether a
judge may properly attend a private educational seminar. Judges are
under a statutory duty by virtue of 28 U.S.C. Sec. 455(a) and (b)(1) to
disqualify themselves from any case in which they have a ``personal
bias or prejudice concerning a party'' or otherwise where their
``impartiality might reasonably be questioned.'' See also Canon 3C of
the Code of Conduct for United States Judges. Specific advice about
attending private seminars is contained in Advisory Opinion No. 67,
issued by the Judicial Conference Committee on Codes of Conduct.
Additionally, the Judicial Conference Gift Regulations and Canon 5C(4)
of the Code of Conduct for United States Judges permit judges to accept
reimbursement of expenses to attend law-related activities.
The advice contained in Advisory Opinion No. 67 sets out three key
principles: (1) whether the sponsor of the seminar is involved (or
likely to be involved) in litigation before the judge; (2) whether the
source of funding for the seminar is involved (or likely to be
involved) in litigation before the judge; and (3) whether the subject
matter of the seminar relates to the litigation in which the sponsor or
funding source is involved. The opinion advises judges that it would be
improper to participate in seminars organized by non-governmental
entities if the sponsor or funding source is involved or likely to
become involved in litigation and the topics covered in the seminar are
related to the subject matter of such litigation. The opinion also
observes:
``The education of judges in various academic disciplines serves
the public interest. That a lecture or seminar may emphasize a
particular viewpoint or school of thought does not in itself preclude a
judge from attending. Judges are continually exposed to competing views
and arguments and are trained to weigh them.''
The analysis in Advisory Opinion No. 67 was endorsed in the most
recent federal circuit decision to review this subject, Aguinda v.
Texaco, Inc., 241 F.3d 194 (2d Cir. 2001). That decision specifically
addressed the question of funding and support for private educational
seminars. The court ruled that a party's ``indirect and minor funding
role'' in a seminar, coupled with the lack of connection between the
litigation and the seminar, did not render a judge's attendance at the
seminar improper. As the court observed, ``[n]o reasonable person would
believe that expense-paid attendance at such [private seminar] events
would cause a judge to be partial, or to appear so, in litigation
involving a minor donor--whether a party or counsel to a party--to a
bar association, law school, or program administering a particular
seminar.''
Over the years, judges have benefitted from educational programs
offered by bar associations, universities, law schools, nonprofit
foundations, and other private organizations. It is difficult to
determine in the abstract whether a judge's attendance at a particular
private seminar will give rise to impartiality concerns. Specific
information about the sponsor of the seminar, the source of funding,
their involvement in litigation, the content of the seminar, and the
judge's relationship to such litigation all bear on the question
whether a judge's participation is proper or improper. Additionally,
judges who properly attend a seminar may later find it necessary to
consider recusal if a case appears on their docket involving the
sponsor or source of funding. These factors require consideration on an
individual basis.
Question. In what ways do you think that the financial disclosure
process could be improved to provide for more complete disclosure of
the costs of attendance at such seminars, whether paid for directly by
the private group as a ``gift'' or paid for by the judge and then
``reimbursed'' by the private group?
Answer. The disclosure requirements set forth in section
102(a)(2)(B) of the Ethics in Government Act of 1978 (5 U.S.C. app.
Sec. 102(a)(2)(B)) are quite adequate for reporting reimbursements.
Each filer is required to report the source, location, date, and nature
of expenses reimbursed by the source. For judges, conflict of interest
recusal is based on the identity of the source and not the cost of such
reimbursement.
Question. Would you agree that it would be beneficial for financial
disclosure statements--after any redactions authorized by the Judicial
Conference Committee on Financial Disclosure in accord with the
statute--or financial conflicts (investments) lists to be posted at the
court houses where the judges sit?
Answer. Financial disclosure statements do not necessarily provide
an accurate statement of a judge's financial holdings for recusal
monitoring purposes because of the delay inherent in filing the reports
(due May 15) and the time period covered (preceding calendar year).
Thus, the listing of assets in a report is already at least four-and-a-
half months old when filed and may not accurately reflect a judge's
financial holdings on the day of case assignment or trial. In addition,
the reports are both over- and under-inclusive, in that they require
judges to list interests that are not disqualifying (e.g., bonds), and
they fail to require disclosure of interests that are disqualifying
(e.g., stock holdings under $1,000).
At the March 1999 meeting, the Judicial Conference of the United
States considered whether it should encourage all courts to maintain
recusal lists in the courthouse. After reviewing the appropriate
Committees' recommendations and discussion, the Conference agreed that
the better course of action was to continue to support the efforts of
the Committees on Codes of Conduct and Financial Disclosure to educate
and inform judges of their responsibilities under 28 U.S.C. Sec. 455,
the Code of Conduct for United States Judges, and the financial
disclosure provisions of the Ethics in Government Act of 1978. Recently
the Chief Justice of the United States has referred the issue of
posting recusal lists in the courthouse to the appropriate committees
of the Conference for further consideration. This referral was in
response to a letter from Representatives Howard Coble and Howard L.
Berman of the Subcommittee on Courts, the Internet, and Intellectual
property of the House Judiciary Committee concerning hearings held in
November 2001 that touched on this issue.
Question. In recent testimony a judicial nominee noted that he now
believes the better practice would be not to attend expense-paid
seminars unless he knew who was providing the funding to the group
sponsoring the seminar so that he could make a better informed judgment
about possible conflicts and the appearance of impropriety. What do you
think about that suggestion and should it be incorporated in a
guideline or rule for federal judges?
Answer. This issue is addressed in current published ethics
guidance. Advisory Opinion No. 67, discussed above in response to an
earlier questions, advises that, if there is a reasonable question
concerning the propriety of a judge's participation in an educational
seminar, the judge should take steps to satisfy himself or herself that
there is no impropriety. Similar guidance appears in Aguinda v. Texaco,
Inc., 241 F. 3d 194 (2d Cir. 2001), which states:
``Presentations at bar association meetings or law schools may well
relate to particularized issues, and recusal should be considered
seriously, but on a case-by-case basis. Judges should be wary of
attending presentations involving litigation that is before them or
likely to come before them without at the very least assuring
themselves that parties or counsel to the litigation are not funding or
controlling the presentation.''
tracking civil cases
Question. Some have noted that fewer civil cases are going to trial
in federal courts these days as more cases are disposed of by motion or
settlement. Does the Administrative Office or do the circuits have a
process for determining whether judges are being slow or derelict in
their responsibilities in timely considering motions?
Answer. The Civil Justice Reform Act of 1990 (CJRA) requires the
Director of the Administrative Office of the United States Courts to
prepare a semiannual report for every U.S. district and magistrate
judge, showing all motions pending before that judge for more than six
months, all bench trials that have remained undecided for more than six
months, and all civil cases pending for more than three years. Pursuant
to that law, these reports are delivered to the Senate and House
Judiciary Committees every six months. In addition, the Judicial
Conference's Committee on Court Administration and Case Management,
which has jurisdiction over the policies relating to the CJRA, has
instituted a procedure to identify and assist courts that may be
experiencing case processing problems.
Question. All too often litigants complain that judges delay
considering timely motions for summary judgment until the eve of trial,
after the parties have gone to considerable expense for preparing for
trial. Sometimes, we have heard, motions are pending for years and
then, when new judges are confirmed to the court, such cases and their
old motions are transferred to the new judges, resulting in even more
delay. The Administrative Office and the courts have very good
procedures for tracking how criminal cases are handled under the Speedy
Trial Act. There seems to be precious little accountability,
comparatively, regarding how speedily civil cases are handled.
What additional measures of accountability might we build into our
civil justice system to provide the public with more information about
how promptly civil cases and motions are considered?
Answer. As noted above, the Administrative Office, pursuant to the
CJRA and the policy of the Judicial Conference, biannually publishes
and provides to Congress a comprehensive and specific report on the
status of each federal district and magistrate judge's docket.
Individual judge and district reports, which contain more detail, are
also available in the clerk's office in each district. In addition,
each circuit executive's office maintains copies of their respective
districts' CJRA reports. It is not uncommon for the local press to pick
up this information and publish a story about the rankings of the
judges in their districts.
However, the vast majority of federal district courts dispose of
their cases in relatively short order. The median time from filing to
disposition for civil cases in district courts is approximately nine
months--a figure that has remained fairly constant, never exceeding ten
months, over the past 15 years.
Question. Could a computerized tracking system be designed, or
could the system that tracks the criminal cases be adapted, to provide
such information about the time it takes for courts to dispose of
certain types of motions and civil cases?
Answer. For the past three years, the CJRA report discussed above
has been primarily prepared by an automated program, the Integrated
Case Management System/CJRA Statistical Reporting Program (ICMS/CJRA).
As a result, all pending motions, bench trials, three-year old cases,
Social Security cases, and bankruptcy appeals are being reported in a
standard and consistent fashion. The implementation of this automated
processing system has promoted a highly accurate and well-documented
analysis of the pending civil caseload for each district and magistrate
judge.
subcommittee recess
Senator Hollings. The subcommittee will be in recess.
[Whereupon, at 10:56 a.m., Tuesday, March 5, the
subcommittee was recessed, to reconvene subject to the call of
the Chair.]
DEPARTMENTS OF COMMERCE, JUSTICE, AND STATE, THE JUDICIARY, AND RELATED
AGENCIES APPROPRIATIONS FOR FISCAL YEAR 2003
----------
THURSDAY, MARCH 7, 2002
U.S. Senate,
Subcommittee of the Committee on Appropriations,
Washington, DC.
The subcommittee met at 10:02 a.m., in room SR-253, Russell
Senate Office Building, Hon. Ernest F. Hollings (chairman)
presiding.
Present: Senators Hollings, Gregg, and Stevens.
FEDERAL COMMUNICATIONS COMMISSION
STATEMENT OF MICHAEL K. POWELL, CHAIRMAN
prepared statement
Senator Hollings. The committee will come to order, and we
are pleased this morning in our appropriations oversight to
welcome Mr. Michael Powell, the Chairman of the Federal
Communications Commission. Mr. Powell, we would be delighted to
hear from you, sir.
Mr. Powell. Thank you, Mr. Chairman, Senator Gregg. It is
my understanding that you are interested in getting into some
of the policy issues, and in deference to your wishes, I would
ask that my full testimony be presented into the record.
Senator Hollings. It will be included, and you can
summarize it as you wish.
[The statement follows:]
Prepared Statement of Michael K. Powell
Mr. Chairman, Ranking Minority Member, and Members of the
Subcommittee, I appreciate this opportunity to appear before you today
to provide you with a report of our work conducted during the past
calendar year and to discuss the Federal Communications Commission's
(``FCC'') fiscal year 2003 Budget.
Less than nine months ago, I appeared before this Subcommittee for
the first time and made a personal commitment to effectuate fundamental
change within the Commission. I guaranteed that the Commission, as an
institution, would complete a thorough self-examination and develop a
reform plan designed to make the FCC a more responsive, efficient and
effective agency, capable of facing the technological and economic
opportunities and challenges of the new millennium. The Commission
delivered on this promise and sent you a reprogramming request for its
reorganization six months later. We appreciate your rapid consent to
our request.
I also pledged to enhance the Commission's independent technical
and engineering expertise. The Commission dedicated resources to
recruiting, training and retaining a solid technology-oriented
workforce under our ``Excellence in Engineering'' Program. We have
hired 18 mid- and senior-level and five entry-level engineers. We
instituted training programs to keep current and future engineers up to
date in their profession. And, we have improved the environment for
engineers by purchasing equipment to facilitate the spectrum management
process, and to upgrade the Columbia, Maryland Laboratory's testing
capabilities. Our on-going efforts in this regard, coupled with the
Agency's ``FCC University'' and ``Excellence in Economic Analysis''
initiatives, hopefully will preserve our existing wealth of FCC staff
knowledge and expertise and enhance and extend that collective
knowledge into the new millennium.
When I last appeared before this Subcommittee, I pledged to make
the Commission a model of solid management techniques and performance.
As such, the Commission moved forward to continue to streamline agency
processes and procedures, automate agency processes, provide improved
access to agency information, and modernize its information technology
infrastructure. During our January 2002 Open Agenda Meeting, the
Commission's staff delivered with statistics showing substantial
improvement in backlog reduction levels and other management
benchmarks.
Finally, I also vowed that the Commission would use the remainder
of its fiscal year 2001 and expected fiscal year 2002 funds to
implement its statutory mandates and serve as a constructive and fair
independent agency, cognizant of the intent of Congress and dedicated
to serving the public interest and consumer welfare. I am confident
that the Commission has met all of these commitments and, in doing so,
has achieved significantly higher levels of customer benefit and policy
and management performance.
The Commission has made these achievements, however, against the
backdrop of tragic and dramatic national events. The events of
September 11, 2001, provided us all with an important lesson in the
significance of the FCC's portfolio. We know now that our society has
developed more than just an appetite for communications services--
America is dependent upon these services in times of crisis and in
times of peace. A strong and competitive communications network is
essential to a healthy economy and our nation depends on both, whether
to bolster its ability to defend itself, or to communicate in times of
normalcy.
Last year, this Subcommittee initially provided the Commission with
full funding, plus additional resources for the ``Excellence in
Engineering'' Program. Although our final funding was slightly less
than originally requested, I am appreciative of this Subcommittee's
efforts to ensure that we had adequate resources to achieve our goals
and effectuate significant intra-agency reform efforts. For fiscal year
2003, the Commission is requesting $278,092,000, of which $268,327,000
will be dedicated toward our operational requirements.
This year, you have my personal pledge to continue driving forward
in a patient and deliberate manner--to handle the expected and the
unexpected, from homeland and internal security to biennial reviews, an
expected influx of Section 271 long-distance applications, and pending
major merger reviews, just to name a few. The Commission intends to use
its expected funding to continue its campaign to upgrade the Agency's
facilities, as well as to initiate and complete critical rulemakings.
The present request is the minimum amount necessary to continue to
capitalize our past successes and to carry us through the immense
challenges of the next fiscal year. Already, fiscal year 2002 has been
marked by a tidal wave of expected and unexpected events and policy and
regulatory issues. I expect fiscal year 2003 to be at least as
opportune and challenging.
fiscal year 2002: maximizing available resources
It is fitting that we have this hearing on March 7th, a day marked
by important historical milestones for the telecommunications industry.
On this day in 1876, Alexander Graham Bell received a patent for the
telephone. Fifty years later on the same day, the first successful
transatlantic radio-telephone conversation took place between London
and New York. In retrospect, 50 years seems like a very long period of
time between these achievements. Today, we develop new communications
products and services at a more rapid speed then ever before, in an
exponential fashion that makes science fiction a matter of science fact
within just a handful of years. Looking forward, that makes for policy
and management opportunities, as well as hurdles and challenges.
As a consequence, the Commission continues to capitalize on its
well-established core competencies, especially honed over the past six
years, to eliminate barriers to entry in domestic communications
markets; to deregulate where appropriate to promote competition; to
vigorously enforce Commission rules so that corporate entities compete
fairly; and, to promote competition in international communications
markets. Moreover, the Commission continues to build upon the
cornerstone principles of the public interest and general consumer
welfare to promote access for all Americans to communications service,
and to promote heightened consumer education and information.
The Commission must stay abreast of technological advances and be
prepared to face the future before the future arrives. To do so, the
Commission needs funding to improve its use of internal technology and
to develop a highly trained workforce to evaluate communications
industry trends. Last year when I appeared before you, I discussed the
Commission's critical need to upgrade its infrastructure. I also
emphasized our efforts to re-evaluate the Agency and develop a business
plan to reform its organizational structure. A well-funded
infrastructure and an efficient organizational structure are
intrinsically linked. The overall ability of the Commission to function
as an institution is dependent upon the quality of both. When I last
testified, we already had made strides toward upgrading information
technology and technological resources. Six months after my testimony,
I sent you a report outlining a significant internal reorganization of
the Commission.
The foundation for the Commission's reorganization rests on the
shoulders of its staff--a diverse and committed group of people
dedicated to utilizing resources to maximum capacity and rebuilding a
trim, well-focused organization that meets the needs of America's
communications industries and their consumers. The reform and
reorganization of the Commission is built along four specific concepts:
(1) a clear substantive policy vision; (2) a pointed emphasis on
management; (3) an extensive training and development program; and (4)
organizational restructuring. The implementation of each of these
concepts exemplifies how the Commission utilized its financial
resources during the past year, and explains our plans for additional
funding in fiscal year 2003.
A Clear Policy Vision
I enumerated above a set of policy and management imperatives that
will extend the Commission's mission, evolve its operational
strategies, and drive further the culture of efficient, effective and
responsive performance. First, we articulated a clear policy vision.
The Commission's staff also evaluated our activities in these
identified issue areas and tied the highlighted policies to the reform
of the Commission as an institution. We initially specified several
areas for policy-making emphasis: broadband deployment, competition
policy, spectrum policy, building a foundation for media ownership
regulation, digital television transition, and homeland security.
Although these issues sometimes overlap, their individual significance
guides our dedication of resources in the regulatory arena.
Broadband
Recently, I noted that one of the FCC's central policymaking
focuses is, and should be, the promotion of efficient, widespread
deployment of broadband infrastructure. Recognizing the importance of
broadband deployment--a topic of conversation that is extensively
discussed here on Capitol Hill, as well as at the Commission, Wall
Street, and Main Street--the Commission is taking a concerted,
comprehensive approach to bring regulatory clarity to what is, at best,
a murky and confusing policy area. To that end, the Commission has
committed significant resources to consider and initiate several
proceedings that pointedly address broadband issues. Of course, our
actions in this area will first and foremost be grounded in the Act,
taking into account the statutory objectives of competition, universal
service, and consumer protection.
It is important to emphasize that while we have committed
significant resources to initiating or completing various rulemakings,
the legal and regulatory issues implicated here have yet to be
resolved. But they must be resolved if we collectively intend to
facilitate the ubiquitous availability of broadband to all Americans.
The Commission welcomes the input of all Americans in our deliberative
process--especially the opinions of the Members of this Subcommittee
and Congress as a whole--as we proceed in developing a regulatory
framework for successful broadband deployment.
Competition Policy
Competition is a fundamental and guiding statutory principle under
the Telecommunications Act of 1996. It is the root from which most of
our other policy areas grow. Under my leadership, the Commission has
been outspoken in its support for competition, both inter- and intra-
modal. More significantly, however, our actions have backed up our
words.
Positive rules to promote competitive entry are meaningless without
a credible enforcement effort to back them up. Therefore, we have made
enforcement the cornerstone of our competition policy. As you will
recall, last year we called on Congress to increase dramatically the
forfeiture amount allowed under the statute. While we eagerly await the
fulfillment of this request, we have vigorously enforced our rules that
serve to promote competition. In addition, in contemplating our
competition policy, we recognized that ensuring that competitors have
access to those network elements that are necessary to provide
competing telecommunications services is only half the battle. Indeed,
the competitive local exchange carrier (``CLEC'') community told us
that to be useful, network elements must be provisioned in a timely
manner. In response to provisioning concerns, we launched two Notice of
Proposed Rulemakings on performance standards. Through these
proceedings, we have embarked on an effort to simplify performance
levels and standards to both clarify obligations and to allow for a
mechanism for swift enforcement when those levels and standards are
compromised.
Moreover, the Commission has been vigilant in its review of Section
271 applications. Since passage of the 1996 Act, the Commission has
denied as many Section 271 applications (this includes situations where
the application has been withdrawn, an effective denial) as it has
granted. In 2001, despite the fact that the roadmap for approval has
been drawn, two Section 271 applications involving three states were
withdrawn, demonstrating the Commission's continued determination in
ensuring the competitive checklist is met and local markets are open
for competition. Furthermore, the Commission has begun a second
analytical look at the regulatory implementation of the Act, through
our Triennial Review of Unbundled Network Elements Requirements NPRM,
that takes account of market experiences to determine which of our
regulations are working to provide a competitive environment for
consumers and which are not.
Spectrum Policy
The Commission's first assigned task in 1934 was to manage the
spectrum. The same basic principles articulated then continue to exist
today. The Commission has an obligation to ensure that spectrum, an
important and precious resource, is used in a wisely manner that
ensures the broadest public benefit and meets urgent public needs.
The Commission has acted decisively--utilizing our staff and the
spectrum auctions process to follow Congress' mandate that we work
toward the rapid deployment of spectrum. During the past few months, we
have reallocated the spectrum used for channels 52-59, designated the
4.9 GHz band for public safety purposes, and authorized the use of
spectrum for Ultra-Wideband technology. In a major rulemaking completed
on December 28, 2001, the Commission reallocated 27 MHz of spectrum
transferred from the Federal Government. This spectrum will permit the
initiation of new and flexible services--for example, in the fixed
satellite service, fixed mobile service, telemetry, and low power
radio. In addition, the Commission has experimented with innovative
methods for licensing that encourage private band management within the
confines of existing statutory guidelines.
Media Ownership Foundation
The time has come to rebuild the factual foundations that support a
contemporary regulatory regime for media ownership regulations.
Although the media landscape has changed dramatically since the
initiation of many of the Commission's ownership regulations, the
longstanding goals of diversity, competition, and localism remain
paramount.
As you are aware, the U.S. Court of Appeals for the D.C. Circuit
recently vacated some of the Commission's broadcast ownership rules,
and has remanded others for our reconsideration. At the heart of the
court's concern is the ability of the Commission to justify these
restrictions in light of the dynamic changes in today's marketplace.
Long before the recent court decision, however, I expressed concern
about the quality of the record the Commission relied on in reaching
media ownership decisions. In an effort to shore up this area, I
announced the creation of a Media Ownership Working Group on October
29, 2001. This working group is tasked with developing a solid factual
and analytical foundation for media ownership regulation. Moreover,
they are working to provide an empirical and analytical basis for the
Commission to ensure that our regulatory regime in this area actually
serves to meet the goals of diversity, localism, and competition in the
media marketplace.
It is important to note, however, that the D.C. Circuit's recent
decision found that the Act compels the Commission to review the full
panoply of media ownership regulations every two years and to repeal
these regulations unless the Commission makes an affirmative finding
that the rules are necessary to serve the public interest. To address
the court's criticism that we lack a factual foundation for our
ownership rules, we must expend a meaningful amount of resources to
improve the evidence before us. We cannot afford to sit back and hope
the public submits all the information we need to make good decisions.
We must be proactive in deciding what questions need to be answered,
and then to go out and answer them. That is what I have set up the
Media Ownership Working Group to do.
We then need to apply those factual findings to our media ownership
rules and determine if the rules as written truly promote competition,
diversity and localism, or whether today's media market requires
different approaches. I welcome that challenge and would simply note
that overhauling our knowledge base on media ownership and then re-
initializing it every two years hence will require a significant
commitment of resources.
In addition to appointing specific FCC personnel to gather
empirical information, the Commission has launched a comprehensive
examination of rules on multiple ownership of local radio stations and
set interim policies to resolve pending radio transfer applications.
The Commission also, as recommended by the prior Commission, initiated
a proceeding to review the newspaper-broadcast cross-ownership rule.
The Commission also began a rulemaking on cable ownership rules last
year. In addition, the Commission has proposed new equal employment
opportunity rules for broadcast and cable. I believe that by next year,
with the proper allocation of resources within the Commission, I will
be able to report on significant beneficial progress in this area.
Digital Television Transition
While broadband deployment and the inherent competitive issues
involved rank as the most important communications issues facing
America, the economic by-products of digital television (``DTV'') are
equally important in scope and stature. Television is, after all, a
central part of our society and provides our citizenry with essential
information and entertainment. Consequently, the DTV transition and its
economic and regulatory implications maintain an important place in the
Commission's overall policy-making efforts. In October 2001, I
announced the creation of a Digital Television Task Force. This task
force will review the ongoing transition to DTV, and make
recommendations to the Commission concerning priorities to facilitate
the transition and promote the rapid recovery of broadcast spectrum for
other uses. In addition to making recommendations for agency action,
the Task Force has been facilitating discussions with the various
industries that are largely responsible for the transition.
Homeland Security
In response to the events of September 11, 2001, the Commission
established a Homeland Security Policy Council (``HSPC''). The
formation of the HSPC and its work involves the use of significant
resources in an area that we did not consider for budgetary purposes
during the fiscal year 2002 appropriations process. Like other
agencies, we are using our current pool of Full-Time Employees
(``FTEs'') to cope with the events of September 11, 2001, and we are
demanding more of them in handling their regular workload along with
new tasks.
HSPC is assigned to handle overlapping security issues and respond
to specific mission objectives. First, the mission of this group is to
assist the Commission in evaluating and strengthening measures for
protecting U.S. telecommunications, broadcast and other communications
infrastructure and facilities from further terrorist attacks. Second,
HSPC assists the Commission in ensuring rapid restoration of U.S.
telecommunications, broadcast, and other communications infrastructure
and facilities after disruption by a terrorist threat or attack. Third,
HSPC assists the Commission in ensuring that public safety, public
health, and other emergency and defense personnel have effective
communications services available to them in the immediate aftermath of
any terrorist attack within the United States.
Emphasis on Management
As an outgrowth of the Commission's self-examination and reform,
the Commission has placed a new emphasis on the management of available
resources and the creation of tools designed to enhance the operation
of the bureaus. We asked all managers to review their internal
processes and develop real solutions to existing problems. Specified
management initiatives include: (1) backlog reduction; (2) better use
of technology, including a re-designed Internet site; (3) improved
productivity; and (4) consolidated and simplified licensing systems.
At our January 2002 Open Agenda Meeting, most Bureau and Office
Chiefs reported on their reduction in regulatory backlogs--a matter
that has dogged the Commission. We have posted these statistics on the
Commission's Internet site (), so that our progress
in this area is evident to the industry. One major highlight in this
area is the Wireless Telecommunications Bureau. In 1998, they had a
13.12 percent backlog of applications pending for more then a year. By
December 2001, that percentage had dropped to 0.24 percent. Likewise,
the International Bureau managed to achieve a 55 percent reduction in
pending applications for Review and Petitions for Reconsideration, as
well as a 56 percent reduction in the number of existing non-routine
applications and a 25 percent reduction in existing satellite space
station applications.
This past year, the Commission's management maximized improved
information technology resources to increase responsiveness to
consumers. The FCC's redesigned Internet site is part of our management
plan to make the Agency more responsive and transparent. We average
approximately 265,000 hits on a daily basis, and we were ranked third
overall among federal agencies for Internet site design. At the end of
November 2001, the Commission launched a new FCC search engine to
improve its Internet site.
In addition to a general managerial emphasis on outreach, the
Commission's staff leadership is tasked with improving bureau
productivity. For instance, the Commission instituted comprehensive
accounting and reporting reform for incumbent local exchange carriers.
And, in an effort to reach out to our core constituencies, the bureaus
have all undertaken efforts designed to consolidate and simplify
licensing systems. The Commission has proposed new procedures to
increase the efficiency of satellite licensing procedures. The
Commission also has proposed a uniform system for filing informal
complaints. This particular change would promote efficiency and
predictability for consumers and service providers.
Training and Development
The Commission's long-term policy objectives require a highly
trained staff capable of adapting to technological change and industry
trends. Accordingly, the Commission has instituted a range of training
and technical initiatives: (1) the ``FCC University''; (2) the
``Excellence in Engineering'' Program to recruit engineers and improve
their physical resources; and (3) recruitment and retainment of
economic experts, or the so-called ``Excellence in Economic Analysis''
Program.
Already we have instituted internal training programs in a variety
of areas and brought outside experts in to train our staff in various
disciplines. The most successful element of this program so far,
however, is the FCC's ``Excellence in Engineering'' Program, initiated
during the previous fiscal year and continued with funds in our fiscal
year 2002 appropriation. Already we have hired 18 mid- and senior-level
and five entry-level engineers in open FTE positions. We have
instituted a special training program to educate and retain our
technological experts. We have dedicated a substantial portion of our
funding to improving the physical infrastructure used by the engineers
for testing and other purposes. At the Columbia, Maryland Laboratory,
we have purchased five new spectrum analyzers and three new signal
generators to enhance our ability to adequately measure emissions. As a
result of these improvements, we now have the capability to take
measurements at 110 GHz instead of the outdated 30 GHz level. We also
have dedicated financial resources toward the purchase of equipment
designed to measure cellular phone radiation.
Restructuring
Although managerial goals and engineering equipment are essential
components of an efficient agency dedicated to high-tech matters, the
key to ensuring a well-functioning agency is to create an
organizational backdrop that maximizes human and technological
resources. On January 17, 2002, the Commission sent the cornerstone of
its improvement plan to this Committee--a Section 605 Report detailing
the reorganization of the Commission. We are in the initial stages of
implementing that reorganization. The Commission's plan is more then a
simple retooling of an old agency--it represents an important step in
streamlining the Commission. Although there will be no initial
budgetary impact from the restructuring, we expect that in years to
come, the streamlining approach taken here will pay dividends in
efficiency and good management. I have attached to my written testimony
a copy of the proposed organizational chart for the Commission.
We intend to dedicate the bulk of our human resources to continue
to move forward in these areas, to make the Agency responsive to
consumer and industry demands and to facilitate telecommunications
growth and deployment. The best way to accomplish this goal is to
ensure adequate funding to purchase necessary equipment, improve our
information technology capabilities, and hire and retain trained
technical personnel capable of assisting the Commission in its
decision-making process.
fiscal year 2003: continuing a year of progress
It is important to note that all of the reform and restructuring
efforts started in fiscal year 2001 continue to be limited by the
available discretionary funding in fiscal year 2002. Currently, 69
percent of the fiscal year 2002 appropriation is earmarked for salaries
and benefits. Additionally, 29 percent will cover non-discretionary
cost increases related to rent and supplies. That amount leaves the
Commission with two percent of its total appropriation to implement
reform--streamline operations, enhance technical and economic
expertise, oversee spectrum management, and provide funds for
resolution of ongoing enforcement issues such as cramming/slamming. For
this reason, focussing on improving the funding picture in the future--
i.e., fiscal year 2003--is especially important.
The $268,327,000 in operational costs requested by the Commission
for fiscal year 2003 is the bare minimum needed to allow us to continue
the progress made during the past year. In order to achieve our goals,
and stay abreast of telecommunications developments, the Commission
must keep ahead of changes in technology, economics, and the law.
Accordingly, we are requesting $15,066,000 for critical programmatic
initiatives. An additional $8,190,000 would be dedicated toward
uncontrollable cost increases related to salaries, benefits, and
inflationary cost increases for rent and supplies. The Administration's
request of $9,765,000 for retirement costs brings the total Commission
fiscal year 2003 budget to $278,092,000. The fiscal year 2003
regulatory fee offset for the Commission would be 89 percent of the
proposed fiscal year 2003 budget, making our direct appropriation
request from this committee 9.5 percent over our total fiscal year
budget, or 13.5 percent with the pension costs included.
From the perspective of funding Commission objectives, the critical
segment of the overall budget is the $15,066,000 dedicated to
programmatic initiatives. Of that amount, $4,986,000 will be dedicated
toward Commission employee training, enforcement, and spectrum
management initiatives. Due to national security needs identified since
September 11, 2001, the Commission also will spend $1,000,000 to
improve internal security and support other security efforts. The
remainder of these funds, $9,080,000, will improve information
technology critical to supporting program performance initiatives. With
these funds, the Commission will improve existing systems to ensure
compliance with Government-wide standards pertaining to system
security, accessibility, and financial management.
In addition to the policy objectives and reform outlined in my
testimony, our specific objectives for this funding include:
--Continued expansion of electronic filing and other initiatives to
enhance public access and expedite Commission policy decision-
making;
--Improved technical and economic expertise of staff;
--Life-cycle replacement of technical monitoring and testing
equipment;
--Ongoing infrastructure improvements to Columbia laboratory
facility;
--Expeditious and effective response to public requests for
assistance and information;
--Enhancement of information technology infrastructure to make it
responsive to changes in the industry; and,
--Enable the FCC to improve its homeland security posture.
One of the Commission's main objectives during the next year is to
maintain a safe and secure working environment for the FCC's employees
and visitors who frequent the Commission. As with most other agencies,
the Commission has faced the fallout from September 11, 2001, with
unanticipated costs. This year we must provide enhancements to a
variety of activities and programs, including on-site physical
security; relocation and processing of mail at multiple off-site
locations; and systems upgrades to ensure that our information
technology infrastructure has adequate cyber-security safeguards.
Although we have $1,000,000 specifically set-aside for these projects
in fiscal year 2003, the Commission also has requested the use of
excess regulatory fees collected in previous years for fiscal year 2002
security needs. In addition to receiving full funding, we would
appreciate a favorable decision related to this request.
Without adequate support, we will be required to eliminate some of
the Commission's programmatic initiatives, or cut back on the
implementation of individual programs. I believe that I already have
made the hard choices necessary to operate the Commission on as tight a
budget as practicable. As I outlined in the first part of my testimony,
the infrastructure and manpower initiatives are interconnected to the
general health of the agency and the completion of its core mission.
conclusion
The Federal Communications Commission has been using, and continues
to use responsibly its financial resources to meet the needs of a
dynamic regulatory, economic, and technological environment. This past
calendar year, the Commission's staff has handled a new workload based
on national exigencies, worked toward improving overall agency
management, and initiated a restructuring process designed to ensure
that the Commission of today is prepared for the regulatory mission of
tomorrow. The Commission's budget request is a reflection of an
imperative need. We have trimmed the fat and focused all available
resources to follow through on much needed rulemaking matters, reform
and restructuring, and other essential programmatic needs. I
respectfully request that this Subcommittee grant the Commission its
full funding request for fiscal year 2003.
Thank you. I would be happy to answer any questions this
Subcommittee may have.
SUMMARY STATEMENT
Mr. Powell. Thank you. I would like to read a brief
statement concerning the Commission's fiscal year 2003
appropriations request.
It is fitting that we have this hearing on March 7, a day
marked by important historical milestones for the
telecommunications industry. On this day in 1876, Alexander
Graham Bell received a patent for the telephone. Fifty years
later, on the same day, the first successful transatlantic
radiotelephone conversation took place between London and New
York. In retrospect, 50 years seems like a very long period of
time between these achievements. Today, we develop new
communications products and services at a more rapid speed than
ever before, in an exponential fashion that makes science
fiction a matter of science fact within just a handful of
years.
Less than 9 months ago, I appeared before this subcommittee
for the first time and made a personal commitment to effectuate
fundamental change within the Commission. I guaranteed that the
Commission as an institution would complete a thorough self-
examination and develop a reform plan designed to make the FCC
more responsive, efficient, effective, and capable of facing
the technological and economic opportunities and challenges of
the new millennium. And, as always, to do so in a fashion that
always attempts to protect consumer welfare and the public
interest.
I believe that the Commission delivered on this promise. We
sent you a reprogramming request for the FCC's reorganization 6
months later, in January 2002, and we deeply appreciate the
chairman's rapid consent to our request.
I also pledged to enhance the Commission's independent
technical and engineering expertise. The Commission dedicated
resources to recruiting, training, and retaining a solid
technology-oriented workforce under our Excellence in
Engineering Program. We have, I am happy to report, hired 18
mid- and senior-level engineers and five entry-level engineers
this year, more than the FCC has hired in nearly 20 years. We
instituted training programs to keep current and future
engineers up to date in their profession. And, we have improved
the environment for engineers by purchasing equipment to
facilitate the spectrum management process and to upgrade the
Columbia, Maryland, laboratory's testing capabilities. Our
ongoing efforts in this regard, coupled with the agency's FCC
University and Excellence in Economic Analysis initiatives,
hopefully will preserve our existing wealth of FCC staff
knowledge and expertise and enhance and extend that collective
knowledge into the new millennium.
When I first appeared before this subcommittee, I pledged
to make the Commission a model of solid management practices.
As such, the Commission moved forward to continue to streamline
agency processes and procedures, automate agency processes,
provide improved access to agency information, and modernize
its information technology infrastructure. During our January
2002 Open Agenda Meeting, the Commission's staff delivered--
with statistics showing substantial improvement in backlog
reduction levels and other management benchmarks.
Finally, I also vowed that the Commission would use the
remainder of its fiscal year 2001 and expected fiscal year 2002
funds to implement its statutory mandates. In this regard, the
Commission has demonstrated during the past calendar year a
continuation of steadfast commitment to its regulatory purpose.
The fundamental mission of the Commission, as a constructive
and fair independent agency, is to implement the Communications
Act of 1934, as amended, in a manner that promotes competition,
innovation, deregulation, and the availability of high-quality
communications services for all Americans. I am confident the
Commission has met this and the rest of our commitments and, in
doing so, has achieved significantly higher levels of policy
and management performance.
The Commission has made these achievements, however,
against the backdrop of tragic and dramatic national events.
The events of September 11, 2001 provided us with an important
lesson in the significance of the FCC's portfolios and the
networks that it oversees. We know now that our society has
developed more than just an appetite for communications
services. America is heavily dependent on these services in
times of crisis and in times of peace. A strong and competitive
communications network is essential to a healthy economy, and
our Nation depends on both, whether to bolster its ability to
defend itself or to communicate in times of normalcy.
I am unwavering in my commitment to implement the long-term
business plan outlined in my full written statement. To
effectuate our stated goals, however, the FCC has requested
$278 million and 1,975 FTEs for fiscal year 2003. This request
includes $9.8 million to fund the administration's Government-
wide proposal to fully fund retirement costs in each agency's
budget.
The Commission's requested operating costs are $268.3
million. These operational costs requested by the Commission
for fiscal year 2003 are the bare minimum needed to allow us to
continue the progress made during the past year. In order to
achieve our goals and stay abreast of telecommunications
developments, the Commission must keep ahead of changes in
technology, economics, and the law. Accordingly, we are
requesting $15 million for critical programmatic initiatives.
An additional $8 million would be dedicated toward
uncontrollable cost increases related to salaries, benefits,
and inflationary cost increases for rent and supplies. The
administration's request of $9.8 million for the retirement
costs brings the total budget to $278,092,000. The fiscal year
2003 regulatory fee offset for the Commission would be 89
percent of the proposed fiscal year 2003 budget, making our
direct appropriation request from this committee a 9.5 percent
increase over total fiscal year budget last year, or 13.5
percent if you include the administration's pension costs.
From the perspective of funding Commission objectives, the
critical segment of the overall budget is the $15 million
dedicated to these initiatives. Of that amount, $4.9 million
will be dedicated toward Commission employee training,
enforcement initiatives, and spectrum management initiatives.
Due to national security needs identified on September 11th,
the Commission will also spend $1 million to improve internal
security and support other security efforts. The remainder of
these funds, $9 million, will include information technology
critical to supporting program performance initiatives. With
these funds, the Commission will improve existing systems to
ensure compliance with Government-wide standards pertaining to
security, accessibility, and financial management.
This year, Senators, you have my personal pledge to
continue driving forward in a patient and deliberate manner--to
handle the expected and the unexpected, from homeland and
internal security to biennial reviews and an expected influx of
271 long-distance applications, as well as pending major merger
reviews, just to name a few.
The Commission intends to use its expected funding to
continue its campaign to upgrade the facilities, as well as to
initiate and complete critical rulemakings.
The present request is the minimum amount necessary to
continue to capitalize our past success and to carry us through
the immense challenges of the next fiscal year. Already, fiscal
year 2002 has been marked by a tidal wave of expected and
unexpected events and policy and regulatory issues. I expect
fiscal year 2003 to be at least as opportune and challenging.
For that reason, I respectfully request that this
subcommittee grant the Commission its full funding request for
fiscal year 2003. I thank you for your indulgence, and I am
happy to answer any questions the subcommittee might have.
Senator Hollings. Chairman Powell, we have no doubt about
your management abilities. When you state you are going to
drive forward and take care of all these challenges, however,
you need to understand that as the Chairman of the FCC all you
need to do is to take care of the laws that we pass. And you
have just that responsibility. Instead, you seem to abandon
that responsibility and assign it to the market. And you stated
just 10 days ago, ``My religion is the market.'' You don't care
about these regulations. You don't care about the law or what
Congress sets down. Working for the public interest, you have
to have the attitude to look out for the public interest, and
you say the public interest is about as empty a vessel as you
can accord a regulatory agency. That is the fundamental. That
is the misgiving I have of your administration over there. It
just is amazing to me you just pell-mell down the road and seem
to not care at all. I think you would be a wonderful executive
vice president of a chamber of commerce, but not a Chairman of
a regulatory commission at the Government level. Are you happy
in your job?
Mr. Powell. Extremely.
Senator Hollings. And you do think that your religion is
the market? Is that right?
Mr. Powell. I don't recall ever saying that, but----
Senator Hollings. Well, you were quoted in USA Today just
on February 25, and the other quote I used was from the
American Bar Association, specifically the submission that you
made with regard to NextWave. I am reading to you the law. This
bothers me because we have got an important appeal by the
Federal Communications Commission before the United States
Supreme Court, and it is disturbing that perhaps the Commission
won't make an authoritative kind of appeal.
1934 COMMUNICATIONS ACT
You are talking with all that history and Ma Bell and
everything. Let's go back 68 years ago to the 1934
Communications Act. Let me read from the Act. ``It is the
purpose of this Act''--I am reading Section 301. ``It is the
purpose of this Act, among other things, to maintain the
control of the United States''--that is the word, ``control,''
not the distribution and taking care of all the new challenges
and everything else that you might think of but, rather, the
congressional control that has been assigned to you--``the
control of the United States over all the channels of radio
transmission and to provide for the use of such channels, but
not the ownership thereof''--``not the ownership thereof''--
``by persons or limited periods of time under licenses granted
by Federal authority, and no such license shall be construed to
create any right beyond the terms, conditions, and the periods
of the license.''
Yet you were going along with the market. A good
arrangement and everything else, like it had absolutely nothing
to do with that. Do you think that is the law?
Mr. Powell. I absolutely think it is the law. I also think
that the law indicates that there are benefits and market
economics for the public interest.
Senator Hollings. What is that?
Mr. Powell. I think that the law also recognizes that the
use of market forces can be concomitant with the public
interest.
Senator Hollings. But there is no public interest feature
to that particular categorical provision, is there?
Mr. Powell. Certainly there----
Senator Hollings. You think, in other words, that with the
public interest you can amend that law?
Mr. Powell. No, sir. But I think that the public interest
confers on the Commission a duty and obligation to implement
the statute where there are ambiguities and to look for the
mechanisms using regulatory tools, including uses for fostering
competitive market economics, that will enhance overall the
consumer welfare.
I could also quote provisions of the statute that speak in
those terms.
Senator Hollings. That is a wonderful statement for a
chamber of commerce executive, but being the Chairman of the
regulatory body, where in there is there any discrepancy or
vagueness or anything else like that? I don't know how to
categorically state it more. In other words, assuming we lose
the case--I have thought about that, and if we lose the case, I
don't know how to state it better here when it says ``the
control of the United States over all the channels'' and
``provide for the use of those channels, but not the ownership
thereof.''
NEXTWAVE CASE
Now, you wanted to vest the ownership in the NextWave case
into the bankrupt agency, and it could have no ownership
whatsoever. They only had a license, and the license was
automatically revoked under the terms of the auction. Where was
all that at the big hearing you had and the big brief you had
and the testimony you gave over on the House side?
Mr. Powell. I think it was there. Senator, I am the one who
sought certiorari from the----
Senator Hollings. You did what, sir?
Mr. Powell. I am the individual who sought certiorari in
the Supreme Court on the NextWave matter. I am the one who
argued for it vociferously, was quite pleased to see it
granted. If you will recall, you called me last summer on
vacation, and we discussed this matter, and I committed to you
the continued pursuit of the litigation.
Senator Hollings. But you ran in both directions. You
pursued the litigation, but you got rid of the litigation in a
deal that would vest ownership.
Mr. Powell. That is not accurate. Nothing in the deal led
to the termination of the Supreme Court case. I absolutely
insisted that any effort to try to settle the matter would not
moot the Supreme Court case. Nothing in that agreement did so.
Senator Hollings. Well, I can see we have just got a
fundamental difference of opinion, but I was pleased this
morning when I saw the article by the most conservative of
conservative writers, William Safire, ``The Urge to Converge,''
with ``the round-heeled Michael Powell steering the Federal
Communications Commission toward terminal fecklessness.''
I don't say that to hurt your feelings and all, but I am
trying to denote there is a disturbing sense in the Congress,
your particular administration, particularly now that we have
got this hiatus going on relative to the deregulation of the
Bell Companies. They have veritably voted it in the Tauzin-
Dingell bill over on the House side, and we will be considering
it here, have a hearing on the 20th with Mr. Tauzin himself.
But it seems like you are trying to get with the notices you
have given for the Commission on hearings in this regard, you
are trying to outdo the Congress before we can get to that or
before even Tauzin can get to it.
Mr. Powell. I don't think so. The broadband item that I
think you are making reference to has a very fundamental
difference from anything being considered by the Congress. I
think as you point out, the Commission can only do what it can
within the context of the law. The Commission cannot change the
law. The Congress is free to modify the statute itself. We are
not. And I do not generally agree with some of the
characterizations put forth in media that the item is the
functional equivalent of currently pending legislation in
Congress. I think that we have stated for many, many months,
long before the heated aspects of this particular legislation,
that there were areas that presented important regulatory
questions.
We have a number of courts around the country have
criticized the Commission for not clarifying the regulatory
classification of these new emerging services, and I think it
would be irresponsible for us to continue to leave those
questions unanswered in the context of the increasing growth of
new Internet access services.
Senator Hollings. Senator Gregg.
Senator Gregg. Thank you, Mr. Chairman.
To continue this discussion, I do find it ironic that
members of the other side of the aisle are suddenly outraged
that there may be someone who they perceive as pursuing
regulatory overreach. It was the philosophy, it appears to me,
of the other side of the aisle during the prior administration
for there to be dramatic overreach by the regulatory agencies.
But I don't see your agency doing that, anyway, so I don't
think it is necessary to defend you on that turf.
TAUZIN-DINGELL BILL
I do have some questions, however. I would be interested in
your giving us your analysis of the Tauzin-Dingell bill.
Mr. Powell. I think I am enough of a politician not to do
too much of that.
The best that I can say is that I think the Tauzin-Dingell
bill, to the extent that I understand it--and I would have to
confess that I am not intimately aware of its most recent
details--is an effort to modify the statute itself with respect
to specific limitations and regulations, in an effort to
dramatically stimulate and in some cases require the deployment
of new and advanced infrastructure and architecture.
I do not have an opinion about whether those sweeping
efforts are meritorious or compelled by the market conditions.
I think that we can, at the Commission, make substantial
progress in clarifying the regulatory environment and
introducing incentives to stimulate broadband deployment that
will be meaningful and will have consumer benefits even within
the context of the statute unchanged by legislation.
Senator Gregg. Well, you sort of initiate something here
which is called--it has actually been referred to as a national
broadband policy in the FCC. How do you see that staying within
the context of the present law?
Mr. Powell. I think that the present law was quite
thoughtful in at least being anticipatory of these kinds of
changes. For example, one only needs to look at the preamble to
the 1996 Act to find support for those objectives: ``an act to
promote competition and reduce regulation in order to secure
lower prices and higher-quality service for American telecom
consumers, and encourage the rapid deployment of telecom
technologies.''
Under Section 706, we are tasked with encouraging the
``deployment on a reasonable and timely basis of advanced
telecommunications capabilities to all Americans'' utilizing
regulatory methods that remove barriers to infrastructure
investment.
We believe that one of the central things the Commission
needs to do in this space is to clarify the regulatory
classifications of new and emerging services that have
characteristics of different definitions, not our definitions,
but those that exist in the statute.
The statute covers multiple classes of communications and
attaches different regulatory treatment to each one. If you are
a cable service provider, certain regulatory obligations exist,
certain do not. The statute defines information service
providers; certain obligations apply to them, certain do not.
And, it defines telecommunications carriers, in the same way.
When we begin to have convergence and new services entering
the space with new characteristics, questions arise as to which
proper classification should be applied to them, and then
subsequently, what are the consequences for regulatory policies
and concerns?
This item is designed to be responsive to that first
question principally. How should we classify under the
statute's definition these new emerging broadband services? And
I think just as importantly, which I think often is omitted in
the anxiety expressed in press reports, the Commission tees up
ways to protect all types of regulatory policies and concerns
that are implicated by that definition.
So I think we are operating within the statute because we
are trying to figure out which of the statute's classifications
govern which service. It is our duty to figure out which
provisions of the statute we continue to apply and how they
would continue to apply. I would conclude by emphasizing, that
if there are problems, including market power and anti-
competitive and access concerns--the Commission also has
extensive power that Congress conferred to it in 1934 under
Title I. In fact, the Commission has regulated access terms and
conditions of information services for the better part of two
decades, using its Title I authority, and has been upheld by
the courts in doing so.
To the extent that there are categories of services that
will not have specific Title II attached to them, we will have
Title I authority to exercise in order to protect important
governmental interests.
Senator Gregg. Well, trying to reduce that to a simple
statement, what happens last mile?
Mr. Powell. What happens last mile?
Senator Gregg. Yes.
Mr. Powell. The last mile is the most important part of
broadband deployment. A number of things can happen
increasingly because that last-mile loop, depending on its
construction, may be capable of doing any number of things at
the same time.
One of the things I think Congress thought about is
focusing on the services being provided and not the nature of
the technology underlying it. So what will start to happen, if
we continue in this direction, is we will begin to try to
classify regulatory treatment, not by the nature of the
technology that is that last mile, but the nature of what
services are being offered over it.
For example, when America Online or Earth Link or Juno or
any number of the major ISPs offer high-speed Internet access
service over that infrastructure, they are being regulated as
information services, and they are doing so in a much less
regulated way than the provision of telecommunications services
over that.
So what happens is greater granularity on regulatory
treatment, depending less on the architecture and more on the
nature of the services being provided.
Senator Gregg. Does that mean you are going to end up
asking them to share the last mile?
Mr. Powell. Yes. I think that to some degree they have to
share the last mile, and I think that part is faithful to the
statute as well.
Section 251 compels access to those unbundled elements for
particular kinds of services that still will have to be
available.
If there are questions about other types of services that
do not have those obligations attached to them, our computer
inquiry decisions--sorry to use more historical regulatory
approaches--continue to affix to those services, and they, at
least for the moment, will have to be provided on an unbundled
basis as well.
Senator Gregg. I know I don't have all the time in the
world. I would like to pursue this into the long-distance
question.
Senator Hollings. Go right ahead.
Senator Gregg. But let me switch and go on to a question
which is more parochial and more to my own interests, which is
the NextWave issue that the chairman raised.
This committee has kept its finger in the dike on that
issue through a number of Congresses, and then was replaced by
the court system and by the FCC carrying the ball on this
question. But that risk here is somewhere in the vicinity,
depending on whose estimate, of $12 to $16 billion of what I
believe are taxpayers' moneys.
OWNERSHIP OF THE SPECTRUM
And my question is: When the FCC files its briefs, what
will be the theory of the brief, if you are willing to disclose
them at this time? And will it be based on the belief that the
ownership of the spectrum is a taxpayer asset?
Mr. Powell. Absolutely. The Commission, I think, has fought
this long consistently on that principle, the belief that we
are not another creditor in bankruptcy, and that no property
rights attach to spectrum in auctions. I do not even think that
is a disputable proposition under the statute, which expressly
states that there are no property interest or ownership
interest rights in the spectrum.
The difficulty in the context of auctions is we have been
treated by the court systems as a creditor and subject to the
bankruptcy limitations thereof. I thought very strongly that
the D.C. Circuit opinion was wrong. I thought it was wrong
because I think it denied the regime that Congress established
for the allocation of public spectrum and the Commission's
rights under that statutory provision to reclaim its property,
the property of the public, when a person defaults on the terms
and conditions established for its permissive use.
I always have believed a license automatically cancelled.
Everything that we have done has preserved that principle. So
even in the context of the Supreme Court case--and you can see
some of this in our cert petition that was granted--we argue
quite strongly that the D.C. Circuit failed to provide the
appropriate deference with regard to the telecommunications
policies of the United States and that the Bankruptcy Code
should not be interpreted as in conflict with that.
Hopefully that got the court's attention, and hopefully
that will be the basis of reversal of the D.C. Circuit's
decision.
Senator Gregg. Well, I certainly hope so, too, and I
believe that the Congress has a legitimate interest here, too,
as the protector of the taxpayers' rights here. And I hope we
will file an amicus brief on behalf of your position.
One last question, and then I would yield my time. The
Northpoint issue. I just don't understand why it has taken so
long to get a decision, number one; and, number two, I don't
understand why you would have to go back to auction since, as I
understand it, the technology is only--it is agreed that the
spectrum can be shared, and the technology is understood to
exist, and there is only one group that met the requirements of
filing necessary. So why aren't we just making a decision on
this thing and moving forward?
Mr. Powell. Well, I do not really want to offer any
excuses. I had hoped the Commission would be done with this at
the end of last year. It has failed to do so. I think that is
unfortunate.
I would say that we did put an item on the floor in
November. I personally have voted for the item. I am awaiting
the votes of some of my colleagues who are continuing to
wrestle with particular questions. I continue to urge them to
do so expeditiously.
Regrettably, it is not appropriate for me to talk
specifically about the merits of pending issues, including
whether to auction or not to auction, which, candidly, have not
been resolved until there has been a majority conclusion as to
those questions.
I continue to hope and push hard for a decision, and I
would still like to characterize it as imminent. I would love
to talk to you in more detail, perhaps privately or in a
context consistent with our ex parte rules, about the specific
merits of the pending claims, but I am not permitted to do so
in this forum.
Senator Gregg. I appreciate that. Thank you.
Senator Hollings. Senator Stevens.
Senator Stevens. Well, thank you very much.
UNIVERSAL SERVICE FUND
Mr. Chairman, I commend your notice of inquiry on ways to
finance the Universal Service Fund. I am a little worried about
that, as we have talked about privately. I do think that the
fund was created originally to assure that rural America could
keep up with continuing developments as far as
telecommunications is concerned, and now the major drains on
the fund are for the inner-city applications of the E-Rate.
There is a proposal pending to increase the fund by $500
million to provide additional resources to schools and
libraries, and that is, again, inner-city money. It is coming
down at an enormous rate.
Can you tell me, what do you see for the future of
universal service under these circumstances?
Mr. Powell. Well, as we have discussed, I think the
Commission, too, shares some of your concerns, and indeed it
has initiated a number of proceedings to begin to explore
perhaps modifications to the collection and contribution regime
in order to ensure, as the statute requires, the preservation
and advancement of the objectives as well as their sufficiency.
I also think that the Commission has been somewhat bold and
willing to start to entertain whether the threats to the
universal service program are sufficient to begin to justify us
to consider exercising the discretionary authority that you
gave us to extend contribution obligations to carriers that are
not specifically telecommunication carriers but use
telecommunications.
Heretofore, we have never done that, and it may not yet be
warranted. But it seems to me that under Section 254(d) the
Congress anticipated that possibility and gave us discretionary
authority to extend the pool of people that contribute in order
to protect their sufficiency.
Indeed, in the broadband item, as controversial as it may
be, more ink is dedicated substantively to the questions about
universal service than any other subject in the item. Indeed,
we openly ask questions about to what degree universal service
will be impacted by the rise of advanced services and whether
some honest consideration of whether the extension of
contributions is warranted.
We did not reach any conclusions, but we did put those
important questions on the table, and, I would note, over some
dissent. That is an area in which I think that we have one of
our most sacred regulatory obligations. I think we will
continue to push for new and creative ways to allow that
program and the objectives to continue to flourish.
I also think one of the values of the promotions of some of
the newer and advanced technologies is they have enormous cost
benefits, many of them. In many ways they have the potential
for solving parts of our universal service anxieties by virtue
of their much more efficient infrastructure and architecture.
So I think in some ways a pro-new-technology approach is also a
pro-universal service approach in that we at least see the
possibilities through getting companies to migrate to more
advanced architectures to lower the cost of the provision of
those services, which has always been the problem for rural
America and places like Alaska.
As you know and since you fought so hard for DBS services,
providing video components to the State of Alaska was vital.
Through the use of new technology, it allowed it to lower the
traditional costs associated with having to wire such a large
region.
So those are the major things we are doing, and we do share
some of your concerns.
Senator Stevens. But you are proposing new rules for
broadband, as I understand it, and I think that those two have
a real impact on the continuing expansion of the demand on
universal service. But I have got to tell you, when I look at
some of the places up our way which have never had
communications services before and are now getting
communications services for schools, libraries, and health
facilities. However, they are not getting it in the rest of the
city or village at all, and I wonder seriously about the
policies we have set to extend so much money to the inner
cities while we still have many places in the country with no
service at all, except for the schools, libraries, and health
facilities in those communities. We are leaving a lot of people
behind. There is a line of thinking now that considers the E-
Rate connection to a small area pipe. If that pipe isn't full,
they think maybe they can lease that pipe out to someone else.
We are seeing the fudging the concept of E-Rate in order to
extend service to those that are left behind. I think we ought
to be right up front and admit that we have got to have two
funds: one for rural America and one for the inner city. Right
now, this is just a way to take money from the rural fund and
put it into areas where the Congress has not provided enough
money to assist the inner core cities for schools. I have heard
of portions of schools actually being rebuilt with the E-Rates
in inner cities.
I don't want to belabor it, but I do hope that in the
future universal service remains one of the really predominant
goals of the Commission to assure that rural America keeps up
with the rest of the country as we progress.
You did comment on Senator Gregg's question about the
Supreme Court case on NextWave and the position of--I don't
know if we are going to file an amicus brief or not, but what
about the problem of the delay? The further the delay extends,
the less merit there is to whatever the Court decides. If it
agrees with you, it is going to go back to the bankruptcy
court, and we will start all over again getting a decision. It
will be appealed right back up through the chain again.
Meanwhile, the money is sitting there, and the spectrum is tied
up, which is vital, really, to the recovery of the whole
industry.
Have you given thought to asking us to find some way to
resolve this issue, as we almost did last year with the
approval of some mechanism that would bring about a settlement
so this matter could be resolved within the industry itself
with your approval?
Mr. Powell. Yes, sir. As we have asked, I think repeatedly,
for any number of years--and I am looking at three members who
have been extremely supportive of our efforts to try to avoid
this problem with the law and change it--I still think that the
public interest is served in some ways if Congress altered the
law and made the modification, because if they could do that, I
believe that we could get the spectrum into use much more
expeditiously.
I believe 100 percent in my case, and I believe I have the
opportunity to win it. I also know it is going to come at a
huge cost because I cannot do anything about the extraordinary
delay that will be a consequence of it.
This case is not likely to be argued until next term. At
best, we are going to have a decision in January 2003, perhaps
as late as June 2003. There were very critical issues that the
D.C. Circuit did not decide because it thought their order took
care of everything, so I would anticipate even if we won, we
will be remanded to the D.C. Circuit for resolution of those
issues. Even when we get through that, we are in bankruptcy
court again for the allocation of rights under the statute.
I think that one of the reasons I did, somewhat reluctantly
but willingly, accept an effort to try to settle the case
previously was because I think the public's interest is not
exclusively in the money that it would provide; it is also in
having spectrum put to productive use. While I believed in the
case, I believed that it would cost the consumer the ability to
make use of that spectrum for a very long time, perhaps 2 and 3
years more.
We only have two options, though. I agree with Senator
Hollings. First and foremost, this legal principle has to be
rectified, and I do not think there is any real opportunity for
a good, productive resolution of the claims without being
assured that this component is completed. And there are only
two ways, either our continued pursuit of the case or an act by
the Congress that removes that risk for future auctions and
would allow us to pursue other options to get the public its
money and the public its spectrum.
But we are committed to the long course of the case if that
is the preference of this institution.
Senator Stevens. I am still committed to try and work it
out so that spectrum can be put into use. I remember too well
the meeting we had that indicated the status of our industry
and the global economy of telecommunications is severely
limited because of the availability of spectrum right here at
home. I really think we should do something about it.
Let me shift gears, though. When the World Trade Towers
came down, KNET, the public station, went down and it has not
been able to go back up. It tried to get other providers like
satellites to help them, but that was refused.
EMERGENCY BROADCAST PLATFORMS
Do you have the authority to require other platforms or
carriers to broadcast signals in times of emergency and post-
emergency periods? And if you don't, do you think Congress
should give that to you?
Mr. Powell. That is a good question. I do not know the full
range of that. To some extent, the answer is partly yes in
advance because the cable companies, for example, under the
must-carry obligations carried them. For example, in New York,
we lost a lot of broadcast stations initially, but a lot of
consumers still had access to that local broadcast feed over
the cable architecture which they were watching as opposed to
over the air. That was a benefit.
I would have to look specifically at questions like whether
we have the authority to direct broadcast satellite carriage,
although Congress has required must-carry there as well, and
that is progressing.
The Commission recognized this concern. We have long had
Federal advisory committees that helped us with these network
security emergency issues in the phone system. We recognized
that we did not have the functional equivalent in the broadcast
or communications, news types of system. One of the things we
have just announced is that we are creating a companion to the
telephone service's system called NRIC. We are creating a
network reliability group to focus on media issues in times of
emergency and looking for ways to develop mutual assistance
planning so that if there was critical news and information
that was not available because of an outage, there would be
perhaps some effort to shift coverage and responsibility.
A number of other major cable channels fortunately also
were willing to convert capacity to broadcast signals. For
example, the Viacom properties that covered--they normally
carry things like MTV and other of their cable programs,
switched to the local broadcast feed for coverage in the New
York City area.
We are looking for ways to make that not coincidental and
gratuitous, but hopefully a little more planned for and
anticipated.
Senator Stevens. Well, I hope you will notify this
committee--and there is also the Commerce Committee--if there
is something that we need to do to extend your powers in order
to meet those emergency situations.
DIGITAL CONVERSION
My last question, Mr. Chairman, pertains to digital
conversion. The public and commercial broadcasters in my area
of Alaska, Anchorage, have developed a plan to allow them to
meet digital conversion deadlines by providing full service to
the vast geographic area in the Anchorage area. Because of our
unique geographic conditions, it will require the use of two
towers, and both digital and analog spectrum.
Now, we were told yesterday--Mr. Stewart has indicated the
Commission may not have legal authority to approve this plan.
We think this is a crisis for our area, and we would like to
move forward as rapidly as possible. I would appreciate it if
you would contact your people and see if there is a change in
the law that is required in order to approve this rather unique
partnership that has been formed in our State with public and
commercial broadcasters. It ought to be a model for the rest of
the country, but I am disturbed to learn that what they have
worked on now may be beyond your legal authority, and I would
appreciate it very much if you would look at it and give us a
report on it. I don't expect an answer now, but I would
appreciate it very much because I think they have worked very
hard and have got a format now that allows conversion for
public and digital broadcasters at a much lower cost and within
the time frame anticipated by Congress. And it would be
difficult for us to wait for Congress to act in the future if
that is the case.
Mr. Powell. We will get you at least an answer on where we
think the legal authority exists very quickly.
Senator Stevens. Thank you for your patience, Mr. Chairman.
Senator Hollings. Thank you, Senator.
VIEW ON ABOLISHING THE FCC
Chairman Powell, reference has been made to a political
view of your regulatory commission, and I readily acknowledge
that there is the view that we ought to just abolish the FCC.
In fact, you referred to Section 251 of the Tauzin-Dingell bill
that abolishes your oversight responsibility. You, the FCC, and
the State Commission under Section 4(a) no longer will have
authority over the access to the Bell monopolies. But be that
as it may, I want to emphasize, since you brought in the
history of the thing, that you do not advocate abandoning your
regulatory authority to the market. We know what market forces
do to communications. Back in 1912, when Sarnoff got on top of
the Wanamaker Building, and the Titanic sank, everybody got
into wireless, and by the mid-1920s, the communications
industry begged Herbert Hoover, then-Secretary of Commerce, to
please regulate us because everybody was using all the same
frequencies, and there was nothing but a jamming. Nobody could
hear anybody. So that resulted in the 1934 Act.
Otherwise, I think of the loss the day before yesterday of
a distinguished chairman here, Howard Cannon, who chaired the
Commerce Committee. We had the airline deregulation, and we
thought it wise that, by gosh, there would be no question that
we would not only deregulate, we got rid of the deregulatory
entity, namely, the Civil Aeronautics Board. And there have
been bankruptcies and takeovers, in fact, regulated European
takeovers of the unregulated American airlines, many of them
facing bankruptcy. And you will get the wiseacres who will come
up and say deregulation is fine. But it has ruined the airline
industry.
Knowing that, in 1996, we did not do away with the so-
called CAB, namely, you, the Federal Communications Commission.
We wanted a regulatory body to oversee in a deliberate way
total deregulation. Now, of course, the bottleneck in it is the
Bell companies that lied. They begged and begged and begged. I
know, because I helped write that thing, and I met with Jim
Cullen from Bell Atlantic that represented all seven of the
monopoly Bells, and it was a 4-year hiatus getting that bill
out. And at all times they said we want to get into long
distance, we want to get into long distance, by gosh,
deregulate us, we want to compete, we want to compete. We
passed the 1996 Act, and instead of competing, they combined.
And that is exactly what is written about in the New York
Times, merger mania that seemingly is approved again and again
by the Commission. And so we have just got bigger monopolies,
and if it continues, we will be back to AT&T. And regarding Ma
Bell, if we can't get it done in the Congress, we will have to
get a Federal judge.
That is what goes through a lot of minds here in the
Congress. You can look at that debate over on the House side.
They have got me, you know, I am adamantly against it, and how
much I am a big friend of AT&T. I told the head of AT&T just
last week, Mr. Armstrong, I said, You know, I know intimately
the Bell South crowd down in South Carolina. I can't name who
represents you down there in South Carolina. I have gotten
contributions from both.
But I do have a feel for the wonderful Federal
Communications Commission. I have been working with it now for
over 35 years, since we started, and to see it just go pell-
mell down the road with these statements made that the market
is your religion and you don't know where in the world can
anybody discern or find a public interest, that is about as
nebulous as anything. And then the rulings that we have, it is
hard to play catch-up ball over here at the congressional level
with your administration of the Federal Communications
Commission.
We don't want to cut you short on money. We will give you
all the money because you have got many, many questions before
you. But just mind you me, we are passing the rules and
regulations and the policies, and it is your responsibility to
administer those regulations and those policies, not the
market. That is why we have got you. There are some who want to
get rid of you, and in part that is what Tauzin-Dingell does.
That is what bothers me. AT&T and Bell South don't want to get
rid of you. I have got a lot of friends in Bell South. I would
like to get one of their retirement policies and get on their
board.
Mr. Powell. Me, too.
Senator Hollings. They are in 22 countries. They are very
competitive, and I have followed them, and they are making
money. I don't know why their stock is down. If they ever get
this monopoly expanded, it will go through the ceiling. You buy
some. Call me and we will both buy it.
But let's look at this thing objectively. Competition does
count, and we have got a dynamic, competitive situation all
over communications, save 93 percent of that last line into the
home and business, is still by those Bell monopolies. They
squatted in the middle of the road. They questioned the
constitutionality of the act. They have taken us through a
legal gymnast of a 6-year period, and we are not getting
anything done. And if they go forward, they have gotten so bold
now with Tauzin-Dingell that they have got no idea of
deregulating or competing.
ADDITIONAL COMMITTEE QUESTIONS
We appreciate your appearance this morning.
Mr. Powell. Thank you, Senator.
Senator Hollings. Thank you very much.
[The following questions were not asked at the hearing, but
were submitted to the Commission for response subsequent to the
hearing:]
Questions Submitted by Senator Ernest F. Hollings
Question. As stated, in its broadband NPRM, the FCC concluded that
broadband Internet access service is an information service, and the
transmission component of the service is telecommunications, rather
than telecommunications services. If the FCC concluded that the
transmission component is not a telecommunications service would that
mean that competitors would not be able to obtain unbundled network
elements (consistent with the requirements of section 251) in order to
provide DSL or broadband service? Under what authority could the FCC
impose such requirements for DSL service?
Answer. Although the Commission will decide this issue through
statutory interpretation in our Broadband NPRM proceeding,
classification of the transmission aspect of an information service as
``telecommunications'' would not preclude competitors from obtaining
unbundled network elements. For example, one possible reading of
Section 251(c)(3) of the 1996 Act is that the availability of elements
turns on whether the competitor offers a ``telecommunications
service.'' Thus, competitors who choose to offer DSL separate from
Internet access could, under this one possible reading, obtain network
elements to provision that offering. As I have stated, however, the
Commission will resolve this issue in the Broadband NPRM proceeding.
The Broadband NPRM seeks to develop a robust and comprehensive
record on the obligations that providers of wireline broadband Internet
access service, including the incumbent LECs, may face under the Act if
we adopt the tentative conclusions that your question references. In
particular, the Commission, in the Broadband NPRM, asked several
questions regarding the implications and interplay between the
tentative conclusion that wireline broadband Internet access service is
an information service and the obligations in section 251, including
the unbundling obligations. The Commission will, of course, implement
and enforce the law, including unbundling of the local loop for
telephone service, regardless of its ultimate conclusion with respect
to the classification of wireline broadband Internet access service.
Moreover, the Commission has authority pursuant to Title I of the Act
to impose access obligations for the provision of services falling
within Title I. Indeed, the Commission exercised this authority in the
Computer Inquiries proceedings, which initially recognized distinctions
between telecommunications and information services. My hope is that
the record on these questions will inform our understanding and help
shape future Commission policy regarding the ability of competitors to
obtain unbundled network elements for broadband services.
Question. If CLECs and ISPs are unable to obtain Bell facilities in
order to provide broadband service, would this allow the ILECs to
leverage their existing local monopolies into the broadband and
Internet business and residential markets? If so, how would this result
be consistent with the competitive requirements of the 1996 Act, and
the FCC's own longstanding precedent in the Computer II and Computer
III cases?
Answer. At the outset, I would note that ILECs' ability to leverage
their market power in local telephony would be constrained by the
presence and growth of other broadband providers, such as cable modem
service providers. For example, cable modem providers enjoy a marked
lead over ILEC broadband DSL providers in terms of buildout and
subscribers, particularly in the residential markets. With such real
broadband alternatives available to consumers, ILECs will risk losing
subscribers to cable if they attempt to exercise market power.
That said, the Commission's mandate under the 1996 Act is to
encourage robust competition among various communications providers. We
are therefore examining the regulatory requirements that should apply
to the provision of broadband services so that we can preserve and
encourage opportunities for broadband competition in light of the
ILECs' position in the local exchange market. The Broadband NPRM seeks
comment on whether the Computer Inquiry requirements, which provide for
access to Bell facilities based on assumptions shaped largely by
certain service and market characteristics that were prevalent decades
before passage of the 1996 Act, should be modified or eliminated for
the nascent broadband market. Notably, we have not reached any
conclusions, tentative or otherwise, on whether to require access to
Bell facilities to provide broadband Internet access service.
We are conducting the Broadband NPRM in conjunction with the
Incumbent LEC Broadband Notice in which we are examining the
competitive characteristics of the domestic broadband
telecommunications services market and the appropriate regulatory
framework that should apply to the incumbent LEC provision of these
services. We recognize that the findings related to market power that
we may make in that proceeding can inform our decision in the Broadband
NPRM. Specifically, to the extent that the Commission finds there is
sufficient competition in the broadband telecommunications services
market to warrant modification of some or all of the Computer Inquiry
requirements, but not enough competition to warrant complete
deregulation, we will consider alternative requirements.
Question. Could you share views as to how the FCC's broadband NPRM
will impact existing CLECs and ISPs seeking access to incumbent
networks in the market? In answering this question please explain your
view as to the NPRM's impact on market certainty, private capital's
flow to competitors, and your view as to the future financial viability
of competitors in light of the NPRM.
Answer. The NPRM has no immediate impact because it only serves to
initiate a rulemaking and does not change existing Commission rules or
precedent. Rather, the NPRM expressly seeks comment on the implications
of the classification of Internet access as an information service on
key legal and policy objectives, such as unbundling, access and
universal service obligations. One of my primary goals, however, is to
provide as much regulatory certainty and clarity as possible in order
to promote investment and innovation in broadband-capable networks and,
in turn, investment and innovation in the services and applications
that will ride over those networks. Therefore, a main focus of our
pending proceedings is to ensure clarity, certainty, and predictability
in the rules governing local competition and broadband. Furthermore, it
is worth mentioning that, in some instances, capital has been flowing
to some CLECs who are building their own facilities.
While these are difficult questions, I firmly believe that we must
answer them now in order to provide market certainty and flow of
capital. Only with these answers will incumbents and competitors know
what to expect and be able to make prudent decisions to build and enter
new broadband markets. We can encourage capital flow to competitors by
minimizing regulatory costs and uncertainty in our rules governing
broadband and engaging in swift enforcement when those rules are
compromised. While I realize that recent economic conditions have made
it difficult to compete, I believe that creating a regulatory
environment in which competitors can access the incumbents' networks
through certain and established mechanisms, even if they are market-
based arrangements, will encourage investors.
Question. Currently the FCC has a number of proceedings that
address issues such as whether RBOCs should be declared nondominant in
the provision of broadband services, whether RBOCs should no longer
have to provide high capacity unbundled network elements, and whether
RBOC broadband services and facilities used to provide Internet access
should be reclassified as information services. Do you intend in these
proceedings to reduce a state commission's authority to implement or
enforce the Telecommunications Act of 1996 or to take away the
authority of state commissions to promote competition for local
telecommunication services? Would these proceedings impact state
commissions ability to protect consumers in any way?
Could these proceedings promote duopoly competition as opposed to
multiple competitors across multiple platforms? Would these proceedings
result in de facto duopoly markets even if that is not your intent?
Answer. Our state partners play a key role in promoting competition
and protecting consumer interests. On these issues we share the same
goal as our state colleagues to ensure that our policies afford
consumers high-quality, innovative services provided in a robustly
competitive market. Moreover, because of the importance of the state
role, we expressly sought comment in the proceedings you reference, on
state views concerning broadband deployment. We also recognized that
states bring particular knowledge of their local competitive landscapes
and consumer concerns. We look forward to input from our state
colleagues on these issues.
Our intent in these proceedings is to create consumer benefits
through increased competition. That competition will come, as it has to
date, in many forms, including competition between and among different
broadband delivery platforms (intermodal competition). In our Triennial
Review proceeding to update incumbent LECs' unbundling obligations, for
example, we will continue to require unbundling as Congress directed in
section 251 and will tailor incumbent LECs' unbundling obligations to
where competitors are actually impaired without access to the
incumbents' networks. We therefore expect intramodal competition
through access to the incumbents' networks to continue to be a viable
option for some competitors. In combination with the growth in
intramodal competition through new wireline facilities construction,
and the growth in intermodal competition from cable, wireless,
satellite, and fixed wireless providers, the possibility of duopoly is
remote.
Question. The Telecommunications Act of 1996 promoted both inter-
modal and intra-modal competition. Intra-modal competition is affected
by the ability of CLECs to use unbundled loops and other pieces of the
ILEC networks to provide services to customers. Do you believe the FCC
should continue a policy of promoting and enforcing both modes of
competition equally?
Answer. Yes. The Commission's responsibility is to interpret and
execute the Telecommunications Act in a manner that is faithful to
Congress's intent and promotes the public interest. Thus, the
Commission is statutorily bound to require incumbents to permit both
facilities-based and non-facilities-based entry. Moreover, faithful to
this statutory mandate, the Commission has implemented regulations that
provide competitors with unbundling and resale rights consistent with
market-opening provisions of the Act. At the same time, the Commission
has previously recognized that only through the promotion of
facilities-based competition, which creates greater opportunity for
innovation and price differentiation, will sustainable competition take
root in the marketplace. So long as the Commission continues to find
that competitors are impaired without access to the incumbents'
networks, then the Commission will enforce unbundling rules on the
incumbents, thus promoting intramodal competition. Our overall
objective, however, is not to pick winners or losers, but to encourage
competition in order to deliver benefits to consumers.
Question. Setting aside rural and underserved areas, would you
agree that low consumer demand for broadband services is a greater
obstacle to widespread broadband adoption than the pace of broadband
deployment?
Answer. No. Widespread consumer adoption of broadband requires both
availability and demand. With respect to availability, the Commission
recently concluded its third inquiry concerning the availability of
advanced telecommunications capability in the United States. Although
the Report focused on the availability of advanced services capability,
we acknowledged the important relationship between demand and
deployment and recognized that subscription rates may influence
business and investment decisions. The Report indicates that high-speed
subscribers were reported in 78 percent of the zip codes in the United
States and 7 percent of American households subscribe to high-speed
services. But it remains unclear whether subscribers throughout these
zip codes, particularly in residential areas, generally have any choice
in broadband infrastructure providers. Thus, in keeping with the Act's
mandate that we encourage deployment ``to all Americans,'' we must
continue to find new ways to promote broadband infrastructure
investment.
Demand can be a useful measure of consumers' appetite for certain
broadband applications, or their willingness to pay for broadband
services. Nevertheless, I am hesitant to speculate about the meaning of
adoption rates at this time. Indeed, the broadband market is continuing
to develop, and many questions remain as to what broadband services
consumers will value. At this early stage, I believe that it is
important to ensure that the market takes its cues from consumers, and
that market participants should be given the opportunity to resolve
challenges of matching supply to demand through relative marketplace
advantages in areas such as marketing, service and innovation.
Question. On November 8, 2001, in conjunction with the FCC's Notice
of Proposed Rulemaking, Performance Measures and Standards for
Unbundled Network Elements and Interconnection et al., CC Docket Nos.
01-318 et al. you made the statement:
``This Notice acknowledges what has been apparent for some time:
that facilities-based competition is the mode of market entry most
likely to foster simultaneously and sustainably the Act's mandates of
competition, deregulation and innovation.''
On February 27, the FCC released data on the status of competition
in the local telephone market. The report cited a growth rate of 16
percent in the CLEC market during the first six months of 2001. In
terms of how the service is provided, CLEC's reported: 33 percent of
lines were served using their own facilities; 23 percent by reselling
ILEC services; and 44 percent by using unbundled network elements.
In light of the fact that almost half of the total competition is
provisioned through UNEs, and given the reluctance of capital markets
to advance funding for facilities-based construction, do you believe
that facilities-based competition is most likely mode to bring about
competition in the local telephone market?
Answer. We believe that facilities-based competition holds the most
promise, in the long run, for sustained competition and the consumer
benefits that competition brings. Facilities-based competition creates
greater opportunity for innovation and price differentiation. The
Commission has also been clear, however, that with respect to
facilities-based entry, we seek to promote entry not only by fully
facilities-based carriers, but by those facilities-based carriers that
purchase UNEs, such as the local loop, as well. Indeed, investment in
facilities also furthers public safety and infrastructure development
goals, which have become increasingly important since the events of
September 11th. At the same time as we implement the Act's mandate to
make unbundled network elements and resale options available to CLECs,
I am encouraged by the fact that even during the first six months of
2001, the number of customers served by CLEC-owned lines actually grew
by 11 percent. That being said, our pending proceedings do not--and
could not consistent with the statutory framework--contemplate
eliminating unbundled access to incumbent facilities for competitors
seeking to provide telecommunications services.
Question. Can the FCC realistically hope to meet the burden imposed
by the Fox case of showing, every two years, the necessity of retaining
your broadcast ownership and many other telecommunications rules? If
not, will the Commission seek further review of the D.C. Circuit's
decision, or should Congress act to revise the biennial review
provisions included in the 1996 Telecommunications Act?
Answer. Section 202(h) of the Telecommunications Act of 1996
requires the Commission to review its media ownership rules biennially
to determine if these ``rules are necessary in the public interest as
the result of competition.'' The statute also states that once the
agency makes the determination, it must ``repeal or modify any
regulation it determines to be no longer in the public interest.'' In
Fox Television Stations, a three-judge panel of the D.C. Circuit
addressed the Commission's 1998 and 2000 determinations not to repeal
or modify the national television broadcast ownership rule (NTSO) or
the cable-broadcast ownership rule (CBCO). The Commission had argued
that its determination was appropriate because the rules continue to
serve the public interest. The Fox court held, however, that, in order
to retain the rules, the Commission was required to show not only that
that the rules serve the public interest, but rather that they remain
``necessary'' to serve the public interest. The court also held that
the Commission failed to satisfy that standard. See Fox Television
Stations v. FCC, 280 F.3d 1027, 1042 (D.C. Cir. 2002) (``Commission has
no valid reason to think the NTSO Rule is necessary to safeguard
competition.''). Specifically, under the Court's interpretation of the
statute, the Commission must review and prove, every two years after
any rule's promulgation, each media ownership rule is ``necessary'' to
serve the public interest. The Commission respectfully disagrees with
the court's decision. As required by federal regulations (28 C.F.R.
0.20), the Commission is discussing with the United States Department
of Justice and the Office of the Solicitor General the possibility of
appealing. If a decision is made not to seek further review of the
court's ruling, or if the government seeks further review and the Fox
decision is not reversed, then the Commission will be bound by the
court's decision unless the Congress revises the biennial review
statute to clarify that the statute does not impose a higher burden on
the Commission than that already required for agency rulemaking, i.e.,
the rule must not be arbitrary or capricious.
Question. Because the D.C. Circuit vacated the cable/broadcast
cross-ownership rule without giving the Commission a chance to
reconsider its significance in the digital age, does the Commission
plan to challenge the Court's order to repeal the cross-ownership rule?
Answer. As an initial matter, the D.C. Circuit ruling in Fox
permits the Commission to reissue the cable/broadcast cross-ownership
rule if it can justify the rule. See Fox Television Stations v. FCC,
280 F.3d 1027, 1052 (D.C. Cir. 2002) (``[i]f the agency wants to re-
promulgate the Rule and is able to justify doing so, it presumably can
require any entity then in violation of the Rule to divest either its
broadcast station or its cable system in any market where it owns
both.''). The court vacated the CBCO rule because it doubted that the
Commission would be able to justify the re-issuance of the rule. The
Commission is also discussing with the United States Department of
Justice and the Office of the Solicitor General the possibility of
seeking further review of the Fox court's decision to vacate the CBCO
rule.
Question. Please detail for Committee the specific steps taken by
your media ownership working group to examine consolidation in the
media marketplace. Please detail what steps are planned to conduct
detailed, objective analysis of media consolidation and its impact on
diversity of ownership, diversity of viewpoints, and on localism. Do
your analyses plan to include research conducted by retained outside
market experts, economists, and academics capable of performing the
significant objective market research necessary?
Answer. I am committed to improving the factual record on which the
Commission addresses media ownership issues. Although I am confident
that the public will submit insightful, factual information about the
media market in our ownership rulemakings, I took the step of
establishing the media ownership working group to improve our
collective understanding of the media market. At this point, I
anticipate that the group will focus its work on three areas:
1. How do consumers experience the media? It is essential that the
Commission put the consumer at the center of our media ownership
policymaking. We can do that only if we have a better understanding of
how Americans use the various media options available to them. For
instance, I would like to know the extent to which various media
outlets might be substitutes for one another. Existing Commission
ownership rules make assumptions about how consumers substitute among
media, but we need better data about the nature of that behavior to
ensure that our current rules are based on today's market reality. I
expect the ownership group will address these questions both by
studying past consumer usage of different media as well as conducting
an actual survey of consumer attitudes.
2. How has the media landscape changed over time? We understand
that growth in electronic media options at the national level has
expanded dramatically, but Americans experience media at the local
level, not the national level. Therefore, we need to ask questions such
as ``What did the media world look like to a resident of a particular
market in 1960 versus today? How do those changes compare to the
changes experienced by a resident of another market between 1960 and
today?'' Data such as these will give us valuable context for
addressing our media ownership questions.
3. How do media market structures affect output? We intend to take
advantage of past rule changes and waivers of our ownership rules to
study whether certain market structures affect competition, diversity
and localism. For example, I would like to know the extent to which
broadcast-newspaper combinations affect viewpoint diversity and
competition, as well as any other benefits or costs they have produced.
Since there are a number of grandfathered broadcast-newspaper
combinations, we will study how they affect the realization of our
policy goals.
Finally, Commission economists and attorneys and outside experts
will perform the media ownership working group's research and analysis.
I have full confidence that all the contributors to the media ownership
group have the expertise and objectivity to perform the analysis that
the Commission requires.
Question. You've had a DTV Task Force in place since last year.
Tell us what steps the FCC plans to take, and when, to move the
transition to digital television forward?
Answer. In October 2001, I announced the formation of a Digital
Television Task Force at the FCC. The Task Force is a cross-Bureau,
cross-disciplinary group that has several functions, including: (1)
helping to coordinate and establish priorities for the Commission's DTV
efforts; (2) bringing outside parties together to attempt to resolve
important issues that may be impeding the transition; and (3) providing
a single point of contact for outside parties on DTV matters. More
broadly, the Task Force reflects my commitment to doing everything we
can to move the DTV transition forward for consumers and to recover
spectrum for other uses such as public safety and advanced wireless
services. At the same time, I believe we need to recognize that the
success of the transition depends in no small measure on consumer
demand for services and purchase of equipment over which the FCC has no
direct control.
During the past several months, the Task Force and other Commission
staff have taken proactive steps in several areas, including the DTV
build-out, cable compatibility and copy protection. Regarding the
build-out, for instance, we temporarily deferred some of our regulatory
requirements to make it less expensive for broadcasters to get on the
air with a digital signal. On cable compatibility and copy protection,
the Task Force has held several meetings with the consumer electronics
industry, cable, content producers, and others, in an attempt to work
through some of the difficult issues that may be hindering the
transition. While much work remains, I'm encouraged by the results thus
far. We plan to stay actively involved in these issues to ensure that
progress continues.
We also have several ongoing proceedings at the Commission related
to the DTV transition e.g., DTV must-carry, mandatory DTV tuners and
labeling for ``cable ready'' DTV sets--that I hope to act on as
expeditiously as possible. Most immediately, we are conducting a close
staff examination of the approximately 850 extension requests filed by
commercial broadcasters seeking relief from the upcoming May 1, 2002
build-out deadline. We will work with those broadcasters that have
demonstrated a legitimate need for an extension, to help them get on
the air with a digital signal as soon as possible.
In addition, I anticipate that we will initiate at least two other
proceedings in the coming months to move the DTV transition forward.
First, I plan to ask the Commission to begin a proceeding to develop
rules for low-power stations and TV translators to make the transition
to digital. These stations play an important role in our broadcast
system, and we need to begin the process of helping them make the
transition to digital. Second, we will begin our next periodic review
of the progress of the conversion to digital television, a review that
the Commission undertakes every two years to ensure that progress on
the transition continues and that any potential sources of delay within
our purview are eliminated.
In sum, I am committed to doing what we can to promote a smooth and
expeditious DTV transition for the American public, and I look forward
to working with the Committee as the transition continues to progress.
Question. Last fall, the FCC received a petition proposing to open
the 70 and 80 GHz frequencies for commercial ``gigabit broadband'' use
and setting forth spectrum license rules that would expedite such use.
What is the Commission's schedule for beginning and completing the
rulemaking?
Answer. On September 10, 2001, Loea Communications Corporation
filed a petition requesting the commencement of a rulemaking proceeding
to adopt service rules governing the licensing and point-to-point use
of the 71.0-76.0 GHz and 81.0-86.0 GHz (70-80 GHz) spectrum bands. The
Commission promptly sought comment on Loea's Petition. The period for
filing comments to Loea's Petition ended on November 13, 2001.
Commission staff is currently analyzing the comments received and the
technical issues involved in establishing service rules for this
spectrum, which is shared with the government.
The Commission expects to initiate a formal proceeding on Loea's
Petition during the second quarter of 2002. Licensing the 70-80 GHz
band will require consideration of a number of intricate issues; thus
it is difficult at this time to predict a completion date for the
rulemaking. In particular, the shared aspect of the spectrum (between
government and non-government) will require careful coordination of
this proceeding with the National Telecommunications and Information
Administration.
Question. What efforts are being made by the FCC to follow
Congress' directive under section 222 of the Act to ensure that
wireless location information cannot be used by carriers without the
prior consent of a wireless subscriber? Does the Act provide the FCC
with sufficient authority to similarly limit the re-disclosure of
wireless location information by third parties or must Congress provide
future legislative authority?
Answer. The statutory amendments to section 222 of the Act
addressing privacy of wireless location information became effective on
October 26, 1999, and telecommunications carriers are bound by those
requirements. Carriers are aware of the requirements and, to our
knowledge, the carriers are following them. Indeed, in November 2000,
the Cellular Telecommunications and Internet Association (CTIA) filed a
petition for rulemaking seeking adoption of certain privacy principles
pursuant to the wireless location information provisions of section
222. The Commission issued a Public Notice on March 16, 2001,
requesting comment on the petition. The record has now closed and the
Commission is analyzing the comments and reply comments that were
received.
As to the breadth of the statute, by their terms, the wireless
location information provisions, as part of the overall statutory
scheme of section 222, apply only to telecommunications carriers. The
terms of the provisions do not expressly address non-carriers and,
thus, the privacy limitations imposed on carriers' use or disclosure of
wireless location information would not appear to be directly
applicable to third parties' use or disclosure of such information. A
number of parties have raised the issue of third-party disclosure of
location information in the context of the CTIA petition for
rulemaking, however. Thus, this issue is before the Commission for
consideration.
______
Questions Submitted by Senator Daniel K. Inouye
Question. The FCC recently concluded that broadband service is
being deployed in a timely manner. I also understand that broadband has
achieved 10 percent penetration in 4 years and that compares favorably
with the adoption rates for other consumer technologies such as PCs (10
percent in 4 years), CD players (10 percent in 4.5 years), cell phones
(10 percent in 8 years), VCRs (10 percent in 10 years), and color TVs
(10 percent in 12 years). The Congress may need to work to make sure
that broadband is deployed in rural or underserved areas. However,
deregulation of ILECs won't solve this problem. Therefore, in light of
this, why has the FCC proposed in its Broadband rulemaking proceeding
to take action so drastic that it would undermine competition under the
guise of deploying broadband service.
Answer. I agree that the penetration and deployment rates for
broadband have been encouraging as we recently announced in our 706
Report to Congress. These facts alone, however, do not establish that
the Commission has achieved the broadband deployment goals that
Congress set forth in the Act. Section 706 mandates that the Commission
promote the deployment of broadband to all Americans using tools such
as regulatory forbearance and the removal of barriers to infrastructure
investment. To satisfy this mandate, we must facilitate the deployment
of at least one and preferably multiple broadband infrastructures
throughout the Nation. At the same time, we must safeguard the ability
of competitors to use the incumbent telephone company network to
provide telecommunications services, as prescribed by the Act. By
clarifying the regulatory classifications and treatment of wireline
broadband Internet access service, I believe that we will improve the
environment for competition by providing both incumbents and
competitors with the certainty they need to make decisions to build and
deploy broadband. I also believe that to the extent that our final
rules remove regulatory barriers to deployment, we will remain faithful
to the Congress' directive to ``preserve the vibrant and competitive
free market that presently exists for the Internet and other
interactive computer services, unfettered by Federal and State
regulation.'' In addition, by clearly defining and developing the rules
under which broadband services will be regulated, the Commission will
allow for a more stable environment for the investment needed to build
broadband-capable networks. By providing regulatory clarity in this
area, the Commission will serve to lower the risks associated with
investing in these networks, which in turn should help spur the
deployment of broadband-capable networks to all Americans and provide
for an environment that promotes investment and innovation in broadband
services and applications.
Question. In October of last year, the Commission granted waivers
submitted to the six largest wireless carriers from the FCC's ``E911''
rules. These rules would require that wireless carriers make certain
information available to public safety entities in order to help
pinpoint the location of wireless callers. In adopting these waivers,
the FCC required each of the six carriers to comply with specific
implementation schedules with enforceable, interim benchmarks that
would ensure the timely, nationwide rollout of E911 services by 2005.
Today, not five months later, three of the six carriers have already
filed additional waivers and a fourth (Nextel) has no need to file a
waiver yet, because its first benchmark will not occur until the end of
this year. Given these developments, is the Commission committed to
aggressively enforcing these rules and to looking disfavorably upon
further waivers?
Answer. The Commission is committed to having Phase II of E911
deployed as soon as possible, and to pursuing aggressive enforcement
action where necessary and appropriate. As the Commission acknowledged
when it first adopted the E911 requirements, the implementation of
wireless E911 is very complicated. Wireless location technology did not
exist at the time of the original mandate, and has developed
differently than originally predicted. Adding to the complexity of the
problem is that Phase II deployment requires coordinated action by the
CMRS carriers, their vendors, the incumbent local exchange carriers,
and local public safety entities. In light of these complications, the
Commission recognized that, in some situations, individual carriers
might have to seek relief from certain of the requirements.
In September 2000 and October 2001, the Commission granted
individualized waivers to the six large nationwide wireless carriers
AT&T, Cingular, Nextel, Sprint, Verizon, and VoiceStream conditioned
upon adherence to detailed E911 Phase II compliance plans proposed by
each carrier. The orders granting these waivers sent a clear message to
carriers that there will be penalties if they fail to comply with the
rollout schedules contained in their plans. Further, the orders signal
that the Commission will look disfavorably upon any requests for
further relief, indicating that they will not be entertained absent
``extraordinary circumstances.''
The Commission has already referred two carriers to the Enforcement
Bureau regarding their TDMA markets, and we will not hesitate to make
more referrals to ensure that E911 capability is implemented as quickly
as possible. It should be noted that while certain of the nationwide
carriers have again requested additional time, others appear to be on
track to meet their benchmarks. We applaud the efforts of these
carriers in leading the way in deployment of this lifesaving
technology.
Question. It has been just over four years since the Commission
released a Notice of Proposed Rulemaking on updating its rules for the
Direct Broadcast Satellite (``DBS'') Service. Since the NPRM was
issued, a vast consolidation has occurred among DBS licensees. In
addition, after years of waiting, DBS licensees have only recently
begun providing DBS programming packages to consumers in Alaska and
Hawaii. Unfortunately, much of the subscriber packages are not
comparable with the programming that is available to consumers in the
mainland 48 states and are not competitive with cable television
services in Hawaii.
The 1998 NPRM proposed to improve the FCC's geographic service
requirements in order to ensure that consumers in Alaska and Hawaii are
provided with comparable multichannel video programming opportunities
as consumers in the rest of the United States. Unfortunately, the
Commission has not yet released an order in the proceeding resolving
the issue. Recognizing the importance of comparable multichannel video
programming opportunities for residents in Alaska and Hawaii, when does
the Commission estimate it will be able to release an order concluding
this long-pending proceeding?
Answer. The Commission is in the process of completing its DBS
rulemaking that addresses service to Alaska and Hawaii, among other
issues. We expect to release an order in the near future. In the
process of our consideration, Commission staff has carefully reviewed
the numerous ex parte filings of the State of Hawaii and we share the
state's concern that its citizens, as well as those of Alaska, receive
DBS service. According to recent filings, Hawaii is receiving DBS
service but with fewer channels than are available to mainland
consumers. We note that the Commission has undertaken several efforts
over the years to facilitate joint discussions with government
representatives from the States of Hawaii and Alaska and the two DBS
licensees, and that thereafter, offerings of DBS service in those
states improved.
Question. Media consolidation is of great concern to me. I have
been troubled by some of your comments that ownership caps are based on
``romantic notions.'' Although the level of consolidation in the media
industry in the marketplace today may not rise to the level of a
violation of our antitrust laws, it nonetheless may have an adverse
impact on such public interest objectives as diversity of ownership,
diversity of voices, and localism. Will you work to honor these public
interest objectives?
Answer. I remain fully committed to a media market that is not only
robustly competitive but that is serves the Commission's longstanding
goals of localism and diversity. Our framework for achieving these
goals will give significant attention to how consumers actually use the
media so that our ownership policies truly reflect the realities of
today's media environment. Our framework also will consider how
existing regulations affect the continued economic viability of media
outlets such as local broadcast television stations and broadcast
television networks. I continue to have concerns about how some of our
rules affect the financial health of broadcasters, especially in small
and medium sized markets and television networks.
With respect to our policy goals of promoting competition,
diversity and localism, our challenge is to develop a method of
analysis that fairly reflects all of these objectives. There are well-
settled metrics for assessing how certain market structures promote or
diminish competition in economic markets, including media markets. But
far less thought has been given to how various market structures affect
``viewpoints'' and ``localism.'' I intend to bring a closer scrutiny to
these concepts so that we have real-world evidence to inform our media
ownership decisions.
Question. What steps are being taken by the FCC to identify and
clear new spectrum that can be used by the CMRS industry to provide 3G
broadband services? What if any obstacles must Congress address to help
facilitate this process?
Answer. Due to the increased growth of wireless mobile services and
requests for additional spectrum to support 3G, or advanced wireless
services, the Commission initiated a rulemaking proceeding seeking
public comment on potential frequency bands for 3G wireless systems, as
well as potential frequency bands for relocating incumbent spectrum
users. In addition to the ongoing Commission rulemaking proceeding, and
because some of the spectrum that may be allocated for 3G wireless
systems is currently allocated for federal government use, last
October, FCC staff and the National Telecommunications and Information
Agency (NTIA) began a joint interagency staff-level effort to examine
and develop possible spectrum options for 3G wireless systems. This
effort is also evaluating the potential for sharing between 3G wireless
systems and current spectrum users, as well as reviewing possible
options for relocation spectrum.
FCC staff are focusing on a 60 MHz block of spectrum--from 2,110-
2,170 MHz--that is currently allocated for commercial use, and the
executive branch agencies are focusing on a 60 MHz block of spectrum--
from 1,710-1,770 MHz--that is currently allocated for federal
government users, most notably the U.S. Department of Defense.
Importantly, the U.S. Congress has already facilitated this process and
has previously mandated that 45 MHz of spectrum be transferred to the
commercial sector from the federal sector--from 1,710-1,755 MHz. Thus,
one of the principal focuses of the interagency staff working group is
to determine the feasibility of whether an additional 15 MHz of
spectrum--from 1,755-1,770 MHz--can be made available for commercial 3G
wireless systems. The U.S. Department of Defense currently operates
over these frequencies.
This interagency effort is scheduled to be completed in late spring
of this year. The result of this assessment will be considered, along
with all of the other information in the public record, in the ongoing
Commission rulemaking proceeding relating to 3G services. Because there
is existing consumer demand for these services, the Commission will
strive for an expeditious resolution of these spectrum issues.
However, because reaching careful and complete decisions as to
appropriate spectrum for 3G services is of considerable significance to
the economy and the national security of the United States, I do have
graver concerns about the current statutory auction deadline of
September 30, 2002, established by the Balanced Budget Act of 1997.
While the FCC, NTIA, and other federal agencies have worked diligently
since October 2000 to identify appropriate 3G spectrum, and much
progress has been accomplished toward completing this joint interagency
effort to select the 3G bands by late Spring 2002, it is becoming
increasingly clear that the original timeframe contemplated for auction
of 3G spectrum is not consistent with our obligations to act in the
best interests of national security and sound spectrum management.
The Administration has already suggested the need for legislation
that would shift the statutory auction deadlines from September 30,
2002 to September 30, 2004. As the Secretary of Commerce wrote to
Congress, ``[w]hile the Federal Government is committed to identifying
spectrum for 3G services as expeditiously as possible, the current
statutory auction deadline affecting certain of the bands under
consideration does not provide sufficient time to conclude the
identification process and conduct an auction before September 30,
2002.'' I note further that the President's fiscal year 2003 budget
plan endorsed moving the auction deadline to September 30, 2004.
Congress' support for flexibility and relief from the auction dates
would be appreciated.
______
Questions Submitted by Senator Barbara A. Mikulski
Question. Access to high-speed Internet connections is crucial to
consumers and communities in today's economy. High speed connections to
the Internet can provide a lifeline to small business, schools and
hospitals and can help communities prosper and grow in the Information
Age.
It is my understanding that the FCC has been grappling with a
solution--how big a fund, who should pay in and who should receive
payouts since the enactment of the Telecommunications Act of 1996.
Can you tell me what you are doing to address the issue of
universal service as it applies to the Internet to ensure that
residential and business customers, as well as rural and urban, have
service and a choice about to who serves them?
Answer. I agree that widespread deployment of broadband
infrastructure has become the central communications policy objective
of our day. The Commission is acting to remove barriers to deployment
and investment and minimize the cost of bringing service to consumers
by minimizing regulatory costs. In doing so, the Commission is actively
working to promote broadband availability throughout the Nation over
multiple technical platforms.
As shown by our recent report to Congress, advanced services are
being deployed by wireline carriers, cable providers and satellite
operators in a reasonable and timely manner. We believe that by
promoting the development and deployment of broadband services over
multiple platforms, competition in the provision of these services can
thrive, and thereby ensure that the needs and demands of the consuming
public are met. I assure you that I am committed to preserving and
advancing universal service and encouraging the ubiquitous availability
of broadband to all Americans.
We are examining how to accomplish these goals through a variety of
vehicles, including our recent examination of the classification of
wireline broadband Internet access and our on-going examination of the
way in which universal service contributions are collected. I am
confident that all of these actions taken together will continue to
ensure that broadband services are deployed throughout the nation.
Question. What effect has more choice had on prices for broadband
services? In areas of the country where consumers have less choice in
providers, are prices generally higher or lower for those services as
compared to areas that have more competition?
Answer. The Commission does have some data on the national range of
prices for broadband services. We do know that for basic ADSL services,
monthly charges range from $45 to $59, and installation charges range
from free to $250. Free installation generally requires that customers
install premises equipment themselves. For cable services, monthly
charges range from $45 to $60. On the other hand, Starband, one of only
two major satellite providers, charges a monthly fee of $70. Starband's
customers also buy an equipment package that retails for $499. The
standard installation charge for that equipment starts at $199. This
data suggests that customers whose only option is satellite are paying
more on a monthly basis for broadband services and are also paying one-
time fees that are at least as costly as those charged by other
providers.
That said, both the cable television and telephone industries
appear to price their high-speed Internet access services (cable modem
service and DSL respectively) largely in a uniform manner across
markets independent of whether or not the other service is available in
a particular market. For example, cable operators typically price cable
modem service at between $45-$50/month across their markets. Likewise,
Verizon, for example offers four price points for it's DSL service
($49.95, $59.95, $69.95, and $79.95) depending upon data speed and
other features independent of whether a local area has cable modem
service. Some cable operators and DSL providers have ``specials''
including free modems, free first month(s), or lower prices for the
first several months of service. These marketing specials appear to be
more frequent now that both cable modem service and DSL are more widely
available and perceived by consumers to be competitors.
Question. Would you please describe the status of the CLEC industry
today? Are there more or fewer competitive providers than there were
three years ago? Please give specific numbers, if possible.
Answer. Although we do not collect data on the number of CLECs
providing service per se, we do measure the CLEC industry by the number
of access lines served by competitors. The Commission's most recent
statistics on the CLEC industry reflect data from June 30, 2001 and
show a 16 percent growth in CLEC market size during the first six
months of 2001. This builds on top of a 63 percent increase in the six
months ending December 2000. I recognize that recent economic
conditions have made it difficult to compete in the telecommunications
sector and that a number of CLECs have exited the market. The FCC is
absolutely committed to doing what it can to stimulate competition in a
manner that comports with the statute and with market dynamics. We are
therefore taking a number of actions that CLECs have requested to
improve their ability to provide service. Specifically, we have
strengthened enforcement of our local competition rules, initiated
rulemakings on performance measurements for unbundled network elements
and special access services that incumbent LECs provide to CLECs, and
we have been working with the Local State Government Advisory Committee
to improve access to rights-of-way.
Question. Is the availability of investment capital a major part of
the problem facing the CLEC industry today?
Answer. Yes. Capital is less available to the CLEC industry today
than it has been. Although the Commission cannot be guided by reacting
to short-term fluctuations in the capital markets, one of our primary
goals is to provide as much regulatory certainty as possible in order
to promote investor confidence. Therefore, a main focus of our pending
proceedings is to ensure clarity, certainty, and predictability in the
rules governing local competition and broadband. Furthermore, it is
worth mentioning that, in some instances, capital has been flowing to
some CLECs who are building their own facilities. In addition, cable
telephony providers are competing with ILECs without relying on
incumbent network facilities. Indeed, even in the first six months of
2001, the number of customer lines served by CLEC-owned facilities grew
by 11 percent.
Question. It is my understanding that the FCC has recently
initiated three major proceedings Docket 01-338, which is considering
whether to eliminate high capacity Unbundled Network Elements; Docket
01-337, which is considering whether the Bell companies should be
declared non-dominant in the provision of broadband services and
facilities; and Docket 02-33, which is considering whether the Bell
companies' broadband services and facilities used to provide Internet
Access should be reclassified and removed from the regulations that
apply to telecommunications services. All three of these proceedings
are considering fundamental changes to the rules and regulations that
govern the provision of broadband services to consumers.
What effect will these proceedings have on consumers of broadband
services who are currently served by competitive carriers who rely upon
access to unbundled network elements at TELRIC prices? Will these
consumers be able to continue receiving services if the Commission
decides to eliminate some unbundled network elements or decides to
change the pricing structure?
Answer. The Commission launched the three proceedings you have
referenced to consider in a unified way, the appropriate legal and
policy framework for broadband services. The goal of these proceedings
is not to reduce consumer choice but to ensure a robustly competitive
market for broadband services generally. Ultimately, when the
Commission reaches its conclusions in these proceedings, it will
consider whether the interests of consumers not individual competitors
are served.
Clearly, one of our primary goals is for consumers to have the
opportunity to access broadband services from a variety of sources. Our
Triennial Review (Docket No. 01-33) evaluation of the incumbent LECs'
wholesale obligations to make their facilities available to competitive
LECs for the provision of broadband services is designed to evaluate
these rules, first adopted in 1996, in light of the six years of real
market experience we have gained. This proceeding was scheduled to take
place at this time to ensure that our unbundling rules keep pace with
market realities. Integral to our unbundling analysis is whether viable
alternatives to the incumbent network are available to competitors to
serve their customers. If we were to determine that certain elements
were no longer unbundled, it would be based, in part, on our assessment
of available viable alternatives. Through these alternatives, consumers
would be able to continue to receive services from competitors.
The second proceeding you reference (Docket No. 01-337) would have
no effect on the availability and pricing of network elements used by
competitors to provide service.
In the Broadband NPRM, Docket No. 02-33, which examines the
appropriate classification of broadband Internet access services under
the Act, the Commission also asks many questions about the appropriate
approach to providing competitive broadband providers with access to
the incumbent LECs' networks to provide services. We look forward to
vigorous comment and analysis on this issue in the record.
______
Questions Submitted by Senator Herb Kohl
Question. The FCC's 1997 Benchmark Order continues to be effective
in driving down U.S. carriers' international settlement charges and
prices to U.S. consumers. However, there are two areas that need
attention.
First, I understand that foreign carriers are beginning to charge
higher prices for completing calls from the United States to mobile
phones overseas. With the growth of mobile phone usage worldwide, this
new factor could undo the positive impact of the Benchmark Order. What
could the FCC do to work with foreign regulators and carriers to lower
these charges that are raising U.S. consumer prices?
Second, even with full implementation of the Benchmark Order,
settlement rates will remain at levels that are above cost. In some
instances, these high rates create profit incentives for scam operators
to devise schemes that lure American consumers to unknowingly place
international calls. In any event, these settlement rates are certainly
above the levels that we consider reasonable for call termination in
the domestic marketplace.
Is it time to update the Benchmark Order, and beyond that, what
other steps can the Commission take to ensure that U.S. carriers and
consumers are not paying too much for international calling?
Answer. Foreign regulatory authorities are concerned that
termination rates on mobile networks may be too high and thus,
adversely impact consumers. At the same time, the Commission is
continuing to look at ways to achieve lower consumer rates for
international calls. Through continued enforcement of the benchmarks
policy and interaction with foreign regulators and multilateral
organizations, the Commission can reinforce the importance of lower
accounting rates to U.S. and foreign consumers and carriers. Thus, the
FCC is determined to continue discussions with our regulatory
counterparts overseas. In these discussions, we will note the impact on
U.S. consumers when international calls are completed on mobile
networks and share our experiences with respect to mobile termination
in the United States. Termination rates on mobile networks in the
United States are often lower than similar rates in foreign markets.
Pursuant to the policies the Commission set forth in its Benchmarks
Order, there remains one additional round of foreign routes (countries
with a teledensity that is less than 1) for which carriers must
negotiate benchmark-compliant agreements for traffic beginning January
1, 2003. In addition to the benchmarks policy, market forces, bypass,
and refiling of traffic continue to place pressures on foreign carriers
to lower their accounting rates to and below the benchmark rates. The
trend toward lower accounting rates is benefiting U.S. consumers
through lower average consumer calling prices, as accounting rates are
the major cost component in international calling prices. Currently,
over 90 percent of the minutes for U.S.-international traffic are being
settled at or below the benchmark rate.
Question. You may recall that I asked you last year what the FCC
could do to bring more competition to the set top box market, and to
ensure that set top boxes are available for purchase at retail stores
so that consumers have another choice besides renting them from cable
operators. A year has passed, and very little has changed.
To be sure, the National Cable Television Association has published
the OpenCable Application Platform (OCAP) specification, and this is an
important first step. However, absent implementation of this
specification in the next generation of digital set top boxes and cable
ready televisions, or even a commitment from the cable industry to use
this standard in their own equipment, I fear a retail market employing
the OpenCable standard will not develop.
Moreover, the Pod-Host Interface License Agreement (PHILA) is also
crucial to the creation of a viable competitive market. Even if we
could immediately resolve the standards-related difficulties posed by
the adoption of the OpenCable specification, competitive devices would
not be able to connect to digital cable systems without first signing
PHILA. To make matters worse, the FCC has not yet published PHILA for
public comment a process that is essential to create digital ready
products that will work on cable systems across the country.
So again I ask the question: what can the FCC do to both bring more
competition to the set top box market and ensure the creation of a
digital cable ready consumer electronics product market? Also, why
hasn't the FCC published PHILA for public comment? Absent a compelling
reason, this is an act I trust the FCC will take as soon as possible.
How important is it to the development of a competitive set top box
market that the cable companies adhere to the OCAP specification in the
same manner as a competitive set top box manufacturer?
Do you believe the FCC has the jurisdiction to require device
manufacturers to respond to a ``broadcast flag'' that would prevent
redistribution of free over-the-air digital broadcasting to the
Internet?
Answer. The Commission continues to work with the relevant
industries to develop retail set-top boxes and digital television sets
that can be interconnected with cable television systems. Pursuant to
Section 629 of the Telecommunications Act of 1996, the Commission
adopted rules in 1998 to create a regulatory framework that would allow
for the manufacture of such devices while adequately protecting the
security of cable operators' systems and services. In September 2000,
the Commission issued a Further Notice of Proposed Rulemaking and
Declaratory Ruling. The Further Notice sought comment on three areas:
(i) whether OpenCable, the cable industry's initiative for set-top box
and television receiver interconnection specifications, adequately
represents the full range of interested parties and delivered
specifications that allow consumer electronics manufacturers to build
competitive devices for purchase at retail; (ii) whether the Commission
should revise the January 1, 2005 phase-out of the provision by cable
operators of set-top boxes with integrated security; and (iii) any
obstacles to the development of commercial availability or other
factors ``impeding or affecting achievement of the goals of Section
629.'' The Declaratory Ruling aspect of that Order is discussed below.
The pleading cycle in the Further Notice is complete and the Commission
anticipates that a Second Report and Order resolving these issues will
be issued in the near future.
The successful achievement of a competitive retail market for set-
top boxes and digital cable ready television sets involves a confluence
of market sectors, and the resolution of issues, which, in many cases,
the Commission has less-than-clear jurisdiction, as well as the
development of numerous complex and interrelated technical
specifications. For example, the following specifications developed in
conjunction with the retail availability of set-top boxes and digital
television receivers that can be interconnected with cable television
systems have been adopted as ANSI or SCTE standards: Modulation and
Compression Standards; Network Interface; POD-Host Interface; Pod-Host
Copy Protection; Digital Transmission Content Protection (``DTCP'');
Digital Visual Interface (``DVI'') output with High Bandwidth Digital
Content Protection (``HDCP''); and IEEE 1394.
In addition, CableLabs has recently published the OpenCable
Application Platform Specification (``OCAP'') version 1.0. CableLabs
has stated that reducing the OCAP specification to a finalized standard
is its number one priority. Although not without difficulties, given
the number of parties and the conflicting interests involved, progress
has been made towards resolving the standards issues. The Commission
continues to monitor these developments and assist, where it can, to
further progress in this area.
Another recent development is the NCTA proposal to make digital-
only set-top boxes available at retail as soon as possible. NCTA
asserts that its plan addresses retailer's major concerns about
competing with ``superior'' set-tops leased from a cable operator
because the devices at retail are identical to the boxes available from
a cable operator. NCTA maintains that its proposal also eliminates
objections related to the PHILA license because no license is necessary
with an integrated box. Finally, NCTA states that its proposal also
substantially addresses portability concerns through its buy-back
component. While NCTA's proposal will not lead to the manufacturing
freedom and open cable architecture envisioned by Section 629, it could
serve as a first step in establishing a set-top retail presence and
should acquaint consumers with the concept of obtaining their set-top
box from sources other than their cable provider.
Finally, it is also important to remember that, although the
Commission has established a regulatory framework, the availability of
competitive set-top boxes is also dependent upon other factors, some of
which are largely outside of the Commission's control. Significantly,
for example, there continue to be sharp and unresolved differences
between the cable and retail industries on what business model is most
appropriate for the manufacture and sale of competitive set-top boxes.
Content Protection/PHILA
The development of a comprehensive mechanism to protect digital
content from unauthorized uses, such as retransmission over the
Internet, also has proven to be difficult. It was in this context that
the Commission issued its Declaratory Ruling in September 2000. The
Declaratory Ruling addressed the narrow issue of whether technology
licenses, such as the Dynamic Feedback Arrangement Scrambling Technique
(``DFAST'') license, now called the POD-Host Interface License
Agreement (``PHILA''), requiring copy protection measures to be located
within a set-top box are consistent with the Commission's navigation
devices rules. The Declaratory Ruling found that some measure of anti-
copying encryption in both the POD module and the host device to
protect a gap where digital data would otherwise be available ``in the
clear'' and accessible for digital copying is consistent with the
intent of the rules. The Commission clearly stated that:
``. . . we do not intend this declaratory ruling to signal that any
terms or technology associated with such licenses and designated as
necessary for copy protection purposes are consistent with our rules.
We believe, however, that such issues are best resolved if specific
concerns involving finalized licenses that implicate our navigation
devices rules are presented to the Commission.''
The Declaratory Ruling also required CableLabs to submit to the
Commission a report on the status of the DFAST/PHILA license, including
a final version of a completed license agreement. CableLabs submitted
its report and a draft final license to the Commission in December
2000. This draft license has been available to the public since that
time. To date, no formal complaints have been filed with the
Commission. The Commission recently requested and received for
evaluation an updated version of the PHILA. This version, which appears
to differ only slightly from the December 2000 license, was submitted
with a request for confidentiality. The Commission is currently
evaluating the merits of the confidentiality request. Should the
Commission deny the request for confidentiality, it would then consider
whether to put the PHILA out for public comment.
The Commission is keenly aware that content protection is central
to all facets of the digital transition, including the retail
availability of set-top boxes. We continue to work with interested
parties in the digital transition to encourage them to forge a
resolution on content protection matters that is fair to consumers,
program distributors, and content owners alike.
Cable Reliance on OCAP
Our rules as currently constituted do not require cable operators
to adhere to the OCAP specification. As noted above, eight large cable
MSOs have committed to support OCAP on their systems. In addition, our
rules require that, after January 1, 2005, cable operators are
prohibited from deploying new set-tops that contain integrated
security, i.e., cable operators must rely on the POD and POD-Host
interface to decrypt scrambled programming. In this atmosphere, it
appears more likely that cable MSOs may voluntarily rely on an OCAP-
based system for these nonintegrated devices. Such reliance, however,
is not mandated. Cable operators could use a proprietary system that
operates in conjunction with the POD and POD-Host interface but it
would be expected that these set-tops would function no better or worse
than competitive set-top boxes obtained at retail. On the other hand,
competitive manufacturers have advantages that may be unavailable to
cable operators. Manufacturers have the ability to combine OCAP-reliant
navigation devices with other consumer electronic products, such as
television receivers, DVD players, digital video recorders, and home
theater systems, or combine all into a simple product. This may be
highly desirable to consumers, as was the case with cable ready analog
television receivers. Moreover, competitive set-top manufacturers are
equally free to develop new applications that will operate with or in
conjunction with the OCAP platform that will differentiate their
product from devices available from cable operators.
Undoubtedly, requiring cable operators to adhere to OCAP in exactly
the same manner as competitive manufacturers would create the most
level playing field possible. At the same time, such a regime is not
consonant with the intent in which the Commission implemented Section
629. Our rules were specifically crafted so as not to freeze in place
technology. In the Navigation Devices Order, the Commission stated that
permitting the development of a commonly used interface specification
``. . . is a rather loose and flexible requirement which we believe,
however, may provide the involved parties sufficient guidance to
proceed while not creating barriers to the types of change and
technical advance that the Section 624A [Consumer Electronics Equipment
Compatibility] amendments sought to protect.'' Requiring cable
operators to move in ``lockstep'' with competitive manufacturers may
have the ultimate effect of impeding competition by stifling innovation
and leading to one ``vanilla'' set-top box. The flexibility inherent in
our rules will provide the cable operator with the freedom to test new
service offerings that may not initially conform to the OCAP standard
or any other existing standard. Any successful service could then be
included in an existing or newly created OpenCable standard for
inclusion in newer models of competitive set-top boxes.
Finally, with respect to the Commission's authority to require
devices to respond to a ``broadcast flag,'' there is no statute that
explicitly grants the Commission jurisdiction to impose such a
requirement. The best argument that could be made is that the
Commission could invoke its ancillary jurisdiction to impose such a
requirement in order to effectuate the Commission's responsibilities to
promote DTV services and to ensure the viability of a free over-the-air
system of broadcasting. However, such an argument likely would be
challenged in court, and it would be difficult to defend without
explicit statutory authority.
______
Questions Submitted by Senator Patty Murray
Question. In its recently issued Broadband Initiative, the FCC
proposes to deregulate the provision of advanced services by incumbent
local exchange carriers, based partly on the presence of competition
from cable and satellite service providers.
How will the FCC promote the provision of broadband via satellite?
Will satellite systems be viable competitors to future ILEC advanced
service providers?
Answer. Currently, satellite providers are offering high-speed Ku-
band broadband service to residential and business customers on long-
distance and last-mile bases in the United States. The number of
satellite broadband providers and subscribers is expected to grow. The
FCC has now authorized sixteen companies in two rounds of application
processing to provide fixed-satellite service in the Ka-band. A couple
of those licensees plan to launch their first Ka-band satellites as
early as 2003. Many of the Ka-band licensees propose to provide via
satellite a wide variety of broadband interactive, direct-to-home and
digital services to all areas of the United States, including
underserved and rural areas, and around the world. With the development
of Ka-band systems, we anticipate that satellite systems will be viable
competitors to ILECs and cable systems, particularly in areas where
terrestrial services cannot easily provide broadband service.
Question. A number of global and domestic satellite providers--
among them ICO--are betting their business on providing satellite
services at broadband speeds to both urban and rural users. They're
seeking FCC approval for flexible spectrum use in order to do this.
What is the status of these proceedings?
Answer. On August 17, 2001, the Commission released a Notice of
Proposed Rulemaking to consider whether to grant flexibility in
delivery of communications by mobile satellite service operators. The
proceeding was initiated in part to consider proposals by New ICO
Global Communications and Mobile Satellite Ventures Subsidiary LLC to
integrate ancillary terrestrial components with their networks using
their assigned satellite spectrum. Comments on the proposals were due
on October 22, 2001, and reply comments were due on November 13, 2001.
On March 6, 2002, the International Bureau released a public notice
seeking limited technical comment on specific issues raised in the
proceeding. Comments on the Technical Public Notice are due on March
22, 2002.
The record in this proceeding now exceeds 1,700 pages. The
Commission staff is currently in the process of reviewing and analyzing
comments from the industry on the Commission's proposals and analyzing
the possibilities for providing spectrum flexibility in the mobile
satellite service bands. The Commission staff will begin reviewing the
additional technical comments as soon as they are filed.
______
Questions Submitted by Senator Pete V. Domenici
Question. You told NARUC that, ``We need to keep incentives alive
that encourage investment in alternate platforms (such as cable,
wireless, and satellite) and push entrepreneurs to find creative ways
to bypass incumbents and get into the home'' (10/25/01). I voted for
the Telecommunications Act of 1996, which envisioned intramodal
competition as well. What are you doing to promote competition over the
local loop?
Answer. We take very seriously our obligations to carry out the
unbundling provisions of the Telecommunications Act, and have found in
both unbundling proceedings to date that competitors are impaired
without access to the local loop. We have also recently initiated two
proceedings, the UNE Performance Measurements and Special Access
Performance Measurements proceedings, to explore ways to measure how
well incumbents are performing their unbundling obligations, including
provisioning the local loop, and how we could use those measures to
enforce incumbents' obligations. The Commission has been aggressive
about using our current enforcement authority to ensure that carriers
comply with their statutory obligations. Finally, the Commission
proactively monitors ILEC compliance with section 271. The Commission's
Enforcement Bureau identifies and monitors section 271 compliance risk
areas, coordinates with state public service commissions, and meets
with competing carriers and other parties to hear allegations of 271
violations.
Question. New Mexico has a number of rural areas and tribal
regions. How can we best ensure that broadband reaches these people? If
you see USF as part of the solution, are you concerned that data
deregulation would reduce the amount of funding available for universal
service support?
Answer. I understand your concern regarding the availability of
advanced services in rural and tribal areas in New Mexico. You should
be assured of my commitment to providing the appropriate regulatory
framework that will help promote the deployment of broadband services
to all Americans, especially those living in more remote regions of our
nation.
You will be interested to know that during the Commission's recent
inquiry concerning the availability of advanced telecommunications
capability, the Commission found that there has been promising growth
in the availability of broadband services in rural and tribal areas.
Specifically, between December 1999 and June 2001 the reporting of
high-speed subscribership increased from 19.9 percent to 36.8 percent
for the least densely populated zip codes. Additionally, the reporting
of high-speed services in tribal areas increased from 49 percent to
71.3 percent.
Despite the encouraging progress in rural and tribal areas, I agree
that it is important to consider closely the unique challenges to
providing broadband services in more rural areas of our nation. Indeed,
market trends in rural areas appear to be in a period of transition,
and service providers are working hard to establish viable business
plans that will make the successful deployment of broadband services in
rural areas economically feasible. Recent trends in technology are also
especially promising for rural areas. For example, service providers
recently deployed a two-way platform for satellite high-speed services
in all 50 states. In addition, various DSL extensions products have
been developed that may bring consumers, especially those in low-
density areas, within range for DSL services.
The second part of your question raises an important issue. Section
254(d) of the Communications Act requires all telecommunications
carriers that provide interstate telecommunications services to
contribute to universal service. Because information service providers
are not telecommunications carriers, they are not currently required to
contribute directly to support universal service. Section 254(d),
however, gives the Commission discretion to require providers of
interstate telecommunications to contribute if the public interest so
requires. Cognizant of this discretionary authority, we devoted
substantial attention in the recent Broadband NPRM to the question of
how to sustain universal service in an evolving communications market.
I assure you that I am committed to preserving and advancing the
universal service goals set forth in the Act. We are examining
universal service issues through a variety of vehicles, including our
on-going examination of the way in which universal service
contributions are collected. I am confident that all of these actions
taken together will continue to ensure specific, predictable, and
sufficient support mechanisms.
______
Questions Submitted by Senator Kay Bailey Hutchison
Question. Please describe your broadband vision and new regulatory
policy paradigm. In addition, please share your timeframe objective for
establishing a national, technology-neutral broadband policy.
Answer. I, and the full Commission, have articulated the principles
and goals for our national broadband policy most recently in the
Broadband NPRM and in the Cable Modem Declaratory Ruling. First and
foremost, we emphasized that the Commission's broadband policy will be
guided by, and grounded in, the Communications Act. I, therefore, view
the Communications Act, and its mandate to both encourage robust
competition among various communications providers and preserve and
advance universal service, to be the foundation of the Commission's
broadband policy.
In addition, the Commission is guided by several other principles
and goals. Specifically, our primary policy goal is to ``encourage the
ubiquitous availability of broadband to all Americans.'' Section 706 of
the Telecommunications Act of 1996 charges the Commission with
``encourag[ing] the deployment on a reasonable and timely basis of
advanced telecommunications capability to all Americans'' by
``regulatory forbearance, measures that promote competition . . ., or
other regulating methods that remove barriers to infrastructure
investment.'' Moreover, consistent with section 230(b)(2) of the Act,
we seek ``to preserve the vibrant and competitive free market that
presently exists for the Internet and other interactive computer
services, unfettered by Federal or State regulation.''
As your reference to a technology-neutral policy also suggests, the
Commission's broadband policy will recognize that broadband is evolving
across multiple electronic platforms as traditional wireless, cable,
satellite and wireline providers have made substantial investments in
broadband capable infrastructures. We believe that by promoting the
development and deployment of multiple platforms, broadband competition
can thrive and the needs and demands of consumers can be met. As we
commit to preserving opportunities for broadband competition, we must
be cautious not to embed particular technologies, and instead, create a
rational and consistent framework for the regulation of competing
services that are provided via different technologies and network
architectures. Finally, we believe that broadband services should exist
in a minimal regulatory environment that promotes investment and
innovation in a competitive market. We recognize that substantial
investment is required to build out the networks that will support
future broadband capabilities and applications. Therefore, our policy
and regulatory framework will work to foster this investment by
limiting regulatory uncertainty and unnecessary or unduly burdensome
regulatory costs.
With regard to a timeframe objective, we have several proceedings
pending that are part of our effort to establish a national broadband
policy. Specifically, the Broadband NPRM focuses on the appropriate
legal and policy framework for broadband access to the Internet over
domestic wireline facilities. We have already issued the Cable Modem
Declaratory Ruling, which also contains an NPRM seeking comment on the
regulatory implications of our finding that cable modem service is an
information service. In the Incumbent LEC Broadband Notice, we are
examining whether incumbent LECs that are dominant in the provision of
traditional local exchange and exchange access service should also be
considered dominant when they provide broadband telecommunications
services. In the Triennial UNE Review Notice, we address, among other
things, the incumbent LECs' wholesale obligations under section 251 of
the Act to make their facilities available as unbundled network
elements to competitive LECs for the provision of broadband services.
Depending on resource constraints and the need to satisfy any statutory
deadlines or mandates, we hope to resolve some, if not most, of these
issues by the end of the year.
Question. In its current broadband rulemakings, will the FCC
consider the extent to which regulation may increase a broadband
facility provider's infrastructure and operational costs and the
potential impact on the price consumers' pay for broadband services?
Answer. In all of the proceedings the Commission has initiated to
establish a national broadband policy, we have focused on the need to
create a minimal regulatory environment for such services. One of our
primary goals is to provide as much regulatory certainty and clarity as
possible in order to promote investment and innovation in facilities
and in turn, investment and innovation in the services and applications
that will be delivered to consumers via those networks. I fully intend,
therefore, to consider the costs and benefits of all of our broadband
regulations and their impact on all existing and potential providers of
broadband services. Moreover, I believe that in creating a clear regime
for broadband regulation we will provide the certainty necessary for
the markets to make the investment decisions that will fund further
deployment and provision of broadband services.
In particular, the Triennial Review of Unbundled Network Element
Obligations proceeding is intended to develop a comprehensive record on
how changes in the marketplace, technology and other factors have
affected whether competitors are impaired without access to such
elements. It is our hope that by examining the real world experience of
incumbents, new entrants, cable operators, and wireless service
providers that we will be able to more accurately gauge the impact,
including costs, of our unbundling rules. For example, as it did in the
UNE Remand Order, the Commission has specifically asked for comment on
how to assess the impact of our unbundling requirements on carriers'
incentives to invest in facilities and to further deploy broadband
services. We also acknowledge that there may be significant tension
between our duties under the Communications Act to promote competition
in opening the local exchange bottleneck and to promote continued
investment in bringing broadband services to America. We seek,
therefore, to identify and adopt regulatory requirements that preserve
and encourage opportunities for facilities-based competition, maximize
incentives for further infrastructure deployment, and minimize the
regulatory costs on providers of broadband services.
We also note that in the Broadband NPRM, the Commission is
considering specifically the costs and benefits associated with any
requirements that it might impose on broadband facilities providers to
allow competitive providers to access their infrastructure. As part of
this inquiry, we have asked parties to comment on the costs and
benefits associated with both the Commission's existing access
regulations as well as alternative market-based approaches to broadband
regulation.
Finally, we recognize that the price consumers are charged for
retail broadband services is subject not only to the costs of providing
that service, but by the degree of competitive alternatives available
to that consumer. In view of our section 706 mandate to promote the
deployment of broadband to all Americans, our aim is to further this
goal by fostering the deployment of at least one and preferably
multiple broadband infrastructures throughout the Nation.
Question. I understand the FCC has recently contemplated revision
to the current universal service funding mechanism. How has competition
and technological advances changed the traditional funding regime? What
changes and/or revisions to the funding mechanism is the FCC
considering? Please explain the various funding alternatives and the
pros and cons of each. Also, how does the FCC intend to address the
recent Court remand related to Qwest v. FCC?
Answer. In 1997, the Commission adopted a system under which
telecommunications providers contribute to universal service based on
their interstate end-user telecommunications revenues. As you note,
since that time, the telecommunications marketplace has changed rapidly
and technologies have evolved. For example, customers are migrating
from traditional wireline telephone services to new products and
services, such as mobile wireless services, bundled service offerings,
and/or services utilizing broadband platforms, for which interstate
telecommunications revenues may be difficult to identify. Other changes
include Regional Bell Operating Company entry into the long distance
market and related price competition. These trends may erode the
contribution base over time and may lead to regulatory uncertainty and
marketplace distortions.
In light of these trends, the Commission began a proceeding to
revisit its universal service contribution methodology in May 2001.
Commenters representing all segments of the industry, consumer groups,
and state regulatory bodies submitted a range of innovative ideas and
proposals for reforming the current system. In February 2002, the
Commission requested additional comment on a specific industry proposal
to replace the existing, revenue-based assessment mechanism with one
based on the number and capacity of connections provided to a public
network. The Commission also invited commenters to present any further
arguments or data regarding proposals to modify the existing revenue-
based system. We look forward to a lively discussion on these issues
from industry and consumers groups, among others.
Under the industry proposal, wireless and wireline carriers would
contribute $1 per month for each physical connection provided to
residential customers. Contributions for business connections would be
based on the maximum available capacity, or bandwidth, of the
connection. The proponents of this proposal argue that, because the
number of connections historically has been more stable than interstate
revenues, a connection-based system would provide a more stable funding
source for universal service as technologies evolve. They also argue
that a connection-based system also would eliminate some of the
complexity involved with charges that carriers often pass-through to
their customers and would simplify contributor reporting obligations by
eliminating distinctions between interstate and intrastate revenues, or
telecommunications and non-telecommunications revenues.
Other proposals seek to address specific concerns regarding the
existing revenue-based system. For example, some have proposed looking
at projected revenue to address the concern that basing contributions
on historical revenue data benefits new entrants and contributors with
increasing assessable revenues, while disadvantaging contributors with
declining revenues. Other proposals include assessing collected instead
of billed revenues to account for uncollectibles. Opponents of these
proposals assert they would increase the complexity and decrease the
stability of universal service contributions.
Of course, modifying the Commission's contribution methodology
would potentially require a transition period for carriers to adjust to
changed reporting requirements and may result in a shifting of
contribution obligations among different industry segments. The
Commission is actively considering these and other alternative
proposals regarding whether and how to change the way carriers
currently contribute to universal service.
In response to your last question, the Commission intends to
address the remand in Qwest v. FCC with an order following
recommendations from the Federal-State Joint Board on Universal Service
(Joint Board). Because the Joint Board previously considered many of
the issues remanded by the court, we concluded that further Joint Board
input would be beneficial. Accordingly, we referred these issues to the
Joint Board and requested a recommended decision by August 15, 2002.
SECURITIES AND EXCHANGE COMMISSION
STATEMENT OF HARVEY L. PITT, CHAIRMAN
prepared statement
Senator Hollings. The committee will next hear from Harvey
L. Pitt, the Chairman of the Securities and Exchange
Commission.
Chairman Pitt, the committee welcomes you, and we would be
delighted to receive your statement at this time in its
entirety, if you wish, or you can file it and highlight it, as
you wish.
Mr. Pitt. Well, thank you, Mr. Chairman, and Senator Gregg.
I would ask that my full statement be included in the record,
and I have a few opening remarks, if that is okay.
Senator Hollings. Yes, sir.
[The statement follows:]
Prepared Statement of Harvey L. Pitt
Chairman Hollings, Senator Gregg, and Members of the Subcommittee:
Thank you for the opportunity to testify before you today on behalf of
the Securities and Exchange Commission regarding the President's fiscal
2003 budget request. This is the first time I have appeared before this
Subcommittee, and I want to begin by expressing my gratitude, and that
of the entire SEC, for the tremendous bipartisan support this
Subcommittee has given the Commission over the years. I look forward to
continuing this strong and positive working relationship.
The past year has tested the mettle and resiliency of our country,
our markets, and the investing public's confidence. At a time when the
complexity of our financial markets continues to grow unabated, and the
number of Americans who participate in them is steadily increasing, the
Commission must ensure that its traditional high standards are not
compromised. The goal of the SEC is to ensure that our financial
markets are transparent and fair to all investors, and to do so, we
must make certain that the public is adequately informed about
investing and that corporate America provides the disclosure investors
need to make fully informed decisions based on sound and reliable
information. An integral part of our investor protection efforts is the
SEC's aggressive law enforcement program, which protects investors from
fraudulent and unfair practices. Given this backdrop, it is therefore
critical that the SEC have the resources it needs to fulfill its
multiple missions.
I was privileged to spend the first ten years of my career as a
lawyer at the SEC. When I returned there last fall, 23 years later, I
had hoped to have the opportunity to perform an in-depth review of the
Commission's operations, effectiveness, and resource needs prior to
beginning the fiscal 2003 budget process. With the events of September
11th, the destruction of our Northeast Regional Office, and the recent
bankruptcy of Enron, I have not had this chance. Yet all of these
events have demonstrated just how critical the Nation's capital markets
are to national security, and the essential role of the SEC.
funding level
The President's budget requests an appropriation of $466.9 million
for the Commission in fiscal 2003. This amount excludes $13 million
that would be provided to the SEC to fund the Administration's
retirement accrual proposal, if enacted. The 2003 appropriation request
is therefore approximately 6.6 percent more than our fiscal 2002 budget
of $437.9 million.\1\
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\1\ In fiscal 2002, the Commission also received a supplemental
appropriation of $20.7 million to cover some of the costs associated
with rebuilding our Northeast Regional Office and increasing security
agency-wide.
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This proposed funding level provides the SEC with a ``zero-growth''
budget in that it provides no new staff and only modest amounts for the
SEC's e-government and information technology initiatives,
telecommunications systems, and security enhancements. The Commission
has not received a staffing increase in the last two years, despite the
additional responsibilities we have received as a result of enactment
of the Commodity Futures Modernization Act and the Gramm-Leach-Bliley
financial services modernization act. If the SEC remains at its current
staffing level, the agency will be required to continue to divert
resources from other program areas to meet our enforcement needs and to
address the additional initiatives we are undertaking to improve
financial reporting and disclosure.
pay parity
Although the Commission requested full funding for ``pay parity''
in fiscal 2003, as authorized by the ``Investor and Capital Markets Fee
Relief Act'' (Public Law 107-123), enacted this January, the
Administration's proposed funding level provides no new money to
implement this vitally important program. We estimate that an
additional $76 million is needed to provide pay parity for the agency
in fiscal 2003.\2\ At this critical time for the Nation's financial
markets, the SEC must be able to keep our most experienced, talented,
valuable and productive employees. The only way I believe we can do
that is to provide staff with pay parity at levels comparable to those
with whom they regularly work at the other federal financial regulatory
agencies.
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\2\ In fiscal 2001, the Commission received approval and funding to
implement ``special pay'' to help begin addressing our recruitment and
attrition problems. In fiscal 2002, we also received funding to
continue special pay. The appropriation proposal for fiscal 2003
provides $19 million to fund special pay. We estimate that an
additional $76 million is needed to fund pay parity for fiscal 2003.
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Since the Senate confirmed me this past August, pay parity has been
and remains my highest budget priority. In making this funding request,
I am grateful to have bipartisan backing from the Chairman and Ranking
Member of the SEC's Senate oversight body, the Committee on Banking,
Housing and Urban Affairs. Notably, in the past month, Chairman Paul
Sarbanes and Senator Phil Gramm both have called for full funding of
pay parity. Chairman Sarbanes and Senator Gramm have pointed out that
this is a crucial time in the development and strategic future
direction of our capital markets. The SEC cannot afford to continue
suffering the staffing crisis it has endured for the past decade at
such an important juncture. Pay parity provides benefits we truly need
to meet the increasing regulatory challenges we face.
If we receive funding for pay parity, I want to assure you that the
SEC intends to make responsible increases in staff salaries and
benefits to ensure the appropriate use of merit and performance-based
principles. Our $76 million cost estimate represents a conservative
approach that is lower than the amount that we believe would be
required to match what several of the banking agencies currently
provide. A fully implemented system identical to the FDIC model, for
example, could easily cost more than $100 million. We do not intend to
provide large-scale, across-the-board increases. Instead, we intend to
base our system on the intent of Congress and begin a modest,
considered approach to pay parity that we can assess responsibly before
including additional benefits. Merit will be an integral component of
any program we put in place.
However, I want to make emphatically clear that failure to fund pay
parity now would only exacerbate the problems that the legislation
passed by Congress last December was intended to cure. By raising
expectations and hopes in anticipation of finally achieving pay parity,
I believe we will face even greater employee losses and suffer greater
irreparable harm to morale if pay parity is not funded in fiscal 2003,
and thereafter. Even if we can cobble together a pay parity program for
the remainder of this fiscal year, which OMB has said it would support,
the threat of either terminating the program in fiscal 2003 or
terminating approximately 700 employees--the number we estimate would
have to be cut from the agency to continue the program--would cripple
many of the projects we have underway, which are important for the
protection of investors and Americans whose retirement accounts are
invested in the securities of public companies.
So, if there is one message I can leave with you today, it is:
Please, please fully fund pay parity for the SEC in fiscal 2003.
additional staffing needs
Because of recent events, we need to restore full confidence in our
capital markets, and I believe we cannot do that without additional
personnel. Accordingly, in addition to requesting additional funds
needed to implement pay parity, I am requesting that the 2003 staffing
level be increased by 100 positions to meet our immediate resource
needs. Although I intend to make a strategic, agency-wide assessment of
resource needs over the next several months in preparation for the
fiscal 2004 budget, with the goal of identifying efficiencies that we
can introduce, I have been able to identify some immediate needs that I
hope this Subcommittee will consider funding in fiscal 2003. These 100
positions would allow us to add:
--35 accountants and lawyers in the Division of Enforcement to deal
with the increasing workload from financial fraud and reporting
cases. To give you a sense of scale of this increasing
workload, consider that over the first two months of this year,
the Division of Enforcement has opened 49 cases investigating
financial fraud and reporting, compared to 18 cases that were
opened over the same time period last year.
--30 professional staff, including accountants and lawyers, in the
Division of Corporation Finance to expand, improve and expedite
our review of periodic filings. Our Division of Corporation
Finance has undertaken to monitor the annual reports submitted
by all Fortune 500 companies that file periodic reports with
the Commission in 2002. This new initiative, which we announced
in December, significantly expands the Division's review of
financial and non-financial disclosures made by public
companies.
--35 accountants, lawyers, and other professionals in the other
divisions--including the Office of Chief Accountant--to deal
with new programmatic needs and policy.
Under a pay parity system, this increased staffing level will
require an additional $15 million to our budget request. These are the
minimum staffing levels I believe we require to deal with our immediate
post-Enron needs. I will be examining closely our need for resources
throughout the agency and expect that our 2004 budget request, even
with identified efficiencies, may reflect other increases, particularly
in our examination program to meet our goals for timely and frequent
on-site exams of investment companies and advisers, broker-dealers, and
the exchanges. The remainder of my testimony addresses initiatives we
are undertaking in the areas of enforcement, corporate disclosure and
accounting, investor education and technology.
real-time enforcement
One of our major new initiatives--``real-time'' enforcement--is an
important component of our fiscal 2003 budget. Our goal is to provide
quicker, and more effective, protection for investors, and better
oversight of the markets with our limited enforcement resources. As
recent experience has reinforced, the SEC must resolve cases and
investigations before investors' funds vanish forever; that means we
must act more quickly, both in identifying violations and taking prompt
corrective action to protect investors. Faster enforcement can help
prevent continued fleecing of public investors and dissipation of
assets, and will promote investor confidence in the integrity of our
markets. As a result, you will see us moving faster to obtain temporary
restraining orders, freezes of assets, and appointment of court
monitors to oversee enterprises that commit, or used to commit,
securities fraud. These efforts necessarily require resources, the most
important of which is appropriate staffing. An immediate staffing
increase of 35 accountants and lawyers in our Division of Enforcement,
which I have already outlined, would strengthen our real-time
enforcement program, especially in the area of financial fraud and
reporting cases, which involve complex and time-consuming
investigations.
disclosure and accounting
Recent events also have underscored the need for public companies
to have a strong commitment to full disclosure, accounting and
compliance with all regulatory regimes to which their companies are
subject. In his State of the Union Address, the President appropriately
demanded ``stricter accounting standards and tougher disclosure
requirements.'' He also stated that he wants corporate America to ``be
made more accountable to employees and shareholders and held to the
highest standard of conduct.'' The SEC shares and embraces these
principles, and I am firmly committed to making them a reality.
Recently, we announced our intention to propose changes in
corporate disclosure rules as the first in a series of steps designed
to improve our financial reporting and disclosure system. The proposed
rules would require companies to report additional critical information
on a current basis and in a complete manner, such as transactions by
company insiders, critical accounting policies, and changes in rating
agency decisions. They also would expedite the filing of existing
periodic reports. While these proposed rules would only be a first
step, they will provide the most dramatic and significant improvements
in our disclosure system in at least two decades, and they can be
implemented quickly while other, more sweeping proposals are
considered. During the remainder of 2002, we anticipate proposing
further comprehensive reform proposals covering financial reporting and
disclosure requirements, accounting standard setting, regulation of the
auditing process and profession and corporate governance. These
initiatives include the following:
--A ``current'' disclosure system.--Investors need current
information, not just periodic disclosures. We want investors
to have an accurate and current view of the posture of their
company, as seen through the eyes of management. Public
companies should be required to make affirmative disclosures of
unquestionably material information in real time, including
providing updates to prior disclosures.
--Public company disclosure of significant current ``trend'' and
``evaluative'' data.--Providing current trend and evaluative
data would enable investors to assess a company's evolving
financial posture. This information, upon which corporate
executives and bankers already base critical decisions, can be
presented without confusing or misleading investors,
prejudicing legitimate corporate interests or exposing
companies to unfair assertions of liability.
--Clear and informative financial statements.--Investors, and
employees concerned with preserving and increasing their
savings and retirement funds, deserve comprehensive financial
reports they can easily and quickly interpret and understand.
--Conscientious identification and assessment of critical accounting
principles.--Public companies should be required to identify
the most critical accounting principles upon which a company's
financial status depends, and which involve the most complex,
subjective, or ambiguous assessments. Investors should be told,
concisely and clearly, how these principles are applied, and
should be informed about a range of possible effects in
differing applications of these principles.
--More meaningful investor protection by audit committees.--Audit
committees must be proactive, not merely reactive, to ensure
the quality and integrity of corporate financial reports.
Especially critical is the need to improve interaction between
audit committee members and senior management and outside
auditors. Audit committees must understand why critical
accounting principles were chosen, how they were applied, and
have a basis to believe the end result fairly presents the
company's actual status.
--Effective oversight of those who audit public companies.--We are
firmly committed to taking a lead role in assuring that the
accounting profession functions properly, expeditiously and in
the public interest. To that end, we are addressing how best to
restructure the regulatory system that governs the accounting
profession. We envision a regulatory body that will assume
responsibility for auditor and accountant discipline and
quality control. A substantial majority of its members would be
unaffiliated with the accounting profession, and the oversight
body would be funded not by the accounting profession but from
the private sector.
--Ensuring those entrusted with the important public responsibility
of auditing public companies are single-minded in their
devotion to the public interest, and not subject to conflicts
that might confuse or divert them.--Those who perform audits
must be truly independent and in particular must not be subject
to the conflict of increasing their own compensation at the
risk of ensuring the public's protection. Their fidelity to the
cause of full, fair and understandable financial reporting must
be ironclad and unequivocal.
These are just some of the initiatives that we are working on, both
on our own and together with Congress, the President's Working Group,
investor groups and other SEC constituents to improve corporate
disclosure and accounting. These initiatives, if done properly and
responsibly, will require additional resources to plan and implement,
if we are to keep up with our existing, on-going responsibilities at
the same time.
Regrettably, at this time, I cannot give you even an estimate of
those costs. As I stated at the outset of my testimony, I plan to
conduct a top-to-bottom review of the way the Commission currently
allocates its resources, with the intention of making better use of our
existing resources. But, in light of the events of the past six months,
I think it is foreseeable that the SEC will require additional funding
to implement improvements to our corporate disclosure and accounting
systems.
investor education
Even with our shift toward real-time enforcement and our current
efforts to improve financial disclosure, the first line of defense
against fraud is always an educated investor. The Commission works with
numerous public and private organizations to foster investor
educational programs. Our staff gives presentations to countless
schools, religious organizations, and investor clubs, explaining basic
investing concepts and answering questions. We also host ``Investor
Town Meetings'' across the United States, that bring together industry,
federal, and local government officials to educate investors on basic
financial concepts. And this spring we will host our first ``Investor's
Summit,'' to discuss policies and proposals that impact them. We want
to give all Americans an opportunity and an avenue to weigh in on the
broad policy objectives that ultimately could impact their ability to
send their children to college or retire comfortably. We plan to use
the Internet to broadcast the summit so that anyone can participate. We
also are asking people to write us and call us so that we can hear the
broadest possible range of viewpoints. We want to hear the concerns and
aspirations of America's investors.
information technology
Like the rest of the government, our needs in the area of
information technology continue to increase. Given the critical and
increasing role of technology in the financial markets, the President's
budget requests $4.0 million to fund the SEC's e-government
initiatives. This is an area where the Commission needs to improve,
both internally and externally. Technology is constantly altering the
landscape of our markets, and SEC staff must have the necessary tools
at their disposal to successfully meet the increasing demands that we
face. In particular, funds proposed for fiscal 2003 will allow the SEC
to get better and more timely enforcement information from the markets,
enhance our intrusion detection capabilities, and meet the President's
security requirements for information technology. These initiatives are
a small, but important, first step toward meeting the Commission's
technology needs.
With the advent of alternative trading systems that have grown from
only a handful to over 60 today, and as a result of the Internet, the
SEC also must consider what effect our regulatory actions and decisions
have on the industry's use of technology. To respond to this need, we
are seeking a Chief Technology Officer to provide the Commission with
the technical expertise and advice necessary to improve the
Commission's oversight of the markets. On February 4, 2002, I sent you
a reprogramming request that lays out in detail the proposed activities
of this office. Generally, this office will be responsible for ensuring
that the SEC's regulatory, disclosure, examination, and law enforcement
programs are implemented with the benefit of a state of the art
understanding of technology. Through this process, the agency can be
confident that what we implement or approve is technologically sound
and cost effective to the private sector.
funding structure
Last, I would be remiss if I did not take this chance to thank you
for your support in helping enact the fee reduction/pay parity
legislation that I discussed earlier in my testimony. This new law is
extremely important to the SEC and the securities industry, which has
consistently supported both fee reduction and pay parity. The new
legislation not only reduces potential excess fees paid by investors
and provides authority for pay parity for the Commission's staff, but
also provides the SEC with a stable, long-term funding structure, which
is consistent with the original fee structure implemented to fund the
SEC.
Under the fee reduction/pay parity legislation, the Commission is
slated to collect a total of $1.33 billion in offsetting collections in
fiscal 2003, $180 million more than this year's estimate. Even after
funding pay parity and the additional positions described above, the
Commission will still collect $772 million more in fees than its fiscal
2003 budget request.
The fee reduction/pay parity legislation requires the Commission to
adjust fee rates on a periodic basis after consulting with the
Congressional Budget Office and the Office of Management and Budget.
While the fee rates are going to be higher than anticipated in the
short term, due to changes in the economy and declines in market
indices since CBO developed its original dollar volume estimates over a
year ago, we firmly believe that over the longer term the fee reduction
legislation will provide the investing public with the benefits and
security it was designed to provide, in addition to benefiting the
Commission and this Committee by providing a stable, long-term funding
source.
conclusion
In conclusion, I want to observe that the SEC currently oversees
our nation's securities markets with a modest staff and limited
resources, operating in conjunction with the states and self-regulatory
organizations. This cooperative structure enables the Commission to
leverage its resources to fulfill its mission, but leverage can only go
so far. Without knowing exactly where and how many, I can say with
certainty that the SEC needs more staff; that is why I have recommended
an immediate fiscal 2003 increase of 100 key professional staff and
will be making a more thorough, agency-wide assessment over the next
several months.
The SEC regulates industries and markets that have grown
enormously, in both size and complexity. The Commission currently
oversees an estimated 8,000 brokerage firms employing nearly 700,000
brokers; 7,500 investment advisers with approximately $20 trillion in
assets under management; 34,000 investment company portfolios; and over
17,000 reporting companies. The Commission also has oversight
responsibilities for nine registered securities exchanges, the National
Association of Securities Dealers, the National Futures Association, 13
registered clearing agencies, and the Municipal Securities Rulemaking
Board.
I take quite seriously my stewardship responsibilities and the Oath
of Office I took regarding the Commission and its resource needs. I
hope that we can work together to make sure that the SEC has sufficient
resources to ensure that our markets remain the envy of the world and
are as fair and transparent to all investors as we can possibly make
them. Thank you for the opportunity to testify today. I am pleased to
respond to any questions the Subcommittee may have.
OPENING REMARKS
Mr. Pitt. Let me say first that I appreciate the
opportunity to testify on fiscal year 2003 appropriations for
the Securities and Exchange Commission. This is my first
appearance before this subcommittee since I became SEC Chairman
6 months ago. I want to express my gratitude and that of the
entire SEC for the bipartisan support this subcommittee and its
staff have given the Commission over the years. And I look
forward to continuing the strong and positive working
relationship.
The events of the past 6 months have tested the mettle and
resiliency of our country, our capital markets, and the
Securities and Exchange Commission. At the same time, they have
put the investing public's confidence in our capital markets to
a severe test. September 11th and the Enron tragedy demonstrate
how critical the Nation's capital markets are to national
security and economic growth.
Because the agency I am privileged to chair is integral to
the success of our capital markets, it is vital that the SEC
have the resources it needs to fulfill its multiple missions.
We need these resources even more if we are to restore the
public's full confidence in our capital markets.
The President's budget for fiscal year 2003 requests an
appropriation of nearly $467 million for the Commission. It is
clear to me from recent events, including the program the
President is announcing this morning to improve and strengthen
the duties of those whose conduct is at the core of our
securities markets, that the SEC critically needs to receive
additional money in fiscal year 2003 to fully fund pay parity
and that we should be authorized to add additional staff to
address some pressing immediate needs.
JUSTIFICATION FOR FUNDING PAY PARITY
Let me address pay parity first. The Investor and Capital
Markets Fee Relief Act, enacted this January, authorized pay
parity for the employees of the Securities and Exchange
Commission. Our Commission has been subject to extremely high
attrition, with the principal reason being the fact that our
employees earn substantially less than their counterparts in
the other financial service regulatory agencies, not to mention
the private sector.
The OMB-proposed funding level, $467 million, did not
provide any money to implement pay parity, a disappointment to
our most valued employees. We estimate that an additional $76
million is needed to provide for a modest implementation of pay
parity for the agency in fiscal year 2003.
At this critical time to the Nation's financial markets, we
must rely on our most experienced, talented, valuable, and
productive employees. The only way to do that is for us to be
able to provide our staff with pay parity at levels comparable
to those received by colleagues with whom they regularly work
at the other Federal financial regulatory agencies.
If we receive funding for pay parity, I can assure you that
the Commission intends to make responsible increases in staff
salaries and benefits, with a significant component of the
increases subject to true merit pay.
INCREASED STAFFING REQUEST
In addition to the absence of funds to implement pay
parity, we were originally given a no-growth budget, which
means that we were not going to add any new personnel. Indeed,
under current funding levels for 2002, we are effectively
precluded from hiring any new personnel. I do not believe that
the solution to every problem starts and ends with larger and
more expensive Government. I am committed to doing a thorough
review of our deployment of personnel to see whether and how we
can effectuate meaningful efficiencies.
But the events of 9/11 and the tragedy of Enron have made
any contemplative review of our needs impossible. Given the
enormous surge in our enforcement activities, the desire to do
a better job than has been done previously in reviewing public
company filings and overseeing a restructured accounting
profession, even before looking for efficiencies, I must
request that SEC staffing be increased by 100 positions in
fiscal year 2003. These are the minimum staffing levels I
believe we require to deal with our immediate post-Enron needs.
Under a pay parity system, this increased staffing level
would require an additional $15 million. This additional staff
will start helping us meet our immediate enforcement needs as
well as address initiatives we are undertaking to improve
financial reporting and disclosure.
I might add that the Commission has not received a staffing
increase in the last 2 years, despite additional
responsibilities the agency has received as a result of the
Commodity Futures Modernization Act and the Gramm-Leach-Bliley
Financial Services Modernization Act.
A staffing increase is even more critical in light of
recent events. I am very happy to be able to say that yesterday
I spoke with OMB Director Daniels, who advised me that OMB is
receptive to our request for additional staff and will work
with us to meet our resource needs.
In the coming months, I will be examining closely our need
for resources throughout the agency in preparation for the
fiscal year 2004 budget, with the goal of identifying
efficiencies we can employ. However, given current events, it
is very likely that we will have to come back and ask for
resources over and above what I have requested here today.
If there is one message that I can leave you with today, it
is, please, please, fully fund pay parity for the SEC in fiscal
year 2003.
I thank you for this opportunity to testify, and I look
forward to trying to respond to any questions the subcommittee
may have.
SEC STAFFING LEVELS AND COMMISSION WORKLOAD
Senator Hollings. Well, I thank you for talking to Mitch
Daniels. I noticed in the morning's paper that evidently the
head of the Corps of Engineers didn't, and he is gone. You ask
for $76 million more in your statement than OMB gave for pay
parity, and $15 million more for increased staff. Let the
record show that this subcommittee approved yesterday the
reprogramming request of $24 million to pay for pay parity this
fiscal year.
Yes, I will agree, and I take it my distinguished colleague
will also, on both pay parity and the additional personnel,
because we received the GAO report that came out yesterday
which states that over the last decade corporate filings have
increased 60 percent, and related review staff has only
increased by 29 percent. The number of complaints and inquiries
received increased by 100 percent while the staff dedicated to
investigate complaints and other matters increased by only 16
percent. Thereby the imbalance between workload and resources
has resulted in the Securities and Exchange Commission taking
longer to process filings, issue guidance, and review
applications. These delays could affect industry competition
and efficiency.
And the imbalance between workload and resources has raised
concerns that the Securities and Exchange Commission cannot
properly carry out its enforcement role. The number of cases
pending as of the end of the year increased 77 percent from
1991 to 2000.
So those are the two things that concern me, Chairman Pitt,
and I wanted to make sure that we support your agency's efforts
because we know the Securities and Exchange Commission
generally is highly respected and is working around the clock,
and it is Congress who has tried to give even more than the
President asks for every year, more than OMB would allow. So I
am glad you have ironed out these issues with the Office of
Management and Budget.
Senator Gregg.
Senator Gregg. Mr. Chairman, I want to second your
comments. I think they are right on point, and I appreciate the
Chairman testifying today about the needs of the SEC.
This committee has been sensitive to that need for a long
time. We fought the battle for pay parity. It was a fight that
required us to go up the hill a number of times. It was
successful. Now it needs to be funded. There is no question
about that. And I appreciate the chairman's commitment to do
that.
The additional personnel is also obvious in the present
climate. I hate for us to have to work late until the next
appropriations cycle. I would hope that we could put all this
in the supplemental, and since you have already signed on Mr.
Daniels, I would hope that you would have signed him on for
that exercise also. But, in any event, I will certainly support
the chairman in however he wants to pursue this funding, and
aggressively pursue it, because we all understand that the
cornerstone of our capital markets is transparency and the
integrity of the numbers, and that comes down to the SEC's
disciplining of the marketplace and the accounting firms that
are responsible for producing those numbers. And if we don't
have strong capital markets, we don't have a strong economy and
we don't have prosperity because we don't have creation of
economic activity and jobs.
So you could argue that the essence of our prosperity
starts with having a strong SEC. So we certainly want to
support you in this effort.
PRESIDENT'S PROPOSED APPROACH TO ADDRESS ISSUES
I would be interested to hear your analysis of the
President's proposal relative to the new responsibilities that
they are suggesting that the operating officers and executive
officers of corporations have, almost putting them in a
fiduciary position, if not actually putting them in a fiduciary
position. Do you feel that is an appropriate step?
Mr. Pitt. I think our President has laid out this morning a
very serious and substantive and thoughtful approach to the
problems that we are seeing or have been witnessing. I think
that one of the concomitant factors with the President's
proposals is that we intend to sit down and analyze those
proposals and move just as quickly as we can to implement those
elements of the proposal that are within our power to
implement. And I believe most of them are within our power and
we will be anxious to bring them to fruition and reality.
I think that what he has outlined is sort of a tripartite
approach to the problems we have witnessed. The first is to
improve the functioning and dedication and loyalty of corporate
offices and executives and directors to the investing public,
who are, after all, the true owners of every corporation.
GREATER RESPONSIBILITIES ON CEOS
This proposal that the President has put forth would place
greater responsibility on chief executive officers, and one of
the things that runs throughout the President's announced
program is the fact that people who think that they can get by
or get away with mere technical compliance, and aren't truly
committed to the functions their offices require them to serve,
will be sorely disappointed.
In terms of our own enforcement efforts, we intend to make
that a reality, and we will start as soon as we can looking at
companies where executives have profited from illusory or sham
earnings that ultimately get restated, where the shareholders
wind up holding an empty bag and the executives walk away with
millions and millions of dollars. We will go into court, and we
will seek the return of those moneys to the corporation and
those investors, as the President has suggested.
IMPROVING THE DISCLOSURE SYSTEM
The second prong of the President's proposal addresses the
disclosure process in general. Here I think we have the
unfortunate occurrence of a statute which is almost 70 years
old and has not been revitalized in most of that time frame in
terms of its disclosure obligations. So it is approaching many
of the issues today the way they were approached in 1934 when
we didn't have the kind of technology and communications that
we have today.
In my view, many of the problems which the Enron situation
have evidenced have been evident for 5 to 10 years, and they
have not been dealt with. It is our intention and the President
has made it clear that he expects of us that we will, in fact,
turn our attention to that. We need to improve the disclosure
system not so that shareholders are just given detail on detail
on detail, many of which, at least speaking for myself when I
read corporate filings, appear to me to be designed to avoid
liability rather than being designed to inform.
We have a very committed approach to revitalizing
disclosure in this country and giving shareholders the same
view of the companies they own as the people who manage and run
those corporations.
REVIEW AND REFORM OF ACCOUNTING INDUSTRY
And his final area, which is quite significant, is dealing
with the accounting profession. The accounting profession has
very noble origins in this country, and it performs an
incredibly important public service. At some point it is
required, I guess, that we step back and make sure that
everyone in the profession and everyone who depends on the
profession is assured that the profession is acting in the
public interest and not self-interest.
I believe that we have the capacity and we have the
inclination and the commitment to develop a strong private
sector regulatory system that will provide, for the first time,
meaningful regulation of the accounting profession from outside
the profession, which is what the President has suggested.
In addition, we will seek to reform the way in which
accounting standards are articulated, and we will seek to
provide for shareholders not just the protection of the law,
not just the avoidance of illegal acts, but the establishment
of the highest ethical and competence standards which will be
enforced by a truly independent body that will have the
authority to make certain that individual accountants and
entire accounting firms live up to their public
responsibilities.
NEW LEGISLATIVE NEEDS
Senator Gregg. To what extent are you going to need
legislative action to pursue those three goals?
Mr. Pitt. I am sorry, sir?
Senator Gregg. To what extent are you going to need
legislative action to pursue those three goals?
Mr. Pitt. I do not believe that we need legislative action
to pursue those. We have been working closely in both Houses of
Congress and on both sides of the aisle to lend our expertise
because we understand that some Members of Congress believe
that legislation is the appropriate way to go, and I have made
clear that we will work to support whatever Congress believes
is the appropriate approach.
But I think the needs we have are pressing, and I believe
it is imperative that we not spend excessive amounts of time
worrying about how this will be done, but instead work together
to try and get it done. And so we are in the process of
soliciting views from the public. We will put out some
proposals which we will discuss with Congress and our oversight
committees before we ever put them out, and we will work with
the Congress to come up with a package that I think lives up to
the President's challenge.
Senator Gregg. Thank you.
EFFECTIVENESS OF REGULATORY PROTECTION
Senator Hollings. Chairman Pitt, your testimony is strongly
supportive of regulatory protection outside the industry. We
see in Business Week and other headlines that the regulatory
protection that you have considered so far is weak: SEC
prescribes weak cures for accounting industry's ills. I think
there are three authorizing bills that are being discussed
today, however, they wouldn't tell me the cost because they are
having their own news conferences while you and I are
testifying. I will look into these proposals, once made public,
because this subcommittee of appropriations will have to
respond to the authorization levels based on what is worked
out.
But, mind you me, the problems we see are not due to a lack
of laws. The chief executives and those in charge are all
coming up to Congress either taking the Fifth Amendment or they
can't remember anything. But, of course there is no law to make
everybody remember. It is very, very unfortunate because there
has been a sort of weak operation all the way around with
respect to the accountants also being the consultants, as you
have already indicated in some of the comments that you have
made. So that has got to be corrected, and it has got to be--
and I would emphasize that, too--regulated outside the industry
and supported by fees. We want to make sure that whatever
regulatory body is created is not beholden to industry, and is
therefore fully supported by fees.
subcommittee recess
Chairman Pitt, we thank you for your appearance here. The
subcommittee record will stay open for any further questions.
Thank you very much.
Mr. Pitt. Thank you.
[Whereupon, at 11:16 a.m., Thursday, March 7, the
subcommittee was recessed, to reconvene subject to the call of
the Chair.]
DEPARTMENTS OF COMMERCE, JUSTICE, AND STATE, THE JUDICIARY, AND RELATED
AGENCIES APPROPRIATIONS FOR FISCAL YEAR 2003
----------
TUESDAY, MARCH 12, 2002
U.S. Senate,
Subcommittee of the Committee on Appropriations,
Washington, DC.
The subcommittee met at 10:03 a.m., in room SD-138, Dirksen
Senate Office Building, Hon. Ernest F. Hollings (chairman)
presiding.
Present: Senators Hollings, Inouye, Mikulski, Leahy, Reed,
Gregg, Domenici, and Campbell.
DEPARTMENT OF STATE
Office of the Secretary
STATEMENT OF HON. COLIN L. POWELL, SECRETARY OF STATE
prepared statement
Senator Hollings. Welcome, and we appreciate very much your
appearance here this morning because you have more places to be
than most any. We will be glad to receive your statement in its
entirety at this time or you can highlight it, as you wish. It
will be made part of the record.
Secretary Powell. Thank you, Mr. Chairman.
[The statement follows:]
Prepared Statement of Colin L. Powell
Mr. Chairman, members of the subcommittee, I am pleased to appear
before you to testify in support of President Bush's budget request for
fiscal year 2003.
Let me say at the outset, Mr. Chairman, before I go into the
specifics of the budget request for the State Department and Related
Agencies, that President Bush has two overriding objectives that our
foreign policy must serve before all else. These two objectives are to
win the war on terrorism and to protect Americans at home and abroad.
This Administration will not be deterred from accomplishing these
objectives. I have no doubt that this subcommittee and the Congress
feel the same way. As you will see when I address the details of the
budget request, a sizeable part is related to accomplishing these two
objectives.
As many of you will recall, at my first budget testimony to this
committee last May, I told you that what I was asking for at that time
was really just the first fiscal step in our efforts to align both the
organization for and the conduct of America's foreign relations with
the dictates and demands of the modern world.
And I told you that as Secretary of State, I really wear two hats.
By law, I am the principal foreign policy advisor to the President of
the United States. But I am also the leader, the manager, the CEO of
the Department of State, and I take that role and that charge very,
very seriously. And to be successful in both roles, I have to make sure
that the Department is properly organized, equipped and manned to
conduct America's foreign policy, as well as formulate good foreign
policy in the name of the President and the American people.
And you heard my testimony as CEO and you responded, and we are
grateful.
Because of your understanding and generosity, we have made
significant progress. We will make even more in fiscal year 2003.
The President's discretionary request for the Department of State
and Related Agencies for fiscal year 2003 International Affairs is $8.1
billion. These dollars will allow us to:
--Continue initiatives to recruit, hire, train, and deploy the right
work force. The budget request includes $100 million for the
next step in the hiring process we began last year. With these
dollars, we will be able to bring on board 399 more foreign
affairs professionals and be well on our way to repairing the
large gap created in our personnel structure and, thus, the
strain put on our people by almost a decade of too few hires,
an inability to train properly, and hundreds of unfilled
positions. By fiscal year 2004, we hope to have completed our
multi-year hiring effort with respect to overseas staffing--to
include establishing the training pool I described to you last
year that is so important if we are to allow our people to
complete the training we feel is needed for them to do their
jobs. Next March, I will be back up here briefing you on the
results of our domestic staffing review.
--Continue to upgrade and enhance our worldwide security readiness--
even more important in light of our success in disrupting and
damaging the al-Qaida terrorist network. The budget request
includes $553 million that builds on the funding provided from
the Emergency Response Fund for the increased hiring of
security agents and for counterterrorism programs.
--Continue to upgrade the security of our overseas facilities. The
budget request includes over $1.3 billion to improve physical
security, correct serious deficiencies that still exist, and
provide for security-driven construction of new facilities at
high-risk posts around the world. Mr. Chairman, we are right-
sizing, shaping up and bringing smarter management practices to
our overseas buildings program, as I told you we would do last
year. The first change we made was to put retired General Chuck
Williams in charge and give him assistant secretary equivalent
rank. Now, his Overseas Building Operations (OBO) has developed
the Department's first long-range plan, which projects our
major facility requirements over a five-year period.
The OBO is using best practices from industry, new embassy
templates, and strong leadership to lower costs, increase
quality, and decrease construction time.
As I told you last year, one of our goals is to reduce the
average cost to build an embassy. I believe we are well on the
way to doing that.
And General Williams is making all of our facilities, overseas
and stateside, more secure. By the end of fiscal year 2002,
over two-thirds of our overseas posts should reach minimal
security standards, meaning secure doors, windows, and
perimeters.
We are also making progress in efforts to provide new facilities
that are fully secure, with 13 major capital projects in design
or construction, another eight expected to begin this fiscal
year, and nine more in fiscal year 2003.
--Continue our program to provide state-of-the-art information
technology to our people everywhere. Because of your support in
fiscal year 2002, we are well on the way to doing this. We have
an aggressive deployment schedule for our unclassified system
which will provide desktop Internet access to over 30,000 State
users worldwide in fiscal year 2003 using fiscal year 2002
funds. And we are deploying our classified connectivity program
over the next two years. We have included $177 million in the
Capital Investment Fund for IT requirements. Combined with $86
million in estimated Expedited Passport Fees, a total of $263
million will be available for our information technology and
communications systems initiatives. Our goal is to put the
Internet in the service of diplomacy and we are well on the way
to accomplishing it.
--Continue to meet our obligations to international organizations--
also important as we pursue the war on terrorism to its end.
The budget request includes $891.4 million to fund U.S.
assessments to 43 international organizations, active
membership of which furthers U.S. economic, political,
security, social, and cultural interests.
--Continue to meet our obligations to international peacekeeping
activities. The budget request includes $726 million to pay our
projected United Nations peacekeeping assessments--all the more
important as we seek to avoid increasing even further our U.N.
arrearages. And, Mr. Chairman, I ask for your help in getting
the cap on our assessments lifted so that we can eventually
eliminate all our arrearages. These peacekeeping activities
allow us to leverage our political, military, and financial
assets through the authority of the United Nations Security
Council and the participation of other countries in providing
funds and peacekeepers for conflicts worldwide.
--Continue and also enhance an aggressive effort to eliminate support
for terrorists and thus deny them safe haven through our
ongoing public diplomacy activities, our educational and
cultural exchange programs, and international broadcasting. The
budget request includes $287 million for public diplomacy,
including information and cultural programs carried out by
overseas missions and supported by public diplomacy personnel
in our regional and functional bureaus. These resources help to
educate the international public on the war against terrorism
and America's commitment to peace and prosperity for all
nations. The budget request also includes $247 million for
educational and cultural exchange programs that build mutual
understanding and develop friendly relations between America
and the peoples of the world. These activities help build the
trust, confidence, and international cooperation necessary to
sustain and advance the full range of our interests. Such
activities have gained a new sense of urgency and importance
since the brutal attacks of September. We need to teach more
about America to the world. We need to show people who we are
and what we stand for, and these programs do just that.
Moreover, the budget request includes almost $518 million for
International Broadcasting, of which $60 million is for the war
on terrorism to continue increased media broadcasts to
Afghanistan and the surrounding countries and throughout the
Middle East. These international broadcasts help inform local
public opinion about the true nature of al-Qaida and the
purposes of the war on terrorism, building support for the
coalition's global campaign.
Mr. Chairman, on the subject of public diplomacy let me expand my
remarks.
The terrorist attacks of September 11 underscored the urgency of
implementing an effective public diplomacy campaign. Those who abet
terror by spreading distortion and hate and inciting others, take full
advantage of the global news cycle. We must also use that cycle. Since
September 11, there have been over 2,000 media appearances by State
Department officials. Our continuous presence in Arabic and regional
media by officials with language and media skills, has been
unprecedented. Our international information website on terror is now
online in seven languages. Internet search engines show it is the
hottest page on the topic. Our 25-page color publication, ``The Network
of Terrorism'', is now available in 30 languages with many different
adaptations, including a full insert in the Arabic edition of Newsweek.
``Right content, right format, right audience, right now'' describes
our strategic aim in seeing that U.S. policies are explained and placed
in the proper context in the minds of foreign audiences.
I also serve, ex officio, as a member of the Broadcasting Board of
Governors, the agency that oversees the efforts of Voice of America and
Radio Free Europe/Radio Liberty to broadcast our message into South
Central Asia and the Middle East. With the support of the Congress, our
broadcasting has increased dramatically since September 11. We have
almost doubled the number of broadcast hours to areas that have been
the breeding grounds of terrorists. The dollars we have requested for
international broadcasting will help sustain these key efforts through
the next fiscal year.
Mr. Chairman, we are working closely right now with OMB to examine
our overall requirements. We believe that there are valid fiscal year
2002 needs that cannot wait until fiscal year 2003. The Administration
will bring the specific details of this supplemental request to the
Congress in the near future. We have not quite finished our review at
this point, but it should not take much longer.
Mr. Chairman, all of these State Department and Related Agencies
programs and initiatives are critical to the conduct of America's
foreign policy. Some of you know my feelings about the importance to
the success of any enterprise of having the right people in the right
places. If I had to put one of these priorities at the pinnacle of our
management efforts, it would be our hiring efforts. We must sustain the
strong recruiting program we began last year--with your support and the
support of the Congress as a whole.
Last year, in new hires for the Foreign Service, we made great
strides. We doubled the number of candidates for the Foreign Service
Written Examination--and this year we will give the exam twice instead
of just once. Moreover, our new recruits better reflect the diversity
of our country with nearly 17 percent of those who passed last
September's written exam being members of minority groups. For example,
we tripled the number of African-Americans and doubled the number of
Latino-Americans.
We have also improved Civil Service recruitment by creating new
web-based recruiting tools and by vigorously asserting the truth. The
truth, Mr. Chairman, that we are a team at State and that the Foreign
Service and the Civil Service are each very important team members.
Both are vital to our mission. And now both know it.
Another improvement is that once we identify the best people we
bring them on more quickly--a great boon to hiring the best. For
Foreign Service recruits, for instance, we have reduced the time from
written exam to entry into service from 27 months to less than a year.
We are going to reduce it even further.
We are also working with OMB to create extensive new performance
measures to ensure that the people we hire remain the best throughout
their careers.
Mr. Chairman, all of these activities have improved morale at the
State Department. Our people see things happening, things that enhance
their quality of life, their security, their ability to do their jobs.
Things like our interim childcare center at the National Foreign
Affairs Training Center. It opened on September 4 and can handle a full
complement of 30 infants and toddlers.
This idea of teamwork, this idea of family and the quality of life
that must always nourish it even in the remotest station, is uppermost
in our minds at the Department. While we concentrate on the nation's
foreign affairs we must also focus on taking care of those Americans
who conduct it, as well as the many thousands of Foreign Service
Nationals who help us across the globe.
These are an extraordinary group of people, Mr. Chairman. For
example, our sixty Afghan employees in Kabul worked diligently to
maintain and protect our facilities throughout the 13 years the Embassy
was closed. They worked at considerable personal risk and often went
months without getting paid. They even repaired the chancery roof when
it was damaged by a rocket attack. This is the sort of diligence and
loyalty that is typical of our outstanding Foreign Service Nationals.
Our whole team at State is vital to mission accomplishment--Foreign
Service, Civil Service, and Foreign Service Nationals. The dollars you
helped to provide us last year allowed us to make our team more
cohesive and more effective. We want to continue that process.
Mr. Chairman, one message that the tragic events of September 11th
and the days that followed have made very clear is that American
leadership in international affairs is critical. Out on the front lines
of diplomacy, we want a first-class offense for America. As a soldier,
I can tell you that quality people with high morale, combined with
superb training and adequate resources, are the key to a first-class
offense.
So as the State Department's CEO, let me thank you again for what
you have done to help us create such a first-class offense--and I want
to ask you to continue your excellent support so we can finish the job
of bringing the Department of State and the conduct of America's
foreign policy into the 21st century. I ask for your important support
in full committee and in the Senate as a whole, both for the $8.1
billion we are requesting for the Department and related agencies and
for the $16.1 billion we are requesting for foreign operations. In
addition, I ask for your help with whatever supplemental request we
present in the near future. With your help, and the help of the whole
Congress, we will continue the progress we have already begun.
Thank you and I will be pleased to take your questions.
Senator Hollings. Go ahead. You are on.
Secretary Powell. Well, thank you for that very effusive
and long introduction. It is a great pleasure----
Senator Hollings. Yes, siree.
OPENING STATEMENT OF SECRETARY POWELL
Secretary Powell. This is my seventh hearing in the course
of hearings this year, and I appreciate the opportunity to get
right into it.
Mr. Chairman, it is a pleasure to once again be before the
committee, and thank you for accepting my testimony in its
fullness and making it a part of the record. I would like to
give an abbreviated statement and then get right to your
questions.
As many of you will recall, at my first budget testimony to
this committee last May, I told you that what I was asking for
at that time was really just the first fiscal step in our
efforts to align the organization for the conduct of America's
foreign policy, with the dictates and the demands of the modern
world and that there were more fiscal steps to come.
I told you that, as Secretary of State, I really wear two
hats. By law, I am the principal foreign policy advisor to the
President of the United States, but I am also the leader, the
manager, the CEO of the Department of State, and I take that
role and that charge very, very seriously. To be successful in
both roles, I have to make sure that the Department is properly
organized, equipped, and manned to conduct America's foreign
policy, as well as to formulate good foreign policy in the name
of the President and in the name of the American people.
You heard my testimony last May, and you responded, and we
are grateful. Because of your understanding and the generosity
of the Congress, we have made significant progress, and now I
am here to tell you about the second fiscal step, so we can
continue to make progress in fiscal year 2003.
The President's discretionary request for the Department of
State and related agencies for fiscal year 2003 is $8.1
billion. These dollars will allow us to continue initiatives to
recruit, hire, train and deploy the right workforce.
The budget request includes $100 million for the next step
in the hiring process we began last year. With these dollars,
we will be able to bring on board into the Department 399 more
foreign affairs professionals, as well as other technical
experts, and be well on our way to repairing a large gap in our
personnel structure. This gap has put enormous strain on our
people as they have had to deal with a decade of too few hires,
an inability to train properly, and hundreds of unfilled
positions.
By fiscal year 2004, we hope to have completed our multi-
year effort with respect to overseas staffing to include
establishing the training pool I described to you last year.
The training pool is important so we have some flexibility in
the system to send people to school without keeping them out of
jobs they need to be doing, a ``schools account,'' so to speak,
and next March, I will be back up here briefing you on the
results of our domestic staffing review.
In addition to getting more people on board, we will
continue to upgrade and enhance our worldwide security
readiness, even more important in light of our success in
disrupting and damaging the al Qaeda terrorist network. The
budget request includes $553 million for worldwide security
upgrades. It builds on the funding provided from the emergency
response fund for the increased hiring of security agents and
for counterterrorism programs.
We will also continue to upgrade the security of our
overseas facilities. The budget request includes over $1.3
billion to improve physical security, correct serious
deficiencies that still exist, and provide for security-driven
construction of new facilities at high-risk posts around the
world.
Mr. Chairman, we are right-sizing, shaping up, and bringing
smarter management practices to our overseas building program,
as I told you we would do last year. The first change we made,
as you well know, sir, and members of the committee, was to put
retired Major General Chuck Williams in charge and give him
Assistant Secretary-equivalent rank and a more direct reporting
chain up to the top. Now his Office of Overseas Building
Operations has developed the Department's first long-range
master plan, which projects our major facility requirements
over a 5-year period.
Mr. Chairman, I know that General Williams briefed you in
mid-February. He told you how the OBO is using best practices
from industry, new Embassy templates, and strong leadership to
lower costs, increase quality, and decrease construction time.
Those are not just words. We are actually seeing results
against those standards.
As I told you last year, one of our goals is to reduce the
average cost to build an Embassy, and I believe we are well on
our way to doing that.
General Williams is making all of our facilities overseas
more secure. By the end of fiscal year 2002, over two-thirds of
our overseas posts should reach minimal security standards,
meaning secure doors, windows, and perimeters. We are also
making progress in efforts to provide new facilities that are
fully secure, with 13 major capital projects in design or
construction, another 8 expected to begin this fiscal year, and
9 more in fiscal year 2003.
With this budget, Mr. Chairman, we will also be able to
continue our program to provide state-of-the-art information
technology to our people everywhere. Because of your support in
2002, we are well on our way to doing this. We have an
aggressive deployment schedule for our unclassified system
which will provide desktop Internet access to over 30,000 State
users worldwide in fiscal year 2003, using fiscal year 2002
funds. I am determined to see this happen. I am determined to
use the power of the Information Technology Revolution to serve
America's foreign policy interests.
When President Bush gave his State of the Union address a
few weeks ago, as the last word was coming out of the
President's mouth, it was being translated into six different
languages, being broadcast around the world, and being
downloaded over the Internet at all of our Embassies. Thirty
minutes after completion of the speech, transcripts of the
speech in seven different languages were being downloaded over
the Internet at our Embassies all around the world.
It is that speed, that agility, that quickness of response,
that we have to get throughout the Department, not just in
delivering speeches, but in communicating with each other,
connecting with one another, responding to the 24-hour-a-day
news cycle that we now have, and making sure that we are on the
cutting edge of diplomacy. We are the front line, the offensive
line, of our foreign policy efforts around the world.
We have included $177 million in the Capital Investment
Fund for IT requirements. Combined with the $86 million in
estimated expedited passport fees, we will have a total of $263
million for our IT initiatives. Our goal, as I said, is to put
the Internet fully in the service of diplomacy.
Mr. Chairman, we want to continue to meet our obligations
to international organizations--also more important as we
pursue the war on terrorism to its end. We are very proud of
the work that has been done by our coalition partners in this
campaign against terrorism. You saw it yesterday, when the
President was speaking to all of those Ambassadors on stage
representing the coalition, and the three Ambassadors who spoke
so movingly of how they were with us in this campaign.
We have to be with them as well in the international
activities that we have committed ourselves to. So the budget
request includes $891 million to fund U.S. assessments to 43
international organizations. Our active membership in these
organizations furthers U.S. economic, political, security,
social, and cultural interests. We also want to continue to
meet our obligations to international peacekeeping activities.
The budget request includes $726 million to pay our
projected United Nations peacekeeping assessments--all the more
important as we seek to avoid increasing even further our U.N.
arrearages. Mr. Chairman, I ask for your help in lifting the
cap on our peacekeeping assessments so that we can eventually
eliminate all of our arrearages and not let them continue to
build up. These peacekeeping activities allow us to leverage
our political, military, and financial assets through the
authority of the United Nations Security Council and the
participation of other countries in providing funds and
peacekeepers for conflicts worldwide.
We will also continue and enhance an aggressive effort to
eliminate support for terrorists and thus deny them safe haven
through our ongoing public diplomacy efforts, our educational
and cultural exchange programs and through international
broadcasting. The budget request includes $287 million for
public diplomacy, including information and cultural programs
carried out by our overseas missions and supported by public
diplomacy personnel in our regional and functional bureaus.
These resources help to educate the international public on
the war on terrorism and America's commitment to peace and
prosperity for all nations. As we have seen in recent weeks and
months, Mr. Chairman, we have not been doing a good enough job
in taking our case to the people of the world, and we are going
to do a better job. Our new Under Secretary for Public
Diplomacy, Charlotte Beers, comes with great experience from
the civilian world in marketing, getting a message out, and
moving a product out. We have got a great message. We have got
a great product, the humanitarian values upon which this Nation
is founded. We have got to do a better job of reaching out.
The budget request also includes $247 million for
educational and cultural exchanges, where we take people from
other lands, bring them here, let them go to our schools, and
let them participate in activities with our families and with
our communities. Then they return home and take those values
back with them. It is a long-term investment in a better
future.
These activities help build the trust, confidence, and
international cooperation necessary to sustain and advance the
full range of our interests. Such activities have gained a new
sense of urgency and importance since the brutal attacks of
September 11th. We need to teach more about America to the
world. We need to show people who we are and what we stand for,
and these programs do just that.
Moreover, the budget request includes almost $518 million
for international broadcasting, of which $60 million is for the
war on terrorism to continue increased media broadcasts to
Afghanistan, the surrounding countries and throughout the
Middle East. These international broadcasts help inform local
public opinion about the true nature of al Qaeda and the
purposes of the war on terrorism, building support for the
coalition's global campaign.
Let me just say a bit more about public diplomacy. These
attacks underscore the urgency of implementing this public
diplomacy campaign in the Middle East. Since September 11th,
over 2,000 media appearances have taken place by State
Department officials. Our continuous presence in Arabic and
regional media is necessary, and we are determined to do more
of it.
We are looking for unusual ways of getting our word out. My
staff said to me, ``Well, why do you not go on MTV and speak to
the MTV audience, 17 to 25 years of age all around the world,
33 different MTV channels that touch something like 146
countries?'' And so I did it, and they gave me an hour to go on
and talk to young people assembled in six different locations
around the world, as well as in the studio.
I was here in Washington and went for 60 minutes, and it
was going well, so they did it for 90 minutes--90 straight,
uninterrupted minutes talking to 346 million households in 146
countries through 33 MTV stations, and we talked about
everything. Kids are not like adults. They will ask you what is
on their minds. They will call it out. They will take you to
account, and they do not want to hear ``snowy'' answers. It is
the kind of exposure our officials should be doing more and
more of.
Now I happened to make news in an area that I had not
intended to make news. Be that as it may.
Senator Hollings. You have been explaining it to the adults
back here ever since, I think.
Secretary Powell. But, nevertheless, as you know, I do not
step back 1 inch from what I said because it was the right
thing for those young people to hear around the world. But they
also heard about the American value system. They also heard why
we are not the Satan of the world; we are the protector of the
world. They also heard that America, over the last 10 years,
has rescued Muslims in Kuwait, rescued Muslims in Kosovo, and
rescued Muslims in Afghanistan. We go to no nation to take
land. We go to no nation to oppress people, and that is a
message they need to hear as well.
So it is those kinds of opportunities we are seeking in the
Department that take us out of the old tried and true methods
into new methods and new ways of communicating, without
abandoning the tried and the true.
The budget requests I have just outlined for you deals with
our overall requirements for fiscal year 2003. There are also
some valid requirements that we have in fiscal year 2002 that
cannot wait for fiscal year 2003. And so as you might well
imagine, we are working with OMB on a supplemental request that
will be coming to the Congress in due course, and the specific
details are not yet available.
Mr. Chairman, all of these State Department and related
agency programs and initiatives are critical to the conduct of
America's foreign policy. Some of you know my feelings about
the importance of putting the right people in the right place
at the right time, and that remains my number one objective
with respect to the management of the Department--bring new
people in.
We had a two-fold increase, 100-percent increase, in the
number of people applying for the Foreign Service exam last
September, three times as many minorities as ever before. We
will bring in more minorities in this next tranche of
youngsters coming into the Department than ever before, and we
are going to keep doing that until we have a State Department
that is fully staffed with people who are well motivated,
morale is high, and a State Department which looks like all of
America. That is our greatest strength, that of diversity, and
I want that diversity to be reflected throughout the State
Department, so we can be an example to the rest of the world.
Mr. Chairman, I want to close by thanking you and the
members of the committee and, frankly, the entire Congress, for
the support that you have provided to me and to the Department
during my first year of service as Secretary of State. I hope
that we will continue to enjoy your strong support, and I hope
that you will continue to reward our stewardship of the
Department. Stewardship means a lot to us. We want to take care
of the people entrusted to our care, make sure we are
accomplishing what the American people want us to accomplish,
and make sure that we are good stewards of the resources
provided to us by the American people through their Congress.
Thank you, Mr. Chairman.
PERSONNEL
Senator Hollings. Thank you, Mr. Secretary. The committee
thanks you for your stewardship. There is no question that the
morale is up in the Department of State. I just recently
traveled with the intelligence group to Brussels, Berlin,
Leipzig, Prague, Budapest, Vienna, London, and otherwise. I
credit you with the morale that has improved materially in the
Department of State, and I say that advisedly because I have
been doing this job now 35 years.
Otherwise, on talking about personnel, you gave us a good
man on property. Who handles the personnel?
Secretary Powell. We have a number of people. The person
directly in charge of personnel----
Senator Hollings. Can you not give me a General Williams
that I can talk to?
Secretary Powell. Yes, Ruth Davis is the Director General
of the Foreign Service and our Director of Human Resources. She
is a Career Ambassador of the Foreign Service, and she has day-
to-day management responsibility for our personnel system. You
can also speak to the Under Secretary of Management, Mr. Grant
Green, who works with Ambassador Davis, but if you ever have a
personnel question, please feel free to come directly to me or
to Deputy Secretary Armitage because we are the top personnel
managers of the Department. There is not a day that goes by we
do not talk about people.
Senator Hollings. The question is then, you know, we
supported the 749 additional positions last year. I want to
support the request for 631 this year. On the other hand,
checking there in Germany, we have 590 State Department
personnel in Germany. That is a lot of people.
Secretary Powell. We have a lot of people----
Senator Hollings. And----
Secretary Powell. Yes, sir?
Senator Hollings. And 390 down in Mexico, 374 in Japan, 381
in Vietnam, and I know Saigon or Ho Chi Minh City well, and up
at Hanoi, I have been there, but what are we going to do with
almost 400 people in Vietnam? I mean, they have not gotten back
yet? We did not leave them there, did we?
Secretary Powell. No, these are new hires. They brought me
home some years ago.
Senator Hollings. Yes, sir.
Secretary Powell. We are constantly reviewing the overseas
presence of each one of our missions. In some of our missions,
our more complicated missions, such as Germany, and France, and
the United Kingdom, we have a variety of programs that have to
be managed and supervised and a lot of new activities taking
place: FBI activities, legal assistance activities, and a lot
of economic consular activities that might not have been there
in the past. So these have all grown.
Senator Hollings. I know you are the landlord for all of
those, but we are talking just about State Department
personnel.
Secretary Powell. Well, there has also been an increase in
the security requirements in a lot of these places.
Senator Hollings. Right.
Secretary Powell. But with any one of them, I would be more
than pleased to sit with you or members of your staff, Mr.
Chairman, and justify them, and if I cannot justify them, let
us cut them.
VICTIMS OF TERRORISM COMPENSATION
Senator Hollings. Looking over the personnel, an item came
to our attention last year with a case with respect to the
Iranian hostages and working with the Department of State on
the House side we said, in language in the bill itself, that
what we needed was a comprehensive and equitable solution that
would provide an appropriate level of compensation for all U.S.
victims of terrorism. We have got to look out for our people.
We were thinking about not only Nairobi, and Dar es Salaam, the
U.S.S. Cole, but specifically sort of the beginning of it, in a
sense, in a way the most egregious in this Senator's opinion,
was in Tehran, the 444 days there. The court was ready to act,
and we were ready to act, but then we said let us get a
comprehensive plan submitted by the Department of State in this
budget request, and we do not have it.
What are your comments?
Secretary Powell. We have developed a comprehensive plan
for victims of terrorism, and we submitted our plan to OMB and
to the White House, but they have not completed their review of
the plan in time for submission with the budget. But, yes, we
took your guidance and direction very much to heart, and a plan
has been prepared. I am sure that as soon as OMB has completed
its review of it, it will be forwarded to the Congress. Whether
it will be in time for action on this bill or in this session,
I do not know, but I will certainly try to find out.
Senator Hollings. That is good, and I do appreciate the
fact that you recognize that bill language because I think the
lawyer, maybe it was not for the Department of State, the
Attorney General's office said, ``Well, that was only report
language that we put in, and that was not law, and therefore it
ought to be ignored,'' but it is not your position that it be
ignored.
Secretary Powell. I always follow the law and listen to
report guidance.
Senator Hollings. With respect to--yes, sir?
Senator Gregg. That is one of those ``snowy'' answers.
Secretary Powell. But accurate.
[The information follows:]
As Secretary Powell indicated at the hearing on March 12,
the State Department responded immediately to the provision in
the Fiscal Year 2002 Commerce, Justice, State Appropriations
Act, and crafted draft legislation establishing a comprehensive
federal program to compensate U.S. victims of international
terrorism. This draft legislation was submitted in December,
2001 to the Office of Management and Budget for inter-agency
review and clearance. Departmental representatives have had
several discussions with OMB and the White House concerning the
proposal. We are hopeful that the inter-agency review will be
completed shortly, and that the Administration will submit a
legislative proposal to the Congress this session.
FACILITY IN MADAGASCAR
Senator Hollings. With respect to facilities, let me
mention Madagascar. Just write it down there because I have got
a good source that they have had discord, some violence, and
the facility that we have in the capital of Antananarivo is not
secure, and it ought to be double-checked. I mentioned it to
General Williams, but you sent him out of town this morning.
Secretary Powell. We keep him on the road, sir.
Senator Hollings. Yes, I was looking forward to seeing him,
though, and see if he had an answer on it, but you can find out
for the committee.
Secretary Powell. Yes.
[The information follows:]
Secretary Powell has asked me to respond further to your
inquiry made during the March 12, 2002 hearing regarding
security at our embassy in Antananarivo, Madagascar. We
appreciate the opportunity to provide updated information on
the Department's $600,000 effort to enhance security at Embassy
Antananarivo, Madagascar.
Our chancery in Antananarivo is overcrowded but habitable.
Like many of our existing embassies, it lacks proper security
setback and is located on a busy and crowded downtown street.
In light of recent developments, the Department has moved the
planned design and construction of a New Office Building from
fiscal year 2007 to fiscal year 2006. In the interim, the
Department continues to provide substantial security upgrades
to support our facilities in Antananarivo.
After the embassy bombings in East Africa in 1998, many
security enhancements were made to Embassy Antananarivo and
continue today. Immediately after the bombings, $290,000 was
made available for forced entry/ballistic resistant (FE/BR)
doors; shatter resistant window film (SRWF); jersey barriers;
anti-ram drop arm vehicle barriers; and related shipping and
installation costs. Since then, an additional $305,000 was
provided to purchase and install three hydraulic anti-ram
vehicle barriers and three FE/BR-rated guard booths to replace
the non-rated locally constructed units.
Within our resource constraints, the Department continues
to be vigilant in providing safe and secure facilities for our
overseas employees. Using our business case approach, we
continue to pursue ways to not only cut costs, but also to
expedite the improved security posture of our embassies.
EMBASSY CONSTRUCTION
Senator Hollings. In construction, we have a list of
several facilities that really go up, up and away as to the
cost. For example, down in Panama City, we were looking at that
carefully, and we had a list that in Panama City, for example,
$145 million. I know you, Mr. Secretary, and I know me, that is
expensive. You know, Kazakhstan, I do not want to make the
smart remark that I thought you could buy these places for that
much, much less just build a building, but Kazakhstan, $92
million.
Look at those and have General Williams look. I do not know
how you would spend $145 million in Panama City.
Secretary Powell. General Williams is looking at all of
these, and his report to me was that he thinks in our first
year he has been able to reduce the overall cost of these
facilities by some 20 percent. He is taking a particular look
at some of the very, very expensive ones that we found when we
came in last year, such as in Beijing, and he has been able to
reduce the cost.
One of the problems with our facilities is that they are
done to rather high standards. You just do not go into
Kazakhstan and throw up a cinder-block building. In many cases,
our facilities are done with equipment, materials, and workers
that are brought in from the United States; the security
requirements drive the cost as well. And so it is not quite the
same as just building an average office building in those
cities. They are rather unique facilities, and that drives the
cost considerably.
Senator Hollings. You know, you have personnel in trailers
in Kiev and several other places around, that has to be looked
at because we want to look out, as you do, for your personnel,
and why have the State Department personnel in trailers and
then down in Panama, $145 million buildings, that kind of
thing. We are looking at that very closely.
BERLIN EMBASSY SITE
With respect to the Berlin situation, right there in the
city next to the Brandenburg Gate, it is only a 3-acre
proposition, and there are streets on three sides, but it is
right next to an apartment building, the wall there. Of course,
General Williams said he can make the wall as secure as he can
make it, but is that secure enough where somebody cannot just
``rent'' terrorists and come into the apartment building that
confronts it and just blow up our wall too? I mean, if that is
the case, what I am getting at is then why the 100-foot setback
requirement of security? See what I am saying?
Secretary Powell. Yes, sir. I am very familiar with the
Berlin site. I have been there myself and have seen it and
looked at it. I have spent a lot of time looking at the maps,
looking at aerial photographs, and I recognize that there is
some additional danger associated with that condominium next
door, but I believe we have minimized that danger. It is
perhaps the safest square anywhere in Christendom, when you
consider that the United States Embassy, the British Embassy,
the French Embassy, the Russian Embassy, and the head of the
German Government are all located right there.
I thought the symbolic, absolute symbolic necessity of the
United States being in the heart of Berlin, in the heart of
Germany, with our friends and allies and with the German
Government, was so important that we could deal with whatever
additional, slight additional, threat that might be presented
by the location of the condominium.
After General Williams went and made an in-depth analysis
of it as well, I felt rather comfortable in approving it and
making some waivers. The German Government and the Berlin
police authorities have been especially forthcoming in requests
we have made to them with respect to the routing of traffic.
MUSLIM CENTER IN VIENNA
Senator Hollings. I want to limit myself, and we are not
going to use the clock. I appreciate the wonderful attendance
we have here this morning. There is one other thing, Secretary
Powell, I wish you would look at. When I was in Vienna talking
to the Chancellor, they have an ongoing relationship with the
Muslim world, in the sense that they have got a Muslim-
Christian center. He talks to the Ayatollah Khomeini once a
week at least and more.
I have the feeling terrorist martyrs are being created
faster than I can get rid of them, and we cannot invade every
land. That goes to the peacekeeping thing. We had 13, and now
we are adding Georgia, and Afghanistan, and we are adding the
Philippines, and we are adding Yemen, and we cannot just use a
military response. We have to get, as you indicated in your
statement, a better relationship and understanding of the
United States.
The East-West Center in Hawaii has worked extremely well,
the North-South Center in Miami has worked extremely well. Look
into that and let us see if we cannot put some money there and
get a sort of civilian-type or State Department, diplomatic-
type endeavor like an East-West Center for the Muslim world
there in Vienna.
We have got one that is ongoing, and he was pretty proud of
it and indicated that we ought to give it greater support. It
sounded good to me, and I would like to have your comment.
Secretary Powell. I will take a look at it, Mr. Chairman.
Senator Hollings. Thank you very much.
[The information follows:]
I am writing to follow up on your proposal at the March 12
hearing to consider supporting a center for the Muslim world in
Vienna, along the lines of the East-West Center in Hawaii, to
deal with Muslim cultural issues and to foster a better
relationship and understanding of the United States. The East-
West Center is a highly respected institution, and we have been
pleased to work with them for over forty years in the effort to
build stronger ties and cooperation between the United States
and the Asia-Pacific region.
We appreciate your interest in expanded educational and
cultural exchanges with the Muslim world. The Department of
State's Bureau of Educational and Cultural Affairs has a wide
range of existing programs to engage Muslim audiences in all
world regions. Since last fall, we have increased the number of
Fulbright scholarships, professional exchanges, and cultural
programs with the region. We are also developing thematic
initiatives involving media, young people, Afghan women, and
other critical groups.
We believe that the most effective approach to reaching the
Muslim world is to build on the proven successes of Fulbright
and other Bureau exchanges, while at the same time refining our
methods to reach broader, deeper, and more diverse audiences.
We plan to implement most of our programs through grant awards
to qualified U.S. non-profit organizations, in order to
maximize the involvement of the American exchanges community,
which is strongly committed to improving our relations with the
region. These programs will primarily take place either in the
United States or in the countries of the Muslim world, and will
provide a ``total immersion'' experience that maximizes
learning about the other culture.
While we applaud the initiative of the Austrian Chancellor
in developing a Muslim-Christian Center, we believe that U.S.
interests can best be served by supporting a range of American
institutions to carry out specific exchange activities,
allowing us the flexibility to work with those best suited to
conduct particular projects.
We would be pleased to discuss further our educational and
cultural programs for the Muslim world or to provide additional
information. Thank you again for your support for these
important activities.
WINNING THE WAR ON TERRORISM
Senator Gregg.
Senator Gregg. Thank you, Mr. Chairman. We appreciate your
being here, Mr. Secretary, and I want to begin by
congratulating you for the extraordinary job you and the
administration are doing in building the coalition to fight
terrorism.
I had the opportunity to participate in yesterday's
ceremony, and it was extremely impressive, to say the least. It
looked like there were over 100 members of the foreign
delegation there supporting our coalition and expressing a
commitment to fighting on behalf of civilization against forces
which essentially want to bring down civilization. So I
congratulate you for what I think is an exceptional job.
I am interested both on a philosophical level and on a
practical level. There has been some representation that
catching bin Laden is the defining moment as to whether we win
this effort or not. I am not sure that it is, but I am
interested in hearing what you believe is the defining moment.
How do we get our hands around a movement which appears to be
based in a culture, and a religion, and a perversion of that
religion, regrettably, for those who follow this terrorist
movement? Where do you see the light at the end of the tunnel?
Secretary Powell. With respect to al Qaeda, I think we have
struck a very serious blow with what we did in Afghanistan. I
mean, he cannot really function in Afghanistan any longer. Even
though there are some al Qaeda members and Taliban members
remaining in the country looking to make trouble, I think that
it is a controllable, manageable situation.
We have hit them in other places in the world, and more and
more nations are making it inhospitable for al Qaeda or its
cells to be located in those countries, to try to do financial
transactions in those countries, or to avoid the police or
avoid intelligence services in countries around the world.
As Senator Hollings mentioned a few moments ago, in some
countries, we have gone beyond that, and we are going to help
them go after al Qaeda-oriented cells, such as in Yemen or in
the Philippines or in Georgia. But in these instances, we are
not planning to send U.S. troops in there to stay. What we are
doing is using our military forces for something they are so
good at, training others to do the job, so that the Georgians
can deal with their threats, so that the Filipinos can deal
with their threats, so the Yemenese can deal with their
threats.
I do not think a day will ever come when somebody can come
up to you and say, ``Well, it is over. There is no longer a
terrorist threat facing the United States or its friends and
allies, and we have gotten rid of every last al Qaeda
individual or cell in the world.'' They will keep trying. It is
a false religion that they are practicing. They are hiding
behind their religion, as you indicated, Senator Gregg.
But I do think that we can reach a point where we can be
less fearful of their ability to strike at us. We are doing a
much better job than we had been doing in the past with respect
to tearing up their networks, understanding how they operate,
going after them through intelligence efforts, as well as
through law-enforcement efforts, through counterintelligence
efforts, through protecting our borders and through homeland
security activities. Therefore, we are making it a lot harder
for them to do their evil work, and by so doing, we are
bringing more security to our society.
So things are going to get better, but at the same time,
there will continue to be dangers, dangers that I think we are
up to the task of dealing with.
TERRORIST TRAINING CAMPS IN AFGHANISTAN
Senator Gregg. Do you have an estimate of how many people
went through those terrorist training camps in Afghanistan?
Secretary Powell. The number is in the thousands. I have
seen a variety of estimates. I would say the numbers are in the
tens of thousands. How many of them left those training camps
and are card-carrying terrorists who are meaning us ill or how
many of them went back into their societies and may be
disgruntled, but are not participating in any activities that
may be harmful to us? That is a question that I cannot answer,
nor do I think anybody else can.
STATE AND INS COORDINATION
Senator Gregg. In that area, to get specific, we have got
an issue of people coming into our country, which we obviously
want. We want to remain an open society, which allows people to
visit us regularly, especially people who are coming here to
learn.
I am wondering what sort of progress you, in a joint effort
with the INS, are making, number one, in getting your houses
coordinated, and number two in the area of biometric
identification for people applying for visas?
Secretary Powell. We are working very closely with the INS,
with Customs Service, with Governor Ridge and his efforts, and
I think we are making considerable progress. We have a lot of
work going on with the Canadians and the Mexicans because those
were sources of easy access to the United States previously. We
are going to do a better job of controlling our borders, and
this will be a subject of President Bush's discussions with
President Fox in Mexico next week.
We are doing a better job rationalizing our databases so
that when somebody first surfaces at an American Embassy or an
American consulate office somewhere overseas and applies for a
visa, that information comes back and is not just held in State
Department channels. It goes everywhere to see whether anybody
has information on this person.
We tried a new technique during the Olympics in Salt Lake
City that showed considerable promise that we are getting on
top of this issue of how to make all of our databases talk to
one another.
With respect to biometrics, we are looking at that and
seeing how best to integrate that into our passport system and
into our other identification systems. One way we are going to
be looking at it, frankly, is with some of the detainees we
have. They are going to be ``biometricked.'' So, for any of
those we are unable to hold, we will always be able to track
these people in the future. If they ever try to get back into
our country, we will know a great deal about them, and that
should give us some experience with respect to the use of
biometric measures and biometric identification techniques.
BIOMETRIC IDENTIFICATION
Senator Gregg. Is it reasonable to ask that we have
biometric identification for someone who is visiting our
country as a student, a card or something, whether it is a
fingerprint or retinal scan, and also to track where they are
using that identification?
Secretary Powell. I do not think it is unreasonable to ask
people coming into the country to give us a reliable measure of
their identification of who they are. I am not sure I am yet
persuaded what the best way to do that is, whether it is with
just fingerprints and photographs or whether it is a visual
scan or other biometric techniques that are being looked at.
It is much more difficult once they are in the country, and
as you know, there are hundreds of thousands of people in the
country that we can no longer track. Unless they surface
somewhere and identify themselves either through a biometric
measure or some other measure, they can just stay within the
country and be very hard to find because we do not have the
means to do it. It is essentially a local law enforcement
problem and beyond the capacity of the INS to track everybody
within the country.
But these are the kinds of issues that Governor Ridge is
working on under his homeland security charter, and I know that
the Attorney General is hard at work at it as well because, at
that point, it is not a State Department problem, but an INS
and Homeland Security problem. How do we keep track of those
people who have entered our country under acceptable, legal
documentation, and how do we make sure that they do not
overstay their welcome, and they do not overstay their
documentation? How do we find them, how do we locate them, how
do we deal with them, how do we get them out of the country, or
how do we revalidate their entry documents? It is an issue of
high priority for the administration.
PEACEKEEPING IN THE CONGO
Senator Gregg. On the subject of the Congo peacekeeping
mission, former Ambassador Holbrook laid out what we would
require before the United States would support the peacekeeping
mission to the Congo. I am wondering what the policy of the
State Department is, whether the Holbrook understanding is
still the position of the State Department.
Secretary Powell. Which understanding are you referring to,
sir?
Senator Gregg. He basically set out a series of conditions
for when we would support the Congo peacekeeping mission.
Secretary Powell. Our principal participation is through
financing, and as you know, the amount we are asking for has
gone up considerably over the last couple of years because the
U.N. peacekeeping force is actually now being deployed and
growing in number. But we have no plans, at the moment, to
deploy any U.S. troops into DROC peacekeeping activities.
Senator Gregg. Do we have plans not to give them money
unless it is being done pursuant to the policy which we
outlined? My point here is that we were funding, in Sierra
Leone, for a number of years a program which was facilitating
the RUF, terrorists, through the United Nations. Now that has
been adjusted, and there is progress being made in Sierra
Leone. I do not want the same thing to happen in the Congo. I
do not want to see us end up funding a mission which is not
consistent with U.S. policy.
Secretary Powell. I think you are quite correct, Senator,
and you can be sure that the money that we will provide to the
United Nations for this peacekeeping effort will be consistent
with our policies. We are in touch with President Kabila and
other individuals in the region, trying to get the peace
process moving along. I have met with President Kabila on two
occasions, and Secretary General Annan and I discuss the Congo
on a regular basis. They understand that we are looking for
progress that will protect human rights, and end illicit
trading in people and commodities such as diamonds. So we
remain committed to those kinds of principles as we provide the
peacekeeping monies needed to put in place the force that will
provide some hope for this country.
Senator Gregg. I hope you will take a hard look at it
because I think we are heading down the wrong road again.
[The information follows:]
Secretary Powell has asked me to follow up with you on his
response to your question at the March 12 CJS Hearing about the
U.N. Mission in the Democratic Republic of the Congo (MONUC).
In your question, you asked if the Administration continues to
follow the policy laid down by former U.N. Ambassador Holbrooke
when the U.N. expanded its mission in the Congo in February
2000.
The conditions outlined at that time by former Ambassador
Holbrooke for the successful deployment of MONUC generally have
been met since early 2001: Combatants withdrew in the first
half of 2001 to lines specified in the Kampala and Harare
Disengagement Plans of April and December of 2000,
respectively. A cease-fire has generally held since January of
2001, and the signatories of the cease-fire agreement have
permitted MONUC access to areas under their control.
While recent fighting at Moliro and occasional obstruction
of MONUC deployment by the Rally for Congolese Democracy's Goma
faction have caused concern, we expect that all parties to the
Lusaka Agreement will continue to respect its provisions.
MONUC's continuation remains conditioned on their doing so.
In your question you express concern that MONUC may stray
from its original purposes outlined in its mandate, which the
U.S. supported. We are working closely with the U.N. to make
sure that MONUC carries out the tasks assigned to it by the
Security Council, with the goal of bringing this terrible war
to an end. We do not see MONUC as an open-ended commitment. Any
decision to support changes in the mission's mandate or size
will, of course, be notified to Congress.
OVERSEAS BUILDINGS PROGRAM
Senator Gregg. I want to reinforce what the chairman said
about buildings. I know we have all talked about this. This is
an ongoing issue with this committee and I appreciate your
bringing on General Williams who is doing such a good job
there, but the fact is the price tag is not going down.
I am interested in knowing whether there is not some
structural change we need to make. In other words, do we have
to use, for every building, the same standards of American
labor, American parts, and American facilities. Or are there
some places like Panama, for example, which is in this
hemisphere, where we could possibly build it for less by not
having the stricture of levels of conditions relative to
construction that we have today.
Secretary Powell. I am sure that that is the case, Senator,
but I think we have tried to be faithful to the guidance we
have received from the Congress and the work that was done by
previous commissions that looked into Embassy security, Admiral
Crowe's work, and Admiral Inman's work. We have to be sensitive
to the very practical considerations that if we find a problem
in one of our Embassies with respect to security, there will be
a big investigation, and the questions will be: why did you
allow local artisans or workers to do this when you knew it
could be a compromising situation?
So we are always trying to find the right balance between
those things that we really have to do ourselves, with American
contractors and equipment that are subject totally to our
control, with perhaps a fence or other work arounds that can
still permit work to be done at an Embassy very efficiently at
the local level.
I think General Williams understands that this has to be
looked at with a very, very skeptical eye to try to get the
costs down. The costs are significant. I cannot deny that fact,
but I think that Chuck Williams has done a pretty good job of
reducing the overall costs and continues to look for ways to do
that; templating, using standard furnaces, and heaters, and
standardizing windows and all of the other things that are used
in civilian construction to try to minimize cost-growth
escalation and get the overall costs down.
FIVE-YEAR EMBASSY CONSTRUCTION PLAN
Senator Gregg. Thank you. I appreciate that answer.
My last question in this area goes to you say you are going
to have this 5-year Embassy construction plan. Are you going to
build that around the model that you used at DOD, where you
tied it to your money or is it going to be irrelevant?
Secretary Powell. Well, that is not the way I did it in
DOD, Senator.
Senator Gregg. There was theoretically a cash-flow stream
that it was tied to.
Secretary Powell. I do not know all of the assumptions that
General Williams has in it, but the guidance he has is to put
together a plan that represents some sense of reality of what
is likely to be the out-year funding stream. But to do what I
think we need to do around the world, with our facilities, and
to represent the American people well, to protect our people
who are out there, to make sure that their quality of life and
their quality of workplace are adequate, and to make sure they
are secure, is going to take a significant amount of money for
a fairly extended period of time.
We have got a lot of work that needs to be done, as
evidenced by the fact that we still see trailers, and we still
see other things that are desperately in need of repair. It was
a lot easier before the cold war ended, when we did not require
the same kind of presence in all of the countries that we now
require presence in, places such as Vietnam. So it is going to
be a long-term proposition, but I know that General Williams is
trying to do it in not just a completely ``blue sky'' fashion,
where his work and the master plan bears no reality to the
likely resources that will be available.
Senator Gregg. This committee is very strongly committed to
rebuilding the facilities and the technology capabilities of
the Department, but we would like it to be in the context of
a----
Secretary Powell. I hope that in your review of the master
plan, and it was done so that you could see what we are doing,
but I hope that you will be critical of it, constructively and
destructively, as the case might be. I need your help. I need
your guidance. I need your sense of what the possible is, what
the achievable is.
Senator Gregg. Thank you.
Thank you, Mr. Chairman.
Senator Hollings. Thank you.
My list shows Leahy, Campbell, Reed, Mikulski, Inouye,
Domenici.
Senator Leahy.
EMBASSY CONSTRUCTION
Senator Leahy. Thank you very much, Mr. Chairman.
To follow up on what my friend and neighbor from New
Hampshire was saying on the construction of buildings, there
are ways it could be done very well. I am very impressed with
the Embassy we have in Ottawa. Here we were given a choice
location, as the Canadians were on Pennsylvania Avenue, and we
utilized it very well to build a modern building surrounded by
architecturally beautiful, old, significantly historical
buildings, used a lot of Canadian materials, sensitive to the
wishes of the people, and came out with something very
beautiful. When you compare that with the horrible, ugly,
disgraceful, eyesore of our Embassy in London, for example,
something that makes about as much sense as putting a garbage
truck in the middle of a Rolls Royce parking lot, the one in
Ottawa is very good.
I am glad to see you here, Mr. Secretary, because you have
been a voice of reason and balance in not only this
administration, but each administration you have served in, and
you are going to be before our Subcommittee on Foreign
Operations, so I will not go into too much on that.
BUDGET ISSUES
Just on some of the budgetary things, I think it is great
you have selected Lorne Craner to head up the Bureau for
Democracy, and Human Rights and Labor. I hope we can give them
an adequate budget. That budget has been sort of ignored by
administrations in both parties for 25 years. Even though there
is a modest increase requested this year, we actually need
more.
CURRENT EVENTS
Colombia, I hope you are looking at very closely. We all
want to help Colombia. We want to help President Pastrana
before he leaves, but as we rush to expand our presence there,
I hope we are extremely careful what we are doing so that we do
not end up doing more harm than good and something that not
only this administration, but subsequent administrations, will
have to deal with.
I know you are going to accompany the President to the
United Nations Conference on Financing for Development to be
held in Monterrey, Mexico, next week. I am glad you are going.
I am glad the President is going. I am very disappointed that
the administration continues to oppose the plan put forth by
the British, after all, our closest ally on the war on
terrorism, for industrialized countries to significantly
increase spending on foreign aid.
There is a huge shift, a bipartisan shift, in the Congress
and a willingness to spend money on foreign aid, above and
beyond what you are going to request for Afghanistan, and I
hope the administration will make a request for more, as a
nation as rich and powerful as we are, it is in our security's
best interests to have democracies around the world. Certainly,
it is also in our moral best interests to help eradicate
disease and to do all of the things necessary.
I am glad General Zinni is going back to the Middle East.
Some would feel a pox on both the sides there, and of course we
cannot do that. We need to do more to condemn and discourage
the Palestinian suicide attacks which are targeted at innocent
civilians and locations to cause death, but at the same time,
we cannot ignore the Israelis using high-powered U.S. military
equipment, including F-16s and Apache helicopters to strike at
targets in densely populated civilian areas, and we end up
getting blamed for that.
FOREIGN AID FUNDING
Let me ask you on the funding for foreign aid. The
President has said we will defeat the terrorists by destroying
their networks wherever they are found. We will defeat the
terrorists by building an enduring prosperity that promises
more opportunity and better lives for all of the world's
people. I completely agree with the President on that.
I would also say that 41 Senators are now on record
supporting an increase in foreign aid. That is more than at any
time I can remember in my 27 years here.
You recently testified that the idea of doubling foreign
aid is not a bad idea, and you would like to triple it. When
are we going to follow up? The rhetoric is all in the right
place. We are going to add $48 billion for the Defense
Department. I am sure they can use it, but foreign aid is also
about national security. If we spend less than 1 percent of our
budget to build democratic allies and promote market economies
around the world, that is nowhere near enough. Can we not do
better?
Secretary Powell. Senator Leahy, I would like to do a lot
better, and I have testified last year and this year that I am
pleased the President was able to find increases in both years
for our foreign assistance accounts. The need is much greater,
and I hope that we will be seeing additional help in the
supplemental request for fiscal year 2002. The President, I,
and my other colleagues in the administration are already hard
at work seeing how much better we can do for fiscal year 2004.
I think this year, in light of the new demands that were
placed on the budget by the recession that we are now coming
out of, the fact that a surplus has turned into a deficit, the
fact that the military needed a big infusion to deal with the
campaign against terror, and the new demands placed on the
budget by homeland security, I am pleased that we were able to
get an increase. But would I like to see more? Yes. Will I be
arguing for more? Yes.
The specific number that our British colleagues had put
down, a doubling of foreign aid as a percentage of GDP, was a
bit more than we could sign on to. We are looking at other ways
of doing it, whether it be by development assistance or grant
aid or other techniques and methods that might be more
appropriate.
At the end of the day, what we really need in most of these
countries is trade, even more so than aid, and I spend a lot of
my time talking to them about what they have to do to change
their societies, not just to draw more aid, but really to
create conditions that draw trade.
U.S. LONG-TERM COMMITMENT TO DEVELOPING COUNTRIES
Senator Leahy. Of course, they have to do more, but there
also has to be a long-term commitment on our part. I mean,
trade by itself is not going to do away with river blindness
and is not, by itself, going to help with the AIDS epidemic in
Africa. It is not going to help in countries where our children
cannot go to school, especially girls cannot. Boys might be
able to if there are schools, but girls cannot. All of those
things and microenterprise, which would take a relatively small
amount--we sometimes can go very hard on the big-ticket item,
but I look at the areas. I mean, one example we use I am very
proud of the War Victims Fund, and I appreciate the fact that
my Republican colleagues renamed it the Leahy War Victims Fund.
That is something that touched me more than just about anything
here. We spend money on that for land mine victims. I will not
go into the issue of land mine banning, but one of the things I
found in one place we went, my wife is a nurse, and she is
helping to care for a little boy in one of these countries in
one of the land mine victim hospitals, badly crippled. When
they were bathing the little boy, she said, but there are no
scars on him. No, it is from polio. In this case, they could
not get the polio vaccine to the village because of the land
mines around it, but there are whole areas where there is no
vaccine.
Now you are now a grandfather, as am I. Your grandchildren,
when the pediatrician says, ``And this is the day you get your
polio vaccine,'' of course, you just mark it down and do it.
You take it for granted. When you and I were youngsters,
swimming pools and everything else would close because it was
polio season. We do not have to worry about that. This is
something we could eradicate. Tuberculosis could be eradicated.
A third of all of the tuberculosis cases we see here in this
country come from abroad. We could eradicate that, but it is
going to take a long-term and fairly expensive up-front
commitment. The long-term aspects are great.
I mention that, Mr. Secretary, and I know I preach to the
converted, but it is going to take money, and it is going to
take a lot more money than we have, and ultimately the amounts
of money that we have to spend, and none of us begrudge the
money we have to spend to defend against terrorism, maybe some
of that would not be necessary if we did more at the front end.
Secretary Powell. I totally agree with you, Senator, and I
will continue to make that case within the administration. The
President, I think, has been generous in the first two budget
submissions, and I hope he will be able to do even more in the
supplemental and in the next year's budget submission. I do
also appreciate the fact that there seems to be a growing
understanding within the Congress of the importance of this
account, and I am very pleased that it is bipartisan and in
both bodies.
Senator Leahy. Senator McConnell and I have worked very
hard, as you know, and worked together to do that in our
Appropriations Subcommittee. I have asked a number of other
questions that, as we have a vote coming up, I will submit for
the record.
SITUATION IN COLOMBIA
Secretary Powell. If I may say a word on Colombia. With the
end of the safe havens, of course, the Colombians have come to
us with new requests, increased intelligence sharing and other
support we might be able to provide them. They are not asking
for U.S. troops, nor do I see U.S. troops going to Colombia,
but we do believe we should help this democracy that is being
threatened by narco-traffickers and terrorists. Therefore, we
will be sending up, in the not-too-distant future, language
which would give us greater flexibility with respect to the
kind of support we can provide, while at the same time being
very, very mindful of human rights, particularly other
legislation named for you dealing with human rights. We will
not, in any way, do anything that would undercut our commitment
to making sure that as we support Colombia, we hold them to the
highest standards of human rights performance on the part of
their military and their police forces.
Senator Leahy. I have a lot of questions on that. The
Colombians have talked to me at length about what they request.
I have not heard anything from the administration about what
they are hearing, and I know that you are all very busy, but if
you can turn somebody loose to possibly, I have a listed
telephone number.
Secretary Powell. It is mostly intelligence, and as you
know, we have a proposal on the pipeline security.
Senator Leahy. I read in the paper, but some of this may
end up coming before my committee, if somebody could take the
time to see what the Colombians have and let me know what they
think about it. I am always happy to hear from you.
Secretary Powell. Thank you, sir.
Senator Leahy. Thank you.
Senator Inouye [presiding]. Senator Campbell.
Senator Campbell. Thank you, Mr. Chairman.
I understand we are going to vote in just a few minutes, so
I would ask unanimous consent to put my complete statement in
the record.
Senator Hollings. Without objection.
[The statement follows:]
Prepared Statement of Senator Ben Nighthorse Campbell
Mr. Chairman, I appreciate this opportunity to make a few brief
remarks this morning drawing on my work as Chairman of the Helsinki
Commission. The Organization for Security and Cooperation in Europe
(OSCE) can serve as a valuable tool for promoting human rights and
democratic development and advancing U.S. interests in the expansive
OSCE region, covering 55 countries.
In the aftermath of the terrorist attacks of September 11, it is
crucial that we redouble our efforts to advance the fundamental
principles of democracy, human rights and the rule of law throughout
the OSCE region even as we pursue practical cooperation aimed at
rooting out terrorism.
During my chairmanship, the Commission has paid increasing
attention to the multidimensional threats posed by corruption and
international crime as well as the strong nexus between them and
terrorism.
The OSCE provides an excellent framework for advancing these vital
and complementary objectives. My hope is that ``Operation Enduring
Freedom'' will bring enduring freedom to people throughout the OSCE
area, including those in the five nations of Central Asia.
Erosion of our common commitment to human rights would only lead to
greater instability, not less. It is essential that we communicate to
every corner of the world, the U.S. commitment to the preservation of
democracy and human rights. To do otherwise would imperil the very
values and principles which terrorists seek to destroy. Paying lip
service to human rights will not suffice.
I note that the President of Uzbekistan is in Washington today and
will be interested in Secretary Powell's assessment of the state of
human rights and democracy in that country. A decade after Uzbekistan
joined the OSCE, the gap between word and deed in these areas remains
enormous.
Egregious human rights violations continue in Chechnya as
international attention is directed elsewhere and Russian officials
attempt to clamp down further on journalists who attempt to report on
developments in that war torn region of Russia.
I am also concerned over continued repression in the Republic of
Belarus the last surviving dictatorship in Europe. Fundamentally flawed
presidential and parliamentary elections there leave that country
without legitimate leadership and have led to its self-imposed
isolation.
Finally, there are important parliamentary elections coming up in
Ukraine later this month. I have introduced a resolution urging the
Government of Ukraine to ensure a democratic, transparent, and fair
election process leading up to those elections. Congressional interest
in the elections, and, for that matter, U.S. interest, is because an
independent, secured, democratic, economically stable Ukraine is
important, and we want to encourage Ukraine in realizing its own goal
of integration into Europe.
Thank you, Mr. Chairman. I look forward to the testimony and
comments from Secretary Powell.
ROLE OF THE OSCE
Senator Campbell. And I would ask the Secretary if he would
answer some of the questions I am going to pose in writing
because we are going to simply run out of time.
I would tell, Mr. Secretary, I was happy to hear you talk
about the war effort in national security, the war effort on
terrorism and the multidimensions of it. You alluded to the
cultural, the educational, the public information and the
diplomatic efforts that need to be made, and I absolutely
agree. It seems to me if we do not redouble our efforts to
advance fundamental principles of democracy and the rule of
law, we are just destined to fight more battles on the battle
fields, whether it is one country or another.
I am particularly interested in one area that I am involved
in, and that is the OSCE. I am sure you are familiar with that.
If you go anywhere in Europe, almost everybody knows what the
OSCE is. They talk about it in the United States, and everybody
kind of goes blank. Apparently, we are not doing a very good
job of telling the people of the importance of the OSCE, but
you know as well as I do that it is.
Let me ask you about it in particular. As you know, there
are 55 member nations and a number of observer nations too.
Some of the observers have suggested that the human rights
situation in some countries, such as Turkmenistan and several
others, is so bad that they ought to be suspended from the
OSCE, the way Yugoslavia was in 1992.
I would ask you if there is a point where the OSCE does not
play a constructive role or, to the contrary, is it used
inadvertently by some brutal regimes to give them some
legitimacy?
Secretary Powell. The OSCE does a fine job, and I certainly
know what the organization is and what it does and have worked
with it for many years. I am sure there are nations whose human
rights performance we do not approve of that might well be
trying to use the OSCE to give them some legitimacy or cover. I
would rather provide an answer for the record as to whether or
not the rules, regulations, and basic principles, which govern
the OSCE, should be looked at to see whether these nations
should or should not be suspended, and which ones.
Senator Campbell. I appreciate that, if you would answer
that to your best ability in writing.
[The information follows:]
The OSCE has not relaxed its human rights expectations for
the Central Asian republics or other participating states.
Through its missions in Central Asia, the Permanent Council in
Vienna, and around the world, the OSCE continues to raise the
issue of ongoing human rights abuses and lack of democratic
institutions in the region. It is therefore important for the
OSCE to continue to engage these countries. The process of
having OSCE participating states remind each other of their
commitments, complemented by recommendations for improvements,
is essential to building a more democratic, prosperous, and
secure future for the region.
In the case of Turkmenistan and several other Central Asian
states, it is through its engagement in the region that the
OSCE is able to improve faltering human rights and foster
democratic development, while at the same time addressing
urgent security, environmental and economic needs.
We do believe that suspending participation in the OSCE
should always remain an option should a government commit
egregious human rights violations, such as those of the former
regime in Yugoslavia. However, this option should be weighed
carefully against the costs of disengaging a country from the
OSCE process.
The OSCE continues to be an important forum to discuss
human rights issues and promote steps toward democracy in
Central Asia and elsewhere. There is still a need to address
human rights along with security interests. In order to combat
terrorism and defeat extremist insurgencies in the region, we
need to encourage the development of democratic governments
that respect human rights.
OSCE AND HUMAN RIGHTS
Senator Campbell. Russia, along with a small number of
former Soviet states have complained that the OSCE is
unbalanced, that we put too much emphasis on the human
dimension. Those countries have also complained about that
there is too much attention focused on former Communist
countries that were once part of the Soviet Union. Do you think
there is any merit to that?
Secretary Powell. No, I think it is quite appropriate that
the OSCE should focus on human rights. All of these various
organizations flow back to the Helsinki Final Act on the Rights
of Men and Women, something President Ford signed back in the
mid-seventies, and it was a remarkable occasion and document
when he signed it. There was quite a disagreement as to whether
he should, but he did. And by aligning the United States for
human rights, that essentially, I think, helped bring down the
Soviet Union because they could not ignore this international
standard of human rights performance that was put in front of
them to deal with. We should continue to do that.
Some of the former republics of the Soviet Union do not
have good human rights records, and I am meeting with the
leaders of Uzbekistan today. They have been very supportive of
our efforts during the war. President Karimov has been a solid
coalition partner, but, at the same time, there are problems
with respect to human rights in Uzbekistan, and we will not
shrink from discussing them with the president of Uzbekistan.
If I could draw your attention to our annual Human Rights
Report, which we issued last week, you will see a very long
section on each one of these republics. We call it the way it
is. Even though we need their cooperation and security in other
areas, we believe it is in their interests for us not to hold
back on human rights problems that they have. If they really
want to be a participating nation in the 21st century in a
coalition that rests on democracy, human rights, free-market
activity, and if they want assistance from the United States,
development assistance or economic assistance, then they have
to move in this direction. We are not shrinking from that
standard, and we are not holding back.
UNITED STATES-RUSSIA RELATIONS
Senator Campbell. I appreciate that answer. Uzbekistan is
one of the countries that has the sort of mixed approaches,
where they are allied with us, and yet their human rights
violations are renowned. Also, Russia itself, we now have some
people that are going to be going into Georgia, and I
understand, that Russia does not agree with that. They look at
us with the view that they are fighting terrorists in Chechnya,
and yet we are condemning what they are doing in Chechnya while
we are fighting terrorists too.
I know it is terribly complicated. I just want to tell you
that I understand that and wish you well in trying to find a
solution.
Secretary Powell. It is very complicated. In the case of
our willingness to help the Georgian Armed Forces become more
proficient to deal with terrorists in the Pankisi Gorge, even
though some Russian officials said they were not happy with
that, President Putin understands it and appreciates the fact
that we are working with President Shevardnaze. So it is one of
those cases where we have a common goal, and that is to defeat
terrorism.
Throughout Central Asia, people said the Russians will not
let you do things in Tajikistan, Turkmenistan, Uzbekistan, and
Kazakhstan. But quite the contrary, they are cooperating with
us because it is a common enemy. It is not the United States
versus Russia, but it is the United States and Russia working
against terrorism, fundamentalism, smuggling, drug running, all
of those things that are a greater threat to Russia than they
are to us.
So we have found new ways to cooperate that would have been
unthinkable 2 years ago.
Senator Campbell. I am glad you mentioned the drug
component, too, because the fact is that some of the terrorists
finance their activities through drug sales.
Secretary Powell. Yes, sir.
POLICE TRAINING IN OSCE COUNTRIES
Senator Campbell. Let me ask just one final one so I can
leave a little time for my colleagues before we go vote, and
that is on the police activities. I visited the police academy
in Kosovo some time ago, and I know that in Serbia and
Macedonia there are some efforts to developing police training.
I think it is very effective, frankly.
I just want to know about the State Department. Are you
considering efforts to support expanding police training
activities in the OSCE countries?
Secretary Powell. Yes. The real solution to many of the
problems that exist is inadequate police forces, police forces
that are not up to the kinds of standards we would expect here
in the United States, particularly in places like Bosnia, and
Macedonia, and Kosovo. So, yes, we are looking, and we are
working with the Justice Department and other organizations,
including international police organizations, to do everything
we can to stand up more competent police forces in OSCE and
other nations.
Senator Campbell. Thank you, Mr. Secretary.
Thank you, Mr. Chairman.
Senator Inouye. Thank you.
Senator Reed.
LIBERIAN IMMIGRANTS IN THE UNITED STATES
Senator Reed. Thank you, Mr. Secretary, for your testimony
today, and let me also thank you for your understanding and
sensitivity with respect to the Liberian population here in the
United States.
As you know, for more than a decade, we have had a
significant number of Liberians here, first, under temporary
protective status and now under DED, and it is an annual rite
where they face the process of deportation. I thank you, and
the Attorney General last year, you extended DED once again,
but I believe it is time now for some type of permanent
solution, and I would like to work with you and the Attorney
General to, this year, avoid the last-minute reprieve and give
these good people a sense of permanency here in the United
States that they want.
Secretary Powell. I am pleased to look at it, Senator.
Senator Reed. Thank you, Mr. Secretary.
[The information follows:]
We recognize that many Liberians have lived in the United
States with temporary protection from removal for an extended
period of time. As you know, only the Congress has the
authority to grant lawful permanent resident status to this
group. We will be exploring with the Immigration and
Naturalization Service and others in the Administration whether
there is an appropriate way to address this issue.
ARMS CONTROL
Senator Reed. Mr. Secretary, last weekend the Los Angeles
Times described the Nuclear Posture Review, which represents a
profound shift I think in our thinking about arms control and
will complicate your job immensely as you go about the world
trying to explain it and defend it.
From the reports in the Los Angeles Times, the indication
is that we are beginning to target countries like Libya and
Syria who, to my knowledge, do not possess nuclear weapons,
that we are at least suggesting the preemptive use of nuclear
weapons, that we are preparing to develop new classes of
weapons which would penetrate deep underground, and this raises
quite a few questions. I must say, as an aside, one of the
subtexts in the discussion of the ABM Treaty has been the
immorality of using nuclear weapons as a balance of terror, but
it seems that such moral objections did not infuse this Nuclear
Posture Review.
But getting to the more specific points. It seems to me
that we are turning away from what was our traditional approach
to arms control, which was a very deliberate, concerted,
consistent effort to limit the use of nuclear weapons, not to
expand their use.
Second, with the discovery of these new targets, it seems
to me that the hope of many sides that we could reduce the
number of warheads and launches might be frustrated by the
simple increase in targets in these different countries.
Finally, the proposal or discussion to develop new classes
of nuclear weapons raises the issue of nuclear testing. Why do
you not comment in general on these issues and specifically
whether you would anticipate that we would begin to test
nuclear weapons to develop this new class of systems.
Secretary Powell. With pleasure, Senator.
Senator Reed. Thank you, Mr. Secretary.
Secretary Powell. After reading the articles over the
weekend and the continued commentary today, I had to go back
and read the report again because the articles did not comport
with my understanding of the report.
Let me answer it this way: When I was Chairman of the Joint
Chiefs of Staff, the first day I took over, October 1, 1989, we
had 29,000 nuclear weapons in our operational inventory. I was
responsible to the President and the American people as to how
they might be used. Now, some 13 years later, that number is
well, well under 10,000. We have removed from our operational
inventory two-thirds of the weapons that were there when I was
Chairman.
We have gone from a situation where we had day-to-day alert
targeting on specific targets all over the Soviet Union and
other nations of the Warsaw Pact, to a situation today where
not a single country in the world is on a day-to-day target
list. We are working with the Russians for further reductions.
We have said in this report, the Nuclear Posture Review, that
we do not really view Russia as an enemy the way we used to
view Russia as an enemy, and therefore, we can make even more
significant reductions in our nuclear forces.
The President has gone so far as to say, ``Look, President
Putin, we do not even need a treaty for this because I am going
down whether you are or not. I do not need as many nuclear
weapons as we used to have.''
So, quite the contrary, the philosophy of President Bush,
the philosophy of this administration, is to continue driving
down the number of nuclear weapons.
I was pleased to be the Chairman of the Joint Chiefs of
Staff in 1991, or early 1992--the year escapes me as I get
older, Senator Reed. I will have to go back and check my
records--but when I went to the President of the United States
with my boss, Secretary of Defense Cheney, and said to former
President Bush, ``We no longer need any nuclear weapons in the
Army. They are all gone. The marines have gotten rid of theirs.
We no longer need any tactical nuclear weapons in the United
States Navy. They are all gone. We still have the ballistic
missiles in the Navy. And we need many fewer nuclear weapons in
the Air Force.''
And so, frankly, we have gone down significantly, and we
will continue to go down. That is point one. So, even though
traditional arms control has changed, the drive to reduce the
number of nuclear weapons has not changed; it is accelerating,
even in the absence of traditional arms control kinds of
negotiations.
With respect to reports that somehow we are thinking of
preemptively going after somebody, or that, in one editorial I
read this morning, we have lowered the nuclear threshold, we
have done no such thing. There is no way to read that document
and come to the conclusion that the United States will be more
likely or will more quickly go to the use of nuclear weapons.
Quite the contrary. We have now an overwhelming conventional
non-nuclear capacity, even greater than it was 10 years ago.
The discrepancy in conventional capability between the
United States and any other nation or combination of nations is
greater than it was 10 years ago. So we are not fools. We are
not going to suddenly say let us more quickly go to nuclear
weapons, when we have such conventional capability.
What we have done in this report, quite sensibly, is to say
the American President has to have all of the options that are
available to him, alive and well, and thought through. And so
when we look at the dangers that are out there and when we look
at nations that might be developing weapons of mass
destruction, it is prudent, commonsensical, and good thinking,
politically and militarily, to consider these nations and to
consider what range of options the President should have.
Nuclear weapons have not gone away from the face of the
Earth. I wish they were. I wish there was not a single nuclear
weapon in the world, but there are. I am pleased to have been
part of several administrations that have driven the number
down. I do not know if I will still be around when they are all
gone, but I hope they will be some day. But as long as we do
have nuclear weapons and as long as there are nations that
continue to move in this direction, the security of the
American people, the security of our Nation, and the security
of our friends requires us to think the unthinkable.
But nothing in this Nuclear Posture Review seems to me to
represent a major departure in thinking from previous
administrations, in terms of continuing to go down and
continuing to find new ways of stability in our strategic
framework. That is why we are so committed to missile defense.
Missile defense does not kill a single individual. Missile
defense protects people from offensive weapons of the kind we
are trying to get rid of. It is offensive weapons we are trying
to get rid of that kill people.
With respect to the development of new nuclear weapons, we
are examining whether or not, within our inventory,
improvements can be made or there are new things which we
should be looking at that are sensible. But in looking this
over the weekend, after the stories broke, the report I have
from the Pentagon states just that, we are looking at it. There
is no new design out there or new nuclear weapon about to be
commissioned into production that would require testing. We
remain committed to a moratorium on testing. Even though we are
not in the CTBT, the President remains committed to a
moratorium on testing.
So there is no testing breakout coming. There is no new
escalation in the kinds and types of nuclear weapons we wish to
have. There is no change in the threshold that people like to
talk about. There is no more intention to preempt than there
might have been in some previous administration. What we are
doing is taking a look at the world that is out there right
now. And for those nations that are developing these kinds of
weapons of mass destruction, it does not seem to us to be a bad
thing for them to look out from their little countries and
their little capitals and see a United States that has a full
range of options and an American President that has a full
range of options available to him to deter, in the first
instance, and to defend the United States of America, the
American people, our way of life and our friends and allies.
Senator Reed. Thank you, Mr. Secretary. The thoughtfulness
and thoroughness of your answer suggests the seriousness of
this topic, and I suspect this will not be the last exchange
you have with the Congress----
Secretary Powell. I am sure not.
Senator Reed [continuing]. Nor your fellow foreign
ministers around the globe. This is a very important issue.
MISSILE DEFENSE AND RUSSIA
Secretary Powell. It is, and I can assure you, for example,
my Russian colleague, Foreign Minister Ivanov and I, we discuss
this constantly. Sergei Ivanov, the Russian Minister of
Defense, is in town today to have similar discussions with
Secretary Rumsfeld. The Russians want the reductions to be
legally binding. We have agreed to that because they felt it
was so important because they wanted predictability about the
future. Who knows who the next President is going to be in
Russia and in the United States, so let us put it in
international law. We understand that. But the President, while
willing to do this, is just as willing to say, and has said
across the table to President Putin, in my presence more than
once, ``Mr. President, we are no longer enemies. You have what
you think you need to protect yourselves, and we will have what
we think we need to protect ourselves, and we are going down. I
am cutting. So, if you want to cut, fine.''
President Putin said, ``Yes, I want to cut, but I really
need predictability in the future. Therefore, let us make it
legally binding.''
``If that is what you need, we will try to accommodate you,
but we are going down anyway.''
Senator Reed. Thank you, Mr. Secretary.
Senator Hollings [presiding]. Thank you.
Senator Inouye.
CONSULTATION WITH CONGRESS
Senator Inouye. Thank you very much, Mr. Secretary. It is
always a pleasure to be in your company and to listen to your
testimony, either as Chairman of the Joint Chiefs or Chairman
of America's Promise or Secretary of State.
As you may recall, Mr. Secretary, several years ago a few
Members of Congress received calls from the White House to
report to the Cabinet room to meet with the President on a
special problem, and we gathered early in the morning the
following morning, and we, when the President called the
meeting to order, his announcement was very simple. ``At this
moment, our troops are landing on the Island of Grenada.''
I can tell you that not all of us were advised of this
military action. However, Grenada was a small island country,
weak, and so very few Members of Congress took any note of
that. But since 9/11, our front pages, magazine covers have
been filled with attacking Iraq, attacking Yemen, attacking
Somalia. My question is, if this country is seriously
considering attacking one of these countries, I would hope that
the Congress of the United States would be brought into and at
least consulted or discussed, carry on a dialogue, get our
views, because I would hate to see another repetition of
Grenada, and Grenada is not Iraq.
Do you have any thoughts on that?
Secretary Powell. Yes, I do, Senator. I remember Grenada as
well. It was a sudden crisis that suddenly sprung on the scene
over a terrible weekend that also included the weekend of the
Beirut bombing, as you will recall, back in 1983. It just was
something that had to be done quickly, and nobody could even
find Grenada on most maps without a little bit of coaching at
that time. And so President Reagan was faced with an immediate
crisis, and because of problems of operational security, he
found it necessary to bring Congress in just as the invasion
and operation were taking place.
With respect to the current situation we are in, the
President has no plans on his desk and no recommendations from
his national security advisors to undertake military action
against any country. In a couple of the ones you mentioned,
say, Yemen, it is not a matter of sending armed forces into
combat in those countries but a question of the Armed Forces of
the United States assisting the governments of those countries
in dealing with the threats they are facing from terrorist
activities that have found haven in those countries.
U.S. POLICY ON IRAQ
With respect to Iraq, our policy remains as it has been for
some time. One, we are working in a multilateral organization,
the United Nations, to make sure that Iraq abides by the
conditions of the end of the gulf war, saying you cannot
develop weapons of mass destruction, and inspectors, a U.N.
inspection team, will determine whether you are or you are not.
Iraq, apparently, has once again refused, rather strongly in
recent days, to allow the inspectors back in. Therefore, the
sanctions must remain, and the Oil-for-Food program must
control roughly 80 percent of the money that goes to the Iraqi
regime, so we know what they are spending it on.
But the United States also believes that the Iraqi people,
the region, and the world would be better off if that regime
were changed, if it were no longer there. We are in
consultation with our friends and allies, and the President
speaks to Members of Congress, the leaders of the Congress, on
a regular basis as to what his thinking is. But he has made no
decisions with respect to any changes in the way we are
approaching this problem.
We examine our options, we work with Iraqi opposition
groups to see how they can be made more effective, and as you
know, I consult on a regular basis with my foreign minister
colleagues around the world. Vice President Cheney is on a trip
now to talk about many things, including the Middle East peace
process, energy plans, energy programs, and the campaign
against terrorism, and I am sure in the course of his 10 nation
visit, he will also talk about the problem associated with
Iraq, as well as Iran's situation, their support for terrorist
activities, and their efforts to develop a nuclear capability.
But I am sure the President understands, I know he understands,
that Congress is terribly interested in this issue, and he will
continue his discussions and consultations with the leadership.
Senator Inouye. Thank you very much.
Mr. Chairman, I have questions I would like to submit,
questions such as--they are regional types, Mr. Secretary.
Secretary Powell. Yes, sir.
Senator Inouye. East-West Center, Coral Bed ecosystem,
Pacific Northwest long line fishing, that type.
Secretary Powell. Yes, sir.
Senator Inouye. So, if I may----
Secretary Powell. By all means, sir.
Senator Hollings. Very good.
Mr. Secretary, Senator Domenici has definitely some
questions, and he is racing back right now, but you can see
from the tone of questioning and the concern that maybe Ms.
Charlotte Beers, is she Deputy Secretary? You ought to assign
her not necessarily to get the American message of freedom and
individual rights and peace out to the world around, but get
her over to the Defense Department that you headed up and
coordinate the administration's message because you get this
``axis of evil,'' and then the next thing you know we have the
threat of limited nuclear attacks, adding two more countries to
the ``axis of evil.'' Then there are all these questions about
what is going on, and you have to explain to a committee, to
all people, to us, the Congress, that there is no change in
nuclear disposition or use or whatever it is.
But right to the point, tell Karl Rove to cool it. I know
he is trying to keep the war fires burning until November, but
that is not helping you out at all. How can you get diplomacy
in State, and friends, and influence, and bring about peace?
SITUATION IN COLOMBIA
Incidently, Colombia, we went down there last year, and the
Government itself had not seemed to make up its mind to get rid
of the FARC and everybody else occupying that area down there.
They were trying to modulate more peace, and draw lines, and
everything else. It reminded me of the time, with Ben Gurion
and the early Prime Minister behind him, they had a boatload of
weaponry coming in, and--Menachem Begin--and Ben Gurion had
already agreed with the United Nations to withhold any kind of
military activity, being recognized as a country, and he had to
of course call Begin down on that boatload of arms that he
continued to use on the premise he said that in a country there
can be only one military force, and that has got to be in the
hands of the Government.
Similarly, down there in Colombia tell them or maybe you
can get Pastrana to Israel and Sharon to Colombia. Maybe that
swap would really get us going somewhere.
I see you do not want to comment, but----
Secretary Powell. No, sir.
EXPANSION OF THE WAR ON TERRORISM
Senator Hollings. Well, you get down there, you get the
training. I thought I was back in Vietnam. We had the colonels
get all around the table and give us all a briefing. We are
ready to go, and we are moving there and everything else like
that. Then there is Georgias where we have just trainees, but
sometimes the trainers accompany the trainees, and then they
come under fire, and then they get engaged, and then we have to
send in reinforcements, the same old Vietnam situation.
So as we get into the Philippines, and Yemen or Georgia and
these other places, you are a product of it. You understand it
better than any, and let us watch it as closely as you possibly
can.
Secretary Powell. We certainly will, Mr. Chairman, and I do
not think the models there really compare back to Vietnam.
The FARC is a terrorist organization, and the ELN is a
terrorist organization. They can damage Colombia's democracy.
They cannot really destroy the nation or take it over, but they
cause a great deal of disturbance throughout the society with
their terrorist acts, with their acts of violence, and with
their connection to narco-trafficking. I think it is very
reasonable for us to help them. There is no request for United
States military troops, even as trainers accompanying advisers
and the kind of problem you mentioned. I am very aware of that
and very sensitive to it because I was one of them some 40
years ago this year. So we are very sensitive to that.
I also think that is the case in the Philippines, where the
Abu Sayyaf group, with its al Qaeda connections, cannot bring
down or overtake the Government of the Philippines. But it is a
threat to the democracy of the Philippines, and therefore it is
quite legitimate for us to assist those nations. But neither
nation has indicated they want U.S. troops to come in, and I do
not think we will slide down that slope.
Senator Hollings. Very good.
Senator Domenici.
Senator Domenici. Thank you very much, Mr. Chairman.
Mr. Secretary, it is good to see you.
Secretary Powell. Good to see you, sir.
MICRO LENDING PROGRAM IN AFGHANISTAN
Senator Domenici. I want to open with the idea that I have
raised with you on one occasion on the telephone and put it on
the record here.
You know, obviously, for Afghanistan to stabilize, at some
point people are going to have to be in business, big business,
little business, many businesses. I wonder if you would
consider doing some evaluation as to whether the micro lending
that has been successful in underdeveloped countries might be
suitable in Afghanistan. Micro lending has turned into a hugely
successful banking operation, but it is not really banking. It
is just fundamentally that you do not have to worry about
security, you do not have to worry about checking people's
credit.
What you do is lend them small amounts, $100, $300, $500,
for a particular little business that they have got. The
relationship is kind of personal with the lender. We found
across the land and, in fact, in the United States, micro
lending is about as secure as any kind of lending around. Those
kinds of enterprises pay their bills.
I would think that, while we are busy worrying about from
where the other kind of financing is going to come, that we
might do well to experiment with micro lending for the Afghani
people. In the United States, I might say in some of our
States, women, as part of the initial setting up of women's
business advocacy groups, have taken on micro lending to get
started and found it to be hugely successful. The dollar amount
here is higher. I think we tried it in Mexico with success. I
wonder if you could comment on it, and then later we will talk
with the chairman and ranking member about doing something to
authorize it.
Secretary Powell. I think micro lending is a great idea. I
have had some experience with it. Before I came back into
Government, I made a trip to India, and I went into one of the
poorest neighborhoods in Mumbai. I saw what some women had been
able to do with micro lending programs in their community and
how they were saving the profits that they were already making
in order to pay back the micro lending facility. In the local
community, a micro lending facility had been set up. And so it
is a good way to get people back into business, back into
commerce.
As Chairman Karzai, the Interim Authority head in Kabul,
said to me when I was there, ``Afghanistan will not be
successful until we are generating our own revenue, and until
our economy starts to work, we will not be successful. We do
not want aid. We want our own economy functioning. We want to
support ourselves. We do not want aid. We want investment.''
Micro lending certainly lends itself to that.
I think we will need a little more time to see the country
stabilize a bit more and to have greater confidence in the
banking and financial system, in order to support any kind of
lending, to include micro lending. But I certainly would
encourage anything that moves us in that direction, Senator.
Senator Domenici. Mr. Chairman, I wonder if we might
explore this with your staff. I do not know if it needs
specific authorization. I do not think so. I think it could be
part of our foreign aid provision in this or another bill. I,
personally, would hope that I could get your support. That
would make it for sure, and I think it is worthy of us starting
that.
Senator Hollings. If you have it, we will work on it, and
get Secretary Powell's approval here of our language.
Senator Domenici. Very good.
Senator Hollings. Good.
[The information follows:]
As Secretary Powell indicated on March 12, he is a strong
supporter of microfinance, especially as Afghanistan
stabilizes. The U.S. Agency for International Development
(USAID) is currently exploring both the multilateral and
bilateral options available to us for supporting a microfinance
development program in Afghanistan.
On the multilateral front, USAID is working closely with
the Consultative Group to Assist the Poorest (CGAP), a
consortium of 28 donors housed in the World Bank, to establish
a common framework for the development of an Afghan
microfinance sector. USAID, which partially finances CGAP, is
working with the consortium to undertake a national
microfinance framework review planned for May 2002. USAID has
publicly indicated its willingness to co-host a donor meeting
to discuss the review findings.
As this longer-term strategy unfolds, USAID is also
examining possible shorter-term bilateral investment options.
Choices will not be easy. Strict interpretations of Islamic law
with respect to interest earnings, the level of indebtedness of
rural Afghan families, and the limited capacity of local
microfinance organizations represent unique challenges that
USAID will have to take into account. One option USAID is
considering is the creation of a nongovernmental organization
competitive grants program to support microfinance start-up
activities.
INTERNATIONAL LAW ENFORCEMENT ACADEMY [ILEA]
Senator Domenici. Mr. Secretary, on a parochial note, we
have a law enforcement academy in Roswell, New Mexico, that is
known as ILEA, I-L-E-A, facilities. I have a few questions
about where that program is going, but I wanted to share with
you that the initiation of this program in Roswell, New Mexico,
went extremely well.
Secretary Powell. Yes.
Senator Domenici. That the first group of foreigners that
came were from a very poor country, and they were very, very
impressed that the United States would take this opportunity to
help them with law enforcement, the appreciation of it and the
fundamentals. I would like to make sure that because our
emphasis seems to be moving in other directions, either toward
the drug war or against terrorism, that we will not shirk this
because this is fundamental training. None of the other kinds
of law enforcement are going to work if we shirk this one.
Would you mind looking into this and answering in the
record as to what your position is, what the State Department's
position is on ILEA's?
Secretary Powell. I would be delighted to, sir. I am very
familiar with the facility. I have even seen some tapes of the
facility. It looks like a very professionally run organization.
Senator Domenici. I am going to put about 10 questions in
the record because it is getting late.
[The information follows:]
The Department, through the Bureau for International
Narcotics and Law Enforcement Affairs, intends to continue its
support for the ILEAs. These institutions are recognized as key
elements in the international response to drug trafficking and
other criminal activity.
Now more than ever, the Academies will play a significant
global role in combating not only criminality, but the
terrorist elements who often use criminal enterprises to
accomplish their goals.
VISA AND PASSPORT ACTIVITIES
Senator Domenici. I just wanted to take one last issue and
talk with you about it.
You know the visa and passport activities of your
Department are very, very important. We all know how important
it is because our constituents probably talk to us about visa
situations as much as any other foreign policy issue because
passports take too long to process or they get mixed up. So we
all get a taste of it in a pretty good way, and I just want to
comment that visa fraud and the whole issue is very important
in the war on terrorism. I would hope that there is a real
effort to work your innovations and improvements into what the
other Departments have to do with reference to border
functioning.
Are you going to be working together, with reference to the
implementation?
Secretary Powell. Yes, I must say the events of 9/11 have
made it clear that a higher level of coordination and
cooperation between the various Departments is needed.
Assistant Secretary Mary Ryan, who heads Consular Affairs for
us and deals with all of these kinds of issues, is working
closely with INS and others as part of the homeland security
work of Governor Ridge.
Senator Domenici. The rest of my questions will be
submitted in writing to be answered whenever the chairman sets
the time.
FUTURE OF AFGHANISTAN
I just want to close where I should have begun, by
complimenting you on the effort of the President, the Secretary
of Defense, yourself and all of those who are part of America's
most, most successful effort to combat terrorism. I leave you
with one question that you might answer for us.
In Afghanistan, what do you see as the next step in
governance there based upon your experience and knowing the
people? When this very interim situation is up, what do you
think the next governance----
Secretary Powell. I am very pleased at how well the Interim
Authority has done. It has certainly got a lot of work ahead of
it, but when you consider where we were a couple of months ago,
wondering if we could ever get this thing started, I think
Chairman Karzai is off to a great start. The next thing that
will happen is later this spring, when there will be a grand
assembly and another government will be selected, and then in 2
years' time, there will be an election. All of that seems to be
progressing rather well, with the assistance of the United
Nations.
Chairman Karzai's real challenge now is to make sure that
he can put in place a national army and a police force to
guarantee security throughout the country and tamp down the
ambitions of various warlords, so that it does not go back to
old Afghanistan, but new Afghanistan.
And then I think one of the biggest challenges they are
going to have, Senator, is just putting in place some of the
fundamental administrative systems and processes that we take
for granted. The ability to write a government check does not
exist yet, and neither does the ability to talk to one another
from office to office, or to communicate with computers. Unless
you have these basic administrative systems down, it is hard to
run a country in the 21st century. That is going to be a major
challenge for him, as will be putting in place a cabinet and
sub-cabinet-level government that will represent competent
people, committed people, educated people, so we do not get
into the business of cronyism or paying off one warlord with a
position and another warlord with a position. It is those basic
administrative systems, noncorrupt and transparent, that will
allow this government to start to act like a government.
Senator Domenici. Might I follow up with one comment?
Senator Hollings. Surely. Go ahead.
CAPITALISM
Senator Domenici. Mr. Secretary, I am a bit concerned. We
all learned up here over the past decade to say that what we
really were proud of was that the world was moving toward
democracy, toward freedom, and then we always added and toward
free enterprise or capitalism. So we were saying the world is
now moving toward capitalism as a form of economic policy, and
freedom, and liberty and democracy as the underpinning.
There seems to have grown up here a group of Americans who
do not agree with the capitalism part of this because they talk
about it being too big, and the corporations have taken over.
On the other hand, in some of these countries their banking
system failed after they were well along and left some very bad
connotations about whether capitalism will work to move a
country from a very poor and underdeveloped stage on through to
growth and prosperity.
Does it concern you that there have been some failures that
are very visible to the world? And, if so, what do we do about
underpinning those governments more? Do we involve ourself more
in their basic economic policies so they will not make mistakes
like Mexico made. Had they not been as strong and had such a
powerful neighbor, their mistake would have taken the country
down.
Secretary Powell. I think capitalism still remains the
model of choice. Nothing else really works effectively in the
21st century. Globalization is here to stay. Whether people
like it or not, it is an integrated world. We have seen
countries such as China and Russia moving in this direction
because it works for them. They have accumulated a level of
wealth they could have never dreamed of previously.
Have there been failures? Have there been mistakes? Yes,
when you look at the Asian financial crisis of, say, 5 or 6
years ago, and when you look at what happened in Mexico. But it
is interesting; the system adjusted and learned from those
early errors, those early catastrophes, the Russian bankruptcy
of the middle 1990s. People have learned, so that when we now
have crises, let us say in Argentina and some challenges in
Turkey, contagion is not as big a problem as it was 5 or 8
years ago. People have learned how to deal with this.
Even with a system as advanced and developed as ours, we
have demonstrated rather vividly in recent months that we can
still have catastrophic failures that are unimaginable. But
they happen. And what people have to learn is that capitalism
means risk. Capitalism means the destruction of organizations
that are no longer relevant or are no longer responding to the
market or have been run ineptly. As long as you understand that
capitalism is constructive, but it also has a necessary
destructive element to it, then I think we can keep the world
moving in the right direction.
Senator Domenici. Thank you very much.
Thank you, Mr. Chairman.
MEXICO
Senator Hollings. Now, when we get into, well, let us say,
first, Mexico, at the time, Mr. Secretary, when we were getting
into NAFTA, we had a wonderful witness. He was on the
satellite. His name was Vicente Fox, and he was attesting,
along with other witnesses from Mexico City, what we really
needed was a sort of common-market, rather than a free-market,
approach. ``Over here capitalism, Senator, is very good if you
have got an open-market market, you have got a respected
judiciary, you have got labor rights,'' and you can go right on
down the list.
And we found in Europe that you could not have that, under
the free-market approach, so the European community taxed
themselves for 5 years to the tune of $5 billion before they
allowed Greece and Portugal into the common market. Instead we
use the free market. I am for free market. I voted for free
trade with North America because we have the same standard of
living between Canada and the United States, not so with
Mexico.
And so when you begin to talk of capitalism, we have got to
help Mr. Fox out down there on the one hand. I had asked last
year, and maybe you can answer, about the coordination perhaps
of establishing an FBI school down there, because they would
not allow it before, but if we can train their law enforcement,
and he is trying to beef it up, Jorge Castanedo, the Foreign
Minister, is ready to go. See if you can do that, and otherwise
work out a little Marshall Plan for Mexico. Because all we did
in NAFTA was send down $12 billion, and it went through the
banks. Now they owe it to Deutsche Bank, and the money went
back up to Wall Street, and nothing happened, and he is having
a heck of a struggle happening, bringing it into capitalism and
all of those things. So we can help with law enforcement.
But if you really want to take our neighbor and not worry
about Yemen or what might be happening down in East Timor, I am
worried about what is happening in Mexico, and I would like to
see this fellow succeed, but he needs help, not just meetings
and headlines. We have got to start making some headway.
I would vote tomorrow morning or this afternoon for a $12
billion Marshall Plan for Mexico and just have the stated
things that must be developed and must occur before the money,
in increments, is divvied up, otherwise, see, I speak feelingly
because I have lost 50,900 textile jobs to Mexico already since
NAFTA passed. In other words, as Senator Domenici and Senator
Hollings stated, before you open up Powell Manufacturing, you
have got to have a minimum wage, clean air, clean water, Social
Security, Medicare, Medicaid, plant closing notice, parental
leave, safe work in place, safe machinery, OSHA. I can keep
going down the list, but you can go for 58 cents an hour and
none of that.
And so if your competition moves, you have got to go or you
are going out of business, and they are all Republican anyway,
Secretary Powell, so I am not too worried about them.
GLOBALIZATION AND COMPETITION
But they are all gone now. We have lost 670-some-thousand
jobs in steel, and what you have is the enemy within. They have
moved, Senator Domenici, their production, these
multinationals. They call it globalization, globalization, and
people have got to realize it, and understand, and we have got
to live with it whether they like it or not. Well, they are
moving their manufacturing into protectionism of Mexico,
Malaysia, Japan, Korea, China. You are guaranteed a profit when
you go to China. Oh, yes, sir. Yes. They are moving their
production to protectionism, and they are babbling at me free
trade, free trade, fast track, fast track.
Do not worry about all of that. Let us get into the real
world of the so-called globalization and competition. The only
way you are going to remove these barriers is to raise a
barrier and then remove them both. I mean, we are all for the
Marshall Plan, and capitalism has defeated communism because we
gave away a good bit of our production, there is no question,
but as has been stated long ago, our security is like a three-
legged stool, your values, unquestioned; your defense,
unquestioned; but your economic security has been fractured
over the past 50 years. And as hard as you can work, we are
going out of business unless we begin to compete on capitalism.
Senator Domenici. Mr. Chairman, I raised the issue, and I
certainly stayed to make sure that I heard your views.
Senator Hollings. Yes.
Senator Domenici. I think you know that I would not agree
with all of them, clearly, but I would say that when the
Mexican banks had their problems, it was quite obvious that the
United States could not be part of helping a country and then
have no standards, with reference to their banks, of the kinds
of things that everybody knows you would have to have in order
to maintain viability.
I understand that after that event some work was done
jointly by the United States private sector and the Government
to establish some new kinds of rules, like transparency, which
obviously means that they cannot hide so many of the
transactions and/or relationships of the bank from individuals,
businesses and the international markets, and a few other basic
principles.
I think it would be interesting and, perhaps without
burdening you all too much in your response, maybe you might
furnish us with a little summary of what the United States has
done with reference to the changes that we expect as part of
the capitalist systems that we help because there is more than
just transparency.
You remember this situation. I think you were out of
Government during that period; is that correct?
Secretary Powell. Yes, I believe that is correct.
Senator Domenici. I think so. Well, in any event, would you
do that for us?
Secretary Powell. We will take a look at it. I have people
who are competent to do that.
Senator Domenici. Thank you.
[The information follows:]
The United States, led by the Department of the Treasury,
has strongly supported International Monetary Fund (IMF)
initiatives to strengthen surveillance and crisis prevention
measures. With U.S. government support, the IMF and World Bank
initiated the Financial Sector Assessment Program in 1999 to
assess members' financial systems and the regulatory and legal
framework underlying their operations. The results are
incorporated into the IMF's reviews of national economies.
Spearheaded by the Asian financial crisis, the IMF's
standards and codes initiative promotes the development and
dissemination of codes of good practice in the financial
sector. Reports on the Observance of Standards and Codes
(ROSCs) summarize the extent to which countries observe
international norms in a number of areas crucial to the health
of financial systems. Reports are used for official
discussions, as well as for risk assessment by rating agencies
and the private sector.
The United States has supported efforts to improve dialogue
among market participants, the International Financial
Institutions, and sovereign governments. In June, 2001, the IMF
created an International Capital Markets Department as part of
an initiative to strengthen the international financial
architecture. The Department serves as a liaison with the
private sector and enables the IMF to conduct more effective
surveillance.
At the urging of the United States and its G-7 partners,
the Financial Stability Forum (FSF) was established in 1999 to
improve cooperation in financial surveillance and supervision.
The FSF is comprised of finance ministry and regulatory
officials, as well as International Financial Institutions and
international banking representatives. The FSF encourages
implementation of measures to improve the health of financial
systems, including improved disclosure practices, deposit
insurance programs, accounting standards, and counter-party
risk management.
The Basel Committee on Banking Supervision is playing a
fundamental role in strengthening the safety and soundness of
the international banking system. Chaired by New York Federal
Reserve President William McDonough, the Committee is revising
the Basel Capital Accord to redefine minimum capital
requirements, improve supervisory review standards of internal
bank assessment processes, and ensure effective disclosure
standards to encourage sound banking practices.
The Committee on Banking Supervision and the Bank for
International Settlements jointly created the Financial
Stability Institute in 1999 to help bank supervisors improve
financial systems worldwide. The Institute organizes seminars,
regional workshops, and informational programs on bank
supervision issues. Upcoming seminars in Muscat, Khartoum,
Lusaka, Bangkok, and Vilnius are indicative of the worldwide
scope of its efforts to improve banking standards.
Finally, the United States is working on a bilateral basis,
where appropriate, to address areas of concern. The Treasury
Department's technical assistance team and USAID's banking and
capital market reform team have worked with governments in
Asia, Eastern Europe, South America, Africa, and the Middle
East on a wide range of bank reform issues.
An appropriate financial policy framework facilitates the
mobilization of capital and is a critical condition for stable
economic growth. As the United States works with its partners
to promote the spread of market-based economies, efforts to
strengthen the financial and banking sectors will remain a
priority.
ADDITIONAL COMMITTEE QUESTIONS
Senator Hollings. Mr. Secretary, we are lucky to have you,
and the record will stay open for the questions by the members
who got disrupted here by the rollcall. But thank you very,
very much.
[The following questions were not asked at the hearing, but
were submitted to the Department for response subsequent to the
hearing:]
Questions Submitted by Senator Daniel K. Inouye
hawaiian-based fishing fleets
Question. Longline vessels operating out of Hawaii are banned, by
judicial order, from swordfish fisheries in the Pacific Ocean due to
the unintended bycatch of endangered turtles. Foreign fleets, however,
are allowed to fish in the same waters our domestic fishing fleet is
prohibited from utilizing. The foreign fleets have been able to take
advantage of the unmet demand in the U.S. swordfish market caused by
the swordfish fishing ban placed on Hawaii-based longliners. The
foreign fleets are able to freely export their swordfish catch to the
United States, although they are believed to have higher sea turtle
interaction rates and to inflict greater levels of harm than the
Hawaii-based fishing fleet. What meaningful measures is the State
Department taking to address this problem?
Answer. The issue of addressing the bycatch of sea turtles in
longline fisheries in the world's oceans is both challenging and
complex. As noted in the Department's report to Congress earlier this
year, the Department of State has been working closely with the
National Marine Fisheries Service (NMFS) to understand how technical
solutions might be implemented in a practical, verifiable, and
enforceable manner throughout the fisheries, where longline and sea
turtle interactions occur. Once such technical gear or management
solutions have been developed and demonstrated to be effective for
long-term resolution of this problem, the Departments of Commerce and
State will look for ways in which such a solution could be implemented
throughout the world's fleets.
In the meantime, the Department and NMFS will work to bring U.S.
concerns about sea turtle bycatch in pelagic longline fisheries to the
attention of other countries and entities engaged in these fisheries,
as well as the relevant international fisheries bodies, including the
International Commission for the Conservation of Atlantic Tunas
(ICCAT), the Inter-American Tropical Tuna Commission (IATTC), the soon-
to-be-established Western and Central Pacific Fisheries Commission
(WCPFC), the APEC Fisheries Working Group, and others. Through these
contacts, we will seek both information relating to the nature and
extent of sea turtle bycatch (which to date is incomplete for all
fisheries and fleets involved), as well as consideration of any
appropriate mitigative management measures.
One area where the United States will make particular efforts is in
the Asia-Pacific Economic Cooperation forum (APEC). The United States
has the position of lead shepherd in the Fisheries Working Group (FWG)
of APEC, and NOAA Administrator Lautenbacher will attend the APEC
Oceans Ministerial on behalf of the United States in April 2002. The
Department is also working with the Western Pacific Fisheries
Management Council on preparations for the second International
Fisheries Forum (IFF 2), which will address sea turtle and seabird
bycatch issues. IFF 2 is tentatively scheduled to be held in November
2002 in Honolulu.
net fragments
Question. Nets from Russian, Asian and U.S. trawling vessels, which
are lost or discarded, float around the North Pacific Ocean and
ultimately wash up in the Northwestern Hawaiian Islands. These net
fragments trap and drown or injure endangered Hawaiian monk seals and
severely damage the unique coral reef ecosystem of the Northwestern
Hawaiian Islands, which accounts for approximately 70 percent of all
coral reefs in U.S. waters. What has the Department of State done to
work with other nations to identify the sources of these derelict net
fragments and to minimize the volume of derelict net fragments in the
Pacific Ocean?
Answer. The Department of State recognizes the magnitude of the
current problem in Hawaii and is seeking ways to raise awareness of the
issue in the international arena and to engage in a productive dialogue
with other nations. To this end, the Department of State participated
in the International Marine Debris Conference, held in Honolulu, HI in
August 2000, and plans to submit an Asian Pacific Economic Cooperation
(APEC) proposal to the APEC Fisheries Working Group designed to create
a dialogue between all stakeholders, in accordance with priorities of
the APEC Osaka Action Agenda. The proposal outlines an outreach seminar
that would (1) provide participants with technical and scientific
information on the problem of derelict fishing gear and related debris
and its impacts, particularly the oceanographic variables that
exacerbate the problem in the Pacific, in order to highlight the
economic, financial, environmental, and marine hazard aspects of the
problem; (2) provide a forum to examine ways in which derelict fishing
gear and related debris actually occurs and allow policy-makers,
industry leaders, and fishermen to exchange best practices and
practical experience to explore possible options to minimize net and
gear loss; (3) provide the opportunity to review regulatory and
infrastructure mechanisms pertinent to gear loss or disposal to
determine the international policy and legal frameworks that are in
place, if any, to address disposal or accidental loss and identify
potential forums and mechanisms to address this issue; and (4) identify
potential gaps or obstacles to mitigating gear loss and ways to ensure
proper disposal.
convention on the elimination of all forms of discrimination against
women (cedaw)
Question. On March 8, 2002, the world celebrated International
Women's Day. You attended an event in honor of International Women's
Day and pledged to continue to advocate the rights of women throughout
the world. In furtherance of women's rights in 1979, the United Nations
General Assembly adopted the Convention on the Elimination of All Forms
of Discrimination Against Women which was ratified in 1981. More than
160 countries have ratified this important treaty, but the United
States remained only a signatory to the treaty since 1980. Does your
pledge to advocate for women's rights include advocating for the
ratification by the United States of the Convention on the Elimination
of All Forms of Discrimination Against Women and what steps have you
taken toward that end?
Answer. The Administration is very supportive of women's equality.
Women and men must be able to exercise and enjoy their human rights and
fundamental freedoms on a basis of equality and without discrimination.
The Convention on the Elimination of All Forms of Discrimination
Against Women (CEDAW) is in category three of the Administration's
treaty priority list. That is the category of treaties the
Administration believes are generally desirable and should be approved.
We will need to fully assess the implications of ratification on
domestic law. Not only must we review the package of reservations,
understandings, and declarations submitted to the Senate in 1994, but
we must also update the legal analysis that was submitted at that time.
public diplomacy
Question. How can State better carry out its Public Diplomacy since
September 11? Do you view the Public Diplomacy mission differently
because of September 11?
Are you integrating your Public Diplomacy efforts with DOD and the
Broadcasting Board of Governors?
Answer. No other event in our history demonstrates the tragic
consequences of misperceptions of the United States, its values, and
its society more than the September 11 attacks.
Well before September 11, I committed the Department to a program
to develop an aggressive, effective Public Diplomacy program. I asked
Charlotte Beers, one of the most dynamic and recognized advertising
executives in the United States, to become Under Secretary for Public
Diplomacy and Public Affairs, I fought to ensure that Public Diplomacy
resources were increased after twelve years of continuous reductions.
The nature and challenges of Public Diplomacy have not changed
since September 11, but their urgency has increased geometrically. We
are engaged as much in a struggle of ideas and values as we are in a
war against terrorism. We must reach out to wider, broader, and younger
audiences throughout the world and in particular, in Muslim majority
nations. We must convince them that the democratic and open values that
we offer and espouse are a road map to a peaceful and prosperous
future.
As resources and personnel allow, we are addressing these critical
issues. The Bureau of Educational and Cultural Exchanges has developed
specific programs to work closely with Muslim majority states to create
new exchange programs, develop modern and objective curricula in these
regions, and increase exposure of young professionals and educators to
the United States. The Office of International Information Programs has
created numerous outreach materials, creative websites, and speaker
programs to bring our message to millions. Public Affairs (PA) has done
a tremendous job with its Foreign Press Centers in Washington, New
York, and Los Angeles. Its television Co-Operative programs with
foreign broadcasters have changed the vision many have of the United
States since September 11. All of these initiatives have been executed
by the outstanding work of our Embassies abroad.
Under Secretary Beers is working with the White House and other
agencies, as well as private and public institutions, to develop
approaches that will allow the United States to enter a broader
dialogue with crucial audiences in critical regions. We coordinate
regularly with Defense, the NSC, and other agencies to develop a
cogent, coherent message from the United States to foreign audiences.
We believe a formal structure is needed, however, and are working with
the White House and the NSC to establish an appropriate mechanism.
I am a member of the Broadcasting Board of Governors and take an
active and close interest in its program. Under Secretary Beers is my
representative to the Board. She and her staff are in daily contact
with the Board, the broadcasting services (VOA, RFE/RFL and Radio Free
Europe), and the International Broadcasting Board (IBB).
______
Questions Submitted by Senator Barbara A. Mikulski
afghan women
Question. Afghanistan cannot rebuild without the participation of
its women. Last year, I joined with Senator Hutchison and the other
women of the Senate in introducing the Afghan Women and Children Relief
Act. That legislation, signed into law last December, authorized
education and healthcare assistance to women and children in
Afghanistan and Afghan refugees.
What are we doing to help the women and children of Afghanistan
overcome decades of war and Taliban oppression?
What programs are underway and what funds have been dedicated to
implement the Afghan Women and Children Relief Act?
What has this effort accomplished so far in education? in
healthcare?
Are we working with Afghan and international NGOs to provide this
aid?
Answer. The worldwide advancement of women's issues is not only in
keeping with deeply held values of the American people; it is strongly
in our national interest as well. Peace, prosperity, and stable
governance cannot exist in the long term in societies where women are
denied basic human rights and dignities. The United States opposed the
Taliban's treatment of women for years. The war on terrorism and the
overthrow of al-Qaida and Taliban forces in Afghanistan have given the
women of Afghanistan an unique and unanticipated opportunity to reclaim
their futures. The Bonn agreement signed by Afghan representatives last
December underscores the centrality of democratic principles and human
rights in its provisional arrangements, including the protection of the
rights of women.
Our delegation to the Commission on the Status of Women sponsored a
Resolution on women in Afghanistan, cosponsored by 46 other countries,
welcoming the positive steps the Afghan government has taken to include
women in the recovery and reconstruction process, but also urging that
this progress continue and expand. Since the Taliban's defeat, the
situation of Afghan women has greatly improved. Women are now able to
travel more freely in the cities, they are beginning to return to work,
and schools for boys and girls have just reopened. Women now are
receiving health care deprived to them for years.
The United States has contributed significant assistance to the AIA
and the Women's Ministry, contributing $4 million to the UNDP
Afghanistan Interim Authority Fund (AIAF) to cover the Interim
Administration's start-up costs for all Afghan ministries.
With the strong encouragement of the United States, two women were
appointed to the Afghan Interim Authority: Sima Samar, Vice Chair and
Minister of Women's Affairs, and Suhaila Siddiq, Minister of Public
Health. In addition, three women have been appointed to the 21 member
Commission organizing the Emergency Loya Jirga. Today, Afghan women and
men are working together as political decision-makers, recovery
planners, program implementers, opinion leaders, and community
organizers.
The Women's Ministry and its Minister, Dr. Sima Samar, now have a
rehabilitated office space, in a building that once housed the Women's
Institute. I am happy to give a detailed breakdown of U.S. assistance
to the Women's Ministry. A percentage of our contribution to the UNDP
Afghan Interim Authority Fund provided the Ministry of Women's Affairs
with 2 computers, a satellite phone, office furniture and supplies, and
a vehicle. It also helped rehabilitate the Ministry's offices and
assisted in the preparation of the payrolls so that its staff can be
paid.
In addition to providing funds for the Women's Ministry through the
UNDP, the United States has contributed directly to the Ministry's
refurbishment through the Agency for International Development (AID).
AID has provided $64,000 towards the renovation of the building,
including office equipment and technical advisers. Minister Samar is
now working out of the building. In a meeting on February 19 with U.S.
Charge Ryan Crocker, Minister Samar noted her pleasure that Women's
Affairs is the first ministry in the AIA to receive a grant from the
United States government. Significant renovations were completed by
March 8, in time to host ceremonial meetings in Kabul on the occasion
of International Women's Day. Furthermore, I am informed that the
Government of Belgium has just put $500,000 into the AIA Fund,
earmarked for the Women's Ministry. The Administration, together with
the international community, will continue to consider requests for
assistance from all the Ministries of the Interim Authority.
Consistent with the provisions of the 2001 Afghan Women and
Children Relief Act, the United States has provided funds for education
and health. A significant amount of these funds have been channeled
through NGOs. On March 23, schools for girls reopened for the first
time in many years. Many girls and boys entered the classroom for the
first time.
To assist in the opening of schools, the United States spent $6.9
million for almost 10 million Dari and Pashto textbooks for science,
math, and reading to grades 1-12 and 4,000 teacher-training kits. Five
million of these books arrived in time for the March 23 opening of
schools. Working with Vital Voices, an NGO, we have sent fabric and
sewing machines so that Afghan women can make uniforms for girls to
wear at school. $200,000 has been obligated to send teams of teacher
trainers and educators to develop curricula. The United States has also
provided funds and staff to support UNICEF's vaccination campaign,
targeting 2.26 million boys and girls. In addition, we have contributed
$68,000 towards the refurbishment of the women's dormitory at the
University of Kabul, which will allow women to remain on campus, in a
secure environment.
The Department of Labor has approved $1.5 million to assess women's
skills and provide vocational training to women and $300,000 for
training and start up wages for women working on the girls' uniforms
project. USAID is providing $5 million to support the Ministry of
Health and expand health services nationwide, including maternal and
child health care services, using local and international NGO partners
on the ground. American boys and girls, through the Fund for Afghan
Children, have contributed over $4 million--dollar bill by dollar
bill--to pay for food, shelter, clothing, healthcare, and toys for
Afghan boys and girls.
The Administration has forwarded a request to Congress for
supplemental funds which would provide additional programs to assist
women, both directly and indirectly, including for the following:
Education:
The United States is encouraging education through support for food
distribution programs. If supplemental funds are approved, children who
attend school regularly will not only receive meals during the school
day, but also will receive take-home rations for good attendance. These
funds will also ensure that the Afghan government will be able to pay
teachers from the UNDP Afghan Interim Authority Fund. If approved,
funds would facilitate Fulbright program exchanges to provide
scholarships for students and exchanges for educators and
administrators; to partner U.S. colleges and universities with their
Afghan counterparts; and for English language training. In addition,
there would be funding for NGOs for education, including encouraging
literacy.
Health:
Supplemental funds would enable the Department of State, USAID and
the Department of Health and Human Services, to assist in restoring
primary health care services, including maternal health and child care
services, and train health care providers to ensure that Afghan women--
who have one of the highest maternal mortality rates in the world--once
again have access to child-birth services and maternal care. Funds
would also provide for the rehabilitation and integration of land mine
victims, for polio vaccinations; and for training in nutrition
surveillance and education.
Economic Participation:
These funds would allow us to continue and expand a program in
which we send wheat to bakeries run by widows. These bakeries help feed
a quarter of Kabul's population. If additional funding is approved,
funds would be used to provide access to micro-credit; finance small
women-led businesses; provide vocational training for the disabled,
including women; assess women's needs and provide women with management
skills.
Political Participation:
If Congress approves this request, funds will be available to
strengthen women's political leadership skills, and to provide training
in conflict resolution and women's advocacy.
Refugees:
From fiscal year 2001 through March 1, 2002 we have spent $92.7
million for Afghan refugees in Pakistan and elsewhere: to build NGO
capacity, to support female education, provide drought relief, health
care, including maternal health care, and provide nutrition, water and
sanitation, mine awareness, civic programs, and teacher training. In
addition, $52 million will be used to facilitate the repatriation and
reintegration of refugees and internally displaced persons, and many of
the programs listed above will be replicated in Afghanistan.
United States-Afghan Women's Council:
Some of these funds would be used to leverage private support for
projects which would be undertaken by the United States-Afghan Women's
Council. The Council will facilitate partnerships between United States
and Afghan institutions and will mobilize private resources to advance
women's interests. Initially, the Council will focus on education and
health programs and micro-credit for women, and encourage women's
participation in the political and economic sectors.
peacekeeping and security in afghanistan
Question. The people of Afghanistan need security to overcome
decades of war and oppression. Training and equipping Afghan forces--
which tend to be regional and factional and undependable in their
loyalties--may contribute to the problem rather than solving it.
Interim Afghan Administration Chairman Hamid Karzai has sought
increased international forces to provide security as his country
recovers from decades of war and Taliban rule. Why has the United
States resisted Karzai's calls for an expanded international security
presence, even though other nations are prepared to take the lead in
this peacekeeping mission?
Answer. There are at least three reasons for the USG's decision not
to support ISAF expansion at this time. First, information from U.S.
military and intelligence sources indicates that there is not currently
a need to expand the international security presence in Afghanistan.
Second, it is important to realize that the United States and its
coalition allies already have a military presence in several locations
around the country, including at least a small detachment in every
major city. In the course of conducting their primary missions, the
presence of these forces has a secondary, stabilizing, effect on
regional security. Thus, to expand ISAF to these same areas would be in
many ways redundant, and potentially even disruptive to co-located OEF
forces.
Third, other nations have not expressed any willingness to lead an
expanded ISAF peacekeeping mission. Turkey is the most obvious
candidate to take over ISAF command from the British, having indicated
its interest in this role several months ago. Nevertheless, the Turkish
government has yet to make a definitive decision to command ISAF. One
of the legitimate issues weighing on Turkish deliberations is concern
over the possible geographic expansion of the mission. To address these
concerns, we have assured the Turks that their commitment would be only
to Kabul.
Question. Why has the United States opposed making the
International Security Assistance Force (ISAF) a United Nations
peacekeeping operation? Who is paying for it, since it's not an
assessed U.N. peacekeeping operation?
Answer. In order to prosecute the war on terrorism with the
greatest possible efficiency and success, the USG believes that CENTCOM
should have operational authority over ISAF for the purpose of de-
conflicting ISAF and OEF operations in Afghanistan. The USG believes it
would have been very difficult for the U.N. to place a peacekeeping
operation under U.S. authority in this manner. Therefore, the USG
favored establishing ISAF as a non-U.N. force. Other key U.S. allies
agreed with this reasoning.
The current participants in ISAF are operating on a self-financing
basis. A U.N. trust fund has been established, however, to accept
contributions that would pay the operational costs of any future
participants who cannot finance themselves.
Question. How will we help Afghanistan's leaders overcome tribal
conflicts between Afghan forces which appear to be a primary threat to
stability and security in Afghanistan?
Answer. The USG is helping Afghanistan's leadership address the
security problem posed by tribal conflict in several ways. First, we
are acting on the President's commitment to help the Afghans build a
new military that will be loyal to the central government. U.S. forces
will begin training the first elements of a new Afghan army in about a
month. As it grows in size, equipment, and proficiency, this force will
enable the Afghan government to broker and enforce the resolution of
tribal conflicts from a position of strength.
A second related initiative is the financial support we are giving
to demobilization programs. These plans, which are being developed by
the U.N.'s International Organization for Migration (IOM), will combine
education, training, job creation, and other benefits to encourage the
soldiers in tribal armies to return to civilian life. This will reduce
the potential for violent conflict between tribal leaders.
Third, the United States, along with many other members of the
international community, is channeling financial assistance to the
Afghan central government. This support strengthens Afghan government
ministries, enhances the country's capacity to manage its own internal
affairs, and gives the central authorities added financial influence
over regional leaders.
Finally, the United States supports the Afghan national leadership
through political and diplomatic means. The USG has given high profile
public support to members of the Afghan central government in its
diplomatic exchanges, and insists upon the political prerogatives of
central administration officials over regional leaders. These actions
enhance the influence that Afghanistan's national leaders wield over
tribal power brokers and strengthen the government's hand in cases of
tribal conflict.
nuclear posture review (npr)
Question. The contents of the Nuclear Posture Review, provided to
Congress January 8, have recently become public.
Why does the list of target countries include Russia, which
President Bush says is now our friend?
Answer. You are correct that Russia is no longer our adversary, as
President Bush has stated on numerous occasions. For the first time,
the NPR reflects that we are no longer in the Cold War. The NPR directs
a major shift in strategic policy: the United States will no longer
plan, size, or sustain its forces as though Russia presented merely a
smaller version of the threat posed by the former Soviet Union. The NPR
makes it clear that treating Russia as if it were the Soviet Union is
inconsistent with today's realities and the desire to develop a new
strategic relationship. Characterizing Russia as a ``potential''
contingency is a significant step toward a more cooperative
relationship while still recognizing that the United States still has
concerns with Russia and its formidable nuclear forces and uncharted
future. While the NPR deems conflict with Russia extremely unlikely in
the foreseeable future, it is also true that Russia is the only other
country in the world with nuclear force levels comparable to that of
the United States. Prudent planning dictates that we take that fact
into account in the event of currently unforeseen changes in political
circumstances in Russia.
Question. How would we react if Russia decided to put nuclear
warheads taken out of service into storage rather than destroying them?
Answer. In essence, this is what we and Russia both did when
implementing the INF and START Treaties, since INF and START did not
seek to require destruction of the nuclear payloads on INF and START
missiles. It is important to note that no arms control agreement
between the United States and Russia has ever called for the
destruction of warheads or limits on either nation's nuclear
stockpiles. Beyond that, the United States and Russia have vastly
different practices when handling nuclear warheads. The United States
has no weapons production capability and must rely on its stockpile to
respond to potential contingency and to maintain its forces, i.e., to
provide insurance against a problem of safety and reliability of an
entire class of warheads.
Russia, on the hand, has a large, active production complex and
builds nuclear warheads to replace those that have reached the end of
their relatively shorter service life. Russia has thousands of warheads
that are currently in storage, and a large number of them awaiting
elimination. In fact, the United States is assisting Russia in
strengthening the security of its nuclear weapon storage sites.
Question. Why does the list of target countries include states
which we do not believe have nuclear weapons?
Answer. It is important to note that the NPR is not a targeting
document, nor does it provide operational guidance on nuclear targeting
or planning. What the NPR does, however, is shift the planning of
America's strategic forces from a threat-based to a capabilities-based
approach. In light of terrorists or rogue states armed with weapons of
mass destruction, whether they be nuclear, chemical, or biological, we
will need a range of capabilities to assure friends and foes alike of
U.S. resolve. The new U.S. strategic posture will consist of nuclear
and nonnuclear offensive systems, active and passive defenses, and a
revitalized defense infrastructure. U.S. forces must pose a credible
deterrent to potential adversaries who have access to modern military
technology, including NBC weapons and the means to deliver them. Also,
while this NPR focuses more sharply on WMD threats posed by rogue
states than have past reviews, the record is clear that past
Administrations have recognized the need for deterrence to apply to
such states.
Question. Are we really treating nuclear weapons--normally
considered weapons of mass destruction--as just another form of
conventional warfare? Don't you think it's important to maintain a
clear dividing line between conventional weapons and nuclear weapons?
Answer. Political leaders and military planners alike understand
nuclear weapons to be qualitatively different from conventional
weapons. By outlining a defense strategy that increases the role of
advanced conventional strike forces, missile defenses, and intelligence
capabilities, the NPR places emphasis on alternatives to relying upon
nuclear weapons alone for deterrence. It is designed to provide the
President with a broad array of options to address a wide range of
contingencies, and paved the way to his decision to deeply reduce the
number of operationally deployed U.S. strategic nuclear weapons.
Question. The Nuclear Posture Review talks about the possibility of
using nuclear weapons ``in the event of surprising military
developments.'' What does that mean?
Answer. The NPR deals with planning our future strategic forces and
their capabilities. It is not a targeting document, nor does it provide
operational guidance on possible nuclear use. Thus, the section of the
NPR to which you refer is discussion about the contingencies against
which we must maintain nuclear capabilities. Its point is to emphasize
the uncertainties of today's world by underlining that some dangers are
immediate and well-recognized; some are plausible, but not immediate;
and some are unpredicted, but ones that could arise suddenly. The
conclusion drawn by that section is that present capabilities need to
be maintained against immediate dangers, along with a small margin in
the event of a surprise development. However, dangers that do not pose
an immediate threat do not require immediate capabilities, and
therefore would require only a responsive capability to augment the
operational force over a period of weeks, months or years. This
approach allowed the NPR to lower the size of our operational
requirements and supported the President's goal of reducing our nuclear
requirements to the lowest possible level consistent with our needs.
Question. What is Administration policy on first use of nuclear
weapons? Wouldn't the development of new, smaller nuclear weapons
suggest a readiness to use them in conventional conflicts?
Answer. The long-standing policy of the United States has not
changed regarding the first use of nuclear weapons. There has been no
change in U.S. negative assurances policy toward non-nuclear weapon
states to the NPT. The United States will do whatever is necessary to
defend America, our forces abroad, as well as our friends and allies.
While the NPR does direct attention to deficiencies in our nuclear
warhead infrastructure, the NPR does not call for the development of
new nuclear weapons design.
Question. How would the United States react if other countries--
like Russia or China--would adopt a similar policy, with the United
States on its list of targets?
Answer. The question assumes that Russia and China are on a United
States ``list of targets.'' As the Administration has made clear, we,
like our predecessors, do not target any country on a day-to-day basis.
The NPR focuses U.S. nuclear force planning requirements on needed
capabilities for deterrence and defense rather than on assumptions
about specific threat countries.
Obviously, Russia and China have, for many years, possessed the
forces and, we assume, other technical capabilities needed to strike
the United States with strategic nuclear weapons. Nonetheless,
regardless of whether the United States is targeted by other countries,
the conclusions of the NPR remain valid. What is important, as
President Bush has made clear, is that his Administration will pursue
policies that reflect today's world and that put behind us the hostile
relationships based on mutual assured destruction of the Cold War.
Question. Won't this Nuclear Posture Review hinder cooperation
among member states to prevent non-state actors--terrorist groups like
Al Qaida--from acquiring and using weapons of mass destruction?
Answer. We believe that the four goals of the NPR will help ensure
that such a scenario will not happen, The goals of the NPR are to: (1)
assure allies and friends of our continued cooperation in maintaining
our military commitments; (2) dissuade adversaries that could threaten
U.S. interests; (3) deter threats against the United States and its
allies; and (4) defeat any adversary and defend against attack should
deterrence fail. We view these goals as completely complementary with
and mutually supportive of diplomatic, political and other coalition
efforts to prevent or dissuade states or terrorist entities from
acquiring or using WMD.
peacekeeping funding
Question. The fiscal year 2003 budget request significantly reduces
funds for U.N. Peacekeeping.
In the present international environment, does it make sense to
assume that there will be no new U.N. peacekeeping operation in fiscal
year 2003?
Is it realistic to assume to predict that all but 2 ongoing
operations will be reduced in size and cost?
If these assumptions prove unrealistic, will the Administration
block U.N. Security Council authorization for new or expanded
peacekeeping operations? Or will you seek emergency supplemental
appropriations?
Answer. We believe it is realistic that costs will decrease from
fiscal year 2002 to fiscal year 2003. UNMIBH (Bosnia) is projected to
be completed with fiscal year 2002 funding, while UNTAET (East Timor)
and UNAMSIL (Sierra Leone) are projected to downsize in fiscal year
2003. Further, the U.N. peacekeeping assessment rate for the United
States will decrease by a small amount and we estimate that there will
be small increases in efficiency.
We have not attempted to project all possible new missions that
could come along or ones that suddenly and unexpectedly begin to
significantly expand. Should these things occur, we would notify
Congress.
resynchronization of u.n. dues
Question. The United States always pays its United Nations dues
late. This delay is reflected as U.S. arrears to the U.N., which have
contributed to opposition to U.S. positions.
Last year, this Subcommittee--thanks to Chairman Hollings'
leadership--provided the funds for the United States to resynchronize
payment of dues with the U.N.'s calendar assessment schedule.
Unfortunately, we were not able to sustain that funding in Conference.
Wouldn't it help achieve a better relationship with the U.N. and
other member states for the United States to pay its dues on time?
Why doesn't the budget request include any funds toward dues
resynchronization?
Answer. We believe we would achieve a better relationship with the
U.N. and other member states were we to pay our assessments to the U.N.
on time. The same holds true for the eight other fully deferred
organizations. Our budget request does not include funds to
resynchronize our payments as that would add over $600 million to our
request. For the U.N. alone it would cost some $280 million in fiscal
year 2003 to reverse the deferred payment. We hope to address this
situation in a future budget.
united nations population fund (unfpa)
Question. The United Nations Population Fund provides critical
family planning assistance. Could you assure us that the Administration
will contribute to the United Nations Population Fund (UNFPA) the full
$34 million allocated by Congress in the fiscal year 2002 Foreign
Operations bill? Why has this been delayed?
Answer. The Administration continues to broadly support the work of
UNFPA and specifically, its response to the emergency needs of
vulnerable populations, such as in Afghanistan. However, we remain
mindful of our obligations under the Kemp-Kasten amendment to the
annual Foreign Operations, Export Financing and Related Programs
Appropriations Act. This legislation provides that no U.S. funds can go
to an organization that supports or participates in the management of a
program of coercive abortion or involuntary sterilization.
In light of recent allegations of the Fund's complicity in coercive
family planning practices in China, the Administration is reviewing the
issue of UNFPA funding. While we are aware of UNFPA's response to these
allegations that it is not involved in coercive practices and is, in
fact, supporting a program that stresses the importance of voluntarism
and non-coercion, it is incumbent upon us to review the allegations.
The State Department is expediting the launch of an assessment team to
China to look into the matter.
arabic voice of america
Question. Arab Public Opinion about the United States is often
rooted in beliefs learned from biased and inaccurate press reports. We
need to stop broadcasts, which incite violence, replace hate with
reliable, unbiased information, and provide a forum to formally present
U.S. policy directly to the people.
How do you plan to improve our communication with the Arab world?
What progress has been made in expanding and improving Arabic VOA
broadcasts?
Could you assure the Committee that dedicated VOA personnel in
Washington won't lose their jobs as Arabic VOA broadcasts are
strengthened?
Answer. Well before September 11, we recognized that we had lost
crucial audiences in Arab and many Muslim majority states. The
Department began working last year to rebuild outreach programs and
avenues to these audiences. Since September 11, this program has become
even more critical.
U.S. officials and experts appear on Arab media with greater
frequency; we have extended our public diplomacy outreach programs
throughout the Arab world, often with impressive results. The
Department is preparing to launch expanded scholarship, professional
training, and other exchange initiatives, and we are increasing our
public diplomacy budgets and personnel in the Middle East to the extent
that resources allow.
We have carried out extensive research into attitudes and
perceptions in the Middle East and other Muslim majority states, such
as Indonesia. We are engaged in a major effort to understand how the
United States is perceived and what steps we must take to moderate
attitudes and convey an objective vision of American values and
society. Under Secretary of State for Public Affairs and Public
Diplomacy, Charlotte Beers, is working with the White House and other
agencies, as well as public and private institutions, to develop
approaches that will allow the United States to establish a wider
dialogue with younger, broader audiences.
VOA Arabic service has done well since September 11. It expanded
broadcasts to eleven hours per day and brought our message to millions.
However, transmission difficulties and format constraints limit its
audience. The Department has supported the new format, AM and FM
transmitted, Middle East Radio Network (MERN) now undergoing trials. We
believe that the MERN can be an instrument that will reach the broader,
younger audience that is crucial to our current and future
relationships in the region.
Regarding the establishment of the MERN and the future employment
status of current VOA Arabic service employees, it is beyond my mandate
to give the Committee a final assessment of these concerns. I know that
VOA Director Robert Reilly has taken energetic steps to address these
anxieties.
funding for the fight against global aids
Question. Last year, the President pledged a $200 million ``down
payment'' to the global fight against AIDS. In the meantime, AIDS has
surpassed malaria as the leading cause of death in sub-Saharan Africa,
and it kills many times more people than Africa's armed conflicts.
UNAIDS estimate that in the last year, 3.4 million new HIV infections
have occurred. Why has President Bush not proposed a greater increase
in funding for the fight against Global AIDS?
Answer. The United States is the global leader in the fight against
HIV/AIDS. In fiscal year 2002, the Bush Administration will dedicate
nearly $1 billion to the international fight against HIV/AIDS, roughly
one-third of all international spending against the disease. This does
not include the amount dedicated to domestic research and development
programs, programs that have direct benefits for the international
community in the form of new drugs and other medical and scientific
advances. The fiscal year 2003 budget request of $1.1 billion
represents a 53.9 percent increase over fiscal year 2001 spending on
international AIDS.
The majority of these funds are channeled through bilateral
programs. President Bush pledged $200 million and Congress appropriated
an additional $100 million for the new Global Fund to Fight AIDS,
Tuberculosis and Malaria. This represents over a third of the funds
pledged for 2001-2002 and demonstrates U.S. leadership in the global
fight against these diseases. President Bush has requested an
additional $200 million for the Fund in his fiscal year 2003 Budget,
bringing the total U.S. pledge to $500 million. In a speech to the
Inter-American Development bank in March 2002, President Bush said that
he will work with Congress to increase the U.S. commitment to the Fund
as it finalizes its organization, develops a strategy, and shows
success.
Question. How do you expect the international community to come up
with the $10 billion or even $20 billion per year public health experts
estimate addressing HIV/AIDS, malaria and TB will cost if the United
States doesn't contribute its share?
Answer. While there have been varying estimates about the amount
needed to address HIV/AIDS, malaria and TB, there has never been an
expectation that the Global Fund to Fight AIDS, Tuberculosis and
Malaria would represent the only funding mechanism. Most estimates
assess the need for increased global spending, which includes resources
from both developing and developed countries. Much help will continue
to flow through already existing bilateral and multilateral mechanisms.
The Fund is uniquely placed to leverage further contributions,
including those from the private sector.
global hunger
Question. The U.N. Food and Agriculture Organization estimates that
815 million people, mostly in developing countries, suffer from hunger
and malnutrition. 24,000 people die each day of hunger-related causes.
Yet the Administration's budget request effectively reduces the total
amount of food aid America will provide. Why are we cutting back in our
fight against global hunger?
Do you believe there is a reduced need for U.S. food aid, as one
Administration official recently suggested?
Answer. Reducing hunger around the world is one of this
Administration's priorities, and the President is in fact proposing
increases in key resources to meet this objective. The Administration's
fiscal year 2003 request for food aid appropriations of $1.345 billion
under Public Law 480, both Titles I and II, constitutes a $225 million
increase over the fiscal year 2002 level of $1.120 billion. This
increase will help offset a large decline in section 416(b) surplus
food resources, which are unappropriated allocations, and
inconsistently available historically. This shift toward a more
sustainable, on-budget allocation of food aid resources, which Public
Law 480 represents, and away from the commodity surplus driven
alternative of section 416(b), will help ensure that the United States
continues to do its part in meeting global needs for food aid.
The United States consistently provides about 50 percent of food
aid worldwide, far more than any other donor. The Administration
remains committed to maintaining U.S. leadership in supplying food aid
to vulnerable people. The Administration is proposing to adjust the
delivery of international food aid programs. This plan will: (1)
improve feeding effectiveness; (2) reform administration and reduce
duplication; and (3) ensure more reliable food aid by reducing the
year-to-year reliance on surplus commodities. Reducing the reliance on
surplus U.S. commodities will increase the predictability of supply for
hungry populations overseas and non-profit organizations that serve
them. The fiscal year 2003 President's budget reflects a Public Law 480
Title II discretionary funding request of $1.185 billion, $335 million
greater than the original fiscal year 2002 enacted level. This will
help offset decreased mandatory programs. The U.S. Department of
Agriculture's (USDA) Bill Emerson Trust will be used to provide food
aid if dire emergency needs.exceed programmed resources.
USAID is also working to combat hunger and malnutrition through new
agriculture and nutrition strategies. Policy reforms and agricultural
research, including research in biotechnology, new information
technologies, increased international trade and investments in
sustainable agriculture, sound environmental management, along with
better focused mother and child health and nutrition programming,
present hope for addressing food problems worldwide. A continued
emphasis on conflict prevention will also help to alleviate one of the
principal causes of growing food insecurity.
USAID has committed $30 million in fiscal year 2001 funds to launch
``Quick Start'' programs in Africa designed to boost agricultural
development immediately. The fiscal year 2003 USAID Congressional
budget justification, in recognition of the role that acute hunger and
malnutrition play in exacerbating individual suffering and impeding
economic development, calls for increasing agricultural development
funds by 29 percent. Funding for agricultural development in the
Development Assistance (DA) account alone is projected to rise to
$260.5 million from $200.4 million in fiscal year 2002, as part of a
proposed ten percent increase in the overall development assistance
budget to $2.74 billion in fiscal year 2003.
USAID is also pursuing a more aggressive strategy to expand basic
education. Development Assistance funding for basic education will
increase from $103 million in fiscal year 2001 and $150 million in
fiscal year 2002 to $165 million in fiscal year 2003. These efforts,
focused in large part on youth, will equip people with better farm
skills and enable them to market their produce, earning higher incomes,
and thereby reducing poverty and hunger.
BREAKDOWN OF TITLES I AND II OF PUBLIC LAW 480
[In millions of dollars]
------------------------------------------------------------------------
Fiscal year
Fiscal year Increase/ 2003
2002 decrease request
------------------------------------------------------------------------
Title I......................... 175.0 (15.0) 160.0
Title II........................ 850.0 335.0 1,185.0
---------------------------------------
Total..................... \1\ 1,120.0 225.0 1,345.0
------------------------------------------------------------------------
\1\ Includes $95 million from Emergency Response Fund Supplemental.
nato enlargement
Question. The security and stability of the Baltic region is vital
to the peace of Europe and the transatlantic community. Security and
stability in the region is best achieved through Baltic membership in
NATO. What progress are you making in building support among our NATO
allies to reach consensus in inviting the Baltic States and other
qualified countries to join NATO at the summit later this year?
Answer. Our goal is to build a strong Allied consensus on specific
candidates by Prague. The President has stated that he believes all of
Europe's new democracies, from the Baltics to the Black Sea, should
have the same chance to join the institutions of Europe as the older
democracies.
All Allies support further enlargement and a broad consensus is
forming behind President Bush's vision of the most robust round
possible, for all aspirants that are ready to assume the
responsibilities of membership. We have encouraged Allies not to
advocate specific candidates until we can develop an agreed Alliance
consensus. Under Secretary Grossman will be travelling to many NATO
capitals in Europe from April 15-19 to consult further on a common
Allied approach to the upcoming Prague NATO summit. Enlargement will be
a key focus of this trip.
Allies have agreed that the question of ``who'' should be invited
should not be addressed until after the May ministerial at Reykjavik.
Instead, we are seeking to keep aspirant countries focused on meeting
their reform goals through the Membership Action Plan and avoid early
and conflicting commitments among Allies. The Baltic states have made
impressive progress in their preparations for membership, and we have
urged them to intensify these efforts to ensure their candidacies are
as strong as they can be when decisions are made on new members next
fall.
cyprus
Question. Last year, you told the Foreign Minister of Cyprus that
the United States will also ``remain engaged in efforts to facilitate a
just and lasting settlement of the Cyprus issue.'' Other than
supporting the U.N. talks, how are we remaining engaged on this
critical human rights issue? What are the prospects?
Answer. We strongly believe that the current direct talks between
the leaders on the island, which began on January 16 under the auspices
of the U.N., are the best chance in a long time to reach a solution to
the Cyprus problem. The prospects for success depend primarily upon the
efforts of the two parties. Achieving a just and comprehensive
settlement is the only way to resolve this longstanding issue, and
therefore, we are focussed on providing diplomatic support to the
direct talks on a number of fronts.
First, we have strongly supported the U.N. Secretary General's Good
Offices Mission, and its efforts to achieve a comprehensive settlement,
through numerous U.N. Security Council (UNSC) resolutions and press
statements.
Second, through our Ambassador on the island, Donald K. Bandler, we
are reiterating directly to the leaders and their delegations to the
talks our support of the talks, and the importance of seizing this
opportunity to reach a settlement.
Third, through our Special Cyprus Coordinator Thomas G. Weston, we
are reinforcing with the leaders on the island and the Governments of
Greece and Turkey our interest in the success of the ongoing
negotiations.
Fourth, and also through our Special Cyprus Coordinator, we are
working with the European Union and its member states to ensure that
Cyprus's EU accession continues to be an incentive to a comprehensive
settlement.
Should a settlement be achieved, we would work with USAID to ensure
that program activities funded by $15 million in fiscal year 2002
Economic Support Funds support implementation of a settlement.
embassy security
Question. The Department of State has stepped up security in our
embassies and received security supplemental funds for security last
year. This year's request includes $1.3 billion for fiscal year 2003
embassy security measures.
How will the State Department use these funds to ensure that we
protect our men and women serving our country at embassies and
consulates around the world?
Answer. The key objectives of the original 1999-2000 Emergency
Security Appropriation (ESA) were to quickly improve the security of
our threatened embassies and consulates and to begin the longer-term
objective of replacing those facilities that cannot be made adequately
secure.
The Department's fiscal year 2003 request of $1.3 billion includes
$755.0 million in the Embassy Security Construction and Maintenance
(ESCM) appropriation and $553.0 million in the Diplomatic and Consular
Programs (D&CP) appropriation.
The ESCM request includes $608.6 million in capital security
funding for the design and/or construction of the next tranche of the
most urgent, security-driven projects. The fiscal year 2003 projects
will be chosen from among a list of potential projects that include:
Astana, Kazakhstan (dependent on Congressional support to open a
diplomatic office); Athens, Greece; Bamako, Mali; Beijing, China;
Bridgetown, Barbados; Frankfurt, Germany; Harare, Zimbabwe; Kingston,
Jamaica; Moscow, Russia; and Tirana, Albania. The $608.6 million also
includes funding to acquire additional sites for which design and/or
construction will begin in the outyears.
The ESCM request also includes $146.5 million for compound security
upgrades that include the construction of critical perimeter security
projects and the installation of forced entry/ballistic resistant roof
hatches, vault doors, and power-assisted vehicle barriers.
While specific security measures vary by post, the $553.0 million
in the D&CP appropriation will be used to continue activities designed
to:
--Enhance physical security at U.S. Missions with additional barriers
and reinforced perimeter walls;
--Install closed circuit TV cameras and video recording equipment;
--Provide bomb detection equipment, armored vehicles, walk through
metal detectors, and x-ray equipment;
--Fund access card control systems and shatter resistant window film;
--Install additional alarm and public address systems to alert
personnel to impending emergency situations;
--Facilitate mandatory inspections of all vehicles entering U.S.
diplomatic facilities;
--Increase host government security presence and support to our
facilities worldwide;
--Field aggressive surveillance detection programs at almost all of
our diplomatic posts;
--Expand training in the areas of Anti-Terrorism Assistance;
Diplomatic Security Special Agents and Regional Security
Officers; and crisis management;
--Continue a chemical biological weapons countermeasures program
based upon education, training, and equipment;
--Strengthen our working relationship with the intelligence
community;
--Fund, hire, and train new Diplomatic Security special agents,
security engineers, security technicians, diplomatic couriers,
security officers, and civil servants.
Fiscal year 2003 is the third year of the Department's multi-year
plan to complete technical and physical security upgrades for stronger
perimeter and compound security at our embassies and consulates
worldwide. Additionally, armored vehicles, technical surveillance, and
countermeasures equipment, which were sent out to the field following
the East Africa bombings, need maintenance and eventual replacement.
The U.S. Agency for International Development is requesting $82
million in its fiscal year 2003 budget request for construction of
collocated USAID facilities. Their request is contained in the fiscal
year 2003 Foreign Operations budget request.
compensation to victims of international terrorism
Question. Victims of the September 11 attacks on America--at the
World Trade Center, at the Pentagon, and on the flight which went down
in Pennsylvania--will receive compensation allocated by a Special
Master under legislation passed last year.
Do you believe the American victims of the Embassy bombings in Dar
Es Salaam, Tanzania and Nairobi, Kenya--victims of the same terrorist
group, most of whom were serving their country--deserve similar
treatment?
Answer. The Administration is looking very closely at the entire
issue of terrorism victims' compensation. Consistent with section 626
of the fiscal year 2002 Commerce Justice, State Appropriations Act, the
State Department has developed a draft legislative proposal to
compensate all U.S. victims of international terrorism, including those
who were killed or injured in the East Africa bombings. This draft
proposal was submitted in November to the Office of Management and
Budget for inter-agency review and clearance. Department
representatives have had several discussions with OMB and the White
House concerning the proposal. We are hopeful that the inter-agency
review will be completed shortly and that the Administration will
submit a legislative proposal to the Congress this session.
center for antiterrorism and security training (cast) at aberdeen
proving ground (apg)
Question. What are the benefits of establishing CAST for the
training of Diplomatic Security officers and for the Antiterrorism
Training Assistance (ATA) programs?
Could you explain to the Committee the advantages of the Aberdeen
Proving Ground site selected for the establishment of CAST?
Would it contribute to our efforts to secure international
cooperation against terrorism if the establishment of CAST at Aberdeen
Proving Ground could be accelerated?
Answer. Antiterrorism and security training is conducted at seven
separate training locations nationwide, often using ad-hoc
arrangements. The CAST would greatly help meet the demands for
facilities to train additional foreign security officials required to
counter the increased terrorist threat. Currently, some training
courses are delayed for months because of a shortage of appropriate
facilities. Additionally, the concept maximizes resource use by
alternate scheduling of antiterrorism training and agent training at
the same facility. The proximity to Washington, D.C. will permit use of
presenters from multiple agencies and disciplines and trainee access to
multiple resources in the area, which will pay additional dividends.
The CAST will provide a state-of-the art facility, replacing
inadequate or antiquated facilities; for example, it will include all
weather small arms ranges; ``long gun'' ranges, tactical urban mock-up
training facilities for counter-assault training; commercial aircraft/
mock airport facilities; defensive/protective driving tracks;
explosives demolition ranges; maritime security training, and chem-bio
training facilities.
The events of September 11 further expanded the focus of
Antiterrorism Training Assistance (ATA) outreach to newly identified
frontline nations and added course offerings in specific areas dealing
with countering and responding to terrorist incidents. Presently ATA
trains about 3,000 foreign law enforcement professionals annually. When
fully operational, the CAST will accommodate as many as 7,000 foreign
counterparts. The Department is making every effort to accelerate the
CAST to contribute to our effort in preparing and securing
international cooperation against terrorism.
CAST will require a variety of dedicated training facilities,
including as an example, munitions disposal training, large caliber
weapons training, and defensive driving. Life-safety issues, as well as
community residents' concerns, preclude such training being conducted
near residential areas. The Aberdeen Proving Ground provides an
environment and a footprint which will accommodate each of the
program's requirements. Further, the APG has an existing infrastructure
that would help bring CAST on line more quickly, as the Department
moves to meet requests for training.
______
Questions Submitted by Senator Patrick J. Leahy
colombia: human rights certification
Question. Can you assure me that you will personally satisfy
yourself that these conditions--the intent of our law--have been met,
and that these human rights problems are being addressed far more
effectively than they have been to date?
Answer. Yes. As the legislation requires, I will personally review
the conditions for certification. I have not yet made the certification
that the Colombian Armed Forces have met the human rights conditions
set forth in Section 567(a) of the Kenneth M. Ludden Foreign
Operations, Export Financing, and Related Programs Appropriations Act,
2002 (Public Law 107-115) (FOAA).
The Department of State is now evaluating the information it has
received on this subject, including data from human rights
organizations which have been consulted by both the Department and our
Embassy in Bogota, in order to provide a recommendation in the near
future to me for my determination. The importance with which we view
the question of human rights in Colombia is reflected in the recent
travel to Colombia of Deputy Assistant Secretary Struble of the Western
Hemisphere Affairs Bureau and Deputy Assistant Secretary Carpenter of
the Bureau of Democracy, Human Rights and Labor for seeking additional
information and discussing our concerns with senior leaders of the
Colombian government and military.
If I determine and report to Congress that the conditions
established in the legislation have been met, based on the information
presently under review, that report will also provide the background
and justification upon which we would base such a determination.
Human rights are and will remain central to our bilateral relations
with Colombia. We will continue to engage the Government of Colombia on
concrete measures it should take to improve its human rights
performance, particularly the human rights record of the Colombian
Armed Forces.
middle east
Question. At a hearing in the Foreign Operations Subcommittee last
week, I asked Assistant Secretary Lorne Craner about Israel's use of
U.S. military equipment.
According to the State Department's human rights report, Israeli
and Palestinian security forces have committed ``numerous serious human
rights abuses.''
I sent several letters to our Embassy in Israel asking if they had
determined if these types of incidents involved units of security
forces that received aid from the United States. I also asked the
Embassy what steps have been taken to ensure that our aid is used
consistent with the Leahy human rights law.
Other than one reply that essentially said ``we're looking into it
and we'll get back to you'', I have not received an answer to my
letters. Since then, the situation has become far worse. I would
appreciate your help in getting a response to my inquiries.
It is my understanding that we do not provide any aid to the
Palestinian Authority. Are you confident that the Leahy law is applied
properly with respect to our military aid to Israel?
Answer. President Bush and I have publicly criticized certain
actions of the Israeli security forces. The 2001 Country Reports on
Human Rights Practices notes ``numerous serious human rights abuses''
perpetuated by Israeli security forces during the year.
We share the goal of the Leahy Amendment to hold foreign security
forces and governments accountable to international human rights
standards. Our goal is to carry out security and other foreign
assistance programs in a manner consistent with human rights standards.
Embassy Tel Aviv has been operating under standing instructions to
monitor possible human rights violations by Israelis and Palestinians
and to report back daily to the State Department. For preparation of
the annual human rights reports, the Embassy also reports information
on alleged violations of human rights to the Department.
In writing, the Department instructs posts worldwide on procedures
to ensure appropriate compliance with the Leahy Amendment. We currently
are in the process of updating and reviewing this standing guidance on
implementation of the Leahy Amendment for posts worldwide, including
ensuring that the procedures used serve the goals of transparency and
accountability with respect to U.S. assistance to foreign security
forces. Updated guidance will be sent to posts worldwide, including
Embassy Tel Aviv, upon completion of the update and review process. The
Department would be willing to brief you or your staff on these
procedures once they are in place.
serbia
Question. March 31st is the deadline for Serbia to meet conditions
in our law on compliance with the War Crimes Tribunal.
Last year at this time, they arrested Milosevic. Since then, very
little has happened. According to the Hague prosecutor, they are
falling short in just about every respect. I know you care about this,
but I don't want anyone to be surprised. We are not going to support
continued aid to Serbia if they do not turn over these indicted war
criminals and give the prosecutors access to documents and other
evidence.
A couple of weeks ago Senator McConnell and I sent Prime Minister
Djindjic and President Kostunica a letter, spelling out what we believe
to be the minimum that needs to happen to comply with our law. You
should have a copy, and if you have not seen it I will get one to you.
I hope you will used every bit of leverage and influence you have to
impress upon these two leaders what needs to be done. Can you comment
on where this stands?
Answer. Although there has been progress over the past year in each
of the areas required for certification, I have not yet made a decision
on whether or not to certify Serbia under section 584. We have
repeatedly made clear to Yugoslav and Serbian authorities that they
have an international obligation to fully cooperate with ICTY and that
the USG expects actions to meet those obligations.
We will continue to press for full cooperation and to urge our
European allies to look closely at the FRY's continuing record on these
issues, including ICTY cooperation, as they consider Council of Europe
membership, as well as Partnerships for Peace (PfP) membership.
______
Questions Submitted by Senator Judd Gregg
general state issues
Question. Mr. Secretary, with all the advance in technology--
particularly in the area of communications--have you considered whether
certain core State functions could be brought back to Washington from
our embassies abroad?
Answer. The Department of State relies heavily on centralizing a
variety of administrative, consular, and some policy functions (e.g.,
Labor Attaches, science hubs) in the United States. Technology plays a
critical role in this effort.
We have the following U.S. regional centers:
--The Fort Lauderdale Regional Center provides support services to
U.S. posts throughout the Western Hemisphere.
--The National Visa Center in Portsmouth, New Hampshire and the
Kentucky Consular Center in Williamsburg, Kentucky both perform
a variety of consular work traditionally carried out at
individual posts.
--The Charleston Financial Service Center is in the process of
assuming functions for European and African posts formerly
carried out at our Financial Service Center in Paris.
--The Department will also begin in early April to shift routine
passport production from overseas posts to U.S. domestic
passport agencies in order to take advantage of the high
security passport photodigitization process installed here in
the United States.
When relocation to the United States is not feasible, USG agencies
(including State) use many embassies and consulates, such as Frankfurt
and Hong Kong, as regional platforms for their activities.
Even with advances in technology, there is still no substitute for
face-to-face interaction with host governments and publics. State
continues to support the principle of universality, under which the
U.S. Government maintains an on the-ground presence in virtually all
nations with which we have diplomatic relations.
Question. The fiscal year 2003 budget contains an estimated $3.3
billion for ``substantive'' foreign affairs activities such as policy
formulation, diplomatic relations, public diplomacy, consular
relations, and support of multilateral diplomacy. Approximately $4.4
billion is for such things as embassy construction, diplomatic
security, IT infrastructure, travel, and rent--all of which support the
Department's foreign affairs mission. Secretary Powell, how do you
justify spending more for the support of our foreign affairs activities
than we do on the actual conduct of foreign policy?
Once you have achieved your goals for improving State's
infrastructure (facilities, IT, etc.) do you expect the numbers to flip
back?
Answer. The funding identified is only part of the total budget
used to conduct the nation's foreign policy. The total fiscal year 2003
International Affairs budget request is $25.4 billion, including over
$16 billion for the Foreign Operations appropriations. To effectively
carry out its foreign policy mission, the Department must have adequate
staffing, technology, and secure facilities, as well as adequate
foreign assistance funding. Building an embassy in a foreign country,
for example, is as much a part of the conduct of foreign policy as is
concluding a treaty, negotiating a peace agreement, or providing
humanitarian aid. In fact, our overseas presence is at the very heart
of our foreign policy, from ensuring the safety and security of
American citizens overseas to carrying out the daily routine of
diplomacy. The operations, maintenance, and security costs of our
overseas presence is difficult to predict; for example, who could have
forecast in 1987 the fall of the Soviet Union and the sudden rush onto
the world scene of ``new'' countries with which the United States
needed to establish diplomatic relations. At OBO, however, we have
developed for the first time a master plan for embassy construction
that will help us manage those particular costs. I cannot assure you
that the current total of funds we need for our daily operations and
for supporting the conduct of our foreign policy will decrease over
time. I can assure you, however, that we will be wise stewards of the
dollars entrusted to us by the American people.
embassy construction
Question. What impact has 9/11 had on the way the Office of
Overseas Buildings Operations approaches designing and building
embassies abroad?
Answer. Following the Africa bombings in 1998, the Department, in
concert with other Foreign Affairs Agencies, embarked on an intense,
successful, and continuing effort to review and revise overseas
security standards and determine what new standards might be needed,
including preventive measures for chemical or biological attacks. The
tragedy of 9/11 confirmed that we were already going in the right
direction regarding strengthening and/or relocating our facilities to
provide the best security that is reasonably possible for our employees
at posts abroad. We are making a determined effort to accelerate these
processes in light of 9/11 and other recent events.
Question. Do you think the lessons of 9/11 were that we need to
build more heavily fortified embassies? Or do you believe that 9/11
demonstrated that we simply cannot build buildings that are 100 percent
secure and must therefore look to mitigate the threat in other ways
(such as better deterrence and prevention)?
Answer. While neither the World Trade Center nor the Pentagon was
designed to the same physical security standards as our embassies
abroad, they were designed to withstand what was considered a
reasonable expectation of survivability following significant
structural damage. The stresses upon these buildings on 9/11 were
greater than they could withstand. The U.S. Government's efforts should
continue to focus on better deterrence and prevention, as well as
improved-design and construction technologies, to reduce the impact of
terrorist events. The most urgent need is simply to get our people out
of buildings that do not come close to meeting any reasonable safety
and security standards. Using best practices, Standard Embassy Designs,
and business case analyses, the Department's Bureau of Overseas
Buildings operations is accelerating its mission to provide safe,
secure, and functional facilities for our diplomatic and consular posts
around the world. Use of these initiatives reduces the time that our
employees would otherwise be in less secure facilities. The
Department's short and medium-term implementation of physical and
technical security enhancements, as well as our long-term capital
building design and construction efforts, significantly improve the
security and safety of our employees abroad.
diplomatic hiring initiative
Question. Mr. Secretary, last year this Committee provided the
Department $107 million to hire 360 new employees above attrition. This
year you have requested another $100 million to hire 399 more people.
Next year you will ask for another 399 new employees.
Could you please give us an update on how this process is going?
How many people have been hired so far? How will new employees be
allocated among the different bureaus and sections? Has 9/11 altered
decisions concerning where these new employees will be placed?
Will the right-sizing of our posts abroad continue despite this
surge in hiring? Do these two processes (Diplomatic Readiness Hiring
Initiatives and Right-Sizing) conflict with one another?
Answer.
Recruitment Progress:
Our recruitment and hiring effort thus far has been very
successful.
--We had 13,000 takers of the Foreign Service Written Exam in
September--a sixty-three percent increase over last year.
--For fiscal year 2002, we have already signed-up 344 new junior
officers out of our target of 483, which includes Diplomatic
Readiness hiring and attrition hiring.
--We have reduced the average time to enter the Foreign Service from
22 months to 10 months.
--We are taking a hard look at our Civil Service hiring process to
make it more efficient.
--We are using targeted hiring programs in the Civil Service to meet
anticipated skill needs effectively, including hiring employees
in groups so they can be available more quickly and hiring into
training programs that will grow talent from within.
Position Allocation:
As we allocate new positions, we are directing them in the first
instance to our overseas needs--to meet requirements now being
neglected due to lack of adequate staffing. We are also creating new
training positions so that we can build our capacity, ensuring our
employees have the needed training, to meet the challenges of 21st
century diplomacy.
The majority of the 360 new positions for fiscal year 2002 were
used to begin to address overseas staffing deficiencies documented in
our Overseas Staffing Model (OSM) and to meet Foreign Service training
needs.
For fiscal year 2003, the request for 399 new positions will allow
the Department to continue to close training and staffing gaps and
bring us another step closer to the full staffing required to meet the
nation's diplomatic requirements. These new positions will be in
Foreign Service Generalist, Foreign Service Specialist, and Civil
Service categories, as determined by our planning models and foreign
policy requirements.
To determine specific allocation of those new positions by bureau
and post, we assessed their human resource requests during our annual
planning and budgeting process. This process culminates in a review by
the Deputy Secretary and Under Secretary for Management who then set
priorities and approve allocations.
Because those policy priorities can change, we do adjust throughout
the year. Post 9/11, we did revise our plans and direct more resources
to counter-terrorism and border security.
Right-Sizing:
With regard to rightsizing the USG presence, the State Department
is only part of the equation. As you know, the U.S. Government's entire
overseas presence includes staff from over 30 agencies. As part of the
planning process, each mission's review of its functions and staff
takes into account all agencies at the mission.
The Office of Management and Budget is currently undertaking a
comprehensive government-wide rightsizing study, and we are working
with them.
As we determine the optimum allocation of our human resources, we
use models, such as the Overseas Staffing Model, to develop baseline
staffing levels. We are also developing a domestic staffing model.
We use these and other workforce planning tools as part of our
overall strategic planning and resource review process to determine
staffing. In this regard, we can ``rightsize'' the Department's
staffing.
The Diplomatic Readiness Initiative was the result of that review
process. It is a three-year plan to increase staffing levels in light
of the assessed need. Therefore, the Diplomatic Readiness Initiative is
in fact part of our effort to ensure we have the right staffing
overseas to meet our mission.
border security/consular affairs
Question. Mr. Secretary, how has the Consular Affairs Mission
changed since the events of 9/11? Would you agree that the mission your
consular officers perform is vital to our national security? What are
the pros and cons of the Department's policy of requiring new Foreign
Service Officers to serve their first tour in Consular Affairs? Do you
think this policy has contributed to creating a culture at State where
CA officers are second class citizens? Do you agree that Consular
Affairs is a sufficiently important component of the Department's
mission that it should be staffed by career FSOs, rather than by
novices?
Answer. The Bureau of Consular Affairs (CA) has been guided before
and after the tragic events of 9/11 by two complementary goals:
ensuring the security of our borders, while at the same time developing
and implementing state-of-the-art technology to facilitate travel.
Consular officers in the field are the outermost ring of the U.S.
border security system. We have been continually engaged in efforts to
design, deploy, and improve the systems and tools they need to help
flag terrorists and criminals among visa applicants. Our Consular
Mission has not changed and, in fact, September 11 has served to
emphasize the importance of our core Consular functions to ensuring
national security.
The Department does not have a policy that new Foreign Service
Officers (FSOs) must serve their first tour in a consular position.
Rather, it is the policy of the Bureau of Human Resources in the State
Department that all FSOs, regardless of career track, perform a minimum
of one year of consular service during their first two assignments as
junior officers. Some do this on their first assignment and some on
their second.
This policy enables the Department to meet its worldwide statutory
responsibilities, while at the same time giving these untenured
officers a diversity of experiences and the opportunity to demonstrate
their skills in a variety of State Department functions. While serving
in a consular capacity and under the mentorship of seasoned consuls and
senior FSOs throughout our Missions, these officers have an opportunity
to interface with large numbers of the host country population, make
decisions quickly, manage staffs of host country national employees,
work on a team within an Embassy or Consulate, hone language skills,
master immigration and citizenship law, protect the security of the
United States by selective visa issuance, and protect U.S. citizens
abroad.
A consular assignment provides all officers, regardless of career
track, a foundation for understanding the consular function and its
role in meeting core U.S. responsibilities abroad. Such service is
extremely useful to all officers, as they assume greater
responsibilities in their careers as Foreign Service officers.
Accordingly, I do not agree that our assignment policy has contributed
to a Department culture wherein consular officers are considered second
class citizens. To the contrary, as the vast majority of the FSO corps
has served in a consular position at some point in their careers, there
is a greater understanding across the Foreign Service of the consular
role in foreign policy.
Question. Can we do a better job of screening student visa
applications without causing significant delays--delays which may lead
foreign students to choose not to study in the United States?
Answer. The U.S. government can do a better job of screening
students.
The Immigration and Naturalization Service (INS) is currently
working on the development and deployment of SEVIS (Student and
Exchange Visitor System). I am optimistic that SEVIS will assist the
Federal government in strengthening the current process for issuing
student and exchange visas. We are actively participating with our
colleagues from the Immigration and Naturalization Service, as well as
the academic community, in the design and development of SEVIS,
designed to convert what was largely a manual, paper-process to a
modern automated system.
I believe that the Department's process for adjudicating student
visa applications is appropriate and expeditious. Consular officers
evaluate student visa applications according to the criteria
established by U.S. immigration law. The most pertinent elements are
the credibility of applicants' plans to study in the United States and
whether they have adequate financial means. As further required under
U.S. law, the officer also determines whether a student visa applicant
has a residence abroad which he or she has no intention of abandoning,
and intends to depart from the United States upon completion of the
course of study.
All visa cases, including student and exchange visas, are processed
using automated systems, which prompt a name check through the
Department of State's centralized lookout system (CLASS). A consular
officer must review all hits before a case can be approved for
printing, and there is no override to this feature. In addition, the
Department has in place special headquarters clearance procedures for
visa applicants, including students from countries of concern, such as
those on the state sponsors of terrorism list, as well as applicants
whose planned travel raises concerns about unauthorized access to
sensitive technologies. In these cases, clearance from Washington is
required before the visa may be issued.
In the vast majority of cases, i.e. those applicants whose names
are not in our lookout system and whose academic or research interests
raise no technology transfer or other security concerns, this name
check procedure causes virtually no delay in the adjudication of visa
applications. We issued approximately 560,000 student and exchange
visas in fiscal year 2001; there is no indication that our adjudication
requirements inhibited the number of student visa applicants.
department's long-range it plan
Question. Mr. Secretary, your progress in upgrading your IT systems
is impressive. Now that two major projects are well underway, what is
your long-range plan for State in the area of Information Technology?
Answer. Our Classified Connectivity Program (CCP) and OpenNet Plus
are underway--on schedule and on budget. We are on the eve of piloting
a program in India and Mexico to improve collaboration among agencies.
We are also working on a proposal to replace a potpourri of messaging
systems, including replacing a legacy cable system of WWII vintage with
a single integrated messaging system that will substantially improve
the way we communicate.
We are not satisfied with catching up to others in this high-tech
world. Our goal is to move ahead, reconfirming State's position as the
lead Foreign Affairs agency, setting an example for the rest of
government, indeed, setting the standard for the international
community in its conduct of diplomacy.
The technology we are deploying must satisfy three standards:
smart, simple, and secure. Our vision is a single computer at every
desk and mobile connectivity for every contingency--with full access to
all information required for the effective conduct of diplomacy.
Our new tools of diplomacy will allow full engagement in the
networked world of the 21st century and full recognition that the
fundamental requirements of diplomacy, one of which is that the best
people be supported by the most reliable technology, will not change.
peacekeeping--general
Question. The fiscal year 1997 State Department Appropriations bill
required the Secretary to notify Congress 15 days before the United
States voted to establish or expand a peacekeeping operation. Mr.
Secretary, do you believe Congress should have a more formal role in
the decisions leading up to Security Council votes that pertain to
peacekeeping? Wouldn't this lessen the need for ``holds'' in order to
effect positive change in these missions?
Answer. The Department of State continues to comply with the
requirements of 22 USCA 287b(e)(5)(A) to notify Congress 15 days before
the United States votes in the Security Council to establish a new U.N.
peacekeeping mission, expand the authorized force strength of an
existing mission, or add significant additional or significantly
different functions to a U.N. peacekeeping operation.
Well in advance of this formal notification, which includes a
critical review of major aspects of such operations, the Department
engages in an extensive process of consultation with Congress on U.N.
peacekeeping, including monthly ``Round-the-World'' briefings for this
and other Congressional committees and quarterly and annual reports on
U.S. contributions to U.N. peacekeeping operations. The monthly
briefings, in particular, provide a unique opportunity for the
Department to indicate early developments and trends and for Congress
to comment at an early stage.
Question. Secretary Powell, it is estimated that our campaign to
liberate Afghanistan cost $2 billion, with continuing costs of $200
million per month. Britain is to be commended for its role in both the
military campaign and the ensuing Security Assistance Force. Do you
agree, however, that the peacekeeping function should be left largely
to our allies, particularly our other European allies?
Answer. We should commend all the members of the coalition for
their commitment and their contribution to the military, diplomatic,
and economic facets of the Global War on Terrorism. There are
compelling reasons why the United States has chosen not to participate
directly in the International Security Assistance Force (ISAF)
peacekeeping mission in Afghanistan. Chief among these, obviously, is
that it has allowed us to focus on the war against the Taliban and al
Qaida, as well as on potential threats in other locations related to
the Global War on Terrorism. Our allies understand and support this
focus, as demonstrated by the many generous offers of assistance, which
enable us to maintain that focus. The direct participation of allied
military forces in ISAF has helped to promote stability in Afghanistan
and to solidify allied public support for coalition efforts. Another
reason for supporting our allies' prominent role in ISAF is the unique
qualifications that many of them bring to peacekeeping. All the current
ISAF participants are nations that have taken part--and in most cases
are still taking part--in the multiple Balkans peacekeeping missions of
the last ten years. Several ISAF troop contributors have peacekeeping
experience that stretches back several decades and are putting that
experience to good use in helping to secure a brighter future for
Afghanistan.
u.n. peacekeeping mission in the congo
Question. Former United States-U.N. Ambassador Richard Holbrooke
set preconditions for U.S. support of U.N. intervention in the Congo.
These included withdrawal of combatants to the lines established in the
Lusaka accord, absolute cessation of hostilities, and free access to
all areas for U.N. observers. Is this still U.S. policy? If so, will
the United States apply these conditions to the eventual vote by the
Security Council to raise the troop level from its current level of
5,500? If the preconditions are not met, will the United States vote
against raising the troop level?
Answer. The conditions set by former Ambassador Holbrooke for U.S.
support of the U.N. Organization Mission in the Democratic Republic of
the Congo (MONUC) have been generally met: the combatants have
withdrawn to the agreed disengagement lines; the cease-fire has held,
with a few exceptions, since early 2001; and Lusaka Agreement
signatories have permitted MONUC access to areas under their control.
The United States has made it clear that its support of MONUC's
operations in the Congo will require the continued observance of the
cease-fire by all parties and free access to all areas for U.N.
observers. In addition, before we could support an increase in MONUC's
troop level, we would have to be convinced that this would further U.S.
goals that include achieving the Lusaka Agreement's objective of
withdrawal of foreign forces and the disarmament and demobilization of
the armed groups.
Question. Should the Organization of African Unity or some other
honest broker host an international conference with the express purpose
of redrawing colonial borders in Central Africa to create smaller but
more militarily, politically, economically, and socially viable States?
Lacking any real history of, or meaningful prerequisites for,
representative government, what makes you believe that a country as
large, diverse, and underdeveloped as the Congo can ever achieve
democratic self-governance? What other than partition can free the
Congolese people from the twin plagues of rebel warlords and resource-
hungry neighbors?
Answer. The Organization of African Unity (OAU) supports the
principle of inviolability of colonial borders throughout the African
continent. It would be up to the people of the Congo, working as they
see fit with their neighbors and the OAU, to consider whether redrawing
their boundaries can be an effective way to address their problems.
I firmly believe that the Congolese people can achieve democratic
self-governance within the present boundaries of the Congo. To expect
less would be to grossly underestimate their love for their country and
their desire for freedom.
Question. Why aren't we pursuing controls on the export of ``col-
tan'' (short for columbite-tantalite, an ore rich in the element
tantalum) when it is known that col-tan is bankrolling the Rwandan-
backed Rally for Congolese Democracy (RCD)? Is this the next Conflict
Diamonds?
Answer. Last December, the U.N. Security Council discussed the
November 13 Addendum to the Report of the Panel of Experts on the
Illegal Exploitation of the Natural Resources of the Democratic
Republic of the Congo. We did not support the panel's recommendation
for a moratorium on the purchase of specific commodities in the Congo,
including col-tan. We believe such a moratorium would be unenforceable
and thus would weaken the credibility of the U.N. Security Council's
efforts to end the illegal exploitation of the Congo's resources.
We supported the continuation of the panel for up to six months to
provide for a follow-up to the report, including ways to address the
exploitation of col-tan in the Congo. We urged all governments to
cooperate fully with the panel.
u.n.-capital master plan
Question. Mr. Secretary, what in your view is the purpose of having
a task force oversee U.S. participation in the U.N. renovation?
Have you heard some of the U.N. ideas about how they might fund
this project, and do they alarm you?
How can we guarantee that the renovation of the U.N. building, and
thus the creation of more ``desk space,'' will not quickly be followed
by requests to enlarge the U.N. bureaucracy?
Answer. The task force would bring together personnel from the
Department of State and other U.S. government agencies, with the
necessary expertise in construction and financial management, to ensure
that U.S. interests are met. We believe such oversight is essential in
a project of the potential magnitude of the U.N.'s Capital Master Plan.
The U.N. currently is preparing updated proposals regarding all
aspects of the Capital Master Plan, including funding options. As the
proposals have not yet been issued, it is premature to speculate on
what these may contain. Moreover, all proposals will be subject to
negotiation among the U.N. member states. The funding issue will be key
in this process. We expect all factors will be considered, including
private sector and voluntary funding.
The U.S. remains committed to budget discipline in the U.N. We will
continue to adhere to this approach, irrespective of the current
initiative to renovate the aging U.N. headquarters complex and bring it
up to modern standard in terms of safety, security, and energy
efficiency. As noted previously by the General Accounting Office, the
buildings comprising the U.N. headquarters complex have exceeded their
economic life expectancy. They are energy inefficient and no longer
conform to current safety, fire and building codes, or to requirements
regarding U.N. security.
______
Questions Submitted by Senator Pete V. Domenici
international law enforcement
Question. While these International Law Enforcement Academies have
been recognized as a useful tool in the war against drugs, don't these
organizations also lend themselves to the war against terrorism as the
United States secures its borders and seeks members of terrorist
organizations in other countries?
Answer. The ILEAs play a significant role in combating not only
crime, but also terrorism and those who often use criminal enterprises
to accomplish their goals. Many of the advanced investigative skills
foreign law enforcement officials learn at the ILEAs are also
applicable to conducting effective counter-terrorism investigations and
operations. In light of the events of September 11 and the connection
between terrorism and drug trafficking articulated by the President,
the Department's Bureau of International Narcotics and Law Enforcement
Affairs and Coordinator for Counterterrorism, as well as other U.S.
Government agencies represented on the ILEA Steering Group, will be
developing ways to include additional antiterrorism courses in the ILEA
curriculum.
Question. I was concerned to see that the overall budget for the
International Narcotics Control and Law Enforcement activity, excluding
appropriations from the Emergency Response Fund, is reduced from a net
$217 million in fiscal year 2002 to $198 million in the fiscal year
2003 budget request. This represents a reduction of $19 million, or 8.8
percent. What is the rationale for reducing this type of bilateral
assistance that has the potential to further contribute to our war
against terrorism?
Answer. We agree that our counternarcotics and anticrime programs
have been very successful in combating drug trafficking and other
transnational crimes, and we expect them to continue to be successful.
While the initial fiscal year 2002 appropriation for International
Narcotics Control and Law Enforcement (INCLE) was $217 million, we have
made the difficult choice to transfer $20 million to the Andean
Counterdrug Initiative, as authorized by Congress, to provide
sufficient funding for our programs in that very important region (the
actual ACI appropriation was $105 million less than our request, a 14
percent reduction). That transfer brings the actual fiscal year 2002
program level for INCLE to $197 million, a $28 million increase over
the comparable fiscal year 2001 level. Therefore, our fiscal year 2003
request is a straight line from fiscal year 2002. At this level, there
is sufficient funding to carry out our programs.
Question. Are the existing ILEAs, including the most recently
established ILEA in Roswell, New Mexico, supported at their existing
funding levels in the fiscal year 2003 budget request?
Answer. Yes. The funding will remain constant.
Question. Is it not true that funding for the ILEA in Budapest came
in part from funding for two initiatives that is now drying up? Is the
Department making up for those funding resources in its crime control
budget, or is the program essentially being asked to absorb these
costs?
Answer. ILEA Budapest has been financed by FREEDOM Support Act
(FSA) and Support to East European Democracy (SEED) funds. The FSA and
SEED funding may eventually be reduced in fiscal year 2003 or beyond,
but any shortfalls will be made up from the International Narcotics
Control and Law Enforcement (INCLE) Crime account.
center for anti-terrorism and security training (cast)
Question. How does the proposed new Center for Anti-Terrorism and
Security Training relate to the current State Department Anti-Terrorism
Assistance [ATA] program?
Answer. Over the last 17 years, the Department's ATA program,
managed by the Bureau of Diplomatic Security, has provided
antiterrorism training to over 28,000 foreign law enforcement
personnel. The events of September 11 underscored the need to increase
such training for those who partner with us to protect American
interests overseas. The attacks have also resulted in a mandate to
increase both the amount of training and the topics addressed. In the
current environment, the capacity to provide enhanced training on a
larger scale is limited by existing facilities and technology, often
relying on ad-hoc arrangements with other organizations which have
their own increased training needs. CAST provides a remedy for both by
providing a forward leaning approach and state-of-the art facility.
The Department's role in countering terrorism abroad requires that
the Anti-Terrorism Training Assistance (ATA) program add further course
offerings in specific areas dealing with countering and responding to
terrorist incidents. These skills are an integral part of the total
package required for foreign law enforcement personnel to effectively
prevent and respond to terrorist incidents. Additional training
capacity would also reduce the risks for Americans working or visiting
abroad.
Question. Does the Department intend to fully utilize its current
training partners to carry out the expanded ATAP [ATA] program?
Answer. Yes, the existing training facilities are at full capacity
and will not allow for expansion of the Anti-Terrorism Assistance (ATA)
program. Therefore, the continued use of specialized facilities, which
provide unique training environments such as desert and maritime
training, remains critical to the training mission. The desert border
patrol training will continue to utilize the facility in Socorro, New
Mexico. The pipeline security training and certain maritime training
will continue to utilize facilities connected with the Louisiana State
Police Academy in Baton Rouge, Louisiana. As evolving training demands
are recognized, additional partnering needs will be identified and
integrated.
Question. How will the Anti-Terrorism Assistance [ATA] program be
integrated with the new Center for Anti-Terrorism and Security
Training?
Answer. The Anti-Terrorism Assistance (ATA) program consists of a
number of related activities, the majority of which involve U.S.-based
training, consultation, and program reviews for foreign law enforcement
personnel. While substantially improving our ability to train
Diplomatic Security agents, CAST will also help meet increased training
mandates and improve functional law enforcement related training for
mid-level and senior-level foreign officials. The concept and planning
model will allow for a seamless integration of that training, while
accommodating significantly increased requests for training by front
line nations. ATA now trains about 3,000 foreign law enforcement
professionals annually. The CAST facility, when fully operational, will
accommodate as many as 7,000 foreign trainees per year.
international monetary fund (imf)
Question. International Monetary Fund bailouts and Clinton
Administration foreign policy aims arguably distorted financial crises
affecting East Asia and Russia.
Mr. Secretary, can you tell us what role you and the Department are
playing, in consultation with the Treasury Department, in reviewing
United States policy with regard to the role of the IMF in countries
with chronic fiscal problem, such as those we've seen and continue to
grapple with in Argentina?
Answer. This Administration has worked to make the IMF more
consistently associated with success. The IMF is making progress in
narrowing the focus of its work. New country programs reflect sharper
concentration on key areas and a prioritization of measures necessary
for reforms to succeed. This is a welcome change. A broader review of
the conditions attached to IMF lending continues. As part of this
review, the United States is emphasizing the need for the IMF to be
selective in providing financial support. The IMF needs, in short, to
demonstrate a greater willingness to focus its support on countries
doing the most to help themselves, and to decline to finance cases in
which a country is not prepared to take the steps required to achieve
credible reforms and a sustainable growth path. We convey the same
message to those countries seeking IMF assistance.
Question. What do you expect will be the outcome of the IMF quota
review that, according to the IMF's Articles of Agreement, must be
completed by January 2003?
Answer. The United States believes the liquidity position of the
IMF is sufficiently strong at this time. Therefore, we do not expect
the current review to result in any quota increase.
management challenges
Question. As you know, the President's 2003 budget emphasized
performance-based budgeting--the first time this has been done. As part
of his management agenda, the Office of Management and Budget
identified five government-wide initiatives and ranked each department.
Unfortunately, the State Department failed to receive a passing grade.
What is your plan to meet the high standards set by the President?
Answer. I am personally and professionally committed to moving the
Department from a ``red'' score (meaning failure) to ``green'' (meaning
success) on all five elements of the President's Management Agenda
(PMA). We have completed and begun to implement credible plans for two
of those five elements (Financial Management and E-Government). As a
result, our current score of the ``work in progress'' on those elements
has moved from ``red'' to ``yellow''. We take the President's
Management Agenda very seriously, and all of my senior managers at the
Department share my commitment to getting to ``green'' in the most
effective way possible.
Question. In previous years, the State Department has been unable
to clearly state the relationship between some key outcomes and
strategies and indicators in its annual performance report. The
Department has been unable to establish connections between its actions
and the success or failure of key outcomes. Given that the nature of
the State Department's mission makes it difficult to avoid either
having very broad key outcomes that are not addressed sufficiently by
the indicators; what role should the Department's annual performance
report, as mandated under GPRA, serve in helping the Congress determine
if the State Department is meeting its goals?
Answer. Because of the complex, long-term nature of the goals of
the Department of State, and because the environment is unpredictable
and subject to sudden change, we believe that a clear focus on results,
and what it takes to achieve them, is critical to our success.
The Department's 2001 Performance Report reflects the progress we
are making in communicating the relevance of our goals and how they
address critical strategic issues facing the country. Much credit goes
to an improved process that introduced a goal team for each of the
Department's strategic goals.
By strengthening the linkage between goals and resources, we
believe that our plans, reports, and results will be enhanced. To
accomplish this, we intend to have our goal teams identify
interdependencies among goals and define specific intermediate outcomes
that will lead to progress toward positive long-term outcomes. Senior
Policy and Management reviews chaired by the Deputy Secretary of State
are also designed to improve the Bureau and Mission Performance Plan
processes.
Such measures will provide both the Department and the Congress a
clearer understanding of the relationship between funding and results.
Given the size of our plan and report documents at this time, we
will strongly encourage our goal teams' use of summaries and graphics
to better communicate the core logic to external stakeholders and the
public.
Question. If Congress passed the President's Management Agenda, how
would operations of the State Department improve?
Answer. At this time, the Administration has no plans to introduce
legislation incorporating the President's Management Agenda (PMA). The
Administration believes that the best way to implement this agenda is
within the Executive branch and under the guidance of the Office of
Management and Budget. Consequently, we can make adjustments as
necessary between the general, over-arching goals of the PMA and the
particular policies, programs and activities of each individual agency.
foreign aid
Question. I understand that OMB will be sending us a supplemental
request in the near future and that it will include additional aid for
Afghanistan, Colombia, and the Central Asian Republics.
(1) Is that correct? If so, how much of the supplemental will be
for the 150 function?
(2) Which 150 programs will be affected?
(3) Will it include any additional countries or 150 items?
Answer. We are working with OMB to put together an emergency
supplemental package to support the war on terrorism and the front-line
states.
No final decisions have been made on requirements and funding
levels.
We will provide further details as soon as the request has been
developed.
funding for afghanistan
Question. As you know, the annual budget cycle is not always well-
equipped to deal with long-term needs. Each year's immediate priorities
tend to overshadow continuing problems that require sustained reforms.
What can be done to ensure that funding for Afghanistan for the out-
years is secured now, before Afghanistan slips from the headlines?
Answer. We know that there will be substantial requirements for
reconstruction and redevelopment in Afghanistan. We will use
supplemental funding to address Afghanistan's immediate needs.
Our annual budget requests for the out-years will respond to future
requirements and reflect the commitment of the United States to assist
Afghanistan.
As the President has said, we will not walk away from that
commitment.
biennial budgeting
Question. How do you think biennial budgeting would affect the
State Department and the spending and operations of the foreign affairs
apparatus?
Answer. The concept of biennial budgets is worth thinking about. On
the plus side, we would gain a better sense of how much money would be
available over a longer period for managing the Department and our
posts abroad. Our planning would benefit.
However, this idea would not remove the need for periodic
supplementals in order to respond to unanticipated contingencies.
Supplemental requests and budget amendments have become a fact of life
in the international affairs area, where we have very little
contingency funding to respond to emerging opportunities and threats.
This idea will not work unless we seek and are appropriated
adequate and realistic funding levels for the work we know we must do.
I am open to discussing further any proposal you may have that will
provide us the resources we need to support the conduct of diplomatic
relations and U.S. foreign policy.
capitalism and the developing world
Question. In the aftermath of the Asian Financial Crisis, the
Economic Report of the President indicated that net private sectors
capital flows to the emerging markets declined more than 90 percent
between 1997 and 2000. Since then countries like Argentina and
Indonesia have been mired in recession and political discord. Perhaps
understandably, the citizens of these countries view American style
capitalism with skepticism.
What can be done to improve our nation's image among the citizens
of the developing world and how can we better promote the idea that
free markets improve standards of living and strengthen democratic
institutions?
Answer. The United States, led by the Department of Treasury, has
strongly supported International Monetary Fund initiatives to
strengthen surveillance and crisis prevention measures. With U.S.
government support, the IMF and World Bank initiated the Financial
Sector Assessment Program in 1999 to assess members' financial systems
and the regulatory and legal framework underlying their operation. The
results are incorporated into the IMF's reviews of national economies.
Spearheaded by the Asian financial crisis, the IMF's standards and
codes initiative promotes the development and dissemination of codes of
good practice in the financial sector. Reports on the Observance of
Standards and Codes (ROSCs) summarize the extent to which countries
observe international norms in a number of areas crucial to the health
of financial systems. Reports are used for official discussions, as
well as for risk management by rating agencies and the private sector.
The United States has supported efforts to improve dialogue among
market participants, the International Financial Institutions, and
sovereign governments. In June, 2001, the IMF created an International
Capital Markets Department as part of an initiative to strengthen the
international financial architecture. The Department serves as a
liaison with the private sector and enables the IMF to conduct more
effective surveillance.
At the urging of the United States and its G-7 partners, the
Financial Stability Forum (FSF) was established in 1999 to improve
cooperation in financial surveillance and supervision. The FSF is
comprised of finance ministry and regulatory official, as well as
International Financial Institution and international banking
representatives. The FSF encourages implementation of measures to
improve the health of financial systems, including improved disclosure
practices, deposit insurance programs, accounting standards, and
improving counter-party risk management.
The Basel Committee on Banking Supervision is playing a fundamental
role in strengthening the safety and soundness of the international
banking system. Chaired by New York Federal Reserve President William
McDonough, the Committee is revising the Basel Capital Accord to
redefine minimum capital requirements, improve supervisory review
standards of internal bank assessment processes, and ensure effective
disclosure standards to encourage sound banking practices.
The Committee on Banking Supervision and the Bank for International
Settlements jointly created the Financial Stability Institute in 1999
to help bank supervisors improve financial systems worldwide. The
Institute organizes seminars, regional workshops, and informational
programs on bank supervision issues. Upcoming seminars in Muscat,
Khartoum, Lusaka, Bangkok, and Vilnius are indicative of the worldwide
scope of its efforts to improve banking standards.
Finally, the United States is working on a bilateral basis, where
appropriate, to address areas of concern. The Department of Treasury's
technical assistance team and USAID's banking and capital market reform
team have worked with governments in Asia, Eastern Europe, South
America, Africa, and the Middle East on a wide range of bank reform
issues.
An appropriate financial policy framework facilitates the
mobilization of capital and is a critical condition for economic
growth. As the United States works with its partners to promote the
spread of market-based economies, efforts to strengthen the financial
and banking sectors will remain a priority.
visa procedures
Question. The State Department has a very considerable role in the
war on terrorism in its role of issuing visas throughout the world
thereby enabling foreign nationals to come to our country. Since 9/11
has there been any significant change in the number of visas issued or
any review or change in the procedures for issuing visas?
Answer. In the immediate aftermath of September 11, nonimmigrant
visa activity declined by as much as 25 percent, compared to the same
period the year before, although actual rates varied from one part of
the world to another.
While the overall procedure employed for issuing visas remains
basically the same, we are working continually to enhance the
information available to consular officers when they adjudicate a visa
application. In January, in cooperation with law enforcement and
intelligence agencies, we implemented a supplemental nonimmigrant visa
application form designed to elicit information that would prompt a
more intense review of certain applications for national security
reasons. The Bureau of Consular Affairs continues to push hard for
increased data-sharing with other agencies that may possess derogatory
information on potential visa applicants, so that information is
included in our worldwide CLASS visa lookout system and thus available
to our consular officers as they consider applications. Our robust visa
system is only as good as the information entered into it. Thus, it is
absolutely essential that the law enforcement and intelligence
community provide us with the necessary information. In addition, the
review process for potentially problematic visa applications has
lengthened as we attempt to obtain relevant input from any and all
interested agencies in specific cases.
visa and passport fraud
Question. One of the most important ways in which the State
Department contributes to the war on terrorism is through its role as
issuer of visas and passports, which of course, takes place on a global
basis. It is my understanding the State Department issues approximately
7 million passports and between 7 and 8 million visas each year. It is
also my understanding that there are only 215 domestically based agents
in the Criminal Investigations Division of the Bureau of Diplomatic
Security who investigate visa and passport fraud. These 215 agents
spend a small fraction of their time (perhaps one-third) on visa and
passport fraud investigations since they also must respond to the needs
of VIP's and other security matters. Overseas there are approximately
405 agents who deal with security and in case of these agents even more
demands are placed on their time, leaving maybe 10 percent of their
time to investigate visa and passport fraud. Thus, by my calculations
we have only 90 people across the globe working full-time on visa and
passport fraud. Now I realize that Diplomatic Security intends to
recruit, train, clear and set-up approximately an additional 186
Diplomatic Security agents. Still do you believe that the State
Department's efforts in going after visa and passport fraud are
adequate?
Answer. The Department continues to make the best possible use of
available resources for this purpose. Passport and visa fraud
investigations are a critical component of our national security. The
Bureaus of Diplomatic Security (DS) and Consular Affairs (CA) take this
responsibility seriously and work together domestically and abroad to
protect our borders. Let me explain their complementary roles in border
security.
All consular and passport officers conduct limited investigations
to detect and prevent fraud in the regular course of their work.
Passport agencies and consular sections also have a designated Fraud
Prevention Manager, who is responsible for training line officers and
investigating potential fraud cases. Passport agencies and many
embassies have full-time, mid-level officers in these jobs. Overseas
Consular Sections with lower levels of fraud have part-time officers.
Consular Sections also have locally hired staff with full-time fraud
investigation responsibilities.
Passport and Visa fraud investigations are typically begun by the
adjudicating officers, who note any anomalies in the cases they
receive, and refer them to the Fraud Prevention Manager (FPM) at the
overseas post or at the passport agency. FPMs often conduct preliminary
investigations to determine whether there is fraud involved in the
case. Fraudulent U.S. passport applications are passed by CA to DS for
criminal investigation. Visa fraud that appears to involve
sophisticated or organized fraud, or falsification of foreign passports
or other government documents, are passed to DS for criminal
investigation and coordination with foreign police as appropriate. DS
also investigates many allegations of passport and visa fraud received
from outside sources. A large majority of all DS agents worldwide are
engaged in criminal investigations to some extent, although few are
committed full time to this mission.
DS and CA work to satisfy different but complimentary interests,
while increasing the number of staff to pursue the mission of border
security. For example, DS is aggressively expanding the number of
agents committed to passport and visa fraud investigations globally. In
partnership with Consular Affairs, we are fully committed to increasing
our critical contribution to U.S. border security. The additional
special agent positions authorized by Congress under the Emergency
Response Fund (ERF) following September 11, coupled with additional
agent positions approved by the Congress in fiscal year 2002, will
allow DS to better address its visa and passport fraud workload. DS is
also adopting new methodologies relating to the investigative program,
in order to ensure that we are maximizing existing investigative
resources.
Question. If additional resources had been provided to hire and
train additional agents to investigate visa and passport fraud, would
9/11 have happened?
Answer. Any impact that additional agents may have had on the
events of September 11 is at best speculative. Those events served to
validate the need for a variety of enhancements and the retooling of
others. Aggressive visa and passport investigative efforts add to the
ability to protect American interests, both domestically and abroad.
The key to preventing future attacks includes, but is not limited to,
additional resources, exploiting technology, information sharing, and
improved interagency cooperation. The Department requires accurate and
timely intelligence-sharing throughout the intelligence and law
enforcement communities to expand and improve the ability to prevent
violations, as well as to respond to criminal activity. It is important
to remember that the ability to impact the problem depends on cross-
cutting efforts by multiple agencies.
Question. Can you explain to me the jurisdiction of the State
Department as opposed to the Department of Justice and the FBI with
respect to the investigation of visa and passport fraud? Is there
overlap or duplication? Is there adequate coordination between these
departments?
Answer. The Department's Bureau of Diplomatic Security (DS)
jurisdiction, under Title 22 USC, Sections 2709 and 4802, is specific
to illegal passport or visa issuance or use. DS is not a border
interdiction agency. Its primary focus is supporting the integrity of
the U.S. passport and visa documents and issuance processes. The Bureau
of Diplomatic Security also investigates the fraudulent use of foreign
passports to enter the United States if the circumstances indicate that
terrorism or other significant criminal activity may be involved.
Passport fraud usually is not an end in itself, but rather a
facilitating or predicate crime committed by those seeking to carry out
other criminal acts. When other criminal activity is indicated, DS
coordinates with the appropriate Federal, state, or local U.S. law
enforcement agency with primary statutory jurisdiction for the
offense(s). DS investigative efforts, targeting the passport or visa
fraud, are of significant value in the investigation of the other
underlying criminal activity. Thus, these investigations are often
multi-agency efforts.
While interagency cooperation regarding fraud investigations
exists, there is a continuing need for greater information sharing
between the law enforcement community and the Department of State, in
order to expand and improve our efforts to prevent and respond to
fraud.
DS' primary focus in passport and visa fraud is on individual cases
supporting the integrity of U.S. passport and visa documents:
--Fraudulent applications;
--Misuse and sale; alterations and counterfeiting (normally document
vendor rings rather than individuals);
--Visa ``fixers'' operating near missions overseas. Vendors of feeder
documents for U.S. passports within the United States;
--Employee malfeasance (U.S. or foreign national employees).
Cases identified as possibly involving threats to U.S. national
security interests are treated as highest priority and are immediately
coordinated with the U.S. agency with the lead for those crimes. In
those circumstances, DS continues its investigation of the passport and
visa fraud as part of a joint, multi-agency investigation and in strict
coordination with the other agency having the lead for the underlying
criminal activity.
DOJ/INS Role.--Although this is not an all-inclusive listing of INS
responsibilities, the Department interacts closely with INS in the
following capacities concerning passport and visa fraud: Border
control/interdiction; control of Alien Arrival and Departure from
United States; alien smuggling in general; visa fraud based on
fraudulent petitions filed from within the United States; immigrant
visas.
DS often conducts visa fraud investigations in close coordination
with INS and has taken the lead role in some major cases. For example,
DS led a multi-agency investigation centered in Los Angeles that
targeted visa and passport fraud activities of the Iranian terrorist
organization MEK. That case led to numerous arrests in several states
and overseas, dismantled a network that was funneling illicit funds to
the terrorist organization, and resulted in the first U.S. conviction
of an individual for providing material support to a terrorist
organization. There is potential for some overlap in domestic portions
of these investigations, but we have not found this to be a significant
problem, either in volume of cases or determining which agency should
have the lead. It should be noted that some redundancies provide a
safety net, helping to ensure that cases are not missed.
FBI Role.--The FBI normally focuses on the underlying criminal
activity, rather than the passport or visa fraud. Obviously, FBI is the
lead agency in investigation of terrorism, organized crime, money
laundering, and other serious criminal activity that often involves the
use of fraudulent international travel documents. DS often works
jointly with the FBI in cases that also involve passport and visa
fraud, conducting those parts of the investigations and also conducting
other substantial leads on behalf of the FBI in other countries where
the FBI is not present. DS agents assigned to the various Joint
Terrorism Task Forces (JTTFs) have the lead role for passport and visa
fraud investigations associated with terrorist activity and work
closely with the FBI and the cognizant U.S. attorney's office.
youth in developing countries
Question. Could you share with us your vision of how U.S. foreign
policy can address the challenges and opportunities facing youth in
developing countries?
Answer. Even before the urgency pressed upon us by September 11th,
the Department has been working to offer hope to youth in developing
countries. Our development efforts have been focused on improving
education, economic opportunity, and political security for the rapidly
expanding young population in developing countries. On March 14,
President Bush outlined a major new vision for development and
announced the United States would increase its core economic
development assistance to 50 percent above current levels over three
years, reaching a $5 billion increase over projected levels in fiscal
year 2006 and beyond. This new ``Compact for Development,'' which
proposes creating a separate development assistance account called the
Millennium Challenge Account, supports countries that are willing to
commit to sound policies and to fight poverty effectively. We know that
a major source of tension and discontent in many countries stems from
the growing ranks of educated youth without the corresponding
opportunities for gainful employment. Our economic development programs
therefore must have job generation as a major objective. At the same
time, our public diplomacy efforts--especially educational and cultural
exchanges--have been reaching out to youth through programs that engage
both teachers and students. With new programs focused on educating
youth in Muslim majority countries, we heighten international social
and cultural understanding and enhance long-term international problem
solving. Combined, these new efforts will help build the trust,
confidence and international cooperation necessary to sustain and
advance the full range of our interests.
u.n. reforms
Question. What reforms still need to be instituted at the U.N.?
Answer. The U.N. already has implemented virtually all of the
Helms-Biden Tranche Three reform requirements, e.g., the United States
has a seat on the Advisory Committee on Administrative and Budgetary
Questions (ACABQ); the U.N. has implemented a personnel evaluation
system; it has instituted an appropriate code of conduct, etc. We are
working closely with the U.N. to ensure that they meet the remaining
conditions, such as GAO access to U.N. financial data, and expect to
reach a satisfactory conclusion very soon. Assuming that the State
Department Authorization bill is passed with the requested amendments
to the Helms-Biden legislation, we believe we will be in a position
this summer to recommend that the Secretary certify that all the U.N.
reforms requirements have been met.
Question. How close is the State Department to certifying the
reforms in U.N. agencies that are preconditions for payment of the last
installment of U.S. funds?
Answer. All of the relevant agencies (U.N., World Health
Organization, International Labor Organization, and Food and
Agriculture Organization) have made significant progress toward fully
implementing the required reforms outlined in the ``Helms-Biden''
legislation, and we continue to work closely with them. We hope that,
if the pending State Department Authorization bill is passed with the
requested amendments to the Helms-Biden legislation, we will be in a
position to certify this summer that the agencies have met the
conditions for payment of the last installment (Tranche III).
______
Questions Submitted by Senator Ben Nighthorse Campbell
corruption/international crime
Question. Over the past several years the Helsinki Commission,
which I chair, has paid increasing attention to the multidimensional
threats posed by corruption and international crime. There is an
obvious nexus between corruption, international crime and terrorism. I
have proposed that a special meeting of Ministers of Justice be
convened to explore ways to enhance cooperation among the 55 countries
of the Organization for Security and Cooperation in Europe (OSCE).
Would you support such an initiative and what are some areas that
should be given priority attention?
Answer. The United States is a strong advocate of OSCE efforts to
combat corruption. Corruption distorts the operation of free markets,
impairs economic stability and growth, jeopardizes privatization and
economic restructuring, impedes foreign investment, and undermines free
and fair competition. Corruption is an impediment to development and
democracy. Although we do not see a need for a Justice of Ministers
meeting at this time, we will keep your suggestion under review and be
prepared to reconsider it if circumstances warrant.
Combating corruption and the international crime it facilitates in
the OSCE region remains a top priority for the United States. The OSCE
has implemented several programs aimed at combating corruption and
supporting good governance. For example, in December 2001, the OSCE and
Department of State Funded ABA/CEELI (American Bar Association Central
and Eastern European Law Initiative) worked together to support
Montenegro's Anti-Corruption Commission to draft a public official
conflicts of interest law. OSCE and ABA/CEELI also worked with the
Commission to initiate a public forum process to engage civil society
in the development of this law. We continue to look for new
opportunities to expand these good governance programs throughout the
region. We support the OSCE's current arrangement to combat crime and
corruption and encourage rapid implementation of OSCE efforts against
terrorism.
southeast european cooperative initiative
Question. The Southeast European Cooperative Initiative--SECI--was
conceived and promoted by the United States in an effort to foster
regional cooperation, among twelve countries from the Balkan region,
through task forces on narcotics, human trafficking, commercial fraud
and other criminal activities affecting American interests. I
understand that the United States is providing important leadership in
the SECI initiative.
Please describe some of the Department's ongoing work within the
SECI framework and the potential benefits derived from U.S.
participation.
Answer. The Department of State has provided diplomatic and
material support (through the SEED program) for the formation of the
SECI Center to Combat Transnational Crime in Bucharest, Romania. In the
wake of September 11, the SECI Center established a working group on
anti-terrorism.
We very much support the efforts of the countries of Southeast
Europe to work together to combat criminal activity and believe that
the Center, in its first full year of activity, has made important
contributions to combating criminal activity across national borders.
U.S. assistance to the Center began with assistance for the drafting of
administrative and legal protocols necessary to the establishment of
the Center. The United States provided computers and technical advisors
from the FBI, DEA, USCS, and the INS to work with the Center in the
creation of national task forces coordinating with the SECI Regional
Center in Bucharest. These task forces target specific criminal
networks, including those that smuggle cigarettes, which cause a
significant loss of revenue for the countries of the region. For the
past several months, the Department has supported these task forces by
having U.S. officers provide on-site advice and guidance in Albania,
Macedonia, Bulgaria, Bosnia, Serbia, and Romania.
The SECI Center to Combat Transnational Crime has initially
concentrated its work in three areas: customs fraud, trafficking in
human beings, and narcotics smuggling. Due to information exchanges
through the Center and coordination on cases through its task forces,
there have been recent seizures of over one-half million cartons of
counterfeit cigarettes by the commercial fraud task force; the
narcotics task force has not only seized thousands of pounds of
narcotics, but there have been successful cross-border prosecutions and
several arrests and charges filed against businessmen and government
officials. The human trafficking effort has created awareness of the
problem in each of the SECI countries, which has resulted in numerous
arrests of significant organized crime figures and government officials
engaged in the sale of humans for sexual and labor exploitation.
human rights in central asia
Question. Some observers have suggested that the human rights
situation in some countries, such as Turkmenistan is so bad that they
should be suspended from the OSCE, the way Yugoslavia was in 1992.
Is there a point where the OSCE no longer plays a constructive role
and, on the contrary, inadvertently lends a veneer of legitimacy to a
brutal regime?
How do you plan to address the deteriorating respect for human
rights in Central Asia, especially in light of the reluctance of the
Central Asian governments to cooperate with the OSCE on these issues?
Answer. The OSCE has not relaxed its human rights expectations for
the Central Asian republics; through its missions in Central Asia and
the Permanent Council in Vienna, the OSCE continues to raise the issue
of ongoing human rights abuses and lack of democratic institutions in
the region. It is therefore important for the OSCE to continue to
engage these countries. The process of having OSCE member states remind
each other of their commitments, complemented by recommendations for
improvements, is essential to building a more democratic, prosperous,
and secure future for the region.
In the case of Turkmenistan and several other Central Asian states,
the OSCE is able, through engagement in the region, to improve
faltering human rights and foster democratic development, while at the
same time addressing urgent security, environmental and economic needs.
Serious human rights abuses exist in Turkmenistan; however, they are
not the kind of gross abuses (including widespread torture and
genocide) that prompted the removal of Serbia from the OSCE. Our human
rights and religious freedom reports provide a detailed picture of the
situation in Turkmenistan. The OSCE continues to be an important forum
to discuss human rights issues and promote steps toward democracy in
Central Asia.
We do believe that suspending participation in the OSCE should
always remain an option should a government commit egregious human
rights violations such as those of the former regime in Yugoslavia.
However, this option should be weighed carefully against the
opportunity costs of disengaging a country from the OSCE process.
The deepened United States-Central Asia security relationship does
not mean that we will cease our efforts to impress upon the governments
of these countries that Central Asia's long-term stability and security
depends on economic and political reform, particularly in the areas of
combating corruption and respecting the rule of law and basic human
rights. Rather, it offers opportunities for a deeper, more effective
dialogue. Even modest reforms in these areas can build the foundation
for more significant change in the long run. We continue to raise human
rights issues at the highest levels of these governments and are in the
process of expanding programming that promotes the basic elements of
democracy and a vibrant civil society.
russia: osce
Question. Russia, along with a small number of other former Soviet
states, have complained that the OSCE is ``unbalanced,'' placing too
great an emphasis on the human dimension. These countries have also
complained that there is too much attention focused on formerly
communist countries.
Do you think there is any merit to this concern?
Is the United States working to encourage Moscow to seek a
political solution to the conflict in Chechnya?
Answer. Respect for human rights, democracy, and the rule of law is
an integral element of the OSCE and is fundamental to establishing
enduring security across the OSCE region. We will not weaken support
for human dimension matters, but we also will not neglect the economic
and political military dimensions that are part of OSCE's comprehensive
approach to security. We strongly support the OSCE, and we have
discussed Russian concerns about the organization. However, we do not
want to impinge on OSCE's flexibility, its consensus-based approach,
its commitment to human rights, or other principles laid out in the
Founding Document. We will continue to engage with the Russian
Federation on the importance of all dimensions to ensuring stability
and countering trans-border threats to security. U.S. Ambassador to the
OSCE Minikes will meet with senior Russian officials in Moscow on March
14-15 to discuss how we can cooperate more effectively. We will follow
up on these discussions in Vienna.
Regarding the conflict in Chechnya, our objectives have not changed
since September 11. We continue to encourage Moscow to seek a political
settlement, provide accountability for human rights violations and
atrocities, and allow access for humanitarian assistance groups. We, in
the Department, along with other senior U.S. officials, regularly
engage the leaders of the Russian Government on these issues. While we
appreciate Russian assistance in the campaign against terrorism and
have noted some elements in Chechnya that have ties to international
terrorist organizations, we have urged the Russian Government to take
the necessary steps to address the situation in Chechnya and bring
about an end to the conflict.
trafficking in human beings
Question. Is the Department incorporating special programs on
trafficking into its international law enforcement training?
Answer. We are finalizing a new anti-trafficking in persons
curriculum that will be targeted at mid-level police officers. We
currently support a specific course on trafficking in women and
children targeted at prosecutors and investigators. Trafficking in
persons is also incorporated into our violence against women and
children, and immigration training programs for mid-level law
enforcement officers, prosecutors, and immigration officials. These
various programs are implemented by the Department of Justice, Federal
Bureau of Investigations, U.S. Immigration and Naturalization Service,
and U.S. Customs Service.
Question. Does the Department have the resources needed to combat
this growing phenomenon that targets women and children, including the
estimated 50,000 who have been trafficked into the United States?
Answer. We appreciate continued congressional support to ensure
that we are able to combat effectively trafficking in persons at the
international level. The Office to Monitor and Combat Trafficking in
Persons recently established a process with the regional and functional
bureaus to review all anti-trafficking in persons proposals submitted
to the State Department. We are currently reviewing these proposals to
determine whether we have sufficient resources to fund those requests
identified for further consideration.
policing
Question. Is the Department considering supporting efforts to
expand OSCE police training to other OSCE countries?
Answer. The United States has supported OSCE's efforts to expand
police training to other OSCE countries, on a case-by-case basis. The
Kosovo Police Service School is proving to be an exportable model for
efforts to train new ethnic minority, primarily ethnic Albanian, police
recruits in Southern Serbia and Macedonia. The Framework Agreement,
signed on August 13, 2001 in Macedonia, committed the parties to
ensuring that the police services will generally reflect the
composition and distribution of the population of Macedonia by 2004.
The Framework Agreement called for the hiring and training of 1,000 new
minority police officers by July 2003. To this end, the OSCE, the
European Union, and the United States were invited by the parties to
increase training and assistance programs for police. As of March 2002,
107 minority recruits have graduated training. Under a similar model in
Southern Serbia, OSCE has trained Serb, Roma, and Albanian police
cadets in southern Serbia to deploy in the villages in the Presevo
Valley region.
subcommittee recess
Senator Hollings. The subcommittee will be in recess until
10:30 tomorrow morning with the Secretary of Commerce.
[Whereupon, at 11:49 a.m., Tuesday, March 12, the
subcommittee was recessed, to reconvene at 10:30 a.m.,
Wednesday, March 13.]
DEPARTMENTS OF COMMERCE, JUSTICE, AND STATE, THE JUDICIARY, AND RELATED
AGENCIES APPROPRIATIONS FOR FISCAL YEAR 2003
----------
WEDNESDAY, MARCH 13, 2002
U.S. Senate,
Subcommittee of the Committee on Appropriations,
Washington, DC.
The subcommittee met at 10:28 a.m., in room SD-116, Dirksen
Senate Office Building, Hon. Ernest F. Hollings (chairman)
presiding.
Present: Senators Hollings, Leahy, Kohl, Murray, Reed,
Gregg, Stevens, and Domenici.
DEPARTMENT OF COMMERCE
Office of the Secretary
STATEMENT OF HON. DONALD L. EVANS, SECRETARY OF
COMMERCE
prepared statement
Senator Hollings. We welcome you. The committee will please
come to order. We welcome Secretary Evans and we have your
statement in its entirety. It is made a part of the record and
you can highlight it as you wish.
[The statement follows:]
Prepared Statement of Donald L. Evans
Thank you for the opportunity to appear before you to present the
Department of Commerce's fiscal year 2003 budget request. Our focus,
first and foremost, is funding the core mission of the Department and
its bureaus, but as you all know, the tragic events of September 11th
forever changed our Nation. The Administration faces even greater
challenges now than when I came before you to present the fiscal year
2002 budget. The President is committed to fighting and winning the war
on terrorism, while at the same time harnessing the resources of the
federal government to protect the lives and safety of all Americans. I
hope to fully utilize the resources of the Department of Commerce to
not only provide for the physical security of the Nation, but also to
work with other agencies and the private sector to promote economic
security. The President's budget request proposes increases only in
those areas that are critical to strengthening the core services and
products provided by the Department of Commerce.
Our fiscal year 2003 budget request focuses on themes outlined by
the President in his State of the Union address. Our total request of
$5.3 billion represents a $107 million increase over fiscal year 2002.
In addition to adjustments-to-base, our request supports the
Administration's homeland security and economic revitalization
priorities and continues our commitment to fund important work of the
Department to provide infrastructure for technological innovation and
to observe and manage the Nation's oceanic and atmospheric environment.
homeland security
The fiscal year 2003 President's Budget includes more than $50
million in increases for new homeland defense activities in the
Department of Commerce. Included in this increase is $20 million for
homeland security and critical infrastructure protection activities at
the Bureau of Export Administration (BXA). BXA seeks to advance U.S.
national security and foreign policy interests by regulating exports of
critical goods and technologies that could be used to damage those
interests, while furthering the growth of legitimate U.S. exporters to
maintain our economic leadership. Budget increases in fiscal year 2003
strengthen BXA activities that thwart the global spread of dual-use
goods and technologies that can be used in biological, chemical, and
nuclear weapons of mass destruction. To reduce the risk of
proliferation, beginning in fiscal year 2003, BXA will devote $5.4
million of this amount to post attaches in several countries abroad
(including China, Russia, the United Arab Emirates, and Egypt); send
additional export enforcement agents overseas on temporary assignments;
and open two new field offices in the critical port cities of Seattle
and Houston.
Homeland security investments will also be made in the National
Oceanic and Atmospheric Administration (NOAA), the Technology
Administration (TA), and in central departmental management offices.
NOAA's request includes a $23.1 million increase to enhance response
capabilities and improve internal safety and preparedness by addressing
vulnerabilities in weather and satellite systems and provide important
hydrographic survey data around key ports in the Gulf of Mexico. The
National Institute of Standards and Technology (NIST), part of TA, will
continue to devote base resources to fund scientific research on
chemical, biological, radiological, nuclear, and explosive threat
detection and remediation; information security; air transport safety;
and the safety of building structures and occupants. An increase of $5
million will support the critical and urgent needs in structural fire
protection and operational guidance for first responders and provide
advanced measurements and standards to accelerate critical technologies
that enhance the effective detection, prevention, response, and
recovery management of natural and manmade disasters. A $2 million
increase is requested for the Department Chief Information Officer to
insure the protection of our nation's critical economic and
environmental information systems.
economic information and framework
The Commerce budget proposes to strengthen core economic activities
in areas such as statistical programs and international trade
compliance. The Bureau of Economic Analysis (BEA) supplies the nation's
key economic statistics, including gross domestic product (GDP), which
are crucial ingredients for business and government decision making. A
program increase of $11 million will enable BEA to improve the
statistical processing systems for its economic data, accelerate the
release of major economic estimates, and incorporate new international
economic data classification systems. Also, the Department has begun
providing new quarterly estimates for the tourism industry and more
accurate GDP estimates for ``new economy'' products such as local area
networks.
This budget includes a $247 million increase for the Bureau of the
Census to significantly improve the breadth and quality of the
information it collects and provides to the country by producing better
measures of trade statistics, improved measurement of services in the
new economy, and a new measurement of the impact of electronic business
on the economy. The Department will also undertake an effort to
significantly reengineer the 2010 Census. As a major part of this work,
Census will launch the American Community Survey, which will provide
detailed demographic data on an annual basis, rather than just every
ten years. During fiscal year 2003, an increase of $33.7 million will
fully fund data collection for two other cyclical censuses, the
Economic Census and the Census of Governments.
The International Trade Administration (ITA) is responsible for
assisting the growth of export businesses, enforcing U.S. trade laws
and agreements, and improving access to overseas markets by identifying
and pressing for the removal of trade barriers. Among other program
changes, the fiscal year 2003 budget proposes a program increase of $13
million for trade compliance efforts in the areas of antidumping and
countervailing duty activities, multilateral trade negotiations, and
foreign trade barrier analysis. This increase includes $2.3 million to
organize a domestic education campaign for U.S. firms on compliance
issues and to place additional staff overseas in major markets with
compliance problems. The President's Request also seeks an additional
$2.6 million to open new offices in Senegal, Botswana, Tanzania,
Mozambique, and Cameroon; reopen the Algeria office; and increase
staffing in Ghana.
A reduction of $16 million for the Economic Development
Administration (EDA) will bring resources in line with congressionally
authorized levels and program needs. EDA helps communities across the
nation create economic opportunity by promoting a favorable business
environment to attract private capital investments and high-wage jobs,
principally through infrastructure investments and capacity building.
While the fiscal year 2003 budget streamlines EDA programs, an increase
of $2.5 million is requested for Trade Adjustment Assistance to firms,
which provide technical assistance to U.S. manufacturers injured by
increased imports. The Administration wants to ensure that sufficient
funds are available through the Trade Adjustment Assistance program to
help businesses that have been adversely affected by international
trade.
The Minority Business Development Administration (MBDA) is
transitioning from an administrative agency to an entrepreneurial
organization. MBDA is reorganizing, re-training current employees, and
hiring expertise driven by entrepreneurship and innovation. MBDA's
Reorganization Plan will reduce the number of supervisory layers, the
time it takes to make decisions, and the distance between decision-
makers and citizens. MBDA will provide minority business development
services, through its Minority Business Information Portal and local
Business Development Centers.
providing infrastructure for technological innovation
The fiscal year 2003 budget strengthens key Commerce programs that
provide the infrastructure that enables U.S. businesses to maintain
their technological edge in world markets. Increased funding is
requested for the laboratories of TA/NIST to work with industry to
develop and promote measurement standards that support technological
innovation. TA/NIST laboratories specialize in electronics,
manufacturing engineering, chemical science, physics, materials
science, building and fire research, and information technology. The
fiscal year 2003 budget proposes an increase of $50 million to allow
the Advanced Measurement Laboratory, a new facility designed to meet
state-of-the-art research requirements, to become fully operational and
fund relocation expenses. The budget also includes an increase of $17
million for critically needed structural improvements at TA/NIST's
Boulder, Colorado, facilities.
Consistent with the Administration's emphasis on shifting resources
to reflect changing needs, the fiscal year 2003 budget also proposes to
significantly reduce federal funding for the Manufacturing Extension
Partnership (MEP) program. MEP's original legislative design called for
a phase-out of federal funds to each center after six years, with the
goal of making each center self-sufficient. The fiscal year 2003 budget
would return the program to its original design. The budget also
proposes funding the Advanced Technology Program (ATP) at $107 million
and proposes reforms designed to improve the program. These reforms
would increase university participation, limit large companies'
participation, and institute a cost recoupment element.
The budget strengthens the spectrum management capabilities of the
National Telecommunications and Information Administration by proposing
$3.3 million to begin the process of spectrum management reform and to
upgrade its radio quiet zone test facility in Colorado. The budget also
proposes to terminate the Technology Opportunities Program. With the
expansion of the Internet and related technologies into all sectors of
society, the Administration believes federal subsidies are no longer
justified to prove the usefulness of such technologies.
The fiscal year 2003 budget proposes an increase of $237 million
for the U.S. Patent and Trademark Office (USPTO) to address the
agency's growing workload in the area of intellectual property. This
budget increase represents a 21 percent change from last year's level
and will allow the USPTO to initiate a five-year plan to enhance the
quality of products and services and improve timeliness of patent
application processing.
observing and managing the nation's oceanic and atmospheric environment
And, finally the President's budget proposes a total budget request
of $3.2 billion to strengthen key programs of the Department's largest
and most diverse bureau, the National Oceanic and Atmospheric
Administration (NOAA). This includes an addition of $84.3 million to
improve extreme weather warnings and forecasts. The continuity of
NOAA's satellites and severe weather forecasts is critical to meeting
our 21st Century mission, and increases are proposed for satellite data
and systems, weather research and supercomputing, and improved flood
and river forecasts. An increase of $36.2 million is requested to
improve NOAA's climate services, of which $18 million is for the
Administration's Climate Change Research Initiative (CCRI), a multi-
agency effort to study areas of scientific uncertainty and to identify
priority areas where investments can make a difference. The increase
will allow NOAA to advance climate-modeling capabilities at the
Geophysical Fluid Dynamics Laboratory; to develop a climate observing
system; and to create partnerships to measure pollutant emissions,
aerosols, and ozone.
An increase of $90.9 million is requested to modernize NOAA's
fisheries management to improve fisheries management in areas such as
stock assessments, to procure a second Fisheries Research Vessel, to
build a national fishery observer program, to better fulfill statutory
and regulatory authorities, and to implement the National Environmental
Policy Act (NEPA). As part of the Administration's energy policy
initiative for fiscal year 2003, NOAA requests an increase of $8.7
million for an energy initiative; of which $6.1 million is for an
energy pilot program to provide more accurate temperature and
precipitation forecasts and additional river forecast products to help
the energy sector improve electrical load forecasting and hydropower
management. Based on industry estimates, this investment will result in
savings of $10 to $30 million annually in the pilot region after the
second year of the demonstration. Expanding the pilot nation-wide could
generate savings of over $1 billion per year. Funding for the energy
initiative will help to establish and implement a streamlined energy
permit review process (executed by the National Marine Fisheries
Service) and institute energy costs savings measures at NOAA
facilities.
The Administration also proposes to transfer the National Sea Grant
College program from NOAA to the National Science Foundation (NSF) in
fiscal year 2003. Funding of $57 million is requested by NSF for this
program. However, NOAA's budget continues to have primary
responsibility for key ocean and coastal programs, including funding
for ocean exploration, coastal zone management, coral reef, and marine
sanctuaries programs.
NOAH also requests an increase of $52.9 million to invest in its
people and infrastructure. Investments in scientific and technical
capacity, as well as facilities and equipment, are essential for NOAA
to have a well-functioning agency. The budget request includes funding
for essential facilities upgrades, maintenance of aircraft and ships,
recruitment and training of NOAA Corps officers, and security of
information technology systems.
As I previously stated, this budget request for the Department of
Commerce has been carefully crafted to focus on the core functions the
American people rely on from this agency. We will focus on promoting
innovation, entrepreneurship and exports, while spreading opportunity
to all Americans and ensuring responsible stewardship of our natural
resources.
OPENING REMARKS BY SECRETARY EVANS
Secretary Evans. Thank you, Mr. Chairman. Are you ready for
me to proceed?
Senator Hollings. Please do.
Secretary Evans. I will be happy to. Let me just highlight
my written statement, and I would like to do that by saying to
you, Mr. Chairman and Senator Gregg and other members of the
committee that I am pleased to be here to present the
President's fiscal year 2003 budget request for my Department,
the Department of Commerce. This budget was carefully crafted
and it reflects the core assumptions of the Commerce
Department. These include promoting innovation,
entrepreneurship and exports, and increasing knowledge and good
stewardship of the natural environment.
It also reflects the urgent needs of these challenging
times. It targets the diverse components of the Department
toward three great national goals: Winning the war on
terrorism, protecting our homeland, and strengthening our
economic security.
For example, additional funds are requested for the Bureau
of Export Administration to help halt the spread of weapons of
mass destruction and combat terrorism. We are also proposing an
increase for the National Institute of Standards and
Technology. These world-class labs have more than 75 projects
underway that support law enforcement, military operations,
emergency service personnel, information security, and homeland
security. NIST also will continue to research new ways to
detect potential threats posed by chemical, biological,
radiological, nuclear and explosive agents.
On the economic security front, we are asking for more
funds for the U.S. Patent and Trademark Office. America's
competitiveness depends on innovation. We need to be able to
process patent applications more quickly. To continue improving
tracking our Nation's key economic statistics, including the
gross domestic product, we are also asking for additional funds
for the Bureau of Economic Analysis.
As you know, business and Government decision makers need
accurate and timely information, and America's exporters need
to know they have a level playing field, so we are proposing an
increase for our International Trade Administration to
strengthen trade compliance efforts.
To help communities, businesses, and workers transition to
the 21st century economy, our 2003 budget also reflects
streamlined Economic Development Administration programs,
including additional monies for trade adjustment assistance.
Our NOAA budget also demonstrates the Department's
commitment to homeland and economic security. Predicting the
weather and managing our ocean resources are critical services
that further public safety and support economic activity. We
are requesting additional funds for several important projects,
including fixing vulnerabilities in weather and satellite
systems so we can always depend on them; a research vessel to
enable us to do a better job of monitoring fish stocks; survey
data to enhance the safety of mariners, passengers, and the
national economy. About 95 percent of America's non-NAFTA trade
moves through the marine transportation system. Any disruption
in the flow of goods would immediately effect our economy. And
also, modernizing NOAA's fisheries to rebuild stocks and
protect endangered species. Finally, climate change research to
identify areas where can make a difference.
And finally, let me say this Commerce budget reflects a
careful, professional analysis of all Department programs and
sets priorities for our resources in a post-9/11 world. I look
forward to hearing your comments, Mr. Chairman and others, and
I will be pleased to answer any questions that you might have,
Mr. Chairman.
ADVANCED TECHNOLOGY PROGRAM
Senator Hollings. Very good. You talked about increasing
the National Institute of Standards and Technology and yet you
literally choke off, so to speak, the Advanced Technology
Program. We had the funding level for this program at one time
up to over $110 million. It has been a political difference.
The distinguished former chairman and I compromised at $60
million, but you are not even expending the $60 million. What
gets me is that is sort of benign neglect. That is what
Moynihan used to say about the black population when he was
working for Nixon.
In other words, if you do not even ask for and solicit
during the first and second quarters, like has occurred already
this fiscal year, we are into the third quarter and no
solicitation at all for the grants, if you do not solicit in
the first and second quarters, obviously, you are not going to
be prepared to award in the third and fourth. What do you have
to say about that?
Secretary Evans. Well, Mr. Chairman, I have to say we were
behind and we should catch up. I would like to think that we
have demonstrated our commitment to this important program and
the 2003 budget by requesting an amount of $108 million in our
2003 budget as opposed to our request in our 2002 budget of $13
million.
Senator Hollings. Yes.
Secretary Evans. As I have mentioned before, I have felt
like there were important reforms we should at least offer or
recommend. Those reforms deal with letting universities lead
these important projects. That had not been provided before. I
think a good part of these projects belong on university
campuses led by universities and so we have offered that
reform. We are also offering the reform that the largest
corporations will not lead these projects. It will restrict
them to being partners with smaller firms.
And then finally, there are other pieces of the reforms. I
think the other one of significance is, in fact, a specific
project is indeed a success, that the American people should
share in some of that success being delivered back to the
United States Government in the form of a royalty or whatever
it might be called, but that is only in the instance of a
success. We could say that the taxpayers' money went to invest
in a project that turned out to be successful, a commercial
success, and if it is a commercial success, I believe that the
American taxpayer at least ought to have the opportunity to
share in part of that.
In a way, quite frankly, Mr. Chairman, I thought it could
well be a way to fund the program on a long-term basis, but
that would take some time. It is not going to happen in year
one or year two, but if you have a system like that where part
of the successes went back to the program it would fund the
program over a long period of time.
So, yes, we are behind in our awards of 2002. We should do
everything we can to catch up and accelerate that and I think
the 2003 budget demonstrates a good faith effort on our part to
continue to look for ways to strengthen the program and
maintain funding.
Senator Hollings. One more time, by way of emphasis, this
started almost 20 years ago down in your native Texas, in
Houston, and has developed the superconductor. I think there
were three of them there at Houston that won the Nobel Prizes,
but the Japanese won the profits. They have correlated some 21
entities and started producing it. We looked and said, wait a
minute. All of this research, we begged, begged, begged the
Government for research and still are, and fortunately so.
However, we do not commercialize it, we do not realize in the
globalization. I am a lot like Al Gore. I invented
globalization.
Secretary Evans. Congratulations.
Senator Hollings. I tried my best and got in a plane back
in 1960 and we went to all the countries in Latin America, all
the ones in Europe. I have got 118 German industries now.
But on that particular score, we really wanted to try to be
helpful and immediately the charge was, that this was going to
be pork and you all are just trying to give that money to
industry and get some votes and what have you. Senator
Danforth, then chairman, and I reconciled all of this and the
one particular requirement of reconciliation was that I could
not call up and get grants. The Secretary could not get the
grants. The President could not get them. It was on a
competitive basis after being vetted by the National Academy of
Engineering.
Now, I understand Deputy Secretary Bodman is leaning
towards trying to make those awards himself. Have you
understood this to be the case?
Secretary Evans. No, I have not, Mr. Chairman.
MANUFACTURING EXTENSION PARTNERSHIP PROGRAM
Senator Hollings. Well, watch him. We have got the
Manufacturing Extension Partnership Program. Now, we worry
about that. You eliminate $95 million and that really
revitalizes the economy and helps small business and everything
else like that. They cannot buy the consultants. All big
industry, even big government now, has consultants.
I will never forget sometime back, I went down to one
lumber company and they had not only rearranged their entire
flow of materials to come in for increased productivity, but
their ISO, their International Standards Organization. You and
I talk exports, exports, exports, make them comply with
exports, and now we cut out the $95 million. What about that?
Secretary Evans. Well, Mr. Chairman, it is a period of very
difficult choices, I would say that to you.
Senator Hollings. This is the easy one, but we've got some
difficult ones.
Secretary Evans. Right.
Senator Hollings. Have you ever heard of abortion? I have
been debating that for 35 years. We still have it, and I can go
on and on. I can give you some real hard choices, but this one
works.
Secretary Evans. Well----
Senator Hollings. And everybody is happy with it except
maybe Mr. Daniels at OMB, from what I understand.
Secretary Evans. No. I guess what I would say, Mr.
Chairman, is that I know when the program was founded in 1988,
the plan was to allow this Federal support to be some seed
money to help start up these centers across America. The
initial plan was for the Federal funding to match State and
local and private funding to get these centers up and going.
After a 6-year period, then the centers, if they are successful
centers, would move forward on their own without Federal
support.
So we think that is a reasonable model. I have looked at
the program and have seen the many successes across America and
do believe that there is a Federal role to play in helping
start these centers across America. I think if they show the
success and they are delivering the product, the results and
the performance, that after a period of time, then they ought
to be able to stand on their own through local support, State
support, private support, and collection of fees, and maybe
even again just a concept of you do not pay anything on the
front end, but yes, indeed, if you see some efficiencies from
the process or some results from this process, maybe there is a
fee that you return back to the program after you receive the
service.
We do have underway an effort to look at just that concept.
Is there a way to privatize this or to bring more private
funding into it?
So you are right. We have cut it back to some $13 million.
That is continuing funding of a couple of these centers that
have not yet been in business for 6 years and to fund central
administration and coordination of the program and the
development and dissemination of products and services to MEP
centers. The budget proposes that we would eliminate funding of
those programs that have been underway and are successful for
more than 6 years.
Senator Hollings. Well, if the proof of the pudding is in
the eating, we have proven the success of it. Sometimes we
verbalize it that way. Sometimes we say it is a pilot program
to see whether it works, but it is working and still very, very
much needed, and those who are working ought really to be
supported because the States are literally strapped. We are
$190 billion in the red. No State can get even $190,000 in the
red, extending ports and slap you down and then you cannot
finance your highways, your schools, and all of the States are
way behind. They are into the technical training and everything
else of that kind in order to attract the industry and develop
it.
They are into really a vigorous competition. When the
Mercedes went down to Alabama, we had almost a $100 million
package with different things that the State was willing to do,
but Alabama put in $300 and some million. Mercedes required the
purchase of some 1,000, 2,000 Mercedes school buses and that
kind of thing.
My point is that the States are in there and really sort of
playing catch up where we can at the Federal level and really
helping, and this is one program that really works.
I love the attendance here. Let me ask just a couple of
other questions. You emphasized the university participation,
Mr. Secretary. On NOAA's Sea Grant program, they want to put it
in the National Science Foundation with no State matching
grants. There will be no university or extension program or
outreach. There will be no university partnerships. You cannot
go in two different directions at the same time. Get whoever
who made the sea grant decision and give him weekend leave or,
give him the part, the letter. You know what I mean; get
somebody else.
I want them to follow the Evans policy.
Secretary Evans. Well, as you look across big government,
you are always looking for ways that make it more efficient and
more effective and the decision was made that the program would
be more effective and the National Science Foundation could
more effectively deliver this program. So let us take a number
of the science programs that are across Government and
consolidate them into the National Science Foundation. The Sea
Grant program was one of those that they decided to move over
where it is. NOAA's research is primarily applied research.
NATIONAL TELECOMMUNICATIONS AND INFORMATION ADMINISTRATION
Senator Hollings. NTIA, National Telecommunications and
Information Administration, Larry Irving--I do not know who is
over there now--did an outstanding job with small communities,
bringing them up to speed. They do not have the wherewithal to
get their health care, communications, and their education,
public safety, social services, and everything out of a
moderate $16 million, and the program is eliminated. It is
working and if we do not help those rural areas, I know our
Vice President one day went over, got enthused about it, and
said that the Internet was, what did he call it, a civil right?
Yes, a civil right. I told him I was still trying to get
toilets in South Carolina, much less the Internet.
Toilets would be a civil right if that is the way it was.
We could not finance it. He had the program up to $45, $50
million, but this is just a modest $16 million. What is your
comment on this?
Secretary Evans. Well, I agree with you, chairman, it is a
modest $16 million. It does not mean we really could get the
job done and will not get the job done and you need to get the
job done. It is too important not to. That is why in the
President's budget he put $700 million in the education budget
that is specifically focused on this very issue. It is why he
put some $600 million in the Department of Justice budget
focused on this very issue, to get the kinds of technology to
these various law enforcement agencies and fire departments, et
cetera, in small communities across this country.
Sixteen million dollars or $20 million, which has kind of
been the average funding at TOPs for the last 10 years, will
not get it done. It was started at a time when very few people
were on the Internet. Computers were not in very many schools
yet across the country. In the last 10 years, there has been an
explosion of computers in schools, of computers in homes of
Americans. We released a report called ``A Nation Online,'' and
it shows that 54 percent of the people in America now are
connected to the Internet. It shows that 94 percent of the
children 5 to 17 years old have access to computers.
So it is happening in a big way out there and I would say
the TOPs program just does not do the job. It did the job in
the beginning. The initial purpose was to bring awareness to
communities as to what technology could do for them in
developing their communities and providing information, and now
it is just a much, much bigger issue than that.
I know in the President's budget, also, there is $100
million in the agriculture budget that is directed at getting
technology, computers, Internet, to rural America, which is
critically important. Listen, this is a huge issue and TOPs was
a good program in the early 1990s to begin to make these small
communities more aware of it, but we have moved way past TOPs.
This is a serious issue that requires serious commitment and I
think the President's budget clearly demonstrates that serious
commitment of over $1.5 billion that is focused on this issue.
The other thing I would add, chairman, is that in the last
4 or 5 years, the private sector has moved into this in a big,
big way. There are all kinds of private foundations now set up
all across America that have centers that focus on this issue.
I went to one myself called Oaktech, which is in a little Boys
and Girls Club here in Washington, DC, where you have the
children coming into the Boys and Girls Club and learning the
computers and how they work and that is happening all across
America.
So while the TOPs, I thought probably did serve a good
purpose in the beginning, I think we have moved way, way past
TOP.
Senator Hollings. Senator Gregg.
ADVANCED TECHNOLOGY PROGRAM
Senator Gregg. Thank you, Mr. Chairman. We have been
through the ATP discussion so many times. Let me simply say
that I think we got a little too generous in the accounts for
ATP, but we have had that discussion before.
SEA GRANT
A couple questions. I want to join with the chairman's
concern about Sea Grant. I have talked to you privately about
this. I think this is one of those ideas that comes from
somebody who knows nothing about what NOAA does, maybe a little
bit about what NSF does, but does not appreciate the
significance of sea grant to the NOAA program. NOAA may be
applied, but the fact that they have sea grant gives them the
access to this basic research.
I used to be on the committee that had jurisdiction over
NSF--in fact, I still am, I guess, on the authorizing side--but
the NSF does not even have a directorate for oceans. NOAA's
name contains the word oceans. The mood over there is to move
departments around with nothing more than, I think, academic
reasons, not substantive reasons. So I would hope that this
would be put in Circular 86 at some point. Certainly, this
committee will strongly oppose this effort.
I have a couple of questions in addition to the chairman's.
We have heard that those who tried to get access to the
material from the World Trade Center site in order to conduct
structural assignments encountered resistance from FEMA. NIST
has the primary responsibility in this area. FEMA basically
refused to grant access to the material, and even though they
pleaded aggressively, they were not able to get it.
I am interested to know what the status of that unfortunate
turf war is and how NIST is going to pursue the structural
review it has been tasked with.
NATIONAL INSTITUTE OF STANDARDS AND TECHNOLOGY
Secretary Evans. Well, Senator, I continue to be briefed on
this and I cannot tell you that I know the absolute answer to
that question yet, but I do know that, unfortunately, much of
this steel has been recycled and is not available. We have been
very disappointed in the number of samples so far that we have
been able to actually get our hands on.
I am not sure of the details of how the materials were
handled and who is responsible but we do certainly have some
steel samples that are available to NIST. The available samples
should be very helpful in an investigation.
Senator Gregg. Only a systematic failure could allow this
to happen, in the consequence management area, which this
committee has spent a lot of time focusing on. It would seem
that there should be in place a structure which allows an
agency like NIST, which has a legitimate role in reviewing the
issue of how these buildings came down so that we could put out
specs for architectural design and avoid this in the future,
that they should have been incorporated. They certainly should
not have been excluded by one of the other agencies that had
primary jurisdiction over consequence management.
I am wondering, one, how systematically this broke down,
and two, what is the system that is being put in place so that
it hopefully will never happen again, I mean, a structure to
resolve this----
Secretary Evans. Right. Senator, I am going to have to get
back to you with the specific answer, and indeed I will, of
course, as to exactly when it broke down and why it broke down
and also respond to your request, which is the right one, which
is what are we going to do to make sure it does not happen
again. I am not aware of, right now, exactly what the time line
was.
We may have been denied access, or if, in fact, we even
were, we may have requested late and that is just something
that I am going to have to take a hard look at and I will
certainly get back to you.
[The information follows:]
NIST Activities Since September 11th
FEMA and the American Society of Civil Engineers made trips
to New York City in October 2001, and made arrangements to set
aside some of the steel for the investigation. Although some of
it was subsequently misplaced, most of the marked samples have
now been sent to the NIST site in Gaithersburg, Maryland. NIST
and FEMA are currently working together to find a way to
initiate the investigation.
Of the steel that was marked for transport to NIST, most
was later brought to NIST. However, some of it did not make it
here and is believed to have been included with the steel sent
for recycling by mistake.
NIST and FEMA signed a Memorandum of Understanding (MOU) on
March 29, 2002, that establishes a framework for NIST to serve
as a research resource for FEMA in the areas of fire, disaster
prevention, and homeland security. As part of this MOU, FEMA
and NIST will establish a quick deployment mechanism that may
be activated when both the Administrator of FEMA and the
Director of NIST determine a need for a NIST response to
extreme events.
NIST has been working since the events of September 11 as
part of the FEMA-funded Building Performance Assessment Team
(BPAT) study. NIST was not denied access to the site and/or
relevant information and was not late in making requests to be
involved. As a result of the recently-signed MOU between FEMA
and NIST described above, a framework of cooperation has now
been established for any future disasters.
BUREAU OF EXPORT ADMINISTRATION
Senator Gregg. Another issue that involves preparation for
terrorism, the Bureau of Export Administration, they are asking
for additional attaches overseas.
Secretary Evans. Correct.
Senator Gregg. I think this committee, or at least I, was
under the impression that the State Department Bureau of
Verification--I think that is the title of it--had
responsibility for reviewing whether or not these dual-use
products ended were being used for inappropriate activity. I
guess my question is, who is doing what here? I mean, does
State have a role here? Are your roles overlapped? Is there----
Secretary Evans. We certainly----
Senator Gregg [continuing]. Some understanding as to who is
doing what?
Secretary Evans. There is certainly coordination between
our two Departments, but we certainly feel a strong
responsibility for regulating the export of dual-purpose
products, the export of legitimate products, and the high-tech
products that might be used around the world. So there is
coordination between the two, but I would say to you, we feel
that the responsibility of providing the licenses for these
dual-export products, and for making sure that we do not have
illegal transshipments around the world, are two of the central
reasons for opening up offices, as you have mentioned, around
the world. We have opened up in Beijing and China and Singapore
and India and UAE and Egypt, I think are the main ones.
Senator Gregg. Should we expect that the State Department
will tell us that their Bureau of Verification is no longer
undertaking this effort?
Secretary Evans. I am not sure what they will tell you. I
feel a pretty good sense of our responsibility for licensing
products that might be considered dual-use kind of products
around the world.
Senator Gregg. Is it possible that we could get from
Commerce and from State a memorandum of understanding as to how
these two agencies are going to interact?
Secretary Evans. Sure. You bet.
Senator Gregg. We have to know that there is not going to
be duplication.
Secretary Evans. Sure. I would be happy to, Senator.
Senator Gregg. Thank you. Thank you, Mr. Chairman.
Senator Hollings. Thank you.
Senator Kohl had questions about the Manufacturing
Extension Partnership Program and he had another commitment and
had to leave, so we will leave the record open for his and any
other Senator's questions.
Senator Leahy.
Senator Leahy. Thank you, Mr. Chairman. I would like to put
my statement in the record, and I have some additional
questions.
Senator Hollings. It will be included.
[The statement follows:]
Prepared Statement of Senator Patrick J. Leahy
Mr. Chairman, thank you for calling this hearing today on
the Department of Commerce budget request for fiscal year 2003.
I would like to thank Secretary Evans for coming before this
Subcommittee to discuss the President's request.
President Bush has sent Congress a $2.13 trillion budget
that would provide billions of dollars in new spending for two
top priorities--the war on terrorism and homeland security--but
would squeeze much of the budget for domestic programs. While
he has properly emphasized the need to combat terrorism, the
President's domestic agenda is riddled with many opportunistic
cuts, motivated by ideology and special interests, that will
hurt America's economic recovery. I am very concerned that we
will no longer be able to adequately support essential economic
investment programs in this country if Congress accepts the
President's budget request. His severe under-funding of many
worthwhile small business and economic development programs is
a glaring example.
The Manufacturing Extension Partnership (MEP) program was
authorized in 1989 to help manufacturers, especially the
nation's small manufacturers, adopt new technologies, processes
and business practices to be more competitive on the world-wide
market. The MEP network now consists of over 2,000
professionals, working out of more than 400 offices in all 50
states to provide direct advice and assistance to
manufacturers. While Congress appropriated $106.5 million for
the MEP program last year, the President has requested only $13
million for the program in the coming year, a drastic cut that
would essentially mean the end of the program.
MEP is one of the most successful federal-state
partnerships in government. It is a cost-effective, private-
public partnership that helps American manufacturers modernize
to compete in the demanding global marketplace. It has helped
thousands of small manufacturers--who employ 11.5 million
people, or two-thirds of all manufacturing employment in the
United States--increase sales and earnings and decrease
materials and costs. Since these small manufacturers are the
major suppliers for larger manufacturers, they are a major
component of the national economy. We must do all we can to
ensure their long-term survival and health.
If MEP were to end, the Vermont Manufacturing Extension
Center, and other centers all around the country, would be
crippled in their ability to serve the ever-increasing needs of
small- and medium-size manufacturers. During these uneasy
economic times, we should be expanding our efforts to help
businesses stay afloat instead of cutting them. I support full
funding for the MEP program at the authorized level of $110
million and hope Congress will do the right thing and properly
invest this and other economic development programs this year.
The President repeatedly called for an economic stimulus
package to jumpstart the economy. And Congress heeded that
called last week by a bipartisan stimulus plan by overwhelming
margins. We all know the need is out there to forge ahead with
our economic growth. Now is certainly not the time to cut these
businesses off and tell them to sink or swim on their own.
Thank you again, Mr. Chairman, for holding this important
hearing. I look forward to working with you and Secretary Evans
to ensure that the needs of our nation's businesses are met in
next year's Department of Commerce budget.
Senator Leahy. Mr. Secretary, it is good to see you again.
Secretary Evans. Thank you, Senator.
MANUFACTURING EXTENSION PARTNERSHIP PROGRAM
Senator Leahy. We appreciate you coming over to the
Internet Caucus event we had the other day and appreciate your
kind note afterward. It is something that we will continue to
work on.
You and I have discussed it a couple of times already and
obviously you know my concern about rural areas. That can be
rural areas of Texas or rural areas of Vermont. I often joke
that I sit up at my farmhouse in Vermont, out there on a dirt
road and I have got my computer and I am in my jeans and my
sweatshirt, and if I could have two things, broadband there and
the ability to vote by phone, I do not think I would ever
leave.
I do not have either, but at least give me one of those.
For one, we would have to probably change the Constitution, but
for the other one, we could do.
I look at the budget, the $2.13 trillion budget, which is
amazing because I remember the debate when I first came here
about a $300 billion budget, but we have some major problems,
the war on terrorism, and the President has been very
supportive on that, and homeland security. I do not, however,
categorize security as our only domestic priority.
I look at the Manufacturing Extension Partnership Program.
We authorized it 11 or 12 years ago, Mr. Chairman--I think it
was 1988--to help manufacturers, especially small
manufacturers, develop new technologies and processes and
business practices so they could be competitive worldwide doing
the things that they might not be able to do in their own small
business, but with this help, they can.
We appropriate $106 million, actually $106.5 million, for
the program last year. MEP now has 2,000 professionals in all
50 States. But after we appropriated that $106.5 million, the
President cut it in his budget to $13 million this year.
I find that matter somewhat troubling, Mr. Secretary. We
have all kinds of businesses in our State of Vermont. We have
IBM with 6,000 employees that makes the fastest, most advanced
chip in the world. We have a lot of very small businesses,
small manufacturers developing advanced products and everything
else, but they are small. A private partnership like this, that
the business community supports it, workers support it, the
State supports it, why cut it so much?
Secretary Evans. Senator, I go back to what I said earlier.
I think it is just the philosophical position that the Federal
Government had an important role to play in getting these
programs started. As was stated in its initial mission
statement, the core purpose was to provide funding for a 6-year
period to give these centers time to get up and running, and
beyond that period should be self-sustainable through private
funding, State funding, local funding, or fees, and fees could
be on the front end or the back end. If someone goes and
receives a service that they deem to be helpful or useful and,
in fact, increases the profits of that small business or that
small manufacturer, it seems reasonable that maybe you might
share some of that back with the center that helped you
increase your profits.
I think it is just the philosophical position of the
original stated purpose of the MEP program was a sound one and
it was an appropriate role for the Federal Government to play
and that the ongoing funding that we have proposed in the 2003
budget reflects that.
Senator Leahy. Mr. Secretary, if I might----
Secretary Evans. Sure.
Senator Leahy [continuing]. I would be able to accept that
if we are talking about these companies that have benefitted by
it just competing within their States, such as the companies
that are in Texas are just competing within Texas or Vermont is
competing within Vermont. But more and more, these companies
are part of our worldwide economy. U.S. security, it is not
just our military, it is also our economy. We have a large
balance of payment deficit. We have got to export more, and a
lot of these small companies are the ones that develop the
ability to export.
I would hope, and we are going to be debating it within
this committee, of course, but I wish the administration would
go back and look at that again because I really think that
there is a national interest involved here, one that helps us
as a Nation. Not just my State of Vermont, not just New
Hampshire or South Carolina or Washington State or Rhode
Island, but the country as a whole benefits from the ability to
become more efficient, the ability to produce and innovate, and
the ability to export. Our economic ability to face the rest of
the world is extremely important.
For the same reason, I would hope that you look again at
cutting the National Telecommunications and Information
Administration. If we do not do something to close the digital
divide--and I know there has been some discussion here--if you
do not, then rural America is going to be cut out.
I will try to state this very carefully, but in a
discussion recently within the administration, there was some
discussion about a particular program that is in Vermont and
doing great because it has a national security implication.
Now, fortunately it was in Vermont and dispersed from other
aspects of the program. I realize that is terribly vague, but
you will hopefully understand what I am talking about. But this
Vermont company is crippled by the fact that they are in an
area where they do not have broadband. In order to track the
engineers, they need faster Internet connections to create
something that is vital to our national security.
There are a lot of things that could be in a lot of rural
areas. We can disperse a lot of our abilities throughout the
Nation, which has a security aspect to it.
Also, more importantly, we cannot tell our children, if you
are in a rural school, then you do not have the advantages you
might have in an urban center as we go into the digital age.
INFORMATION INFRASTRUCTURE GRANTS
Secretary Evans. I agree with you, Senator. I think we are
headed in the same direction. I do not think there is any issue
that is more important. There are many as important, but the
deployment of broadband across America, for national security
reasons, economic security reasons, homeland security reasons,
health reasons, I mean, this country should be headed in that
direction and we are. Again, you refer to the TOPs program. I
agree that we need to close the digital divide as fast as we
can and I would say to you that $20 million in the TOPs program
just does not even begin to scratch the surface. What you need
is big commitments like have been presented in the budget, $700
million in the Department of Education and $600 million--and we
have already gone through the numbers.
I think we are headed in the same direction. I am as
anxious as you are to make sure that every American is
connected.
Senator Leahy. We may keep in touch on that, Mr.
Secretary----
Secretary Evans. Sure.
Senator Leahy [continuing]. And take a look at my
statement.
Secretary Evans. I sure will. I sure will, absolutely.
Senator Leahy. Thank you, Mr. Chairman.
Senator Hollings. Senator Domenici.
Senator Domenici. Thank you very much, Mr. Chairman.
Mr. Secretary, it is good to be with you.
Secretary Evans. Thank you, sir.
BUREAU OF ECONOMIC ANALYSIS
Senator Domenici. I want to just share quickly an
experience with the committee and with you and then I want to
ask you a couple of questions about the Bureau of Economic
Analysis and the control you have over entities that collect
data on which we act here.
Mr. Chairman, I was up in northern New Mexico, at an
isolated little town named Mora, went to church and then had a
meeting there at the little restaurant with maybe 30 people.
This was about 3 years ago. I then sat down and asked, ``what
do you want to talk about?'' Would you believe that if you
would have asked me to write down the six issues that might
have been discussed in Mora, I would have been wrong because
what they really wanted to know way up there was when will we
be able to have computers in our homes for our kids? Now, this
is about an 80 percent Hispanic part of New Mexico.
I want to tell you, since that time, we have spent almost 3
years working with the State of New Mexico to try to find out
how well or how not so well rural areas were serviced by things
like the underground lines, fiber optics and the like, that
make rural areas as capable of handling computers and high-tech
kinds of businesses as a large city or town. That is what is
going to make rural America have more paychecks, is when
companies recognize that for the computer age, they can be in a
little town and do their business. You can have an engineering
firm that does all its business via the computer. They could be
situated in a little town of 8,000 people if they like it
there.
So I think whatever programs you have that move in a
direction of helping rural America get the basic infrastructure
that is needed to lift the small community into the area of
having the capacity to handle the modern day computer-type
activities is probably as important a job as you can do. These
are the highways of the future, not the paved highways. The
highways are how much computer capacity do you have in little
towns, big towns.
Having said that, I came today to congratulate you and your
Department and the President on something that is in the budget
and that was prompted because I read, and now I have been told
that it is correct, that as we came out of this recession, mild
as it was, that in the first quarter coming out of the
recession, the productivity of the United States was measured
as an increase of 5.5 percent. Did you see that?
Secretary Evans. I did.
Senator Domenici. Now, that is unheard of. Most of the
time, when you are coming out of a recession, Mr. Chairman,
your productivity is zero or negative. The fact that it is 5.5
percent permits some people to say that something very
different is at work in this American economy. Nobody yet says
what it is, but I concur. Something very different is
happening.
Or, we do not know how to measure productivity and we are
measuring it improperly. I have a hunch that we do not know how
to measure productivity properly, but I do not have a hunch
that the 5.5 percent is wrong. I do not know that much. But
sometimes we forget to put money into your budget for you to
handle the various analytical functions that are yours.
I understand that with reference to the Bureau of Economic
Analysis and the Bureau of the Census, you are asking for more
money for each one of those, and I want to say as one Member of
the Senate, I want to help you with the maximum amount you need
for the professional work of this kind of fact finding for the
United States. I understand that you may have a new e-mail
program that you want to add. Do I understand that correctly?
Could you share that with us?
Secretary Evans. Senator, I am not sure that I know the e-
mail program that you are referring to. We are continuing to
pour a lot of money into our information technology within the
Department of Commerce. You highlight a very important part of
our budget, which is it is hard to make good decisions if you
do not have good information and good facts, and so we have
added a substantial amount to the Bureau of Economic Analysis
as well as the Bureau of the Census----
Senator Domenici. You do not have a new approach to BEA's
understanding and measurement of e-business?
Secretary Evans. Oh, e-business.
Senator Domenici. E-business.
Secretary Evans. I am sorry. E-business, yes, absolutely,
we do.
Senator Domenici. What is it?
Secretary Evans. We are going to measure e-business in this
economy and we are going to also measure the service component
of this economy. In the past, Senator, when you look at the GDP
numbers, we look at the manufacturing sector, we look at the
mining sector, but not the service sector. We all know what a
large part of this economy the service sector is now. So we are
also committing funds to measure that very important segment of
the economy.
But yes, on e-business, we think it is vitally important
that we have good, accurate information as to how much
information----
Senator Domenici. Do you have money to do this program?
Secretary Evans. Yes, sir.
Senator Domenici. It was within your base----
Secretary Evans. Yes, sir.
Senator Domenici. Mr. Chairman, thank you very much for
recognizing me, and I might say to you in all the work that you
do in the Commerce Committee and Budget Committee, I think you
share with me how important it is that productivity be measured
correctly.
Senator Hollings. Exactly.
Senator Domenici. It is actually the force that drove us
for the 10 years in a recovery and will drive us again, and
something is different out there. It may be new kinds of
businesses that are changing productivity. Surely, productivity
was very, very high throughout the entire 10 years of the
recovery, and now it is almost in a booming stage which means
people do not lose money in their paychecks during the
recession. Paychecks may still go up----
Secretary Evans. Right.
Senator Domenici [continuing]. Even when you are having a
recession. It is very interesting.
Thank you, Mr. Chairman.
Senator Hollings. Thank you very much.
Senator Murray.
Senator Murray. Thank you very much, Mr. Chairman. Mr.
Secretary, welcome. It is good to have you here again.
Secretary Evans. Thank you.
INFORMATION INFRASTRUCTURE GRANTS
Senator Murray. We appreciate your being here. Obviously,
all of us are concerned about homeland security and the war on
terrorism, but we are particularly concerned about your budget,
what you do on investment in our economy. My home State of
Washington has an unemployment rate that is still over 8
percent and we are hurting very badly right now. We are second
only to Oregon in terms of unemployment rates and the
adjustments that you have are extremely important to us as we
try to come out of this recession. I am glad to hear the rest
of the country has, but we are really hurting.
I wanted to just second what the chairman and Senator Leahy
said about the TOPs program, the Technology Opportunities
Program. I know that you think it is a small amount of money,
but it has made a tremendous difference and needs to continue
to make a tremendous difference in our rural communities who
are the hardest to reach. They are the ones that everybody else
gets taken care of, then we cut the programs and then our most
rural communities, furthest, hardest to reach, are left out in
the cold, and I do think that program makes a difference, Mr.
Chairman. I hope to work with you to restore the funds for
that.
I also want to echo the chairman's concerns about the Sea
Grant program. It is a very important program in my home State
of Washington. It has been at the University of Washington
under the Office of Marine Environmental Resource program since
1968. It does an awful lot of really good work, and we are
concerned changing who administers it will change some of the
functions and important things that are going on in terms of
research at the University of Washington, so Mr. Chairman, we
will continue on that, too.
I do have a couple questions for you today. One of them has
to do with your proposal to create a new Bureau of Export
Administration field office in Seattle. Can you talk about
that? I think you have an increase in the Bureau of Export
Administration's budget that includes an office in Seattle.
Could you talk a little bit about what you see with that?
Secretary Evans. Well, only that we are adding two offices
domestically. One is Seattle. One is Houston. Again, part of
our homeland security, national security initiative is to make
sure that we are doing everything we can to work at the ports
and deal with the issues of products, goods that may be moving
out of this country for the wrong kind of reason.
We had a recent case in the Port of New York where we found
some individuals trying to ship some night vision equipment to
the Hezbollah, and so it is clear that our ports are areas
where these products may tend to leave our country and we
thought it was important to make sure we had the facilities in
place, the resources in place to watch that and enforce our
ports.
Senator Murray. How do you see that impacting the flow of
trade between Washington State and other countries?
Secretary Evans. I do not see it impacting it at all. I
just see it as an enforcement office. It is there to make sure
we are enforcing our laws. But I do not see it impacting the
flow negatively or positively.
Senator Murray. Okay. Can you give me a quick update on
where we are with the softwood lumber dispute with Canada? I
know it is a really complex issue, but can you just tell us
where you see it right now?
Secretary Evans. Sure, just ongoing dialogue on the
theories that both sides are sitting down in good faith to talk
through some very, very difficult issues. I think, one, it is
safe to say that the discussion has progressed farther than
ever before in terms of dealing with this decades-old issue.
Everybody is facing a March 21 final determination date, and so
that is kind of a hard date that everybody is working against.
I am going to remain optimistic.
Senator Murray. There are a lot of issues involved in this,
and I know you know them. I just wanted to bring to your
attention the plight of one business in my State. It is Lindall
Cedar Homes. They manufacture pre-fabricated homes and they are
the only pre-fabricated home manufacturer that may be subject
to duties imposed on Canadian lumber. That would put them at a
huge disadvantage in the Nation and I hope that we can work
with you to see if we can get an exclusion for them. It will
have an impact on several hundred people, businesses, an
important one for the region. As I said, we have an
unemployment problem now. We do not need to add to it. It is a
good business and we want to keep them, so I would like to work
with you as you reach that date to see if we can get an
exclusion for them.
Secretary Evans. Very good, Senator.
Senator Murray. Thank you.
Senator Hollings. Thank you.
Senator Reed.
Senator Reed. Thank you very much, Mr. Chairman, and
welcome, Mr. Secretary.
Secretary Evans. Thank you, Senator.
NORTHEAST ECONOMIC DEVELOPMENT REPRESENTATIVE
Senator Reed. Thank you for being here this morning.
The Economic Development Agency is a vital player up in New
England. They have been very helpful in my home State of Rhode
Island and adjoining States. We have worked with them in very
innovative and very successful programs.
I understand that there is no EDA New England office
director appointed yet and that all of the business is being
forwarded to Philadelphia, the super-regional office. Is that
type of some reorganization or policy change?
Secretary Evans. Senator, I am not sure, to tell you the
truth. I will have to get back with your office or with you and
I will certainly do that.
Senator Reed. Thank you, sir.
[The information follows:]
Northeast Economic Development Representative
The Economic Development Administration does not have
office directors for individual states or regions. EDA does
have economic development representatives located around the
country that act as the agency's primary point of contact. EDA
is committed to providing the highest level of service to all
of its customers and stakeholders. While EDA has a long history
of outstanding service to its customers, we strive to
continuously improve operations to leverage our limited
resources to the greatest extent possible.
Toward this end, EDA is undertaking a number of initiatives
to transform itself into a results-oriented agency. These
management improvement efforts will align the workforce with
organizational goals, eliminate redundancy and confusion, align
competencies with activities, and will deploy resources to best
serve the needs of communities.
EDA has six regional offices located in Philadelphia, PA,
Atlanta, GA, Chicago, IL, Austin, TX, Denver, CO and Seattle,
WA. EDA also has a limited number of staff members, Economic
Development Representatives who report to the Regional Office
Director, and usually, although not always, work in one-man
offices located in a number of different locales throughout the
country. As management improvement efforts progress, EDA will
continue to manage its human resources by assessing the
competing needs of the agency and making decisions that fit
within the constraints of its budget.
EDA understands the importance of an effective EDA presence
in New England and places a high degree of importance on
maintaining the level of service and technical assistance this
region has historically received. EDA is committed to taking
the appropriate measures to continue its excellent level of
service and assistance in the New England area.
EDA PROGRAM REDUCTION
Senator Reed. I will also note that the EDA's budget is
being streamlined by $16 million, which in a creative way is
the change. Can you talk about the reduction in EDA, the
proposed reduction, because it is a very valuable agency.
Secretary Evans. Oh, it is. Again, Senator, it is
priorities. There are a lot of tough choices to make. We are at
war, and so we are doing the best we think we can to optimize
the allocation of the resources that we have. When it comes to
EDA, I think we have a terrific team of people. We still have a
substantial amount of money in the budget, $350 million, and
what I would say is that I think the focus of EDA has been
changing over the last few years. Where there was a serious
focus on base closures for a relatively long period of time
that required a substantial amount of effort and a substantial
amount of funding, the need is not there, as we saw in the
1990s.
I think we are moving much more toward community
rebuilding, trade adjustment assistance. We have added $2.5
million within the EDA budget to trade adjustment assistance.
So the focus is starting to move away from base closure,
rebuilding, and economic development to community development,
community infrastructure, communities particularly that have
been impacted by opening up trade around the world. We all know
some of the industries that are dealing with a difficult period
because of trade and so this program will be part of helping
that, the transitioning economy by supporting and helping local
communities.
So there is still a substantial amount of money in the
budget. There is a stronger focus toward trade adjustment
assistance and communities that are dealing with trade-related
issues.
TRADE ADJUSTMENT ASSISTANCE
Senator Reed. Thank you, Mr. Secretary. You have actually
anticipated my next question, which is the trade adjustment
assistance budget, and as you know, it is an increase of $2.5
million. I understand, however, that the Department's original
request was for $5 million. I appreciate the increase, but I
think it goes also to the issue of free trade and also the
issue of fast track authority.
We all recognize, and we take different positions on this,
but I think we all recognize that any major change in our trade
policy forces disruptions in local communities. In the long
run, we might be better off, but in the short run, there are a
lot of people who are disadvantaged. It very well may be that,
as we go forward, we may need even more than $2.5 million in
the trade adjustment account, and I would hope that you would
be sensitive to that.
In my part of the country, we have a lot of industries,
manufacturing particularly, that are holding on against stiff
competition, and when we change the trade laws, the competition
gets even fiercer. So this trade adjustment is very important.
It has been increased, but I would suggest it might even go up
even further.
Secretary Evans. Thank you, Senator. We will be sensitive
to it. It is a big issue. I am not sure that the programs of
the 20th century fit the programs of the 21st century, and we
are certainly looking very hard at this whole trade adjustment
assistance area.
Senator Reed. Let me conclude by adding my comments in
support of the Technology Opportunities Program that has been
highlighted by many of my colleagues. It is an important
program and your efforts in this regard will be appreciated,
also. Thank you, Mr. Secretary.
Secretary Evans. Thank you, Senator. I appreciate it.
INTERNATIONAL TRADE ADMINISTRATION
Senator Hollings. Mr. Secretary, Senator Stevens left
momentarily but will be right back.
When you are talking about EDA, my understanding is now
that there is an emphasis in the administration, in your
administration, of higher profile projects rather than
community needs. We just got where highways 301 and Interstate
26 intersected and we extended the sewer line. We saved about a
dozen businesses out there and we saved over 100 and some jobs.
Greenville is a higher profile area and they have got
industries after industries and you can always assist in
getting those industries. But you go higher profile in the
little rural areas with economic development. The
administration wants economic development, not higher profile.
Look at that from the----
Secretary Evans. I sure will, Mr. Chairman.
Senator Hollings. Another thing. When Senator Domenici was
asking about the productivity, you have got to have an industry
to produce in order to measure productivity. We have lost
50,900 textile jobs alone. Do you think that you could come
down there for a meeting, that you could then get President
Bush to campaign for me like he did for Senator Domenici?
Secretary Evans. Mr. Chairman, I always love coming to your
State. I have been down there a few times and I look forward to
coming back to your State and talking to the fine people of
South Carolina.
Senator Hollings. We have got to do something on that
productivity. I mean, there is no question. Trying to bring us
into the reality of what trade is doing, because we are in the
hands of the Philistines. These producing ones are now moving
their production from the free trade United States to the
protected trade of Malaysia or Mexico or China. We can go right
on down, but you move them all into protectionism and then they
shout at me, free trade creates jobs, but it creates jobs in
China, not in the United States. I am losing them faster than I
can possibly produce them.
On that particular score, see if you cannot do statistical
studies to find out exactly the consumption of America
represented in imports. We had, back in the 1970s, we had
testimony that the figure was about 41 percent. I know it is
over 50 percent.
I am looking, and the clothing in this room, a good two-
thirds is imported of the clothing. The shoes on the floor in
this room, 86 percent of the shoes are imported. So we can get
by without shoes and clothing. What else do you expect them to
make?
My trouble is, they are making the shoes, the clothing, the
airplanes, the computers, everything. Now, that is the kind of
competition, and you have got to have a manufacturing capacity
in order to have a strong economy. See if we can get that
measured. Do you remember one hearing we had originally last
year and you said you were going to work on that for us?
Secretary Evans. Yes. I know the import statistic number is
we import about 13 percent of our gross domestic pre-product. I
know that number, and we continue to do what we can to do a
better job of delivering more accurate information, more timely
information. This is one area where we have specific focus
because I have been troubled that it takes so long to release
the information on imports. I have always wondered why we have
to wait some 60 to 75 days after the end of the quarter before
we can release the information, the data.
So it is something we continue to put a lot of emphasis on,
Mr. Chairman. The last time I looked at the import number,
though, it reflected about 13 percent of our GDP.
Senator Hollings. On this, and I will yield to Senator
Stevens, you have got a tremendous resource. People do not
realize what they have over there in the old Bureau of
Standards. One of the best defense projects was a RAMP, Rapid
Acquisition of Manufactured Parts. We are in the gulf and a 23-
year-old destroyer breaks down on a part. They do not make it
anymore and have not made it for the last 15 years or whatever,
and then it just languishes there in the gulf 1 month, 2
months, whatever it is before they can finally wire back, get
it measured up, everything else like that.
Now what we do is we computerize. That came out of the
Department of Commerce, not DOFA. Senator Stevens is heading up
DOFA all the time, and I work with him. Now, they computerize
the actual parts for all defense, the aircraft and the Navy. We
are trying to get the Army into it. It has not worked. But if
that part breaks down now, we can just go to the computerized
thing, punch it out on this thing, and you have got it within 3
or 4 days.
Election reform standards, all these machines and chads and
everything else like that, I can tell you from being in the
game for years, we have got to get some kind of standard that
is acceptable, and NIST, your Department would be extremely
helpful. I do not believe it was provided in the election
reform bill, but can you please work on that and see if you
cannot get the Department working to use some of its monies to
try to get us an election machine standard or something,
because if we are going to mandate nationally, then there ought
to be an accepted machine, because these fellows come around
and sell to local entities on any kind of little gadget and
then the thing is broken and election day is over with. Can you
help us?
Secretary Evans. Sure. Absolutely. We will be glad to take
a look at that, Mr. Chairman, and see what it would take to
bring a recommendation to you.
Senator Hollings. Senator Stevens.
Senator Stevens. Thank you. Mr. Secretary, it is nice to
see you.
Secretary Evans. Chairman, it is nice to see you.
MARINE RESEARCH
Senator Stevens. I am full of good news for you this
morning. Our State has the highest unemployment rate. It is not
quite the highest, but if you count the people who have left
the State to go somewhere else to find a job because they
cannot live on unemployment we have the highest. I think your
people are doing some good things for us, trying to create
long-term jobs, the Ketchikan shipyards, the operation from EDA
is very good, and we are making major investments in marine
research.
I thought maybe I might invite you up for a little part of
the first class fishing 101 this summer.
Secretary Evans. I need it.
Senator Stevens. I will show you some of the things that
you are doing that far away, so that would be a good time. The
chairman can tell you about that.
VESSEL MONITORING SYSTEM
We would like to have you come up and see what you are
doing, and particularly in the marine research, and I am very
serious. The money that we made available for research on
stellar sea lions is the most that any country has ever spent
on really developing science, real science, on what is causing
the decline of one of the great creatures of the sea. We are
very pleased with how your people are handling that. It may not
produce all the results I would like to see, but I think they
are going after true scientific research in a way that will
demonstrate that we may find a way to protect some of those
mammals without destroying our basic industry.
Half of the people in our State who have income derive a
substantial portion of that income from fishing. It is one of
the mainstays of our economy. In a period when we do not have
oil and gas exploration, the mines are closed down, the timber
operation is down, the one thing that is really sustaining our
State today is fishing. Again, I think what EPA is looking at
are long-term activities.
I have just three real questions, if I may. We are
concerned about the implementation of the vessel monitoring
system and the ground fish fleet. We would like to know what
you might be able to do to help us defray the cost for small
fishing vessels to comply with the requirements for vessel
monitoring systems.
Secretary Evans. Well, we will take a look at it, Senator.
I do not know what the cost is exactly per vessel. I do not
know what we have in our budget, if anything, for that, but we
will take a hard look at it. I know the cost pressure that that
whole industry is under there and so one thing we do not want
to do is be adding additional burdens to them.
Senator Stevens. Compliance is so essential to the safety
of other vessels, we think actually you ought to give them to
people who cannot afford them, and I hope you will look at
that.
Secretary Evans. Okay, we will.
Senator Stevens. Another question, the people in Fairbanks
are concerned about the Gilmore Creek tracking station. This
station may not proceed, or may not survive, I take it, in the
new satellite tracking concept, particularly one that is being
developed in Norway. It is my feeling that we should have at
least one active station on American soil. We ought not to be
dependent totally on foreign information to track our own
satellites.
Secretary Evans. I agree with that, Senator. I am not aware
of an effort to shut it down. I agree with you. I think we
ought to have one on American soil.
Senator Stevens. It is the last one, and if we get a
chance, if you come up, I would like to have you take a look at
that.
Secretary Evans. I sure will.
STELLAR SEA LION
Senator Stevens. It is very interesting.
Again, and lastly on still this stellar sea lion problem,
do you have a problem producing another biological opinion this
summer? I am not sure that the science will be ready for that,
but I do hope that we can keep a close watch on that process
and if some mechanism to extend the time until we all have the
answers that that research will bring us will help, I think we
ought to ask Congress to consider that. That is a court ordered
deadline, as I understand it, for the biological opinion, and
the time frame is too tight, I think, to finish the research
that we funded. We funded a total of $80 million on that study.
Secretary Evans. Right.
Senator Stevens. I think it would be a travesty to have the
burden on the Department to prepare the opinion before the
results are in from the study. I would urge you to just watch
that for us, because I think if the last biological opinion had
been implemented, it would have shut down half the fishing
fleet.
Secretary Evans. We will keep a close watch on it. I was
briefed on it about 1 week ago and people have been encouraged
with the progress and the facts that have been collected, but
obviously they did not feel like we are ready yet, and so we
will continue to watch it very closely.
Senator Stevens. Just one last comment. I got a report the
other day, we have several of them down at Seward, where people
are watching them. We now have television out on the rocks
where they rest and rear their young pups. They are actually
getting to the point where they are so familiar with these sea
lions that they are giving them names. We are actually now
going to start tagging some. One of them, a young pup, was
tagged in Seward, and within 1 year, it ended up out in Kiska
Island at the end of the chain. That is 1,200 miles in the
first year of life.
Secretary Evans. The first year? Wow.
Senator Stevens. It is great science. It really is.
Senator Hollings. Is that one named Ted?
Senator Stevens. I will give the one that survives the name
of Ted.
Senator Hollings. We have got a name for one of Alaska's
sea lions here in Washington. Thank you.
Senator Stevens. Thank you.
BUREAU OF CENSUS
Senator Hollings. Finally, on the census, we had a GAO
study, Ted, on this one, and you think they cut out a little
$10 billion here and a little $5 billion there and ruin all the
rural programs and everything else and then come with a census
budget of $5 billion more. You all have gotten to be like tax-
and-spend Democrats. I mean, how do you justify $5 billion more
for a census in 2010? The one in 2000 was $6.4 billion, I
think.
Secretary Evans. Right. Correct.
Senator Hollings [continuing]. And now you have got $11.4
billion requested?
Secretary Evans. Right.
Senator Hollings. And GAO talks about your accounting
divisions there in the Bureau of the Census?
Secretary Evans. Right. Senator, obviously, we are focused
on the planning, the work that is going to be necessary to
develop the most accurate possible census that we can deliver
to this country in the year 2010. We learned a lot from 2000,
and 2000 happened to wind up being the most accurate census
ever by far, but can we do better? Yes, we can do better.
One of the ways we feel like we can do better is by
implementing some programs like the American Community Survey
that will provide to this country census-type data every year,
not every 10 years, but every year, and what that can do for
local municipalities and counties and States can be fairly
dramatic, because when you are able to provide census-related
data every year, then States and local governments and
communities can do a better job in distributing the resources
that they distribute to the population.
It may be flu shots. It may be polio vaccine. It may be
dollars. I am not sure what it might be. But you will have not
just a 2010 census, but this will provide important information
every year so we can do a more effective job across America of
allocating again the scarce resources that we have.
Senator Hollings. But $5 billion more?
Secretary Evans. Of course, some of it, Mr. Chairman, is
inflation. I do not know how much of that is inflation, but a
big chunk of it is inflation, I can assure you of that. Over a
10-year period, it does not take much inflation to double the
cost of something in nominal terms.
Senator Hollings. Well, look at that GAO report----
Secretary Evans. We will.
Senator Hollings [continuing]. On the finding they have had
on the accounting over there.
Secretary Evans. We sure will, Chairman.
ADDITIONAL COMMITTEE QUESTIONS
Senator Hollings. We thank you very, very much for your
appearance here today.
Secretary Evans. Thank you.
[The following questions were not asked at the hearing, but
were submitted to the Department for response subsequent to the
hearing:]
Questions Submitted by Senator Ernest F. Hollings
advanced technology program
Question. The Advanced Technology Program (ATP) is an industry-led,
competitive, and cost-shared program to help the United States develop
the next generation of breakthrough technologies in advance of its
foreign competitors. For fiscal year 2002, the Department of Commerce
has $60.7 million available for new ATP grants. The Department has not
yet issued a solicitation for new ATP grant applications.
When do you anticipate that you will issue the solicitation asking
companies to apply for fiscal year 2002 ATP grants?
Answer. A Federal Register Notice was issued on April 18, 2002,
soliciting grant applications.
Question. According to fiscal year 2003 Budget proposal, the
Department of Commerce intends to carry over $34 million in ATP funds
from fiscal year 2002 to fiscal year 2003.
Why is this? Do you have a plan in place to spend the entire $60.7
million that Congress has given you for new ATP grants in fiscal year
2002? If not, do you intend to send up a reprogramming for the $35
million you intend to carry over?
Answer. The President's budget request for the ATP will allow the
program to meet all its current obligations in funding on-going work,
and also will allow the program to fund approximately 35 new projects
in fiscal year 2002 and fiscal year 2003.
Question. As you and I have discussed, Secretary Evans, the ATP
selection process has always been merit based. No Senator, or
Secretary, or Deputy Secretary has picked which projects will be funded
and which will not. Instead, the final decision has been removed from
politics and left with a career official.
Can you assure me that this process will remain merit-based and
will not be influenced by your Department's political appointees?
Answer. ATP has and will continue to comply with the selection
process stipulated in its regulations (15 CFR part 295) as it has in
the past. ATP has a rigorous competitive peer-review process that
removes any potential bias. Potential projects are evaluated on both
technical and business merits. ATP will ensure that this rigorous
review process is continued when it selects future awards.
manufacturing extension partnership program
Question. Manufacturing creates growth for our nation: wealth in
the form of economic growth, increased jobs, and robust trade. The
United States' manufacturing strength is built on the backbone of more
than 350,000 small manufacturers that account for over one-half of the
value of total U.S. production. These firms employ 11.4 million
Americans--more than two-thirds of the manufacturing workforce. Yet,
despite the critical role that small manufacturers play in U.S.
economy, the productivity gap between small manufacturers and their
larger counterparts continues to grow. This disparity causes concern
because expertise in technology will only become a bigger factor in the
success of small companies.
One of the President's stated priorities for the fiscal year 2003
budget is to ``revitalize the economy and create jobs.'' Yet, your
fiscal year 2003 budget sunsets the Federal share of MEP centers which
assist our nation's vital small and medium sized manufacturers to stay
competitive. In 2000, small manufacturers reported $1.3 billion of new
or retained sales and more than 14,000 jobs saved as a result of the
MEP.
How does cutting the funding for MEP support the President's
priority of revitalizing the economy and saving jobs? Isn't this move
counterproductive when the nation is in a recession that threatens
high-paying manufacturing jobs?
Answer. MEP has been a successful program and demand for its
services continues to increase. However, given that this Nation is
fighting a war against terrorism, difficult choices have to be made in
terms of priorities within the Federal budget. We believe that many MEP
centers will continue to exist in the absence of Federal funding. As a
result, small businesses will continue to receive the expertise and
assistance from the centers. This continued assistance will help small
manufacturers remain competitive and continue their crucial role in the
Nation's economy. To offset the loss of Federal funding, centers could
increase fee receipts. Given the centers' success in improving
productivity and efficiency, assessing fees for service should be the
direction in which the program heads. The benefits to small firms
seeking MEP assistance, such as improved productivity and efficiency,
should outweigh the cost of the fees. Also, large manufacturers that
depend on smaller companies may also wish to provide support to MEP
centers to ensure the continuing success of their smaller suppliers.
election reform standards
Question. The House-passed election reform bill and the Senate
version of election reform both call for NIST to have a role in
assisting to develop election machine standards.
Have you prepared a request for such funding? What is such an
effort likely to cost?
Answer. In the House version (H.R. 3295, Ney-Hoyer bill), NIST
estimates the cost to support the functions as described in the bill to
be between $7.5 and $10 million per year. In the Senate version (S.
565), the costs have not been determined. In S. 565, NIST would be a
consultant to the Office of Election Administration of the Federal
Election Commission. The level of assistance by NIST to the Office of
Election Administration is not detailed in S. 565. Under the House
bill, NIST would play an integral role vis-a-vis the Office of Election
Administration. NIST costs could be much less than the House version
but the Conference bill will determine NIST's role.
world trade center investigation
Question. It is my understanding that NIST will have a significant
role in examining the collapse of the World Trade Centers.
Have you identified funding for this effort? Should we expect a
supplemental request in this regard?
Answer. NIST is planning to conduct an independent, comprehensive,
NIST-led technical investigation of the building construction,
integrity of the materials used, and all the technical conditions that
combined to cause the World Trade Center (WTC) collapses. This
technical investigation will be funded by a reimbursable agreement with
the Federal Emergency Management Agency (FEMA), using funding requested
by FEMA in the fiscal year 2002 supplemental.
cost of 2010 decennial census
Question. Please explain why we are faced with a 2010 Decennial
Census that will cost approximately $5 billion more than the 2000
Decennial Census.
Answer. Some of this increase is attributable to inflation, but
there are other factors as well. The population is expected to increase
by approximately 10 percent. In addition, we have observed over several
decades that for a number of reasons it becomes more difficult to
enumerate the population during each decennial census:
--The population is becoming increasingly diverse.
--Households are more complex.
--It is increasingly difficult to develop a workforce with the skills
necessary to conduct the enumeration.
--People are more reluctant to cooperate with the government, and
with the enumerators asking for interviews.
Consequently, each decennial census becomes more expensive and more
difficult to implement. If we do not make fundamental changes in our
methodology, our current best estimate is that the cost of the 2010
Census will increase by $5 billion broken down as follows:
--$2,833 million--Due to inflation (as estimated by the fiscal year
2001 President's budget for ``Federal Civilian Pay'' index and
GDP inflator for procurements).
--$994 million--Because we expect that enumerators will process fewer
cases per hour. As noted above, this process has been a steady
trend for several decades.
--$532 million--Due to enumerator pay increases needed to hire
temporary employees in a tight labor market. We anticipate,
based on research and experience related to Census 2000,
needing to pay our field staff 90 percent of the prevailing
wage rate in the areas where they work.
--$320 million--Increase in Field workload--Housing units will
increase by 10 percent, Group Quarters by 12 percent, and we
will need 51 additional local census offices.
--$148 million--Due to inflation in information technology contract
costs, which are estimated to be 2 percent above the federal
inflation rate.
--$40 Million--Due to an increase in the data capture workload of 10
percent due to population growth.
Even at this great cost, repeating the old design would be
extremely risky and would result in inferior data to that collected by
the reengineered design. Opportunities do exist to reduce risk, reduce
full cycle costs, and improve accuracy for the 2010 Census by
fundamentally reengineering the process. The advantages and savings
associated with reengineering have been presented in the Potential Life
Cycle Savings for the 2010 Census document provided to the Congress in
April of 2001. The President's fiscal year 2003 budget request reflects
the intent to reengineer the decennial census process.
census bureau financial accounting systems
Question. A recent GAO report pointed to significant flaws in the
financial accounting system at the Bureau of the Census. What can this
Committee do to assure that such problems are alleviated?
Answer. Several of the management recommendations in the GAO report
(``2000 Census: Analysis of Fiscal Year 2000 Budget and Internal
Control Weaknesses at the U.S. Census Bureau''--GAO-02-30) address
improvements to the Bureau's financial accounting systems. We are
currently acting on these recommendations. This answer addresses all
but three of those recommendations. The three not addressed by this
answer dealt with current financial activities, rather than financial
accounting systems.
Recommendation #3: Instruct accounting personnel to follow the written
policy for establishing accruals and proper cutoff for goods
and services received at year end.
The Finance Division and Accenture contractors conducted staff
training on September 13, 2001, on the estimated accrual process to
ensure proper recordation of accrual transactions at year-end. As
changes to accounting personnel occur, the Finance Division will
continue to educate new personnel and provide refresher training to
existing personnel, as needed.
The Finance Division also has set up an internal audit review
process to review the following:
--Year-end accrual policies and procedures.
--Year-end Estimated Accrual forms submitted from divisions.
--Match subsequent disbursements with year-end accruals.
--Actual vendor invoices to determine period of performance.
The Census Bureau considers this recommendation closed.
Recommendation #4: Post accounting adjustments to subsidiary records in
a timely manner.
We have implemented our new Commerce Administrative Management
System (CAMS) closing program, which gives us the needed ability to
track year-end adjustments in multiple periods. It has the capability
to distinguish our year-end adjustments from the adjustments entered
after the initial FACTS II submission and audit adjustments, which has
caused discrepancies between Treasury and Office of Management and
Budget records. All year-end adjustments have been entered into the
financial system for fiscal year 2001. We have completed the validation
of the year-end trial balance and closing entries. The final close
process, which sets all financial system modules for fiscal year 2001
to close, establish ending balances, and carry-forward balances, was
completed on March 29, 2002. This new closing program will enable the
Census Bureau to close our financial records on schedule.
Implementation date: March 29, 2002--Completed.
Recommendation #5: Complete efforts to modify the Bureau's financial
systems to produce usable accounts payable and undelivered
orders subsidiary reports by vendor, close out thousands of
completed transactions with small balances, and archive all
completed transactions.
The data clean-up is a continuing effort for all Undelivered Orders
and Accounts Payable accounts to purge all remaining unmatched
transactions, which were converted from our legacy system to CAMS. The
data clean-up converts unmatched transactions by determining related
transactions and populating the fields used in document matching with
common matching values. These transactions have no impact on our
financial balances. The Census Bureau plans to complete this data
clean-up effort by July 2002.
Targeted completion date: July 31, 2002.
However, Census is working in conjunction with the Department is
reviewing the existing archiving capability in CAMS, and to provide
additional requirements for a comprehensive, JFMIP compliant approach
to provide archiving and retrieval capability. The requirements
documentation should be completed this fiscal year, with implementation
targeted for fiscal year 2003.
Recommendation #6: Amend policies and procedures, which will require
supervisors to closely review employees time charges and
project codes to ensure more accurate project costs for
salaries and benefits.
As part of the census planning process for the 2004 Census Test,
the Census Bureau is reviewing policies and procedures related to the
completion of payroll documents and supervisory review and approval of
those documents and will amend them as appropriate. We know that with a
large, short-term intermittent staff, it is difficult to train them
adequately in proper charging of hours and other expenses. We will look
for ways to improve training and to stress the use of proper task codes
and project numbers for the various field operations. We also will work
on supervisors' training and procedures for the review and approval of
payroll documents to improve the accuracy of reporting. We will develop
supervisory checklists, which can be used during the review of payroll
forms to simply make more accurate that proper task codes and project
numbers are being used for the various operations.
Another aspect of our procedures that we feel impacts the accuracy
of costs is the appointing of field staff into the proper position. In
Census 2000, we created the Crew Leader Assistant, that was established
late in the census process and was paid at the same rate as the
enumerator. We know that in many offices, people that worked as Crew
Leader Assistants were originally hired as enumerators and were not
officially converted into the Crew Leader Assistant position. This
resulted in their hours and expenses being reported as enumerators and
had an adverse impact on cost reports and productivity. We plan to
establish all positions in a more timely manner in the future and to
develop procedures that ensure staff is hired into the proper position.
It is extremely important that hours and expenses for production and
nonproduction staff are reported accurately. Policies and procedures to
ensure this occurs will be instituted when hiring is initiated for the
2004 Test.
Target Implementation Date: Procedures will be revised and amended
as appropriate and will be implemented when hiring and training are
initiated for the 2004 Test, which should be in the summer of 2003.
2010 decennial census--cost savings
Question. Is there any cost savings to the 2010 Census associated
with conducting the American Community Survey?
Answer. Yes. Repeating the design used for Census 2000 would be
costly, extremely risky and would result in inferior data to that
collected by the reengineered design. Fundamentally reengineering the
process would reduce risk, reduce full cycle costs, and improve
accuracy for the 2010 Census. The American Community Survey (ACS) is a
critical component to successfully reengineering the design.
The advantages and savings associated with reengineering the
decennial census process have been presented in the Potential Life
Cycle Savings for the 2010 Census document provided to the Congress in
April of 2001. The President's fiscal year 2003 budget request reflects
the intent to reengineer the decennial census process.
The reengineered 2010 Census, including ACS as a critical
component, consists of three highly integrated activities designed to
meet the following four goals: Improve the relevance and timeliness of
census long form data, reduce operational risk, improve the accuracy of
census coverage, and Contain costs.
The ACS is fundamental to this strategy. It sits alongside the
other two components of our plan to reengineer the decennial census:
(1) improving the inventory of all known living quarters and ensuring
that they are accurately located on our census maps (MAF/TIGER
enhancement), and (2) our program of early planning, development and
testing designed to completely restructure the management and conduct
of a short form only census in 2010.
ACS will provide more timely and relevant data to communities
throughout the decade. Moreover, the cost of conducting a short form
only census will be reduced later in the decade because the elimination
of the long form from the decennial census, coupled with MAF/TIGER
enhancements, will dramatically reduce the workload for enumerators in
the field. Field staff will be working with more accurate maps and
address lists. There will be fewer households to visit because a short
form only census will have a higher response rate. We anticipate a
higher response rate because ever since the inception of the short
form, we have consistently experienced a higher response rate on short
form questionnaires than on long form questionnaires. For example, in
census 2000 the response rate for the short form questionnaires was
66.4 percent while the corresponding response rate for the long form
questionnaires was 53.9 percent. We also expect savings because
enumerators will not be required to follow up on unanswered long form
questionnaires--a process that is time consuming and costly. Finally,
staffing also will be reduced at headquarters because we will not be
required to conduct the following operations for the development of the
long form since they will be carried out by the ACS program:
--Content testing and development
--Questionnaire design
--Data collection methods--development and implementation
--Edit, coding and imputation--development and implementation
--Sample design
--Estimation and variance development and computation
--Product development
--Data tabulation and review
--Data dissemination
The results of this work will mean that the overall cost of
conducting the 2010 Census, including MAF/TIGER enhancements, ACS, and
early planning and development for 2010, will be reduced. In addition,
the persistent problem of a huge spike in the funding needs for the
census occurring in the census year will be dramatically reduced.
However, making these changes in Census 2010 will require an increased
investment earlier in the decade as compared with the Census 2000
cycle. Additional resources are needed in the early years because
decennial census operations must be completely restructured to take
full advantage of ACS and MAF/TIGER enhancements. But this increase is
more than offset by the significant reductions later in the decade
described above.
cost of maf/tiger
Question. What is the total projected cost to the 2010 Census for
the MAF/TIGER geographic database system?
Answer. The full cycle cost (through 2012) for enhancing the MAF/
TIGER database is $535 million. An improved MAF/TIGER database allows
us to adopt the technology necessary to fully utilize GPS equipped hand
held mobile computing devices to find, interview, and update data on
people and their housing units for the short form only census. This
innovation alone means that we can dramatically reduce field
infrastructure costs because we can substantially reduce the use of
paper maps and virtually eliminate the use of paper assignment sheets,
along with the staff and space required to handle that paper. In
addition, the enhanced system will utilize commercial off-the-shelf
software allowing for an open, flexible, and integrated system that
makes it easier to update maps and address lists. This will allow us to
take advantage of geographic partnership programs in which address and
map update information from state, local, and tribal governments can be
used more effectively. The result will be a substantial increase in the
accuracy of our address list and maps. Consequently, the cost of MAF/
TIGER enhancement will be more than offset by savings and efficiencies
in 2010 Census operations.
Repeating the design used for Census 2000 would be costly,
extremely risky and would result in inferior data to that collected by
the reengineered design. Fundamentally reengineering the process would
reduce risk, reduce full cycle costs, and improve accuracy for the 2010
Census. The MAF/TIGER enhancement program is a critical component to
successfully reengineering the design. The advantages and savings
associated with reengineering the decennial census process have been
presented in the Potential Life Cycle Savings for the 2010 Census
document provided to the Congress in April of 2001. The President's
fiscal year 2003 budget request reflects the intent to reengineer the
decennial census process.
eda investment criteria
Question. Pursuant to the Public Works and Economic Development Act
of 1965, as amended by the Economic Development Administration Reform
Act of 1998, EDA provides grants to ``alleviate conditions of
substantial and persistent unemployment and underemployment in
economically distressed areas and regions.'' In the last year, the
Economic Development Administration has altered its grant-making
strategy by awarding infrastructure and business development grants for
projects that are high profile and create lucrative jobs that pay wages
higher than the average county rate.
In April of 1999, prior to this change in policy, EDA provided a
grant ($1.5 million) to the City and County of Orangeburg, South
Carolina for a sewer project to serve seven commercial businesses at
the intersection of Interstate 26 and Highway 301. The project saved 65
jobs and created 42 new jobs. Since the time of the award, a 400 acre
industrial park has been attracted to the area. Approximately 100 jobs
have been created in the park and that number is anticipated to reach
over 700 jobs when the park reaches its capacity. In addition, tens of
millions of dollars in private investment have been funneled in the
area. Under the current criteria a similar project would not be funded
by EDA.
Has EDA recently switched its grant-making focus from distressed
communities to so-called ``higher profile'' projects?
Under what authority does EDA propose to shift the focus of its
infrastructure and business development grants?
Can you provide the Committee with a list of ``high priority''
projects that have or are proposed to receive funding?
Answer. Based on the project described, it is not accurate to
assume that such an investment would not be made by EDA today. In fact,
the project you described is the type of project that can fundamentally
change the economic fortunes of a region, and the type of investment
that results in substantial higher wage, higher skill jobs and private
sector investments that are consistent with EDA's mission.
EDA has not changed its focus from distressed communities to
``higher profile'' projects. Consequently, EDA does not compile a list
of ``high priority'' projects. EDA remains committed to its core
mission, articulated in its authorizing legislation, which states in
part that ``the goal of Federal economic development activities should
be to work in partnership with local, regional, and State public and
private organizations to support the development of private sector
businesses and jobs in distressed communities.''
EDA is not shifting the focus of its infrastructure and business
development grants. EDA's Investment Policy Guidelines are merely a
clarification of the evaluation criteria in EDA's longstanding
regulations. The guidelines promote investment decisions based on
outcomes such as value-added employment and private sector investment;
however, application of the guidelines is relative to each proposal
since every project is different in how it addresses the unique needs
of the area it benefits. The investment policy guidelines will lead to
investments that are proactive in nature, look beyond the immediate
economic horizon, anticipate economic change, and enhance regional
competitiveness in distressed communities, both rural and urban. The
Investment Policy Guidelines help ensure that distressed communities
receive the most impact from EDA investments and that taxpayers' funds
are spent in a thoughtful manner with long lasting impact.
noaa's sea grant program
Question. I see little sense in moving Sea Grant from the
Department of Commerce to the National Science Foundation. Please
explain the rationale behind this proposal.
Answer. The proposal is a result of a review of Federal science
programs that the Office of Management and Budget (OMB) conducted and
is consistent with the President's Management Agenda. Under the
proposal, the Sea Grant program would be administered as an NSF/NOAA
partnership. The transfer is part of a wider Administration effort to
promote competitive funding of scientific research and to capitalize on
the demonstrated excellence of the NSF and its program management.
ita textile and manufacturing jobs
Question. Since NAFTA, the textile and apparel industry in the
United States and in South Carolina, we have seen a massive decline in
jobs. In South Carolina, we have lost approximately 50,900 jobs.
Nationally, we have lost nearly 700,000 jobs.
What is the Administration doing to halt this decline and to create
textile and apparel jobs in this country?
Answer. The economic crisis in the textile industry is of great
concern to this Administration. I and other senior Commerce Department
officials, including Under Secretary Aldonas and Assistant Secretary
Lash have traveled to major textile producing states to learn first
hand about the industry's problems and to consult with the industry on
formulating solutions.
We are taking steps to ensure that our textile industry can compete
in global markets. We place a high priority on enforcing our existing
trade agreements on textiles and apparel and will closely monitor
foreign textile trade barriers.
We are committed to leveling the playing field for the textile
industry internationally. To accomplish this, the President and I
established a high level interagency Textiles Working Group. At the
direction of the President and I, the Working Group has begun to
address such issues as:
--aggressively pursuing the opening of foreign markets to U.S.
textile and apparel products in any future trade agreement;
--ensuring compliance with existing agreements on textiles and
apparel and closely monitoring foreign textile trade barriers;
--implementing the WTO Agreement on Textiles and Clothing, including
maintaining the current schedule for, not accelerating, the
elimination of existing quotas;
--strengthening U.S. enforcement efforts to combat illegal textile
transshipment;
--facilitating utilization of trade preference programs with the
Caribbean Basin and Africa, in order to expand exports of U.S.
fiber, yarn and fabric to these regions;
--achieving re-authorization of improved trade adjustment assistance
programs;
--ensuring full access to trade remedy laws for the textile industry,
consistent with international rights and obligations; and
--examining the prospects for economic diversification in the textile
sector.
--Additionally, the Working Group has established a Subgroup on
Compliance and Enforcement that is reaching out to domestic
industry to identify and address market access and compliance
problems.
--Members of the Subgroup are meeting regularly with other U.S.
Government agencies and representatives of U.S. industry to
support work on textiles market access and compliance issues.
--As a result of our compliance efforts, we are examining several
issues including marking and labeling requirements, new
prohibitive tariffs exceeding WTO bound rates, copying of
textile designs, fee and taxes assessed in addition to customs
duties, among other issues.
--We will pursue these issues vigorously and will continue our
efforts in the future. We will be equally vigilant regarding
access to overseas markets when textile restraints under the
WTO expire in 2005.
manufacturing jobs
Question. Job loss in the manufacturing sector over the last year
has been extraordinary. Since the end of 2000, the United States has
lost over 1.5 million of these jobs.
Are creating manufacturing jobs a priority of the Administration?
What will you do to assist in the creation of these sorts of jobs?
Answer. Job creation in all sectors is a priority of this
Administration. The economy's weak performance since mid-2000 has
contributed to an increase in the unemployment rate to 5\1/2\ percent
from a low of about 4 percent. Real GDP advanced a small 0.5 percent
during 2001 (fourth quarter to fourth quarter), despite growing 1.7
percent at an annual rate in the fourth quarter. The 2001 performance
reflected a downshift in the growth rate of consumer spending, a sharp
downturn in business fixed investment, the liquidation of business
inventories, weak economic growth in many foreign economies, and the
economic impact of September 11th terrorist attacks. Businesses
achieved strong productivity growth in 2001 by cutting back employment.
Recent data including consumer spending, industrial production, and
shipments of nondefense capital goods in February suggest that the
economy is emerging from its mild recession.
Continued momentum in consumer spending and a recovery in
investment spending are key to a sustained recovery and to employment
growth. Total employment rose 66,000 in February, after declining 1.4
million between March and January. With demand improving, employment
should continue to rise. Contributing to improving economic conditions
has been the Administration's tax cut and the Federal Reserve's
reductions in short term interest rates. Lower taxes and lower interest
rates supported consumer spending and housing activity in the second
half of last year and early 2002. These policies helped to make this
recession the mildest on record, and helped to contain the losses in
employment.
patent and trademark office
Question. Is the 5-year operating plan for PTO that was submitted
as part of the President's fiscal year 2003 Budget Request the final
version of the 5-year operating plan, which PTO was tasked to write
under the fiscal year 2002 CJS Appropriations Act Conference Report?
Answer. The five-year Business Plan that was drafted last year and
submitted in our fiscal year 2003 budget request is in response to the
fiscal year 2002 CJS Appropriations Act Conference Report. As
presented, it is a traditional response to attack increasing pendency,
and it would stem the dangerous tide of rising pendency that began in
the early 1990s. However, like any business seeking dynamic ways to
improve, the business plan submitted is not set in stone.
As you may be aware, newly installed USPTO Director Jim Rogan was
not a party to the drafting of the submitted plan, although he assures
me that it represents an important first step toward achieving quality
and timeliness improvements. He has also begun an aggressive review of
the USPTO to identify innovative and possibly nontraditional ways to
improve quality and reduce pendency. This process includes a thorough
top-to-bottom review of USPTO spending to ensure that resources are
fully devoted to mission critical tasks and a comprehensive analysis of
how the USPTO and applicants conduct business.
Question. Has a compelling link ever been drawn between reduced
patent pendency and increased numbers of FTE at the PTO?
Answer. Yes, there is a demonstrated and verified link between
reduced patent pendency and increased numbers of patent examiner FTEs.
While increased hiring is not the only solution to the USPTO pendency
challenges, increasing the number of patent examiners is vital to
addressing the growing numbers of applications filed and the inventory
of pending applications. Patent pendency is primarily a function of the
number of applications filed, the number of patent examiner staff
available, and the ever-increasing complexity of the applications.
Pendency rises when the rate of application filings grows faster than
the rate and the ability of staffing levels to absorb them.
Looking back in history, the USPTO faced nearly identical
challenges in the 1980's. The USPTO, at that time, implemented an
aggressive plan to reduce overall pendency to 18 months by increasing
its examining staff. In the years 1980 to 1990, filings grew by 56
percent. During that same period, examiner staff grew by 107 percent
and pendency was lowered from 22.6 months to 18.3 months. In addition
to bringing pendency down, a backlog of more than 80,000 applications
that had built up prior to the increased hiring was cleared.
Conversely in the 1990's, filings grew at a greater rate than staff
and pendency increased. In the years 1990 through 2000, filings grew by
79 percent. Examining staff grew by 71 percent and pendency increased
from 18.3 months to 25 months. Also during this period, there was a
dramatic increase in the filing of biotechnology and electrical arts
applications--some of the most complex applications handled by the
USPTO. This increase in the complexity of applications resulted in a
significant increase in the time spent per application. In addition to
the dramatic increase in pendency during the 1990's, the office has
accumulated a backlog of nearly 332,000 applications. This backlog will
negatively affect pendency both today and in the future.
ntia's technology opportunities program
Question. Mr. Secretary, your Department seems to be at odds over
whether or not the Technology Opportunities Program (TOP) has fulfilled
its mission. According to the Departments' own ``Budget in Brief'', the
TOP grants have demonstrated the use of advanced telecommunications
technologies to enhance the delivery of social services, such as
education, health care, and public safety. Surely these missions have
not been accomplished. Could you explain the rationale behind the
decision to eliminate the TOP grants?
Answer. The TOP program, established in 1994, has been a valuable
program for generating awareness of how advanced telecommunication
technologies can enhance the delivery of social services. But, in light
of higher priorities, this awareness-generating program did not make
the cut in this year's budget.
The Administration does view that government has an important role
to play in fostering the use of advanced telecommunication technologies
to provide important social benefits. However, rather than funding a
limited, general awareness program, the Administration has proposed
funding specific, proven uses of advanced telecommunication
technologies in amounts designed to make a difference. For example:
--Within the Department of Education, $700 million was appropriated
in fiscal year 2002 for Educational Technology State Grants and
continues in the President's Budget request for fiscal year
2003 at $700 million. It is targeted toward high poverty school
districts to better integrate technology into the classroom for
improved student achievement.
--The Department of Agriculture Distance Learning and Telemedicine
Program (DLT) is requesting $27 million for grants and the
authority to make $130 million in loans. The Broadband and
Pilot Program within the DLT Program will finance the
installation of broadband transmission capacity (i.e. the
necessary fiber optic cable capacity needed in order to provide
enhanced services such as Internet or high-speed modems) to and
through rural communities. The DLT Program finances equipment
for schools, libraries and hospitals to connect to the
Internet.
--The Justice Department is requesting $50 million for the Law
Enforcement Technology grant program for State and local law
enforcement; $60 million for states and localities to
computerize and interconnect their crime and court records; as
well as $800 million for the Justice Assistance Grant Program,
a significant portion of which will go towards the acquisition
of communications and information technology for law
enforcement.
--Housing and Urban Development is requesting $20 million for the
Neighborhood Networks Program. It supports the establishment
and operation of computer centers that bring job training and
life long learning to residents of public housing.
The Administration believes that these Federal programs, combined
with the tremendous work being done in the private sector by corporate
and private foundations, are a more effective mechanism for extending
the benefits of advanced telecommunication technologies to all
Americans.
______
Questions Submitted by Senator Herb Kohl
manufacturing extension partnership program
Question. I was disappointed to see that the Administration's
proposed budget would cut the Manufacturing Extension Partnership
Program by $93 million, from $106 million to $13 million. This is a
dramatic cut for a program which is unique in that it targets small
manufacturers. Although the original model for this program was that
licensing technology from federal labs would pay for the assistance the
program provides to small manufacturers, this has not happened. The
reality is that small manufacturers are not in the position to use the
latest technology from federal labs. Rather, this program provides
significant training assistance to small manufacturers across the
nation, and in my state of Wisconsin, by helping level the playing
field as they compete with low-cost foreign suppliers.
There have been many studies of the Manufacturing Extension
Partnership Program over the years. One that has special importance, I
believe, is the 2001 study by Nexus Associates which indicates that a
conservative estimate of the return on investment of MEP Program
dollars is at least 4 to 1. Did the Commerce Department look at this
study before you made your decision to cut the MEP Program?
Answer. There have been numerous studies that point to the fact
that MEP is a successful program. However, given that this Nation is
fighting a war against terrorism, difficult choices have to be made in
terms of priorities within the Federal budget. Unfortunately, every
program cannot be funded. In the fiscal year 2003 President's budget
request, MEP was funded at $12.9 million to fund two centers that are
less than six years old and to administer the program and develop
products and services for centers.
Question. Many large U.S. manufacturers are under tremendous
pressure to purchase from low-cost foreign suppliers that have low
labor costs or governmental support to capture business or both. As we
have seen in Wisconsin, the Manufacturing Extension Partnership Program
is one program that has been successful in giving these large companies
a reason to keep purchasing from small U.S. manufacturers because it
has helped make their suppliers more competitive.
If the Manufacturing Extension Partnership Program were to go away,
and I fear that it will if the cut you are proposing holds, what does
the Administration propose to do to help U.S. suppliers keep business
and jobs in this country?
Answer. Since approximately two-thirds of their funding comes from
state and local organizations and from fees for service, we believe
that many MEP centers will continue to operate without Federal funding.
As a result, small businesses will continue to receive the expertise
and assistance from the centers, which will keep them competitive. MEP
has been a successful program and demand for its services continues to
increase. To offset the loss of Federal funding, centers could increase
fees receipts. Given the centers' success in improving productivity and
efficiency, assessing fees for service should be the direction in which
the program heads. The benefits to small firms seeking MEP assistance,
such as improved productivity and efficiency, should outweigh the cost
of the fees. Large manufacturers that depend on smaller companies may
also wish to provide support to MEP centers to ensure the continuing
success of their smaller suppliers.
Question. What do you believe is the appropriate role for
government in helping small businesses compete?
Answer. The Federal government should ensure that small businesses
have the resources needed to be competitive. In the case of MEP, the
Federal government's role was to help start these MEP centers across
the United States with the goal of helping small manufacturers improve
their competitiveness. MEP's initial mission was to provide start-up
funding to centers for a six year period with the assumption that after
six years the centers would be up and running and could operate using
funds from sources such as private funding, state funding, local
funding and fees.
______
Questions Submitted by Senator Judd Gregg
commerce administrative management system (cams)
Question. Mr. Secretary, have you reviewed the status of the
Commerce Administrative Management System (CAMS)? Are you satisfied
with the progress that has been made on this project? What are you
doing to assure that CAMS will be delivered on time, within budget and
to specifications?
Answer. I am aware of the status of CAMS and the schedule for its
full implementation throughout the Department. I am also aware of the
statutory requirements in the Chief Financial Officers (CFO) Act of
1990 for integrated financial systems, as well as the need to provide
managers within the Department timely, accurate financial data.
Implementation of CAMS is critical to meeting both of these
requirements. Separate reviews conducted within the last three years by
Booz Allen Hamilton and the Department of Commerce's Inspector General
agree that the Department would not gain by switching to another
software package. In addition, while OMB gave the Department a ``red''
on the President's Management Scorecard for financial management
because of our lack of an integrated financial system, we received a
``green'' in the same category on its planning/progress scorecard. This
is based on the progress we are making to achieve that goal.
As far as our level of satisfaction where progress has been made, I
do not believe any manager should be satisfied with the progress of a
project that has been underway for seven years, and is still not
completed. However, I do believe that we now have a sound plan for
completing this project, and the support of the senior managers in our
bureaus to achieve that goal. And, with the Congress' support, that
goal will be met in fiscal year 2003. In spite of a $3 million
reduction in its CAMS budget, NOAA is working closely with the
Department to complete their implementation this fiscal year, giving us
control over federal funds not possible in the current 30-year-old
system. NIST has begun their conversion and will be the final component
to bring CAMS online in fiscal year 2003, assuming the Congress
appropriates the funds necessary to finish this project.
There have been a number of lessons learned in this project which
we are utilizing to successfully complete the project and better manage
our financial information. We have also examined other financial
systems implementations throughout the government to learn from their
experiences, as well. Unfortunately, we have found our experience is
not unique. Virtually every department or agency that has integrated
multiple legacy systems in their component organizations into a single
system of record has encountered significant delays and cost overruns.
In the Department of Commerce, there were 36 separate major interfaces
to address, and countless ``cuff systems.''
One of the major reasons we believe CAMS is now on target is the
close coordination between the bureaus and the Department's team
managing the overall implementation. The initial approach was very
decentralized and resulted in little oversight of the bureaus'
implementation budgets and, too often, customized software to meet
bureau requirements. Every bureau budget for CAMS is reviewed by the
Department CFO's office, which has responsibility for ensuring our
schedule is maintained and the product delivered meets all external and
management requirements. In addition, finance officers from throughout
the Department determine a standard approach to financial processes
such as year-end closing and reporting, which is then implemented.
The CAMS Executive Board, consisting of the CFOs from the bureaus
using or implementing CAMS, recommends overall policy to the CFO and
reviews any major software changes. The only major bureaus scheduled to
implement CAMS who are not already on the system are NOAA and NIST. The
Deputy CFO and his staff meet with NOAA management at least biweekly to
discuss programmatic and budget issues. The technical staffs meet
weekly, to ensure the schedule is met. The $3 million reduction in
NOAA's appropriation for CAMS will impede our ability to provide the
systems capability to eliminate some manual activity this year, but we
are confident we will complete the system and comply with OMB Circular
A-127 on schedule.
A similar approach to completing the final bureau implementation at
NIST is being utilized. Our completion of this project and CAMS overall
is contingent on Congressional approval of the Department's
appropriation for CAMS.
Question. Your budget request includes $41.93 for CAMS in fiscal
year 2003. Does the budget include funding for separate information
technology systems at the EDA, the MBDA, the BXA, and the ESA? If so,
why are these systems not tied into CAMS? What other information
technology systems within the Department of Commerce are not tied to
CAMS and what is their status?
Answer. The bureaus you identify do not maintain their own
financial management systems. They are all cross-serviced by other
bureaus utilizing, or implementing, CAMS. All but BXA are supported by
NIST, which converted to CAMS for those bureaus it cross-serviced in
fiscal year 2001, though NIST itself is scheduled to implement CAMS in
fiscal year 2003. BXA is supported by NOAA, which will complete its
implementation of CAMS in fiscal year 2002. The $41.93 million does
include the costs for support provided to those bureaus.
The budgets for the bureaus listed, along with all the Commerce
bureaus, include funding for separate information technology systems,
most of which, since they are not directly linked to the financial
systems, are not tied to CAMS. The Department has an Information
Technology Investment Review Board whose purpose is to: review the
business case for any enterprise system development initiative in the
Department; determine if an adequate capital asset plan is in place;
evaluate the soundness of the technical design and implementation
strategy; review the acquisition plan; and ensure that the appropriate
ties to the CAMS financial system have been considered and planned. In
the case of CSTARS, the Department's acquisition management system, the
Board reviewed and approved the business case for CSTARS after they
were presented with a plan for integrating CSTARS with CAMS. In fact,
the Office of Financial Management and the Office of Acquisition
Management have successfully collaborated on the design of an interface
between the two systems. Any other enterprise system in the Department
that generates data with a financial impact is required to go through
this same process with the Investment Review Board.
The majority of the information technology systems in Commerce are
not directly linked to the financial system. These include
infrastructure and mission or program-specific systems that do not have
a financial component and therefore do not have to tie to CAMS. These
other information technology systems support the wide range of programs
in the Department, including the following:
--Census and Surveys
--Advanced Short Term Warning and Forecast Services
--Implement Seasonal to Interannual Climate Forecast
--Predict and Access to Decadal to Centennial Change
--Promote Safe Navigation
--Build Sustainable Fisheries and Recover Protected Species
--Sustain Healthy Coasts
--Enforce U.S. Trade Laws
--BEA Statistical Estimation
--Export Control
--Measurement and Standards Laboratories
--Advanced Technology Program
--Manufacturing Extension Partnership
--Radio Spectrum Assignments
--Digital Department
--Grant Processing and Management
--IT Infrastructure and Office Automation Support to all program
areas.
homeland security
Question. Mr. Secretary, could you discuss the evaluative process
the Bureau of Export Administration undertook to determine why and
where attaches were needed?
Answer. In its evaluative process, the Bureau of Export
Administration (BXA) focused on placing attaches in countries where the
Bureau had the greatest concerns of illegal diversions of dual-use
items to weapons of mass destruction (WMD) programs or for WMD
capabilities. The countries identified were China, Russia, the United
Arab Emirates (UAE), India, Singapore, and Egypt:
--The attache in Beijing would be responsible for conducting end-use
checks on U.S. commodities and technologies exported to North
and Central China. Ensuring that these items are not diverted
to unauthorized military or other end uses is particularly
critical in this region, which is the major production area for
the People's Liberation Army (PLA) and China's military-
industrial complex.
--The attache in Shanghai would focus on performing end-use checks in
South and West China. With significant commercial centers and
transportation hubs, this large region poses significant risks
of diversion.
--Russia's physical proximity to and close commercial relationships
with countries of proliferation concern such as Iran, Iraq, and
India make Russia a critical country in which to post an
attache.
--The UAE is a major transshipment point for U.S. products going to
Iran, Iraq, and Pakistan. Front companies are set up in the UAE
specifically to move advanced technology to the WMD projects of
those countries. An attache on the ground is important to
monitor developments, gather information, and perform end-use
visits.
--The attache in India would monitor WMD programs in the South Asia
region and, through end-use visits, seek to prevent diversions
to those programs.
--The attache in Singapore would monitor transshipments through
Singapore, which is the largest port in the world, and would
work within Southeast Asia to halt the transfer of strategic
products to WMD programs or uses.
--Egypt's physical proximity and close commercial relationships with
the Sudan and Libya make it a transshipment risk. The attache
in Egypt would more closely monitor possible transshipments to
these countries. The attache also would perform end-use checks
in Malta and Cyprus, which are other key transshipment ports in
the region.
Question. Prior to this year, who was responsible for conducting
export monitoring and enforcement in Russia, the United Arab Emirates,
India, and Singapore?
Answer. In March 2001, BXA placed an export control attache in
Moscow. This attache is responsible for conducting end-use checks,
advising the embassy on dual-use export control issues, and working
with the Russian government and local industry on export control
issues. The Department of Commerce's Foreign Commercial Service
officers, supplemented by special agents from BXA's Office of Export
Enforcement (OEE) who travel overseas as part of the OEE Safeguards
Program, are responsible for conducting export monitoring for the UAE,
India, and Singapore.
Question. Why is this receiving attention only now?
Answer. Since, BXA has been conducting its statutorily-mandated
mission of seeking to prevent illegal diversion of controlled items in
or through these countries for many years. BXA efforts have intensified
as the likelihood that dual-use commodities and technologies could be
illegally diverted to weapons of mass destruction projects has
increased and because of the growing importance of the countries
identified above as transfer points for sensitive Commerce-licensed
goods. BXA increased its Safeguards visits (composed of OEE special
agents) to these countries and received temporary funding for our
attache in Moscow from the State Department.
Question. Does BXA's mission for export enforcement overlap with
the mission of the Department of State's Bureau of Verification and
Compliance? If so, in what way do they overlap and how do you expect to
resolve this jurisdictional issue?
Answer. There are only two agencies with statutorily-mandated
responsibilities for verifying the end use of U.S. exports--the State
Department and the Commerce Department. The State Department and
Commerce Department have clearly delineated roles in the export control
process. State licenses and verifies the end-use of munitions articles,
while Commerce licenses and verifies the end-use of dual-use items
(i.e., items having both a military and a commercial use).
The Commerce Department established an end-use verification program
in the early 1970s to conduct end-use verifications on certain products
exported under Commerce-issued licenses or licence exceptions provided
for in the Export Administration Regulations. These end-use checks are
carried out by the Commerce Department's Foreign Commercial Service
officer posted at the U.S. embassy in the destination country, or by
Safeguards teams comprised of special agents from BXA's Office of
Export Enforcement.
The State Department has established the Blue Lantern program,
based on the Commerce program, to conduct end-use verifications on
munitions exports. Those munitions are licensed for export by the State
Department, and the Customs Service has exclusive enforcement authority
for any related violations. This program is carried out by designated
State Department or Treasury Department employees assigned to the U.S.
embassy in the destination country. Each embassy must designate a Blue
Lantern coordinator each year. Embassies typically choose either an
economics officer, political officer, or the Customs Service attache
for this position.
Accordingly, there is no overlap in the end-use verification
programs conducted by the Departments of Commerce and State.
Transactions are regulated either by Commerce or State. The nature of
the items regulated by each differs fundamentally.
critical infrastructure protection
Question. What criteria are used to evaluate CIAO and how regularly
is this office evaluated?
Answer. The Critical Infrastructure Assurance Office (CIAO) is
reviewed annually on the basis of two performance goals. The first
performance goal involves engendering awareness among the owners and
operators of the nation's critical infrastructures (both private sector
and state/local governments) on the need to secure their assets,
systems, and networks against deliberate physical and cyber attacks.
The CIAO is evaluated on the basis of how well it carries out its
responsibilities for promoting national outreach, education, and
awareness, and for coordinating the preparation of an integrated
national strategy for critical infrastructure assurance.
--National Outreach, Education, and Awareness.--The challenge of a
national outreach and awareness effort is to present a
compelling business case for corporate action. The primary
focus of the CIAO's effort is on the nation's critical
infrastructure industries (e.g., information and
communications, banking and finance, transportation, energy,
and water supply), and particularly the corporate boards and
chief executive officers who ultimately are responsible for
setting company policy and allocating company resources. The
basic message conveyed is that critical infrastructure
assurance is a matter of sound corporate governance and prudent
risk management. Senior management is responsible for securing
corporate assets--including information and information
systems. Corporate boards are accountable, as part of their
fiduciary duties, to provide effective oversight of the
development and implementation of appropriate infrastructure
security policies and best practices.
In addition to infrastructure owners and operators, the CIAO's
awareness and outreach efforts target other influential
stakeholders in the economy. The risk management community--
including the audit and insurance professions--is particularly
effective in raising matters of corporate governance and
accountability with corporate boards and senior management. In
addition, the investment community is increasingly interested
in how information security practices affect shareholder
value--a concern of vital interest to corporate boards and
management.
--National Strategy.--A national strategy for critical infrastructure
assurance developed jointly between government and industry is
essential to developing a consensus about respective roles and
responsibilities. A national strategy also will help to
establish a basis for proposing legislative and public policy
reforms where such reforms are needed to advance national
policy on critical infrastructure assurance.
The development of a national strategy will not be an end in
itself, but part of an ongoing process in which government and industry
will continue to modify and refine their efforts at critical
infrastructure assurance, adjust to new circumstances, and update the
national strategy as appropriate. A particular focus of this strategy
will be on cyberspace security. The White House has assigned the task
of coordinating the development and final integration of this strategy
to the CIAO. The Administration's strategy will be completed during
2002, with updates and revisions expected during 2003.
The second performance goal for the CIAO involves assisting
civilian federal departments and agencies in analyzing their
dependencies on critical infrastructures to assure the delivery of
federal government services that are essential to the nation's
security, economy, or the health and safety of its citizens. To carry
out this mission, the CIAO developed ``Project Matrix,'' a program
designed to identify and characterize accurately the assets and
associated infrastructure dependencies and interdependencies that the
U.S. Government requires to fulfill its most critical responsibilities
to the nation. These are deemed ``critical'' because their
incapacitation could jeopardize the nation's security, seriously
disrupt the functioning of the national economy, or adversely affect
the health or safety of large segments of the American public. Project
Matrix involves a three-step process in which each civilian federal
department and agency identifies: (i) its critical assets; (ii) other
federal government assets, systems, and networks on which those
critical assets depend; and (iii) all associated dependencies on
privately owned and operated critical infrastructures.
Question. What function does CIAO perform that no other agency
does?
Answer. The CIAO performs a number of essential, non-duplicative
functions in connection with the Administration's overall critical
infrastructure protection efforts. Under Executive Order 13231 (the
Order), issued on October 18, 2001 and entitled ``Critical
Infrastructure Protection in the Information Age,'' the CIAO supports
the newly created President's Critical Infrastructure Protection Board
(the Board). The Board was created to coordinate federal efforts and
programs relating to the protection of information systems and networks
essential to the operation of the nation's critical infrastructures. In
carrying out its responsibilities, the Board fully coordinates its
efforts and programs with the Assistant to the President for Homeland
Security.
Under the Order, the CIAO also supports the activities of the
National Infrastructure Advisory Council (NIAC). The NIAC will be
composed of thirty senior executives from private industry, academia,
and state and local governments who will advise the President on
matters relating to the security of information systems for critical
infrastructures that support other sectors of the economy, including
banking and finance, transportation, energy, manufacturing, and
emergency government services.
The CIAO also will administer a new program--the Homeland Security
Information Technology and Evaluation Program--to assess federal
information systems and methods of acquiring and distributing
information to improve data sharing among federal agencies for
emergency response, law enforcement, intelligence, border security, and
immigration. The program office established in CIAO will propose
methods to improve information sharing among federal agencies and state
and local governments. The CIAO will work closely with and take direct
guidance from the Office of Homeland Security and the Office of
Management and the Budget to ensure consistency with the
Administration's overall homeland security policy.
In addition to these responsibilities, the CIAO will continue to
perform its national outreach and awareness efforts, its coordination
of the national strategy for critical infrastructure assurance, and its
efforts to assess federal agency dependencies via Project Matrix as set
forth in detail above. These functions remain essential to carrying out
the Administration's policy for homeland security and critical
infrastructure protection and are not performed by any other agency.
Question. Does CIAO's work overlap with the FBI's National
Infrastructure Protection Center or any other Federal agencies or
offices?
Answer. No. The CIAO and the National Infrastructure Protection
Center (NIPC) do very different things. While both organizations engage
in industry outreach, their efforts are complementary rather than
duplicative. The CIAO focuses on raising national awareness of critical
infrastructure assurance issues across industry sectors, influencing
corporate information assurance policy, promoting market solutions for
greater cyber security, and addressing legislative and legal issues
that potentially undermine business incentives to maximize voluntary
efforts at securing critical infrastructures. NIPC seeks to encourage
private industry to share information about cyber vulnerabilities and
incidents so that it can assist companies in preventing specific types
of attacks and investigating such attacks when they occur. Both efforts
are required elements of overall critical infrastructure assurance
policy.
Question. Since it was established in fiscal year 1999, we have
appropriated a total of $20.5 million for CIAO. What is the argument
for continuing--and this year expanding--CIAO?
Answer. The argument for continuing the CIAO is that the office
continues to play an essential role in advancing the Administration's
critical infrastructure protection efforts. The specific roles and
functions that justify the office's continued operation--including
promoting national awareness and outreach on critical infrastructure
assurance issues, coordinating the development of the national strategy
for critical infrastructure protection, analyzing federal asset
dependencies through Project Matrix, supporting the work of the
President's Critical Infrastructure Protection Board and the National
Infrastructure Advisory Council, and administering the Homeland
Security Information Technology and Evaluation Program--are described
in detail above.
Question. As I understand it, CIAO's original purpose was to liaise
with the private sector to ensure that inattention to critical
infrastructure protection did not provide opportunities to those who
seek to cause damage to our Nation's physical or economic security.
Now, CIAO has become a policy-making office with responsibility,
according to the fiscal year 2003 budget request, for coordinating with
the Office of Homeland Security, conducting a study of other agencies'
information systems, and developing models for improved information-
sharing among agencies. From whence does CIAO derive its authority to
undertake these initiatives, many of which will require intimate
involvement with our Nation's law enforcement agencies? Is this not an
example of mission creep at its worst?
Answer. The CIAO always has served as an interagency policy-
coordinating office; it has never been nor seeks to be a policy-making
office. As discussed above, the CIAO serves a number of functions in
addition to promoting national public-private awareness and outreach.
The CIAO will administer the Homeland Security Information Technology
and Evaluation program, working closely with the Office of Homeland
Security and the Office of Management and the Budget. Assigning this
program to the CIAO is not an example of mission creep. Three
particular attributes made the CIAO a good choice for this program.
First, the CIAO is an interagency office that already has demonstrated
effectiveness in crossing agency boundaries to achieve broad program
goals and recommend actions to policy officials for improved program
performance within the agencies. Second, the CIAO has extensive
experience in analyzing critical federal government functions and
systems under the highly successful Project Matrix program. The CIAO
knows how to manage and leverage expertise within the federal
government and from the private sector to achieve specific programmatic
outcomes. Third, and perhaps most important, Commerce and the CIAO have
no vested interest in the outcome of any decisions on implementation of
recommendations. Implementation of any recommendations proposed by the
program office within the CIAO will fall on the relevant lead agencies.
Locating the program office in the CIAO was one way to ensure
institutional neutrality in the development and evaluation of various
policy options. Housing this program office in the CIAO will not result
in the program office becoming ``operational.'' Any recommendations
that are made by the program office will be reviewed by an interagency
Information Integration Management Review Board, led by a Deputy
National Security Advisor, and will be carried out by the relevant
department or agency.
Question. Mr. Secretary, are you aware of the important work the
Dartmouth Institute for Security and Technology Studies in this area
(critical infrastructure protection)? Two years ago, I helped get this
program off the ground. Its mission is to study and develop
technologies addressing counter-terrorism, especially counter-cyber
terrorism. Its core research program studies threats to electronic
information infrastructure systems and technologies, and seeks
appropriate and effective technological preparedness, response and
recovery actions, as well as training and information needs. This
program has enormous potential--Dartmouth has the ability to draw upon
some of the best minds in the country. I would ask you to look at how
the Department of Commerce (specifically CIAO and NIST) can integrate
and coordinate its efforts with the work being done at ISTS.
Answer. The Dartmouth Institute for Security and Technology Studies
(ISTS) is the Executive Agent for the Institute for Information
Infrastructure Protection (I\3\P), funded through the National
Institute of Standards and Technology (NIST). The CIAO has been
involved with that initiative to develop a national R&D agenda. At the
request of the Special Advisor to the President for Cyberspace
Security, the first scheduled I\3\P meeting will be in the Washington,
D.C. area on April 15-16, 2002, to allow for coordination between I\3\P
and the President's Critical Infrastructure Protection Board. The
Director of the CIAO will participate in that meeting.
The CIAO also has been working closely with the ISTS through the
National Institute of Justice (NIJ). Recently, NIJ has reviewed and
approved a proposal from ISTS for investigative research for
infrastructure assurance. CIAO is represented on the NIJ review board
and has been fully engaged in the ISTS review and approval process.
(NIST is also represented on the review board.)
Mr. Vatis (Director, Dartmouth ISTS) has invited CIAO officials to
New Hampshire for a visit of the ISTS facility and that visit should
take place in the next several months. The purpose of the visit is two
fold: (1) to see the facilities and capabilities first-hand; and (2) to
discuss how we may partner in the future on many of these important
issues.
With regards to NIST, NIST has met with ISTS representatives on a
number of occasions to discuss our mutual programs so as to both avoid
duplication and also to explore areas of mutual cooperation. NIST has,
in fact, been invited by the National Institute of Justice to review
on-going and proposed ISTS work items. We intend to continue to do so.
national institute for standards and technology (nist)
homeland security
Question. How is NIST currently supporting Federal efforts to
combat terrorism?
Answer. NIST has for many years provided measurements, standards,
data, and technical advice to help Federal, state, and local agencies
and the private sector protect U.S. citizens from terrorist and
military threats, natural disasters, and other types of security
threats. NIST's broad expertise in measurement science and technology
supports current and future homeland security applications and
research. For example, NIST provides standards to ensure accurate
forensic DNA analysis, develops computer security standards with the
private sector, provides tools to analyze building fires and collapses,
develops measurements and standards to support chemical, biological,
radiological, nuclear and explosive (CBRNE) threat detection, and
provides a broad range of support for many other security activities.
NIST's Office of Law Enforcement Standards (OLES) works with Federal
agencies to develop standards, test methods, and procedures for
evaluation technologies used by the public safety and criminal justice
communities, which includes law enforcement, corrections, forensic
science, the fire service, and emergency responders. OLES work focuses
on the areas of public safety communications standards, detection and
inspection systems, chemical detection, forensic sciences, weapons and
personal protective systems, and critical incident technologies.
Since immediately following the September 11 attacks, NIST experts
have been working with Federal, state, and local government agencies
and the private sector to help mitigate the effects of the attack and
learn how to prepare against possible future attacks. For example, NIST
building and fire experts have worked on teams probing the causes of
the collapse of the World Trade Center towers and the damage to the
Pentagon. NIST scientists provided expert advice on DNA analysis to
identify remains of terrorist victims. Following the anthrax attacks,
NIST experts have worked with the U.S. Postal Service and other Federal
agencies to ensure that commercial radiation facilities can be used to
sanitize mail potentially contaminated with anthrax and/or other
biological bacteria. NIST scientists have also worked with Federal
officials to model the transport of anthrax bacteria through the Hart
Senate Office Building to better understand how to best decontaminate
that facility.
NIST is conducting more that 75 ongoing and newly initiated
research and standards development projects to support law enforcement,
military operations, emergency services, airport and building security,
cyber security, and research into future security technologies. Because
much of NIST's work builds general measurement and standards
capabilities that are applicable to a wide range of applications in
addition to homeland security, it is difficult to accurately report the
resources devoted to homeland security. NIST estimates at least a $40
million current investment in measurements and standards work directly
or indirectly related to homeland security.
Question. Mr. Secretary, with regard to NIST's investigation into
the collapse of the World Trade Center towers, it has been brought to
my attention that the engineers who were on-site in the first days
following the attack pleaded with FEMA to save some key pieces of the
destroyed structure for research purposes. Their requests were ignored,
and much of the wreckage is no longer available for study. So, my
question for you is: What is NIST going to study? Is any field research
going to be done, or is this largely going to be a theoretical study
using computer models?
Answer. The primary objectives of the independent and comprehensive
NIST-led technical investigation of the WTC disaster are to:
--Determine technically, why and how the World Trade Center buildings
collapsed following the airplane impacts.
--Determine why the injuries and fatalities were so high or low
depending on location, including all technical aspects of fire
protection, response, evacuation, and occupant behavior and
emergency response.
--Determine whether or not state-of-the-art procedures and practices
were used in the design, construction, operation, and
maintenance of the World Trade Center buildings.
--Determine whether there are new technologies or procedures that
should be employed in the future to reduce the potential risks
of such a collapse.
--Identify building and fire codes, standards, and practices that
warrant revision.
NIST will ensure a totally independent technical investigation both
in planning and conducting the investigation and in publishing its
findings and recommendations. The technical issues are highly complex,
unique, and subtle. The focus of the investigation will be on creating
new technical and/or scientific knowledge. The technical work will be
thorough, deliberate and rigorous. The results will be objective and
unbiased. NIST will provide timely and open public disclosure within
legal bounds on the progress of the investigation. NIST will make no
findings of fault or responsibility. It will make no determination as
to behavior or negligence of any individual or organization.
The technical approach of the NIST investigation will include the
following phases:
--Data Collection: inputs from the Port Authority of New York and New
Jersey (PANYNJ) and local authorities; building and fire
protection design, plans, and specifications; construction,
maintenance, operation records, building renovations and
upgrades; video and photographic data; field data; interviews;
emergency response records including audio communications; and
other records.
--Analysis and Comparison of Building and Fire Codes: analysis and
comparisons of codes and standards then and now, and
specifications used for WTC buildings.
--Identification of Technical Issues and Major Hypotheses Requiring
Investigation: opportunity for public input (e.g., open forum;
website; Federal Register notice); convene expert panels to
solicit input (experts in structural and fire protection
engineering; experts in construction, maintenance, operation
and emergency response procedures of tall buildings); findings
and recommendations of FEMA-funded study; analyze inputs and
establish priorities; review and approval by independent
Technical Review Panel.
--Collection and Analysis of Forensic Evidence: structural steel,
material specimens and other forensic evidence to the extent
they have been collect or are otherwise available;
metallurgical and mechanical analysis.
--Modeling, Simulation, and Scenario Analysis: aircraft impact on
structures and estimate damages to interior and core structure
and residual capacities; role of jet fuel and building contents
in resulting fire; fire dynamics and smoke movement; thermal
effect on structures and the effect of fireproofing; structural
response under fire and the effect of connections, flooring
system, core and exterior columns, and the overall structural
system; occupant behavior and response including influence of
communications and barriers to egress; evacuation issues
including egress, analysis of control/fire panels, emergency
response, and communications; analysis of fire protection
system design and vulnerability; and analysis of structural
collapse mechanisms including evaluation of system
vulnerability to progressive collapse and fires, scenario
analysis to test hypothesis and address technical issues, and
establishing bounds for probably technical causes.
--Testing to Demonstrate Scenarios and Failure Mechanisms: small and
some real-scale re-creation tests to provide additional data
and verify simulation predictions, especially effect of fires
(e.g., use and adequacy of standard fire ratings, behavior of
connections and assemblies).
--Preparation of Interim and Final Reports: review and approval by
specially appointed and independent Technical Review Panel;
dissemination via published reports, web, and media.
--Presentation of Findings and Technical Recommendations: building
and fire safety communities and including appropriate codes and
standards and professional practice organizations, and the
media.
world trade center towers
Question. Mr. Secretary, with regard to NIST's investigation into
the collapse of the World Trade Center towers, it has been brought to
my attention that the engineers who were on-site in the first days
following the attack pleaded with FEMA to save some key pieces of the
destroyed structure for research purposes. Their requests were ignored,
and much of the wreckage is no longer available for study. So, my
question for you is: What is NIST going to study? Is any field research
going to be done, or is this largely going to be a theoretical study
using computer models?
Answer. The primary objectives of the independent and comprehensive
NIST-led technical investigation of the WTC disaster are to:
--Determine technically, why and how the World Trade Center buildings
collapsed following the airplane impacts.
--Determine why the injuries and fatalities were so high or low
depending on location, including all technical aspects of fire
protection, response, evacuation, and occupant behavior and
emergency response.
--Determine whether or not state-of-the-art procedures and practices
were used in the design, construction, operation, and
maintenance of the World Trade Center buildings.
--Determine whether there are new technologies or procedures that
should be employed in the future to reduce the potential risks
of such a collapse.
--Identify building and fire codes, standards, and practices that
warrant revision NIST will ensure a totally independent
technical investigation both in planning and conducting the
investigation and in publishing its findings and
recommendations. The technical issues are highly complex,
unique, and subtle. The focus of the investigation will be on
creating new technical and/or scientific knowledge. The
technical work will be thorough, deliberate and rigorous. The
results will be objective and unbiased. NIST will provide
timely and open public disclosure within legal bounds on the
progress of the investigation. NIST will make no findings of
fault or responsibility. It will make no determination as to
behavior or negligence of any individual or organization.
The technical approach of the NIST investigation will include the
following phases:
--Data Collection: inputs from the Port Authority of New York and New
Jersey (PANYNJ) and local authorities; building and fire
protection design, plans, and specifications; construction,
maintenance, operation records, building renovations and
upgrades; video and photographic data; field data; interviews;
emergency response records including audio communications; and
other records.
--Analysis and Comparison of Building and Fire Codes: analysis and
comparisons of codes and standards then and now, and
specifications used for WTC buildings.
--Identification of Technical Issues and Major Hypotheses Requiring
Investigation: opportunity for public input (e.g., open forum;
website; Federal Register notice); convene expert panels to
solicit input (experts in structural and fire protection
engineering; experts in construction, maintenance, operation
and emergency response procedures of tall buildings); findings
and recommendations of FEMA-funded study; analyze inputs and
establish priorities; review and approval by independent
Technical Review Panel.
--Collection and Analysis of Forensic Evidence: structural steel,
material specimens and other forensic evidence to the extent
they have been collect or are otherwise available;
metallurgical and mechanical analysis. By testing the material
samples that are available, we believe we can make limited
determinations on the quality of steel and the maximum
temperatures reached by the steel. These determinations would
be valid for the samples actually tested and to the extent that
those samples are representative of steel used elsewhere in the
buildings. In addition, the field observations already made by
the ASCE team have enabled them to draw useful inferences on
the possible mechanisms of structural failure.
--Modeling, Simulation, and Scenario Analysis: aircraft impact on
structures and estimate damages to interior and core structure
and residual capacities; role of jet fuel and building contents
in resulting fire; fire dynamics and smoke movement; thermal
effect on structures and the effect of fireproofing; structural
response under fire and the effect of connections, flooring
system, core and exterior columns, and the overall structural
system; occupant behavior and response including influence of
communications and barriers to egress; evacuation issues
including egress, analysis of control/fire panels, emergency
response, and communications; analysis of fire protection
system design and vulnerability; and analysis of structural
collapse mechanisms including evaluation of system
vulnerability to progressive collapse and fires, scenario
analysis to test hypothesis and address technical issues, and
establishing bounds for probably technical causes.
--Testing to Demonstrate Scenarios and Failure Mechanisms: small and
some real-scale re-creation tests to provide additional data
and verify simulation predictions, especially effect of fires
(e.g., use and adequacy of standard fire ratings, behavior of
connections and assemblies).
--Preparation of Interim and Final Reports: review and approval by
specially appointed and independent Technical Review Panel;
dissemination via published reports, web, and media.
--Presentation of Findings and Technical Recommendations: building
and fire safety communities and including appropriate codes and
standards and professional practice organizations, and the
media.
patent and trademark office (pto)
Question. How is a 21 percent increase for the Patent and Trademark
Office justified? What evidence do you have that higher funding levels
will necessarily lead to improved turnaround rates on pending patents
and trademarks?
Answer. As the importance of intellectual property assets has
increased in society, so too has the USPTO's workload. In fiscal year
2001, patent filings increased 11.2 percent above fiscal year 2000's
level. Since 1996, patent filings are up over 70 percent and these
levels of growth are expected to continue for the next several years.
Trademark filings in fiscal year 2001, while down 21 percent, were
still the second highest level ever and follow two consecutive years of
27 percent increases. In recent years, the USPTO budget has not been
increased relative to this dramatic growth in its workload.
Without adequate and sustained funding, we cannot reduce pendency
in the short term or invest in business process changes that will allow
us to better manage workloads in the future. Patent and trademark
processing and pendency times are highly dependent on the number of
applications filed, existing pending inventories, and staffing levels
specific skills. Successive years of insufficient funding relative to
workloads have contributed to staffing levels that were woefully
inadequate to keep up with new filings. As a result, pendency increased
well beyond established goals.
Trademark pendency to first office action dropped below our goal of
three months and reached its lowest level in thirteen years in 2001.
This accomplishment was achieved as a result of declining application
filings, a greater reliance on electronic communications and systems,
and a larger and more productive examination staff. Our request for
2003, to complete the process redesign of the trademark operation by
delivering a fully electronic workflow, represents the final investment
in our successful integration of automated systems and processes that
will allow us to manage more filings with fewer staff by relying on
electronic filing and communications. Trademarks will use $18.1 million
of the 21 percent increase to complete its process redesign and deliver
a fully electronic trademark workflow by 2004. This e-Government
initiative represents an investment in the future ability of the USPTO
to create a process that will enable us to handle fluctuations in
trademark filings with more predictable results and reduce our
dependence on ever increasing budget requests and staffing relative to
workloads.
The Patent Business has been experiencing double-digit growth rates
as high as 12 percent annually for a number of years. Patent
applications are estimated to increase by 10 percent from fiscal year
2003 through fiscal year 2007. The majority of these applications are
in the high technology fields. Patents must have the flexibility to
hire additional examiners who have the industry specific knowledge to
examine these complex applications. The Patent Business is also fully
aware of customer concerns about increasing pendency. To address this
problem, the Patent Business plans on hiring 950 patent examiners in
fiscal year 2003 and for several years thereafter. Hiring these
examiners will allow us to begin turning the corner on pendency in
fiscal year 2004. Without sufficient and sustained funding to hire
additional examiner staff, the USPTO will be unable to maintain a
pendency level that is acceptable to our customers.
Question. In the fiscal year 2002 Commerce appropriations bill, the
PTO was directed to develop a five-year plan. We understand that this
plan was debuted in the PTO's fiscal year 2003 budget request. How
heavily were you involved in the preparation of this plan? What is your
opinion of it?
Answer. The five-year Business Plan that was submitted as the
fiscal year 2003 budget request is in response to the fiscal year 2002
CJS Appropriations Act Conference Report. The plan establishes goals
for timeliness and quality for patent and trademark processing. The
USPTO kept both the Deputy Secretary and myself informed of their
planning process. While I believe the Business Plan represents a start
toward achieving quality and timeliness improvements, I support USPTO
Director Jim Rogan's efforts to seek innovative ways to achieve even
greater pendency and quality improvements than those identified in the
Business Plan.
Question. What progress has PTO made towards a paperless patent
application process? Is this a priority for you?
Answer. Implementing paperless patent application processing at the
USPTO is of the highest priority. We have recently initiated an
automation initiative, called Tools for Electronic Application
Management (TEAM), that will establish the infrastructure required to
support the electronic processing of patent applications while
retaining the essential legal and business processes that protect the
intellectual property rights of the applicants. The TEAM program will
support the entire patent application process beginning with
application authoring, through the Electronic Filing System (EFS), and
proceeding through to electronic publishing and records archival.
The TEAM program will also integrate individual automated
information systems, both existing and to be developed, to achieve the
appropriate legal replication of the current paper-based patent
business process. The electronic patent application process must
support statutory regulations promulgated by Congress, as codified
under Title 35 of the United States Code (35 U.S.C.), both as they
presently exist and as they may become enacted in the future.
Additionally, the electronic patent application process must be
commensurate with USPTO's rules and interpretations of the statutory
regulations, as published within Title 37 of the Code of Federal
Regulations (37 C.F.R.). TEAM will be implemented in phased releases
with full implementation scheduled for September 2006.
To accomplish the goal of patent application electronic filing, the
USPTO plans to gradually transfer the responsibility of developing and
maintaining electronic application authoring and submission tools to
the private sector. To this end, the USPTO has issued a Request For
Agreement (RFA) to private sector vendors, reviewed responses, and is
the final stages of solidifying contractual arrangements. It is
envisioned that working with these vendors will allow the USPTO to take
advantage of their established customer base, marketing techniques, and
current tools, which they plan to adapt to promote electronic filing.
These are clearly important advantages to reach the electronic filing
rate needed to support the Return On Investment (ROI) for both the EFS
and TEAM programs. The use of products developed by multiple RFA
vendors provides additional adaptability and flexibility that is
believed to be essential to achieving that goal.
The USPTO is also continuing to explore a number of creative
approaches to further encourage electronic filing. However, serious
review of current policies and laws affecting USPTO business practices
must be conducted in order to provide incentives to USPTO customers to
file electronically and enable the internal end-to-end electronic
processing of patent applications.
fundamental change at bureau of the census
Question. Mr. Secretary, would you agree that fundamental change is
needed at the Bureau of the Census?
Answer. Even though we just completed the most successful decennial
census ever undertaken by the Census Bureau, we believe the process of
conducting the decennial census needs to be fundamentally changed for
2010. Census 2000 was an operational and data quality success: all
operations were completed on time and within overall budget; overall
coverage was improved; and differential coverage was improved for all
minority groups and children. However, Census 2000 was conducted with
high cost and at great risk. In 2010 the job will be more complex. We
project that to repeat the Census 2000 design in 2010 would cost about
$11.7 billion. Even at this great cost, repeating the old design would
be extremely risky and would result in inferior data to that collected
by the reengineered design.
Opportunities exist to reduce risk, reduce full cycle costs, and
improve accuracy for the 2010 Census. To take advantage of these
activities, the Census Bureau must have adequate resources in place
early in the decade for 2010 planning, development and testing. The
strategy for re-engineered 2010 census features three key components
that allow for improved testing, simplified data collection, and better
information at less cost.
--To increase enumerator efficiency, facilitate identification of
duplicate addresses and reduce field work, the Census Bureau
will enhance the geographic database and associated address
list (referred to as MAF/TIGER) by replacing the internally
developed system with one that uses Global Positioning
Technology and satellite mapping imagery or aerial photography
to update and improved the address information gathered for
Census 2000.
--The American Community Survey which has been designed to sample 3
million households per year by county nationwide is expected to
provide more timely accurate data by replacing the decennial
system.
--Early and comprehensive planning, development, and testing that
allows the Census Bureau to more efficiently reengineer the
process for taking the 2010 Census, particularly in the area of
field data collection, by taking advantage of the opportunities
afforded by an enhanced geographic system, and only short-form
data collection activities.
These components are heavily integrated and interdependent. They
can be thought of in the same way one envisions a 3-legged stool. They
build on Census 2000 data collection efforts, as well as build on and
complement one another.
Savings in the overall cost and gains in accuracy for Census 2010
can be realized only if there is adequate funding early in the decade
to examine, develop, and test these opportunities.
cost effectiveness of 2010 decennial census
Question. How can we ensure that the next census is done in the
most cost-effective way possible?
Answer. The reengineered 2010 Census is based on a strategy
designed to meet the following four goals: Improve the relevance and
timeliness of census long form data, reduce operational risk, improve
the accuracy of census coverage, and contain costs.
To achieve each of these, including our goal to conduct the most
cost-effective census possible, we have developed a three-pronged
approach based on the following components:
--The American Community Survey--which will provide more timely and
relevant data to communities throughout the decade and allow us
to conduct a short-form only census in 2010.
--MAF/TIGER enhancement--which will improve our inventory of all
known living quarters, ensure that they are accurately located
on our census maps, and utilize commercial off-the-shelf
software allowing for an open, flexible, and integrated system
that makes it easier to update maps and address lists.
Commercial software will greatly facilitate our work with
geographic partnership programs as we incorporate address and
map update information from state, local, and tribal
governments.
--2010 planning--A program of early planning, development and testing
designed to take advantage of these innovations and completely
restructure the management and conduct of a short form only
census in 2010. This will result in a 2010 Census that will
realize savings in excess of the additional costs associated
with conducting the ACS, implementing the MAF/TIGER
enhancements program, and early planning, development and
testing for the 2010 Census. Specifically,
--The workload for enumerators in the field will be reduced because
they will be working with more accurate maps and address lists,
there will be fewer households to visit because a short form
only census will have a higher response rate, and they will not
be required to follow up on unanswered long form
questionnaires--a process that has been time consuming and
costly.
--Staffing will be reduced at headquarters because we will not be
required to design, test and implement operations to
disseminate long form questionnaires and capture long form
data.
--MAF/TIGER enhancements will enable us to fully utilize GPS equipped
hand held mobile computing devices to find, interview, and
update data on people and their housing units for the short-
form only census. This innovation alone means that we can
dramatically reduce field infrastructure costs because we can
substantially reduce the use of paper maps and virtually
eliminate the use of paper assignment sheets, along with a
portion of the staff and space required to handle that paper.
While the costs for these MAF/TIGER enhancements would offset
some of these savings, the overall savings would exceed the
MAF/TIGER costs. Our full cycle analysis looks at the total
costs for ACS, MAF/TIGER and early planning for the 2010
Census. The total costs for full implementation are less than
the total costs for repeating Census 2000 in 2010. These net
savings would be realized even after paying for the full ACS,
MAF/TIGER, and early planning, testing and development
programs.
--Planning, development and testing for 2010 operations also includes
a number of cost-saving initiatives, including targeting a 2nd
mailing of the questionnaires, which will increase the response
rate, taking advantage of electronic communications such as the
internet and telephone to deliver questionnaires and capture
data, and targeting our address list update operations to
improve the address list in the areas that need it most.
The results of this work will mean that the overall cost of
conducing the 2010 Census, including MAF/TIGER enhancements, ACS, and
early planning and development for 2010, will be reduced. In addition,
the persistent problem of a huge spike in the funding needs for the
census occurring in the census year will be dramatically reduced.
However, making these changes in Census 2010 will require an increased
investment earlier in the decade as compared with the Census 2000
cycle. Additional resources are needed in the early years because
decennial census operations must be completely restructured to take
full advantage of ACS and MAF/TIGER enhancements. But this increase is
more than offset by the significant reductions later in the decade
described above.
census bureau's internal operating system
Question. What is being done to rehabilitate the Census Bureau's
internal operating system?
Answer. Several of the management recommendations in the GAO report
(``2000 Census: Analysis of Fiscal Year 2000 Budget and Internal
Control Weaknesses at the U.S. Census Bureau''--GAO-02-30) address
improvements to the Bureau's financial accounting systems. We are
currently acting on these recommendations. This answer addresses all
but three of those recommendations. The three not addressed by this
answer dealt with current financial activities, rather than financial
accounting systems.
Recommendation #3: Instruct accounting personnel to follow the written
policy for establishing accruals and proper cutoff for goods
and services received at year end.
The Finance Division and Accenture contractors conducted staff
training on September 13, 2001, on the estimated accrual process to
ensure proper recordation of accrual transactions at year-end. As
changes to accounting personnel occur, the Finance Division will
continue to educate new personnel and provide refresher training to
existing personnel, as needed.
The Finance Division also has set up an internal audit review
process to review the following:
--Year-end accrual policies and procedures.
--Year-end Estimated Accrual forms submitted from divisions.
--Match subsequent disbursements with year-end accruals.
--Actual vendor invoices to determine period of performance.
The Census Bureau considers this recommendation closed.
Recommendation #4: Post accounting adjustments to subsidiary records in
a timely manner.
We have implemented our new Commerce Administrative Management
System (CAMS) closing program, which gives us the needed ability to
track year-end adjustments in multiple periods. It has the capability
to distinguish our year-end adjustments from the adjustments entered
after the initial FACTS II submission and audit adjustments, which has
caused discrepancies between Treasury and Office of Management and
Budget records. All year-end adjustments have been entered into the
financial system for fiscal year 2001. We have completed the validation
of the year-end trial balance and closing entries. The final close
process, which sets all financial system modules for fiscal year 2001
to close, establish ending balances, and carry-forward balances, was
completed on March 29, 2002. This new closing program will enable the
Census Bureau to close our financial records on schedule.
Implementation date: March 29, 2002--Completed.
Recommendation #5: Complete efforts to modify the Bureau's financial
systems to produce usable accounts payable and undelivered
orders subsidiary reports by vendor, close out thousands of
completed transactions with small balances, and archive all
completed transactions.
The data clean-up is a continuing effort for all Undelivered Orders
and Accounts Payable accounts to purge all remaining unmatched
transactions, which were converted from our legacy system to CAMS. The
data clean-up converts unmatched transactions by determining related
transactions and populating the fields used in document matching with
common matching values. These transactions have no impact on our
financial balances. The Census Bureau plans to complete this data
clean-up effort by July 2002.
Targeted completion date: July 31, 2002.
However, Census is working in conjunction with the Department is
reviewing the existing archiving capability in CAMS, and to provide
additional requirements for a comprehensive, JFMIP compliant approach
to provide archiving and retrieval capability. The requirements
documentation should be completed this fiscal year, with implementation
targeted for fiscal year 2003.
Recommendation #6: Amend policies and procedures, which will require
supervisors to closely review employees time charges and
project codes to ensure more accurate project costs for
salaries and benefits.
As part of the census planning process for the 2004 Census Test,
the Census Bureau is reviewing policies and procedures related to the
completion of payroll documents and supervisory review and approval of
those documents and will amend them as appropriate. We know that with a
large, short-term intermittent staff, it is difficult to train them
adequately in proper charging of hours and other expenses. We will look
for ways to improve training and to stress the use of proper task codes
and project numbers for the various field operations. We also will work
on supervisors' training and procedures for the review and approval of
payroll documents in hopes that accuracy of reporting can be improved.
We also will develop supervisory checklists, which can be used during
the review of payroll forms to ensure that proper task codes and
project numbers are being used for the various operations.
Another aspect of our procedures that we feel impacts the accuracy
of costs is the appointing of field staff into the proper position. In
Census 2000, we created a new position, the Crew Leader Assistant, that
was established late in the census process and was paid at the same
rate as the enumerator. We know that in many offices, people that
worked as Crew Leader Assistants were originally hired as enumerators
and were not officially converted into the Crew Leader Assistant
position. This resulted in their hours and expenses being reported as
enumerators and had an adverse impact on cost reports and productivity.
We plan to establish all positions in a more timely manner in the
future and to develop procedures that ensure staff is hired into the
proper position. It is extremely important that hours and expenses for
production and nonproduction staff are reported accurately. Policies
and procedures to ensure this occurs will be instituted when hiring is
initiated for the 2004 Test.
Target Implementation Date: Procedures will be revised and amended
as appropriate and will be implemented when hiring and training are
initiated for the 2004 Test, which should be in the summer of 2003.
softwood lumber
Question. Mr. Secretary are you aware of the softwood lumber issue,
and can you give us a status report on the countervailing and
antidumping investigation?
Answer. As you may know, on Friday, March 22, 2002, the Department
announced our findings in these investigations. We found that Canada
was subsidizing their lumber at 19.34 percent. We also found that
Canadian companies sold their product below market value at an average
of about 10 percent. We will, nonetheless, continue to pursue a lasting
solution to the softwood lumber issue--one that encourages market-based
reforms of provincial forestry practices in Canada.
Question. Are you aware of the particular problem that some loggers
and landowners in New England have had, which is that a dumping tax
was, in effect, imposed on U.S. lumber that is shipped to Canada for
processing?
Answer. I am very much aware of this situation and understand the
hardship that these duties can have on our loggers and landowners in
New England and other U.S. states. For this and other reasons, we have
excluded 20 Canadian companies from the duties; a number of which were
Quebec border mills based on our findings that these Canadian companies
were not subsidized.
Question. Is there going to be any opportunity for these companies
[logger and landowners in New England] to present their case and thus
rectify this situation?
Answer. We are looking into all administrative procedures under the
law that will allow us to address this issue. My staff will continue to
work closely with your staff and those from Senators Snowe and Collins'
office, as well as the U.S. industry, to find ways to make sure that
the timber suppliers in the United States have the opportunity to be
heard and have their concerns addressed.
noaa--transfer of national sea grant program
Question. Mr. Secretary, do you support the transfer of Sea Grant
to the National Science Foundation?
Answer. I support the President's Budget Request that proposes to
transfer Sea Grant to the National Science Foundation. The proposal is
a result of a review of Federal science programs that the Office of
Management and Budget (OMB) conducted and is consistent with the
President's Management Agenda. Under the proposal, the Sea Grant
program would be administered as an NSF/NOAA partnership. The transfer
is part of a wider Administration effort to promote competitive funding
of scientific research and to capitalize on the demonstrated excellence
of the NSF and its program management.
Question. If we keep this program at Commerce, will you continue to
execute it as you have in the past?
Answer. At this time, we have not considered any changes to the
program. Should the program remain within the Department of Commerce,
we will work with Congress and the Administration to make any changes
that may be appropriate.
______
Questions Submitted by Senator Pete V. Domenici
bureau of economic analysis
Question. Mr. Secretary, it is crucial that policymakers have the
most accurate economic data possible. This is particularly the case for
budgeting. We use BEA data for constructing our baseline, and it is a
foundation for most fiscal policy making by the Administration and the
Congress.
I am pleased to see the President request additional funding to
improve our economic statistics through both the Bureau of the Census
for which $23.6 million is requested, and through the BEA for which
$10.7 million is requested.
I am especially concerned that BEA's data responsibilities are
becoming even more difficult, in light of ongoing changes in our new
economy. I understand that you have proposed an initiative to enhance
BEA's understanding and measurement of e-business. Could you explain to
the Subcommittee why this initiative is so important?
Answer. The rapid change in the U.S. economy has challenged BEA to
keep its statistics as accurate and reliable as possible. Until
recently, BEA was unable to implement a number of initiatives that
sought to incorporate these significant changes in our economy. Recent
budget increases, including President Bush's request for fiscal year
2003, were important in getting BEA statistics back on track. Measuring
e-business and the new economy has been part of these recent
improvements.
Why is measuring e-business important? Measuring the impact of e-
business and other high-tech sectors of the economy is critical to
reducing the size of the revisions of GDP and the national accounts
which contributed to large corrections in budget forecasts. The
Congressional Budget Office (CBO), in The Budget and Economic Outlook,
Fiscal Years 2001-2012, estimated that roughly 40 percent of the change
in the budget outlook over the next ten years, or $1.6 trillion, was
due to changes in economic and technical assumptions. A major
contributor to the changes in CBO assumptions were BEA's revisions in
the level and trend growth of GDP, incomes, and productivity. A large
share of the GDP revisions were related to inadequacies in the data
available to BEA on key products such as software and other high-tech
sectors. Funding to develop more adequate source data will help reduce
these revisions and the resulting corrections in budget forecasts.
Question. Previous administrations and the Congress have been
working toward the goal of better economic estimates since the Boskin
initiative in the 1980's. Could you provide the Subcommittee with
information on what funding has been provided over the past ten years
for these initiatives and a brief statement on what has been
accomplished thus far?
Answer. BEA made a number of important changes to improve economic
statistics as a result of the Boskin Commission recommendations of
1990-1991. Chain indexes were introduced into the national accounts;
improved measures of productivity, output and prices were incorporated;
estimates of GDP by industry were dramatically improved; and better
measures of foreign and U.S. investments were developed. Funding levels
for the early 1990s are shown in the attached tables from the General
Accounting Office's July 1995 report Economic Statistics: Status Report
on the Initiative to Improve Economic Statistics.
BEA's efforts to fully implement most of the Boskin Commission
recommendations were hampered by budget shortfalls in the second half
of the 1990's. From fiscal year 1994-fiscal year 2000, BEA received no
funding increases to provide for data improvement initiatives. Today,
BEA again is able to address some of the issues raised by Chairman
Boskin in the early 1990s. Budget increases in fiscal year 2001 and
fiscal year 2002 have allowed BEA to develop measures of the new
economy and close important gaps in coverage of GDP. President Bush's
budget request for fiscal year 2003 also allows BEA to address specific
recommendations made by the Boskin Commission such as improving the
timeliness of important economic indicators such as international trade
and GDP by Industry. Fiscal year 2003 initiatives at the Census Bureau
to improve coverage of the service sectors and better measure e-
business and high-technology sectors are critical to further
improvements to the GDP. Despite current budget increases, a number of
recommendations still remain to be address. (See Attachment A)
Question. Should Congress provide the requested funding in fiscal
year 2003, what is the outlook for additional enhancements in the next
two to three years?
Answer. Funding for fiscal year 2003 will help BEA achieve the
challenges put forth by Secretary Evans to generate more timely
economic statistics and meet international statistical obligations.
Working closely with its data users, BEA developed a Five-Year
Strategic Plan which calls for a number of important improvements over
the next five years to a broad range of economic measures. The summary
table below lays out highlights of the Plan for the next two to three
years.
----------------------------------------------------------------------------------------------------------------
BEA Accounts Future Strategic Plan Priorities
----------------------------------------------------------------------------------------------------------------
National............................ Utilize ``real-time'' data in estimates to more quickly and accurately
measure price changes
Improve timeliness of GDP and NIPA release
Reduce GDP revisions by developing improved source data for under measured
sectors such as software and biomedicine
International....................... Develop better measures for financial transactions and holdings that now
bypass international capital reporting systems
Conduct research on alternative methods of measuring U.S. balance of
payments
Industry............................ Improve timeliness and accuracy of capital flow data to allow users to
determine where industries invest (i.e., high tech investments)
Develop employment tables to measure employment impacts by industry
Provide increased industry detail in input-output tables
Regional............................ Improve accuracy and timeliness of state, local, metropolitan and regional
estimates
Develop state-level estimates of public and private investment flows
Develop regional price indices to measure across-region price differences
Management Agenda................... Develop strategies to hire and retain staff and plan for the anticipated
wave of senior manager retirements
Increase usability and data content of BEA website
Expand electronic data collection systems
----------------------------------------------------------------------------------------------------------------
manufacturing extension partnership program
Question. Secretary Evans, I know that the Administration has to
make tough decisions in its budget deliberations. In some years, budget
proposals have gone so far as to do away with the entire Department of
Commerce, and yet it is still here. I am concerned, however, about the
Administration's proposal to essentially eliminate funding for the
Manufacturing Extension Partnership program within the National
Institute of Standards and Technology (NIST). The Manufacturing
Extension Partnership Program is currently funded at $106.5 million,
and the 2003 request is for $12.9 million to phase out the program.
Mr. Secretary, I have to tell you that the Manufacturing Extension
Partnership Program has done extremely good work in New Mexico, and I
have heard from dozens of my constituents in favor of continuing
funding for the program at $110 million in 2003.
What has the Manufacturing Extension Partnership Program achieved
during the past six years of funding? Has it met the purpose for which
it was established--to assist small businesses and manufacturers gain
access to technologies, resources, and technical expertise that they
might not have in-house and make them more competitive?
Answer. MEP has been a successful program and demand for its
services continues to grow. Over the last six years MEP has had a
significant impact on small manufacturers performance. MEP has provided
direct assistance to small manufacturers for their business operations,
including process improvement, implementing quality management systems,
implementing business systems, marketing development, plant layout,
environmental studies, electronic commerce, and other areas of best
practices to improve productivity and competitiveness. In fiscal year
2000, MEP clients surveyed reported that MEP services resulted in: Over
25,000 jobs created or retained; $2.3 billion in sales impact; cost
savings of over $480 million; and increased investments of over $870
million.
Question. I know that this program works through a nationwide
network of manufacturing extension centers, which are linked to state,
university, and private sources of technical expertise. It is somewhat
modeled on the extremely successful agriculture extension model. How
much does the Manufacturing Extension Partnership Program leverage in
terms of non-federal investments annually?
Answer. Typically, centers receive one-third of their funding from
the Federal government. From fiscal year 1989 through fiscal year 2002
(estimated), the Federal investment in MEP centers is approximately
$806 million. One-third of the remaining two-thirds of center support
comes from state and local organizations, and the other third comes
from fees for services.
Question. With this kind of success and broad support in the
private sector, what is the Administration's rationale for phasing out
this program?
Answer. We are a nation at war against terrorism and difficult
choices have to be made in terms of priorities within the Federal
budget. Unfortunately, every program cannot be funded. MEP has been a
successful program and demand for its services continues to increase.
We believe that many MEP centers will continue to exist in the absence
of Federal funding, and as a result, small businesses will continue to
receive the expertise and assistance from the centers. To offset the
loss of Federal funding, centers could increase fees receipts. Given
the centers' success in improving productivity and efficiency,
assessing fees for service should be the direction in which the program
heads. The benefits to small firms seeking MEP assistance, such as
improved productivity and efficiency, should outweigh the cost of the
fees. Also, large manufacturers that depend on smaller companies may
also wish to provide support to MEP centers to ensure the continuing
success of their smaller suppliers.
public telecommunications facilities program
Question. Secretary Evans, I am pleased to see that the
Administration's fiscal year 2003 budget continues to support the
Public Telecommunications Facilities Program (PTFP), which provides
grants to public radio and TV stations for equipment. The PTFP program
has had its ups and downs over the year, and has even been proposed for
termination. From $15.25 million in fiscal year 1997, and over the past
several years, this Subcommittee has elevated funding to the current
$51.7 million in fiscal year 2002--$43.5 million plus a supplemental of
$8.25 million.
Mr. Secretary, I have been a longtime supporter of the Public
Telecommunications Facilities Program because it is an important source
of funding to rural states like New Mexico. PTFP grants enable local
broadcasting stations to provide quality programming to populations
that are generally under served.
The budget includes $43.6 million for PTFP for fiscal year 2003,
essentially level funding minus the supplemental. My local broadcasters
have been in to request significant additional federal support as the
statutory deadline for converting to digital equipment approaches in
2003. The broadcasters' funding request is $110 million for fiscal year
2003. How much of the $43.6 million requested does the Administration
envision going toward assisting broadcasters with the purchase of
digital equipment as we approach the 2003 conversion date?
Answer. During the recent fiscal year 2001 grant round, NTIA
awarded almost $35 million for digital conversion grants out of a total
of $42 million awarded through the program. We expect to award
approximately this level of funding for digital television conversion
projects from the $43.6 million requested in fiscal year 2003.
Question. For the past several years, Congress has worked to
augment the PTFP budgets to support the conversion to digital
equipment. How much has the PTFP program provided for this purpose?
Could you provide the Subcommittee with a breakdown of the amounts
provided and the grantees funded for this purpose for the past five
years?
Answer. Over the past four years (fiscal year 1998-2001) that NTIA
has funded the digital conversion of public television facilities, the
program has awarded over $60 million for digital conversion projects to
grantees in 42 states. These Federal funds have been matched by the
recipients with almost $95 million in non-Federal funds. Attached is a
breakdown of the grant awards (Attachment B). Grants for fiscal year
2002 will be announced in September.
Question. The Congress has provided some digital conversion funding
through the Corporation for Public Broadcasting (CPB), and in fact, the
private and public sectors will be providing two-thirds of the total
cost of digital conversion, and the federal government one-third of the
cost. Do the Department and the PTFP program work closely with the
Corporation of Public Broadcasting as this conversion project proceeds?
How is this effort being coordinated?
Answer. NTIA is working closely with CPB. The two grant programs
have coordinated their grant timetables and plan to stagger funding
decisions. To ensure that NTIA and CPB do not duplicate funding for
stations, the programs will exchange equipment lists of applicants and
meet as necessary to review funding decisions.
ATTACHMENT A.--APPENDIX II--ECONOMICS STATISTICS INITIATIVE RECOMMENDATIONS
[Dollars in Thousands]
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
Funding for fiscal
Responsible agency year 1990-94
GAO's 7 Areas 38 ESI Recommendations 1990 Recommendations \1\ 1991 Recommendations \2\ \3\ ---------------------
Requested Received
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
National Income and Product Indirect estimation methods........... Explore alternative methods for Use indirect estimation methods to BEA............... \4\ $3,20 \4\ 1,700
Accounts statistics estimating constant dollar output. close data gaps; methods include 0
recommendations. price measurement of high-tech
goods, measurement of certain
services, and improved deflation of
purchases by state and local
governments.
Input-output tables................... Expedite the compilation of input- Reduce by 2 years the lag in BEA............... ( \4\ ) ( \4\ )
output data. benchmark and annual input-output
tables.
Construction-methodology.............. Complete ongoing methodological and ..................................... BEA............... ( \4\ ) ( \4\ )
data collection improvements and
incorporate these in the 1990 GNP.
System of national accounts........... Revise the U.S. national income and Develop modernized and extended BEA............... 5,700 1,200
product accounts to be consistent national economic accounts that
with the major components of the follow the United Nations revised
United Nations system of national system of national accounts.
accounts, which are used by most of Features are to include (1) an
the major industrialized nations of integrated set of current and
the world. capital accounts that include both
financial and nonfinancial
transactions and (2) satellite
accounts.
Inflation adjustments................. Add supplementary series to the ..................................... BEA............... 0 0
national income and product accounts
that separate the real and inflation
components of the return to capital.
Currently this is done only with the
corporate profits series.
Purchased services.................... Accelerate and rearrange timetable for Provide data for improved assessment Census............ 3,492 0
service sector improvements. of the sources of economic growth
and structural change by industry.
Corporate financial data.............. Accelerate and rearrange timetable for Provide greater precision in Census............ 4,970 0
service sector improvements. estimates by industry and more
comprehensive data by asset size.
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
Price measurement statistics Service prices........................ Accelerate the BLS programs to expand Conduct research to develop measures BLS............... 7,241 5,685
recommendations. and improve producer, consumer, and of output for the service sector.
international price indexes to
measure service prices more
accurately.
Separation of quality and inflation ...................................... Separate quality and inflation BLS............... 3,479 2,309
changes. changes in price data.
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
Labor market statistics Employment cost index................. Expand and seasonally adjust the ..................................... BLS............... 1,700 1,700
recommendations. employment cost index.
Coverage of payroll employment Continue BLS and Census efforts to Add 110 service producing industries BLS............... 8,948 7,458
estimates. improve and modernize the current to the payroll survey.
population survey and the current
employment statistics program.
Accuracy of payroll employment Continue BLS and Census efforts to Improve accuracy of estimates of BLS............... 13,294 13,794
estimates. improve and modernize the current payroll employment.
population survey and the current
employment statistics program.
Business establishment data--Census Explore ways for Census to share its ..................................... Census............ 400 0
and BEA. establishment data with BEA, for use BEA............... 0 0
in improving the national accounts.
Construction-coverage................. ...................................... Improve coverage and accuracy of Census............ 3,900 .........
construction statistics.
Investment and saving................. Accelerate work to improve measures of ..................................... Federal Reserve... ( \5\ ) ( \5\ )
investment and saving and to the BEA............... 0 0
extent possible reconcile differences Census............ 900 638
between the various measures of
saving.
Flow of funds......................... Improve the collection, coverage, and ..................................... Federal Reserve... ( \5\ ) ( \5\ )
processing procedures for the
financial flow data in the Federal
Reserve Board flow of funds accounts.
Annual investment survey.............. Undertake the proposed annual ..................................... Census............ 2,000 2,000
investment survey at the Census
Bureau.
Data gaps............................. ...................................... Use administrative records, support BEA............... 4,700 0
new surveys, support extensions to
existing surveys, and conduct
research to close data gaps.
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
Service sector statistics Service sector surveys................ Accelerate and rearrange timetable for Increase detail and coverage of Census............ 7,116 1,400
recommendations. service sector improvements. service sector in Census' annual
survey of services and periodic
census of service industries.
Automated data collection for current Continue BLS and Census efforts to Incorporate automated data collection BLS............... 5,000 3,510
population survey. improve and modernize the current techniques to improve the current
population survey and the current population survey.
employment statistics program.
Reconciliation of employment estimates Continue BLS efforts to reconcile and ..................................... BLS............... 0 0
reduce discrepancies between the
employment series arising from the
household and the establishment
surveys.
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
Income and poverty statistics Poverty thresholds.................... Begin research on developing a new ..................................... Census............ 0 0
recommendations. benchmark estimate of poverty
appropriate to prices, consumption
patterns, and family composition in
the 1990s.
Experimental estimates of income and Continue publication of the ..................................... Census............ 0 0
poverty. experimental estimates of real family
income and poverty.
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
International transactions Trade in services..................... Accelerate improvements in estimates Undertake surveys of bank and nonbank BEA............... \6\ 7,600 \6\ 3,100
statistics recommendations. of trade in services. financial institutions' noninterest
service income and improve BEA's
survey of international trade in
other services.
International investment and capital Estimate direct investment using Improve coverage of capital flows and BEA............... ( \6\ ) ( \6\ )
flows. market values or replacement cost investment income and reduce the
rather than historical cost and large statistical discrepancy in the
address problems with the measurement international payments accounts.
of international portfolio investment
and other capital flows.
Reconciliation of import and export Extend efforts to reconcile import and ..................................... Census............ \7\ 1,400 \7\ 0
data. export data to Mexico, the European
Community, South Korea, and Japan.
Automation of export and import data.. Continue work to increase automation ..................................... Census............ ( \7\ ) ( \7\ )
of export and import data collection.
Merchandise exports model............. ...................................... Develop a model to adjust for Census............ ( \7\ ) ( \7\ )
understatements of exports and other
improvements in the measurement of
exports.
Access to trade data.................. Increase the ease of access to trade ..................................... Census............ ( \7\ ) ( \7\ )
data.
International guidelines for economic ...................................... Develop modernized and extended BEA............... 1,000 0
accounts. international economic accounts that
follow the International Monetary
Fund guidelines. Features are to
include (1) an integrated set of
current and capital accounts,
including balance sheets and (2) new
detail in several significant areas.
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
Systemwide statistics Survey of Income and Program Explore the possibility of carefully ..................................... Census............ 0 0
recommendations. Participation. linking the data from the Survey of
Income and Program Participation to
administrative records, while taking
great care to safeguard
confidentiality.
Standard industrial classification.... ...................................... Ensure that the standard industrial BEA............... 0 0
classification system can keep track Census............ 100 100
of emerging industries and develop
methods to keep up with rapid
changes occurring across all
industries.
Farm lists............................ ...................................... Develop a more complete and accurate NASS.............. 4,800 2,250
farm list for the 1992 Census of
Agriculture.
Business establishment lists--Census ...................................... Improve business establishment lists BLS............... 1,900 500
and BLS. by reconciling BLS and Census lists Census............ 0 0
of business establishments.
Cooperation........................... Increase cooperation between the ..................................... BEA............... 0 0
statistical establishment and BLS............... 0 0
academic researchers. Census............ 0 0
Mandatory v. voluntary surveys........ Consider the efficacy of mandatory ..................................... Census............ 0 0
versus voluntary surveys.
Data duplication...................... Continue work toward the goal of Prepare legislation to provide a OMB............... 0 0
eliminating unnecessary duplication, standardized mechanism for limited
but avoid the loss of unique and sharing of confidential information
important alternative data. solely for statistical purposes.
Center for survey methods............. ...................................... Create a center for survey methods to NSF............... 2,100 2,100
improve the talents and skills of
the existing federal statistical
workforce and attract highly
qualified entrants.
---------------------
Total.................... ...................................... ...................................... ..................................... .................. \8\ 94,94 49,444
0
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
\1\ The 1990 recommendations are quoted directly from a prepared statement for Michael J. Boskin, Chairperson of the Council of Economic Advisers at a hearing before the Joint Economic
Committee, U.S. Congress, March 1, 1990.
\2\ The 1991 recommendations are paraphrased by GAO from a February 14, 1991, Council of Economic Advisers announcement.
\3\ Information is recorded for each responsible agency for recommendations with multiple responsible agencies.
\4\ BEA combined these three recommendations into one budget request to increase funding to stop the deterioration in the quality of the national economic accounts.
\5\ Federal Reserve funds are not included here since it does not receive appropriated funds from Congress.
\6\ BEA combined these two recommendations into one budget request to improve balance of payments and international investment data.
\7\ Census combined these four recommendations into one budget request to improve foreign trade statistics.
\8\ Total request includes $14,047,000 in reinstated requests, which means an agency requested funding more than once when the funding was not received in prior years.
Note: GAO's 7 areas and the 38 ESI recommendations are our categorizations of the Economics Statistics Initiative recommendations that were in the 1990 and 1991 CEA releases.
ATTACHMENT B.--PTFP DIGITAL TELEVISION CONVERSION GRANTS 1998-2001
----------------------------------------------------------------------------------------------------------------
Total Project
Grantee City/State Federal Award Cost Year
----------------------------------------------------------------------------------------------------------------
Alaska Public Telecommunications..... Anchorage, AK................... $701,073 $1,046,378 2001
Alabama ETV Commission............... Birmingham, AL.................. 1,070,884 2,677,210 2001
Alabama ETV Commission............... Birmingham, AL.................. 870,800 2,177,000 2000
Alabama ETV Commission............... Birmingham, AL.................. 810,667 1,621,334 1999
Alabama ETV Commission............... Birmingham, AL.................. 374,701 749,403 1998
Arizona State University............. Tempe, AZ....................... 1,028,450 2,056,900 1999
The University of Arizona............ Tucson, AZ...................... 671,962 1,679,905 2001
Redwood Empire Public TV, Inc........ Eureka, CA...................... 494,769 743,025 2001
Valley Public Television, Inc........ Fresno, CA...................... 193,884 484,712 2001
Community TV of Southern California.. Los Angeles, CA................. 861,607 1,723,215 1999
KVIE, Inc............................ Sacramento, CA.................. 711,780 1,779,451 2001
San Diego State Univ. Foundation..... San Diego, CA................... 610,111 1,220,222 1999
San Diego State Univ. Foundation..... San Diego, CA................... 475,152 950,305 1998
KQED, Inc............................ San Francisco, CA............... 850,176 1,700,352 1998
Front Range Educ. Media Corp......... Denver, CO...................... 379,374 758,748 2001
Connecticut Public Broadcasting, Inc. Hartford, CT.................... 317,524 793,812 2001
Connecticut Public Broadcasting, Inc. Hartford, CT.................... 552,282 1,380,705 2000
Coastal Educational Broadcasters..... Daytona Beach, FL............... 807,687 3,230,750 2001
Pensacola Junior College............. Pensacola, FL................... 675,000 1,250,585 1999
Florida W. Coast Pub. Brdcstg., Inc.. Tampa, FL....................... 121,600 304,000 2001
Florida W. Coast Pub. Brdcstg., Inc.. Tampa, FL....................... 704,691 1,761,726 2000
Georgia Pub. Telecom. Commission..... Atlanta, GA..................... 933,539 3,734,155 2001
Georgia Pub. Telecom. Commission..... Atlanta, GA..................... 222,500 890,000 2000
Hawaii Public Television Found....... Honolulu, HI.................... 746,792 2,075,000 2001
Iowa Public Broadcasting Board....... Johnston, IA.................... 350,237 1,400,950 2000
Idaho Public Television.............. Boise, ID....................... 881,031 3,524,123 2001
Idaho Public Television.............. Boise, ID....................... 473,402 1,893,610 2000
Idaho Public Television.............. Boise, ID....................... 668,574 891,433 1998
Southern Illinois University......... Carbondale, IL.................. 599,437 2,397,750 2001
Window to the World Communications... Chicago, IL..................... 909,574 1,819,148 2000
Washburn University of Topeka........ Topeka, KS...................... 522,376 1,305,940 2001
Washburn University of Topeka........ Topeka, KS...................... 125,000 250,000 1999
Kentucky Authority for ETV........... Lexington, KY................... 365,807 1,877,727 2001
Louisiana ETV Authority.............. Baton Rouge, LA................. 434,007 1,736,030 2001
Louisiana ETV Authority.............. Baton Rouge, LA................. 548,755 2,195,020 2000
Educational Brdcstg. Found., Inc..... New Orleans, LA................. 863,120 2,157,800 2001
Maine Public Broadcasting Corp....... Bangor, ME...................... 681,375 2,725,500 2001
Maine Public Broadcasting Corp....... Bangor, ME...................... 256,250 1,025,000 2000
Detroit ETV Foundation............... Detroit, MI..................... 486,257 972,515 1999
University of Michigan............... Flint, MI....................... 683,236 1,708,090 2001
Central Michigan University.......... Mt. Pleasant, MI................ 530,200 1,325,500 2001
Delta College........................ University Center, MI........... 349,067 520,995 2001
Delta College........................ University Center, MI........... 636,500 950,000 2000
Northern Minnesota PTV, Inc.......... Bemidji, MN..................... 934,611 1,394,942 2001
Twin Cities Public Television, Inc... St. Paul, MN.................... 679,278 1,358,557 1999
Public Television 19, Inc............ Kansas City, MO................. 291,488 728,722 2000
Southwest Missouri State Univ........ Springfield, MO................. 613,587 1,227,174 2001
St. Louis Regional E&PTV Comm........ St. Louis, MO................... 299,164 1,196,656 2000
Central Missouri State University.... Warrensburg, MO................. 775,540 3,401,495 2001
Mississippi Authority for ETV........ Jackson, MS..................... 1,800,000 4,537,400 2001
Montana State University............. Bozeman, MT..................... 723,860 965,147 2001
Prairie Public Broadcasting, Inc..... Fargo, ND....................... 359,587 536,698 2001
Prairie Public Broadcasting, Inc..... Fargo, ND....................... 916,696 1,368,203 2001
Prairie Public Broadcasting, Inc..... Fargo, ND....................... 1,141,302 1,521,736 2000
Prairie Public Broadcasting, Inc..... Fargo, ND....................... 939,635 1,252,847 1999
Nebraska Educ. Telecom. Comm......... Lincoln, NE..................... 1,500,000 3,840,122 2001
Nebraska Educ. Telecom. Comm......... Lincoln, NE..................... 1,200,000 3,186,060 2000
New Jersey Pub. Brdcstg. Authority... Trenton, NJ..................... 622,575 2,490,300 2001
New Jersey Pub. Brdcstg. Authority... Trenton, NJ..................... 608,262 1,216,525 1999
University of New Mexico............. Albuquerque, NM................. 871,799 1,644,905 2001
University of New Mexico............. Albuquerque, NM................. 1,200,000 2,274,974 2000
Clark County School District......... Las Vegas, NV................... 429,405 1,073,514 2000
Channel 5 Public Broadcasting, Inc... Reno, NV........................ 392,562 1,570,248 2001
WSKG Public Telecom. Council......... Vestal, NY...................... 663,576 1,658,940 2001
Greater Dayton PTV, Inc.............. Dayton, OH...................... 705,542 1,763,856 2001
Northeastern ETV of Ohio, Inc........ Kent, OH........................ 210,113 525,284 2000
Oklahoma ETV Authority............... Oklahoma City, OK............... 241,111 482,222 1998
Oklahoma ETV Authority............... Oklahoma City, OK............... 1,110,702 4,442,807 2001
Oregon Public Broadcasting........... Portland, OR.................... 501,416 1,253,540 2001
Oregon Public Broadcasting........... Portland, OR.................... 642,020 1,605,050 2000
WHYY, Inc............................ Philadelphia, PA................ 221,661 554,154 2001
Pennsylvania State University........ University Park, PA............. 586,357 1,465,893 2001
Pennsylvania State University........ University Park, PA............. 1,246,422 3,116,057 2000
South Carolina ETV Commission........ Columbia, SC.................... 1,499,551 5,998,206 2001
South Dakota Educ. Telecom........... Vermillion, SD.................. 996,453 1,660,755 2001
East Tennessee Pub. Telecom. Corp.... Knoxville, TN................... 178,656 446,640 2001
Mid-South Pub. Comm. Found........... Memphis, TN..................... 766,635 1,916,587 2001
Nashville Public Television.......... Nashville, TN................... 184,640 461,600 2001
WDCN Public Television Corporation... Nashville, TN................... 154,110 385,275 2000
North Texas Public Brdcstg., Inc..... Dallas, TX...................... 500,000 1,175,580 1999
North Texas Public Brdcstg., Inc..... Dallas, TX...................... 475,487 950,974 1998
El Paso PTV Foundation, Inc,......... El Paso, TX..................... 203,325 271,100 2001
University of Utah................... Salt Lake City, UT.............. 384,775 1,539,100 2000
Public Broadcasting Service.......... Alexandria, VA.................. 981,420 2,453,550 2001
Greater Wash. Educ. Telcom. Assoc.... Arlington, VA................... 156,250 312,500 1998
Shenandoah Valley ETV Corp........... Harrisonburg, VA................ 427,078 1,067,697 2001
Shenandoah Valley ETV Corp........... Harrisonburg, VA................ 464,948 1,162,369 2000
Hampton Roads Ed.Telecom. Assoc...... Norfolk, VA..................... 472,191 1,180,477 2000
Vermont ETV, Inc..................... Colchester, VT.................. 636,388 1,590,971 2001
Washington State University.......... Pullman, WA..................... 312,420 781,051 2001
KCTS Television...................... Seattle, WA..................... 967,400 1,934,801 1998
Spokane School District #81.......... Spokane, WA..................... 539,138 1,347,844 2001
Wisconsin Educ. Comm. Board.......... Madison, WI..................... 1,048,841 4,195,258 2001
University of Wisconsin System....... Madison, WI..................... 473,831 1,895,326 2000
West Virginia Educ. Brdcstg. Charleston, WV.................. 574,654 1,436,636 2001
Authority.
--------------------------------
TOTAL.......................... ................................ 60,377,645 155,284,349
----------------------------------------------------------------------------------------------------------------
subcommittee recess
Senator Hollings. We will meet next on Tuesday, March 19,
to hear NOAA, the Small Business Administration, and the
Federal Trade Commission.
Secretary Evans. Wonderful. We are looking forward to that.
Thank you, chairman.
Senator Hollings. The subcommittee will be in recess.
[Whereupon, at 11:40 a.m., Wednesday, March 13, the
subcommittee was recessed, to reconvene at 10 a.m., Tuesday,
March 19.]
DEPARTMENTS OF COMMERCE, JUSTICE, AND STATE, THE JUDICIARY, AND RELATED
AGENCIES APPROPRIATIONS FOR FISCAL YEAR 2003
----------
TUESDAY, MARCH 19, 2002
U.S. Senate,
Subcommittee of the Committee on Appropriations,
Washington, DC.
The subcommittee met at 10 a.m., in room SD-138, Dirksen
Senate Office Building, Hon. Ernest F. Hollings (chairman)
presiding.
Present: Senators Hollings, Reed, Gregg, Stevens, and
Domenici.
DEPARTMENT OF COMMERCE
National Oceanic and Atmospheric Administration
STATEMENT OF CONRAD C. LAUTENBACHER, JR., VICE ADMIRAL,
U.S. NAVY (Ret.), UNDER SECRETARY OF
COMMERCE FOR OCEANS AND ATMOSPHERE
prepared statement
Senator Hollings. The committee will come to order. We
welcome Admiral Lautenbacher, the Administrator of the National
Oceanic and Atmospheric Administration. Admiral, we appreciate
your appearance here. We have your statement. It will be
included in its entirety in the record and you can summarize it
or deliver it as you wish.
[The statement follows:]
Prepared Statement of Conrad C. Lautenbacher, Jr.
Thank you, Mr. Chairman, and members of the Committee, for this
opportunity to testify on the President's fiscal year 2003 Budget
Request for the National Oceanic and Atmospheric Administration (NOAA).
Let me begin by saying that this budget supports and enhances the
goals of the President and the Department of Commerce. NOAA has
established itself as one of the world's premier scientific and
environmental agencies. We are an agency that deals with environmental
change. We are an agency whose products form a critical part of the
daily decisions made by Americans across the Nation and have economic
impacts which affect our Nation's Gross Domestic Product. From our
climate predictions that impact farming and financial decisions, to our
hydrological products that affect public utilities and energy
consumption, NOAA is a critical part of our Nation's economic security.
We are experts in climate, with its cooling and warming trends. We
are an agency that manages fluctuating fisheries and marine mammal
populations. We observe, forecast and warn the public about the rapidly
changing atmosphere and especially severe weather. We monitor currents
and tides, and beach erosion. We survey the ocean bottom and provide
mariners with products to maintain safe navigation. We operate the
Nation's most important constellation of earth--observing satellites.
Lastly, we provide all this knowledge and exploration to citizens
everywhere, especially to schools and young people across our Nation
through our website www.noaa.gov. We provide this as a result of our
mission to advance environmental assessment, environmental prediction,
and natural resource stewardship for our great Nation.
This budget supports products that are essential for decision
makers in every part of our economy. NOAA's budget will continue to
fund products that assist in protecting the health and safety of this
Nation's citizens from both routine and severe environmental changes.
This budget supports our research, science and services from the local
weather forecast offices around the Nation to our Fisheries Research
Vessels that ensure sustainable stocks of our Nation's fisheries. It
provides for technology infusion and critical infrastructure protection
to reduce single points of failure for our satellite and weather
prediction programs; continues our special partnerships with
universities, states, and local governments around the Nation; and
invests in education and human resources. This budget also supports our
vast infrastructure, which will allow NOAA to continue its mission in
years to come.
In a period of strongly competing Presidential priorities for our
national defense, and economic security, the President's fiscal year
2003 Budget Request for NOAA is $3,330.5 million in total budget
authority, and represents a decrease of $45.4 million below the fiscal
year 2002 enacted level. Within this funding level, NOAA proposes
essential realignments that allow for a total of $148.8 million in
program increases, and $129.0 million in base adjustments. NOAA's
request highlights critical areas such as People and Infrastructure,
Improving Extreme Weather Warnings and Forecasts, Climate Services,
Modernization of NOAA Fisheries, and other key NOAA programs such as
Energy, Homeland Security, Ocean Exploration, and Coastal Conservation.
people and infrastructure: $129.0 million adjustment-to-base
NOAA's people and infrastructure are at the heart of what NOAA is
and does. From our hurricane research center in Miami, FL to NOAA's
weather service office in Barrow, AK, these are the underlying and
interconnecting threads that hold NOAA and its programs together.
Investments in NOAA's scientific and technical workforce as well as
NOAA's facilities and equipment is essential for us to carry out our
mission into the 21st Century. ``People and Infrastructure'' is about
investing in the future, and about maintaining NOAA's infrastructure
that has been built over the last thirty-one years.
improving extreme weather warnings and forecasts
Critical to meeting our 21st Century mission is the continuity of
NOAA's Satellites and Severe Weather Forecasts. There are few things
that the Federal Government does that are as critical as issuing severe
storm warnings and protecting the life and safety of Americans. Listed
below is NOAA's request for this $84.3 million endeavor.
Tornado Severe Storm Research.--NOAA requests a total of $1.0
million to develop new technologies for forecasting and detecting
tornadoes and other forms of severe weather, and to disseminate this
information to emergency managers, the media, and the general public
for appropriate action. This new technology has the potential to
significantly extend lead times for tornadoes and other forms of severe
and hazardous weather. Coupled with advanced decision support systems,
tornado lead times may double from 10 to 22 minutes using this
technology. The bottom line is that this investment will help save
lives.
U.S. Weather Research Program (USWRP).--NOAA requests an increase
of $1.0 million for a total of $3.8 million to transition research and
development into operations in order to reach a USWRP goal of improving
forecasts of inland heavy precipitation associated with hurricane
landfalls. This increase will be used to address the improvement of the
forecasts of heavy and frequent, flood-producing rains associated with
hurricanes and tropical storms as they move inland.
Weather & Air Quality Research Laboratories.--NOAA requests an
increase of $4.2 million for a total of $48.1 million to recapitalize
the laboratories that conduct weather and air quality research, which
includes funding for ongoing operational scientific activities to
continue operation of the Wind Profiler Network and NOAA's Space
Weather Program.
Advanced Hydrological Prediction Service (AHPS).--NOAA requests an
increase of $4.7 million for a total of $6.2 million to accelerate
nationwide implementation of improved flood and river forecasts
services in the Northeast, Middle Atlantic, and Southeast regions of
the United States, including the states of: New Hampshire, Vermont,
Virginia, North Carolina, and South Carolina. As implemented, AHPS
will: (1) produce new information with better predictions of river
height and flood potential to reduce loss of life and property; (2)
deliver high resolution, visually oriented products to provide partners
and customers with valuable information for life decisions; (3) refresh
aging hydrologic forecasting infrastructure to support rapid infusion
of scientific advances; and (4) leverage NOAA's investments in
observational systems and atmospheric models to enhance accuracy and
resolution of river forecasts.
Weather & Climate Supercomputing.--NOAA requests an increase of
$6.2 million for a total of $21.2 million to continue operations and
maintenance of the current National Weather Service (NWS)
supercomputer, and to transition the next generation weather and
climate supercomputing system into operations. The NWS supercomputer is
the foundation for all NWS weather and climate forecasts. Operational
transition of the next generation supercomputer will enable the NWS to
improve the resolution and forecast accuracy of the prediction models.
Radiosonde Replacement.--NOAA requests an increase of $2.0 million
for a total of $7.0 million to continue replacing and modernizing the
upper air radiosonde network. The radiosonde network provides critical
upper air observations which are a vital component of all weather
forecast models. The current network is obsolete and nearing collapse,
risking widespread loss of data within the next two to three years.
Aviation Weather.--NOAA requests a total of $2.5 million to
initiate a 7-year plan to help improve U.S. aviation safety and
economic efficiencies by providing state-of-the-art weather observation
and forecast products responsive to aviation user needs. Weather
accounts for over 70 percent of all air traffic delays, which results
in greater expenditures by both airline customers and the airlines. In
addition, an average of 200 general aviation pilot fatalities per year
are caused by weather-related accidents across the United States. This
initiative will provide a means for the NWS to improve its aviation
weather forecast services through 3 major components which include: (1)
increasing the number and quality of aviation weather observations; (2)
transitioning successful applied research efforts to operational
products; and (3) developing and implementing new training programs for
forecasters, pilots, and controllers. This initiative has the goal of a
10 percent reduction in National Airspace System weather-related air
traffic delays, which would save $600 million annually in potential
economic losses, and reduce general aviation weather related fatalities
by 25 percent, or 50 lives annually.
Huntsville, AL Weather Forecast Office.--NOAA requests a total of
$1.4 million to pay for recurring operations and maintenance costs at
the new Huntsville, Alabama Weather Forecast Office (WFO). The
Huntsville WFO was established in fiscal year 2002 at the University of
Alabama at Huntsville. The $1.4 million requested will provide for NWS
employee salaries, facilities rent and maintenance, and operational
equipment and supplies to operate and maintain weather forecast and
warning services in the Huntsville area.
Polar Orbiting Systems.--NOAA requests a net increase of $64.3
million for Polar Orbiting Systems, which are comprised of NOAA Polar
K-N and the National Polar Operational Earth Satellite System. The net
increase requested is described as follows:
--NOAA Polar K-N'.--NOAA requests a decrease of $15.6 million for a
total of $122.9 million for the NOAA Polar K-N'. The Polar K-N
program is completing major procurement items and therefore
does not need to continue the funding levels of previous years.
--National Polar-orbiting Operational Environmental Satellite System
(NPOESS).--NOAA requests an increase of $79.9 million for a
total request of $237.3 million for the continuation of the
tri-agency NPOESS program that will replace the NOAA POES
program after completion of the current NOAA K-N' series of
satellites. This request represents NOAA's share of the
converged NOAA/DOD/NASA program. In fiscal year 2003, funds
will be required to continue the development and production of
the NPOESS instruments, including the Visible Infrared Image
Radiometer, the Conical Microwave Imager Sounder, the Cross-
track Infrared Sounder, the Ozone, Mapping and Profiler Suite,
the Global Positioning System Occultation Sensor, and the Space
Environmental Sensing Suite. The continued development of these
instruments is critical for their timely and cost effective
delivery to replace both the Defense Meteorological Satellite
Program (DMSP) and the NOAA POES spacecraft when needed.
--Geostationary Operational Environmental Satellite (GOES).--NOAA
requests a decrease of $35.1 million for a total request of
$227.4 million to support continued post launch requirements
for GOES I-M; the continued procurement of the GOES-N series
satellites, instruments, ground systems, and systems support
necessary to maintain continuity of Geostationary operations;
and planning and development for the GOES-R series of
satellites and instruments. This decrease represents a program
change resulting from the successful launch of GOES M, and the
continued success of the GOES I-M series.
Earth Observing System Data Archive & Access System Enhancement.--
NOAA requests a total of $3.0 million to ensure that NOAA can fully
utilize the vast amounts of new satellite-based environmental data
becoming available, process and distribute that data in a variety of
formats, provide stewardship for the data, and make the data accessible
to users in a variety of economic, research, government, and public
sectors.
Joint Center for Data Assimilation.--NOAA requests an increase of
$2.6 million for a total of $3.4 million for the Joint Center for
Satellite Data Assimilation. NWS, the Office of Atmospheric Research
(OAR), and NASA also provide funding as partners in this coordinated
national effort to more fully realize the potential of the vast
quantities of new satellite data that are becoming available.
Coastal Ocean Remote Sensing.--NOAA requests a total of $6.0
million to develop and deploy a prototype high-resolution imaging
sensor to meet long-standing NOAA requirements. This initiative will
allow NOAA to work with NASA to develop conceptual design and
capabilities of this instrument, which will continuously monitor
coastal ocean areas for harmful algae blooms, coral reef deterioration,
pollution changes, fisheries management, and navigation. This
instrument will provide continuous, high resolution monitoring in
unprecedented detail of terrestrial features such as vegetation
changes, flooding, wild fires, volcanic eruptions, and ash cloud
transport.
Satellite Command & Data Acquisition (CDA) Facility.--NOAA requests
an increase of $1.0 million for a total of $4.6 million to continue the
Satellite CDA Infrastructure program. Improved facilities reduce the
risk of outages and service disruptions caused by failure of the
supporting buildings, facilities, and infrastructure. This program
minimizes the risk of spacecraft loss and data loss and allows NOAA to
continue supporting worldwide requirements for critical operational
satellite data and services.
Satellite Command and Control.--NOAA requests an increase of $4.4
million for a total of $34.8 million for satellite command and control.
This investment supports the operations of the NOAA satellite systems,
the ingesting and processing of satellite data, and the development of
new product applications required for continuity of operations. NOAA
provides satellite command and control services on a 24 hours per day,
365 days per year schedule. Two critical components of this initiative
are:
--Protecting Critical Satellite Control Facilities.--NOAA requests
$0.3 million to enhance security at the satellite Command and
Data Acquisition ground stations by upgrading and expanding
security lighting.
--Satellite Command and Data Acquisition Station Operations.--NOAA
requests $2.2 million for the operation of the polar Satellite
Command and Data Acquisition (CDA) ground station. NOAA will
use these funds to obtain the appropriate technical,
management, and administrative contractor support to operate
and maintain the acquisition and throughput of data from NOAA
and DOD polar-orbiting satellites to NOAA's Satellite
Operations Control Center, and to National Weather Centers.
Product Processing and Distribution.--NOAA requests an increase of
$6.7 million for a total of $27.7 million to process and analyze data
from NOAA, DOD, and other Earth-observing satellites; supply data,
interpretations, and consulting services to users; and operate and
maintain the Search and Rescue mission control center. This includes
supplying satellite data that makes up approximately 85 percent of the
data used in NWS numerical weather prediction models. NOAA will use the
requested program increase to support the following two mission
critical functions:
--Reducing the Risk to Continuity of Critical Operations.--NOAA
requests a program increase of $3.1 million to expand on-site
maintenance and staffing levels to ensure that all critical
functions are performed. This ensures vital and timely
information to customers and staff during times of peak
workload.
--Improved Support for Weather and Hazards.--NOAA requests a program
increase of $2.0 million to automate wild fire detection
algorithms to speed up the delivery of information to
customers, to integrate the information into geographic
information systems for detailed location information, and to
integrate new fire detection sensors from non-NOAA satellites.
G-IV Instrumentation.--NOAA requests a total of $8.4 million to
begin upgrading instrumentation aboard the G-IV aircraft. Improvements
in NOAA's Gulfstream IV aircraft's remote-sensing systems will enhance
NOAA's hurricane-reconnaissance capability. New technology will use
remote sensors to develop 3-dimensional profiles of hurricanes from
45,000 feet down to the surface and would provide forecasters with
unprecedented real-time information on size and intensity. In addition,
radar-composite maps will provide critical rainfall information that is
crucial to forecasters and to the emergency management community for
preparedness and evacuations.
climate services
NOAA maintains a balanced program of focused research, large-scale
observational programs, modeling on seasonal-centennial time scales,
and data management. In addition to its responsibilities in weather
prediction, NOAA has pioneered in the research and operational
prediction of climate variability associated with the El Nino Southern
Oscillation (ENSO). With agency and international partners, NOAA has
also been a leader in the assessments of climate change, stratospheric
ozone depletion, and the global carbon cycle. Our confidence in our
recent El Nino prediction is based upon a suite of robust observing
systems that are a critical component in any forecast.
The agency-wide Climate Services activity represents a partnership
that allows NOAA to facilitate the transition of research observing and
data systems, and knowledge into operational systems and products.
During recent years, there has been a growing demand from emergency
managers, the private sector, the research community, and decision-
makers in the United States and international governmental agencies for
timely data and information about climate variability, climate change,
and trends in extreme weather events. The economic and social need for
continuous, reliable climate data and longer-range climate forecasts
has been clearly demonstrated. NOAA's Climate Services Initiative
responds to these needs. The following efforts will be supported by
this initiative:
Climate Change Research Initiative.--On February 14, 2002,
President Bush announced the Clear Skies and Global Climate Change
initiatives. The Clear Skies plan aims to cut power plant emissions of
three pollutants (nitrogen oxides, sulfur dioxide, and mercury) by 70
percent. The new Global Climate Change initiative seeks to reduce
greenhouse gas intensity by 18 percent over the next decade. The
President's proposal supports vital climate change research and ensures
that America's workers and citizens of the developing world are not
unfairly penalized. NOAA's expertise will be extremely important in the
area of climate research. NOAA, along with NASA, Department of Energy,
National Science Foundation, and the Department of Agriculture will
implement a multi-agency Climate Change Research Initiative totaling
$40 million. The following sections detail NOAA's $18.0 million request
to address key priorities of the CCRI.
--Climate Modeling Center.--NOAA requests $5.0 million to establish a
climate modeling center at Princeton, New Jersey. This center
will focus on model product generation for research, assessment
and policy applications. NOAA has played a central role in
climate research, pioneering stratospheric modeling, seasonal
forecasting, ocean modeling and data assimilation, and
hurricane modeling. This core research capability will be
enhanced to enable product generation and policy related
research.
--Global Climate Atmospheric Observing System.--NOAA requests $4.0
million to work with other countries to reestablish the
benchmark upper-air network. NOAA will emphasize data sparse
areas, and place new Global Atmosphere Watch stations in
priority sites to measure pollutant emissions, aerosols, and
ozone, in specific regions.
--Global Ocean Observing System.--NOAA requests $4.0 million to work
towards the establishment of an ocean observing system that can
accurately document climate scale changes in ocean heat,
carbon, and sea level changes.
--Aerosols-Climate Interactions.--NOAA requests $2.0 million to
contribute to the interagency National Aerosol-Climate
Interactions Program (joint partnership with NASA, DOE, NSF)
currently under development. Specifically, NOAA will establish
new and augment existing in-situ monitoring sites and conduct
focused field campaigns to establish aerosol chemical and
radiative properties.
--Carbon Monitoring.--NOAA requests $2.0 million to augment carbon
monitoring capabilities in North America as well as
observations of globally relevant parameters in key under-
sampled oceanic and continental regions around the globe.
--Regional Integrated Science Assessments Program.--NOAA requests
$1.0 million for the Regional Integrated Science Assessments
Program (RISA). Working with the National Science Foundation
(NSF), NOAA will augment its research capability in assessing
climate change impacts vulnerability by utilizing the research
on ``Decision Making in the Face of Uncertainties'' in the
framework of the RISA programs, e.g. Pacific Northwest.
Arctic Research.--NOAA requests a total of $2.0 million in support
of the Study of Environmental Arctic Change (SEARCH) to improve
monitoring of the elements of the Arctic environment. NOAA's SEARCH
activities are part of a coordinated interagency and international
program, begun in response to evidence of an alarming rate of
environmental change occurring in the Arctic. The SEARCH initiative
will substantially increase understanding of long-term trends in
temperature, precipitation and storminess across the United States,
with potential improvements in forecasting and planning for energy
needs, growth seasons, hazardous storm seasons and water resources.
University-National Oceanographic Laboratory System (UNOLS).--NOAA
requests a total of $2.5 million to outsource with UNOLS and other
sources for ships in the Pacific to support long-time series research
for Fisheries-Oceanographic Coordination Investigations (FOCI), VENTS,
Oregon/Washington Groundfish Habitat and maintenance of the Tsunami
moorings in the Gulf of Alaska and Pacific Ocean. The increase will
enable NOAA to continue to meet research requirements in the Pacific
Ocean, Gulf of Alaska, and Bering Sea utilizing time aboard UNOLS and
other vessels.
Climate Monitoring and Ocean Observations.--NOAA requests an
increase of $5.4 million for a total of $54.6 million to recapitalize
the laboratories that conduct climate research, which includes $0.6
million for purchasing equipment and improving the scientific
activities that contribute to the long-term observing systems that
directly support the President's CCRI initiative. These observing
systems are the Global Ocean Observing System (GOOS); the Global Air
Sampling Network and a gas network at four baseline observatories, and
at Niwot Ridge, CO; and the Tropical Atmosphere Ocean (TAO) array which
is the cornerstone of the El Nino/Southern Oscillation (ENSO) Observing
System and other ocean observing systems.
NOAA requests an increase of $8.3 million for a total of $36.6
million for the Archive, Access, and Assessment programs working in
Climate Services. This continued investment will be used for the
following activities:
--Regional Climate Services & Assessments.--To develop an improved
climate data and information delivery service. This will allow
NOAA to improve national, regional and state linkages and make
national, regional, state, and local weather and climate
observing systems and data bases more accessible.
--Next Generation Environmental Information.--To develop a new
generation of World Wide Web accessible climate information and
statistics for primary use by the energy sector of our economy.
This funding will allow NOAA to overhaul the current methods
and procedures for computing climate information such as
heating and cooling degree days, heat indices, wind chills,
freezing degree days, and other related statistics with the
goal of making this information more appropriate and timely for
business decision-making and strategic planning purposes.
--World Ocean Database.--This investment will be used to update the
World Ocean Database to include new sources of data and to put
in place the analytical and data management infrastructure
needed to transition this activity from the current research
mode to a sustained, operational service mode.
--Extending America's Climate Record.--NOAA will use the funds to
gather key paleoclimatic records to fill gaps; reconstruct
climate records during pre-instrumental periods; and produce
blended data sets that integrate instrumental, historical, and
paleoclimatic data into a holistic climate record.
--Solar X-ray Imager Archive.--NOAA will use the SXI archive to
derive new products to help reduce the effects of extreme space
weather events on telecommunications satellites, electrical
power services, and health risks to astronauts.
modernization of noaa fisheries
The fiscal year 2003 President's Budget Request for NOAA, invests
in core programs needed for our National Marine Fisheries Service
(NMFS) to meet its mission to manage fisheries, rebuild stocks, and
protect endangered species such as sea turtles and whales. NMFS
modernization funds will be allocated to ensure that existing statutory
and regulatory requirements are met for fisheries and protected species
management programs (including the Magnuson-Stevens Act, National
Environmental Protection Act, Endangered Species Act, Marine Mammal
Protection Act, and other statutory requirements). This budget request
continues NOAA's effort to modernize NOAA's Fisheries. The
Modernization of NMFS encompasses a long-term commitment to improve the
NMFS structure, processes, and business approaches. In addition to this
budget request, the Administration will propose that any
reauthorization of the Magnuson-Stevens Fisheries Conservation and
Management Act include authority for fishing quota systems within
regional fisheries, including transferable quotas, where appropriate.
This initiative focuses on improving NMFS' science, management, and
enforcement programs and begins to rebuild its aging infrastructure.
These improvements will result in measurable progress in the biological
and economic sustainability of fisheries and protected resources. To
continue this modernization program, NOAA's fiscal year 2003
President's Budget Request includes the following program investments
in Science, Management, and Enforcement.
Science: $74.8 Million Increase
Fisheries Research Vessel.--NOAA requests an increase of $45.5
million for a total of $50.9 million for NOAA's second Fisheries
Research Vessel (FRV2). This vessel will replace the 39-year old
ALBATROSS IV in the North Atlantic. Costs of maintaining the aging
ALBATROSS IV for the five years needed to construct the replacement FRV
and to allow side-by-side missions for calibration purposes are
escalating. Moreover, replacing the aging fleet is required to provide
research platforms capable of meeting increasingly sophisticated data
requirements for marine resource management.
Modernize Annual Stock Assessments.--NOAA requests an increase of
$9.9 million to modernize annual stock assessments. Funding will allow
NMFS to conform to new national stock assessment standards of data
quality, assessment frequency, and advanced modeling. An increase of
$5.1 million is requested to provide for the recruitment and training
of stock assessment biologists and supporting staff to produce annual
stock assessments that meet the new standard for Federally managed
stocks. This request would also add an increment of 260 Fisheries
vessel/charter days at sea toward the balance of 3,000 days identified
in the NOAA Fisheries Data Acquisition Plan at a cost of $2.4 million.
The initiative includes $0.9 million for advanced sampling
technologies. This element targets improvements and innovative uses of
existing technologies, including the application of new and advanced
sampling systems and approaches. Also, included in this request is $1.5
million to enhance fisheries oceanography studies, principally, the
Fisheries and the Environment program (FATE).
Endangered Species Act Sea Turtle Research.--NOAA requests an
increase of $2.0 million for a total of $6.5 million to continue the
recovery of highly endangered sea turtles. Of the $2.0 million
increase, $1.4 million is to provide the necessary research to recover
highly endangered marine turtles. This program is designed to help us
collect information on biology and habitats and share that information
with other range countries. The remaining $0.6 million is requested to
implement management strategies to reverse population declines,
implementation of multi-lateral international agreements, and building
capacity through domestic and international educational and outreach
programs.
Columbia River Biological Opinion (BiOp) Implementation.--NOAA
requests an increase of $12.0 million to provide for the research,
monitoring, and evaluation (RM&E) necessary to continue implementation
of measures included in the Columbia River Biological Opinion. The RM&E
program will provide the scientific information necessary to assess
whether BiOp performance measures are being achieved at 2003, 2005, and
2008 check-ins. This funding also provides for the research needed to
address key uncertainties identified in the BiOp in the areas of
estuary and near-shore ocean survival, delayed effects related to dam
passage, and the effects of hatchery programs on the productivity of
naturally spawning fish.
Recovery of Endangered Large Whales.--NOAA requests an increase of
$1.0 million to provide resources to scientifically determine whether
two key endangered whales--humpbacks and bowheads--have recovered and
are candidates for delisting. This information will enable NOAA to
detect changes in the status of large whales and prevent any long-term
irreversible damage to these populations.
Socioeconomics.--NOAA requests an increase of $1.5 million for a
total of $4.0 million to support the on-going development of a multi-
year comprehensive social sciences program to support NMFS policy
decisions. The approach is 3-tiered, augmenting the integral components
of a successful social sciences program that includes staffing ($0.6
million and 7 FTE); data collection ($0.5 million); and research
activities ($0.4 million). In combination, the funding will be used to
continue addressing shortcomings in economic and social assessments of
policy alternatives by improving the economic and social science staff
capability, and initiation of data and applied research programs.
National Observer Program.--NOAA requests an increase of $2.9
million for a total of $17.0 million for the National Observer Program.
Funding will be used to expand the collection of high quality fisheries
and environmental data from commercial and recreational fishing vessels
to assess impacts on marine resources and fishing communities and to
monitor compliance with marine resource laws and regulations. This
request will primarily provide for approximately 4,000 observer sea
days spread over 11 fisheries, most of which are currently unobserved.
Management: $6.4 Million Increase
NMFS National Environmental Policy Act (NEPA) Implementation.--NOAA
requests an increase of $3.0 million for a total of $8.0 million to
continue striving to enhance its management of the NEPA process. This
funding will provide NMFS with the necessary resources to continue to
support agency-wide NEPA activities and will allow NMFS to strengthen
its decision-making and documentation process to more fully take
advantage of the decision making tools provided by NEPA.
Regional Fishery Management Councils.--NOAA requests an increase of
$1.9 million for a total of $16.0 million for the Regional Fishery
Management Councils. This request will provide needed resources for the
Councils to respond to increased workload in developing, implementing,
and supporting management measures to eliminate overfishing and rebuild
overfished stocks; identify and protect essential fish habitats; reduce
fisheries' bycatch to the maximum extent practicable; minimize the
impacts of fishing regulations on fishing communities; and to implement
programs that result from the next reauthorization of the Sustainable
Fisheries Act. These results will be achieved through the development
of amendments to and creation of new Fishery Management Plans and
regulations and corresponding and supporting international management
measures to control fishing activities.
Statutory and Regulatory Requirements.--NOAA requests an increase
of $1.5 million to provide for thorough, complete, and timely
environmental and economic analyses to NOAA customers and for its
recovery programs. Funds will support personnel in all NMFS regions,
science centers and headquarters to conduct required data gathering,
analysis, and document preparation to assess the impacts of human
activities that affect protected species. These include the range of
Federal actions, including management of marine fisheries. This funding
will also support assessments of the environmental and socioeconomic
impacts, costs and benefits of implementing conservation programs for
protected species.
Enforcement: $9.7 Million Increase
Enforcement and Surveillance.--NOAA requests an increase of $4.3
million for a total of $39.3 million to expand and modernize NMFS'
fisheries and protected species enforcement programs. These programs
include Alaska and west coast groundfish enforcement, protected species
enforcement, state and local partnerships, specialized Magnuson-Stevens
investigatory functions, community oriented policing and problem
solving, and swordfish/Patagonian toothfish import investigations.
Vessel Management System (VMS).--NOAA requests an increase of $5.4
million for a total of $7.4 million for additional support and
continued modernization and expansion of the vessel management system
(VMS) program. These resources will create a program which will monitor
approximately 1,500 vessels and is readily expandible. VMS technology
is an invaluable tool for modern fisheries management. It provides
outstanding compliance without intrusive at-sea boardings, enhances
safety at sea, and provides new tools to managers for real time catch
reporting.
other key noaa programs
NOAA is constantly pursuing areas where the expertise of our
researchers, scientists, and staff can contribute to solving problems.
Therefore, NOAA has other key programs that respond to these
challenges. They are Energy, Homeland Security, Ocean Exploration, and
Coastal Conservation.
energy
Energy Initiative.--NOAA requests a total of $6.1 million to
implement a pilot program that will provide more accurate temperature
and precipitation forecasts, and additional river forecast products to
help the energy industry improve electrical load forecasting and
hydropower facility management. Based on industry estimates, this
investment will result in savings of $10 to $30 million annually in the
pilot region after the second year of the demonstration. Expanding the
pilot nation-wide could generate savings of over $1 billion per year.
Energy Permit Rapid Response.--NOAA requests a total of $2.0
million to support the establishment and implementation of a
streamlined energy permit review process. This proposal responds to an
Executive Order directing Federal agencies to expedite permits and
coordinate Federal, state, and local actions needed for energy-related
project approvals on a national basis and in an environmentally sound
manner. The goal of this request is to reduce, by 25 percent, the time
required to adjust the permits of licensed energy projects/facilities.
Currently, re-licensing of existing facilities takes 6-10 years. It is
anticipated that the combination of regular re-licensing and permit
adjustments to implement the new National Energy Policy will result in
thousands of new actions for NOAA nationally.
Energy Management.--NOAA requests a total of $0.6 million for
Energy Management. The requested funds will be used to reduce NOAA's
facility operating costs through actively pursuing energy commodities
at competitive prices, identifying and implementing energy savings
opportunities and applying renewable energy technologies and
sustainable designs at NOAA-managed facilities. Many of the equipment
retrofits that are a part of energy management have enabled facilities
to recover their costs in less than five years.
homeland security
On September 11, 2001, the Nation experienced an unprecedented
attack on the World Trade Center and the Pentagon. NOAA immediately
implemented its agency-wide Incident Response Plan, and was able to
rapidly deploy critical assets, capabilities, and expertise to support
response and recovery efforts. NOAA personnel in weather offices,
satellite and remote sensing teams, hazardous materials units, marine
transportation and geodesy offices, and fisheries enforcement teams
provided a wide range of products and services.
NOAA's response to the September 11 attacks was rapid and focused.
However, the attack fundamentally altered the context of NOAA's
incident response planning. The threats resulting from attacks on the
nation may be different in nature, and larger in scale and scope. Thus,
NOAA's Homeland Security efforts are focused on enhancing its response
capabilities and improving internal safety and preparedness. NOAA is
working quickly to improve its ability to coordinate emergency
response, to evaluate its existing capabilities, and to identify
products and services that will meet the challenge of new response
realities. NOAA's Homeland Security activities are dedicated to
advancing the coordinated efforts within the Department of Commerce,
the Office of Homeland Security and assisting NOAA's many federal,
state, and local partners.
In fiscal year 2003, funding is requested to address the most
immediately recognized areas of programmatic vulnerabilities to ensure
the continuity of the most critical of NOAA's services and information
products in the event of natural or man-made emergencies.
Vessel Lease/Time Charter.--NOAA requests an increase of $9.9
million for a Vessel Lease/Time Charter. In fiscal year 2003, NOAA will
continue assisting DOD in mapping and charting key port areas. NOAA
will initiate a vessel time charter to expand its hydrographic
surveying capacity. While having the capability to operate throughout
America's Exclusive Economic Zone (EEZ), initial emphasis during fiscal
year 2003 will be in the Gulf of Mexico. Ninety-five percent of
America's non-NAFTA economic trade moves through the marine
transportation system. Any interruption in the flow of goods through
our nation's marine transport system yields immediate and dire impact
to the national economy. Four of the top seven port areas are found on
the Gulf of Mexico, including: (1) New Orleans and South Louisiana, (2)
Houston/Galveston, (3) Port Arthur, TX and Lake Charles, LA; and (4)
Corpus Christi, TX. The combination of high traffic, hazardous cargos
and vessels operating close to the ocean bottom make waterways and
ports particularly vulnerable to terrorist activities including those
utilizing low technology mines. Requested funding provides critical
survey data to directly enhance safety of mariners, passengers, and the
national economy from threats both natural or human in origin.
NESDIS Single Point of Failure.--NOAA requests a total increase of
$2.8 million to provide backup capability for all critical satellite
products and services. This effort supports the continuity of critical
operational satellite products and services during a catastrophic
outage. In fiscal year 2003, NOAA will begin the first phase of
hardware, software, and telecommunications purchases; and perform
initial testing of all capabilities for this backup system. The
requested funding also supports installing additional communications
links to connect the backup location to the NOAA Science Center in Camp
Springs, Maryland.
Satellite Facilities Security.--NOAA requests a total of $2.3
million, an increase of $0.3 million, to maintain enhanced security at
the satellite Command and Data Acquisition ground stations. NOAA
requires these funds to enhance the systems that protect these
stations, reducing the risk to satellites and ground systems due to
breaches in security. These satellite stations represent the backbone
of the ground systems that support NOAA spacecraft programs-commanding,
controlling, and acquiring data from on orbit satellites with an
estimated value of $4.5 billion.
NWS Gateway Critical Infrastructure Protection.--NOAA requests a
total of $3.0 million for the National Weather Service
Telecommunications Gateway Backup (NWSTG). During fiscal year 2003,
this funding will enable the NWS to complete the establishment of the
NWSTG facility. After scheduled deployment in early fiscal year 2004,
the continued funding level of $3.0 million will cover recurring costs
for NWSTG backup communications, system software licenses, systems
operations and maintenance support, facility rent, and cyclical
technology refreshment. This will ensure uninterrupted delivery of
critical meteorological data necessary for the protection of life and
property, and the economic well being of the Nation.
Weather & Climate Supercomputing Backup.--NOAA requests a total of
$7.2 million to implement an operational backup system for the NWS
weather and climate supercomputer. The NWS weather and climate
supercomputer is a critical component of NOAA's mission and is
currently a single point of failure as the entire system is located in
a single facility. Many of the data, products and services provided by
and through the Central Computer System (CCS) directly contribute to
the issuance of life saving NWS watches and warnings to the public. The
NWS weather and climate supercomputing backup system is a critical part
of DOC's Homeland Security Initiative and NOAA's comprehensive business
continuity plan, designed to support uninterrupted data and product
delivery to NOAA customers. The National Center for Environmental
Prediction's (NCEP) CCS is currently the only computer system within
NOAA capable of running highly complicated forecasting models in the
required operational (regimented) mode. During fiscal year 2003 the NWS
will acquire the necessary backup system hardware capability, conduct
site selection, and begin installation.
Commercial Remote Sensing Licensing.--NOAA requests a total of $1.2
million for the Commercial Remote Sensing Licensing and Enforcement
Program to ensure the timely review and processing of satellite license
applications. This NOAA investment will support staff engaged in the
review of commercial remote sensing licensing applications. NOAA will
also support monitoring and compliance activities, which include the
review of licensee quarterly reports, on-site inspections, audits, and
license violation enforcement. The funds requested in fiscal year 2003
will also support implementation of shutter control over commercial
systems to ensure that our Nation can respond to commercial remote
sensing security issues in national security and foreign policy crisis
situations.
ocean and coastal programs
NOAA requests a total of $14.2 million for Ocean Exploration, this
includes a small amount for adjustments-to-base. This program seeks to
increase our national understanding of ocean systems and processes
through partnerships in nine major voyages of discovery in fiscal year
2003. Ocean Exploration is investment in undersea exploration,
research, and technology in both the deep ocean and areas of special
concern, such as the U.S. Exclusive Economic Zone (EEZ), and National
Marine Sanctuaries (NMS).
NOAA's coastal conservation activities total $348.5 million, and
are central to accomplishing the mission of environmental monitoring,
and underscore a commitment to coastal, estuarine, and marine
ecosystems. NOAA's activities include Coastal Zone Management; Marine
Sanctuaries, Estuarine Research Reserves, and Marine Protected Areas;
Coral Reefs, Habitat, and Other Coastal Conservation & Restoration
Programs; and Pacific Salmon recovery Fund and Treaty. Many of these
programs receive adjustments-to-base, and there is an increase for
Cooperative Conservation and Recovery with States. NOAA requests a
total of $1.0 million for Cooperative Conservation and Recovery with
States to provide funds to state partners under the Endangered Species
Act Section 6 cooperative conservation program. These agreements will
provide the means for states and local communities to undertake local
initiatives in the management and recovery of ESA-listed and candidate
species by providing the legal authority to make the decisions about
how best to protect species at risk of extinction. The agreements would
provide funding on a matching basis to accomplish conservation
activities. Funding provided to the states would support local
researchers, non-governmental organizations and volunteers to
accomplish monitoring, restoration, science and conservation
activities.
financial management in noaa
NOAA will continue to improve its core financial management
responsibilities in order to meet the future needs of NOAA and its
stakeholders. NOAA has placed a high priority on the proper execution
and accounting of its resources. Key budgetary and financial management
improvements are centered around three key areas: (1) Improved Funds
Control and Execution through Automation; (2) Improved Budget
Structure; and (3) Improved Outreach and Communications.
Improved Funds Control and Execution through Automation
Included in the fiscal year 2003 request is $16.1 million for
NOAA's share of the Commerce Administrative Management System (CAMS).
CAMS will contribute to improved financial management in a number of
significant ways, primarily by accounting for NOAA's expenditures and
maintaining NOAA's clean audit opinion. While NOAA has made significant
efforts to retain its clean audit opinion for a third consecutive year,
it has done so with inefficient manual, error-prone business processes
that are labor-intensive. Without significant amounts of overtime and
creative manual resource tracking, NOAA's accounting details would be
non-existent. CAMS will provide financial managers with on-line, real-
time, and accurate financial information and will enable NOAA and DOC
to meet statutory obligations under the Federal Managers' Financial
Integrity Act (FMFIA) and the Chief Financial Officers Act (CFO Act).
Improved Budget Structure
In the fiscal year 2003 budget, legislation is requested to
establish a Business Management Fund (BMF) for corporate centralized
services in NOAA. For decades, NOAA has managed its centralized
services through a funding mechanism supported in its current financial
management system, FIMA, known as indirect costs. The process by which
funds were collected and distributed to support centralized services
was convoluted at best, and fraught with inconsistencies. Three years
ago, NOAA began a comprehensive effort to review its corporate funding
methodologies and work toward moving its headquarters management fund
into a business-like environment. A number of improvements have been
realized already, including stability in corporate charges for three
years in a row, returning unspent corporate costs, and reporting to
customers the status of funds mid-year and at year-end. However, to
complete this effort of truly realizing a business fund operation, NOAA
requires legislation. No current legislation exists for NOAA to operate
this fund, particularly after FIMA is replaced by CAMS. Once
legislation is secured, NOAA will begin to develop budgetary
documentation with the same rigor and reporting as required with
appropriated funds. Already underway, in support of this effort is
NOAA's initiative to implement Activity Based Costing (ABC) across all
of the Office of Finance and Administration's key business lines. ABC
studies are being completed to compute costs for services such as human
resources, grants, and eventually all other support services. The end
result of these studies will be the ability to charge customers a fee
for services, based on actual and estimated usage, and by the specific
services required. This will replace the flat rate, off-the-top
methodology employed today and will allow charges to be tailored to
line offices' specific requirements. NOAA is committed to bringing its
corporate services up to 21st century standards, and the flexibility of
a business management fund is a cornerstone of our plan.
Over the past several years, NOAA has been working to respond to
Congressional concerns regarding its budget structure. NOAA, in
conjunction with both Congressional and Administration assistance,
recently restructured the budget during the fiscal year 2002
Appropriations process. However, this effort is just a beginning, and
NOAA will continue to work with Congress to ensure that our budget is
adapted to Congressional reporting needs and concerns. For example, in
the fiscal year 2003 budget, NOAA has added additional specialty tables
that will allow Congress to track budgetary initiatives that cross
multiple programs and/or NOAA Line Offices, and NOAA has enhanced its
base narratives to be more descriptive. Also, in support of flexible
budgetary reporting, NOAA is developing a budget database that moves
its tracking tables from the current lotus driven environment to a
database environment. This will allow for more accurate tracking,
quicker response to inquires, and allow for greater flexibility in
preparing budgetary charts in response to Congressional and
Administrative inquires. In conjunction with OMB, NOAA has developed a
simplified tracking table that clearly indicates NOAA's primary mission
areas.
Finally, NOAA began an effort to conduct a position and FTE
management review. This effort began in fiscal year 2002 and was
adopted during the fiscal year 2002 appropriations process. The fiscal
year 2002 efforts focused developing an accurate baseline of FTEs based
on actual usage. The baseline was completed and has been implemented.
In fiscal year 2003, NOAA's efforts will focus on ensuring that the
positions associated with this new baseline are aligned properly with
program requirements.
sea grant
I would also like to explain the Administration's proposal to
transfer funding for the Sea Grant College Program to the National
Science Foundation (NSF). The Sea Grant program plays an important role
in marine and coastal research and is a cost-effective way to address
new problems in marine research management. Under the Administration's
proposal, the current Sea Grant structure would be replaced with a
university-based coastal and ocean program modeled after the NSF
centers, with input from researchers, educators and practitioners,
through workshops. NSF will retain the Sea Grant College designation
for qualified centers. The program will be open to all public and
private institutions of higher education through a fully competitive
process. NSF also has a lower matching requirement, so state and local
funds will be freed up to address outreach and extension needs of local
communities. NOAA will have a strong role in setting research
objectives for the program. To ensure the program transfer does not
adversely affect current awardees, NSF will transfer funds to NOAA to
support the current award commitments through the duration of their
grant period.
Several studies of the Sea Grant Program have noted its
effectiveness, as well as its problems. In 1994, the National Research
Council (NRC) found that NOAA's Sea Grant Program has played a
significant role in U.S. marine science, education, and outreach. The
review's recommendations included better defining the roles of the
National Sea Grant Office, the Sea Grant College programs, and the Sea
Grant Review Panel, and streamlining the proposal review and program
evaluation processes. Many of the recommendations of the NRC report
have been adopted by the program and were also incorporated in the 1998
Amendments to the National Sea Grant College Program Act. In a November
2000 study, entitled ``A Mandate to Engage Coastal Users,'' a committee
led by Dr. John Byrne of Oregon State University and the Kellogg
Commission indicated Sea Grant has been effective in facilitating the
Nation's sustainable development of coastal resources by helping
citizens make better informed and wiser decisions. Twenty-two of the 30
state Sea Grant Programs have undergone performance evaluations by
teams of outside reviewers and Sea Grant peers. Sixteen were graded
``excellent'' in achieving significant results. A program was graded
``excellent'' if it produced significant results, connected Sea Grant
with users, and was not found to need improvement in areas such as
long-range planning and management. Sea Grant's 1999 Hammer Award-
winning program in seafood safety training and the national marina
management effort are examples of other successful national programs.
Through the years, a number of successful partnerships have been
established between NOAA and the National Science Foundation (NSF),
such as the Teacher-at-Sea Program, our partnerships with NSF on the
U.S. Global Change Research Program and the U.S. Weather Research
Program, as well as the Study of Environmental Arctic Change (SEARCH)
program. And, NSF supports some applied research programs, such as the
Small Business Innovation Research and Technology Transfer programs.
conclusion
NOAA's fiscal year 2003 Budget request invests in people, climate,
energy, homeland security, infrastructure, and high priority research,
science, and services. This budget maintains NOAA on its course to
realize its full potential as this nation's premier environmental
science agency. NOAA is also doing its part to exercise fiscal
responsibility as stewards of the Nation's trust as well as America's
coastal and ocean resources. And, in the same way that NOAA is
responsible for assessing the Nation's climate, we are responsible for
assessing and improving our management capabilities. NOAA will continue
to respond to key customers and stakeholders, and will continue to
leverage its programs and investments by developing those associations
that most efficiently and economically leverage resources and talent,
and that most effectively provide the means for successfully meeting
mission requirements. Thank you for the opportunity to present NOAA's
fiscal year 2003 budget.
OPENING STATEMENT BY VICE ADMIRAL LAUTENBACHER
Admiral Lautenbacher. Thank you, Senator Hollings. It is a
great pleasure and privilege to be here with you this morning.
I appreciate the opportunity to answer questions and to support
our budget request for fiscal year 2003. If I could just take 2
or 3 minutes to summarize the highlights, I will be very brief,
sir.
I want to thank the committee for their support of NOAA
over the years. This support has been very important to our
country and to our organization and we appreciate that and we
look forward to working with you during this budget cycle as we
have in previous years.
The budget this year is a total of $3.3 billion that we are
requesting. This is roughly level with last year's request. It
is a budget that maintains the services and critical products
and support that NOAA provides for our country. There are
several high-priority items that I would like to emphasize.
First of all, it is our emphasis and request for people. We
are asking for the funds to ensure that pay raises and
maintenance of our corps of scientists and experts in all
areas, from weather to fisheries management to ecosystem
development, that that base of people be maintained in their
current condition. We believe that that is very important for
the country and our organization. That is our number one
priority, sir.
We also have a number of small initiatives in this budget
which I think are very important to us, small in a sense in
terms of the larger budget picture, but I wanted to mention
several of them. It is the continuation and the development of
our NPOESS satellite system. This is a joint program with the
Department of Defense. It is on track and on schedule. There is
an extra $63 million in that line, in our satellite line, which
allows for the normal development of this program. The NPOESS
satellite will replace our polar orbiting satellite system
starting in 2008.
We have also requested funds for a second fisheries
research and survey vessel. Recapitalization of our survey
fleet, in fact, our entire fleet, is a very important issue. We
believe this is deserving of your support, sir.
We also have money in there for increasing our fisheries
surveys, to improve our management of sustainable fisheries. We
believe that increase is important to maintain our knowledge,
increase our knowledge, and for prudent management of our
fisheries.
We also have an increase of about $9 million for
enforcement issues regarding fisheries. We think that moving to
technology innovations like vessel monitoring system on our
vessels will provide high-tech solutions and will help our
observer problem. This will ensure fair enforcement across the
board and will go a long way toward improving our management.
We have also taken steps to improve our internal management
of NOAA budgets. We are asking for a business management fund
authority this year which will allow us to use activity-based
costing, be much more aware and cognizant of the types of
internal costs it takes for providing central services, such as
HR and human resource management and budget management.
We also have organized our budget in accordance with
directives of Congress, hopefully to make it easier for
everybody to understand and to help us as we deliberate for the
future.
Again, thank you very much to all the members of this
committee for their support and help for our great organization
and I look forward to answering your questions, sir. Thank you.
Senator Hollings. Admiral, we appreciate it very much and
we are all working for the good of the order.
Just one observation, that somehow, somewhere, sometime,
this administration might sober up and settle down. For one,
they seem to act like the administration is not the execution
of the laws and policies of the Congress, but what they think
ought to be done. Wonderful. We have had many administrations
come up and request of us, why do we not change this, do this,
do that, and everything else of that kind. And we do it, three
readings in the House, three in the Senate.
Now, we just had the Attorney General testify. He came with
a wild idea to take COPS on the beat, law enforcement at the
local level, which has got a stellar record now for the past 10
years, since we put in this community policing, and send it
over to FEMA where they do not know anything about law
enforcement and are not supposed to know anything about law
enforcement.
You read in the morning paper where they want to take
Customs, which is working good, and put it over in the Border
Patrol and INS and Justice told me it would be vice-versa.
There is no reason to jumble it up. Border Patrol is working.
Customs is working. Parts of the INS are working. It is just
you have got to get somebody in there to tell the congressional
callers to bug off. What happens is where you have got local
enforcement with respect to the immigration, a Congressman will
call and tell the head of the INS that their agents are out of
hand and everything else because they are enforcing the law
that Congress passed. Let us get with the program and
understand what has been happening. These industries are flying
in from Guatemala and elsewhere illegals to do the work, and so
when we go to enforce it.
TRANSFER OF SEA GRANT COLLEGE PROGRAM
Now, we start with your Department. Out of the blue, to the
National Science Foundation gets the sea grant program. Nobody
heard about it. I have been here for a few years, since its
initiation in the very beginning of NOAA. If you move sea
grant, you lose your State extension programs, you lose your
student educational programs at the universities and everything
else of that kind, just send it over to the National Science
Foundation. Was that your suggestion?
Admiral Lautenbacher. No, sir. This occurred before I came
into my current position.
Senator Hollings. Did you----
Admiral Lautenbacher. I am a strong supporter of the sea
grant program and I believe the administration wants to see the
sea grant program continue, as well, sir.
Senator Hollings. But where do they want it, because they
have eliminated the $62 million for the sea grant program. That
is why I am asking the question.
Admiral Lautenbacher. Yes, sir. There are a number of pros
and cons on the management of the sea grant program. The
administration looked at it this year and looked at the heavy
component that it has in common with research management and
felt that our four-star research organization, NSF, could do a
better job in terms of managing the bulk of that program. That
is one pro which was looked upon as a very positive effort for
this program. The decision was made, along with several other
programs that had significant research components, to move them
into NSF. It was part of a larger package, Senator.
Senator Hollings. Well, I understand that is about as good
of an answer as you can give, but the ocean exploration
initiative by our ranking member and myself, has now been
recognized by the administration. The only trouble is, it is
unfunded at the level of $14 million. You have got space at $14
billion. The ocean is seven-tenths of the Earth's surface, 95
percent unexplored, and $14 million. That will handle one
research project in one part of this seven-tenths of the
Earth's surface. So let us see if we cannot do even better on
that.
NMFS LITIGATION CASE BACKLOG
On the other hand, let us look more particularly at your
fisheries. We had, long before your coming, some cases and we
noticed in the middle of the 1990s we only had 15 cases, but
then it got up to 100, and we put some money into it and now
they have got 150 active cases there in the fisheries. The
National Marine Fisheries is asking for an additional 115
positions, but none of it going to the litigation problems.
Why?
Admiral Lautenbacher. We have about $3 million for
improvements in the NEPA process and another $1.5 million in
regulatory increases. Our NEPA program is essentially handled
by all of the various parts of the NMFS organization that deal
with these types of cases.
We are putting more resources into it. I am also conducting
an internal review of all of NOAA management processes right
now. I am hoping that at the end of this, that we will find
better ways of managing our business. I am not a fan of having
all of these court cases, as you know, sir, and I am looking
for ways to improve that, as well.
We do have a modest down payment for improvements in our
NEPA process in this budget and I look forward to doing more in
the future.
Senator Hollings. Admiral, the year before last, a
fisheries case held up the entire Government. We could not
finalize our budget. We could not finalize and adjourn for
Christmas until that fishery case was disposed of, and the
distinguished member of the panel up here is more familiar with
it than myself, but these fisheries cases, let us get on top of
them and get them out of the way.
Admiral Lautenbacher. Yes, sir.
Senator Hollings. Senator Gregg.
Senator Gregg. Thank you, Mr. Chairman.
NATIONAL SEA GRANT COLLEGE PROGRAM
I want to associate myself with your concerns about the sea
grant program. It is my view that NOAA is the proper agency to
continue to manage the sea grant program. NOAA is the leading
oceanographic research entity, it is the most advanced agency
in the world as far as ocean issues are concerned, and although
sea grant is theoretically basic research, NOAA does a great
deal of basic research as well as applied research and it makes
no sense at all to move it over to NSF. I would hope that the
chairman would accept an amendment from myself, or maybe the
chairman or the ranking member of the full committee, which
would make it clear that sea grant is a NOAA operation when we
get to markup.
FISHING RESTRICTIONS IN NORTHEAST
On another issue, the fish issue, in New England, we have a
very serious situation. We just had a ruling by a Federal judge
here in Washington which potentially not only shuts down our
fisheries for commercial fishermen, but ironically shuts it
down for pleasure fishermen and charter boats, which makes
virtually no sense at all. We recognize the fish stock is a
huge question and a huge problem for us on the Grand Banks and
in the Gulf of Maine, and I am sure my friend from Rhode Island
appreciates this problem as much as I do, but this appears to
be an overreaching, especially when it applies to private
fishing that is of a recreational nature and to charter boats,
which are popular things for people to do with their kids and
for school groups to take, to go out and learn about the ocean,
if nothing else.
So I am interested in getting your thoughts on where this
is going to go and where we are going to end up.
Admiral Lautenbacher. Well, we are in a difficult position
because the courts have taken the case. We are in a position of
being accused of not doing enough to support the laws of the
land in sustainable fisheries. We are still working to mediate
with the parties involved to see if we cannot reach a more
acceptable solution that balances the needs of both the
environmental community and economic interests.
The matter is not finished yet, by a long shot. I
understand your concerns. I am keeping myself involved with
this. Bill Hogarth has been personally involved with this
continuously for the last couple of months now. We will
continue to work to try to balance these interests. It is a
very difficult issue. We are not done yet. So I am hoping that
we can reach a better solution than we have right now.
Senator Gregg. Are you in active negotiations with
different parties, including the Conservation Law Foundation in
Boston, which is the basic energizer of the position that you
did not go far enough in your original proposals?
Admiral Lautenbacher. I have not had an update in the last
couple of days on the negotiations, but we have been in contact
with them over the past several weeks, let me say that, and I
will get you a better update and up-to-the-minute accounting
for that, Senator.
[The information follows:]
Status of Negotiations With Conservation Law Foundation
A number of the parties involved in the New England
Groundfish case have reached a settlement agreement. Parties
involved in the agreement are: the Conservation Law Foundation,
NOAA/NMFS, the State of Maine, the Commonwealth of
Massachusetts, the State of New Hampshire, the State of Rhode
Island, the Associated Fisheries of Maine, the City of
Portland, the City of New Bedford, the Trawlers Survival Fund,
Paul Parker, Craig Pendleton, the Northwest Atlantic Marine
Alliance, the Stonington Fisheries Alliance, the Saco Bay
Alliance, and the Cape Cod Commercial Hook Fishermen's
Association. The court was notified of this settlement
agreement on Monday, April 15, 2002. Any parties that have not
agreed to the settlement had until noon on Friday, April 19,
2002 to respond to the settlement. NOAA is now waiting to hear
from the Judge if the settlement agreement is accepted by the
Court.
Senator Gregg. Well, it is a huge issue for us in New
England and how we resolve it is going to have a major impact
on a lot of families and, really, a lot of fisherman and just
the character of the region. I do not know if you ever read the
little book called ``Cod.'' It is worth reading, though. It is
about how the cod basically founded America.
That was the theme of the book.
Senator Hollings. Before Al Gore?
Senator Gregg. Yes, it is an incredible little book. It may
overstate the case, but it definitely makes the case that the
culture of New England is tied to the cod.
I also want to thank Deputy Administrator Gudes for coming
to New Hampshire yesterday. I am glad he got out before the
snowstorm. We appreciate his support and his attention to the
concerns of our university and to the exciting things that are
happening up there with NOAA, so thank you very much.
Senator Hollings. Senator Stevens.
Senator Stevens. Thank you very much. Good morning,
Admiral.
Admiral Lautenbacher. Good morning.
ADDRESSING GLOBAL CLIMATE CHANGE
Senator Stevens. As you know, I have spoken often about the
changes that are taking place in Alaska because of the impact
of global climate change. I am not sure I am an advocate of
global warming because Antarctica is getting colder and the
Arctic is getting warmer, but in any event, our forests
definitely are moving further north. Permafrost is melting. We
have several villages along the Arctic coast that have been
inundated in the summertime because of high water. In four of
them, the only means of access or egress is by the air and
their strips were underwater for about 1 month last summer.
The National Science Foundation committed $30 million for
the SEARCH program, it is called the Study of Environmental
Arctic Change, to study climate change. You have $149 million
for climate change research. Can you tell me, how does that fit
in with what the NSF is doing? Are you going to be involved at
all in the Arctic research to determine what is going on or how
we can understand what is going on in the Arctic?
Admiral Lautenbacher. We have put in an increment. I admit
it is a very small one, but it is an increment for $2.5 million
to join with NSF in the SEARCH program that you just talked
about. We also are looking at plans for our ocean observing
system, to include, obviously, observing posts and sensors that
would include the Arctic and the Antarctic. The poles are
obviously bellwethers of what is happening in the atmosphere
and our whole environment in terms of climate.
It is very important to me personally to learn more about
it and to get better observations and better models. I am
hoping that we will be able to put more effort into this in the
future, but I think it is recognized within NOAA. We are adding
money in this year's budget to help with this research.
Senator Stevens. For $2.5 million, you get about a couple
of weeks' computer time, Admiral.
Admiral Lautenbacher. Yes, sir.
Senator Stevens. I really hope that you can find some way
to pick up that pace. When I was chairman of the committee, we
went down to Antarctica to look at the change down there and I
will never forget walking down into the American station, and
as I walked down, about 40 feet down a slope, I asked the
person in charge why they had decided to build the Antarctic
station under the ice and he said, ``You do not understand.
This was the surface of the ice when we came here.'' They have
got a buildup, a tremendous buildup of ice down there. The
continent may well break up because of the pressure of it, and
we are losing the ice.
I do not think $2.5 million will cut it, Admiral. I hope
that you will find some way to join in a robust study with the
National Science Foundation to try and tell us if there is any
indication that that change is brought about by any activity of
man. If it is not, then we had better get ready for a real
change in the globe if it proceeds at the rate it is going
right now.
NOAA SOLE SOURCING
On another subject, last week, I was pleased to see that
the Commerce Department pulled back a grant, $97,000, approved
by the Marine Sanctuary Office of NOAA. It was sole-sourced to
an entity, as a matter of fact, I call it a radical
environmental entity, to study marine sanctuaries.
I have two questions for you. How come NOAA is sole-
sourcing money for purposes such as that, and why is it that we
even need to go outside of Government to get people to study
the marine sanctuaries? I thought you had an ample number of
employees that NOAA could have done that job. Can you tell us
why?
In addition to that, I might tell you that there is a
provision in the 1980 Alaska National Interest Lands Act that
prohibits additional withdrawals in Alaska. That covers the
oceans as well as the land, because of the battle we had at
that time. I am sure you know that Glacier Bay has lands that
the Federal Government claims, notwithstanding the Tidelands
Act, in the 3-mile limit off our shore. Outside of those areas
where Congress created such a sanctuary, however, you have no
authority in the 3-mile limit to create sanctuaries without
State approval, and yet this contract, as I understand it, was
to study additional areas off our State, having this
environmental organization make those studies. Can you tell me
why?
Admiral Lautenbacher. Well, first of all, I was unaware
that this contract was in place, having only been here a couple
of months. As soon as I found out about it, it was no longer in
place. I am not a big fan of sole source and I think any sole-
source contracts need to be reviewed at a much higher level
than this one was reviewed at, so we have taken care of that
problem.
Now, why did that happen? I have been informed that the
folks that were doing this felt that the technical ability of
the people involved in this organization were of sufficient
value in terms of being able to mediate and bring people
together to a table and to discuss issues, they had a success
which was considered a bellwether in that type of work and they
were trying to capitalize on it. So it was not done with any, I
think, negative purposes. But be that as it may, it is not in
place any longer and we will not do business that way within
NOAA, sir.
Senator Stevens. Well, I have a problem with the Government
contracting with an advocacy group, that is known as an
advocacy group, to make scientific studies.
Admiral Lautenbacher. I have trouble with that, too,
Senator.
NATIONAL SEA GRANT COLLEGE PROGRAM
Senator Stevens. Let me go back to what the chairman and
Senator Gregg said about sea grant. We are constantly besieged
in this committee by the administration and others saying that
we are appropriating monies for items that were not authorized
by law. NOAA is authorized by law to conduct the sea grant
program. It is a specific law.
Could you tell me, did you have any attorneys or your
general counsel's opinion that you have the authority not to
ask for money for sea grant? If sea grant is going to get
money, it should be according to the law that authorized it,
which makes the sea grant a portion of your agency and of your
Department. Yet I am told that the request shifts sea grant
over to NSF. That amounts to a reorganization of the Government
by budget request.
Admiral Lautenbacher. The budget request reflects the
administration's decision to consolidate the national sea grant
college program and the research programs into the National
Science Foundation.
Senator Stevens. We are having too many fights around here
about prerogatives, but there is one prerogative. That is a law
that was signed. The distinguished chairman and I helped to
create the sea grant program and we know where it should be and
where the money should be requested to go, and yet now it is
over at NSF. We support NSF entirely, but that was not the
understanding of who was going to run the sea grant program and
the law says it is NOAA. I would urge you to go back and ask
your general counsel about that before we go any further,
because I think this is going to end up in your Department,
notwithstanding the budget.
Admiral Lautenbacher. I understand, Senator. Thank you.
Senator Stevens. Thank you, Mr. Chairman.
Senator Hollings. Thank you very much, Senator Stevens.
Senator Reed.
Senator Reed. Thank you, Mr. Chairman, and thank you,
Admiral. Let me, too, underscore what my colleagues have said
about the proposed transfer of sea grant functions from NOAA to
NSF. The University of Rhode Island is a major participant in
the sea grant program and it has been a very effective and a
very, I think, productive relationship with NOAA and I would
hate to see that cease, so you can add me to the list.
GROUNDFISHING IN NORTHEAST
Let me also touch upon an issue that Senator Gregg raised
and that is the issue of groundfishing in the Northeast. The
National Marine Fisheries Service, as you know, has been
attempting to balance the demands of restocking groundfish with
the need to allow fishermen to fish and it is a very difficult
issue. Now, it is involved in court proceedings. But let me ask
one aspect of this situation.
There are proposals to buy out some of the groundfishing
licenses and operations. The concern I have, and I wonder if
you might address it, is that that could force fishing activity
to other species. In Rhode Island, we have been way ahead of
the curve in going after underutilized species and become
somewhat successful. So I wonder if you are gauging the impact
of buying out the groundfish permits, the impact on other
species. Could you comment, Admiral?
Admiral Lautenbacher. Yes. We have had a number of attempts
at the buy-out process over the years. My understanding, after
looking at the history, is that we have not done very well in
terms of setting up a program which makes sense. You end up
taking care of one small piece and then you end up creating
problems somewhere else.
Everyone that works for me is aware of that, and as we are
looking at the potential of how to do this, that will be taken
into account because we do not want to exacerbate the issue
with other species or other parts of the New England regional
or any part of our country, for that matter. So I am well aware
of it and I will not support any buy-out program that does
damage or has the potential to do damage in other parts of our
fisheries.
Senator Reed. Thank you, Admiral.
One other issue. When I talk to the fishing operators in
Rhode Island, and we have an extensive fleet at Galilee and
other parts of Naragansett Bay, they complain that a lot of
policy is being made with scanty information, that the type of
information that is necessary for sound policy of following
fish populations, projecting fish populations, is not there.
NMFS ANNUAL STOCK ASSESSMENTS
Last year, the administration requested $15 million for the
National Marine Fisheries Service to expand annual stock
assessments. I think the need, as I understand it, is close to
probably $25 million. Your request this year is $12 million.
The committee has responded in the past, but probably not
aggressively enough. Can you comment about the resources for
information gathering, stock assessment, et cetera?
Admiral Lautenbacher. The resources for stock assessments
are still inadequate. We have an increase in this year's
budget, based on the total levels of resources that we had and
priorities to meet. We added money to this area. I would like
to improve the validity and the extent of our information on
fishery stocks. We are not to the levels we need to be. We have
come a long way, however, and I think some of the data that we
are taking is really very good, but it needs to be expanded. We
have a number of stocks that are not covered as well as they
should be.
Senator Reed. It strikes me, too, that sometimes the
litigation problems might result, in some respect, from this
poor information, that decisions are made and then later easily
questioned because the intervenors, the petitioners can point
to poor analysis. That at least gets them past the summary
judgment.
So I think your comment would be appreciated, that this
might in the longer run help you make decisions that are less
likely to be challenged in court, is that your sense?
Admiral Lautenbacher. Yes, sir, I believe that. I think
another big part of our problem is process. We do not follow
our processes very well in NEPA, which was brought up by
Senator Hollings. So we have those two issues to deal with,
yes, sir.
Senator Reed. Thank you, Admiral. Thank you, Mr. Chairman.
Senator Hollings. Admiral, two things in thanking you. On
that climate change initiative, I think, overall, with respect
to the Government, we appropriate some $4.5 billion. In NOAA,
you have only $110 million of the $4.5 million, and I am
looking and finding a majority of that money is over there in
Energy, and it is just political appointments over there and
they use it politically. They were into the CAFE standards
adversely just recently on last week's debate and everything
else. It is sort of frustrating that you are given the
responsibility and you are limited in money, and then politics
holds you so that you cannot develop a good policy in global
climate change protocols.
Remember when you get a chance at the higher levels of
Government mentioning this so that we start straightening that
out, and otherwise, watch that Kennedy fund.
Admiral Lautenbacher. Yes, sir.
Senator Hollings. We only get $4.5 million and one big $5
million grant was given to a good colleague of ours to get a
vote with respect to trade promotion authority. Let us bring
back--you are of high integrity, so let us get some integrity
back into the Kennedy program.
Are there any further questions?
[No response.]
Senator Hollings. We thank you very, very much for what you
are doing over there. We are lucky to get you.
Senator Gregg. Let me just echo that. We are very
appreciative of your taking this job on. It is a superb agency
and we look forward to continuing to strongly support it.
ADDITIONAL COMMITTEE QUESTIONS
Admiral Lautenbacher. Senator Hollings, thank you and the
distinguished members of the committee very much. It has been a
pleasure to be here today. I look forward to working with you.
Thank you, gentlemen.
Senator Hollings. Thank you.
[The following questions were not asked at the hearing, but
were submitted to the Department for response subsequent to the
hearing:]
Questions Submitted by Senator Judd Gregg
noaa organization and administration
Question. Admiral, is the National Oceanic and Atmospheric
Administration (NOAA) organized appropriately to successfully fulfill
its mission? Do you think NOAA headquarters is organized and staffed
appropriately to analyze and transfer information up and down the chain
of command accurately and efficiently? If not, how would you change
things?
Answer. As I have only been on board at NOAA for a few months, I
haven't determined if NOAA is organized appropriately to successfully
fulfill its mission. As I mentioned during the hearing, I am conducting
an internal review of all of NOAA management processes. I hope that at
the end of this review, I will be able to better assess NOAA's
organizational structure and implement changes if necessary.
Question. Please provide an organizational chart of NOAA
headquarters broken out to the lowest level of organization. For each
box include the office's budget in fiscal year 2002 dollars, and the
number and description of the various positions (include all positions:
FTE, detail, contractor, fellow, or otherwise). Additionally, in a
table format please provide the same information for years fiscal year
1998 through fiscal year 2003. (Use the President's budget for 2003.)
Answer. See attached organizational chart and Attachment A for the
NOAA headquarters breakouts for fiscal years 1998-2003.
NATIONAL OCEANIC AND ATMOSPHERIC ADMINISTRATION UNDER SECERTARY AND ASSOCIATED OFFICES HISTORICAL FTE, DETAILEES, CONTRACTORS AND BUDGETS, FISCAL YEAR
1998-2003
--------------------------------------------------------------------------------------------------------------------------------------------------------
Fiscal Year 1998 Actual Fiscal Year 1999 Actual Fiscal Year 2000 Actual
-----------------------------------------------------------------------------------------------
FTE Detail Cont Dollars FTE Detail Cont Dollars FTE Detail Cont Dollars
--------------------------------------------------------------------------------------------------------------------------------------------------------
Undersecertary's Office................................. 13 ...... ..... 3,265 14 ...... ..... 3,439 10 ...... ..... 2,381
Dep. Undersecertary's Office............................ 5 6 ..... 294 5 6 ..... 255 7 6 ..... 418
Chief Scientist......................................... 4 ...... ..... 1,197 4 ...... ..... 1,092 4 1 ..... 722
Public & Constitutient Affairs.......................... 37 ...... ..... 3,897 37 ...... ..... 3,575 35 6 ..... 4,530
Policy & Strategic Planning............................. 10 ...... ..... 1,004 16 ...... ..... 1,018 10 5 ..... 1,008
Sustainable Dev. & Intergov. Affairs.................... 9 ...... ..... 1,368 10 ...... ..... 1,574 11 ...... ..... 1,472
Legislative Afairs...................................... 20 ...... ..... 1,561 21 ...... ..... 1,649 21 ...... ..... 1,724
International Affairs................................... 8 ...... ..... 906 9 ...... ..... 752 8 ...... ..... 856
General Counsel......................................... 103 ...... ..... 7,625 110 ...... ..... 7,765 110 ...... ..... 8,555
Federal Coordinator for Meteorology..................... ..... ...... ..... ........ 13 ...... ..... ........ 10 ...... ..... ........
Military Affairs........................................ ..... ...... ..... ........ ..... ...... ..... ........ ..... ...... ..... ........
-----------------------------------------------------------------------------------------------
Total............................................. 209 6 ..... 21,117 239 6 ..... 21,119 226 18 ..... 21,666
--------------------------------------------------------------------------------------------------------------------------------------------------------
--------------------------------------------------------------------------------------------------------------------------------------------------------
Fiscal Year 2001 Actual Fiscal Year 2002 Enacted Fiscal Year 2003 President's
---------------------------------------------------------------- Budget
-------------------------------
FTE Detail Cont Dollars FTE Detail Cont Dollars FTE Detail Cont Dollars
--------------------------------------------------------------------------------------------------------------------------------------------------------
Undersecertary's Office................................. 12 ...... ..... 2,392 13 ...... ..... 2,349 13 ...... ..... 3,076
Dep. Undersecertary's Office............................ 8 8 1 750 4 6 1 569 4 6 ..... 703
Chief Scientist......................................... 4 ...... ..... 578 5 ...... 2 500 5 ...... 2 639
Public & Constitutient Affairs.......................... 36 5 ..... 3,560 36 ...... 3 3,570 36 ...... 3 4,209
Policy & Strategic Planning............................. 10 ...... ..... 916 10 3 ..... 913 10 3 ..... 1,080
Sustainable Dev. & Intergov. Affairs.................... 10 ...... ..... 1,031 11 ...... ..... 1,074 11 ...... ..... 1,328
Legislative Afairs...................................... 21 ...... ..... 1,711 21 1 ..... 1,707 21 1 ..... 1,875
International Affairs................................... 9 ...... ..... 718 10 ...... ..... 761 10 ...... ..... 846
General Counsel......................................... 110 ...... ..... 9,275 112 ...... 3 9,547 112 ...... 3 10,734
Federal Coordinator for Meteorology..................... 11 ...... ..... ........ 10 2 2 833 10 2 2 902
Military Affairs........................................ ..... ...... ..... ........ ..... ...... ..... ........ ..... ...... ..... ........
-----------------------------------------------------------------------------------------------
Total............................................. 231 13 1 20,931 232 12 11 21,823 232 12 10 25,392
--------------------------------------------------------------------------------------------------------------------------------------------------------
Note: NOAA doesn't maintain historical records of contract employees as they are hired on an as needed basis.
noaa energy initiative
Question. In your House Hearing, you claimed that the energy
initiative in the Northeast was ``not logical''. Please explain.
Additionally, please explain why it makes sense to initiate a pilot
program in one region and terminate that program before it is taken
operational, in order to initiate a similar operational program in
another region. Have the two energy programs initiated in fiscal year
2002 been well-received by the community? Are these programs
successful? What level of funding would be required to take the two
energy programs in the northeast operational? Which NOAA programs would
be most appropriate to receive these funds to make these programs
operational?
Answer. NOAA responds to the energy needs of society by pursuing
research, development and implementation of programs that will lead to
better weather and climate forecasts, safer and more efficient energy
transportation and expedite energy permitting. The Northeast pilot
program begun in fiscal year 2002 was a research program designed to
evaluate the potential use of air quality and improved temperature
forecasts to increase the efficiency of energy, production,
dispatching, and distribution. The funding will support research and
development of an innovative temperature and air quality forecast
systems during fiscal year 2002. An external economic evaluation of the
program will produce a final report in fiscal year 2003, and will be
the basis for further studies of the use of environmental information
in the energy sector in the Northeast.
The Energy Security Program requested in fiscal year 2003 is an
operational program that will be used to improve the accuracy and
reliability of forecast models of hydrology (e.g., precipitation and
water flow), weather and climate conditions. Improvements in the
forecast models will be used to increase the efficiency of energy
production, dispatching and distribution. The focus of this program is
the Southeastern United States where unlike the Northeast, there is
greater reliance on hydropower and an opportunity to test and evaluate
potential improvements in river flow forecasts that will improve the
efficiency of water management and hydropower generation. Air Quality
forecasting studies will not be conducted in this program. The
preliminary results of the fiscal year 2002 pilot program will help
determine the appropriate implementation of the observing network in
the Southeast.
Additionally, the southeast was identified through NOAA's internal
process as the target region. The decision was based on both need and
opportunity as expressed by industry stakeholders nationwide who were
consulted in the development of the pilot program. The information
gained from conducting the fiscal year 2002 pilot program will benefit
the fiscal year 2003 program and is applicable to all regions of the
country. The long-term goal is to expand the program nationwide.
The programs for fiscal year 2002 have been well-received by the
research community. However, it is too early to determine the level of
success of the programs because the operating plan was finalized
recently and research has just begun.
An evaluation of the funding levels required to take the fiscal
year 2002 pilot program operational has not been completed. The results
of this evaluation will help us determine the scope of future costs
required to make the pilot operational and to expand the program beyond
the pilot region. NOAA's Energy Security Program is a collaborative
effort between Office of Atmospheric Research (OAR) and National
Weather Service (NWS). This program is coordinated by OAR, and NOAA's
fiscal year 2003 President's Budget requests funding in the amount of
$6.1 million in fiscal year 2003 for OAR to coordinate this program.
new england groundfish lawsuit
Question. As you know, a lawsuit filed by the Conservation Law
Foundation and others found that the Department of Commerce and the
National Oceanic and Atmospheric Administration violated federal laws
when they failed to prevent overfishing and bycatch in the New England
groundfish fisheries. The U.S. District Court is currently reviewing
options for a remedy. Did you include an analysis of the social and
economic consequences of the remedy you provided to the court? Why or
why not? Is it true that if your proposed remedy is accepted, the
average income of New Hampshire's fisherman could be cut by almost 45
percent? If your remedy or a more aggressive remedy is ordered by the
court, what will you do to ensure that the fishing industry remains a
vital industry in New Hampshire?
Answer. On March 1, 2002, the National Marine Fisheries Service
(NMFS) proposed to the Court, on behalf of the Secretary, to bring the
Northeast Multispecies Fishery Management Plan (FMP) into full
compliance with the Sustainable Fisheries Act, the Magnuson-Stevens
Fishery Conservation and Management Act (Magnuson-Stevens Act) and all
other applicable law as quickly as possible by way of three separate
actions: a Secretarial interim action under authority of section 305(c)
of the Magnuson-Stevens Act, to be implemented by May 1, 2002, which
would be effective for 180 days; a Secretarial amendment to the FMP,
under authority of section 304(e) of the Magnuson-Stevens Act, to be
implemented before the Secretarial interim action expires in October
2002; and Amendment 13 to the Northeast Multispecies FMP, to be
completed by NMFS and the New England Fishery Management Council and
implemented by August 2003.
The Secretarial interim action, the first part of this approach,
will put in place important measures to reduce overfishing on major
groundfish stocks in the Northeast, particularly for Gulf of Maine
(GOM) cod, and will monitor and assess bycatch. NMFS has prepared an
Environmental Assessment for this action, as required by the National
Environmental Policy Act (NEPA), which analyzes the expected
biological, social, and economic impacts of a range of alternatives.
The remedy proposed to the Court on March 1, 2002, did not contain the
analysis in the Environmental Assessment, because the Environmental
Assessment was still under revision. A summary of the economic and
social impacts of the interim action was provided to the Court in a
Declaration by Pat Kurkul filed on April 1, 2002.
The analysis indicates that for the preferred alternative, the
relative distribution of impacts is greatest for New Hampshire vessels,
with 50 percent of all New Hampshire vessels having an estimated loss
in gross fishing income of 21.4 percent or greater. One-quarter of all
New Hampshire vessels would lose at least one-third of vessel income,
and 10 percent of vessels would lose 43.6 percent of their May-October
fishing income. The estimated adverse impacts on Maine and
Massachusetts vessels were comparatively lower than they were for New
Hampshire vessels, but they are significant just the same, especially
considering the fact that there are twice as many Maine vessels than
New Hampshire vessels, and Massachusetts vessels outnumber New
Hampshire vessels by more than 8:1. Thus, while New Hampshire vessels
fare relatively worse than Maine and Massachusetts vessels, the overall
impact on the state of New Hampshire is likely to be less than that on
Maine and Massachusetts. Across all of these states, 84 vessels will
have an estimated loss in May-October income of at least 30 percent or
greater. Under the Non-Preferred Alternative, which relies on expanded
area closures in the GOM to achieve the necessary mortality objectives
for GOM cod, New Hampshire vessels would be more adversely affected at
all percentiles (except the 90th) than they would be under the
Preferred Alternative.
Depending on what the Court orders for May 1, 2002, the Agency
will, provided the Court allows, develop and analyze a range of
alternatives, as has been done for the interim action, to determine
what alternative meets the goals and objectives of the Court Order and
that has the least social and economic impacts to the fishing industry.
Given the outcome of this lawsuit, it is likely that the adverse short-
term impacts will be felt broadly across the Northeast and across all
industry sectors. We will do everything possible to spread the impacts
fairly and to ensure that the benefits that accrue from rebuilt stocks
will also be shared equitably.
Question. The National Oceanic and Atmospheric Administration
submitted the agency's proposed remedy for the New England groundfish
violations to the court in early March. Weeks later, the agency
announced new scientific findings regarding the fisheries in question.
Why didn't the agency conclude its scientific investigation and
announce its findings prior to the submission of their remedy to the
court? Will these new scientific conclusions undermine the credibility
of the agency's proposed remedy? Does the public announcement of these
new findings on the day all comments are due to the court, undermine
the ability of the intervening parties to consider the best available
science when submitting their comments to the court?
Answer. The reevaluation of the biological reference points
(biomass at maximum sustainable yield (Bmsy), fishing mortality at
maximum sustainable yield (Fmsy)) for all of the groundfish stocks
regulated under Amendment 9 was deemed necessary to provide information
to the New England Fishery Management Council (Council) for preparation
of Amendment 13 to the Fishery Management Plan. It was based on a
reevaluation of biological reference points for the GOM cod stock,
completed in the spring and summer of 2001. In re-evaluating the Bmsy
and Fmsy values for that stock (33rd Stock Assessment Workshop (SAW),
September 2001), the peer review scientific panel noted that the
biological reference points for the GOM cod stock contained in
Amendment 9 were inappropriately estimated, using incorrect models. The
33rd SAW proposed new revised values of Bmsy and Fmsy based on models
deemed to be more scientifically valid. The revised values of Bmsy and
Fmsy reported by the 33rd SAW for GOM cod are essentially the same as
those proposed in a final report entitled the ``Working Group on Re-
Evaluation of Biological Reference Points for New England Groundfish'',
prepared by a scientific working group in which NMFS' scientists met
with outside scientists on February 12-14, 2002.
Since many of the stocks regulated under Amendment 9 suffered from
the use of inappropriately estimated biological reference points
calculated by the age-aggregated biomass dynamics model, when age-
structured models were more scientifically valid, scientists undertook
a thorough but expedited reassessment of reference points in order to
provide the Council with needed information so it could expedite the
development of Amendment 13. Biological reference points are routinely
updated in stock assessments of various fisheries, and the Sustainable
Fisheries Act permits the revised values of Bmsy and Fmsy to be
substituted, when appropriate, without requiring revised Fishery
Management Plan amendments.
Because the revised values of Bmsy and Fmsy reported by the 33rd
SAW for GOM cod are essentially the same as those proposed in the final
report on the re-evaluation of biological reference points produced by
the scientific working group, the interim action and the Secretarial
amendment, the first and second part of the three-part remedy proposed
to the Court, incorporate these new scientific findings for GOM cod
and, thus, propose to implement measures to move rebuilding of this
stock in the right direction.
Unfortunately, it was impossible to provide the public with the
final report of the revised biological reference points for the
remaining groundfish stocks well in advance of March 1 due to the time-
consuming task of updating this science, developing the final report
and allowing scientists outside the Northeast region an opportunity to
review and comment on the report. However, a summary of the report was
presented to the Council at its March 19-21, 2002, meeting, at which
the public was present.
role of science
Question. What is the future of science within the National Oceanic
and Atmospheric Administration? Should the science be consolidated or
distributed throughout the agency? Currently, the science supporting
the National Weather Service and the National Environmental Satellite,
Data and Information Service is based in the Office of Oceanic and
Atmospheric Research, while the science supporting the National Ocean
Service and the National Marine Fisheries Service is based within those
line offices. Does this make sense? What is the rationalization for
this structure?
Answer. The current distribution of scientific functions within
NOAA is based on a series of historical decisions made over many years.
NOAA is currently conducting a rigorous internal program review to
determine if NOAA, as currently organized, is best positioned to
accomplish its missions successfully and efficiently now, and in the
future. The role and distribution of science activities is an important
part of this review, and while it is still ongoing, it would be
premature to speculate on the future direction of science within NOAA.
Results of this review will be available at the end of May 2002.
national sea grant college program
Question. Why did the Administration transfer Sea Grant to the
National Science Foundation?
Answer. This proposal is a result of a review of Federal science
programs that the Office of Management and Budget (OMB) conducted and
is consistent with the President's Management Agenda. The transfer is
part of a wider Administration effort to promote competitive funding of
scientific research and to capitalize on the demonstrated excellence of
the NSF and its program management.
Question. What will happen to the state Sea Grant programs if the
transfer is allowed?
Answer. Should the transfer occur, the states will have to
determine and set their individual priorities and determine how much
funding to provide to their Sea Grant programs. The Administration is
not capable of determining whether each state would choose to continue
funding Sea Grant programs if the transfer occurs.
Question. Is the National Science Foundation equipped to carry out
the outreach and extension mission of the Sea Grant program?
Answer. If the transfer occurs, it would be NSF's decision as to
how to allocate the $57 million proposed for Sea Grant in the
President's budget. NOAA and NSF will coordinate in identifying
research priorities. If the transfer occurs, the NSF program will not
be designed to support the Sea Grant Marine Advisory Service functions,
as it is currently operated. However, it will support outreach
activities for K-12, graduate, and undergraduate education.
Question. Under what authority is the Department of Commerce
allowed to transfer the Sea Grant program to the National Science
Foundation?
Answer. The Administration has requested the transfer through the
fiscal year 2003 budget request, and recognizes that Congress must
approve the transfer for it to occur. The Administrations' position is
that NSF needs no additional statutory authority to manage a new Marine
Science Program.
______
Questions Submitted by Senator Ernest F. Hollings
noaa's national sea grant program
Question. The $62 million Sea Grant program is slated for
termination under NOAA and reconstitution under the National Science
Foundation. Under the National Science Foundation (NSF), Sea Grant
would lose its university partnerships and its extension program. Why
are you proposing to eliminate the successful Sea Grant College
Program?
Answer. The proposal is a result of a review of Federal science
programs that the Administration conducted and is consistent with the
President's Management Agenda. Under the proposal, the Sea Grant
program would be administered as an NSF/NOAA partnership. The transfer
is part of a wider Administration effort to promote competitive funding
of scientific research and to capitalize on the demonstrated excellence
of the NSF and its program management.
nmfs lawsuits
Question. Litigation against the National Marine Fisheries Service
(NMFS) has increased steeply to the point where there are 150 active
cases this year. To improve NMFS's ability to manage its regulatory
cases the Committee has provided $42 million in the past two years.
NMFS has only one person responsible for administering this program. In
its fiscal year 2003 budget request, NMFS asks for an additional 115
positions, none of which are to work on the litigation problems.
Clarification: As of May 3, 2002, the NMFS has 103 open cases--a
number of those cases are old cases, where the court has ruled but
still retains jurisdiction, so we keep them on our litigation database
(they are open cases in the legal sense but not necessarily active
cases). Also included in the list of 103 are cases where the court has
ruled, but the time for appeal has not expired.
What is NOAA doing with the National Environmental Policy Act
funding that the Committee has provided?
Answer. Of the fiscal year 2001 and 2002 appropriated NEPA funds
totaling $42.0 million, approximately $26.0 million were grants. The
amount for grants included $5.7 million divided among the eight
Regional Fishery Management Councils. Of the remaining amount, $11.9
million was provided for in-house research and management activities
and $4.1 million were contracts. Please see the following table for
distribution of the $42.0 million.
------------------------------------------------------------------------
NEPA--Funding by Programs,
Projects, Activities In-house Contracts Grants Total
------------------------------------------------------------------------
Alaska--Impact on Ocean
Climate Shifts--Steller Sea
Lion:
Fiscal year 2001........ ......... ......... $6,000 $6,000
Fiscal year 2002........ ......... ......... $6,000 $6,000
-------------------------------------------
Subtotal.............. ......... ......... $12,000 $12,000
===========================================
Alaska--Predator/Prey
Relationships--Steller Sea
Lion:
Fiscal year 2001........ ......... ......... $2,000 $2,000
Fiscal year 2002........ ......... ......... $2,000 $2,000
-------------------------------------------
Subtotal.............. ......... ......... $4,000 $4,000
===========================================
Alaska--Steller Sea Lion/
Pollock Research--N.
Pacific Council:
Fiscal year 2001........ ......... ......... $2,000 $2,000
Fiscal year 2002........ ......... ......... $2,000 $2,000
-------------------------------------------
Subtotal.............. ......... ......... $4,000 $4,000
===========================================
NEPA--NMFS:
Fiscal year 2001........ $1,809 $1,999 $4,192 $8,000
Fiscal year 2002........ $3,480 ......... $1,520 $5,000
-------------------------------------------
Subtotal.............. $5,289 $1,999 $5,712 $13,000
===========================================
NEPA--Hawaiian sea turtles:
Fiscal year 2001........ $0 $0 $0 $0
Fiscal year 2002........ $2,605 $225 $170 $3,000
-------------------------------------------
Subtotal.............. $2,605 $225 $170 $3,000
===========================================
Hawaii Sea Turtle Research--
Data Collection:
Fiscal year 2001........ $2,017 $932 $50 $3,000
Fiscal year 2002........ $2,018 $933 $50 $3,000
-------------------------------------------
Subtotal.............. $4,035 $1,865 $100 $6,000
===========================================
Total--NEPA Funding... $11,929 $4,089 $25,982 $42,000
------------------------------------------------------------------------
Funding for NMFS-NEPA ($13 million total for fiscal year 2001 and
fiscal year 2002) to support the following activities:
--Preparation of priority Environmental Impact Statements (EIS) that
were outdated or insufficiently comprehensive, including
essential fish habitat concerns. Many of these were the subject
of litigation.
--Data and analytical support for those efforts both in the regional
offices and at the Councils to support NEPA compliance.
--Implement our regulatory streamlining project (regulatory process),
an initiative to improve the efficiency and effectiveness of
NMFS' regulatory process. Regulatory streamlining plan has
multiple components including placing NEPA coordinators in
regional offices and HQ, providing support to councils for data
and staff for NEPA, development of national training programs,
enhancing the use of electronic systems for permitting and rule
making.
Fiscal year 2001--$8.0 million (In-house/contract/grants
\1\)
---------------------------------------------------------------------------
\1\ $1,120,000 of the $8.0 million was divided among the Regional
Fishery Management Councils.
---------------------------------------------------------------------------
Overall, this funding was used to address the following NEPA
related issues:
--Environmental Impact Study (EIS) on the groundfish fisheries off
Alaska and for programmatic EISs on the crab, scallop, and
salmon FMPs inclusive of essential fish habitat (EFH)
alternatives.
--Comprehensive programmatic EIS on west coast groundfish fisheries
inclusive of EFH.
EISs on Fishery Management Plans were:
--Western Pacific Regional Fishery Management Council (RFMC):
pelagic, coral reef ecosystem, bottomfish.
--Caribbean RFMC: EIS will be written to support an EFH amendment to
the FMPs for Spiny Lobster, Coral Reef Resources, Queen Conch,
and Reef, to supplement the EISs for the Spiny Lobster and Reef
Fish FMPs.
--Gulf RFMC: EIS will be written to support a generic EFH amendment
to the FMPs for Coastal Migratory Pelagics, Coral Reefs, Red
Drum, Reef Fish, Spiny Lobster, and Stone Crabs FMPs.
--South Atlantic RFMC: To supplement the EISs for the Snapper-Grouper
and Shrimp FMPs and to write an EIS on Marine Protected Areas.
--Comprehensive programmatic EISs (inclusive of EFH) in New England
for amendment 10 to the scallop FMP and amendment 13 to the
multispecies FMP.
--EIS to address EFH for monkfish, herring, and salmon.
Fiscal year 2002--$5.0 million (In-house/contract/grants
\2\)
---------------------------------------------------------------------------
\2\ $1.5 million of the $5 million was divided among the Regional
Fishery Management Councils.
---------------------------------------------------------------------------
Of the remaining $3.5 million:
--$800,000--To begin hiring the fiscal year 2003 full staff of: 6
NEPA coordinators (1 HQ, 5 Region); 23 regional support staff
for various analyses and document management capabilities in
Councils, regional offices and centers; and Paralegal support
may also be hired to support regional offices.
--$30,000 for training in fiscal year 2002.
--$2.7 million will be spent on the following NEPA related
activities:
--There are 2 EIS for the West Coast groundfish; one EFH and one
programmatic EIS. Continue work started in fiscal year 2001
on programmatic EIS for west coast groundfish, inclusive of
EIS in fiscal year 2002, including contracts for data
analysis and science needs.
--EIS for coral reef FMP was completed and bottomfish almost
completed with 2001 funds; crustacean FMP is on hold
waiting for information on fishery status. Work with 2002
funds will complete bottomfish and update the pelagics EIS
for seabirds and begin a new EIS process for a new squid
fishery to determine if pelagics plan should be amended to
include this fishery, and lastly work on MHLS and South
Pacific tuna convention requirements.
Question. For fiscal year 2003, the National Marine Fisheries
Service requests 115 new positions. None of these are for paralegals to
manage case files and enforcement of schedules. Why?
Answer. After consultation and coordination with NMFS Regional
Offices on staffing requirements, NMFS is considering hiring paralegals
to support our litigation activities and will keep the Congress
informed.
Question. NMFS does not keep a data base of litigation wins and
losses and the reasons for the outcomes. It has also failed to report
progress on management of regulatory issues such as standardized
formats, assigning paralegals to manage case files and enforcement of
schedules. In addition, NMFS has not created a regulatory calendar of
expected regulatory actions. Such a calendar could be available over
the Internet so that all interested parties could anticipate regulatory
actions of interest to them. This would also establish a published
regulatory schedule. Why haven't you implemented such improvements?
Answer. NOAA General Counsel does maintain a database that tracks
open and closed cases. However, this database does not enable NMFS to
respond in a timely way to the numerous queries about litigation. As a
result, NOAA General Counsel and NMFS have undertaken a joint project
to develop a searchable database. This searchable database will enable
agency personnel to access information via the internal website about
open and closed cases and recent court decisions.
The Federal government has published the Semi-Annual Unified Agenda
of Federal Regulatory and De-Regulatory Action (Unified Agenda) and the
Annual Regulatory Plan. The Regulatory Plan contains the most important
significant regulatory actions that each agency reasonably expects to
issue in the current fiscal year or thereafter. The Unified Agenda is
published twice each year in the Federal Register and contains a
compilation of the rules planned, in process, and completed for each
department or agency.
All NMFS regulatory actions are included in the NOAA portion of the
Department of Commerce Unified Agenda available on the Internet at:
http://ciir.cs.umass.edu/ua/info.html. Most rules and regulations are
also available through the NMFS website.
Question. There are thirteen layers of review within NOAA of each
regulatory decision. There is further review in the Department of
Commerce and OMB. Are you working on streamlining this process?
Answer. Although the Kammer Report notes thirteen bullets under the
Rulemaking Process, these represent the different stages in the
development of a Fishery Management Plan (FMP), not thirteen layers of
review for a single action. This process is designed to ensure adequate
opportunity for public participation in the regulatory process. In some
cases, multiple reviews are noted. However, these reviews are often
conducted concurrently; they are not necessarily redundant since the
various offices noted have different functions.
Under its Regulatory Streamlining Project, NMFS is carefully
considering such concurrent reviews. We have identified certain cases
where we can eliminate layers of review without sacrificing the quality
of the final product.
To bring about some of these changes, NMFS plans to implement a
number of measures to ensure the necessary infrastructure is in place
to support streamlined review processes such as:
--Update the ``Operational Guidelines for the Fishery Management Plan
Process'' to incorporate changes in agency procedure (last
revised 5/1/97).
--Develop an internet-based guide for agency and Council staff
containing checklists and examples of required documentation
for all actions.
--Adopt mandatory standards for document contents and format to
ensure that decision documents address all pertinent issues and
adhere to a basic level of national consistency.
--Assign regulatory review experts in each region to provide drafting
assistance and quality control review for all regulations and
associated documents.
--Conduct appropriate training to ensure that regional experts are
fully conversant with Federal Register document requirements,
compliance with all legal requirements, etc.
--Establish a quality assurance protocol to monitor whether agency
fishery management decisions are adhering to all applicable
requirements.
--Expand use of the internet to enhance the regulatory process
through electronic rulemaking.
northern right whales
Question. There are only 300 Northern right whales left in the
world and each year several of them are killed by being entangled in
fishing gear or by being run over by ships.
Biologists have been able to tag Steller sea lions, bluefin tunas
and Great White sharks, but NMFS claims that Northern right whales
cannot be tagged. Is this true? Please explain.
Answer. North Atlantic right whales can be tagged in a variety of
ways. There have been numerous short-term (1-2 day) successful
attachments of time-depth recorders, VHF (very high frequency) radio
tags, and acoustic (underwater transmitter) tags attached to the
animals using suction cups. Right whales have also been tagged using
implantable VHF and satellite-linked radio tags.
In the last two decades of tagging work involving a number of large
whale species in many locations, the main problem with transmitter
technology has been attachment methods inasmuch as the tags (even those
implanted into the tissue) tend to slough off the animal or migrate out
as a foreign body would. In this regard, the challenges with attachment
to a whale are different from those species listed in the question. For
example, in seals and sea lion transmitter studies, the devices are
glued to the fur or pelage with little impact.
Nonetheless, a number of successful transmitter studies have been
conducted. Fourteen implantable VHF tags were successfully attached to
right whales by Goodyear in the late 1980s. More recently a right whale
cow was tagged on January 20, 1999, approximately 30 nmi east of
Fernandina Beach, Florida. The whale and her calf were tracked
continuously for 44 hours, when tracking was abandoned due to bad
weather. The pair was relocated on January 25, 1999 and tracked
continuously for an additional 96 hours.
Between 1988 and 1997, 41 satellite tags were attached to right
whales. All tags were implantable. A reliable tag did not result, as
most instruments failed within a few weeks of the initial deployment.
In 2000, NMFS provided funds for Oregon State University researcher Dr.
Bruce Mate and colleagues to conduct satellite tagging studies of right
whales in the Bay of Fundy. In summer 2000, Dr. Mate successfully
tagged 16 whales. The study was generally successful, but not all
transmitters worked. Transmitters sent signals for up to 130 days with
one transmitter broadcasting during a migration from the Bay of Fundy
to the coast of South Carolina. It was believed that the antennae on
the other tags were rubbed off during whale-to-whale contact or contact
with the sea floor. As a result of the partial success in 2000, Dr.
Mate continued his studies in 2001 using southern right whales off of
South Africa. Deployments there appeared to be more successful, and
NMFS hopes to continue support for Dr. Mate's work on North Atlantic
right whales in United States and Canadian waters. As a cautionary
note, there has been much concern expressed over the physiological and
medical impacts of implantable tags. In response to this concern,
particularly since right whales are a highly endangered species, NMFS
has evaluated the tagged whales. Swellings have been noted at the site
of tag implantation suggesting the tags were creating serious
infections which could be compromising the health of the whales. Whales
tagged by Dr. Mate in 2000 were observed during 2001 with follow-up
photo-studies to track the progress of the wounds. Swellings were
noted, but there was no evidence of long-term effects.
global climate change initiative
Question. NOAA has budgeted for an $18 million Climate Change
Initiative. This is part of the President's $40 million multi-agency
Climate Change Initiative. The overall Federal Climate Change budget is
$4.5 billion.
NOAA's fiscal year 2003 Budget request for Global Climate Change
research and policy is $114 million. What is NOAA's role in the $4.5
billion federal Global Climate Change research and policy program?
Answer. NOAA has participated in the government-wide U.S. Global
Change Research Program (USGCRP) and funds climate research on all the
elements of the program. These focus areas are: atmospheric
composition, changes in ecosystems, global carbon cycle, human
dimensions, climate variability and change, and the global water cycle.
In support of its mission of environmental monitoring and prediction,
NOAA plays a lead role in the government in maintaining observing
systems, providing operational forecast products, and maintaining
environmental data bases and data distribution systems.
Question. The budget request proposes a $700 million increase for
global climate change funding, yet NOAA is asking only for an $18
million increase. Why isn't NOAA playing a larger role in the global
climate change arena?
Answer. Of the approximately $700 million increase in climate
change funding, $555 million is related to tax incentives for clean
energy technologies like renewable energy, hybrid and fuel cell
vehicles, and the conversion of landfill gas to fuel. Increases in
climate change science, international climate change assistance, and
certain climate-related energy programs account for the remainder of
the $700 million increase.
NOAA is a major participant in the Climate Change Research
Initiative (CCRI), which was developed through an interagency process.
The total fiscal year 2003 request in the President's budget for CCRI
is $40 million. NOAA's request is $18 million, which is 45 percent of
the government-wide CCRI increase request. The total request breaks
down according to the following:
Reduce uncertainties in climate science:
--Develop reliable representation of the global and regional climatic
forcing by atmospheric aerosols: $4 million (NOAA: $2 million,
NASA: $1 million, and NSF: $1 million)
--Inventory carbon and model sources and sinks: $15 million (NSF: $9
million, NOAA: $2 million, DOE: $3 million, and USDA: $1
million)
--Climate Modeling Center: $5 million at NOAA
Support policy and management decisions:
--Tools for risk management under uncertainty: $6 million (NSF: $5
million and NOAA: $1 million)
--Atmospheric observations: $4 million at NOAA
--Oceanographic observations: $4 million at NOAA
--Satellite observations: $2 million at NASA
Question. What are your plans for spending the $18 million increase
you requested for global climate change research in your fiscal year
2003 budget request?
Answer. The $18 million will be spent according to the following
plans:
--$5 million will be used to establish a Climate Modeling Center
within NOAA Research's Geophysical Fluid Dynamics Laboratory to
provide a suite of climate products for decision support by
policy makers.
--$8 million will used to support the Global Climate Observing
System:
--$4 million will be used in conjunction with the World
Meteorological Organization system of Observing Networks.
Working with other developed countries following the
President's June 11, 2001, speech, NOAA will reestablish
the benchmark upper-air network, emphasizing data sparse
areas, and place new equipment in priority sites to measure
pollutant emissions, aerosol, and ozone.
--$4 million will be used to contribute to the establishment of an
ocean observing system that can accurately document climate
scale changes in ocean heat, carbon, and sea level changes,
improving fields of sea surface temperature and surface
fluxes.
--$2 million will be used for an intensive North American study of
carbon monitoring.
--$2 million will be used to allow NOAA to contribute to the
interagency National Aerosol-Climate Interactions Program
(joint with NASA, DOE, DOI) that is presently under
development. The work will focus on the establishment of new
and augmentation of existing monitoring sites, and efforts to
establish distribution trends and assess the radiation
properties of aerosols, which are small particulates in the
atmosphere.
--$1 million will go towards work with the National Science
Foundation to apply the research on decision-making in the face
of uncertainties, within the framework of existing Regional
Integrated Science Assessment (RISA) programs.
national estuarine research reserve program
Question. There are 25 National Estuarine Research Reserves (NERRs)
in the United States; two of them, North Inlet/Winyah Bay and ACE Basin
are in South Carolina.
Do you have a backlog of land acquisition and construction needs
for the NERRs sites?
Answer. Yes. In addition to the five year projection of reserve
acquisition and construction projects shown below, NOAA's Office of
Ocean and Coastal Resource Management has contracted to have a land
acquisition strategy prepared. The report will document land
acquisition needs of the reserves system. A draft report is scheduled
for completion in June 2002. A facilities plan for the sites was
prepared in 1998, but needs to be updated.
There are 25 existing National Estuarine Research Reserves with two
more in the development stage (San Francisco Bay, California and St.
Lawrence River, New York). NERRS allocations are done in a
collaborative workshop involving all the NERRS sites and the NOAA
national program office. The working group determines the split among
sites, adjusting the split to account for specific needs of each site,
and accounting for national, system-wide needs.
See Attachment B for a proposed list of priority projects for
fiscal year 2003-fiscal year 2007:
ATTACHMENT B
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
Fiscal Year Fiscal Year Fiscal Year Fiscal Year Fiscal Year
Reserves Projects 2003 2004 2005 2006 2007
Proposals Proposals Proposals Proposals Proposals
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
ACE Basin, SC............................... Land acquisition................................................................. ........... $2,750,000 $2,500,000 $2,500,000 ...........
Apalachicola, FL............................ Reserve Visitor Center Renovation/Expansion...................................... $477,000 ........... ........... ........... ...........
Ches. Bay, MD............................... Acquire Monie Bay parcel......................................................... ........... ........... ........... $200,000 ...........
Elkhorn Slough, CA.......................... Office and Public Meeting Area Expansion......................................... $665,000 ........... ........... ........... ...........
Outdoor Classroom/Field Lab...................................................... ........... ........... $100,000 ........... ...........
Parcel A-adjoining reserve....................................................... $200,000 ........... ........... ........... ...........
Parcel B-adjoining reserve....................................................... $450,000 ........... ........... ........... ...........
Parcel C-adjoining reserve....................................................... ........... $500,000 ........... ........... ...........
Parcel D-adjoining reserve....................................................... ........... $800,000 ........... ........... ...........
Deleware, DE................................ Reserve Headquarters addition.................................................... $400,000 ........... ........... ........... ...........
Grand Bay, MS............................... Phase II Construction Admin Offices, Ed & Outreach Facility...................... $800,000 ........... ........... ........... ...........
Great Bay, NH............................... Facilities....................................................................... $200,000 ........... ........... ........... ...........
GTM, FL..................................... Facility construction: Guana River State Park Facility........................... $500,000 $500,000 ........... ........... ...........
Facility construction: Complete Environmental Educ. Cntr......................... $200,000 ........... ........... ........... ...........
Facility construction: Marineland Facility....................................... ........... $250,000 $250,000 ........... ...........
Future Land Acquisition.......................................................... ........... $300,000 $200,000 ........... ...........
Jacques Cousteau, NJ........................ Dry labs, cupola enhancement..................................................... $185,000 ........... ........... ........... ...........
North Carolina, NC.......................... Research/educational facilities.................................................. $300,000 $200,000 ........... $2,000,000 ...........
North Inlet/Winyah Bay, SC.................. Education kiosks and signs....................................................... $25,000 ........... ........... ........... ...........
Education Center construction.................................................... $770,000 ........... ........... ........... ...........
Cottages for visiting researchers and educators.................................. ........... $450,000 ........... ........... ...........
Padilla Bay, WA............................. Acquire farmland next to bay (700 acres)......................................... $500,000 ........... ........... ........... ...........
Exhibits in renovated aquaria/display room....................................... $450,000 ........... ........... ........... ...........
Rookery Bay, FL............................. Expanded vehicle parking Phase V................................................. $150,000 ........... ........... ........... ...........
Planning and design: research dormitory Phase VI................................. ........... $200,000 ........... ........... ...........
Construction and research dormitory Phase VII.................................... ........... ........... $700,000 ........... ...........
Sapelo, GA.................................. Construction boat house, dock facility for research vessels, and educational $100,000 ........... $100,000 ........... ...........
exhibits.
Water quality research lab....................................................... $500,000 ........... ........... ........... ...........
South Slough, OR............................ Acquire Indian Pt. uplands and tidelands......................................... ........... ........... ........... $914,600 ...........
Phase II interpretive center renovations exhibit construction.................... $250,000 ........... ........... ........... ...........
Phase II interpretive center renovations observation tower and................... ........... $264,000 ........... ........... ...........
Road repair and North Creek Trail Loop........................................... $75,000 ........... ........... ........... ...........
Parking lot expansion............................................................ ........... ........... $50,000 ........... ...........
Acquire Empire Tidelands (33 acres).............................................. ........... ........... ........... $100,000 ...........
Coastal Environmental Learning Center (acq. plan, proj. mgmt.)................... $100,000 $40,000 ........... ........... ...........
Acquire Joe Ney Uplands (100 acres).............................................. $100,000 ........... ........... ........... ...........
Acquire Hayward Creek Uplands (200 acres)........................................ ........... ........... $500,000 ........... ...........
Acquire Hidden Creek Headquarters (30 acres)..................................... ........... ........... $130,000 ........... ...........
Acquire Wasson Creek Watershed................................................... ........... ........... $1,000,000 ........... ...........
Acquire Elliot Creek Headwaters.................................................. ........... ........... $1,100,000 ........... ...........
Acquire Small Tract Willing Sellers.............................................. ........... $150,000 $350,000 ........... ...........
Trail System--Historic Jed Smith Expedition Trail................................ $50,000 $60,000 ........... ........... ...........
Trail System--boat shelter....................................................... ........... ........... $35,000 ........... ...........
Admin Office in Charleston property acquisition.................................. $100,000 ........... ........... ........... ...........
Admin Office in Charleston planning and design................................... $50,000 ........... ........... ........... ...........
Admin Office in Charleston construction.......................................... ........... $330,000 ........... ........... ...........
CELC site restoration demolition................................................. ........... ........... $50,000 ........... ...........
CELC parking area and landscaping................................................ ........... ........... $10,000 ........... ...........
CELC reuse existing building..................................................... ........... $25,000 $5,000 ........... ...........
Tijuana River, CA........................... Border Field State Park Interpretive Center...................................... $256,000 ........... ........... ........... ...........
Acquire 20 acre parcel........................................................... $170,000 ........... ........... ........... ...........
Waquoit Bay, MA Land acquisition................................................................. $200,000 ........... ........... ........... ...........
Weeks Bay, AL............................... Land acquisition (2000 acres).................................................... $1,039,000 $2,181,000 $1,210,000 $1,588,600 $1,000,000
Wetland restoration construction................................................. $250,000 ........... ........... ........... ...........
Construction needs: equip. storage and workshop bldg............................. ........... ........... $150,000 ........... ...........
Construction needs: equip. storage and workshop bldg............................. ........... ........... ........... $150,000 ...........
Construction needs: bike-hike trail/boardwalk.................................... $100,000 ........... ........... ........... ...........
Construction needs: coastal initiative training center........................... ........... $1,000,000 $1,000,000 ........... ...........
Wells, ME................................... Land acquisition................................................................. $400,000 ........... ........... ........... ...........
Wells, ME................................... Dormitory........................................................................ ........... ........... $560,000 ........... ...........
----------------------------------------------------------------
SUBTOTAL, ALLOCATED FUNDS............. ................................................................................. $10,012,000 $10,000,000 $10,000,000 $7,453,200 $1,000,000
================================================================
UNALLOCATED FUNDS........................... ................................................................................. $0 $0 $0 $2,546,800 $9,000,000
================================================================
TOTAL................................. ................................................................................. $10,012,000 $10,000,000 $10,000,000 $10,000,000 $10,000,000
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
This projection was updated in fiscal year 2001--however, the fiscal year 2005-fiscal year 2007 figures are not complete.
Question. Could you provide the Committee with a list of staffing
needs throughout the NERRs network?
Answer. With the substantial increases in reserve funding for
grants over the last three years, staffing levels at reserve sites has
improved. All personnel at the NERRS sites are state employees, not
Federal employees. At this point, most reserves have the core staff--a
manager, research coordinator, and education coordinator. In addition,
increased funding has allowed many reserves to add a water quality
monitoring technician, Coastal Training Program coordinator, and part-
time geographic information technician. Approximately half of the
reserves also have stewardship coordinators. These positions are funded
with either state or Federal funds, depending on the site. In general,
limitations in the ability of the NERRS sites to add staff have been a
function of a lack of ability to obtain a state funding match or tight
state FTE ceilings, rather than a shortage of Federal funding for the
sites. A few sites have been inhibited from adding staff because of
these state budget and FTE restrictions.
For NOAA, recent increases in the CZMA Program Administration line
item have allowed the Estuarine Reserves Division to add much needed
staff. These staff provide critical support to the reserves and help
NOAA advance system-wide initiatives.
saltonstall/kennedy funds
Question. Within the past five years, the highest amount of new
budget authority generated by the Saltonstall/Kennedy program has been
$4.8 million. The average grant level has been approximately $125,000.
$11 million was made available for fiscal year 2002. You recently
issued a $5 million grant to the State of Maine to help the Atlantic
Salmon Aquaculture Industry. This single grant is more than the entire
program level in fiscal year 2001 and more than $4.5 million more than
any other single grant the program has ever issued.
Clarification: NOAA has not issued a $5 million grant to the State
of Maine to help the Atlantic Salmon aquaculture industry. For the
fiscal year 2002 S-K Program, NOAA has reserved $5 million for projects
addressing Atlantic Salmon aquaculture (Priority A) which will study
the possible negative impacts of cultured Atlantic salmon on endangered
wild stocks. Concern about such impacts threatens the viability of the
Atlantic salmon aquaculture industry. The remaining funds are
available, in no predetermined allocation, for projects addressing five
other funding priorities, B-F (see below). The S-K Request for
Proposals was published in the Federal Register on May 14, 2002.
Proposals must be submitted by COB July 15, 2002.
The S-K Program, which NMFS administers, provides financial
assistance on a competitive basis for research and development projects
to benefit the U.S. fishing industry. Grants or cooperative agreements
are awarded to selected applicants for a maximum of 18 months. Eligible
applicants include individuals, universities, state and local
government agencies, Indian tribes, businesses, and non-profit
organizations.
All applications to the S-K Program must address one of the six
published priorities, and will be subject to the requirements of the
competition, including eligibility, submission deadline, and review
process. Proposals found to have merit will be recommended for funding.
Although we do not specify a minimum or maximum requested funding
amount, we do not expect to make just one award with the $5 million.
If we do not receive enough applications that meet the established
requirements, to use the entire $5 million reserved for Priority A,
NOAA will carry over the remainder to address this Atlantic Salmon
priority in our fiscal year 2003 competition.
Question. Why did you not alert the Appropriations Committee to the
fact that Saltonstall/Kennedy fund receipts were substantially higher
in 2001?
Answer. Saltonstall-Kennedy funds are derived from a transfer from
the Department of Agriculture to NOAA from duties on imported fisheries
products. An amount equal to 30 percent of these duties is made
available to NOAA and, subject to appropriation, is available to carry
out the purposes of the American Fisheries Promotion Act (AFPA). These
duties are tabulated on a calendar year basis and therefore the
estimated transfer amount from the U.S. Department of Agriculture is
not known until early summer, well after the President's Budget Request
goes to the Congress.
Question. Did the Administration issue this grant through the
Secretarial review process established by Congress in the Saltonstall-
Kennedy Act? Please provide a copy of both the grant application and
all documentation of the Secretary's review and approval.
Answer. A grant has not been issued and NMFS expects that the $5
million will fund multiple grants versus one. Atlantic Salmon is one of
the 6 priorities within the Saltonstall-Kennedy solicitation and
proposed projects will be reviewed based on the established criteria
for all grants approved for funding from the S-K program. Below are
descriptions of all priorities.
A. Atlantic Salmon Aquaculture Considering the Endangered Species
Status of Atlantic Salmon
Promote the continued development of the Atlantic salmon
aquaculture industry, by minimizing the potential for negative impacts
on wild Atlantic salmon, which is listed as endangered under the ESA.
Acceptable activities include the development and testing of: More
secure cages to reduce farmed fish escapement; brood stock strains that
grow more quickly, better resist disease, or pose less genetic threat
to North Atlantic wild salmon stocks; improved marks or tags to trace
potential escapes of farmed fish; vaccines or other methods to prevent
the spread of disease between farmed fish and wild fish; and improved
methods to monitor sea cage integrity and farmed fish disease.
B. Fishing Capacity Reduction under section 312(b)-(e) of the Magnuson-
Stevens Act
Promote the reduction of excess harvesting capacity in appropriate
fisheries by analyses and evaluations that prepare the proponents of
buybacks financed by NMFS loans under Title XI of the Merchant Marine
Act to consider, plan for, organize, justify, support, and effect
financed buybacks. (See 50 CFR part 600.1000, et seq. for framework
rules governing buybacks; see section I.I. for electronic address of
rules.) Acceptable activities include, but are not limited to:
1. Analyzing cost/benefit to determine a fishery's potential for
financed buyback, including:
a. Establishing the type of financed buyback (i.e., permit only
or permit and vessel buyback) that reduces the maximum
capacity at the least cost in the least amount of time;
b. Knowledgeably estimating various capacity ranges in a
fishery that could be bought back at various cost ranges;
c. Evaluating harvesters' pre-buyback cost-income, how various
buyback capacity/cost ranges could change post-buyback
cost-income, the prospective ability of post-buyback
harvesters to pay the estimated fees to service the buyback
loan, and the benefits to them of doing so; and
d. Assuming the fishery's FMP already prohibits new entrants to
the fishery, establishing the scope and possible content of
appropriate FMP amendments that might first be required to
effectively and permanently resolve latent capacity in that
fishery prior to buyback, and to prevent post-buyback
vessel upgrading or other circumstances from replacing the
capacity that a buyback removes.
2. Evaluating detailed means and methods for industry buyback
proponents in the fishery to efficiently and effectively:
a. Survey potential referendum voters (each permit holder in
the buyback fishery) to establish the prospective degree of
interest in, and support for, a financed buyback in that
fishery, and
b. Prepare a successful financed buyback application and
business plan (see 50 CFR 600.1003).
In addition to the above, responsible proponents of financed
buybacks in individual fisheries may also submit proposals to prepare
actual financed buyback applications and business plans for that
fishery.
C. Conservation Engineering
(1) Reduce or eliminate adverse interactions between fishing
operations and non-targeted, protected, or prohibited species,
including the inadvertent take, capture, or destruction of such
species. These include juvenile or sublegal-sized fish and shellfish,
females of certain crabs, fish listed under the ESA, marine turtles,
seabirds, or marine mammals.
(2) Improve the survivability of fish discarded or intentionally
released and of protected species released in fishing operations.
(3) Reduce or eliminate impacts of fishing activity on EFH that
adversely affect the sustainability of the fishery.
D. Optimum Utilization of Harvested Resources under Federal or State
Management
(1) Reduce or eliminate factors such as diseases, human health
hazards, and quality problems that limit the utilization of fish and
their products in the United States and abroad.
(2) Increase public knowledge of the safe handling and use of fish
and their products.
(3) Develop usable products from economic discards (defined in the
Magnuson-Stevens Act as ``fish which are the target of a fishery, but
which are not retained because they are of an undesirable size, sex, or
quality, or for other economic reasons''), underutilized species, and
byproducts of processing.
(4) Facilitate industry cooperation and outreach to promote and
enhance marketability of regional U.S. fishery products.
energy initiative
Question. The President's fiscal year 2003 budget for NOAA includes
an initiative to ``assist the operations of the U.S. energy sector'' at
a cost of an additional $8.7 million. This increase is comprised of:
--$6.1 million to implement a National Weather Service pilot program
that will provide more accurate forecast products to help the
energy industry improve electrical load forecasting and
hydropower facility management--a nationwide program cost is
estimated at $100 million;
--$2.0 million to support the establishment and implementation of a
streamlined hydropower permit review process at NMFS; and
--$550,000 for ``energy management''--which includes ``pursuing
energy commodities at competitive prices,'' among other things.
Question. The National Weather Service's mandate is to protect life
and property, and National Marine Fisheries Service is charged with
conserving our marine resources. Nowhere do I see in NOAA's mandates
the responsibility of saving the energy industry money--well, at least
that's not NOAA's charge.
Answer. NOAA believes that one of its roles is to support the U.S.
economy as part of the Department of Commerce. Our mission statement
states our commitment to ensure sustainable economic opportunities, and
the NWS Organic Act, 15 U.S.C. 313, states that NOAA, ``. . . shall
have the charge of the forecasting of the weather, the issuance of
storm warnings, the display of weather and flood signals for the
benefit of agriculture, commerce, navigation, . . .''. By improving
certain basic services that the National Weather Service already
provides (e.g., daily temperature forecasts), NOAA will provide
information that can improve efficiency in the energy sector which can
in turn benefit the economy. There are significant potential savings
that can be realized by the general public through lower energy prices
if the industry makes better use of environmental information.
In addition, there are numerous benefits to wise energy management
beyond cost savings. For example, the potential exists to reduce excess
greenhouse gas emissions by providing the necessary data that will
enable more accurate electrical load forecasts and reduce excess
electrical energy generation. In addition, brownouts and blackouts can
be avoided completely if the Nation's electrical needs are better
forecast. Thus, while the energy sector is one beneficiary, improved
daily temperature forecasts and improved river forecasts benefit
multiple sectors of the economy and the public, including agriculture,
water resource management, water transportation, and others. The $6.1
million initiative will address these issues.
The $2.0 million proposal is to expedite permits and coordinate
Federal, State, and local actions needed for energy-related project
approvals on a national basis. The goal is to reduce, by 25 percent,
the time required to adjust the permits of licensed energy projects/
facilities. Currently, re-licensing of existing facilities takes 6-10
years.
The $550,000 request will be used to identify and implement energy
savings opportunities and apply renewable energy technologies and
sustainable designs at NOAA-managed facilities. NOAA manages over 500
facilities across the United States.
Question. Whose idea was this?
Answer. The original idea for the NOAA Energy Initiative resulted
from the Department of Commerce input to the Administration's Energy
Task Force report released in April 2001. In addition, a survey of and
meetings with industry executives have validated the benefits of
improved weather information to forecast energy needs.
Question. Can you explain to me how the use of an additional $8.7
million of taxpayer dollars for the Energy Sector benefits our citizens
more than the critical life-saving services government should provide--
like coastal hazards warnings, transportation advisories, or improving
hurricane and tornado prediction?
Answer. The fiscal year 2003 energy initiative, in the Southeast,
for $6.1 million, provides energy related benefits to citizens, one of
which is energy management. There are numerous benefits of wise energy
management beyond cost savings, including the potential to save lives
with improved temperature forecasts and improved air-quality. U.S.
citizens depend on a stable energy supply. Blackouts and brownouts
disrupt commerce and place many citizens' lives at risk (e.g., air
conditioning failures, heating failures). Heat is the number one
weather-related cause of death. Improving daily temperature forecasts
will help to improve heat-related advisories and forecasts. The risk of
heat-related death can be minimized through more effective use of
environmental forecasts.
The remaining $2.6 million funds a $2.0 million request for
streamlining the energy-permit process, which responds to an Executive
Order directing federal agencies to expedite permits needed for energy
related project approval, and $0.55 million for energy management to
reduce NOAA's facility operating costs through actively pursuing energy
commodities at competitive prices, identifying and implementing energy
savings opportunities, and applying renewable energy technologies and
sustainable designs at NOAA-managed facilities.
Question. Your budget documents ``savings'' from the better
forecasts at $1 billion per year--if a $100 million nationwide program
were instituted. Based on what we have learned from the last year's
energy ``crisis'', those sound like savings to the power producers. Do
you know that these savings will be passed on to the consumer?
Answer. The potential does exist to transfer savings to the
consumers but we do not know the extent of these savings. With
increasing deregulation of the energy industry, consumers are realizing
the actual costs of energy production and the savings associated with
increased efficiency. NOAA aims to ensure that the best environmental
information is available to all sectors of the economy and to the
public.
Question. I understand you did one of these ``pilot projects'' in
New Hampshire--are you still funding that? Why would you stop funding
that, and start a new one?
Answer. NOAA, as a result of Congressional action, is funding a
pilot project in New England with a focus on improving the daily
temperature and air quality forecasts for the region. The initial data-
gathering phase will be completed by September 2002. A competitive
contract is being let to conduct an independent, peer-reviewed
assessment of the expected improvements in forecasting and their
benefits to energy efficiency. The Modernized Cooperative Observing
Program instrument network installed during fiscal year 2002 for this
project will remain operational thereafter with operation and
maintenance costs supported through the National Weather Service.
While Congress was conferring about the fiscal year 2002 budget,
NOAA simultaneously developed through the fiscal year 2003 budget
formulation process a separate energy pilot study focusing on the
Southeast. The Southeast was identified through NOAA's internal process
as the target region. The decision was based on both need and
opportunity as expressed by industry stakeholders nationwide who were
consulted in the development of the pilot program. This region was also
chosen because there is a greater reliance on hydropower and an
opportunity to test and evaluate potential improvements in river flow
forecasts. The information gained from conducting the fiscal year 2002
pilot program will benefit the fiscal year 2003 program and is
applicable to all regions of the country. The long-term goal is to
expand the program nationwide.
international issues
Question. The United States has some of the strictest marine
protection laws in the world. It is important that NOAA and the
Department of State continue to pursue international agreements in
order to level the playing field. With respect to regulation of
shrimpers, Congress in 1990 enacted Section 609 of Public Law 101-162,
which restricts the import of shrimp harvested in a way that harms sea
turtles. Under this law, nations must be certified as having a
regulatory program to protect sea turtles in their shrimp trawl
fisheries that is comparable to the U.S. program in order to obtain
access to U.S. shrimp markets. Evidence observed during an inspection
by the National Marine Fisheries Service (NMFS) at the port of
Mazatlan, Mexico, November 13-16, 2001 revealed serious compliance and
enforcement issues with respect to the use of Turtle Excluder Devices
(TEDs). A follow-up inspection took place during the week of March 4,
2002.
Back in November of last year, NMFS found serious compliance and
enforcement problems in Mexico with respect to shrimpers' use of Turtle
Excluder Devices, or ``TEDs''. Admiral, such TED violations in Mexico
come at a time when NMFS is considering a rule that would impose more
stringent regulations on U.S. shrimpers. I understand that a new team
was recently in Mexico to inspect the situation down there.
Answer. Yes, you are correct. A team consisting of NMFS and
Department of State personnel conducted inspections from early to the
middle of March, 2002, in several ports of Mexico--Tampico, Ciudad del
Carmen, Campeche, Guaymas, and Mazatlan.
Question. Did the inspection team find improvements in Mexico? If
not, does the Administration plan to decertify Mexico, and block
imports of shrimp?
Answer. While a few problems were observed on some vessels, in
general the inspection team found that the Government of Mexico has
taken actions to improve its enforcement program since the November
inspection. The team noted that it is important for Mexico to increase
or, at a minimum, maintain TED enforcement activity at sea and
dockside. To help ensure that this occurs, NMFS, with assistance from
the Department of State, has organized a fishery enforcement training
workshop for Mexican fishery enforcement personnel. The Mexican Navy
will be included in the training to assist Mexico's General Bureau of
Fishery and Marine Resource Inspection and Oversight (PROFEPA) to
accomplish higher TED compliance. The preliminary determination is that
Mexico's sea turtle protection program for its commercial fisheries is
currently effective and meets the requirements for certification.
Question. On a broader note, what is the Administration doing to
ensure that foreign fishing fleets are held to the same standards as
the U.S. fleet, such as negotiating an international agreement to
prohibit the practice of shark finning, or to prevent marine debris
that ends up on U.S. shores?
Answer. Our efforts to conserve and manage sharks go back many
years and are detailed in our February 1, 2002, ``Report to Congress
Pursuant to the Shark Finning Prohibition Act of 2000 (Public Law 106-
557),'' a copy of which is enclosed. The Shark Finning Prohibition Act
calls for a multiplicity of actions to the taken by the Administration,
including the collection of information on the incidence of finning as
well as seeking an end to the practice. Clearly, these actions must be
carried out in a logical sequence, and our Report explains how we will
do this. In addition, working closely with the Department of State,
before the end of May 2002, we will carry out a worldwide program of
diplomatic demarches that will include our message regarding the
requirements of: (1) the Shark Finning Prohibition Act and (2) the
International Plan of Action for the Conservation and Management of
Sharks of the Food and Agriculture Organization of the United Nations.
These demarches will go to appropriate coastal countries and regional
fisheries management organizations worldwide.
NMFS has consulted, under the Endangered Species Act, with many
federal agencies on their activities that are likely to result in
adverse effects to endangered sea turtles as a result of marine
pollution and plastics. For example, through a consultation with the
Air Force on Search and Rescue Training in the Gulf of Mexico, NMFS
required the Air Force to collect as many lightsticks, a major source
of marine plastic debris, as possible after completion of an exercise
and properly dispose all plastic wrappings associated with the
lightsticks. NMFS also required the Mineral Management Service to
condition permits issued to oil companies to require collection and
removal of flotsam resulting from explosive or mechanical rig removals.
The Commerce Department's National Oceanic and Atmospheric
Administration (NOAA), including NMFS' staff, joined forces with the
Ocean Conservancy, U.S. Coast Guard, Fish and Wildlife Service, and the
Hawaii Sea Grant program in a major ocean debris removal campaign in
the northwestern Hawaiian Islands where derelict fishing gear and trash
threaten marine turtles and other living marine resources. NOAA
deployed three chartered commercial vessels, and to date more than 120
tons of nets and derelict gear have been recovered. NMFS recognizes
that marine debris is a serious threat to the recovery of marine
turtles and will continue to address this threat through consultations
with federal agencies and collaborative efforts such as those conducted
in the northwestern Hawaiian Islands.
FEDERAL TRADE COMMISSION
STATEMENT OF TIMOTHY J. MURIS, CHAIRMAN
SUMMARY STATEMENT
Senator Hollings. We next have the Federal Trade
Commission. We welcome you, Chairman Muris, and we would
appreciate your statement at this time, which will be included
in full. You can highlight it or deliver it as you wish.
Mr. Muris. Thank you very much, Mr. Chairman. As your
letter requested, let me just briefly summarize my testimony. I
appreciate the opportunity to appear before you today in
support of our fiscal year 2003 appropriations request.
Let me start by expressing my sincere thanks to the
subcommittee and in particular to you, Mr. Chairman and Senator
Gregg, for your strong support of the FTC in both antitrust and
consumer protection. As you know, the FTC is the only Federal
agency that has jurisdiction over both consumer protection and
antitrust in broad areas of the economy. With credit to our
excellent and dedicated staff, the FTC's record of protecting
American consumers is impressive. We will continue to build on
the successes of my predecessors.
The most important word in understanding what we are doing
at the FTC, I believe, is continuity with the past. We will
continue to address competition and consumer protection issues
with the same expertise and commitment as was the case under
Bob Pitofsky.
To accomplish our mission in fiscal year 2003, the FTC
requests $176,599,000 and 1,074 FTE. Funding at this level
would allow us to further our record of solid accomplishment on
behalf of American consumers. A few highlights, I think, reveal
the benefit of our role.
In consumer protection, fighting fraud, especially on the
Internet, remains a key priority. For example, we have cracked
down on the sale of bogus bioterrorism-related products that
sprung up after September 11. We sent 121 warning letters to
Internet marketers of these products and most sites have
eliminated their suspect claims. We targeted the most egregious
of the remaining marketers for law enforcement action. Last
month, we announced settlements with the marketers of a home
test kit for anthrax and an online seller of a purported
anthrax treatment product.
We also have moved aggressively against diet deceptive
claims about supplements on the Internet. We have taken action
against fraud involving our telemarketing sales rule. Last
fall, we achieved a settlement of over $8 million involving the
pernicious practice of companies that had the consumer's credit
card information, called the consumer, and did not tell them
they had the information. Yesterday, we announced a $39 million
order in a telemarketing sales case.
We are planning many more cases on fraud, both online and
off. We are increasing our efforts to have career fraudsters
put in jail, and we are spending more money on the growing
problem of cross-border fraud.
We have also, Mr. Chairman, turned much greater attention
to the issue of privacy, and we propose to do more in the
future. We have recently proposed amendments to our
telemarketing sales rule, including a national ``do not call''
list, and a proposal to deal with the pre-acquired account
information that I mentioned.
We have begun law enforcement in a new area with our Eli
Lilly case involving promises of security made by companies. In
that case, Eli Lilly inadvertently sent an e-mail with 600 e-
mail addresses of individuals taking Prozac. They had promised
to keep the information confidential. They had promised, in our
opinion, to take reasonable steps for security and they did
not. We accordingly achieved a consent agreement.
We have also, for the first time, systematically begun to
attack deceptive spam with a series of cases we brought last
month and we have several more in the pipeline.
We also, as requested by this committee, are continuing to
monitor the marketing of violent media to children. We issued
our third report last December and have another one coming this
summer.
On the antitrust side, despite the decline in the merger
wave, we are still pursuing many cases. This fiscal year alone,
the FTC has taken action in 10 cases. In non-merger antitrust,
we have doubled our number of investigations. The
pharmaceutical area is a particularly important area. We have
what I call a first and second generation of cases and
investigations.
The first generation involves agreements between branded
products and generic products to keep the generic products off
the market. The Commission has brought three such cases.
The second generation involves unilateral actions by
branded companies to keep generic competition off the market.
These cases, I think, promise enormous benefits for consumers.
We recently were successful in an amicus brief that we filed
involving the unilateral action where a branded company had
tried to manipulate the FDA process to keep a generic off the
market. The District Court in New York accepted our analysis
and rejected the branded company's arguments. We are pursuing
many other cases in health care at all levels of health care
competition. We have a consent agreement that we will announce
soon. Also, as former Chairman Bob Pitofsky suggested to me, we
are holding hearings to explore the complex relationship
between intellectual property and antitrust.
Mr. Chairman, let me briefly address the issue that has
attracted much attention lately, which is this so-called
clearance agreement with the Department of Justice's Antitrust
Division. First, we are grateful that you have confidence in
the FTC and want us to do more. In more than 50 years of
clearance process agreements, no Member of Congress has ever
taken such close interest in the process.
The reality, Mr. Chairman, is that we have two antitrust
agencies enforcing the same antitrust law with the exact same
standard. The law, however, states that only one agency can
investigate a specific merger. Because of that, the agencies
have agreed for decades that neither will proceed with an
investigation unless one first clears the investigation to the
other.
This process worked well up until the 1990s. In the 1980s,
for example, there were only, on average, about 10 disputes a
year. Since then, however, there have been more than 80
disputes per year. There have been delays in the last 2 years
of 3 weeks or more in one-quarter of the cases for which
clearance was sought. When I arrived at the FTC last summer,
there was a case where both agencies wanted to investigate and
they had fought for over 1 year over who would do it. In that 1
year, neither could investigate. Bob Pitofsky and Joel Klein
tried to fix this problem, but they could not agree on a
solution.
Now, I know there is concern about media mergers, but I
want to make clear that the new clearance agreement does not
affect which agency will do media mergers. Even without the new
agreement, the Antitrust Division would have done media
mergers. If we had not signed a new agreement, disputes would
be governed by the 1993 agreement. That agreement said that the
primary grounds for resolving clearance disputes is experience
within the last 5 years.
In media, the DOJ has a lot of experience and the FTC has
very little. There are only two major FTC cases in the last
several years. One is Turner-Time Warner, which is now outside
the 5-year window contained in the 1993 agreement. The other is
AOL-Time Warner. In that case, the clearance was so hotly
contested that Chairman Pitofsky promised that if the FTC could
do the deal, then the FTC would not count the experience in
AOL-Time Warner in future clearance disputes. Now, even if we
were to count AOL-Time Warner, in the last 5 years, the FTC has
done only one major media deal and the Department of Justice
has done six.
The clearance agreement did do something different. It
publicly announced in detail for the first time how the process
would work. A secret process has become transparent. I believe
this is a good Government initiative that will avoid investing
resources in fighting with the DOJ. In fact, our predecessors,
Joel Klein and Bob Pitofsky, wrote us a letter saying exactly
that.
prepared statement
In summary, Mr. Chairman, I believe the role of the FTC is
vital for consumers. I believe we do good work and I hope that
you approve our full budget request. Thank you.
[The statement follows:]
Prepared Statement of Timothy J. Muris
introduction
Mr. Chairman, I am Timothy J. Muris, Chairman of the Federal Trade
Commission. I am pleased to appear before the Subcommittee today to
testify in support of the FTC's fiscal year 2003 Appropriation
request.\1\
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\1\ The written statement represents the views of the Federal Trade
Commission. My oral presentation and responses are my own and do not
necessarily reflect the views of the Commission or of any other
Commissioner.
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The FTC is the only federal agency with both consumer protection
and competition jurisdiction in broad sectors of the economy.\2\ We
enforce laws that prohibit business practices that are anticompetitive,
deceptive, or unfair to consumers, as well as promote informed consumer
choice and public understanding of the competitive process. The work of
the FTC is critical in protecting and strengthening free and open
markets in the United States.
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\2\ The FTC has broad law enforcement responsibilities under the
Federal Trade Commission Act, 15 U.S.C. Sec. 41 et seq. With certain
exceptions, the statute provides the agency with jurisdiction over
nearly every sector of the economy. Certain entities, such as
depository institutions and common carriers, as well as at the business
of insurance, are wholly or partially exempt from FTC jurisdiction. In
addition to the FTC Act, the FTC has enforcement responsibilities under
more than 40 additional statutes and more than 30 rules governing
specific industries and practices.
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The FTC's record is impressive. The agency has fulfilled its
mission of protecting American consumers by pursuing an aggressive law
enforcement program during rapid changes in the marketplace--the past
decade saw the largest merger wave in history, the rapid growth of
technology, and the increasing globalization of the economy. Through
the efforts of a dedicated and professional staff, the FTC has
shouldered an increasing workload despite only modest increases in
resources. I would like to thank the Chairman and members of the
Subcommittee for their continued support of the Commission's mission.
The guiding word at the FTC is ``continuity.'' The agency continues
aggressively to pursue law enforcement initiatives, launch consumer and
business education campaigns, and organize forums to study and
understand the changing marketplace, just as we have done for several
years. We will continue to address competition and consumer protection
issues in the evolving economy with the same expertise and commitment
as before.
Our competition mission continues to reflect the following widely
shared consensus: (1) the purpose of antitrust is to protect consumers;
(2) the mainstays of antitrust enforcement are horizontal cases--cases
involving the business relations and activities of competitors; (3) in
light of recent judicial decisions and economic learning, appropriate
monopolization and vertical cases are an important part of the
antitrust agenda; and (4) case selection should be guided by sound
economic and legal analysis, and made with careful attention to the
facts. The FTC is primarily a law enforcement agency, and we will
continue aggressive enforcement of the antitrust laws within the
agency's jurisdiction. The FTC is also an independent expert agency and
a deliberative body, and is thus well suited to studying an evolving
marketplace and developing antitrust policy--we will continue to hold
public hearings, conduct studies, and issue reports to Congress and the
public.
Similarly, there is widespread agreement on how the FTC best
carries out its consumer protection mission. Twenty years ago, the FTC
shifted its emphasis toward more aggressive enforcement of the basic
laws of consumer protection. The staple of our consumer protection
mission is to identify and fight fraud and deception. The FTC monitors
trends and developing issues in the marketplace to determine the most
effective use of its resources. The FTC has become the national leader
in consumer protection and partners with other law enforcement agencies
at the federal, state, local, and international levels to maximize
benefits for consumers.
To accomplish our mission in fiscal year 2003, the FTC requests
$176,599,000 and 1,074 FTE. These figures represent an increase over
the current year of $20,617,000, but no additional FTE. Almost 25
percent of the requested dollar increase would be devoted to comply
with proposed legislation requiring all federal agencies to begin
funding directly certain retirement and health benefits. Funding at the
requested level would allow the FTC to build on a record of solid
achievement on behalf of American consumers.
During fiscal year 2003, the FTC will address significant law
enforcement and policy issues throughout the economy, devoting the
major portion of its resources to those areas in which the agency can
provide the greatest benefits to consumers. This testimony in support
of our fiscal year 2003 appropriation highlights program priorities in
the FTC's two missions. In the Consumer Protection Mission, we discuss
Privacy; Internet Law Enforcement; Health, Safety, and Economic Injury;
Media Violence, Gambling, and Children; Globalization; and Consumer
Outreach. In the Maintaining Competition Mission, we discuss Merger
Enforcement; Streamlining the Merger Review Process; Nonmerger
Enforcement; Targeting Resources for Consumer Impact; and Outreach
Efforts. The testimony concludes with a brief summary of the FTC's
fiscal year 2003 appropriation request.
consumer protection mission
Privacy
During fiscal year 2003, the FTC intends to devote significant
resources to privacy protection. Consumers are deeply concerned about
the privacy of their personal information, both online and offline.
Although privacy concerns have been heightened by the rapid development
of the Internet, they are by no means limited to the cyberworld.
Consumers can be harmed as much by the thief who steals credit card
information from a mailbox or dumpster as by the one who steals that
information from a Web site. Of course, the nature of Internet
technology may raise its own special set of issues.
The FTC currently enforces a number of laws that address consumers'
privacy,\3\ and intends to increase substantially the resources
dedicated to privacy protection. Our initiatives in this area attempt
to reduce the serious consequences that can result from the misuse of
personal information and fall into three major categories: vigorous
enforcement of existing laws, additional rulemaking, and continued
consumer and business education.
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\3\ See, e.g., Federal Trade Commission Act, 15 U.S.C. Sec. 41 et
seq. (prohibiting deceptive or unfair acts or practices, including
violations of stated privacy policies); Fair Credit Reporting Act, 15
U.S.C. Sec. 1681 et seq. (addressing the accuracy, dissemination, and
integrity of consumer reports); Telemarketing and Consumer Fraud and
Abuse Prevention Act, 15 U.S.C. Sec. 6101 et seq. (including the
Telemarketing Sales Rule, 16 C.F.R. Part 310) (prohibiting
telemarketers from calling at odd hours, engaging in harassing patterns
of calls, and failing to disclose the identity of the seller and
purpose of the call); Children's Online Privacy Protection Act, 15
U.S.C. Sec. 6501 et seq. (prohibiting the collection of personally
identifiable information from young children without their parents'
consent); Identify Theft and Assumption Deterrence Act of 1998, 18
U.S.C. Sec. 1028 (directing the FTC to collect identity theft
complaints, refer them to the appropriate credit bureaus and law
enforcement agencies, and provide victim assistance); Gramm-Leach-
Bliley Act, 15 U.S.C. Sec. 6801 et seq. (requiring financial
institutions to provide notices to consumers and allowing consumers
(with some exceptions) to choose whether their financial institutions
may share their information with third parties).
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Privacy Law Enforcement
The FTC will pursue law enforcement efforts in the following areas:
--Enforcing privacy promises, focusing on cases involving sensitive
information, transfers of information as part of a bankruptcy
proceeding, and the failure of companies to meet commitments
made under the Safe Harbor Program to comply with the European
Commission's Directive on Data Protection.\4\ For example, in
January 2002, the FTC accepted a consent order with Eli Lilly &
Company to resolve allegations that Lilly violated the FTC Act.
According to the complaint, Lilly claimed that it employed
measures appropriate under the circumstances to protect the
confidentiality of personal information obtained from consumers
who visited its Prozac.com Web site, when in fact it did
not.\5\
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\4\ The European Commission's Directive on Data Protection became
effective in October 1998, and prohibits the transfer of personal data
to non-European Union nations that do not meet the European
``adequacy'' standard for privacy protection. To bridge different
privacy approaches between the United States and the EU, and to provide
a streamlined means for U.S. organizations to comply with the
Directive, the U.S. Department of Commerce, in consultation with the
European Commission, developed a ``Safe Harbor'' framework, which was
approved by the EU in July 2000. Companies that self-certify to the
Department of Commerce that they comply with the Safe Harbor Principles
may be deemed by the EU to provide ``adequate'' privacy protection
under the EU Directive. The FTC will give priority to referrals of non-
compliance with safe harbor principles from EU Member States. See
Department of Commerce's Safe Harbor Website, www.export.gov/
safeharbor.
\5\Eli Lilly & Co., No. 012-3214 (Jan. 18, 2002) (consent agreement
accepted subject to public comment).
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--Enforcing the Children's Online Privacy Protection Act (COPPA),\6\
which prohibits the collection of personally identifiable
information from young children without their parents' consent.
Since 2001, the Commission has brought a number of COPPA
enforcement actions resulting in more than $100,000 in civil
penalties.\7\
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\6\ 15 U.S.C. Sec. 6501 et seq.
\7\ United States v. American Pop Corn Co., No. C02-4008DEO (N.D.
Ia., Feb. 28, 2002) (consent decree); United States v. Lisa Frank,
Inc., No. 01-1516-A (E.D. Va., Oct. 3, 2001) (consent decree); United
States v. Looksmart, Ltd., No. 01-606-A (E.D. Va., Apr. 23, 2001)
(consent decree); United States v. Bigmailbox.com, Inc., No. 01-605-A
(E.D. Va., Apr. 23, 2001) (consent decree); United States v. Monarch
Servs., Inc., No. AMD 01 CV 1165 (D. Md., Apr. 20, 2001) (consent
decree).
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--Bringing actions against fraudulent or deceptive spammers. In
February of this year, the Commission launched a crackdown on
deceptive junk email, or ``spam,'' and announced six
settlements with seven defendants who allegedly continued to
send deceptive chain email after being warned that the chain
email scheme was illegal.\8\ The FTC maintains a special
electronic mailbox, [email protected], to which Internet customers
can forward spam. This database currently receives 10,000 new
pieces of spam every day. We will continue to use this mailbox
to identify targets for law enforcement action.
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\8\ FTC v. Boivin, No. 8:02-CV-77-T-26 MSS (M.D. Fla., Jan. 15,
2002) (consent decree); FTC v. Estenson, No. A3-02-10 (DND, Feb. 5,
2002) (consent decree); FTC v. Larsen, No. 8:02-CV-76-T-26MAP (M.D.
Fla., Jan. 16, 2002) (consent decree); FTC v. Lutheran, No. 02 CV 0095
K (RAB) (S.D. Cal., Jan. 18, 2002) (consent decree); FTC v. Va, No. 02-
60062-Civ-Zloch (S.D. Fla., Jan. 18, 2002) (consent decree); FTC v.
Pacheco, No. 02-CV-31L (D.R.I., Jan. 22, 2002) (consent decree).
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--Challenging ``pretexting,'' the practice of fraudulently obtaining
personal financial information, often by calling banks under
the pretense of being a customer. Earlier this month, the
Commission announced settlements in three federal district
court actions against information brokers who allegedly engaged
in illegal pretexting.\9\
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\9\ ``Information Brokers Settle FTC Charges,'' FTC Press Release
(Mar. 8, 2002), available at <>.
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--Enforcing the privacy protections of the Fair Credit Reporting
Act,\10\ which ensures the integrity and accuracy of consumer
credit reports and limits the disclosure of such information to
entities that have ``permissible purposes'' to use the
information.
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\10\ 15 U.S.C. Sec. 1681 et seq.
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Privacy Rulemaking
The Commission is engaged in the following rulemaking activities:
--Considering proposed amendments to the Telemarketing Sale Rule,\11\
which were announced in January 2002.\12\ Among other things,
the proposed amendments would create a national do-not-call
list to allow consumers to make one call to remove their names
from telemarketing lists. The proposed amendments also would
address the misuse of ``pre-acquired account information,''
lists of names and credit card account numbers of potential
customers. Misuses include billing consumers who believed they
were simply accepting a free trial, or billing consumers for
products or services that they did not purchase.
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\11\ See Telemarketing Sales Rule, 16 C.F.R. Part 310.
\12\ 67 Fed. Reg. 4492 (Jan. 30, 2002).
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--Completing the current rulemaking on safeguarding consumers'
financial information pursuant to the Gramm-Leach-Bliley
Act.\13\
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\13\ The Gramm-Leach-Bliley Act, 15 U.S.C. Sec. Sec. 6801(b) and
6805(b), requires the FTC to issue a rule establishing appropriate
standard for safeguards to ensure the security, confidentiality, and
integrity of customer records and information.
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Privacy- and Security-Related Consumer and Business
Education and Outreach
The agency will continue to conduct workshops and other educational
activities:
--Training law enforcement officials about identity theft. On March
14, 2002, the FTC, the U.S. Secret Service, and the Department
of Justice kicked off a series of training seminars to provide
local and state law enforcement officers with practical tools
to enhance their efforts to combat identity theft.\14\
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\14\ See Identity Theft and Assumption Deterrence Act of 1998, 18
U.S.C. Sec. 1028. This Act makes the FTC a central clearinghouse for
identity theft complaints. Under the Act, the FTC is required to log
and acknowledge such complaints, provide victims with relevant
information, and refer their complaints to appropriate entities (e.g.,
the major consumer reporting agencies and other law enforcement
agencies).
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--Collecting information about identity theft with the FTC's new ID
Theft Affidavit. In February 2002, the FTC joined with several
companies and privacy organizations to make available a
universal identity theft affidavit that victims of identity
theft can submit to creditors. This form will help victims
recoup their losses and restore their legitimate credit records
more quickly.
--Continuing to explore and monitor the privacy implications of new
and emerging technologies through workshops, reports, and other
public meetings. Earlier this month, the FTC released a summary
and update of the proceedings of a workshop sponsored by the
Commission titled, ``The Mobile Wireless Web, Data Services,
and Beyond: Emerging Technologies and Consumer Issues.'' \15\
On May 20-21, 2002, the FTC will host a two-day public workshop
to explore issues related to the security of consumers'
computers and the personal information stored in them or in
company databases.\16\
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\15\ The report is available at <>.
\16\ See ``FTC to Host Public Workshop on Consumer Information
Security,'' FTC Press Release, available at <>.
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Internet law enforcement
The FTC will continue aggressively to monitor the Internet to
ferret out frauds and schemes. Since 1994, the early days of the
Internet, the FTC has brought 222 Internet-related law enforcement
actions against 688 defendants, stopping consumer injury estimated at
more than $2.1 billion. These cases often pose novel challenges:
tracking anonymous fraud artists, unraveling complex technological
schemes, and responding at lightning speed to frauds moving just as
rapidly.
A growing number of these high tech schemes exploit the design and
architecture of the Internet. A recent example is FTC v. Zuccarini,
C.A. No. 01-CV-4854 (E.D. Pa., filed Sept. 25, 2001), in which the
defendant allegedly used more than 5,000 copycat Web addresses to
hijack surfers from their intended destinations to one of his Web
sites, hold them captive, and pelt them with a barrage of ads, some of
them pornographic. According to the FTC's complaint, the defendant was
able to divert consumers who misspelled addresses of popular legitimate
sites because he had registered multiple misspelled variations of those
sites. Once he had lured consumers to his sites, the defendant
``mousetrapped'' them by disabling their browsers' ``back'' and
``exit'' commands. At the FTC's request, the court enjoined the
defendant from continuing these activities. The FTC will seek an order
requiring the defendant to disgorge as much as $1 million in ill-gotten
gains.
As in past years, the FTC's Internet fraud campaign is combating
scams that jump from news headlines--this year, scams that have
appeared since September 11th. The FTC, working with 30 State Attorneys
General, the New York Better Business Bureau, the California Department
of Health, the FDA, and other federal agencies identified more than 200
Web sites pitching products to protect against, detect, or treat
illnesses caused by biological or chemical agents, including anthrax.
These products, most of them bogus or ineffective, include herbal
remedies for anthrax, air filters, gas masks, and do-it-yourself kits
to test mail for anthrax. After identifying these Web sites, the FTC
sent warning letters to the operators of 121 sites, and published two
consumer alerts to warn the public that fraudsters follow the headlines
and tailor their offers to prey upon the public's latest fears. As of
March 1, 2002, 62 percent of those warned had dropped the troubling
claims from their Web sites, and the FTC continues to monitor the
remainder of the Web sites. The FTC brought two law enforcement actions
against the operators of Web sites engaging in more egregious
practices. In one case, the FTC obtained a federal court order
prohibiting a marketer from selling anthrax home test kits.\17\ In
second, the FTC has issued a consent order prohibiting a vendor from
making anthrax cure claims for a colloidal silver product.\18\ Because
the Internet transcends national boundaries, future cases increasingly
will involve cross-border scams. During the past fiscal year, the FTC,
other federal agencies, state agencies and foreign agencies from nine
countries participated in ``Operation Top Ten Dot Cons.'' Through this
sweep, the largest in FTC history, the FTC and its partners filed 209
actions around the world attacking the top 10 Internet scams, as
identified by data received in our consumer complaint database.\19\
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\17\ FTC v. Vital Living Products, Inc., Civ. No. 3:02CV74-MU
(W.D.N.C., proposed consent decree filed with court, Feb. 25, 2002).
\18\ Kris A. Pletschke, C-4040 (Feb. 22, 2002) (consent order).
\19\ The top 10 targeted frauds were: Internet Auction Fraud,
Internet Service Provider Schemes, Internet Web Site Design/Promotions
(Web Cramming, Internet Information and Adult Services), Credit Card
Cramming, Multi-level Marketing/Pyramid Schemes, Business Opportunities
and Work-At-Home Scams, Investment Schemes and Get-Rich-Quick Schemes,
Travel/Vacation Fraud, Telephone/Pay-Per-Call Solicitation Frauds
(including modem dialers and videotext), and Health Care Frauds.
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Health, safety, and economic injury
The Commission also will continue to bring law enforcement actions
in cases involving consumers' health and safety, and in cases resulting
in significant economic injury. Just two weeks ago, for example, the
Commission announced consent agreements in cases challenging allegedly
deceptive advertising claims that, as a good source of calcium, Wonder
Bread helps children's minds work better and helps children remember
things.\20\ In a recent case involving significant economic injury, the
Commission announced that a group of ``buying clubs'' had agreed to pay
$9 million to settle charges by the FTC and State Attorneys General.
The defendants were charged with misleading consumers into accepting
trial buying club memberships and obtaining consumers' credit card
account numbers without the consumers' knowledge or authorization from
telemarketers pitching the buying clubs. Consumers then were enrolled
in the clubs and charged up to $96 in yearly membership fees.\21\
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\20\ Interstate Bakeries Corp., File No. 012 3182 I (consent
agreement accepted subject to public comment, Mar. 6, 2002); Campbell
Mithun LLC, File No. 012 3182 (consent agreement accepted subject to
public comment, Mar. 6, 2002).
\21\ FTC v. Ira Smolev, No. 01-8922-Civ-Zloch (S.D. Fla., consent
decree entered as to all except two defendants, Nov. 28, 2001).
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In addition, last month the FTC obtained a stipulated preliminary
injunction in a federal district court action against the promoters of
``Miss Cleo'' psychic services.\22\ The FTC's complaint alleges that
the defendants misrepresented the cost of services both in advertising
and during the provision of the services, billed for services that were
never purchased, and engaged in deceptive collection practices, among
other things. The FTC estimates that the defendants billed consumers at
least $360 million in connection with this alleged scheme.
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\22\ FTC v. Access Resource Services, Inc., No. 02-60226 Civ. Gold
(S.D. Fla., stipulated preliminary injunction entered Feb. 20, 2002).
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Media violence, gambling, and children
The FTC is continuing to monitor violent media directed toward
children, and appreciates the leadership of Senators Hollings, McCain,
Gregg, and other Subcommittee members on this issue. In a September
2000 report, the agency reported that the entertainment industry
targeted advertising and promotion of violent video games, movies, and
music to children.\23\ We received requests from Congress to take a
variety of steps to follow up on this report. In particular, this
Subcommittee requested that the FTC continue its efforts in child
protection through three related initiatives: consumer research and
workshops, an underage shopper retail compliance survey, and marketing
and data collection.\24\
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\23\ Federal Trade Commission, Marketing Violent Entertainment to
Children: A Review of Self-Regulation and Industry Practices in the
Motion Picture, Music Recording & Electronic Game Industries (Sept.
2000), available at <>.
\24\ Conf. Rpt. on H.R. 2500 (fiscal year 2002 appropriations), H.
Rep. No. 278, 107th Cong., 1st Sess. 162 (Nov. 9, 2001).
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In response to these requests, in April 2001 the FTC released a
follow-up report outlining improvements in the movie and electronic
game industries but finding no appreciable change in the music
industry's target marketing practices.\25\ The agency released a second
follow-up report in December 2001, finding that the movie and
electronic game industries had made continued improvements. The
December 2001 report also found that the music industry had made some
progress in disclosing parental advisory label information in its
advertising, but the Commission's review of advertising placement
showed that the music industry had not altered its marketing practices
since the September 2000 report.\26\ The December report also described
the results of a second underage shopper retail compliance survey. The
FTC will release a third follow-up report in June 2002. In addition, as
requested by this Subcommittee, the Commission's staff is conducting
research on appropriate consumer education messages for parents. The
Commission is also working to respond to the language in last year's
appropriations bill regarding the marketing of on-line gambling sites
to children. We will be reporting our findings and announcing a
consumer education initiative in the near future.
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\25\ Federal Trade Commission, Marketing Violent Entertainment to
Children: A Six-Month Follow-Up Review of Industry Practices in the
Motion Picture, Music Recording & Electronic Game Industries (April
2001), available at <>.
\26\ Federal Trade Commission, Marketing Violent Entertainment to
Children: A One-Year Follow-Up Review of Industry Practices in the
Motion Picture, Music Recording & Electronic Game Industries (Dec.
2001), available at <>.
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Globalization
The FTC will continue to respond to the challenges created by the
increasingly global marketplace. First, the FTC will participate in
international efforts to craft policies and self-regulatory programs to
protect consumers. Second, we will build new international partnerships
to tackle cross-border fraud through information sharing and
coordinated law enforcement. An example is the FTC's participation in
the International Marketing Supervision Network (IMSN), a network of
consumer protection and fair trade organizations from more than two
dozen countries. The IMSN identifies worldwide enforcement issues,
facilitates the sharing of information about cross-border commercial
activities affecting consumer interests, and encourages international
cooperation among law enforcement agencies. Another example is
econsumer.gov, a joint effort by the United States and fifteen other
countries to gather and share cross-border e-commerce complaints.
Third, to meet the challenge of identifying critical consumer
issues in the global marketplace, the FTC plans to continue to use its
Consumer Information System, a consumer complaint database, to identify
and target the most serious consumer problems. By sharing fraud
complaints with a broad group of law enforcement partners through the
secure Consumer Sentinel Web site, the FTC enhances the effectiveness
of law enforcement agencies across the United States, Canada, and
Australia. The FTC also will continue training enforcement officials on
how to bring cases involving new technologies. Since fiscal year 2001,
the FTC has educated more than 1,750 law enforcement personnel from
more than 20 countries, 38 states, 23 U.S. federal agencies, and 19
Canadian agencies on use of the fraud database.
Consumer outreach
Just as consumer outreach is a key component of the FTC's efforts
to protect consumers' privacy, the FTC will continue to place great
emphasis on consumer outreach involving fraud and deception. Our
consumer education programs provide two key benefits. First, they
inform consumers of their rights under various consumer protection
laws. Second, they give consumers the information they need to identify
and avoid fraud and deception in the marketplace. In fiscal year 2002,
the FTC will use national and local media, state and local government
agencies, business and consumer groups, and the ftc.gov and
consumer.gov Web sites to reach millions of consumers across the
country. The FTC also will continue to reach consumers through its
Consumer Response Center and the hundreds of consumer protection
organizations that distribute FTC materials and provide links to the
FTC Web site. In fiscal year 2001, the FTC issued 77 publications,
distributed more than 5.4 million print publications, and logged more
than 9.6 million accesses of its publications on the ftc.gov Web site.
The FTC also will continue to host workshops to highlight the FTC's
activities and resources for Congressional district office staff. By
July of this year, the FTC will have held workshops in each of its
regional offices for all Congressional district offices.
maintaining competition mission
Merger enforcement
Merger enforcement will continue as a major focus of the
competition agenda for fiscal year 2003. Stopping mergers that lessen
competition ensures that consumers will have the benefit of lower
prices and greater choice in their selections of goods and services.
The recently revised Hart-Scott-Rodino Act (``HSR'') \27\ filing
threshold, coupled with economic conditions during the last fiscal
year, reduced the number of reportable filings by approximately two-
thirds from their peak. Reported mergers, however, continue to increase
in scope, complexity, and size. In fiscal year 2001 alone, the total
value of all reported mergers was over $1 trillion. Large, multifaceted
transactions--the ones still subject to HSR--are the ones most likely
to raise antitrust issues, and typically involve a number of separate
product and geographic markets, each requiring analysis.\28\ Further,
mergers in high tech markets require careful analysis, because new
technical issues continue to emerge.
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\27\ 15 U.S.C. Sec. 18a, as amended, Pub. L. No. 106-553; 114 Stat.
2762 (2000).
\28\ For example, the FTC's settlement agreement in Chevron Corp./
Texaco Inc., No. C-4023 (Jan. 2, 2002) (consent order), provided for
relief in (1) retail gasoline markets in numerous metropolitan areas in
various parts of the country, including Alaska and Hawaii, the western
United States (including Arizona, Idaho, Nevada, New Mexico, Oregon,
Utah, Washington, and Wyoming), and the southern United States
(including Alabama, Florida, Georgia, Kentucky, Louisiana, Mississippi,
North Carolina, Oklahoma, Tennessee, Texas, Virginia, and West
Virginia); (2) marketing of CARB gasoline in California; (3) refining
and bulk supply of CARB gasoline for sale in California; (4) refining
and bulk supply of gasoline and jet fuel in the Pacific Northwest; (5)
the bulk supply of RFG II gasoline into St. Louis; (6) terminaling of
gasoline and other light petroleum products in several metropolitan
areas in Arizona, California, Mississippi, and Texas, and on four
Hawaiian islands; (7) transportation of crude oil from California's San
Joaquin Valley; (8) transportation of crude oil in the eastern Gulf of
Mexico; (9) pipeline transportation of natural gas in the Central Gulf
of Mexico; (10) natural gas fractionating in Texas; and (11) marketing
of general aviation gasoline in 14 states (Alaska, Alabama, Arizona,
California, Florida, Georgia, Idaho, Louisiana, Mississippi, Nevada,
Oregon, Tennessee, Utah, and Washington).
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We will devote resources to searching for mergers that are no
longer subject to premerger reporting requirements under HSR, but that
could be anticompetitive. While the revised HSR filing threshold
eliminated the reporting requirement for smaller mergers, it did not
change the substantive standard of legality under section 7 of the
Clayton Act.\29\ The agency will be alert to smaller mergers that could
harm consumers by substantially lessening competition. Since the fiscal
year began, the FTC has opened investigations into mergers that were
not reportable under the HSR Act, and has issued an administrative
complaint challenging one merger that fell below the amended HSR
threshold.\30\
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\29\ 15 U.S.C. Sec. 18.
\30\ MSC.Software Corp., No. D-9299 (complaint issued Oct. 10,
2001) (alleging that a dominant supplier of a popular type of advanced
computer-aided engineering software acquired its only two competitors).
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Litigation to challenge anticompetitive mergers requires
significant resources. While the FTC resolves most merger cases through
settlement (this fiscal year we have obtained settlements of ten
administrative or court complaints),\31\ it is sometimes necessary to
litigate challenges to certain proposed or consummated mergers. Since
the fiscal year began, the Commission has authorized the staff to file
complaints in five merger cases, three of which are in litigation \32\
and two of which have settled.\33\ The FTC must have the resources and
expertise needed to support effective challenges in complex and high-
stakes cases to protect consumers from higher prices, limited choices,
and thwarted innovation.
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\31\ This fiscal year, the Commission has issued final consent
orders in the following eight merger cases: Ina-Holding Schaeffler KG/
FAG Kugelgischer Georg Schafer AG, No. C-4033 (Feb. 15, 2002); Nestle
Holdings, Inc./Ralston Purina Co., No. C-4028 (Feb. 8, 2002); Diageo
p.l.c./Vivendi Universal S.A., No. C-4032, (Feb. 8, 2002); Chevron
Corp./Texaco Inc., No. C-4023 (Jan. 2, 2002); Valero Energy Corp./
Ultramar Diamond Shamrock Corp., No. C-4031 (Feb. 19, 2002);
Koninklijke Ahold N.V./Bruno's Supermarkets, Inc., No. C-4027 (Jan. 16,
2002); Metso Oyj/Svedala Industri AB, No. C-4024 (Oct. 23, 2001);
Airgas, No. C-4029 (Dec. 18, 2001). On March 7, 2002, the Commission
accepted subject to public comment a settlement in the matter of
Deutsche Gelatine-Fabriken Stoess AG/Goodman Fielder Ltd., File No.
011-0117. In addition, the Commission obtained a consent decree in the
matter of Hearst's acquisition of J.B.Laughery. FTC v. The Hearst
Trust, No. 1:01CV00734 (D.D.C., Dec. 18, 2001).
\32\ MSC. Software, supra n. 30; Chicago Bridge Iron Co., Inc.,
Dkt. No. 9300 (complaint issued Oct. 25, 2001); Libbey, Inc./Newell
Rubbermaid, Inc., No. 1:02CV00060 (D.D.C., complaint filed Jan. 14,
2002).
\33\ Diageo/Vivendi and Deutsche Gelatine-Fabriken Stoess/Goodman
Fielder, supra n. 31.
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Streamlining the merger review process
The FTC has been working with the Antitrust Division at the
Department of Justice to establish procedures to make the HSR merger
review process more efficient and transparent. The FTC has focused on
several areas for streamlining, including:
--Electronic Premerger Filing.--As part of an overall movement to
make government more accessible electronically, the FTC,
working with DOJ, will accelerate its efforts in fiscal year
2003 to develop an electronic system for filing HSR premerger
notifications. E-filing will reduce filing burdens for
businesses and government and create a valuable database of
information on merger transactions to inform future policy
deliberations.
--Burden Reduction in Investigations.--The agencies have taken steps
to reduce the burden in document productions responsive to
requests for additional information under the HSR Act (``second
requests''). In response to legislation amending the HSR
Act,\34\ the FTC amended its rules of practice to incorporate
new procedures. The rule requires Bureau of Competition staff
to schedule conferences to discuss the scope of a second
request with the parties and also establishes a procedure for
the General Counsel to review the request and rule promptly on
any remaining unresolved issues.\35\ Measures adopted include a
process for seeking modifications or clarifications of second
requests, and expedited senior-level internal review of
disagreements between merging parties and agency staff;
streamlined internal procedures to eliminate unnecessary
burdens and undue delays; and implementation of a systematic
management status check on the progress of negotiations on
second request modifications. In addition, we recently have
announced that agency staff will participate in a series of
discussions with the bar and other interested parties to elicit
suggestions on further improvements to the second request
process, and to provide information on our investigation
procedures.
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\34\ 15 U.S.C. Sec. 18a, as amended, Pub. L. No. 106-553; 114 Stat.
2762 (2000).
\35\ 16 CFR Sec. 2.20. To date, two appeals have been filed under
this procedure; both have been completed.
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--Improved FTC/DOJ Clearance Process.--The achievement of an
efficient division of work between the two federal antitrust
enforcement agencies has occupied the energies of the
Department of Justice and the FTC since the Commission began
operating in March 1915. For many years, the two agencies have
allocated matters mainly on the basis of their relative
expertise. For the most part, this arrangement has worked
smoothly. In the last decade, however, the convergence of
industries increasingly has blurred the lines between the
agencies' historical areas of responsibility. Consequently,
clearance disputes have become both more common and, in the
case of major clearance disputes, more contentious.\36\ On
average, from 1982 through 1989, 10 clearance disputes arose
each year. In contrast, between 1990 and 2001, the annual
number of contested matters has equaled or exceeded 45, and in
three years exceeded 100. On average, 83 clearance disputes
occurred annually during this period.
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\36\ Perhaps the most notable example of industry convergence and
resulting clearance disputes concerns electricity and natural gas.
Historically, electricity matters have been handled by the DOJ, and
natural gas matters have been handled by the FTC. Convergence of these
industries has led to contentious clearance disputes. Each merger of an
electricity company and a natural gas company has been hotly contested
by the agencies. Disputes over these convergence mergers have accounted
for approximately 10 percent of all clearance disputes since the
beginning of fiscal year 2000. Moreover, to resolve clearance disputes
generally, it became increasingly necessary to employ conditions--such
as Chairman Pitofsky's agreement that, in return for receiving
clearance to investigate the matter, the FTC would not cite its
expertise in AOL/Time Warner as a source of expertise in future
clearance disputes.
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--These disputes result in significant delays. Delays averaging three
weeks occurred in 24 percent of the matters on which either
agency sought clearance from the beginning of fiscal year 2000
through January 28, 2002. Cumulatively, these investigations
were delayed by 4,521 business days--more than 17 years. During
this time, neither agency could investigate potentially serious
allegations of illegal behavior.\37\ Recognizing the severity
of the problem, FTC Chairman Robert Pitofsky and Assistant
Attorney General Joel Klein attempted to negotiate a global
clearance agreement for over a year, but could not reach
consensus.
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\37\ The number of disputes has decreased somewhat recently,
particularly since Chairman Muris and Charles James assumed office last
summer and resolved a clearance dispute that had lasted for more than a
year. In effect, they declared a cease-fire in the clearance war while
attempting to negotiate a peaceful settlement. In any event, the
Commission believes that its scarce resources should be spent on
investigating allegations of misconduct, and in developing appropriate
expertise, rather than in fighting with the Antitrust Division.
Moreover, the recent decline in clearance disputes may reflect the
recent decline in merger filings. Changing market conditions could lead
to an increase in merger filings and, consequently, an increase in
clearance disputes.
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--Consistent with his authority,\38\ Chairman Muris negotiated a new
clearance agreement with Assistant Attorney General for
Antitrust Charles James.\39\ The new agreement will allocate
matters between the two agencies more efficiently, rationally,
and predictably. This agreement allocates primary areas of
responsibility for antitrust enforcement on an industry-wide
basis, and implements expedited clearance dispute resolution
procedures. The new agreement will enhance the quality of
antitrust enforcement, and will benefit businesses, consumers,
and taxpayers.\40\ Moreover, an agreement that allocates
primary areas of enforcement responsibility enjoys overwhelming
support within the antitrust and business communities.\41\ The
clearance agreement requires that the agency heads review the
allocation of industries in four years to determine whether the
goal of efficiently and rationally allocating competition
matters is being achieved.
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\38\ See Statement of Commissioners Orson Swindle and Thomas B.
Leary on the Memorandum of Agreement Concerning Clearance Procedures
for Investigations (Jan. 18, 2002) (stating that ``We are not troubled
by the process by which the Agreement was fashioned. Not only was
negotiation of the Agreement with Assistant Attorney General James the
prerogative of Chairman Muris; it was also simply the most effective
way to get the job done. Historically, the agencies employed a
procedure for dealing with clearance issues that was based on a case-
by-case approach, with the Chairman and the Assistant Attorney General
making the ultimate decision when necessary (with little or no
involvement by other Commissioners). This long course of interagency
discussion and negotiation then established `precedent' for allocating
antitrust review responsibilities between the agencies--a kind of
`private law' for the kinds of matters that the Agreement was designed
to describe publicly. It is proper that the agency heads were the ones
to devise a new arrangement that would have injected greater efficiency
and clarity into the allocating system--a system in which the Chairman,
and not other Commissioners, will continue to have operational
responsibilities.''), available at <>.
\39\ See Memorandum of Agreement Between the Federal Trade
Commission and the Antitrust Division of the United States Department
of Justice Concerning Clearance Procedures for Investigations,
available at <>.
\40\ See Statement of Commissioners Orson Swindle and Thomas B.
Leary on the Memorandum of Agreement Concerning Clearance Procedures
for Investigations (Jan. 18, 2002), supra n.38; ``FTC Releases
Antitrust Clearance Process Documents,'' FTC Press Release (Feb. 27,
2002), available at <>;
and ``FTC and DOJ Announce New Clearance Procedures for Antitrust
Matters,'' FTC Press Release (Mar. 5, 2002), available at <>.
\41\ See Letter from Robert Pitofsky, et al. to Timothy J. Muris
and Charles A. James (Feb. 4, 2002), available at <>; Letter from Roxane C. Busey,
Chair, Section of Antitrust Law, American Bar Association, to Timothy
J. Muris and Charles A. James (Jan. 23, 2002), available at <>; and Letter from the
Business Roundtable, the National Association of Manufacturers, and the
U.S. Chamber of Commerce to Timothy J. Muris (Feb. 25, 2002), available
at <>. Of course,
most of the signatories to these three letters did not possess detailed
knowledge of the recent, industry-specific expertise of the FTC and the
DOJ. Accordingly, they could not, and did not, opine on specific
allocations between the FTC and the DOJ. Some consumer groups, however,
have expressed concerns about the agreement. See Jeffrey Chester,
Center for Digital Democracy, ``FTC-DOJ Clearance Agreement Will Hurt
Consumers,'' available at <>; Letter from Andrew Jay Schwartzman, President and
CEO, Media Access Project, to Senator Ernest F. Hollings (Jan. 22,
2002), available at <>.
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--In response to concerns about the agreement expressed by the
Chairman of this Subcommittee, the agencies have provided
information on clearance procedures, the historical allocation
of matters, and clearance delays. We will, of course, provide
any additional information that the Subcommittee desires.
Nonmerger enforcement
The FTC will continue the trend, begun last year, to devote more
resources to nonmerger enforcement. In fiscal year 2001, the agency
opened 56 nonmerger investigations, more than double the number of such
investigations begun in the previous year, when deadline-sensitive HSR
merger investigations siphoned away resources allocated for nonmerger
work. Thus far in fiscal year 2002, the agency has opened 15 nonmerger
investigations. The major focus of our nonmerger work will concern
activities among competitors, reflecting the broad consensus in
antitrust policy that horizontal arrangements that fix prices or
restrict output are the ones most likely to harm consumers.
Efforts in this area are producing benefits for consumers. Just
last month, the FTC settled litigation against American Home Products
(AHP) to resolve charges that Schering-Plough Corporation (Schering)
illegally agreed to pay AHP millions of dollars in exchange for AHP's
agreement to delay introduction of a generic potassium chloride
supplement, which would have competed with Schering's branded K-Dur 20,
used to treat patients with low potassium, which can lead to cardiac
problems.\42\ In another recent matter, the agency achieved a
settlement with one defendant in a price-fixing case last fiscal year,
and is presently in litigation with the other defendant.\43\
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\42\ American Home Products Corporation, Dkt. No. 9297 (consent
agreement accepted subject to public comment, Feb. 19, 2002).
Complaints against Schering and Upsher-Smith are currently before an
FTC administrative law judge. Schering-Plough Corporation, Upsher-Smith
Laboratories, Inc., Dkt. No. 9297 (complaints filed Apr. 2, 2001).
\43\ In September of 2001, the FTC entered into a consent agreement
with Warner Communications to resolve charges that Warner and Polygram
illegally agreed to fix prices for audio and video products featuring
``The Three Tenors.'' Warner Communications, Inc., No. C-4025 (Sept.
17, 2001) (consent order). The case against Vivendi Universal S.A., the
successor corporation to Polygram, is currently before an FTC
administrative law judge, Dkt. No. 9298.
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The settlement with AHP marks the third instance in which the FTC
has reached a settlement with generic or branded drug manufacturers
regarding alleged anticompetitive conduct designed to delay generic
entry.\44\ A major portion of the American health care dollar purchases
prescription drugs, and we will continue our efforts to prevent firms
from engaging in anticompetitive practices that raise drug prices. In
particular, we will strive to ensure that anticompetitive practices do
not delay market entry of generic drugs, which cost less than name-
brand pharmaceuticals. We will seek to ensure that protections provided
to drug innovators under the Hatch-Waxman Act are not abused to the
detriment of consumers. As you know, Hatch-Waxman was designed to
increase the flow of new pharmaceuticals into the marketplace by
carefully balancing two public policy objectives: encouraging vigorous
competition from generic drugs, while maintaining incentives to invest
in the development of innovator drugs.
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\44\ The other two cases are Abbott/Geneva (Abbott Laboratories,
No. C-3945 (May 22, 2000), and Geneva Pharmaceuticals, Inc., No. C-3946
(May 22, 2000) (consent orders)) and Hoechst Marion Roussel, Inc./Andrx
Corp., No. C-9293 (May 11, 2001) (consent order).
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In addition to agreements between makers of brand-name drugs and
makers of generics, under which the generic entrant is essentially paid
not to compete, the FTC continues to investigate unilateral conduct by
branded manufacturers designed to forestall competition. For example,
some branded manufacturers list additional patents in the FDA's
``Orange Book,'' often shortly before their original patents expire,
which sets the stage for launching patent infringement suits against
generic drug firms poised to enter the market. Under Hatch-Waxman, such
litigation triggers an automatic 30-month stay on FDA approval of the
generic drug. If the listings do not meet statutory and regulatory
requirements, their inclusion in the Orange Book may constitute
unlawful restraints on competition.\45\
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\45\ The FTC recently filed an amicus brief in the In Re Buspirone
Patent Litigation that addresses some of these issues. The Buspirone
litigation concerns whether Bristol-Myers Squibb Company (``BMS'')
violated Section 2 of the Sherman Act by making false filings with the
U.S. Food and Drug Administration that caused BMS's newly issued patent
to be wrongfully listed in the FDA's Orange Book in order to block
generic competition to its branded drug, BuSpar. BMS argued that a
claim based on its allegedly improper filing of a patent in the FDA's
Orange Book could not proceed because its actions were entitled to
immunity under the Noerr-Pennington doctrine. The Noerr doctrine
immunizes genuine petitioning activity directed at persuading
government bodies to adopt a particular course of action. In its brief,
the Commission argued that Orange Book filings, even when made
properly, are decidedly not ``petitions.'' Rather, they are mechanical,
informational filings that do not trigger any exercise of legal or
discretionary judgment by the FDA and do not call for any agency
decision-making. FDA's role in receiving and publishing Orange Book
information is simply ministerial. As such, Orange Book filings are
akin to tariff filings, which have consistently been held not to
constitute immunized Noerr petitioning. The district court recently
issued a decision on a motion to dismiss in this case that accepted the
arguments made by the Commission and squarely held that Orange Book
filings are not petitioning under Noerr. In Re Buspirone Patent
Litigation, MDL Dkt. No. 1410, 2002 U.S. Dist. LEXIS 2625, (S.D.N.Y.,
motion to dismiss granted in part and denied in part, Feb. 14, 2002).
The Commission's amicus brief is available at <>.
---------------------------------------------------------------------------
To uncover whether strategies such as these are isolated examples
or represent patterns of anticompetitive conduct, the Commission has
undertaken a study, as requested by Representative Henry Waxman, to
provide a more complete picture of how generic competition has
developed under the Hatch-Waxman Act. The Commission has issued nearly
100 orders to innovator and generic drug companies to obtain documents
related to the issues identified through investigations and to identify
any other anticompetitive strategies that may exploit certain Hatch-
Waxman provisions. The facts obtained through this study may provide a
basis for policy recommendations in this area.
Targeting resources for consumer impact
In both its merger and nonmerger programs, the FTC will continue to
focus competition resources in sectors of the economy that have a
substantial impact on consumers' wallets. Because of the important cost
implications for consumers, one critical area is health care. Health
related products and services account for over 13 percent of gross
domestic product, up from 10.9 percent in 1988.\46\ In addition to
preserving opportunities for generic drugs to compete, the FTC's
enforcement agenda also includes agreements among doctors and other
health professionals to restrict competition, codes of conduct
containing anticompetitive provisions, and mergers of hospitals and
suppliers of health care products.
---------------------------------------------------------------------------
\46\ Katharine Levit et al., ``Inflation Spurs Health Spending in
2000,'' 21 Health Affairs 172 (Jan-Feb 2002).
---------------------------------------------------------------------------
Another critical sector is energy. Representing a significant
portion of the total U.S. economic output, energy is a vital input to
virtually all parts of the economy. The FTC has garnered considerable
experience with energy issues over the past two decades, investigating
numerous oil mergers and bringing cases in appropriate instances.
Recently, the FTC obtained two significant settlements to prevent loss
of competition resulting from the Chevron/Texaco \47\ and Valero/
Ultramar Diamond \48\ mergers.\49\ To understand current issues
involving energy markets, the agency has recently announced that we
will hold a second public conference to examine factors that affect
prices of refined petroleum products in the United States. The agency
held a preliminary conference on the subject last fiscal year. In
addition, the FTC will continue to investigate pricing behavior, where
appropriate, in energy markets. In just the past year, we investigated
various price spikes or pricing anomalies in petroleum products. Staff
also investigated the gasoline price spikes in the aftermath of the
September 11th terrorist attacks. Thus far, we have found no evidence
of collusive activity in violation of the antitrust laws. Commission
investigations nonetheless both have a deterrent effect on wrongdoing
and provide the basis for action when anticompetitive practices have
occurred.
---------------------------------------------------------------------------
\47\ Chevron Corp./Texaco Inc., No. C-4023 (Jan. 2, 2002) (consent
order).
\48\ Valero Energy Corp./Ultramar Diamond Shamrock Corp., No. C-
4031 (Feb. 19, 2002) (consent order).
\49\ Additionally, in recent years, the agency has achieved
significant settlements, requiring divestitures of oil fields,
refineries, pipelines, and gas stations to prevent loss of competition
resulting from the Exxon/Mobil and BP/ARCO mergers. Exxon Corp./Mobil
Corp., No. C-3907 (January 26, 2001) (consent order) and BP Amoco
p.l.c./Atlantic Richfield Co., No. C-3938 (Aug. 29. 2000) (consent
order).
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Yet another sector of the economy involves high tech industries.
Our economy increasingly has become more knowledge-based; for some
companies, patent portfolios represent far more valuable assets than
manufacturing or other physical facilities. Thus, an increasing number
of the FTC's competition matters require the application of antitrust
law to conduct relating to intellectual property. Both antitrust and
intellectual property law share the common purposes of promoting
innovation and enhancing consumer welfare. On occasion, however, there
have been tensions in how to manage the intersection between the
doctrines, as well as questions about how best to spur innovation
through competition and intellectual property law and policy. The FTC
and DOJ currently are holding a series of hearings on competition and
intellectual property law and policy to help understand the interplay
between intellectual property and antitrust law.\50\ Issues to be
addressed in the hearings include standard-setting, cross-licensing and
patent pools, unilateral refusals to deal, proliferation of patents,
and the changing scope of patents. In addition to the hearings, we
continue to pursue antitrust investigations involving issues concerning
intellectual property.
---------------------------------------------------------------------------
\50\ See ``FTC/DOJ Hearings to Highlight Further Business and
Economic Perspectives on Competition and Intellectual Property
Policy,'' FTC Press Release (Mar. 12, 2002), available at <>; ``FTC/DOJ Hearings to
Highlight Business and Economic Perspectives on Competition and
Intellectual Property Policy,'' FTC Press Release (Feb. 15, 2002), at
<>; ``FTC/DOJ Hearings to
Focus on the Implications of Competition and Patent Law and Policy,''
FTC Press Release (Jan. 30, 2002), at <>; ``Muris Announces Plans for Intellectual Property
Hearings,'' FTC Press Release (Nov. 15, 2001), at <>.
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Outreach efforts
The FTC will continue competition outreach to various
constituencies during fiscal year 2003. Among these efforts, the agency
strives to increase understanding and awareness of important emerging
industries and issues, such as business-to-business (B2B) and business-
to-consumer (B2C) electronic commerce. The FTC also increases awareness
of antitrust law through guidance to the business community; outreach
efforts to Federal, state and local agencies, business groups, and
consumers; the development and publication of antitrust guidelines and
policy statements; speeches; and publications. The agency will assess
the need for additional workshops, and whether its ongoing outreach
efforts effectively target audiences and address critical issues in the
marketplace.
needed resources--fiscal year 2003
To accomplish our mission in fiscal year 2003, the FTC requests
$176,509,000 and 1,074 FTE. The increase of $20,527,000 over fiscal
year 2002 includes:
--$7,352,000 for base expenses (including pay raises, non-pay
inflation, increased rental of space, and increased Consumer
Response Center contract costs);
--$5,000,000 for expenses related to generating a National Do-Not-
Call List to protect consumers' privacy;
--$3,265,000 for systems support and the increased physical security
for staff; and
--$4,910,000 to comply with proposed legislation (to require agencies
to pay the full Government share of accruing costs of
retirement for current CSRS employees and post-retirement
health benefits).
The FTC's fiscal year 2003 budget request is calculated based on
using two sources of offsetting collections: an estimated $173,509,000
from HSR Premerger Filing Fees and an estimated $3,000,000 from a new
Do-Not-Call fee. The HSR fee estimate is based on a three-tiered filing
rate structure mandated by Congress, with an effective date of February
1, 2001. The new Do-Not-Call fee would be assessed, collected, and used
to cover the costs of developing, implementing, and maintaining a
national database of telephone numbers of consumers who choose not to
receive telephone solicitations from telemarketers. This new fee
structure will be subject to notice and comment as part of a rulemaking
process.
Mr. Chairman, the FTC appreciates your past support and that of
this Subcommittee. I would be happy to answer any questions that you
and other Members may have about the FTC's budget request and programs.
Senator Hollings. Mr. Chairman, let us, like we have in the
law, what we call a demurrer, where we assume everything you
say is very true, you still do not state a cause of action.
Wherein do you think you get the authority to change the
authorizing statute?
Mr. Muris. Mr. Chairman, I do not believe we have changed
any authority. The----
Senator Hollings. Oh, yes, you have. You just testified to
it.
Mr. Muris. Well, but----
Senator Hollings. You said, look, we have to check one with
the other and we are going to stop all that checking one with
the other and so we are just going to have an understanding
that we are not going to have any check on it and the Justice
Department will have the check.
Mr. Muris. No, sir, I do not think that is what we have
done. What we have done is to explain that the clearance
process, which has gone on for decades, has been based on
experience. We have taken that experience and, for the first
time, told the world this is what the experience means. The
clearance agreement specifies which cases will be done by DOJ
and which will be done by FTC.
The DOJ has the experience in media. Even if we had never
entered the agreement, the DOJ would still do the media cases.
Under the clearance process we have to clear agreements with
each other. Under the law only one agency can investigate a
merger. We must have a process to make that determination.
Senator Hollings. Then we can change that law, but we
cannot abandon the public interest envisioned in the Federal
Trade Commission. You have the authority over anticompetitive,
deceptive, unfair trade practices, protecting consumers, public
interest for general authority with respect to protecting the
public interest, not necessarily the violation of an antitrust
law. It could be anticompetitive, it could be deceptive, it
could be unfair, but not in violation of antitrust, and so you
have got to look at it.
You are right, and that was the one point being checked
out. We would have more confidence in what you have just said.
On the one hand, we see here that the release with respect to
the American Bar Association, speaking at the American Bar
Association conference in Washington, Jones, Day, Reavis, and
Pogue partner Joe Simms said that the FTC pushed for merger
conditions that had nothing to do with any real antitrust
violations. He did not talk about just one person to review and
investigate it, not Joe Simms. He said, look, I am pushing for
merger conditions that had nothing to do with any real
antitrust violations.
He also contended that the agency based its open access and
interactive TV conditions on almost entirely unsupported
theoretical claims that the new AOL-Time Warner colossus
already controlled high-speed data, ITV and instant messaging
markets and would move quickly to crush the competition in
them. And so he sat about changing it and we have a headline in
the Wall Street Journal, ``Lawyer's Ties Questioned in AOL
Accord,'' nothing about this one agency investigating, mind
you.
I quote, ``An attorney general representing Time Warner
helped write a controversial agreement between two agencies,
dividing antitrust enforcement that steers future AOL merger
reviews to the Justice Department Antitrust Division headed by
one of his former law partners. Joe Simms, an antitrust expert
and partner in Jones, Day, Reavis, and Pogue here was solicited
by the Federal Trade Commission and Justice Department on how
the two agencies should divide responsibility.'' I understand
James is the man doing the soliciting, his former law partner--
``how the two agencies should divide responsibility for
antitrust reviews.'' Mr. Simms had represented AOL against the
Federal Trade Commission in its 2000 review of the merger with
Time Warner and continues to represent the company.
That is just outrageous. We do not talk about one reviewing
and everything. I have been up here with the Federal Trade
Commission for 35 years, never heard of what you just related
in your testimony. We know what happened. I can tell you here
and now, Mr. Chairman, that we know how to act. I studied my
humility under Mendell Rivers down there and when he was over
there in charge of Armed Services.
So it is not authorized by law. If you think the problem is
as you have stated it, the proper thing to do is not to go to a
losing attorney with his former law partner and rewrite
memorandums of understanding. Even if they had merit, we would
not believe it. That is totally improper.
What we will have to do is, by gosh, just come here and
just cut that budget around so that we get their attention,
whether we do away with the political positions, repeal 605,
reprogramming authority to your Federal Trade Commission, or
actually I am studying to see whether or not legally we can cut
the pay. Sometimes when you cut pay, you get their final
attention. But this idea, this administration has run amuck. We
come up here, and to take the COPS program that is working and
put it over to a relief agency, FEMA. We take the sea grant
that you have just heard about and put it over into research
that has nothing to do with education and so forth and the
culture that we have developed there.
We take the Border Patrol and everything else and how that
is going to be jumbled up, I do not know, but the IMF has got a
problem with the Immigration and Naturalization Service, so we
have that lined up. Customs is working well. The Border Patrol
is working well. But they are either going to bring Customs to
Justice or put it all over to Customs, and they do all of this
without even talking to the people who have been working in
these disciplines, specifically you in the Federal Trade
Commission. You just got there. We have been there a long, long
time, and we have got to authorize it in committee and no one
has mentioned any of this problem to us at the authorizing
committee level, period.
If you care to comment, we would be delighted to hear it.
Mr. Muris. Yes, sir, Mr. Chairman. Mr. Chairman, I first
started as a staff attorney at the Federal Trade Commission 28
years ago. This is the fourth job I have had at the Federal
Trade Commission. I have watched the deterioration of the
clearance process to where, when I arrived, we had a matter
that had been going on for over 1 year. I probably spent 2 full
days, not in doing the public's business, but in trying to
fight with the Antitrust Division over which one of us would do
the public's business. I think it is better if we do not fight
and if we investigate anticompetitive conduct. But let me
respond to a few of your specific comments.
There is nothing that prevents us, to the extent we have
jurisdiction, and there are some areas where jurisdiction is
weak, from investigating deceptive or unfair practices beyond
the antitrust laws of any media company. The law that was
involved in AOL-Time Warner is Section 7 of the Clayton Act. It
is an antitrust law. Both agencies apply the exact same law and
the exact same standard. I think Joe Sims was having sour
grapes because he did not like Bob Pitofsky's interpretation of
Section 7. But the Commission did not say that it was applying
anything other than Section 7. And Section 7(a), which is an
accompaniment to Section 7, requires that only one agency
engage in these detailed investigations of mergers. It is the
law.
Two more points, one on Joe Sims. If Joe Sims was really
interested in his pocketbook, he would have recommended that
matters be sent to the FTC, not to the DOJ, because his former
partner is recused from matters for 2 years. I was an ``of
counsel'' to a law firm, and I know that law firm has lost
business before the FTC because of my recusal.
Finally, I do not understand how we could have violated
reprogramming in this media matter area because with or without
this agreement, the Department of Justice has much more
experience than we do, and would do media mergers.
Senator Hollings. Most respectfully, you have had 28 years,
I have had 35 years, and perhaps we ought to assign you to the
CIA because you have kept what you have pointed out top secret.
I am also chairman of the authorizing committee and never heard
what you just stated. So the procedure in Government is for
this particular Appropriations Committee to appropriate in
accordance with authority, not memorandums of understanding,
and with that in mind, we will act accordingly, I can tell you
that, if you folks go forward with a so-called memorandum of
understanding.
Senator Reed.
Senator Reed. Thank you, Mr. Chairman, and thank you,
Commissioner. As we have discussed previously, I have also
concerns about the allocation of these different functions. You
return again and again to the issue of experience, and I ask
these questions not rhetorically but for information.
It seems to me that Mr. Pitofsky's sort of aside that he
would not count the experience of the AOL-Time Warner merger is
irrelevant. In fact, the FTC was involved in that, probably one
of the more complicated and one of the largest merger
applications in the media companies, embracing not just one
media but several, the Internet, television, you name it, they
have got it there, I think. So I think if the benchmark is
experience, certainly FTC is not without experience.
And just again, for information, the six other cases that
you referred to the DOJ, either for the record or now, could
you tell us, what were those cases that the DOJ has on their
side for experience?
Mr. Muris. Well, there is AT&T's acquisition of Media One,
AT&T's acquisition of TCI. There is the Primestar acquisition
of DBS and MCI. They are currently reviewing Echostar-DirecTV.
They are also looking at another major matter involving the
same sets of issues.
Part of our problem, Senator, is a lot of these issues
arrive at the intersection of telephones and cable. They
involve issues about broadband access and how to regulate that.
We do not have jurisdiction over common carriers at the FTC. I
think we should have jurisdiction. I have recommended that. But
because we do not have jurisdiction over common carriers, the
Justice Department Antitrust Division for decades has done
these sorts of cases. It was the Antitrust Division that broke
up AT&T. If you look just on a simple experience basis, they
have done much more.
We do have experience, but because the law requires the two
of us to agree somehow, I am in the position of all past
chairmen and heads of the Antitrust Division of honoring past
promises. I agree that Chairman Pitofsky's promise does not
seem to make a lot of sense, but the process had become so
confrontational and fractious that those were the sorts of
promises needed to keep the system going.
No chairman who I have known would violate a promise like
that of his predecessor, and I feel that I cannot violate it,
either. But even if I did, the Antitrust Division has a lot
more experience.
Obviously, if the Congress wants to change the way media
and telecom have been handled and give it to the FTC, we would
love to be able to do that. But we have two antitrust agencies
enforcing one statute, in this case, in terms of mergers, and
because the law says only one of us can do it, we have to come
to some sort of an agreement.
Senator Reed. I will defer to the chairman in his
understanding of the law and, indeed, the debate between the
two of you. But I would note that, apparently, there are some
other matters that you have looked into under mergers, Time
Warner-Bell South 2001, the preliminary Section 7
investigation. Is that something that FTC pursued?
Mr. Muris. The rules for clearance are that only
substantial investigations count. The FTC has only two
substantial investigations. One was a very small deal involving
so-called cable overbuild, where the Commission had a sensible
case. It was small. It brought relief to several thousand cable
subscribers. Preliminary investigations under the 1993
clearance agreement are not significant and do not count.
Senator Reed. It just, again, it seems to me that if there
is statutory interpretation, that I will not opine on because I
do not have the expertise, but if the touchstone is experience,
I think, one, the FTC has it. Two, you can get it if you need
it. So I do not know how you resolve this, but this issue
continues to be of concern to me.
GENERIC DRUG INDUSTRY
Let me turn to an unrelated point, and that is that the FTC
is currently examining the competition of the generic drug
industry under the Hatch-Waxman Act.
Mr. Muris. Yes.
Senator Reed. In the pilot study, you filed a citizen's
petition with the FDA seeking guidance on the types of patents
that can and cannot be appropriately listed in their so-called
Orange Book. Could you give us an idea of the status of that
investigation and have you received any response back from the
FTC?
Mr. Muris. We have been in discussions with the FDA,
Senator. The FDA held a hearing, actually, on generic questions
of Hatch-Waxman. I quite frankly think that no person who has
been at the FTC is probably going to be more aggressive in
pursuing those Orange Book investigations than we will be under
my chairmanship. I think there is an enormous stake here for
consumers. We put a lot of resources into it. We had great
success with our BuSpar brief, which involved this issue, and
we are hoping that the FDA, quite frankly, rules in that
citizens' petition and we have been encouraging them to do so.
TELEMARKETING
Senator Reed. I commend you and the FTC for your proposal
for the ``no call'' list, if you will, for telemarketing
salespeople. That is one of the most annoying practices. If I
took a poll in Rhode Island, it might be the only issue where
you get 100 percent agreement.
I would just ask whether you are prepared for the demand. I
noted today in the Washington Post there was an article, ``FTC
Anti-Telemarketing List Would Face Heavy Demand Based on the
Experience in Missouri and Other Jurisdictions.'' Do you have
the resources and the infrastructure to, I think, deal with
this tsunami that is coming when people discover they can get
their names off these lists?
Mr. Muris. That is an excellent question, Senator, and we
are at the mercy of the committee. We will need more money to
do this. We can charge a fee for the lists, but we cannot spend
the money unless the Congress allows us to spend the money. So
we, in fact, have asked for that additional authority from you
and we hope that you give it to us.
Senator Reed. But that will not delay the imposition of
this procedure?
Mr. Muris. No. We are still in a rulemaking procedure. We
obviously have not made final decisions yet, nor have I, but
under the timetable that we are on, if Congress passes, and I
assume because this is an election year you all will pass
appropriations bills sometime by early in the next fiscal year,
and that will give us enough time.
Senator Reed. Thank you, Commissioner. Thank you, Mr.
Chairman.
Senator Hollings. Thank you very much.
prepared statements
I would like to include in the record written statements
submitted by FTC Commissioner Mozelle W. Thompson and FTC
Commissioner Sheila F. Anthony.
[The statements follow:]
Prepared Statement of Mozelle W. Thompson, Commissioner, Federal Trade
Commission
Today, the Commission has voted to approve testimony before the
Senate Commerce, Justice, State and the Judiciary Subcommittee of the
Appropriations Committee. Although I concur with most of this
testimony, I am compelled to dissent from the discussion of the
recently executed agreement between the Assistant Attorney General for
Antitrust Charles James and Chairman Timothy Muris. I have previously
expressed my concern about the Agreement which, among other things,
seeks to allocate to each agency exclusive jurisdiction over certain
merger reviews and other antitrust investigations.\1\ I am unable to
concur because of those concerns and my concern that the testimony's
description of the facts and circumstances supporting the Agreement is
misleading in several ways.
---------------------------------------------------------------------------
\1\ See Statements of Mozelle W. Thompson, January 18, 2002 and
March 5, 2002.
---------------------------------------------------------------------------
First, the testimony overstates the necessity for the Agreement by
claiming that ``major clearance disputes have become both more common
and more contentious.'' \2\ While I continue to support an inter-agency
agreement that would streamline our clearance process, I believe that
our clearance history shows that the total number of clearance contests
between the two agencies has actually decreased 28 percent from 81 to
65 to 58 beginning in fiscal year 1999 and continuing through 2000 and
2001.\3\ And more significantly, the agencies have improved the speed
of granting clearances. This fact is demonstrated by the increased
percentage of clearance requests cleared in 2001 compared to 1999 for
three different time periods: 21 percent (in 1999) improved to 41
percent (in 2001) for investigation requests cleared within 6 business
days; 53 percent improved to 63 percent for clearance resolved within 9
business days; and 90 percent improved to 94 percent for clearance
resolved within 15 business days.
---------------------------------------------------------------------------
\2\ Testimony at pages 13-14.
\3\ As we approach the halfway point in fiscal year 2002, the
agencies have contested clearance for only 18 matters.
---------------------------------------------------------------------------
Perhaps more impressive than these facts is the fact that between
1995 and 2001 only a handful--one percent--of clearance requests were
not resolved within 20 business days. Accordingly, while there may be
room for clearance process improvement, the testimony may misrepresent
the nature of clearance contests because the simple fact is that the
antitrust agencies have already improved the clearance process
substantially over recent years. Morever, it is unclear whether
reallocating industries from one agency to the other is necessary to
achieve greater efficiencies.\4\
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\4\ Interestingly, the clearance testimony also implies that the
convergence of certain technology and economic sectors has
significantly increased clearance disputes and that allocating
industries is needed to improve the clearance process. There is no
evidence to show that drawing new industry lines will avoid future
disputes when a product involved in a merger review or other
investigation falls between any two assigned industries.
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Additionally, the Commission's clearance testimony omits important
information about the process that led to the creation of the
Agreement. For example, the testimony cites the January 18, 2002
Statement of Commissioners Orson Swindle and Thomas B. Leary for the
proposition that the Chairman has authority to unilaterally effect
administrative changes. But the testimony fails to note that this
Commission has never voted to deem clearance matters administrative,\5\
nor has it voted to approve the Agreement or the process which led to
its creation--including the empaneling of a non-public advisory panel
consisting of private antitrust attorneys. Similarly, the testimony
cites letters from the ABA Antitrust Section, former agency officials,
and the business community as supporting the Agreement. However, the
testimony fails to state that while the authors of those letters
supported improved clearance procedures, they did not approve the
substance of the James/Muris Agreement or the process by which it was
reached.\6\
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\5\ I doubt whether altering the Commission's concurrent
enforcement responsibilities under Section 5 of the Federal Trade
Commission Act or affecting the use of our exclusive powers under
Section 6 of the Act, can be characterized as merely administrative.
Nor would I concur that the negotiation of the Agreement is an
appropriate subject for the ``private lawmaking'' it embodies. Also, I
have not been provided with any information that would enable me to
measure the budgetary ramifications of altering the Commission's
responsibilities under the Agreement.
\6\ See, e.g., Letter to Charles A. James and Timothy J. Muris from
Roxane C. Busey, Chair, Section of Antitrust Law (January 23, 2002)
(``The Section supports the concept of such an agreement--without
commenting on the specifics of the particular allocation agreement,
which we have not seen, or the particular process by which it was
reached.''); Letter to Charles A. James and Timothy J. Muris from
Robert Pitofsky, et al. (February 4, 2002) (A letter drafted by private
attorney Joe Sims for signature by former agency officials states:
``[The signatories take] no position on whether the assignments and
reassignments in the draft proposal are appropriate . . . .'' See also
Letter to Timothy Muris from The Business Roundtable, the National
Association of Manufacturers, and the U.S. Chamber of Commerce
(February 25, 2002) (Letter from business groups did not endorse the
Agreement process and stated that the business groups believed it did
not matter which agency reviewed particular matters). The fact that
outside parties have expressed support for the concept of a procedural
clearance agreement absent consideration of allocating industries casts
doubt upon the necessity for an agreement as sweeping in scope as the
one signed by Chairman Muris and AAG James.
---------------------------------------------------------------------------
For all of these reasons, I am concerned that an important portion
of the Commission's testimony--the clearance discussion--is misleading
and falls short of what this Subcommittee and the public deserve to
know. Accordingly, I respectfully dissent from the clearance portion of
the testimony.
______
Prepared Statement of Sheila F. Anthony, Commissioner, Federal Trade
Commission
I support the Commission's testimony before this Subcommittee,
except that part which discusses the clearance procedures for merger
investigations. While ``streamlining the merger review process'' is a
laudable goal that deserves our attention, I am not convinced that the
approach agreed to by Chairman Muris and Assistant Attorney General
Charles James fully maximizes the unique makeup, experience, and
institutional assets of the Commission.\1\
---------------------------------------------------------------------------
\1\ See Statement of Commissioner Sheila F. Anthony on the
Memorandum of Agreement Concerning Clearance Procedures for
Investigations (Jan. 18, 2002), available at http://www.ftc.gov/opa/
2002/01/ftcdojsa.htm for further discussion.
---------------------------------------------------------------------------
ADDITIONAL COMMITTEE QUESTIONS
Senator Hollings. Senator Domenici has some questions that
will be submitted for your response.
[The following questions were not asked at the hearing, but
were submitted to the Commission for response subsequent to the
hearing:]
Questions Submitted by Senator Pete V. Domenici
Question. Why do you think it would be good government to repeal
the common carrier exemption and allow the FTC to review the practices
of such firms?
Answer. The FTC does not have jurisdiction over ``common carriers
subject to the Acts to regulate commerce'' (15 U.S.C. Sec. 45(a)(2)),
including common carriers subject to the Communications Act of 1934 (15
U.S.C. Sec. 44). When Congress originally exempted common carriers from
FTC oversight, the telecommunications industry was controlled by a
single, large telecommunications company subject to tight government
regulation. The industry has undergone dramatic changes, however, since
it was deregulated. Numerous telecommunication companies now offer an
ever widening array of services and engage in fierce competition,
sometimes resulting in deceptive advertising and marketing schemes.
Because of the common carrier exemption, consumers in a very important
segment of the economy telecommunications do not benefit from ordinary
FTC action against deceptive and unfair marketing, advertising, and
billing. Because the FTC, the primary agency responsible for consumer
protection matters, does not have jurisdiction over telecommunications
common carriers, consumers are not receiving the full benefit of the
FTC's expertise and the agency is not being used to its fullest
potential.
Repealing the exemption would have a secondary benefit. The FTC has
jurisdiction over charges on the phone bill that are not related to the
transmission of telecommunications. We have been effective in attacking
telephone bill ``cramming'' the placement of unauthorized charges for
non-telecommunications services on consumer's phone bills. Acting as a
common carrier with respect to some activities should not shield an
entity from the FTC Act with respect to non-common carrier activities.
Some ``cramming'' defendants try to cloak themselves with common
carrier status, or claim immunity from the FTC Act based on common
carrier activities unrelated to the practices at issue. While this
defense has not been successful to date, countering the defense has
proven expensive and time-consuming. Furthermore, there is the risk
that a court could find that the FTC does not have jurisdiction over
such defendants, thereby laying a foundation for fraudulent
telemarketers and others to register as common carriers to shield
themselves from FTC enforcement. In addition, repealing the exemption
would permit the FTC to investigate and challenge the activities of all
of the participants involved in a deceptive telecommunications-related
scheme.
Question. What authorities and what resources would you need to do
the job of evaluating media competition issues?
Answer. Prior to the execution of the new clearance agreement, the
Department of Justice's Antitrust Division (DOJ) had handled the vast
majority of media mergers based on its greater experience in the area.
Much of this experience was accumulated because the DOJ has exclusive
jurisdiction over anticompetitive practices by telecommunications
common carriers, and those companies are becoming increasingly
prominent in the media area. Without full jurisdiction over
telecommunications common carriers, it remains inherently difficult for
the FTC to garner the necessary level of experience within the broader
media context to be able to prevail in a clearance dispute over a media
merger with the DOJ. If Congress believes that the FTC should have full
authority to investigate telecommunications matters, including media
mergers, then a first step could be to repeal the common carrier
exemption that prohibits the FTC from pursuing anticompetitive
practices of telecommunications common carriers.
Question. How much time has been spent fighting with the Department
of Justice over who would review each merger or case involving issues
of competition?
Answer. Under the U.S. antitrust laws, both the FTC and the DOJ
have jurisdiction to review proposed mergers as well as other
competition matters. For mergers, 15 U.S.C. Sec. 18a provides that only
one of the two agencies can conduct a detailed antitrust investigation.
Therefore, it is necessary for the agencies to determine which one will
review a specific matter to avoid duplication. Since 1948, the agencies
have agreed that neither would proceed with an investigation until one
agency ``cleared'' the matter to the other agency. This decision has
been based primarily on one agency's greater expertise in a certain
industry.
Until recently, this process worked fairly well. From 1982 through
1989, for example, there were only about 10 clearance disputes each
year. However, as traditional industry boundaries have become blurred
in the current high tech economy, this system has resulted in
significant clearance delays as each agency argues for the ability to
handle a specific matter. Subsequently, from 1990 through 2001, there
has been an average of 83 clearance disputes per year. Delays averaging
three weeks occurred in 24 percent of the matters on which clearance
was sought from the beginning of fiscal year 2000 through January 28,
2002. Cumulatively, these investigations were delayed by 4,521 business
days more than 17 years. As an example of the system at its worst, when
I arrived at the FTC last summer, one investigation had been delayed
over a year because neither agency would ``clear'' it to the other.
Question. How does the new ``clearance'' procedure meet the needs
of the private sector and of consumers?
Answer. The new clearance agreement will eliminate almost all of
the delays of the previous system and will provide the public with a
transparent understanding of how industries will be allocated. Instead
of wasting time and resources on clearance disputes, the agencies will
be able to devote that time to reviewing proposed transactions for
possible anticompetitive consequences. In addition to the allocation of
industries, the clearance agreement also improves the overall
transparency of the process and institutes specific procedures for
possible disputes. The agreement sets forth expedited time frames for
review, provides for the development of a Clearance Manual that will be
posted on each agency's Web site, and establishes a dispute process
involving a Neutral Evaluator for clearance resolution all of which
make the process more effective and efficient for the agencies,
consumers and businesses.
Question. What benefits accrue to the operation of the government
under the new ``clearance'' procedures?
Answer. The new clearance agreement represents good government.
Because both agencies have jurisdiction to review proposed mergers
while only one agency can actually conduct an antitrust investigation
of the merger, the clearance agreement eliminates much of the conflict
and inefficiencies in the previous system. In recent years, the
clearance process had become more contentious as the convergence of
industries blurred bright lines between industry boundaries. As each
agency vied for clearance over particular matters in these converging
industries, both the level of tension that developed between the
agencies' staff and the delays associated with the prolonged process
increased. The new agreement will significantly reduce the occurrence
of clearance disputes through a clear delineation of industries and the
establishment of a formal process for resolving any clearance issues.
These policies will enhance the previous system by reducing the
inefficiencies associated with the ensuing delays and virtually
eliminating the possibility of protracted disputes between staff on
clearance issues.
The new agreement will remedy another inefficiency of the old
process: division of matters even within a given industry between
agencies based on historical experience with particular industry
segments. Prior to the new agreement, one agency could not study the
full array of related matters in some industries, and thereby maximize
the breadth and depth of its expertise. It is not sound public policy
for one agency to investigate cars, for example, while the other agency
investigates trucks, or for one agency to investigate electricity
mergers, while the other handles all other energy matters. The new
clearance agreement allows for expertise in one industry to be
developed as fully as possible by avoiding historical allocations to
the agencies that divided different segments of the same industry. For
example, the old allocations that divided cars from trucks, and divided
electricity from other energy matters, will no longer be followed under
the new agreement.
Question. I understand that a request for an advisory opinion has
been filed with the FTC seeking its guidance on advertising by a
smokeless tobacco manufacturer that its products are a reduced risk
alternative to smoking cigarettes. What steps will the Commission
follow in reaching a determination on the advisory opinion request?
Answer. The Federal Trade Commission received a request for an
advisory opinion from the U.S. Smokeless Tobacco Company (``USSTC'')
regarding the acceptability of communicating in advertising that
smokeless tobacco products generally are considered to be a
significantly reduced risk alternative as compared to cigarette
smoking. The Commission has placed USSTC's request on the public
record, along with letters received from the Campaign for Tobacco-Free
Kids, the American Academy of Otolaryngology Head and Neck Surgery,
Inc., and the California Department of Health Services, urging the
Commission to deny the request. Commission staff is reviewing the
request and supporting materials submitted by USSTC and is consulting
with the federal government's science-based public health agencies.
Following this review, the Commission will make a determination as to
an appropriate response to USSTC's request.
CONCLUSION OF HEARINGS
Senator Hollings. The subcommittee will be in recess,
subject to the call of the Chair.
[Whereupon, at 10:58 a.m., Tuesday, March 19, the hearings
were concluded, and the subcommittee was recessed, to reconvene
subject to the call of the Chair.]
DEPARTMENTS OF COMMERCE, JUSTICE, AND STATE, THE JUDICIARY, AND RELATED
AGENCIES APPROPRIATIONS FOR FISCAL YEAR 2003
----------
U.S. Senate,
Subcommittee of the Committee on Appropriations,
Washington, DC.
NONDEPARTMENTAL WITNESSES
[The following testimonies were received by the
Subcommittee on Commerce, Justice, and State, the Judiciary,
and Related Agencies for inclusion in the record. The submitted
materials relate to the fiscal year 2003 budget request for
programs within the subcommittee's jurisdiction.]
DEPARTMENT OF COMMERCE
Prepared Statement of The Ocean Conservancy
The Ocean Conservancy is pleased to share its views regarding the
marine conservation programs in the National Oceanic and Atmospheric
Administration's (NOAA) budget and the Department of State, and
requests that this statement be included in the official record for the
fiscal year 2003 Commerce, Justice, State, and the Judiciary
Appropriations bill.
The Ocean Conservancy (TOC) strives to be the world's foremost
advocate for the oceans. Through science-based advocacy, research, and
public education, we inform, inspire, and empower people to speak and
act for the oceans. TOC is the largest and oldest nonprofit
conservation organization dedicated solely to protecting the marine
environment. Headquartered in Washington D.C., TOC has regional offices
in Alaska, California, Florida, and Maine. TOC can not overstate the
importance of this subcommittee to advance marine conservation and
greatly appreciates the funding provided in fiscal year 2002. While TOC
recognizes the subcommittee has many difficult choices to make this
year, we urge you to continue to make ocean conservation a top
priority.
department of state
Implementation of the Inter-American Convention for the Protection
of Sea Turtles (IAC).--The IAC, the first international treaty
dedicated to sea turtle protection and conservation, was ratified by
the United States in 2000. To date, eight nations, including Brazil,
Costa Rica, Ecuador, Honduras, Mexico, the Netherlands, and Peru have
ratified the IAC, and Costa Rica will host the first meeting of the
Parties in August 2002. TOC requests $100,000 (within the International
Fisheries Commission program account) in fiscal year 2003 for the State
Department to assist the independent Secretariat and maintain the
leadership of the United States on this treaty.
national oceanic and atmospheric administration
Conservation Spending Category
In October of 2000, Congress established the Land Conservation,
Preservation, and Infrastructure Improvement Fund (LCPIIF) to provide
increased support for conservation activities. The fund dedicates an
additional $480 million in the fiscal year 2003 budget, above fiscal
year 2000, for critical coastal conservation activities within NOAA.
TOC strongly encourages the subcommittee to make full use of this
funding to provide additional support for high priority coastal
conservation initiatives, as outlined below.
Coral Reef Conservation
Coral reefs are known as ``the rainforests of the sea,'' and are
among the most complex and diverse ecosystems on earth. Coral reefs
provide habitat to almost one third of marine fish species, serve as
barriers to protect coastal areas, and provide an estimated $3 billion
annually in economic benefits to the country from tourism and
recreational fishing. Coral reefs are also extremely fragile and face
serious threats from overutilizaiton and pollution around the world.
NOAA serves on the successful Interagency Coral Reef Task Force and
is responsible for implementing the National Action Plan to Conserve
Coral Reefs. TOC appreciates this subcommittee's past support of NOAA's
coral reef activities and requests $30.2 million in fiscal year 2003 to
support critical monitoring, mapping, and restoration activities,
especially those identified as priorities by the Task Force. This $2
million increase above the Administration's request should be directed
to the Coral Reef Conservation Fund established by the Coral Reef
Conservation Act of 2000 (Public Law 106-562) to leverage an additional
$2 to $4 million in public-private partnerships for on-the-ground coral
reef conservation activities in the United States and its territories.
national ocean service
National Marine Sanctuary Program
TOC requests the subcommittee provide $37.6 million for sanctuary
operations, $2 million above the Administration's request. Our nation's
13 sanctuaries encompass almost 18,000 square miles of our most
significant marine resources. This increase is critical to reducing
staffing shortages and supporting conservation, community outreach,
research, and education programs, and updating sanctuary management
plans as required by law. TOC also supports the Administration's
request of $10 million for construction, particularly for interpretive
facilities to educate the general public about the role of the federal
government in managing our nation's ocean and coastal resources.
Marine Protected Areas
TOC greatly appreciates this subcommittee's support of NOAA's
marine protected areas (MPAs) initiative in fiscal year 2002 and
requests $5 million in fiscal year 2003. This increase will allow NOAA
to work more effectively with federal and state agencies and other
partners to acquire data for the ongoing MPA inventory and support the
forthcoming Marine Protected Areas Advisory Committee and its science
advisory panel. In addition, this increase will allow NOAA to better
assist stakeholders, including regional fishery management councils,
states, and others by providing technical assistance and research to
determine how best to design and implement MPAs.
Nonpoint Source Pollution
Nonpoint source pollution, or polluted runoff, continues to be the
nation's largest source of water pollution. Last year there were over
11,000 closings and advisories at U.S. beaches. TOC greatly appreciates
the subcommittee's support of $10 million in fiscal year 2002 to help
states address polluted runoff and requests $25 million in fiscal year
2003. This will enable coastal states and territories with approved
nonpoint plans to make continued progress in implementing their
priority actions.
national marine fisheries service
Expand Fisheries Stock Assessments
The status of 78 percent of commercially-caught ocean fish
populations is unknown due in large part to lack of funding for basic
research and regular stock assessments. It is essential that we develop
a better understanding of the status of our fish populations. Even with
the Administration's request of $11.9 million, the NMFS still would
lack the funding necessary to conduct nearly a quarter of its research
days-at-sea. TOC urges the subcommittee to expand funding for stock
assessments to $25 million in fiscal year 2003 to reduce this deficit.
Fisheries Observers
Along with stock assessments, reliable, objective information about
how many fish are being caught, directly and as bycatch, is crucial to
responsible management of our fish populations. Observers are a key
means of collecting such information, yet current coverage is limited.
TOC requests $25 million for fisheries observers in fiscal year 2003,
$8 million above the Administration's request. TOC encourages the
subcommittee to strengthen and establish the following observer
programs.
National Observer Program
While encouraged by the Administration's proposal for expanding the
national observer program to $4 million, TOC believes this funding is
still inadequate and recommends additional support for NMFS to meet its
national observer needs.
West Coast Observers
TOC appreciates the subcommittee's funding of $4 million for West
Coast Observers in fiscal year 2002 and urges the subcommittee to
reject the Administration's proposed cut and increase funding to $7.2
million in fiscal year 2003.
Gulf of Mexico Shrimp Fishery
The shrimp fishery is believed to be the largest fishery in the
Gulf of Mexico. Efforts to monitor the effort and catch are limited,
and available data indicates that, Gulf-wide, an average of 80 percent
of the catch by weight is bycatch, which include juvenile red snapper
as well as sea turtles. TOC requests dedicated funding to establish an
observer program to help managers better understand the region's
fishery and better enforce the use of turtle excluder devices, which
are required year-round in most shrimp trawl nets.
Gulf of Mexico Longline Fishery
Longlines capture a variety of ocean wildlife besides the reef fish
they target, including marine birds, sea turtles and soft corals.
Little reliable information is available on catch and effort for
longline vessels in the federal waters of the Gulf. An observer program
for this fishery would provide valuable information, facilitating
science-based management decisions. TOC requests that the subcommittee
identify and appropriate the necessary funds to establish this observer
program.
Atlantic Coast Gillnet Fishery
In response to the more than 100 bottlenose dolphin mortalities in
the gillnet fishery off North Carolina (over four times allowable
levels), the Atlantic Bottlenose Take Reduction Team was established in
2001. TOC urges the subcommittee to appropriate $3 million to establish
an observer program for this fishery and support the efforts of the
take reduction team to reduce dolphin mortalities.
Enforcement and Surveillance
In addition to better data, enforcement of our fishery management
laws is critical. Unfortunately, enforcement has not kept pace with
need, and has in fact dropped dramatically since the attacks of
September 11th. TOC urges the subcommittee to address this shortfall so
that our fisheries management laws can be better enforced. We request
$46.9 million in fiscal year 2003, $11 million above the
Administration's request, to hire more officers.
Within these funds, TOC requests $12.4 million, $5 million above
the Administration's request, for expanding the Vessel Monitoring
System (VMS) program. VMS, a satellite-based fishery enforcement
system, has the ability to provide real-time catch reporting throughout
a number of different fisheries. This increase would allow for
establishment and implementation of the VMS systems and place a VMS
transponders onboard many of the estimated 10,000 boats in the U.S.
commercial fishing fleet. VMS programs enhance data collection and
safety at sea and can be beneficial to fisherman by allowing them to
fish right up until a quota is reached. Finally, with VMS system is
benificial to fishermen because it allows them in many fisheries to
fish right up to the day the fishery is closed. Currently, some
fisheries require boats to be tied up at dock when the announcement is
made. with VMS systems, officials can tell when a fishing vessel is
fishing in closed areas, or is fishing beyond the end of a regulated
fishing season. This funding is one of The Ocean Conservancy's highest
priorities.
Marine Mammal Protection Act
TOC believes the lack of adequate resources has severely hampered
NMFS's ability to effectively implement the MMPA and requests $38
million in fiscal year 2003, the amount authorized under the MMPA. This
increase is necessary to fund top priority studies identified by the
marine mammal take reduction teams: to design and implement fishery
management plans that will not endanger marine mammals; conduct
research on population trends, health, and demographics; and to carry
out education and enforcement programs. It would also allow health
assessment and research into the causes of strandings and die-offs and
identification of mitigation measures to prevent such deaths in the
future. TOC also asks that report language be included to direct NMFS
to undertake research to develop reflective netting in the gillnet
fishery to reduce harbor porpoise mortality.
Essential Fish Habitat
Protecting essential fish habitat (EFH) is key to ensuring healthy
fish populations in the future. Given the need to better understand the
impacts of fishing and other activities on these habitats, and the need
to more fully comply with the Sustainable Fisheries Act requirement to
minimize impacts to those habitats, TOC believes that increased funding
is crucial. TOC greatly appreciates this subcommittee's increased
support of EFH in fiscal year 2002 and requests $12.5 million in fiscal
year 2003.
Marine Debris Removal
Derelict fishing gear and other marine debris has the potential to
damage and kill coral and other marine animals, including the highly
endangered Hawaiian monk seal. The NMFS marine debris removal program
in the Northwestern Hawaiian Islands was successful in removing 110
tons of derelict fishing gear in 2001. Studies show that debris
continues to accumulate, indicating the need for further funding of $3
million for removal of marine debris.
Atlantic Coast Cooperative Statistics Program
TOC greatly appreciates the subcommittee's support of $2 million in
fiscal year 2002 for the Atlantic Coast Cooperative Statistics Program.
This unique cooperative state and federal fisheries data collection
program encompasses all marine fisheries sectors on the Atlantic Coast,
including recreational anglers, charter and headboat operators,
commercial fishermen and seafood processors/dealers. It has allowed
resource managers from 15 states to develop a plan to cooperatively
collect, manage and disseminate fishery statistics for the Atlantic
coast. We request $3 million in fiscal year 2003 so that this program
can be expanded and better implemented along the East Coast, thereby
helping to ensure that data collection methods are more consistent and
reliable.
Endangered Species
NMFS bears significant responsibility for administering the
Endangered Species Act with respect to marine and anadromous species.
NMFS is responsible not only for the recovery of already-listed species
such as Northern Atlantic Right Whales (see below), Steller sea lions,
and all species of sea turtles found in U.S. waters, but also for
responding to petitions to list species, such as smalltooth sawfish,
bocaccio rockfish, and green sturgeon. TOC is concerned about NMFS's
ability to meet its responsibilities under the ESA, including
responding to listing petitions in a timely fashion, consulting with
federal agencies on proposed actions that may affect listed species and
designated critical habitat, and coordinating up-to-date recovery
planning and activities to ensure that the nation's most vulnerable
marine species can progress towards full recovery. TOC urges the
subcommittee to substantially increase NMFS's ESA funding to meet its
fiscal year 2003 demands.
North Atlantic Right Whales
With approximately only 300 North Atlantic Right Whales remaining,
funding is needed to improve our understanding of right whales and to
develop fishing technologies to reduce entanglements. TOC thanks the
subcommittee for its past support and requests $7 million in funding in
fiscal year 2003.
National Invasive Species Act
Nonindigenous species infestations degrade natural resources of
virtually every U.S. waterway and coastal area. Free of natural
predators, alien species which become established in our waters often
out-compete native organisms, destroy habitat and alter physical/
chemical conditions in our coastal waters. Invasive species are
regarded as a leading cause of diminished biodiversity and cost our
economy millions of dollars each year. The leading vector of
unintentional introductions of aquatic pest species is the discharge of
ballast water by oceangoing vessels.
The National Invasive Species Act (Public Law 104-332) coordinates
federal efforts to prevent and combat the spread of invasive species
through the interagency Aquatic Nuisance Species Task Force, which is
co-led by NOAA and the Fish and Wildlife Service (FWS). Under the Act,
NOAA is authorized at $7.5 million to help implement the Aquatic
Nuisance Species Program and work with the FWS and the Coast Guard to
develop and demonstrate environmentally sound ballast water treatment
technologies. TOC appreciates this subcommittee's support of $6 million
in fiscal year 2002 and, consistent with the National Research
Council's recommendations on ballast water, urges you to reject the
Administration's 87 percent proposed cut and fully fund the program at
$7.5 million.
Highly Migratory Shark Fisheries Research Program
This effective multi-regional collaborative effort conducts
research on shark and ray populations in the Gulf of Mexico, the
Atlantic, and the Pacific. Information developed from this program has
provided critical information for assessing the status of shark
populations and their management. TOC greatly appreciates the
subcommittee's support for the program in fiscal year 2002, urges the
subcommittee to reject the Administration's proposed cut, and requests
an increase in funding to $1.95 million.
Pacific Highly Migratory Species Research
TOC also supports funding for Pacific Highly Migratory Species
Research, but believes the Administration's request of $0.75 million is
inadequate. Funding for stock assessments and biological studies, as
well as improving bycatch mitigation techniques for these fisheries,
are critical for the long-term health of the fishery. TOC requests $1.5
million in fiscal year 2003, with $0.5 million to be specifically
dedicated to completion of the Pacific Fishery Management Council's
Highly Migratory Species Fishery Management Plan.
Marine Mammal Commission
TOC requests that the subcommittee support the Marine Mammal
Commission at its authorized level of $1.75 million in fiscal year
2003.
These programs are of the utmost importance to the stewardship of
the nation's living marine resources. We greatly appreciate your
support for these programs in the past and look forward to continued,
responsible funding for these programs in fiscal year 2003. Thank you
for considering our requests.
______
Prepared Statement of The Nature Conservancy
The Nature Conservancy is escalating its focus on freshwater,
coastal, and marine conservation by establishing Freshwater and Marine
Initiatives that will employ the science, partnerships, ecosystem
approach, and site-based conservation that has worked throughout our
fifty-year history. These initiatives will strengthen the work that we
are engaging in with partners to develop a ``conservation blueprint''
identifying the places that, if conserved, will collectively protect
the nation's plants, animals, and natural communities for the long-
term. Several NOAA programs have been, or will be successful at
conserving many places identified by our blueprint.
coastal zone management
This unique federal-state-territorial partnership created under the
Coastal Zone Management Act (CZMA) serves to protect, restore, and
responsibly develop the nation's coastal communities and resources
along 95,000 miles of shoreline. State and territorial CZM programs
link national objectives with implementation and stewardship at the
local level. Through a review of federal activities and permits, they
also integrate resource protection and economic development activities
with state coastal management plans. Increased funding for this program
in fiscal year 2003 ($80 million Grants to States; $7 million Program
Administration; $15 million Non-Point Pollution Implementation Grants)
would advance protection of coastal, ocean, and Great Lakes species and
their habitats; maintain natural shorelines; and enhance scientific
research and education, while allowing for certain economic growth.
This funding would also improve coordination and government efficiency.
Finally, we also urge that the $2 million cap on state grants be
eliminated so that all states can share equitably in funding increases.
national estuarine research reserve system
Authorized as part of the Coastal Zone Management Act (CZMA), the
twenty-five ``living laboratories'' making up the National Estuarine
Research Reserve System (NERRS) require funding ($18 million for
operations; $15 million for Procurement, Acquisition, and Construction)
appropriate to the importance of estuaries to critical habitat and
coastal economies. Adequate funding for the NERRS will permit
individual reserves to better implement strong management, research,
education, and stewardship activities within surrounding communities,
and acquire key tracts of land and conservation easements that buffer
development impacts. This funding would also facilitate implementation
of system-wide monitoring and coastal training programs, and would
enable expansion in order for the system to represent the suite of
biogeographic regions that together comprise our nation's coastlines.
national marine sanctuaries
The Nature Conservancy supports the President's funding request for
the National Marine Sanctuary (NMS) program ($36 million for Program
Administration; $10 million for Procurement, Acquisition &
Construction). This funding would extend volunteer programs, provide
for additional monitoring, and would fulfill a national plan for public
outreach. It would also enable new investments in science needed to
better manage complex issues surrounding sanctuaries. Finally,
additional funding will enable implementation of revised and more
detailed management plans. Eight sanctuaries are currently undergoing
management plan reviews.
The Conservancy is currently working with the Monterey Bay NMS to
determine overlapping goals and opportunities for collaboration as the
sanctuary reviews its management plan. However, our most extensive
experience has been with the Florida Keys NMS where their management
plan, developed in cooperation with the state of Florida and an
Advisory Council, is being implemented. The Florida Keys NMS management
plan has shown promising results as it focuses on education and
outreach, enforcement, research and monitoring, and zoning. It also
addresses significant issues facing the health of the Florida Keys
ecosystem such as water quality, sewage treatment, live-aboards,
hazardous spills, and pesticides.
coastal and estuarine land conservation
The Coastal and Estuarine Land Conservation Program (CELCP) was
authorized by Congress as part of the Commerce, Justice, State, and
Judiciary Appropriations Act of 2002. In its first year, this new
program directed $15.8 million to coastal and estuarine areas with
significant conservation, recreation, ecological, historical, or
aesthetic value that are threatened by conversion from their natural
state to other uses.
Nowhere in the nation are threats such as sprawl, habitat loss, and
fragmentation more significant than along our nation's coasts. That is
why a program providing grants that allow for land acquisition as a
conservation strategy serves as an important addition to federal
efforts focused on protecting valuable habitat for the long-term. As a
result, the Conservancy supports a significant increase in funding ($60
million) for the CELCP in fiscal year 2003. We also urge the adoption
of guidelines that will allow organizations like the Conservancy to
qualify for funding in order to forward CELCP goals across the nation.
The development and land use pressures along the coasts and Great Lakes
are immense, and they are projected to accelerate in the next ten
years. If we do not act aggressively now, we may lose that opportunity
forever.
habitat restoration
The Nature Conservancy strongly supports NOAA's coastal habitat
restoration efforts, and recommends funding levels of $18 million for
Fishery Habitat Restoration. Most of this funding would ensure the
continued success of NOAA's Community-based Restoration Program (CRP).
This funding level would enable the CRP to direct more money to local
communities for the restoration of vital habitats. Additionally, it
would increase the geographic scope and rate at which it can encourage
community ownership and restoration of critical and rapidly dwindling
habitat. This program has not only leveraged up to $10 for every
federal dollar invested at more than 500 projects, but has also
leveraged a conservation ethic across the nation. As a national
partner, the Conservancy has experienced first hand how the CRP
inspires local efforts to conduct on-the-ground restoration of
freshwater, coastal, and marine habitat. Since 2000, we have already
directed $1 million to community-based projects in Florida, New York,
Connecticut, North Carolina, Delaware, Virginia, California, and Texas.
With two years remaining in our national partnership, we are excited
about what lies ahead.
salmon recovery
The Conservancy considers salmon conservation a critical aspect of
our work in the Pacific Northwest, Alaska, and the Northeast. Given the
complex life history of this keystone species--migrating hundreds of
miles past forests and farms, cities and dams, from fresh to saltwater
during their lifecycle--successful salmon conservation requires action
across a broad landscape.
History has demonstrated that money spent on habitat restoration
and recovery could have been used more effectively and at less cost to
the taxpayer if applied at a landscape-scale before systems were
altered and degraded. However, habitat destruction, reduced
streamflows, pollution, passage impediments, and overharvest have
already played a role in the decline of salmon stocks. That is why
generous funding to conserve and recover salmon in the Pacific
Northwest and Alaska ($200 million for the Pacific Coastal Salmon
Recovery Fund; $55 million for NMFS Agency Funding for Pacific Salmon
Recovery), and in the Northeast ($30 million for an equivalent Atlantic
Coastal Salmon Recovery Fund), is now critically needed.
In the Pacific Northwest and Alaska, the Pacific Coastal Salmon
Recovery Fund has enabled states and tribes to support local efforts to
evaluate, protect, and restore key habitat while enhancing local
economies. NMFS Agency funding enhances that support with scientific
research and monitoring, and by spurring new cooperative efforts. In
the Northeast, a significant amount of collaborative work among federal
agencies, industry, private landowners, and other stakeholders has
begun. However, a lack of comparable funding and capacity has hindered
efforts in this region from addressing mounting stresses on dwindling
salmon stocks. The time is right to establish a similar approach and
complementary funding for USFWS and NMFS.
marine protected areas
Marine protected areas (MPAs) are proven tools for rebuilding and
sustaining fisheries, recovering threatened and endangered species, and
providing recreational opportunities. The Conservancy has learned this
first hand through work with scientists, community members,
international governments, and federal agencies to establish MPAs in
places such as the Florida Keys, the Exuma Cays Land and Sea Park in
the Bahamas, and Kimbe Bay in Papua New Guinea. It is time to reserve
more of these places for future generations, just as the nation has
done on land with national parks and refuges, national forests, and
other managed areas.
The Conservancy recommends that $5 million be appropriated for MPAs
so that NOAA can continue working with federal and state agencies and
other partners to assess MPA design and effectiveness as a management
tool that protects biodiversity while permitting use of the nation's
valuable marine resources. Increased funding would also expedite
information collection and collaborative efforts required for
completion of the first nationwide inventory of MPAs. Additional funds
would be employed to improve coordination and information sharing at
regional and national levels; support training and technical assistance
for communities, users, management agencies, and others; and increase
public involvement through the MPA web site.
coral reef conservation
The Nature Conservancy supports the President's budget for
activities that benefit coral reefs ($16 million for NOS; $11 million
for NMFS; $700,000 for NESDIS; $500,000 for OAR). This funding would be
used to advance priorities identified by the U.S. Coral Reef Task Force
including comprehensive mapping and monitoring of coral reefs, research
into ecological processes upon which reefs depend, integration of human
activities, and public education. With such funding, this
scientifically-based effort will protect and restore coral reefs in the
United States and its territories. It will serve as a model in
intergovernmental coordination and coral reef protection for similar
initiatives around the world.
While NOAA's activities, guided by the Task Force, have made great
strides in coral reef conservation, the Conservancy would like to see
more funding dedicated to addressing this issue at an international
scale. The combined effects of global climate change and human
activities have led coral reef ecosystem health to decline severely all
over the world in recent decades. It is now critical to take action
before the tragedy becomes irreversible. Successful conservation of
coral reefs will involve a broad-scale, global, and long-term
commitment. The Conservancy has been working throughout the world with
governmental and non-governmental partners to protect these fragile
systems. We hope that NOAA funds dedicated to coral reefs in the future
will be made more available for public-private partnerships at the
international level.
estuarine restoration program
The Estuary Restoration Act of 2000 created this program with the
goal of restoring one million acres of estuary habitat by 2010. Subject
to annual appropriations by Congress, the legislation authorized $275
million over five years dedicated to public-private partnerships
reversing the deterioration of estuaries through restoration of
degraded habitat.
The U.S. Army Corps of Engineers has primary jurisdiction over this
program, and would receive the bulk of any funding. However, no funds
have been appropriated to date. If funded, the program would encourage
the restoration of estuarine habitats through enhanced coordination of
Federal and non-Federal efforts, and through financing of innovative
local, state, and regional projects focused on restoring healthy
ecosystems that support wildlife, fish and shellfish; improve surface
and groundwater quality, quantity, and flood control; and provide
recreation. In hopes that the program will receive full funding in
fiscal year 2003, the Conservancy urges that $1.2 million be
appropriated to NOAA for their duties related to this program.
conclusion
Thank you for the opportunity to submit these remarks. Conserving
freshwater, coastal, and marine habitat is challenging and requires a
variety of innovative strategies at every level. The Nature Conservancy
looks forward to working with NOAA, other federal agencies, state and
local governments, non-governmental organizations, and the private
sector to ensure the long-term protection and sustainable use of our
productive and diverse coastal waters.
______
Prepared Statement of the Yukon River Drainage Fisheries Association
abstract
The Yukon River Drainage Fisheries Association (YRDFA) requests a
reauthorization of a $500,000 appropriation to the YRDFA for salmon
habitat and stock restoration projects, to conduct research on the
marine bycatch of salmon and to assess salmon productivity in the
marine environment. Funds would be transferred to the YRDFA through a
National Oceanographic and Atmospheric Administration /National Marine
Fisheries Service grant.
current research efforts by yrdfa
In the fiscal year 2000, 2001, 2002 budget Congress authorized a
$500,000 appropriation to YRDFA for ``habitat restoration, monitoring
projects, stock assessments and bycatch research.'' YRDFA's previous
and current research plans for the years 2000--2004 are divided into
seven objectives:
--Objective I.--Stock origins, migration patterns and marine
productivity of Bering Sea Chinook salmon,
--Objective II.--Habitat restoration of Yukon River drainage salmon
streams,
--Objective III.--Stock restoration through instream incubation
technology,
--Objective IV.--Chinook smolt productivity and out-migration
analysis,
--Objective V.--Coho salmon spawning surveys,
--Objective VI.--Capacity building of local residents in salmon
research,
--Objective VII.--Program reporting and coordination with other
research agencies.
Stock origins, migration patterns and marine productivity of Bering Sea
chinook
Analysis is focusing on scales from chinook collected by observers
in the Bering Sea trawl fisheries from 1997-1999. The first year of the
study has involved processing observer program samples, getting
baseline scales from agencies, digitizing baseline scales, and
developing and testing classification models. The second would focus on
digitizing and analysis of observer program samples and report writing.
Anticipated results include: identification of trawl salmon bycatch
into broad regional stock groupings that will enable managers to adjust
trawl fishing effort to avoid stocks that are having conservation
problems, improved understanding of migration patterns and marine
productivity of Bering Sea chinook that will enable managers to better
forecast returns of adult chinook salmon and to assess impacts of
changing ocean conditions on Chinook stocks.
Habitat restoration of Yukon River drainage salmon streams
Efforts are focusing on improving access of chinook and chum salmon
to spawning and rearing areas currently impeded due to historical
mining activity. Methods will include realignment and regarding of
stream channels, streambank reclamation, floodplain modification,
construction of fish habitat structures and enhancement of fish passage
to access spawning and rearing habitat. Likely project locations
include Sourdough, Ruby, Faith and Hope Creeks, the Birch Creek
watershed and the Minook Creek watershed. As part of this effort YRDFA
will also work with local miners--many of who still have active claims
in these areas--to educate them on the importance of protecting and
restoring fisheries habitat.
Stock restoration through instream incubation technology
Habitat restoration activities such as those described above as
well as USFWS and BLM efforts to build an access channel around the FE
dam (Davidson Ditch) on the Chatanika River will open up new areas for
salmon. In some cases, however, salmon spawning in these areas would
benefit from a ``jump-start'' through the use of instream egg
incubation boxes to greatly improve winter egg-fry survival rates.
YRDFA will also survey other road-connected streams for possible
installation of incubation boxes to serve as demonstration projects and
feasibility tests. Additional streams to be surveyed include the
Nenana, Delta, Chena, Salcha and Goodpaster.
Chinook smolt productivity analysis and outmigration
Trapping of juvenile chinook near the Chena River flood control dam
and other streams will enable us to gain a better understanding of
their overall health and to collect baseline data which will enable
fishery managers to make better forecasts of salmon returns in future
years. While the database on the number of adult spawners has been
steadily improving since 1994, little data is available, other than
that collected by USGS, on egg-to-fry survival rates and general health
of smolt and juvenile salmon. In addition to the Chena River YRDFA will
attempt to survey select index streams in different sections of the
drainage such as the lower Yukon and the Koyukuk River.
To maximize the effectiveness of research funding, YRDFA is working
closely with various agencies and researchers. Cooperating entities
include: the Alaska Department of Fish & Game, the U.S. Fish and
Wildlife Service, the Bureau of Land Management, the U.S. Geological
Service, and the University of Washington, School of Fisheries.
Coho salmon spawning surveys
Identified in the 1998 Yukon River Comprehensive Salmon Management
Plan as an important research need, very little is known about coho
salmon spawning in the Yukon River. YRDFA staff is working with state
and federal fisheries research staff to design effective survey
methodology for learning more about the distribution and abundance of
coho salmon spawning. Survey efforts will be planned to maximize
usefulness to managers and be directed toward those areas (tributary
streams) identified through traditional knowledge and sport fishing
reports to support spawning coho. Field surveys will be led by YRDFA
biologists and technicians hired from local villages.
Capacity building of local residents in salmon research
Building capacity among village organizations and individuals to
participate in and eventually develop salmon research projects presents
a valuable opportunity for collaboration among resource users, local
and regional groups, biologists, and managers.
YRDFA is planning two capacity building seminars in appropriate
regional centers along the river--using local projects as examples--
with hopes of promoting increased involvement in current research and
encouraging future efforts. Funds would be used for lodging, meals,
transportation, stipend for students, travel costs for some
instructors, as well as for YRDFA administration, staff and travel
costs. Such activities would strengthen communication among
stakeholders and lead to improved salmon management on the Yukon River.
Research & management policy monitoring
YRDFA is committed to disseminating knowledge gained through its
research activities to affected communities. Recognizing that
communication among villages in rural Alaska can be challenging,
through newsletters, meetings and other outreach media, YRDFA will
distribute reports in a timely manner. Similarly, YRDFA staff will
continue to reach out to others involved in Yukon River fisheries
management--keeping abreast of what other groups and agencies are
working on and sharing its research with others.
Monitoring management and regulatory actions will enable YRDFA to
contribute its knowledge to the process of adaptive management wherein
lessons learned through research and the management process are
incorporated into new management measures. This will create a feedback
information loop so that the effects of regulations can be monitored
and if necessary changed to be more effective.
Tasks accomplished or in progress with the fiscal year 2001 and
fiscal year 2002 funds are as follows:
--A report on ``Ocean Distribution and Migration of Yukon River
Chinook Salmon''
--Restoration of salmon habitat on Ruby Creek in the lower Chatanika
River
--A Report on ``Feasibility Testing of In-Stream (Streamside)
Incubation Technology''
--Habitat restoration opportunity surveys of Minook and Birch Creeks
--Salmon egg incubation opportunity surveys in Tanana River
tributaries
--Installation of an egg incubation feasibility test on the Chatanika
River
--Out-migrating salmon smolt survival studies in Tanana and Koyukuk
River tributaries
--New salmon smolt survival studies in the Andreafski River tributary
--New coho salmon spawning surveys in the Anvik River tributary.
fiscal year 2003 request
For fiscal year 2003 the YRDFA requests a reauthorization of
$500,000 in funding. If these funds were received YRDFA would be able
to:
Budget request breakdown
Fiscal year
2003 request
YRDFA staff and field researchers............................. $150,000
Marine productivity assessment................................ 30,000
By-catch analysis and reduction............................... 20,000
Smolt survival studies........................................ 100,000
Coho salmon escapement monitoring............................. 50,000
Salmon research education for villagers....................... 50,000
Habitat monitoring and restoration............................ 50,000
Traditional Knowledge Research................................ 50,000
--------------------------------------------------------------
____________________________________________________
TOTAL................................................... 500,000
closing statement
Our funding requests propose to conduct research and educational
efforts aims that will fill information gaps not addressed by current
agency research plans. Yukon River salmon are a vital resource to more
than 14,000 Alaska residents in 42 different communities. The annual
wholesale value of the commercial salmon fishing industry approaches
$10,000,000. Yukon River Chinook and fall chum salmon also spawn in
Canada and are currently the subject of an Executive Agreement between
the two countries.
Our research program will aid significantly in the management of
this resource and the continuation of fishing families and communities
in rural Alaska. Thank you for this opportunity to submit written
testimony.
______
Prepared Statement of the Northwest Indian Fisheries Commission
Mr. Chairman, and Honorable Members of the Committee, I am Billy
Frank, Jr., Chairman of the Northwest Indian Fisheries Commission
(NWIFC). On behalf of our twenty member tribes I would like to thank
you for the opportunity to offer written testimony concerning the
Department of Commerce and Department of State fiscal year 2003
appropriations that pertain to Pacific Salmon Recovery funding needs.
summary of fiscal year 2003 appropriations request
We would like to ensure that the following items be included in the
fiscal year 2003 appropriations:
Department of Commerce
$110 million for the Pacific Coastal Salmon Recovery Fund
Initiative, with a set aside of $15 million to affected tribes for
their management responsibilities. A specific allocation of the set
aside for the Northwest Indian Fisheries Commission of $9 million is
requested.
$20 million for the Pacific Salmon Agreement's Restoration and
Enhancement Funds consistent with the treaty annexes.
$3 million for a Displaced Tribal Fishers Program.
Support additional ESA Program Funding to National Marine Fisheries
Service (NMFS) and Earmark $530,000 for National Marine Fisheries
Service Tribal/NMFS ESA Task Force.
Department of State
$309,000 additional funding for implementation of Pacific Salmon
Agreement.
$20 million for Pacific Salmon Agreement's Restoration and
Enhancement Funds consistent with the treaty annexes.
introduction
Twenty-seven years ago, the U.S. v. Washington case was decided by
the federal court system. This decision, respecting the treaty rights
of our member tribes, propelled major changes in fisheries management
in the Pacific Northwest. These changes have altered the legal,
political, social and economic institutions of the State of Washington,
and have also fostered a nationwide quest for tribal self-determination
and self-governance led in part by the Northwest tribal leadership.
We have made great strides in institutionalizing tribal management
consistent with tribal values, treaty rights and federal court
decisions. We have developed great professional capabilities and policy
respect. We are efficient and effective, but we have significant unmet
needs, and the management obligations are many. New and highly
difficult complexities abound, many of which have been precipitated by
the demands of the Endangered Species Act.
In late February 1999, a number of species of Pacific Salmon were
``listed'' by the National Marine Fisheries Service as ``threatened''
under the terms of the Endangered Species Act (ESA). This ESA listing
process has triggered a cascading chain of events which have resulted
in significant changes to harvest, hatchery, and habitat practices for
the region and its inhabitants.
Tribes are affected by this federal process. As fishers, the
listings raise serious questions about the status of the stocks and
poses a threat to the opportunity for these individuals to continue to
harvest salmon, a treaty secured resource. As governments, the ESA
process now places enormous bureaucratic demands upon the tribes as co-
managers of the resource. In addition, the tribes are working hard to
provide much needed technical and policy leadership to protect and
recover Puget Sound salmon. Continued and expanded tribal funding is
essential to address endless issues raised by the ESA and to fulfill
the tribes' unwavering commitment to salmon recovery.
Additional funding is also needed for the National Marine Fisheries
Service so that they can actively participate in the many ESA functions
that exist in the Pacific Northwest. To our knowledge, never before has
a resource--in this case, salmon--been both secured to tribes by
treaties and regulated by the federal government under the ESA. The
relationship raises vexing issues relating to the federal government's
fiduciary responsibilities to the tribes in the context of the ESA. As
the federal agency charged with implementing the ESA for salmon, NMFS
requires additional funding to properly discharge their trust
responsibilities to the tribes. Furthermore, the tribes require funding
to ensure the federal-tribal trust relationship is properly discharged.
As a result, we would like the Subcommittee to earmark $530,000 for a
Tribal/NMFS ESA Task Force that brings tribal and NMFS technical and
policy representatives together to implement the ESA in the context of
tribal treaties.
$110 million for the pacific coastal salmon recovery within the lands
legacy program with $15 million tribal set aside
Tribes have been greatly appreciative of the Committee's efforts to
include Pacific Coastal Salmon Recovery funding in last year's
appropriation. We have long advocated for such a concerted partnership
approach between federal, state, local, and tribal governments to save
the Pacific Salmon. We wish to support a funding level of $110 million
for the Pacific Coastal Salmon Recovery Initiative.
For many years, the tribes have sounded alarms about the declining
status of the salmon resource. Tribes have actively participated in the
implementation of the Northwest Forest Plan and have also worked
diligently to implement the Pacific Salmon Treaty. Locally, tribes have
linked their work with county and city governments to develop watershed
recovery strategies. Connections between tribes and private interests,
including the timber industry, environmental community, and volunteer
organizations are in place, and expanding regularly. All of these
efforts require a consistent source of funding that allows tribes to
actively work salmon restoration efforts. That is why a continued set
aside for the tribes is essential. We support $15 million set aside for
the Pacific Coastal tribes for salmon restoration work. We also seek a
specific allocation of $9 million from this amount for the Northwest
Indian Fisheries Commission for the work described below.
As noted earlier, treaty tribes in western Washington have court-
affirmed fisheries co-management authority and responsibility for
salmon, which includes not only harvest and hatchery management
activities, but also habitat protection. This collection of rights
places the tribes in a principal management role with the State of
Washington to ensure that the salmon resource is managed wisely for the
benefit of all.
This obligation for sound resource management weighs heavily on the
tribes as more than three-quarters of the state is affected by several
Endangered Species Act (ESA) listings, with many of the remaining areas
experiencing declining levels of many salmon species.
Each tribe has an existing fisheries management program, and will
utilize its program as a base for salmon recovery efforts. Fiscal year
2002 funds have increased each tribe's ability to engage in salmon
restoration activities and programs. This increased capacity has
enabled the tribes to dedicate necessary staff and policy attention to
work through various reviews, listings, consultations, rule
developments, and conservation planning processes that have already
begun as the National Marine Fisheries Service moves forward with legal
requirements under the Endangered Species Act. Moreover, this
infrastructure has also provided the tribes with additional
capabilities to provide leadership and scientific direction in various
salmon restoration projects and efforts that are under way within the
region and individual watersheds.
A coordinated tribal effort is necessary on a variety of
``statewide'' and ``regional'' issues. Using the expanded capacity
described above, tribes and their policy and technical staff will be
able to increase the time and effort dedicated toward developing salmon
conservation and recovery planning processes that are essential to
salmon restoration.
One of these new efforts--the Shared Strategy for Recovery of Puget
Sound Salmon--is an example of the leadership the tribes are providing
in salmon recovery. Working with state, federal, and local government
leaders, and former EPA Administrator William Ruckleshaus, the tribes
are developing salmon recovery goals for each Puget Sound watershed and
identifying means to achieve those goals. This is an exciting new
initiative that promises much needed direction, coordination, and
strategic planning to the region's salmon recovery challenges. But
without additional funding, the tribes' ability to participate in and
properly manage this growing initiative will be impaired.
In addition, tribes, along with the State of Washington, will
develop comprehensive species management plans for coastal river
systems, Puget Sound chinook, Hood Canal summer chum, and Lake Ozette
sockeye salmon. They will also work on conservation concerns for coho
salmon, which in some areas are listed by NMFS as a ``candidate''
species for potential listing in the future.
Tribes will develop new hatchery genetic guidelines, stock
productivity models, fishery guidelines and standards for local salmon
recovery. Tribes will continue work to update the Salmon and Steelhead
Stock Inventory (SASSI) and will complete the Salmon and Steelhead
Habitat Inventory and Assessment Project (SSHIAP). These two data
systems integrate stock status and habitat information, essential
knowledge for effective salmon restoration and protection activities.
SSHIAP is also an essential component for long-term habitat monitoring
programs, including that of the recently enhanced forest practices
program.
To make these activities complete, however, requires coordination
and integration of the tasks at a number of levels. In some cases,
special studies and assessments must be done. In other cases, regional
and/or case-area-wide coordination must occur to ensure project
completion.
This broad array of activities will allow the maximum flexibility
for locally driven processes to determine which activities are most
important for each watershed. This is essential as the current status
of habitat inventories, wild stock assessments and hatchery impacts in
each watershed are highly variable.
The following is a partial list of salmon restoration projects and
activities that may be conducted: Watershed assessments, including
habitat conditions, in-stream flow studies, water quality and quantity
analysis pertaining to salmon productivity; develop/design projects to
address limiting factors; compliance monitoring for regulatory
components of salmon recovery; habitat monitoring; stock monitoring;
and, adaptive management monitoring, research, assessment and
application.
It must be recognized that tribes also anticipate accessing various
funds that are available to state governments for active watershed
restoration and protection projects. These funds would come from the
Coastal Salmon Recovery monies provided by the subcommittee to state
governments. In many cases, tribes will be in the best position to
protect and preserve habitat through the purchase of riparian habitat.
In other cases, tribes will have the best expertise and infrastructure
in place to effectively complete restoration projects.
pacific salmon agreement requires further funding
Many new demands have been placed on the United States and Canada
as a result of the 1999 Pacific Salmon Agreement. This agreement
resulted in an increase of fisheries management demands on the Pacific
Salmon Commission. We support the U.S. Section's recommendations for
the Commerce and State Departments' budgets, which includes increasing
the State Department's funding level by $309,000 to address their
increased responsibilities.
The tribes also support the congressional appropriations of a
funding package of $40 million for fiscal year 2003 for the two
Restoration and Enhancement Funds. We are appreciative of the continued
support by Congress to fulfill this obligation of the 1999 Pacific
Salmon Agreement. This authorization represents the final installment
for this agreement. These monies will be handled as an endowment and
administered by the Pacific Salmon Commission for habitat, stock
enhancement, science and salmon management initiatives in both
countries.
These funds are essential in order to implement the Agreement.
Clearly, there have been very significant harvest reductions taken by
all parties involved as a result of this new Agreement. Unfortunately,
harvest reductions alone will not bring back the salmon. The new
Restoration and Enhancement Funds will provide long term funding
resources to the two countries to target a multitude of recovery
efforts that are complimentary to the harvest reductions.
tribal fishers bear a huge burden and funds should be found to support
them while salmon recovery occurs
Tribes are very concerned about our displaced fishers. Unemployment
rates on some reservations, which depend heavily on salmon fisheries
now seriously curtailed due to low stock abundance, are as high as 80
percent. We would like the Committee to consider an extension of the
successful federal ``Jobs In the Woods'' Initiative of the Northwest
Forest Plan which utilized unemployed loggers. This program could be
expanded for specific inclusion of tribal fishers. New funds for
``fishers support'' should also be found to ensure that tribal fishers
could continue to make boat payments and leases during these low
abundance periods. These funds could be earmarked from within the
existing Department of Commerce budget, so long as they become
available to the Tribal Fishers. It is expected that this program would
cost about $3 million per year for the next decade.
conclusion
We strongly urge the Committee to provide $110 million in funding
for Pacific Coastal Salmon Recovery. We ask the Committee to support
the use of $15 million of these funds for use by the Pacific Coastal
Tribes. Language directing $9 million of these funds to the Northwest
Indian Fisheries Commission will enable us to actively engage in all
phases of salmon recovery efforts in western Washington. These monies
would be carefully managed to ensure results and accountability.
$530,000 is needed to fund a tribal/NMFS ESA Task Force.
The new Pacific Salmon Agreement requires $40 million during fiscal
year 2003 to fully fund the Restoration and Enhancement Funds. $309,000
in new funding is needed for State Department implementation of the
Pacific Salmon Treaty Agreement. A new initiative to support tribal
fisheries and ameliorate their financial burden will cost $3 million.
We thank you for your consideration of our request. We are
available to answer any questions.
______
Prepared Statement of the Airports Council International--North America
and the American Association of Airport Executives
On behalf of Airports Council International--North America (ACI-NA)
and the American Association of Airport Executives (AAAE) we appreciate
the opportunity to offer the views of the airport community regarding
the fiscal year 2003 Departments of Commerce, Justice, and State, the
Judiciary, and Related Agencies Appropriations bill. ACI-NA represents
local, regional and state governing bodies that own and operate
commercial airports in the United States and Canada. AAAE is the
world's largest professional organization representing the men and
women who manage primary, commercial service, reliever and general
aviation airports.
We would like to begin by thanking Chairman Hollings, Ranking
Member Gregg and all those who served on the Subcommittee last year for
the leadership they provided on H.R. 2500, the fiscal year 2002
Commerce-Justice-State Appropriations bill. Because of your efforts,
that bill included a provision to allow the Immigration and
Naturalization Service (INS) to charge cruise line passengers who enter
the United States a $3 inspection fee and increase the fee on airline
passengers from $6 to $7.
Like many on this Subcommittee, ACI-NA and AAAE made the case that
the INS needs additional inspectors and equipment to meet the increased
demand for inspection services at congested international airports. One
of our top priorities was convincing Congress to lift the current
cruise line exemption as a way to pay for additional inspectors at
international airports. That is why we were pleased that the fiscal
year 2002 Commerce-Justice-State Appropriations bill lifted the cruise
line exemption and included report language stating that the user fee
increase should be used, in part, to hire additional inspectors at new
and existing airport terminals as well as at high growth terminals.
Additional Inspectors.--This year, AAAE and ACI-NA strongly urge
this Subcommittee to approve funding for the INS to deploy additional
inspectors at air ports-of-entry. Prior to the tragedies that occurred
on September 11, INS officials expected the new user fees would
generate as much as $100 million per year. At that level, revenue from
the fees would allow the INS to hire 283 new inspectors at airports.
The fees would also allow the INS to hire 60 inspectors to expand the
INS/U.S. Customs Service passenger analysis units at airports to
analyze traveler information in advance of plane arrivals.
Because of the temporary decline in passengers that occurred after
the terrorist attacks, the new inspection fee will not generate as much
revenue as previously expected. That is why AAAE and ACI-NA strongly
support a provision in the Administration's fiscal year 2002
Supplemental Appropriations Request that would provide $35 million to
the INS to enable the agency to fully implement increased air and sea
port initiatives.
The Administration's fiscal year 2003 budget request includes $85.5
million to hire, train and deploy 1,160 additional Immigration
inspectors. We see this as a step in the right direction. Under the
Administration's proposal, INS would deploy some 615 inspectors to
international airports, 460 to land border ports, and 65 to seaports.
Approximately $362 million would also be used to fund a multi-year
effort to provide a comprehensive land, sea, and air entry/exit system
for the United States. INS expects to meet traffic management goals of
processing 79 percent of commercial airline passengers within 30
minutes.
Since September 11th, the INS and U.S. Customs suspended all
international-to-international (ITI) transit, progressive clearance,
technical fuel stops and the use of in-transit lounges placing an even
greater strain on both agencies. Consequently, inspectors from both
agencies were required to inspect international passengers who they
were not previously required to inspect--either because those
passengers were traveling to another foreign country or because they
would be inspected at another destination in the United States. In
either case, before September 11, those passengers were required to
remain in sterile in-transit lounges until boarding their next flight.
In November of last year, the INS and U.S. Customs allowed ITI to
resume under new and strict criteria. For instance, carriers were
required to provide 100 percent Advanced Passenger Information prior to
the aircraft's arrival. Moreover, both INS and U.S. Customs inspectors
could require all passengers, crew and baggage to be inspected.
Last week, the INS announced that it would be modifying the ITI
transit procedures and reinstating progressive clearance, again under
new and strict criteria. Carriers will now be allowed, under certain
circumstances, to present their ITI and progressive passengers to INS
inspectors at INS-approved in-transit lounges. While these new
procedures may help speed up the inspection process for those
particular passengers, they will require the INS and U.S. Customs
Service to deploy more inspectors at air ports-of-entry.
The number of passengers that the INS and U.S. Customs will be
required to inspect is also increasing because more international
passengers are traveling to the United States. The FAA predicts that
international passengers will increase slightly this year and increase
by 6.8 percent in calendar year 2003. The FAA also predicts that the
number of passengers traveling between the United States and the rest
of the world will increase from approximately 131 million passengers in
calendar year 2001 to approximately 226 million by 2013.
45-Minute Clearance Time.--Considering that 30-minute goal, we are
surprised and disappointed that INS is proposing to eliminate the 45-
minute clearance time for the inspections of passengers arriving on
international flights. Under current law, the INS is required to
inspect passengers who arrive in the United States on scheduled airline
flights within 45 minutes of their presentation for inspection.
Airports around the country fear that eliminating the 45-minute
clearance time will reduce the pressure on INS to deploy enough
inspectors and new technology at international airports to enhance
security and process passengers in a thorough and timely manner.
Repeatedly, Congress has given INS the resources and information it
needs to inspect passengers. As we mentioned previously, Congress
increased the INS inspection fee on airline passengers from $6 to $7 so
the agency can deploy more inspectors at international airports.
Moreover, the aviation security bill that Congress passed last year
requires airlines to submit detailed passenger information including
passport and visa numbers to the U.S. Customs Service--which shares
that information with INS--before an aircraft even lands in the United
States.
The report accompanying the House version of the fiscal year 2002
Commerce-Justice-State Appropriations bill stated that a number of
airports around the country are short of inspections personnel and that
it ``expects that this fee increase will enable the INS to meet
increasing staffing demands and meet the mandated 45 minute inspection
timeframe at all airports.'' With additional funding, additional
inspectors and additional passenger information, we agree that the INS
should be capable of meeting the 45-minute clearance time that Congress
created ten years ago.
A lot has changed since then, and continuing to improve security is
now more important than ever. Airports realize that there will be
passengers who raise red flags with the INS and who will require
additional inspections. INS inspectors should focus on those passengers
and take as much time as they need to inspect them. Airports understand
that it may be necessary to eliminate the 45-minute clearance time for
those passengers who are identified by immigration officers as
requiring secondary inspections.
Again, however, airports fear that eliminating the time limit for
all passengers--including those who do not require a secondary
inspection--will reduce the pressure on the INS to deploy enough
inspectors and new technology at international airports. Congress has
given INS additional funding, additional inspectors and additional
passenger information in the past. It should continue to require the
agency to use those valuable resources to enhance security at
international airports and process passengers in a thorough and timely
manner. We encourage the Subcommittee to include language in the fiscal
year 2003 Commerce-Justice-State Appropriations bill that will require
the INS to inspect passengers within 45 minutes unless they are
identified by immigration officers as requiring secondary inspections.
Automated Technologies.--In addition deploying an adequate number
of inspectors and being held to a firm 45-minute clearance time, INS
needs to introduce automated technologies and risk-based analysis tools
into its inspections process. These mechanisms will improve customer
service, assist inspectors in their duties and allow INS to process
most passengers within 45 minutes.
In the report accompanying the fiscal year 2002 Commerce-Justice-
State Appropriations bill, the user fees increases will allow the INS
to invest funds in its automated entry/exit system that tracks alien
arrivals and departures at airports. It will also allow the agency to
upgrade the National Automated Inspection Lookout System and deploy
additional Live Scan Devices that can send electronic fingerprints to
the Federal Bureau of Investigations. We hope this Subcommittee will
include funding in the fiscal year 2003 Commerce-Justice-State spending
bill to allow INS to improve the inspection system by using new
technology.
Toward that goal, ACI-NA and AAAE urge Congress to appropriate
funds for the INS to conduct research and development on technologies
that will enhance the inspections process. Technologies that should be
given strong consideration include so-called ``smart credentials'' and
biometrics. These are tools that airports are urging the newly created
Transportation Security Administration (TSA) to use to identify
domestic passengers at airports.
Airports would like to assist INS on ``smart credentials,'' and we
think the agency should coordinate its research and development and
future activity on this initiative with stakeholders including airports
and airlines. Moreover, we think Congress should direct INS to
coordinate this activity with TSA and the Department of Transportation.
INS coordination with those two transportation agencies is vital to
ensuring that smart credentials can be used efficiently to satisfy the
requirements of multiple government interests.
Recruitment, Training and Retention.--In addition to hiring more
inspectors and using better technology, INS needs to do a better job of
recruiting, training and retaining the inspectors it already has. ACI-
NA and AAAE urge Congress to appropriate the necessary funds to ensure
that the INS can improve the recruitment, training, retention of its
inspectors. While mindful that a small percentage of individuals
entering the United States may pose a risk, INS must continue to train
and enhance the customer service mission of inspectors. Foreign
visitors and tourists are vital to sustaining the nation's economy.
Enhanced recruitment and training efforts must also be accompanied
by competitive salaries for INS inspectors. The average entry-level
annual salary for an INS inspector is under $23,000. That puts INS
inspectors at the bottom of the pay scale for similar inspectors in
other agencies. The average entry-level salary for a U.S. Department of
Agriculture Animal and Plant Health inspector is $34,000 per year.
Screeners hired by TSA are expected to make up to $35,400 per year. Law
enforcement officers hired by TSA are expected to make at $45,000 and
above per year.
It is imperative that the INS provide a more competitive salary
package and allow for upward mobility within the inspections program.
This mobility allows more individuals to enter the Service with a
career-oriented focus and reduces the possibility that other federal
agencies will hire individuals trained by INS. INS suffers annual
financial losses due to individuals leaving the inspections program
after completion of training. A large number of individuals leaving the
program are hired by other federal agencies that pay better wages.
Chairman Hollings, Ranking Member Gregg and Members of the
Subcommittee, thank you again for your assistance last year and for
inviting us to submit our testimony on the fiscal year 2003 Commerce,
Justice, State appropriations bill. All of us at ACI-NA and AAAE look
forward to working with you during the 107th Congress as you continue
to work to improve the inspection process and security at airports
around the country.
______
Prepared Statement of National Public Radio
introduction
Thank you Chairman Hollings and Senator Gregg for giving National
Public Radio and its hundreds of member stations the opportunity to
submit written testimony for the record in support of the Public
Telecommunications Facilities Program (PTFP) and its fiscal year 2003
appropriation. This year, public broadcasting is requesting that $110
million be allocated to PTFP. This level of funding will ensure that
there is sufficient money available to help public broadcasters in
their conversion to digital audio broadcasting and to maintain and
expand service.
ptfp
PTFP is a competitive matching grant program to help public
broadcasters, state and local governments, and Indian tribes construct
facilities to bring educational and cultural programs to the public.
Run by the National Telecommunications and Information Administration
(NTIA) under the Department of Commerce, this program provides
financial assistance to stations for capital projects such as replacing
outdated hardware, purchasing new equipment to expand service to
unserved areas, and converting to digital technology. It is the only
capital grant program available to public broadcasters, many of whom
are constrained in their ability to finance capital expenditures.
Stations cannot pass their costs on to their listeners, and most cannot
take out loans for such projects, especially those in rural areas. The
matching-grant structure of PTFP allows public radio stations to
leverage funding from local government and private entities while
providing the money needed to help defray the high costs of capital
projects.
The demand for PTFP funding far exceeds the amount of funds
available. In fiscal 2001, there were 246 applications requesting a
total of $120 million in funding through PTFP--88 from public radio
stations and 111 from public television stations--yet only $42 million
were available. Of those applications, only 105 were awarded money.
Unfortunately, budget constraints have limited the amount of funds
available for PTFP grants. Appropriations for the program in fiscal
year 2002 increased only slightly from fiscal year 2001. Funding PTFP
at $110 million this year will help to meet the demand for this small,
but important program, which will help many stations with their
transition to digital radio as well as help them expand coverage to
unserved areas.
digital radio conversion
Public radio will soon begin the process of converting to digital
audio broadcasting. Stations are preparing to upgrade their equipment
and digitize their programming in anticipation of the Federal
Communication Commission's impending decision on the creation of a
digital FM radio standard.\1\ Once the Commission issues its final rule
later this summer, public radio broadcasters will begin the expensive
process of converting to a digital format, which is currently estimated
to cost about $116 million. That amount is solely for the cost of
transmission and does not include the cost of digitizing production.
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\1\ Industry testing is currently occurring on AM-IBOC technology.
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Digital radio is expected to transform the radio industry and allow
it to compete on equal footing with other digitized media. Digital
technology will allow stations to broadcast near CD quality sound free
of interference to listeners, as well as help utilize spectrum more
efficiently. Developed by the industry, In-Band, On-Channel (IBOC)
technology will allow stations to simultaneously broadcast their analog
and digital signals using their existing analog AM and FM frequency.
Unlike television stations, radio stations will not require additional
spectrum to convert to a digital format.
In addition to providing near CD quality sound and the efficient
use of spectrum, digital radio will afford new service opportunities.
IBOC technology has the potential to provide important new public
interest programming such as:
--Assisted-living services, such as radio reading services for the
print-impaired and radio captioning;
--Public safety services such as weather alerts, traffic safety, and
national security notifications;
--Foreign language programming; and
--Audio-on-demand
Digital radio will also enable new functions such as the ability to
search program formats, scan selective programming, and read music
lyrics and song titles.
PTFP will play an important role in the public radio system's
conversion to digital radio technology. Once a FM IBOC standard is
adopted, many stations will quickly begin the process of converting,
which will involve high capital costs. PTFP funding will help public
radio stations finance their projects as well as leverage vital funding
from other sources.
expand service
NTIA has established a priority system for issuing PTFP awards.
Stations expanding service to new areas have the top priority in the
selection process followed by equipment replacement for stations that
are the only public radio station in a community (level 2), stations
upgrading their transmitter (level 3), and finally, stations replacing
equipment (level 4).
Expansion of public broadcasting to unserved areas is PTFP's first
priority when issuing grants. For more than 35 years, the program has
played a major role in the development and expansion of public radio
throughout the country. Today, more than 90 percent of the American
public can listen to a public radio station in their community.
In fiscal year 2001, PTFP awarded eight grants to extend public
radio signals to over 300,000 unserved individuals. Areas benefiting
from these awards include Lakeport, California; Lake Okoboji, Iowa;
Fergus Falls, Minnesota; Altus, Oklahoma; Pelham, North Carolina; rural
areas east of Charlotte, North Carolina, and 12 interior Alaska
villages.
maintain service
Maintaining service is also one of PTFP's main priorities. In
fiscal year 2001, the program awarded 28 grants to help stations
replace basic equipment. For example, in 2001 PTFP awarded Ohio State
University $149,491 to replace the 63-year-old broadcast tower and
concrete base supports of WOSU, which serves approximately six million
people in the greater Columbus, Ohio area, and to purchase EAS
emergency warning equipment for the four repeaters of WOSU-FM, which
serve a population of roughly 1.6 million individuals.
PTFP also funds the radio reading service for the blind and
descriptive video services for the disabled. Last year, the Nevada
Public Radio Corporation was awarded $47,926 to extend the Radio
Reading Service of KNPR, 89.3 MHz, in Las Vegas, to Reno/Carson City,
Elko, Ely, and Tonopah, Nevada by acquiring subcarrier generators, STL
interfaces, an audio-vault, audio receivers, satellite receivers, and
SCA receivers. The project will provide new radio reading service to an
estimated 15,000 visually handicapped listeners in the state.
conclusion
For 35 years, PTFP has played a major role in the development of
public broadcasting throughout the United States. Through the
assistance the program provides, public radio has grown considerably
and now reaches just over 90 percent of the U.S. population. That
funding is even more important now than ever before.
NPR thanks the Subcommittee for allowing written statements to be
submitted for the record, and for its long-standing support of public
broadcasting.
NPR is a private, nonprofit corporation that produces and
distributes award-winning programming such as Morning Edition, All
Things Considered, Performance Today, and Car Talk. NPR is also a
membership organization. NPR member stations are independent entities
licensed to a variety of nonprofit organizations, local communities,
colleges, universities, and other institutions. Public radio stations
independently select and produce community appropriate programming that
best serve their listening areas.
______
Prepared Statement of the National Audubon Society
On behalf of the National Audubon Society and our one million
members and supporters, we appreciate the opportunity to submit
testimony regarding funding priorities for the fiscal year 2003 budget
of the National Marine Fisheries Service (NMFS), and the National Ocean
Service (NOS). The mission of the National Audubon Society is to
conserve and restore natural ecosystems, focusing on birds and other
wildlife and their habitat for the benefit of humanity and the earth's
biological diversity. Audubon's Living Oceans Program is dedicated to
protecting and restoring the living communities and special places of
the seas for fish, seabirds, and other marine life and for the benefit
of humankind
To adequately execute their mandates, NMFS and NOS need additional
monies over those provided in fiscal year 2002. Below is a detailed
list of those programs Audubon sees as critical funding priorities
within these agencies, accompanied by what Audubon views as minimum
necessary appropriations levels at the current time.
national marine fisheries service
Science
Expand Annual Stock Assessments
The Administration has requested $11.9 million for expanding annual
stock assessments. This represents an increase of $9.9 million over
fiscal year 2002 enacted levels. While this level of funding would
represent an important step in the right direction, it falls well short
of what is actually needed to improve the science upon which management
should be based. Accurate stock assessments are the foundation of
proper management of fishery resources. Without them, rational
management of fish populations is not possible. With that
understanding, it is unacceptable that the status of 78 percent of fish
stocks in U.S. waters remains unknown largely because of inadequate
funding.
The Administration's plan to dedicate just $2.4 million toward at-
sea research days is inadequate. This level of funding will purchase
only 260 at-sea research days, reducing the annual deficit to 1,573
research days, based on recommendations made in NMFS' Stock Assessment
Improvement plan. The Committee should, at a minimum, appropriate funds
adequate to eliminate fully half of the annual research days deficit
($8.5 million). Audubon supports the $5.1 million increase intended to
provide for the recruitment and training of stock assessment biologists
and staff to produce annual stock assessments.
Recognizing the shortcoming with regard to days-at-sea research
dollars and noting that the fiscal year 2002 appropriation fell $14.7
million below the Administration's request, Audubon urges the Congress
to allocate $18.0 million toward improving stock assessments. Such an
allocation would demonstrate a commitment toward more informed science-
based management of our nation's fish populations.
Highly Migratory Shark Fisheries Research Program
Audubon strongly urges restoration of funding for the Highly
Migratory Shark Fisheries Research Program. In fiscal year 2002 the
Administration requested $1 million for this program and Congress
appropriated $1.5 million. However, in the Administration's fiscal year
2003 request the program was zeroed out. An effective multi-regional
collaborative effort, this program conducts fisheries relevant research
on shark and ray populations in the Gulf of Mexico, Atlantic, and
Pacific Oceans. The information developed from this program provides
data that are critical for assessing the status of shark populations
and management activities. Audubon urges the Committee not only to
restore funding to this program, but to increase it to $1.95 million
for fiscal year 2003.
Pacific Highly Migratory Species Research
The Administration's request of $750,000 for Pacific highly
migratory is inadequate. Funding for stock assessments and biological
studies, as well as improving bycatch mitigation techniques for these
fisheries, are critical for the long-term health of the fishery. Of
vital importance to improving management of these species in both the
near and long-term is the completion of the Pacific Fishery Management
Council's Highly Migratory Species Fishery Management Plan. To
guarantee the timely completion of this plan, Audubon proposes that
appropriations for Pacific highly migratory species research be raised
to $1.5 million with $500,000 of these appropriations specifically
dedicated to completion of the Pacific Fishery Management Council's
plan. These monies should be used, in part, to fund the work necessary
to make maximum sustainable yield determinations for bigeye and pelagic
thresher sharks.
Bluefin Tuna Tagging
The Administration's request of $850,000 for bluefin tuna research
is below the level needed to conduct appropriate and necessary
scientific research. Audubon strongly urges the Congress to appropriate
$1.15 million and ensure that these research dollars be evenly
distributed between Stanford University's Hopkins Marine Station and
the New England Aquarium. The Stanford University research team has
traditionally led the field in Atlantic bluefin tuna research and their
expertise should be not be forfeited. In fiscal year 2001 all federal
bluefin tuna research dollars were allocated to the New England
Aquarium without explanation or warning, jeopardizing the continuation
of Stanford University's Atlantic bluefin tuna research program.
Audubon suggests that $150,000 should be dedicated toward the current
NMFS program to determine if there is a discrete spawning ground for
bluefin tuna in the Gulf of Mexico.
Sea Turtle Research
Audubon supports the Administration's request of $6.5 million for
Endangered Species Act Sea Turtle Research, which represents an
increase of $2.0 million over the fiscal year 2002 enacted levels. With
sea turtles threatened or endangered on both coasts, it is critical to
develop information to better recover these animals and to implement
identified management strategies to reverse declining population
trends.
Fisheries Research Vessel
Audubon supports the Administration's request of an additional
$45.5 million over fiscal year 2002 enacted levels for the purpose of
constructing a second NOAA fisheries research vessel. As research
vessels around the country age, it is critical to give NOAA the
capacity to continue fisheries research so as not to disrupt time-
series data streams. The new vessel will provide NOAA with the
capability to continue current research programs and better meet data
gathering needs in the future.
Essential Fish Habitat
The additional $1.5 million within NMFS' $4.8 million base for
designation and protection of essential fish habitat (EFH)--those
waters and substrate on which fish depend--is inadequate. The
Sustainable Fisheries Act of 1996 gave NMFS a clear mandate to identify
and conserve essential fish habitat. While progress has been made in
identification of EFH, too little has been done to protect these
habitats. Audubon recommends that the Congress allocate $11.0 million
to further refine EFH designations and to take action to conserve EFH.
Fisheries Oceanography
The Administration requested $1.0 million for fisheries
oceanography for fiscal year 2003. This sum is equal to fiscal year
2002 enacted dollars but $1.0 million less than the Administration's
fiscal year 2002 request of $2.0 million. Audubon supports dedicating
$2.0 million for fisheries oceanography as per the Administration's
fiscal year 2002 request. It is critical to further our understanding
of how long-term environmental factors affect fish stocks through
continuing research and development new tools and techniques as
increasing pressure is brought to bear on fish stocks.
Horseshoe Crab and Migratory Shorebird Survival Research
Funding
Audubon urges the Committee to provide $700,000 in fiscal year 2003
to establish the Horseshoe Crab Population Dynamics Research Program.
This proposal builds on the recent action by the Commerce Department to
create a horseshoe crab sanctuary off of the mouth of Delaware Bay.
This proposed public-private partnership between the Atlantic States
Marine Fisheries Committee and the Virginia Polytechnic Institute and
State University's Horseshoe Crab Research Center is critical to
monitoring the status of declining horseshoe crab populations,
determining the impact of coastal habitat degradation on them, and
protecting endangered migratory shorebirds that are dependent on
horseshoe crabs as a primary food source during migration. The Delaware
Department of Natural Resources and Environmental Control is also an
important partner in the research process. Funding is sought through
the Atlantic States Marine Fisheries Commission, with 100 percent of
the funds to be passed to the researchers.
Management
Fishery Observers
The administration's request of $16.95 million for fisheries
observer programs represents a modest but inadequate increase of $2.85
million for fishery observer programs. Because of fiscal constraints,
observer coverage levels in some fisheries, such as the Atlantic
pelagic longline fishery, have been below levels mandated by
international agreements that the United States are a party to, as well
as below levels dictated by biological opinions issued under the
authority of the Endangered Species Act. To ensure that observer
coverage occurs at a statistically reliable level within all areas
fished, at levels mandated by international agreements and biological
opinions issued under the ESA, Congress must provide additional money
to NMFS for fishery observers. Audubon recommends an increase to $25
million ($11.4 million above fiscal year 2002 enacted levels) to ensure
that adequate observer programs are implemented without further delay.
Regional Fishery Management Councils
The Administration has requested $16.0 million for the Regional
Fishery Management Council system, which represents an increase of $1.8
million over the fiscal year 2002 enacted level. Audubon is supportive
of the proposed increase, however we note that this level of
appropriations falls short of what is needed to support the work load
of the eight regional councils. The regional council system is in need
of significant reform. Needed changes include a more balanced
distribution of seats between representatives of the commercial,
recreational, and public interest in marine conservation--currently
there is only one representative of the conservation community serving
on the eight councils in aggregate--and more stringent regulations
regarding recusal of council members from votes where they have a
financial interest. Nevertheless, Audubon recognizes that despite the
present Council system's serious flaws, it is under-funded and
recommends that the Congress increase appropriations to $20.5 million
for fiscal year 2003. This level of funding represents the aggregate
fiscal year 2002 request of the eight councils plus $1.5 million to
close the shortfall stemming from enacted fiscal year 2002 monies. This
higher level of funding more accurately reflects the appropriations
necessary for the councils to fully execute their responsibilities.
International Fisheries Commissions
The Administration's request of $400,000 for international
fisheries commission work is insufficient and represents an increase of
just $1,000 over fiscal year 2002 enacted levels. Fishing vessels of
many nations are ranging further afield on the oceans to find fish
every year. The importance of international cooperation in managing
highly migratory and transboundary species has never been more
important and the difficulty never greater. Budgetary constraints limit
the role U.S. scientists play in working on issues of critical
importance to the United States and the various commissions of which
the United States is a party. Furthermore, U.S. delegations are often
understaffed because of travel budget constraints. Audubon urges the
Congress to allocate an additional $100,000 which will allow a more
appropriate level of commitment of U.S. resources to international
negotiations.
Enforcement and Surveillance
The Administration's overall request of $50.9 million for
enforcement and surveillance appropriations represents an important
commitment toward reigning in illegal fishing activities which
undermine conservation and management measures established by the NMFS.
The request represents an increase of $9.6 million over fiscal year
2002 enacted levels, however, it still falls short of what is needed to
allow for effective enforcement of current fisheries regulations.
Vessel Monitoring System (VMS).--VMS is an indispensable satellite
based fishery monitoring and enforcement tool. Given the increased use
of large-scale fishery area closures it is the only viable mechanism to
monitor compliance with time-area closures. Enforcement/monitoring
alternatives to VMS would be immensely more costly and include 100
percent observer coverage in some fisheries and the procurement of
significant numbers of additional enforcement personnel, aircraft and
ships to patrol area closures. VMS also provides the added benefit of
improving fisheries management by providing refined real-time data
regarding spatial and temporal distribution of fishing effort. Within
the Enforcement and Surveillance account, we are encouraged to see the
proposed increase to $7.4 million for vessel monitoring systems (VMS).
This represents an increase of $5.4 million over fiscal year 2002
enacted levels, and will allow coverage of roughly 1,500 vessels.
Nevertheless, the coverage afforded by these new dollars would be
substantially below what is needed on a nationwide basis. An increase
of $10.4 million over fiscal year 2002 enacted levels to $12.4 million
is necessary to ensure VMS coverage for a noticeable portion of the
U.S. commercial fishing vessels.
Pacific Coastal Salmon Recovery
The Administration's request of $90 million for the Pacific Coastal
Salmon Recovery represents a $20 million decrease from fiscal year 2002
enacted levels. This level is insufficient to adequately execute the
wide range of activities needed including habitat restoration and
protection, research, monitoring and evaluation, and salmon recovery
planning. Audubon recommends that the Committee restore funding to
fiscal year 2002 enacted levels ($110 million) and that these restored
funds be dedicated toward establishing a comprehensive regional
monitoring program. Without a comprehensive region-wide system in place
it will be impossible to full evaluate the effects of recovery efforts.
Energy Permit Rapid Response
The Administration's request of $2.0 million and 13 fulltime
equivalents (FTE) to support establishment of a streamlined energy
permit review process for energy related project approvals represents
an inappropriate diversion of badly needed funds from priority
programs. Many departments within NMFS are badly under-funded and
understaffed and unable to meet existing mandates. The diversion of
this significant amount of money and personnel to expedite energy
permit review when the agency is unable to meet its current mandates is
unacceptable. Audubon recommends redirecting these monies toward
resource management or data collection programs.
National Ocean Service
Marine Protected Areas Program
The administration has requested $3 million for the Marine
Protected Areas (MPA) Program, which represents status quo with regard
to fiscal year 2002 enacted and requested levels. This amount is
insufficient and proposes an additional $3.4 million in funding for
fiscal year 2003, resulting in an aggregate of $6.4 million for the NOS
MPA program. Of this, we recommend that $1.4 million be dedicated to
the West Coast marine reserves initiative with $1.0 million going to
the National MPA Center for natural and social science work and $.4
million earmarked for the Pacific Council to conduct stakeholder work.
Preparation of a supporting framework for collaboration between the
stakeholders, as well as execution of the first comprehensive inventory
and assessment of existing MPAs in U.S. waters are critical to the
success of the program and cannot be adequately carried out without
additional monies beyond those proposed by the Administration.
Coral Reefs Coral Reef Conservation
Audubon recommends that the Congress supplement the
Administration's request of $30.2 million for coral reef conservation
by an additional $2.0 million. Support for continued monitoring,
mapping and restoration activities, especially those identified by the
Interagency Coral Reef Taskforce are critical. Audubon suggests that
the new monies be directed to the Coral Reef Conservation Fund as
established under the Coral Reef Conservation Act of 2000. This program
leverages additional money through public-private partnerships for on-
the-ground coral reef conservation activities.
National Marine Sanctuaries Program
Audubon supports the Administration's fiscal year 2003 request of
$10 million for construction of facilities to educate the public about
the ocean and the importance of special places in the sea as well to
reduce the operations and maintenance backlog. The Administration's
request of $35.6 million for sanctuary operations is below what is
needed to inventory natural and cultural resources, maintain facilities
and equipment, and effectively implement and enforce management plans.
Audubon recommends that the subcommittee provide an additional $2.0
million over the Administration's request ($37.6 million) for sanctuary
operations.
Mr. Chairman and Members of the Committee, thank you for providing
Audubon the opportunity to comment on funding priorities for the
National Marine Fisheries Service and the National Ocean Service. I
understand that it is a large agenda, but the problems facing America's
marine resources are significant. We look forward to working with you
to secure a legacy of living oceans for future generations.
______
Prepared Statement of the American Rivers
This year, American Rivers was joined by over 600 local, regional
and national conservation organizations \1\ from all 50 states in
calling for significantly increased funding for the following programs
in the Commerce, Justice, State and the Judiciary (CJS) Appropriations
bill. I urge that these requests be incorporated in the CJS
Appropriations bill for fiscal year 2003.
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\1\ These groups have endorsed ``The River Budget 2003'', a report
of national funding priorities for local river conservation. A list of
groups endorsing the River Budget can be viewed at http://
www.americanrivers.org/riverbudget/default.htm.
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federal salmon plan for the columbia and snake rivers
Several Members of Congress from the Northwest, as well as the
Administration, have pledged to work to restore twelve Endangered
Species Act listed stocks of Snake and Columbia river salmon without
partially removing the lower four Snake River dams. Congress can help
honor that commitment by funding the necessary salmon recovery
measures. More than a year since the release of the 2000 Federal Salmon
Plan for the Columbia and Snake rivers, federal agencies have failed to
fulfill three-quarters of its requirements.
The Salmon Plan relies primarily on improving tributary and estuary
habitat and reforming hatchery and harvest practices. While most
fisheries scientists and conservationists believe that partial removal
of the lower Snake River dams must be the cornerstone of a larger
strategy to recover Snake River salmon, many elements of the Salmon
Plan are also necessary to achieve salmon recovery.
If the Salmon Plan's non-breach recovery package is not funded and
implemented, or if these actions do not yield the needed biological
benefit for Snake River stocks, the plan contemplates seeking
congressional authorization--as soon as next year--to partially remove
the four lower Snake River dams.
So far, Salmon Plan implementation has fallen well behind schedule,
due in part to inadequate federal funding. Full funding for fiscal year
2003 will require $455.4 million distributed among nine different
federal agencies through four different appropriations bills. The CJS
Appropriations bill governs funding for the National Marine Fisheries
Service (NMFS), which is charged with pursuing and administering the
Salmon Plan's crucial science and monitoring activities, as well as
implementing hatchery and harvest reform measures. The administration
has proposed increasing the NMFS budget for Columbia River salmon by
nearly 50 percent this year, to $36.6 million. While this increase
would be helpful, internal NMFS estimates call for funding NMFS
Columbia Basin salmon programs at nearly twice the level proposed by
the Administration. To ensure full development of the scientific
standards, reforms, and restoration activities required by the Federal
Salmon Plan, Congress should fund NMFS Columbia Basin salmon programs
at $69.8 million.
pacific coastal salmon recovery fund
Pacific salmon are a national treasure with enormous economic,
cultural, and environmental significance in the Pacific states of
Washington, Oregon, California, Idaho, and Alaska. A century ago,
salmon were an anchor of the region's economy. Unfortunately, past and
present mismanagement of our rivers, lands, and salmon fisheries have
caused populations of salmon to decline dramatically over the past
century, and 26 runs of Pacific salmon and steelhead are now listed
under the Endangered Species Act.
One important program aimed at restoring imperiled runs of chinook,
coho, sockeye, and chum salmon, as well as steelhead trout, is the
Pacific Coastal Salmon Recovery Fund, funded through the National
Oceanic and Atmospheric Administration. For the past three years, this
program has provided much-needed assistance to state, local, and tribal
governments in Washington, Oregon, California, and Alaska for salmon
recovery projects. This year we urge Congress to make the State of
Idaho and Snake River salmon and steelhead eligible to benefit from
this program as well.
By substantially increasing funding for the Pacific Coastal Salmon
Recovery Fund in fiscal year 2003, Congress can help preserve this
economically, culturally, and ecologically valuable resource and help
the Northwest states and local communities to adopt and embrace the
measures needed to restore Pacific salmon and steelhead. Restoring
salmon will also allow the United States to satisfy treaty obligations
with Northwest Indian tribes and Canada.
We urge Congress to fund the Pacific Coastal Salmon Recovery Fund
at $200 million.
fisheries habitat restoration
The fisheries habitat provided by estuaries and coastal wetlands
serves many essential functions for communities across the nation.
Eighty to 90 percent of all recreational fish catch and 75 percent of
all commercial harvest depends upon healthy coastal and estuarine
habitats. More than half the coastal wetlands in the lower 48 states
have been lost, and almost 40 percent of estuarine habitat has been
impaired by damming and diverting countless rivers and streams.
The Fisheries Habitat Restoration program, funded through the
National Oceanic and Atmospheric Administration (NOAA) Restoration
Center, reaches out to local constituencies to accomplish on-the-
ground, community-based projects to restore estuaries and coastal
habitats. Partnerships and local involvement are fundamental to the
success of this program. Partners typically match federal dollars 1:1
and leverage those dollars up to 10 times more through state and local
participation. To date, the program has funded 179 projects in 25
states, promoting fishery habitat restoration in coastal areas with a
grassroots, bottom-up approach.
We urge Congress to provide the NOAA Fisheries Habitat Restoration
Program with $18,000,000 to help more communities restore and protect
and restore the health of their estuaries and coastal habitats.
hydropower relicensing
The National Marine Fisheries Service (NMFS) would greatly benefit
from additional funding to address the growing number of hydropower
dams that need renewal of their operating licenses from the Federal
Energy Regulatory Commission (FERC). Under the Federal Power Act, NMFS
plays a role in setting license conditions to protect and conserve
anadromous (sea-run) fisheries such as Pacific and Atlantic salmon,
steelhead and sea-run cutthroat trout, and shad. Licenses are nearing
expiration at hundreds of dams around the country, and workloads are
increasing for NMFS and other resource agencies. Increasing NMFS's
limited hydropower relicensing budget would help ensure a more
efficient licensing process, benefit the hydropower industry, and
further efforts to protect and restore our nation's anadromous
fisheries. Congress should provide NMFS with a $2 million increase to
its Habitat Conservation line item specifically for hydropower
relicensing.
______
Prepared Statement of the National Recreation and Park Association
The National Recreation and Park Association appreciates the
opportunity to comment on programs administered by the departments of
Commerce, Justice, and State. As the largest single provider of non-
school recreation services in the country, public park and recreation
entities offer youth in underserved communities, including individuals
with disabilities, expansive opportunities to engage in positive,
enriching activities, learning, and community service. Collectively,
recreation services are provided at over 80,000 sites by a combination
of professionally and technically trained staff supplemented by
volunteers. In many jurisdictions public parks and recreation
coordinate services with law enforcement agencies, schools, and social
services agencies, resulting in effective prevention and crime
reduction.
With this background in mind, the Association urges the
Subcommittee to consider the following.
recommendations
Reinstatement of authorized funds for the Technology Opportunities
Program within the Department of Commerce. The digital divide remains a
serious impediment to communications and learning for millions of
Americans. Increasingly, but only in small increments, youth and adults
are gaining access to these technologies and services at local public
park and recreation sites that also serve as community technology
centers. Through these opportunities individuals are developing skills
required for employment and living in the 21st Century.
Inclusion of public parks and recreation as local eligible agencies
to receive Justice Assistance Grant (JAG) program funds. The
Administration proposed that the JAG program replace the Byrne Formula
Grant Program and the Local Law Enforcement Block Grant program. The
Administration also proposed that $15 million of JAG funds be set aside
to support citizen volunteer programs to improve communities' terrorism
preparedness. Public park and recreation agencies are already
coordinating disaster preparedness activities, including terrorism
preparedness. Public park and recreation agencies also coordinate youth
programs within public housing communities. The Local Law Enforcement
Block Grant (LLEBG) program of fiscal year 2002 included an earmark of
$60 million for Boys and Girls clubs in public housing communities. Yet
public recreation centers run by local governments in these same
communities are not eligible for these funds. Public recreation and
park services are typically more far-reaching then individual private
groups. Thus, they are extremely effective at improving protective
factors for youth and play a pivotal role in crime prevention. Public
services are typically jurisdiction-wide including services to
individuals in public housing communities. The subcommittee should
specifically reference public agencies as being just as instrumental as
Boys and Girls clubs in reducing crime and improving youth development
in public housing communities. We ask the Subcommittee to include
public recreation and park agencies as eligible entities to receive JAG
or LLEBG funds.
An increase in funding for the Juvenile Justice and Delinquency
Prevention Title V program to $130 million. The Subcommittee reported
this level of funding for fiscal year 2002. This year, with three
earmarks of $32 million, only $63 million of Title V funds are actually
available for the core prevention activities, including public
recreation, authorized by the Juvenile Justice and Delinquency
Prevention Act of 1973.
An increase in Title IID Gang Prevention and Intervention funds to
$20 million would bolster prevention efforts nationwide. For each youth
diverted from incarceration, the government saves approximately $43,000
each year. Prevention services are fully cost-effective; they assist
youth in developing individual capacities and ability to contribute to
society.
Restoration of funds for the Juvenile Accountability Incentive
Block Grants (JAIBG) program from $215 million to $250 million. The
Administration's proposed use of these funds includes an earmark of $75
million for Project Child Safe trigger locks, leaving only $235 million
for other activities. Legislation reported in the 107th Congress would
authorize the utilization of JAIBG funds to establish accountability-
based programs that reduce recidivism. Graduated sanctions would
include: counseling, restitution, community service, or supervised
probation. Park and recreation agencies already work with law
enforcement officials to develop accountability-based programs and
graduated sanctions for youth offenders.
perspectives on programs and services
Youth offenders are four times more likely than non-offending youth
to commit suicide. Former Surgeon General David Satcher, M.D. observed
that up to two-thirds of youth in the juvenile justice system actually
suffer from mental health problems. Higher levels of physical activity
are associated with lower levels of mental health among young people,
including anxiety, depression and stress. Research suggests that
adolescents are also less likely to use substances, including tobacco,
if they participate in physical activity programs that incorporate life
skills (not boot camps). The more time youth spend being highly active,
the greater their self-efficacy and self-esteem are found to be.
Public park and recreation services emphasize active recreation and
the contributions of youth to communities through service-learning
projects and youth advisory committees/councils. Often park and
recreation agencies collaborate with law enforcement and social service
agencies. Programs of this type empower youth and frequently spur the
development of community-wide plans to address developmental,
vocational, and academic needs of youth as well as their needs for
health resources.
Researchers for the 2002 National Research Council's Community
Programs to Promote Youth Development study assert that workforce
development programs help youth avoid substance abuse, adolescent
pregnancy, school failure, and delinquency. Park and recreation-
sponsored workforce development programs, based on proven practices,
provide urban youth with opportunities to connect with caring adults,
to develop job skills, and to contribute to their communities. But
these programs need to include technology skills in order to help youth
leave poverty through employment; thus the Technology Opportunities
Program is critical.
The Parks and Recreation Department of McAllen, Texas, for example,
operate a computer center in collaboration with the Public Library
Department. These agencies work together to make classes in a variety
of ``computer use topics'' available throughout the year to underserved
populations. Also in Texas, the Austin Park and Recreation Department
hosts a computer technology center where underserved youth use the
technologies available to make films about their lives. At a library
outreach/computer center in North Aurora, Colorado, Parks and
Recreation for People sponsored a ``Teen Library Corps'' (TLC) to help
users on the computers, and assist customers with library card
applications. In addition, the park and recreation department in Taos,
New Mexico works with a local non-profit, La Plaza Telecommunity, to
make computers with Internet access available for both adult and youth
use. These programs are extremely popular and illustrate innovations
that could be expanded with the help of the Technology Opportunities
Program. The skills individuals learn at community technology centers
will enable them to be more competitive for technology based private
and public sector jobs.
With the assistance of federally sponsored delinquency prevention
and technology programs, public park and recreation agencies, staff,
and civic leaders can strengthen their collective commitment to
creative, results-oriented programs for underserved communities. The
Subcommittee can help youth that have access to vital community
resources to become productive citizens.
National Recreation and Park Association contacts: Erica Shane
Hamilton, Policy Associate and Barry Tindall, Director of Public
Policy, 202/887-0290, [email protected].
______
Prepared Statement of The Humane Society of the United States
As the largest animal protection organization in the country, we
appreciate the opportunity to provide testimony to the Appropriation
Subcommittee on Commerce, Justice, State, and the Judiciary on fiscal
year 2003 funding items of great importance to The Humane Society of
the United States and its more than 7 million supporters nationwide.
Protection For Right Whales
Right whales are arguably the most endangered whale species in U.S.
jurisdiction. The Scientific Committee of the International Whaling
Commission has acknowledged the need for urgent action to reduce human-
related causes of mortality in right whales--specifically ship strikes
and entanglement in fishing gear. The HSUS supports the need for
additional research and action to protect this fragile species. We
request $1 million to be allocated to the Department of Transportation
for the purpose of developing and implementing regulations that would
either shift shipping lanes to areas with less risk to right whales or
slow ship speeds through areas in which right whales are known to
congregate. We ask that $1.5 million be directed to the Department of
Commerce, National Marine Fisheries Service, for the purpose of
establishing cooperative enforcement agreements with the States of
Florida, Georgia, Rhode Island, Massachusetts and Maine. Providing
funds to assist states in enforcing fishery compliance with federally
mandated risk reduction measures is important to assuring that
projected risk reductions are realized. In addition, $2 million should
be directed to fund research into additional risk reduction measures
that can be used by commercial fisheries. This money is for several
purposes including: funding a workshop that would incorporate
engineering and technical expertise from outside the normal sphere of
fishery technology to help generate innovative ideas for modifying
fishing gear; further development of modeling that can help predict
right whale aggregations; funding of field trials and implementation of
promising technological developments; and additional aerial surveys of
the mid-Atlantic right whale migratory corridor.
Protection For Bottlenose Dolphins
The HSUS also requests that $1.5 million be added to the Department
of Commerce, National Marine Fisheries Service budget for the purpose
of expanding research on bottlenose dolphins in the mid-Atlantic. These
monies would fund expanded survey efforts to estimate population
abundance, increase biopsy sampling and telemetry efforts to further
refine understanding of stock boundaries; and to fund additional
experiments with innovative fishing gear to reduce risk of
entanglement.
An additional $1 million should be directed to the National Marine
Fishery Service to increase the level of coverage of marine mammal
fishery observers or alternate platforms for quantifying mortality
levels resulting from interactions with fishing gear.
We need more and better information if we are going to be
successful is saving these magnificent animals.
Thank you in advance for your consideration of our views and we
would be pleased to talk with you or your staff about our
recommendations.
______
Prepared Statement of the International Research Institute for Climate
Prediction
Mr. Chairman, thank you for this opportunity to submit testimony
for the Subcommittee's consideration concerning the fiscal year 2003
Appropriations Bill for the Office of Global Programs within NOAA/
Department of Commerce.
Columbia University's Earth Institute houses the International
Research Institute for Climate Prediction, (IRI), located at the
Lamont-Doherty Campus of Columbia University. The IRI was selected
through an intense, competitive process in 1994 by NOAA (1) to produce
long range, seasonal to interannual forecasts based on major climate
events such as El Nino, and (2) to develop experimental climate models
for improvement of climate forecasting and predictions on a global and
regional scale. NOAA last year extended the original five-year
agreement to include additional long- range goals and research targets.
The requests in this statement represent the generic need for the
maintaining ongoing programs and additional resources needed for NOAA
and its extramural research collaborators to advance the science and
accuracy of climate and weather forecasting.
summary
The components of this statement are:
(1) Maximum support for the Office of Global Programs, funded at a
minimum at the fiscal year 2003 request level of $72.835 million;
(2) Funding of $20 million for a Supercomputer to be shared by
universities/institutions for high end climate modeling and research;
(3) Funding of $20 million for a Supercomputer for NOAA to be used
as a backup for National Weather Service and other NOAA forecasting
purposes, including research.
maximum support for ogp budget
This Committee has supported full funding of the budget request of
the OGP through the past several appropriations acts. Built in to the
OGP budget request are the ongoing research initiatives of several
multiyear efforts, such as the IRI. To maintain continuity and the
essential research core of NOAA's multi-tiered agenda, assurance of
continuity and a stable base of funding are paramount. All of NOAA's
intramural and extramural research initiatives have been determined and
planned by nonpartisan, scientific experts whose goals have been to
improve the science, accuracy and lead-time of long range climate
forecasts, and to improve regional warning systems through down-scale
modeling from IRI global forecasts.
The importance of maintaining and sustaining this comprehensive,
integrated and balanced approach to understanding our climate system
will permit improved and longer lead time forecasting. This in turn
will allow better planning for the effects of climate forced events,
resulting in saved lives, minimized property losses, and improved
planning in resource allocation and crop planting.
This request is for maximum funding for NOAA's OGP activities. At a
minimum, the level for consideration should begin with the fiscal year
2003 request level of $72.835 million.
high end supercomputing
Current climate modeling in the United States is limited by
computer capacity.
The Japanese and European advances in climate modeling and
forecasting have been enabled through the availability of government
funded and provided Supercomputers. U.S. climatologists have now
reached the capacity of currently utilized computer systems in the
high-end tasks associated with water and atmospheric modeling. The
ability to process massive amounts of data can be only achieved through
the acquisition of vector analysis Supercomputers. Vector analysis
Supercomputers are capable of managing and analyzing large databases,
such as those involved in multiple climate modeling on a worldwide
scale.
Vector analysis computers were not available to U.S. government-
funded institutions until recently, when Cray gained the U.S. marketing
rights for NEC (Japanese manufactured) vector analysis Supercomputers.
The current United States approach, using Massive Parallel Processing
(MPP) technology, cannot process the whole of computer modeling tasks
associated with water and atmospheric data on a global scale. The
inherent limitations of the MPP computer architecture cannot embrace
the data as one complex set of variables and adequately process the
multiple paths and variables associated with global modeling.
Generically, scientists acknowledge that the facility must be
located apart and distinctly separate from NOAA's ongoing computer
functions, due to the need for a dedicated Supercomputer specifically
configured for high-end climate and modeling and research. A shared
computer with NOAA for NOAA's use, whether part-time or back up, does
not provide the capability and sustained processing power needed for
the demands associated with high-end climate modeling. This request for
$20 million in fiscal year 2003 is for a computer to be competitively
bid and awarded, and for institutions, like the IRI, to have access for
sharing the use of Supercomputing capacity.
national weather service supercomputer
There is widespread recognition among the extramural research
community for the necessity of improved capacity and backup among
computers for the National Weather Service. There is also a recognized
and documented need in NOAA for a backup computer for the NWS. Last
year's shutdown of NOAA's main computer, and subsequent loss of
forecasting ability, left the NWS unable to provide the services upon
which U.S. citizens, state and local governments, and private industry
have come to rely. The necessity of a backup is clear, and in times of
non-use as a backup, NOAA's internal research demands for this capacity
exist. This statement concerning NOAA's needs represents consensus
among the extramural community for additional resources and
Supercomputer capacity for NOAA and the NWS.
Thank you for this opportunity to present and articulate the needs
and request for climate modeling and research in the United States.
______
DEPARTMENT OF JUSTICE
Prepared Statement of the National Congress of American Indians
On behalf of the National Congress of American Indians (NCAI) and
its more than 200 member tribal nations, we are pleased to have the
opportunity to present written testimony on fiscal year 2003
appropriations for Commerce-Justice-State.
The tragic events of September 11 brought forth the strength and
the determination of our nation to survive in the face of adversity. It
is this same spirit that has carried Indian Country through years of
annihilation and termination. It is this same spirit that has propelled
Indian Nations forward into an era of self-determination. And it is in
this same spirit of resolve that Indian Nations come before Congress to
talk about honoring the federal government's treaty obligations and
trust responsibilities throughout the fiscal year 2003 budget process.
The federal trust responsibility represents the legal obligation
made by the U.S. government to Indian tribes when their lands were
ceded to the United States. This obligation is codified in numerous
treaties, statutes, Presidential directives, judicial opinions, and
international doctrines. It can be divided into three general areas--
protection of Indian trust lands; protection of tribal self-governance;
and provision of basic social, medical, and educational services for
tribal members.
NCAI realizes that Congress must make difficult budget choices this
year. As elected officials, tribal leaders certainly understand the
competing priorities that members of Congress must weigh over the
coming months. However, the fact that the federal government has a
solemn responsibility to address the serious needs facing Indian
Country remains unchanged, whatever the economic or political climate
may be. We at NCAI urge you to make a strong commitment to meeting the
federal trust obligation by fully funding those programs that are vital
to the creation of vibrant Indian Nations. Such a commitment, coupled
with continued efforts to strengthen tribal governments and to uphold
the government-to-government relationship, will truly make a difference
in helping us to create stable, diversified, and healthy economies in
Indian Country.
NCAI's statement focuses on our key areas of concern surrounding
the President's budget request. Of course, there are numerous other
programs and initiatives within the Commerce-Justice-State
appropriations bill that are important to American Indians and Alaska
Natives. Attached to this testimony is a breakdown of key programs for
which we urge your support at the highest possible funding level as the
appropriations process moves forward.
public safety
More than 200 police departments, ranging from tiny departments
with only two or three officers to those with more than 200 officers,
help to maintain public safety in Indian Country. According to a recent
Justice Department \1\ study, the typical Indian Country police
department has no more than three and as few as one officer patrolling
an area the size of the state of Delaware.
---------------------------------------------------------------------------
\1\ U.S. Department of Justice, Office of Justice Programs,
National Institute of Justice, Policing on American Indian
Reservations, September 2001.
---------------------------------------------------------------------------
The same study found that inadequate funding is ``an important
obstacle to good policing in Indian Country.'' According to DOJ, the
appropriate police coverage comparison may be between tribal
departments and communities with similar crime problems. Because the
violent crime rate in Indian Country is more than double the national
average, we should compare our police coverage with large urban areas
with high violent crime rates. According to the Bureau of Justice
Statistics, cities like Baltimore, Detroit, and Washington have high
police-to-citizen ratios of 3.9 to 6.6 officers per 1,000 residents. On
the other hand, virtually no tribal police department has more than 2
officers per thousand residents.
We can certainly point to the lack of an adequate police presence
as a contributing factor to the crime rate that plagues many of our
communities. The Bureau of Justice Statistics has just released
findings that the violent crime rate for American Indians and Alaska
Natives is twice as high as the rate reported by Hispanics and Whites
and one and one-half times that of African-Americans.
Another contributing factor is our extremely limited jails space in
which to house adult and juvenile offenders. According to the Bureau of
Justice Statistics, tribal jail capacity exceeded 118 percent in 2000,
an increase of seven percent from the previous year.
Given that the Justice Department itself just published a study
that justifies the need to increase resources for Indian Country law
enforcement, it is astounding to see that our law enforcement programs
actually took a $40 million direct hit in the fiscal year 2003 budget
request. The budget would eliminate all $35 million in tribal jail
construction funding and would cut $5 million in tribal law enforcement
personnel funds. We strongly oppose these cuts, and request an increase
to the fiscal year 2002 funding levels for Indian Country law
enforcement programs.
economic development
The Census Bureau's Poverty in the United States for 2000 showed
that American Indians and Alaska Natives remain at the bottom of the
economic ladder--with 25.9 percent of our population falling below the
poverty line. This compares to an 11.9 percent poverty rate for all
races combined. Today, unemployment rates in Indian Country are the
highest in the nation, sometimes topping 50 percent. The development of
new and diverse businesses in Indian Country is one cornerstone of
self-sufficiency.
Many economic development programs that assist tribes would be cut
or eliminated in the budget. The request for the Small Business
Administration would eliminate One Stop Capital Shops, Micro-Loan
Technical Assistance, New Markets Venture Capital, and BusinessLINC.
The Administration also failed to request any funding whatsoever to
establish the Office of Native American Business Development, as
authorized in the Native American Business Development, Trade
Promotion, and Tourism Act of 2000.
Furthermore, programs designed to help tribes close the ``dial-tone
divide'' and improve the telecommunications infrastructures in their
communities are eliminated outright or severely reduced in the
President's budget. Nowhere is the lack of telecommunications
infrastructure more apparent than in Indian Country. According to
Commerce Department statistics, nearly forty percent of rural Native
American households lack basic telephone service, and less than ten
percent have a personal computer or any kind of access to the Internet.
Since 1994, the Technology Opportunities Program (TOP) has helped
to improve the technology infrastructure in American Indian and Alaska
Native communities. In fiscal year 2002, a record $4.23 million was
provided to projects directly benefiting Indian Country. These grants,
combined with contributions from the private sector and state and local
organizations, extend the benefits of advanced telecommunications
technologies to underserved communities.
Reducing or eliminating economic development tools for Indian
Country is unthinkable in the face of the compelling needs that exist.
NCAI has approved numerous resolutions \2\ calling for increased
support of economic development programs within the Small Business
Administration and Department of Commerce, and we urge that these
programs and others that are designed to promote tribal community
development be fully funded.
---------------------------------------------------------------------------
\2\ See attached resolutions SPO-01-019, SPO-01-020, SPO-01-022,
SPO-01-024.
---------------------------------------------------------------------------
conclusion
Thank you for this opportunity to present written testimony
regarding Commerce-Justice-State appropriations programs that benefit
Indian Country. The National Congress of American Indians calls upon
Congress to fulfill the federal government's fiduciary duty to American
Indians and Alaska Native people. This responsibility should never be
compromised or diminished because of any political agenda or budget cut
scenario. Tribes throughout the nation relinquished their lands and in
return received a trust obligation, and we ask that Congress maintain
this solemn obligation to Indian Country and continue to assist tribal
governments as we build strong, diverse, and healthy nations for our
people.
Attachment A.--Commerce-Justice-State Appropriations Benefiting Tribes
department of commerce
The budget request for the Commerce Department is approximately
$5.2 billion, $14 million less than the estimate for the current year.
Like last year, the Administration has proposed elimination of the
Technology Opportunities Program, which in fiscal year 2001 provided
$4.2 million in competitive grants to tribes and tribal organizations
for the purpose of expanding telecommunications and technology in their
communities. No funds were requested to establish the Office of Native
American Business Development, as authorized in the Native American
Business Development, Trade Promotion, and Tourism Act of 2000.
[In millions of dollars]
----------------------------------------------------------------------------------------------------------------
Fiscal year Fiscal year Fiscal year
Commerce 2001 enacted 2002 enacted 2003 request
----------------------------------------------------------------------------------------------------------------
Economic Development Administration............................. 412.0 335.0 317.2
Minority Business Development Agency............................ 27.0 28.4 29.8
Public Telecommunications Facilities............................ 43.5 43.5 43.6
Technology Opportunities Program................................ 43.5 15.5 ..............
----------------------------------------------------------------------------------------------------------------
NCAI Resolution #SPO-01-020--Supports a $300 million increase to
the Economic Development Administration in fiscal year 2003 to support
increased financial assistance to tribal economic and development and
planning projects, including tribal manufacturing.
NCAI Resolution #SPO-01-022--Supports funding for the Office of
Native American Business Development.
Department of Justice Indian Country law enforcement programs took
a hit in the fiscal year 2003 DOJ request, with the Administration
proposing to eliminate all $35 million in tribal jail construction
funding and to cut $5 million in tribal law enforcement personnel
funds.
[In millions of dollars]
----------------------------------------------------------------------------------------------------------------
Fiscal year Fiscal year Fiscal year
DOJ 2001 enacted 2002 enacted 2003 request
----------------------------------------------------------------------------------------------------------------
U.S. Attorneys.................................................. 5.00 .............. ..............
Jail Construction............................................... 33.93 35.19 ..............
Tribal Courts................................................... 7.98 7.98 7.98
Alcohol and Substance Abuse..................................... 4.99 4.99 4.99
Juvenile Justice \1\............................................ 12.47 12.47 12.47
Law Enforcement Personnel (COPS Grants) \2\..................... 40.00 35.00 30.00
----------------------------------------------------------------------------------------------------------------
\1\ Fiscal year 2002 Juvenile Justice Funds also can be used for prevention activities focusing on alcohol and
drugs.
\2\ As in previous years, fiscal year 2002 law enforcement personnel funds can be used for equipment and
training.
small business administration
The fiscal year 2003 request for the SBA is $798 million, down from
$1.1 billion in fiscal year 2002 spending. While funding for Small
Business Development Centers would rise under the President's proposal,
many other programs that assist tribes would be eliminated.
[In millions of dollars]
----------------------------------------------------------------------------------------------------------------
Fiscal year Fiscal year Fiscal year
SBA 2001 enacted 2002 enacted 2003 request
----------------------------------------------------------------------------------------------------------------
Small Business Development Centers.............................. 88 88 161
One Stop Capital Shops.......................................... 3 .............. ..............
Micro-Loan Technical Assistance................................. 20 18 ..............
New Markets Venture Capital..................................... 37 .............. ..............
BusinessLINC.................................................... 7 2 ..............
----------------------------------------------------------------------------------------------------------------
NCAI Resolution #SPO-01-019--Support $25 million for SBA Office of
Native American Affairs in fiscal year 2003 to provide training and
technical assistance and to develop and expand Tribal Business
Information Centers.
NCAI Resolution #SPO-01-024--Supports $750,000 in fiscal year 2003
to the SBA Office of Women-Owned Businesses to establish an American
Indian, Alaska Native, and Native Hawaiian Women Entrepreneur Outreach
and Technical Assistance Pilot Project.
______
Prepared Statement of the Middle Atlantic-Great Lakes Organized Crime
Law Enforcement Network
The Regional Information Sharing Systems (RISS) Program
respectfully requests that Congress, as authorized in the USA PATRIOT
ACT of 2001 (Public Law 107-56) appropriate for fiscal year 2003, $50
million to continue their support in combating drug trafficking and
organized crime.
These funds will enable RISS to continue its mandate of assisting
law enforcement in identifying, targeting, prosecuting, and removing
criminal conspirators involved in terrorism activity, drug trafficking,
organized criminal activity, criminal gangs, and violent crime that
span multijurisdictional boundaries. Funds will allow RISS to continue
to support the investigation and prosecution efforts of almost 6,000
local, state, and federal law enforcement member agencies across the
nation comprising 675,000 sworn law enforcement personnel.
Through funding from Congress, RISS has implemented and operates
the only secure Web-based nationwide network--called riss.net--for
communications and sharing of criminal intelligence by local, state,
and federal law enforcement agencies. Funds will allow RISS to upgrade
the technology infrastructure and resources to support increased use
and reliance on the system by member law enforcement agencies and
support the integration of other systems connected to riss.net for
information sharing and communication. Using Virtual Private Network
technology, the law enforcement users access the public Internet from
their desktop and have a secure connection over the private riss.net
intranet to all RISS criminal intelligence databases and resources.
RISS member law enforcement agencies accessed riss.net an average of
3.6 million times per month during fiscal year 2001. Riss.net is a
proven, highly effective system that improves the quality of criminal
intelligence information available and puts it in the hands of the law
enforcement officers to make key decisions at critical points in their
investigation and prosecution efforts.
The Office of Justice Programs (OJP), Regional Information Sharing
Systems (RISS) is a federally funded program comprised of six regional
intelligence centers. The six centers provide criminal information
exchange and other related operational support services to local,
state, and federal law enforcement agencies located in all fifty
states, the District of Columbia, U.S. territories, Canada, England,
and Australia. These centers are:
--Middle Atlantic-Great Lakes Organized Crime Law Enforcement Network
(MAGLOCLEN): Delaware, District of Columbia, Indiana, Maryland,
Michigan, Pennsylvania, Ohio, New Jersey, and New York, as well
as Canada and England.
--Mid-States Organized Crime Information Center (MOCIC): Illinois,
Iowa, Kansas, Minnesota, Missouri, Nebraska, North Dakota,
South Dakota, and Wisconsin, as well as Canada.
--New England State Police Information Network (NESPIN): Connecticut,
Maine, Massachusetts, New Hampshire, Rhode Island, and Vermont,
as well as Canada.
--Regional Organized Crime Information Center (ROCIC): Alabama,
Arkansas, Florida, Georgia, Kentucky, Louisiana, Mississippi,
North Carolina, Oklahoma, South Carolina, Tennessee, Texas,
Virginia, and West Virginia, as well as Puerto Rico and the
U.S. Virgin Islands.
--Rocky Mountain Information Network (RMIN): Arizona, Colorado,
Idaho, Montana, Nevada, New Mexico, Utah, and Wyoming, as well
as Canada.
--Western States Information Network (WSIN): Alaska, California,
Hawaii, Oregon, and Washington, as well as Canada, Guam, and
Australia.
Since the September 11th attacks, the idea of putting the right
information in the right hands has been offered as a solution to the
war on terrorism. Because of this, information technology will play a
key role. The RISS secure Intranet; a proven, trusted law enforcement-
sharing network will play a vital role in responding to terrorist
activity.
RISS is also a force multiplier in responding to increased violent
criminal activity by street gangs, drug traffickers, sophisticated
cyber criminals, and emerging criminal groups that require a
cooperative effort by local, state, and federal law enforcement. There
is a rising presence of organized and mobile narcotics crime,
distinguished by increases in drug-related emergency room incidents,
increases in drug purities (especially heroin, methamphetamine,
ecstasy, cocaine, GHB, and marijuana), and increasing communications
sophistication by the criminal networks. Interagency cooperation has
proven to be the best method to combat the increasing criminal activity
in these areas. The RISS centers are filling law enforcement's need for
rapid, but controlled sharing of information and intelligence
pertaining to known or suspected drug traffickers and criminals.
Congress funded the RISS Program to address this need as evidenced by
its authorization in the Anti-Drug Abuse Act of 1988 and the USA
PATRIOT ACT of 2001.
The success of RISS has been acknowledged and vigorously endorsed
by the International Association of Chiefs of Police (IACP), as well as
other national law enforcement groups such as the National Sheriff's
Association (NSA) and the National Fraternal Order of Police (NFOP).
These groups have seen the value of this congressional program to law
enforcement nationally and have worked with the National Association of
Attorneys General (NAAG), the National District Attorneys Association
(NDAA), and the National Criminal Justice Association (NCJA) to further
strengthen the awareness of RISS. In fact, the National Association of
Attorneys General passed a resolution calling for full funding for RISS
and increased funding for the Bureau of Justice Assistance (BJA).
According to the Executive Working Group for Federal-State-Local
Prosecutorial Relations, in its publication titled, Toward a Drug Free
America: A Nationwide Blueprint for State and Local Drug Control
Strategies, ``Each state should develop a computerized capacity to
store, collate, and retrieve intelligence and historical information
concerning drug offenders. Before initiating new computer projects,
each state should take advantage of existing computerized information
exchange and pointer systems, such as the Regional Information Sharing
Systems (RISS). Each state should actively participate in multi-state,
regional, and national information networking projects.''
RISS is operating current state-of-the-art technical capabilities
and systems architecture that allow local, state, and federal law
enforcement member agencies to interact electronically with one another
in a secure environment. The RISS system has built-in accountability
and security. The RISS secure intranet (riss.net) protects information
through use of encryption, smart cards, Internet protocol security
standards, and firewalls to prevent unauthorized access. The RISS
system is governed by the operating principles and security and privacy
standards of 28 CFR Part 23 (Criminal Intelligence Systems Operating
Policies). The technical architecture adopted by RISS requires proper
authorization to access information, but also provides flexibility in
the levels of electronic access assigned to individual users based on
security and need-to-know issues. Riss.net supports secure e-mail and
is easily accessible using the Internet. This type of system and
architecture is referenced and recommended in the General Counterdrug
Intelligence Plan (GCIP).
The GCIP promotes federal, state, local, and tribal law enforcement
information sharing, and leveraging resources and existing cooperative
mechanisms. RISS fully supports the GCIP and the following initiatives
are underway related to action items in the Plan. RISS has entered into
a partnership with the High Intensity Drug Trafficking Areas (HIDTA) to
electronically connect all of the HIDTAs to riss.net for communications
and information sharing. Currently 13 HIDTAs are electronically
connected as nodes to riss.net and RISS is working to complete the
connection of the remaining HIDTAs. Seven state agencies are currently
connected as nodes on riss.net with an additional ten states pending
connection. The National Drug Intelligence Center (NDIC) is a member of
RISS and uses the RISS network as a communications mechanism for
publishing counterdrug intelligence products to federal, state, and
local law enforcement members. RISS and the El Paso Intelligence Center
(EPIC) officials entered into a partnership and have electronically
connected EPIC as a node to riss.net to capture clandestine laboratory
seizure data from RISS state and local law enforcement member agencies.
Riss.net has also been recommended by Attorney General Ashcroft as the
communications link to the ninety-three U.S. Attorney's offices for
instant communication regarding terrorist activities. RISS needs funds
to purchase hardware and software to support and integrate these
systems that improve the accessibility to critical criminal
intelligence for law enforcement agencies throughout the country.
RISS continues to promote interagency investigations by improving
capabilities for member agencies to quickly and easily access RISS
databases by expanding the enrollment of member agencies for access to
riss.net through distribution of security hardware and software. Web
browser technology has been implemented for use by member agencies in
accessing the RISS intelligence database pointer system and the RISS
National Gang Database. At the direction of Congress, dial-up (800)
access capability to the RISS secure intranet will be provided for
member agencies in geographic areas where access to Internet Service
Providers is not available. Funds are required to increase the
distribution of security hardware and software to additional RISS
member agencies that need electronic access to riss.net.
In fiscal year 2002, Congress invested $28.3 million in the RISS
Program. During the past 5 fiscal year funding cycles and up to the
current time, RISS has furnished case specific support to hundreds of
local and state police, as well as sheriff departments. These
investigations have had an unrivaled impact on the local jurisdictions
of main street America, the grass roots of law enforcement in the
nation. During this same time period, RISS implemented the secure
intranet providing Web-based access for communications and information
sharing to almost 6,000 law enforcement agencies nationwide--a network
which is now electronically linked to 13 HIDTAs, seven state law
enforcement systems, and the EPIC Clandestine Laboratory Seizure
System. The Southwest Border States Anti-Drug Information System
(SWBSADIS) initiative encompassing the states of Arizona, California,
New Mexico, and Texas is also integrated with riss.net. RISS is
currently working to connect the Bureau of Land Management, Department
of Interior, NW3C, and FINCen to riss.net as nodes. To support this
increased need to integrate other systems and the increased demand for
RISS services, RISS is requesting an increase in funding to $50 million
for fiscal year 2003.
In view of today's increasing demands on federal, state, and local
law enforcement budgets, requests for RISS services have risen. The
Institute for Intergovernmental Research (IIR) report on the RISS
Program showed that as of December 31, 2001, the number of criminal
subjects maintained in the RISSIntel intelligence databases for all
centers combined was 882,679 with 159,035 new subjects being added in
2001. The combined databases of all six RISS centers also maintained
data on 1,491,827 locations, vehicles, weapons, and telephone numbers
for a grand total of 2,374,506 data entries available for search. For
the twelve-month period January through December 2001, the total number
of inquiries by law enforcement member agencies to the RISSIntel
database for all six regional intelligence centers combined was
618,262. These inquiries resulted in hits or information to assist law
enforcement agencies in their criminal cases. All RISS centers combined
delivered 11,169 analytical products to member agencies in support of
their investigation and prosecution efforts in 2001.
This support of law enforcement has had a dramatic impact on the
success of their investigations. Over the three-year period 1999-2001,
RISS generated a return by member agencies that resulted in 11,772
arrests, seizure of narcotics valued over $242 million, seizure of
almost $15 million in currency, and recovery or seizure of property
valued at over $24 million. In addition, almost $4 million was seized
through RICO civil procedures. In the 21-year period since 1980 when
the Program was fully implemented, the RISS Program has assisted its
member agencies with their investigations. Results of these
investigations have amounted to over $12.6 billion in recoveries at a
total cost that approximates 2.52 percent of that amount, or a $40
return for every dollar spent.
RISS is continuing initiatives with the Federal Bureau of
Investigation and with the Bureau of Alcohol, Tobacco and Firearms,
U.S. Department of the Treasury to assist in their efforts to
facilitate the exchange of criminal intelligence with state and local
law enforcement. RISS continues to work with federal and state
corrections departments to strengthen cooperation and information
sharing with the law enforcement community, and to maintain a national
prison gang database to identify prison gang criminal activity, both
within and outside the prison environment. We have established a
working relationship with gang investigators across the nation to
identify and maintain information on violent street gangs, as well as
their membership, organization structure, migration trends, and their
propensity for violence.
RISS has also assisted the Office of Juvenile Justice and
Delinquency Prevention, and continues to work with federal, state, and
local agencies in their efforts to combat the menace of drugs on our
street, and the growing influence of youth gangs in the distribution
and sale of drugs.
The Bureau of Justice Assistance administers the RISS Program and
has established guidelines for provision of services to member
agencies. The RISS regional intelligence centers are subject to
oversight, monitoring, and auditing by the U.S. Congress, the General
Accounting Office, a federally funded program evaluation office; the
U.S. Department of Justice, Bureau of Justice Assistance; and local
government units. The Intelligence Systems Policy Review Board also
monitors the RISS centers for 28 CFR Part 23 compliance. This 28 CFR
Part 23 regulation places stricter controls on the RISS intelligence
sharing function than those placed on federal, state, or local
agencies. Evaluation of RISS center operation has been very positive.
Full funding of the RISS Program is necessary in order to permit
membership growth and improve service capabilities to the membership
nationwide. In the past five years, RISS membership has increased 25
percent to almost 6,000 local, state, and federal law enforcement
agencies at present. It is respectfully requested that the Congress
fully fund the RISS Program as a line item in the congressional budget,
in the requested amount of $50 million.
We are grateful for this opportunity to provide the committee with
this testimony and appreciate the support this committee has
continuously provided to the RISS Program.
______
Prepared Statement of the National, Coordinated Law-Related Education
Program
I am Lee Arbetman, the Coordinator of the National, Coordinated
Law-Related Education Program. I am submitting this testimony on behalf
of Youth for Justice, the National, Coordinated Law-Related Education
Program (LRE). The National, Coordinated Law-Related Education Program
received an appropriations earmark for fiscal year 2002 in the amount
of $1.9 million.\1\ The need for the Program continues to substantially
exceed the Program's resources. Accordingly, for fiscal year 2003, the
National, Coordinated Law-Related Education Program respectfully
requests the Subcommittee's appropriations support at a level of $2.4
million. In addition to helping LRE to meet the increasing demands on
the Program, this increased funding level would also (1) allow the
Program to increase its funding to state LRE programs; and (2) make
expansion of the Program possible in three critical areas including
teaching students about terrorism; youth offender reentry programs; and
school safety.
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\1\ Ten percent of the fiscal year 2002 earmark will be set aside
for an independent evaluation of the Program as required by the
Conference Report accompanying the fiscal year 2002 appropriations act
for the Departments of Commerce, Justice, and State, the Judiciary and
Related Agencies.
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lre/youth for justice--helping young people to identify and implement
solutions to violence
LRE/Youth for Justice is committed to involving young people in
each state directly in identifying and implementing solutions to this
nation's epidemic of violence. The Program's approach is to teach young
people about the law so that they can lead their lives within the law.
In the last decade, the National Program has reached millions of at-
risk children and trained thousands of teachers, juvenile justice
counselors, and law enforcement officials.
Law-Related Education, despite its name, has nothing whatsoever to
do with legal or pre-legal training. The National, Coordinated Law-
Related Education Program has a proven record of success in juvenile
delinquency and violence prevention. Law-related lessons reach at-risk
children and juvenile offenders in school and juvenile justice settings
in urban, suburban and rural environments. Youth for Justice meets its
goals by developing and maintaining strong, viable LRE centers in each
state. The National Program leverages a tiny federal investment, $1.9
million in fiscal year 2002, many times over in private sector and
state and local money and in in-kind support from the criminal justice
and juvenile justice communities.
The program has two components. The first component of the program
is intervention. This part of the program operates primarily in various
kinds of juvenile justice facilities. In settings ranging from
detention centers to training schools and after-care, Law-Related
Education Programs help youth develop problem-solving, conflict
resolution, and communication skills in the context of engaging lessons
that focus on personal responsibility.
The second component, prevention, operates primarily in elementary
and secondary schools. When you visit a school involved in this
program, you are very likely to see a teacher, a judge, a lawyer, the
town's police chief, a law student or a probation officer working with
a class of students. In some of the best Youth for Justice classrooms,
police officers co-teach with classroom teachers on a daily basis.
the national, coordinated law-related education program is a vital,
cost-effective program
The National, Coordinated Law-Related Education Program is
comprised of five not-for-profit corporations, each of which is
recognized nationally and internationally as a leader in the field of
law and civic education: The American Bar Association's Division for
Public Education; the Center for Civic Education; the Constitutional
Rights Foundation; Street Law, Inc.; and the Phi Alpha Delta Public
Service Center. By combining their expertise and experience as
teachers, school administrators, juvenile justice professionals,
attorneys and professors, these five organizations have successfully
administered the nationwide program.
Thanks to the continued commitment of this Subcommittee, Youth for
Justice, the National, Coordinated Law-Related Education Program, has
built a vital, cost-effective program. This program:
--Involves young people in identifying and implementing solutions to
violence;
--Promotes research-based educational programs that strive for safe,
disciplined and drug-free schools and communities;
--Teaches young people acceptable ways to resolve conflicts;
--Fosters constructive attitudes towards authority figures;
--Provides young people with meaningful opportunities to serve their
communities;
--Promotes understanding of and reasoned commitment to the rule of
law along with tolerance for varied points of view in a free
and diverse society; and
--Helps young people understand the democratic process and develop
the decision-making and problem-solving skills to enable their
full participation in that process.
LRE/Youth for Justice uses technology as a cost-effective way to
expand its reach to the LRE field. For example, LRE has posted a
planning guide for its Youth Summits on the Internet as well as free
competition mock trials and descriptions of and contact information for
state LRE programs.
Youth for Justice is committed to providing leadership in the
national effort to stop the outrage of violence committed by and
perpetrated against this nation's youth. Each Spring, thousands of
young people from both the school and juvenile justice settings gather
with public officials to participate in Youth Summits designed to help
develop public policy to help prevent violence by and against youth.
Law-Related Education is an extraordinarily effective prevention
program, but it is also an extraordinarily effective intervention
program--Law-Related Education also reaches juvenile offenders in
halfway houses, detention centers, and other non-school settings.
expansion of the national program is critical in three areas
The National, Coordinated Law-Related Education Program has
identified three areas in which expansion of the National Program is
critical. In addition to allowing the Program to increase its funding
to state LRE programs, funding at the $2.4 million level would make
expansion in the following three areas possible: (1) teaching students
about terrorism; (2) youth offender reentry programs; and (3) school
safety.
Teaching Students About Terrorism.--The expanded program would
allow state centers to link with homeland security efforts.
Specifically, the National Coordinated Law-Related Education Program
would use the national network of statewide LRE centers to provide
specially developed educational materials for teaching students about
terrorism, including the constitutional powers of the executive and
legislative branches in dealing with war and foreign affairs. In
addition, specially developed educational materials would also address
the role of the judicial branch in analyzing the tension between the
compelling need to protect against terrorism while, at the same time,
protecting individuals' civil liberties.
Youth Offender Reentry Programs.--Additional funding for fiscal
year 2003 would allow Youth for Justice to expand its pilot efforts to
add cutting-edge life skills and civic participation educational
components to youth offender reentry programs being promoted by the
U.S. Department of Justice around the country. As part of the
Department of Justice's efforts to strengthen reentry programs, Youth
for Justice would customize lesson plans for use in reentry programs in
correctional settings as well as in community-based settings.
Increased Focus on School Safety.--The Program also plans to
increase its focus on school safety through special training for school
resource officers and other school officials as well as through a
partnership with the National Resource Center for Safe Schools.
assistance to state law-related education programs
Assistance from the National, Coordinated Law-Related Education
Program continues to enhance state Law-Related Education programs. For
example--
South Carolina.--In South Carolina, students participate in mock
trials, mock congressional hearings through the We the People Program,
and learn conflict resolution skills from teachers who receive training
through LRE. In May 2000, the South Carolina Bar hosted the 17th Annual
National High School Mock Trial Championships in Columbia. In July
2002, the South Carolina Bar will host the Southeastern Regional We the
People Summer Institute for classroom teachers. The LRE Division of the
South Carolina Bar also enjoys collaborative efforts with such groups
as the South Carolina Department of Education, the South Carolina
Council for Social Studies, the South Carolina Middle School
Association, the South Carolina Department of Juvenile Justice, the
South Carolina Association of School Resource Officers/State
Association of Crime Prevention Officers, and the South Carolina
Criminal Justice Academy.
Hawaii.--The LRE program in Hawaii provides training and funds for
several education projects in Hawaii's public and private schools
including We the People, Project Citizen, and Kids Voting Hawaii. This
year's LRE support allowed the Hawaii State Judiciary and non-profit
Hawaii Friends of Civic and Law-Related Education to continue Parents
and the Law (PAL), a project providing legal information to at-risk
parents at every public high school teen parenting class in the state,
as well as several juvenile detention facilities, adult corrections
settings, and social service agencies.
New Hampshire.--The LRE program in New Hampshire operates statewide
and helps thousands of young people throughout the state each year to
appreciate our democracy and participate in our democracy as law-
abiding, effective citizens. The LRE program in New Hampshire has a
busy 2002 schedule. The Nashua High School team won the statewide We
the People competition in January, and the mock trial competition was
held in early April. Both winning teams will participate in the
national competitions. The Lawyer in Every School project is well
underway for the first week of May.
Colorado.--In Colorado, over 300 teachers attended the 2001 annual
public-private partnership conference--the largest number in the past
sixteen years. The conference theme, Balancing Liberty and Security,
provided an opportunity for teachers to renew their commitment to teach
about our democratic institutions in the wake of the terrorist attack
on the United States. In addition, in May, for the eighth year in a
row, at-risk youth from Colorado schools will participate in a Colorado
Project Citizen Showcase where they meet with federal, state, and local
policymakers to present youth perspectives on policy issues that impact
their lives. Hundreds of students participate in this youth-empowering
program.
evaluations and studies of law-related education
For the past two decades, researchers have consistently reported
that law-related curricula and instruction make a positive impact on
youth when compared with traditional approaches to teaching and
learning law, civics, and government:
--The Office of Juvenile Justice and Delinquency Prevention has noted
that evaluations of the Law-Related Education Program have been
``encouraging . . . confirming the previous findings that such
education serves as a significant deterrent to delinquent
behavior''. Eighth Analysis and Evaluation of Federal Juvenile
Delinquency Programs, U.S. Department of Justice, OJJDP, p. 60
(1985). The Twelfth Analysis and Evaluation of Federal Juvenile
Delinquency Programs published in 1988 similarly states, ``[A]
national study suggests that Law-Related Education, when
properly implemented, can reduce the tendency to engage in
delinquent behavior.''
--A review of the research in Law-Related Education and related
fields conducted by Dr. Jeffery W. Cornett (April 1997)
concludes that LRE programs have a positive effect on student
knowledge about law and legal processes, and about individual
rights and responsibilities. Research studies indicate that
effective LRE programs have improved juveniles' attitudes
toward the justice system and toward authorities.
--In January 2001, Caliber Associates, the Office of Juvenile Justice
and Delinquency Prevention's evaluation contractor, analyzed
Law-Related Education in terms of programs proven to be
effective in delinquency prevention and intervention. The
results of this study demonstrate the promise of Law-Related
Education with respect to delinquency prevention and
intervention.
conclusion
The National, Coordinated Law-Related Education Program has a
unique and remarkable record of achievement and continued support is
crucial for the following reasons:
First, congressional support for Law-Related Education is vital to
its survival.
Second, the federal government and, in particular, the Congress,
has made a substantial investment over more than a decade in the
creation of a National, Coordinated Law-Related Education network and
infrastructure including state coordinating organizations.
Third, only a national program will undertake national initiatives
that benefit the entire country, such as national training; national
technical assistance; state financial assistance; new program and
curriculum development such as Law-Related Education's highly
successful and acclaimed Youth Summits; and the replication of
successful state programs and the avoidance of unsuccessful pilot
programs.
Fourth, federal money is seed money used to sustain a national
program which raises approximately seven times the federal support
through state legislative support, private donations and in-kind
support.
For all of these reasons, the National, Coordinated Law-Related
Education Program is seeking earmark support at the $2.4 million level.
We thank you, Mr. Chairman and the members of this Subcommittee, for
your support over all these many years and we ask for your continued
support.
______
Prepared Statement of The National Consortium for Justice Information
and Statistics
The Membership Group of SEARCH submits this testimony seeking
appropriation support for our National Technical Assistance and
Training Program in the fiscal year 2003 Byrne discretionary program
appropriation for the Bureau of Justice Assistance (BJA), U.S.
Department of Justice (DOJ). The National Technical Assistance and
Training Program received an appropriations earmark in fiscal year 2002
in the amount of $2.0 million. For the reasons described below, we
respectfully submit this testimony to request funding at the $4.0
million level for fiscal year 2003.
SEARCH is a nonprofit criminal justice organization governed by a
Membership Group comprised of one gubernatorial appointee from each of
the 50 states, the District of Columbia, Puerto Rico and the U.S.
Virgin Islands. For over 30 years, we have dedicated our efforts to
assisting state and local justice agencies combat crime and administer
justice through the effective and responsible use of information and
identification technologies.
SEARCH's National Technical Assistance and Training Program
provides no-cost assistance to all components of the state and local
criminal justice system with respect to the development, operation,
improvement and/or integration of all types of justice information
systems. This significant program helps state and local agencies work
more efficiently and effectively through the use of advanced
information technology, and it also creates the foundation for a
national information infrastructure for justice systems.
SEARCH continues to experience steady growth in demand for the
program. We are also experiencing a marked increase in the complexity
of these efforts, as many involve multiple agencies or jurisdictions
and an increase in the amount of time spent on research and site
visits--often as many as four visits per assistance effort. There are a
number of reasons for this demand, including the success of grant
programs such as the Edward Byrne Memorial State and Local Law
Enforcement Assistance Program, the Local Law Enforcement Block Grants
Program, the COPS Technology Grant Program and the Crime Identification
Technology Act, which have provided seed money for justice information
systems automation and integration.
Also impacting the continued demand for SEARCH technical assistance
and training services is the critical need of the nation's criminal
justice agencies to share complete and accurate information quickly.
The need to share information quickly has dramatically escalated as a
result of the terrorist attacks of September 11, 2001. Criminal justice
agencies need to share information in order for the system of justice
to function, and for purposes of national security. These agencies are
now confronted with an urgency to exchange information that they have
not previously experienced. The need to capture, analyze and share
information among federal, state and local justice agencies (and other
government agencies involved in homeland security efforts) has never
been more evident or more important.
We want to commend BJA and its fine, professional staff. Working in
partnership with SEARCH, BJA has provided strong, national leadership
to create opportunities for information systems training and technical
assistance for state and local criminal justice officials.
Technical Assistance Program Benefits all States
SEARCH provides technical assistance via written correspondence,
telephone consultaions, electronic mail, an Internet Website and onsite
visits to agencies nationwide (including assistance focusing on
statewide or regional justice integration efforts), as well as
assistance provided at our National Criminal Justice Computer
Laboratory and Training Center in Sacramento, California. SEARCH is
responsive to technical assistance requests from every state, assisting
agencies from all branches of government (state, county, city,
regional) and providing guidance to every discipline in the justice
system, including law enforcement, courts, prosecution, probation,
parole, corrections and other case management agencies.
Integrated systems assistance typically involves being onsite to
help a state or region establish an automated justice information
system, or evaluate and plan for multiagency integration of existing
systems. These efforts are typically significant and complex, can
involve multiple agencies and site visits, and deal with issues with
far-reaching impact on state and local governments. SEARCH is currently
providing such long-term assistance to agencies in Colorado, Hawaii,
Kentucky, Texas, Washington and Wisconsin, among others.
In the past year, SEARCH has provided hundreds of technical
assistance efforts via telephone, letter and email; thousands of
Internet-based assistance efforts; and dozens of technical assistance
efforts provided onsite at justice agencies or at our Sacramento
facility. In fiscal year 2003, as mentioned earlier, we expect those
numbers to increase dramatically as demand for our technical assistance
services rises.
National Training Program Can Help Justice Agencies Enhance Their
Information-sharing Capabilities, Which is Vitally Important to
Homeland Security
In light of the terrorist attacks of last September 11, it is
critical that state and local criminal justice agencies be able to use
information technology in the fight against terrorism and, in
particular, to share information with federal, state and local agencies
with homeland security responsibilities. The nature of the technical
assistance requests that SEARCH receives is expected to broaden and
involve problems associated with the automated sharing of information
related to: The deployment and support of first responders; the
prediction of terrorist activity; and the identification and
investigation of individual terrorists or terrorist groups.
Agencies needing information from state and local criminal justice
agencies include, for example, the White House Office of Homeland
Security and state and local offices of homeland security and defense;
the Federal Emergency Management Agency and state and local offices of
emergency preparedness; the Immigration and Naturalization Service; and
the U.S. Department of Transportation and its Transportation Security
Administration.
SEARCH's request for a funding increase of $2.0 million over its
fiscal year 2002 earmark would allow the National Technical Assistance
and Training Program to meet approximately 40 additional technical
assistance requests.
National Training Program Continues to be Responsive to Cybercrime
Threats
SEARCH continues to help the nation's law enforcement agencies
combat the escalating problem of computer crime by training and
equipping them with the skills needed to investigate cybercrime, make
arrests and prosecute offenders. Since its inception, SEARCH's National
Technical Assistance and Training Program has trained more than 31,000
criminal justice officials from every state in the use of computers and
other information technologies. In fiscal year 2002, SEARCH will train
more than 3,000 state and local criminal justice officials across the
nation, both at agencies and at our National Criminal Justice Computer
Laboratory and Training Center in Sacramento. SEARCH has implemented a
Mobile Training Center, which uses laptops and other mobile equipment,
to provide training at more sites nationally.
Training courses focus on providing investigators with critical
operational skills, knowledge and techniques that will have a real-
world impact, enabling them to gain a technological edge over the new
breed of criminals who use computer technology to commit crimes such as
fraud, theft and the online sexual exploitation of children. SEARCH's
training courses, which range from one day to two weeks in length,
include: The Investigation of Computer Crime; The Seizure and
Examination of Microcomputers; Basic Local Area Network Investigations;
Introduction to Internet Crime Investigations; Advanced Internet
Investigations; and The Investigation of On-line Child Exploitation.
To help our trainees keep pace with the ever-changing environment
of cybercrime, SEARCH has developed two new courses, which will debut
in 2002: Digital Media Analysis and The Investigation of Online Child
Exploitation II. We are also beginning development of an Advanced
Computer Forensics course, which we expect to debut in 2003. In the
past year, among those attending SEARCH training were staff from
justice agencies in Alaska, Colorado, Hawaii, Kentucky, Maryland, New
Hampshire, New Mexico, Rhode Island, South Carolina, Texas, Vermont,
Washington and Wisconsin.
Selected Examples of Assistance
The following illustrates just a few examples of SEARCH technical
assistance and training efforts in the past year and the broad range of
agencies served.
South Carolina.--A team of justice officials, including
representatives of the South Carolina Judicial Department and
Department of Corrections, attended SEARCH training on integrated
justice information systems (IJIS) issues, such as strategic planning;
developing governance structures; funding, leadership and management
strategies; and technology standards. SEARCH also provided hardware and
Internet connectivity training to prosecutors from throughout the state
at a ``cybersleuth'' seminar presented at the National Advocacy Center
on the University of South Carolina campus in Columbia. SEARCH also
assisted a local prosecutor's office on legal issues involving computer
forensics.
Hawaii.--SEARCH is providing assistance to a statewide justice
integration effort spearheaded by the Department of the Attorney
General. SEARCH is helping the state with integration planning; setting
vision, mission, goals and objectives for the integration initiative;
and determining operational requirements. In another statewide effort,
SEARCH is assisting the Department regarding strategic planning for and
integration of the state's Juvenile Justice Information System. SEARCH
also assisted the Kauai Police Department with the acquisition of a
computer-aided dispatch/record management system (CAD/RMS), helping to
draft a Request for Proposal and functional specifications. Officials
of the Hawaii County Police Department attended SEARCH training on The
Investigation of Online Child Exploitation, a weeklong course that
provides law enforcement investigators and support staff with the
skills needed to conduct proactive Internet investigations involving
child exploitation. In addition, this very week, April 29-May 3, 2002,
SEARCH trained 22 justice officials onsite in Hilo, Hawaii, in The
Investigation of Computer Crime, which teaches how to investigate high-
technology theft and computer-related crime.
Vermont.--In a statewide effort, SEARCH provided onsite integration
assistance to the Vermont Department of Public Safety (DPS) regarding a
strategic direction for its integrated CAD/RMS used by nearly all local
law enforcement agencies in the state. A 12-member team of justice
officials, representing the state DPS, Department of Corrections (DOC),
Office of Court Administration, Supreme Court and Office of the Chief
Information Officer, among others, attended SEARCH training on IJIS
issues, including emerging trends in biometric technologies for
identification, identity verification and secure access/authorization
for physical and data security, and critical success factors and the
risk management strategies employed by project leaders in integration
initiatives. SEARCH also assisted the Burlington Police Department on
issues related to computer forensics issues and CAD/RMS/mobile
computing system acquisition. In addition, officers of the Rutland
Police Department attended SEARCH training on The Investigation of
Computer Crime.
New Hampshire.--A team of 14 justice officials, representing such
agencies as the Office of the Attorney General, the state DPS, the
Administrative Office of the Courts, the State Police, State
Legislature and DOC, attended SEARCH training on IJIS issues, such as
performance metrics, security technologies, techniques for undertaking
regional integration efforts, procurement, outsourcing, Web-based
justice applications and IT project management strategies. Over a dozen
officers from New Hampshire police and sheriff's departments also
attended a weeklong SEARCH training session on The Investigation of
Computer Crime, held in Concord. In addition, SEARCH assisted the New
London Police Department regarding the setup of a computer forensics
laboratory.
Colorado.--Colorado has benefited from a number of SEARCH technical
assistance and training efforts. For example, SEARCH is helping the
state work toward integration planning in an initiative that involves
the State Judicial Branch, Department of Human Services' Division of
Youth Corrections, Department of Public Safety's Bureau of
Investigation, Department of Corrections and the Colorado District
Attorneys' Council. SEARCH also helped the Colorado Bureau of
Investigation and the Arvada County Sheriff's Office with computer
forensics issues; the Colorado State University Police Department with
computer crime investigation materials and best practices for law
enforcement investigative training; the Greeley Police Department on
setting up a computer forensics laboratory; and the Colorado District
Attorneys Council regarding the future of court information technology.
Colorado agencies also benefited from SEARCH training: the Aurora
Police Department attended SEARCH training on Introduction to Internet
Crime Investigations, which teaches investigators the basic techniques
for successfully cracking cases involving crimes committed using the
Internet. Officials from the 18th Judicial District Attorney's Office
attended an intensive, two-week course on Advanced Internet
Investigations, which teaches investigators how to investigate crimes
online and track intruders. In addition, representatives of the
Colorado State University Police, Arvada Police Department and Weld
County Sheriff's Office attended SEARCH training on The Investigation
of Computer Crime.
Technical Assistance and Training Program Materials
SEARCH's National Technical Assistance and Training Program also
includes the preparation, publication and national dissemination of
materials and reports that assist criminal justice agencies in
acquiring and using computers and other information technology. For
example, SEARCH publishes Technical Bulletins that identify and
evaluate information systems and technologies that have existing or
potential application in criminal justice management. SEARCH also
offers an online resource, the Integrated Justice Information Systems
Website (www.search.org/integration), which features state and local
profiles of justice integration efforts, including links to information
on governance structures, funding, technical overviews, project
documents and more, as well as links to useful integration
publications, articles and other resources. SEARCH's Website received
an average of 12,350 hits per day in 2001.
Conclusion
Without question, federal support for the National Technical
Assistance and Training Program makes a vital contribution to the war
on crime. For a modest federal investment, leveraged many times over by
state and local funds, a critical contribution is made to the ability
of state and local criminal justice agencies to provide--and to share--
timely, accurate and compatible information for use in apprehending,
prosecuting and sentencing offenders.
Accordingly, we respectfully request that the Subcommittee act to
provide fiscal year 2003 funding of SEARCH's National Technical
Assistance and Training Program at the $4.0 million level. Supporting
state and local criminal justice agencies' information systems and
their ability to share information is a matter of public safety and
national security. The National Technical Assistance and Training
Program can help state and local law enforcement agencies meet those
expectations. We thank you, Mr. Chairman, the members of your
Subcommittee and the Subcommittee staff for your continued support.
______
DEPARTMENT OF STATE
Prepared Statement of the Alliance for International Educational and
Cultural Exchange
Introduction
The Alliance for International Educational and Cultural Exchange
appreciates the opportunity to submit testimony in support of the
educational and cultural exchange programs administered by the
Department of State.
The Alliance is the leading policy voice of the United States
exchange community, and has worked closely with the subcommittee on
exchange issues. We note with gratitude the subcommittee's role in
increasing exchange appropriations in recent years.
The Alliance comprises 65 nongovernmental organizations, with
nearly 7,500 staff and 1.25 million volunteers throughout the United
States. Through its members, the Alliance supports the international
interests of 3,300 American institutions of higher education.
With grassroots networks reaching all 50 states, Alliance members
help advance the United States national interest by putting a human
face on American foreign policy, transmitting American values,
fostering economic ties with rapidly developing overseas markets, and
assisting individuals with the development of critical foreign
language, cross-cultural, and area studies expertise. Our members also
leverage considerable private resources--in cash and in kind--in
support of these critical programs.
By engaging a very broad array of American individuals and
institutions in the conduct of our foreign affairs, exchange programs
build both enhanced understanding and a web of productive contacts
between Americans and the rest of the world.
Two years ago, German Chancellor Gerhard Schroeder described his
experience as an International Visitor in an on-air interview with a
Berlin news anchor. Schroeder described himself as a young politician
with a vague but fashionable anti-American bias, and recounted that his
trip to the United States as an International Visitor altered his
views. ``This is one of the most intelligent ways of giving young
politicians a positive attitude about America,'' Schroeder said.
Our request
As a nation, we need to provide more opportunities for emerging
leaders around the world to experience first-hand our society, our
values, and our people. The Alliance therefore urges the subcommittee
to provide substantial increases in funding for exchange programs.
While appropriations for these programs have moved up in recent years,
this account still lags well behind its historic levels in constant
dollars due to the deep cuts of the mid-nineties. Coupled with the
increases in fixed program costs such as airfare and accommodation
costs, reduced appropriations have resulted in significantly diminished
participant levels in programs consistently cited by our embassies as
one of their most effective means of advancing U.S. policy interests.
While the need for increased funding is worldwide, increased
exchanges with the Islamic world are particularly critical as we pursue
the war on terrorism. To defeat terrorism, the United States will need
more than the might and skill of our armed forces. To ultimately defeat
terrorism, we must also engage the Muslim world in the realm of ideas,
values, and beliefs.
No previous foreign affairs crisis has been so deeply rooted in
cultural misunderstanding. One of the lessons of September 11 is that
we have not done an adequate job of explaining ourselves, our culture,
and our values to the Muslim world. Doing so will require a sustained,
serious effort if we are to succeed in our quest for lasting peace and
security, stable bilateral relationships, and an end to terrorism. We
believe that significant new funding is needed for an Islamic Exchange
Initiative, designed to broaden the range of meaningful relationships
based on shared interests with current and emerging leaders and key
institutions in Muslim countries.
Given the broad arc of countries we will need to engage, stretching
from Africa to Southeast Asia, and the importance and urgency of the
task, we urge the subcommittee to appropriate $95 million for this
purpose. Including a modest but important increase in worldwide
exchange funds, we propose an fiscal year 2003 level for State
Department exchange programs of $345 million.
In the Islamic world, we envision this initiative engaging the full
range of programs and activities managed by the Bureau of Educational
and Cultural Affairs: Fulbright and Humphrey exchanges that will
stimulate broader cultural understanding, joint research and teaching,
and foster positive relationships with a new generation of leaders;
university affiliations targeted toward key fields such as mass media
and economic development; International Visitor and other citizen
exchange programs designed to bring emerging leaders into significant
and direct contact with their professional counterparts and the daily
substance of American life; youth and teacher exchanges and enhanced
English teaching programs, all designed to bring larger numbers of
young people a direct and accurate picture of our society, based on
personal experience rather than vicious stereotyping.
The need for an intensive new focus on the Islamic world is great,
but it should not distract us from the importance of maintaining and
increasing our public diplomacy and exchange activity elsewhere in the
world. As we engage in what promises to be a lengthy and difficult
struggle against terrorism, we will benefit greatly from the support
and participation of our friends and allies around the world. We must
not neglect these important relationships, or succumb to the temptation
to shift resources from other regions of the world to meet our needs in
Islamic countries. Should we do so, we will not find resources adequate
to the task at hand, and we will lessen our engagement with other
crucial regions of the world at a time when we can ill afford to do so.
In considering worldwide exchanges, in addition to the valuable
programs already cited in the context of the Islamic initiative, we
particularly wish to draw the subcommittee's attention to the
importance of overseas advising and the Gilman scholarship program. Our
advising centers, funded at slightly more than $3 million annually,
struggle with minimal resources to provide comprehensive, unbiased
information to prospective students. The foreign students in the United
States provide an enormous foreign policy asset--the opportunity to
educate the next generation of world leaders--and they contribute to a
trade surplus estimated at $12 billion. Other countries--notably the
United Kingdom, Australia, Canada, Germany, and Japan--recognize the
policy and economic benefits of foreign students and are making serious
and successful efforts to erode our market share. We encourage the
subcommittee to increase funding for our advising centers.
The Gilman scholarship program has been a remarkable success in its
first year, with many more qualified applicants than available grants.
This program, which provides modest funding to allow American students
with financial need to study abroad, directly addresses a critical
national need. We need to develop more American expertise with key
countries, cultures, and languages, and the Gilman program expands the
pool of students with the means to study abroad. The program has
increased study abroad numbers, and the diversity of participants and
locations, coupled with its performance to date, deserves a funding
increase.
We also ask that the subcommittee include in its report language
support for the creation of a national policy on international
education. Such a policy would place appropriate priority on government
and private efforts to prepare Americans to succeed in a rapidly
globalizing world. It would include several elements: strengthening
American capacity to develop specialists in foreign languages, area
studies, and international business studies; building a broader
international knowledge base among American non-specialists whose work
has international dimensions; increasing the number of Americans
studying abroad and encouraging more of our students to study in non-
traditional locations; developing a more effective strategy for foreign
student recruitment; and strengthening exchange programs at all levels.
In the last session of Congress, the Senate unanimously passed a
resolution introduced by Senators Lugar and Kerry calling for a
national policy on international education. A similar resolution has
been introduced in the House.
Mr. Chairman, the Alliance appreciates the opportunity to submit
its views to the subcommittee, and looks forward to working with you,
your colleagues, and staff to maximize the contributions that exchange
programs make to our foreign affairs. We would be happy to provide
additional information, or to respond to any questions that you might
have.
______
Prepared Statement of the American Foreign Service Association
Mr. Chairman and Members of the Subcommittee, on behalf of the
American Foreign Service Association (AFSA) and the 23,000 active-duty
and retired members of the Foreign Service that AFSA represents, I wish
to thank you for the continuing opportunity to share our views with you
regarding the funding of the Department of State and its programs. As
we have said in previous years, and it continues to be true, the
decisions that you and your colleagues in Congress make directly affect
our professional and personal lives as we serve our nation abroad,
therefore we have a direct interest in your work.
Let me state from the beginning that we are fully supportive of the
Administration's 2003 request, but we also believe it should be
considered as the floor and not the ceiling for fiscal year 2003
appropriations. We believe that more should have been proposed in the
funding of the Department of State and its programs. We appreciate the
difficult spending constraints facing the Subcommittee as it does its
important work. We acknowledge that yours is not an easy task.
But we would emphasize that national security is one of the
principle, non-delegatable functions of the federal government and that
diplomats, their programs, and the State Department are as critical to
our national security structure as are the soldier, the smart bomb, and
the Pentagon. As we well know, international problems can quickly
become domestic problems. Diplomacy is on the front lines addressing
these problems before they reach our shores. As is true for the Defense
Department, to achieve our national security tasks, the Department of
State and its programs require adequate resources.
AFSA fully agrees with Secretary of State Powell when he said on
March 7, 2002:
``I think it is important, and part of my responsibility, and the
responsibility of * * * all the Members of Congress, to make the case
to the American people that if we are going to live in the kind of
world we all want to live in, if we are going to want to see our values
adopted by more and more nations--not because they are American values,
but because they are universal values--it is important that we give our
diplomatic efforts the support that they deserve through significant
increases in the 150 Account.''
Last year, with the support of the Congress, the Secretary of State
began the difficult work of rebuilding the infrastructure of our
country's foreign affairs apparatus. At that time, he said that its
deterioration has become a ``major impediment to the conduct of
American foreign policy.'' As you know, the State Department's request
for fiscal year 2003 is a continuation of these efforts in terms of
people, technology, and security.
People.--The availability of resources determines whether we have
the talent, tools, and work environment necessary to effectively
represent and protect this nation. It affects the recruitment of
talented young people to this profession. It affects how thinly we are
stretched in manning the 250 posts and missions in which we serve
around the world, and it affects how well we are trained to do our
jobs. Funding also affects the quality of life for our families as they
accompany us around the world.
In the 1990s, insufficient funding created a shortfall of over
1,100+ overseas personnel. This staffing shortage strained the Foreign
Service in its ability to fully represent and advance the national
security interests of our nation. It reduced the amount of training
that our people could take because it forced both the Department and
individuals to choose between leaving positions vacant while personnel
took the necessary training or sending the person to post without
training. And the personnel shortfall adversely affected Foreign
Service morale as people were constantly being asked to do more with
less, even while they and their families often served in hardship and
dangerous locations.
In order to fill this shortfall, the Department is requesting
sufficient funds to recruit, hire, train and deploy 399 new foreign
affairs and 186 new security professionals above attrition. AFSA fully
supports the Secretary in this rebuilding effort and urges this
Subcommittee and the Senate to provide the necessary resources
requested. We also urge that next year, the request continue to be
supported so that we can continue and complete this three-year
rebuilding effort.
There is one area that we would ask be addressed in the Committee's
report accompanying CJS appropriations bill. Last year, when the
Department explained its request in the Budget in Brief for Fiscal Year
2002, amounts in the personnel account were identified to address
concerns about morale, recruitment and retention of Foreign Service
personnel. For instance, the Administration proposed to allocate funds
to continue a pilot program in Mexico for increased spousal employment
and possibly expand it worldwide. Although unmentioned in the
Administration's fiscal year 2003 request, these proposals are still
important initiatives, and we urge the Committee to encourage the
Department to continue and expand these programs.
Finally, Mr. Chairman, as the ``Voice of the Foreign Service,''
there is one more issue that we believe needs to be discussed. We
understand that the Department and the Office of Personnel Management
are seeking to correct inequities arising from the fact that Foreign
Service personnel lose their locality pay adjustments when they serve
abroad. AFSA strongly endorses these efforts to convince the Office of
Management and Budget to support implementation of an overseas
comparability adjustment based upon D.C. area locality pay. There is a
huge financial disincentive to serve abroad because of the loss of
locality pay. Since allowances and differentials do not count in
determining retirement annuities, the annuities of our members who
retire following an overseas assignment are computed at a lower level
than D.C.-posted counterparts. This affects our annuities in terms of
both the formula for computation and the amount that can be contributed
into the Thrift Savings Plan (TSP). Further, since allowances and
differentials are computed as percentages of base pay, their value can
be lost or seriously decreased when compared to what our D.C.-posted
counterpart is receiving in base pay plus locality pay. Thus,
compensation for serving in a hardship or danger post is decreased when
compared to what we could earn by serving in Washington. There was a
time when the difference was minor. Today, when we serve abroad, we
take an 11.43 percent cut in salary and possible TSP contribution
levels. There is no authorization for this program as of yet. We ask
that when it is requested, the Subcommittee give favorable
consideration to the idea of an overseas comparability pay adjustment
for Foreign Service personnel posted abroad
Technology.--Mr. Chairman, AFSA receives monthly briefings from the
Department on its progress in improving its information and
telecommunications system. More importantly, we get reports from our
members in the field when things go wrong. As an independent voice,
AFSA is pleased to report to you that we are satisfied with the
Department's progress to date in bringing the Department and its people
into the 21st century telecommunications world. Funding requested in
fiscal year 2003 will allow this needed progress to continue.
Security.--For the second year in a row, the Department has
requested $1.3 billion for worldwide embassy security funding. This is
generally at the annual level recommended by the Overseas Presence
Advisory Panel (OPAP) and the Accountability Review Boards established
to investigate the 1998 East Africa embassy bombings. The
recommendation for this funding was $13-$14 billion over ten years.
When the work started, fully 80 percent of our posts and missions did
not meet minimum Departmental security standards. Today, about 60
percent meet the minimum standards but need major improvements.
What concerns us, however, is that while the overall request for
personnel, software, equipment, and ``bricks and mortar'' work reaches
the $1.3 billion level, the request for the ``bricks and mortar''
portion is $61 million below amounts appropriated in fiscal year 2002.
It seems to us that since the Department was able to utilize the full
$815.9 million appropriated last year, the request should have been at
a similar level to continue improvements to the physical situation of
our posts and missions. We ask that the Senators consider increasing
the request for this part of the ``Worldwide Security Upgrades'' from
$755 million to last year's level of $815.9 million.
Mr. Chairman, in the area of security, there is one concern to
which we wish to draw the Subcommittee's attention. When both the
Accountability Review Board and the Overseas Presence Advisory Panel
made their recommendations, the emphasis was placed on protecting
government facilities abroad from future terrorist attacks. There was
always concern, though a generally unspoken concern that, as we
``hardened'' our missions, terrorists would go after Americans, and
particularly representatives of the U.S. government, in ``softer''
targets. The recent terrorist bombing of the church in Islamabad that
killed a member of the embassy staff and her teenage daughter puts a
harsh light on that concern. We believe the concept of embassy security
needs to be expanded to encompass the embassy community. In part, AFSA
believes that this will entail the continued hiring of security
professionals and funding to move from a protective, defensive posture
to a more aggressive preventive approach to security. We encourage the
Subcommittee to join AFSA in engaging the Department in identifying
practical solutions to the expanded threat to Americans and to American
personnel abroad.
A reinvigorated foreign service.--Finally, Mr. Chairman, there is
one more area that we would like to share with the Subcommittee that is
not part of the Administration's request, but surely impacts upon the
success of U.S. diplomacy. As vital as increased funding is for people,
technology, and security, AFSA believes that funding by itself will not
guarantee that the Foreign Service possesses the attributes needed to
best serve the President, the Congress, and the American people in
meeting the challenges of the 21st Century. AFSA believes that the
Foreign Service will also need to develop new skills and a new
organizational culture.
In the past, AFSA worked with the Congress in supporting
legislation that mandated the Department to do workforce planning
(Public Law 106-113). We also supported Congressional provisions
requiring the Department to report on management training for Foreign
Service personnel and to report on the assignment of language trained
personnel to language designated positions. Assuring the continued high
quality of this nation's Foreign Service has been a continuing concern
to AFSA as it has been to the Congress.
Since July 2001, AFSA has been working with the Director General of
the Foreign Service in developing reforms to the Foreign Service
personnel system. To date, we have reached agreement on over a dozen
reforms, including:
1. Establishing leadership and management training requirements
that employees must meet by key stages of their career. These
requirements will be enforced by promotion precepts that will deny
promotions to those who have not taken the required training.
2. Enforce rules governing ``worldwide availability'' so that
Foreign Service members do not extend in Washington or certain posts
abroad for unusual lengths of time.
3. Increase the separation of unsatisfactory performers by having
the Director General meet with members of the Commissioning and Tenure
Boards at the State Department to reinforce with them their duty to
identify unsatisfactory performers. AFSA alerted the Department to the
fact that, while between 3.5 percent and 7.9 percent of career
candidates were denied tenure during the mid-1990s, less than 1 percent
were denied tenure in 1998 and 1999.
4. To change the organizational cultures of the Foreign Service, we
have come to agreement on several issues such as putting added weight
on demonstrated leadership, managerial ability, and good interpersonal
skills when selecting personnel to be assigned to Deputy Chief of
Mission (DCM) and other senior positions.
5. The Director General accepted AFSA's proposal to modernize the
core precepts for promotion in the Foreign Service to provide
additional incentives for employees to perform in accordance with the
management principles enunciated by Secretary Powell and his management
team. The changes promote the career advancement of those employees who
exhibit the skills, outlooks, and abilities needed in our new century.
For example, the revised precepts put new emphasis on operational
effectiveness, intellectual integrity, customer service, teamwork, and
leadership and management skills. In so doing, they signal disapproval
of the risk-averse, form-over-substance modes of behavior that are ill
suited for actively advancing American interests in the 21st Century.
Conclusion.--Mr. Chairman, AFSA agrees with Secretary Powell when
he said that events on and since the tragic day of September 11 have
made it clear ``that American leadership in international affairs is
critical'' and that ``out on the front lines of diplomacy, we want a
first-class offense for America.'' We agree with him that ``quality
people with high morale, combined with superb training and adequate
resources, are the key to a first-class offense.''
Operating accounts do count. The funds requested for fiscal year
2003 and the Supplemental Request that has recently been forwarded,
help provide the minimum necessary resources that will allow the
Department and the Foreign Service to continue its rebuilding of the
Foreign Affairs infrastructure to meet the challenges of this new
century. It has been less than three years since the Overseas Presence
Advisory Panel (OPAP), chaired by Louis Kaden of Wall Street, and
composed of diplomats, representatives of labor and business, and
educators reported that:
``Insecure and decrepit facilities, obsolete information
technology, outdated human resources practices, and out-molded
management and fiscal tools threaten to cripple America's overseas
presence. We recognize that except for the security threats, none of
these individual problems is a pressing emergency. Still, as with any
complex system, if many of the parts of America's overseas presence are
not working properly, the system may fail. The Panel fears that our
overseas presence is perilously close to the point of system failure.''
Mr. Chairman, under the leadership of Secretary of State Powell
working with Congress, we are pulling back from that ``point of system
failure.'' We need to stay the course and so we urge that, at a
minimum, the full $7.5 billion Administration request for the
Department of State as well as the funding requested in the
Supplemental be provided. In the end, those funds address the needs of
diplomacy as it stand on America's front lines serving her and
protecting our national interests.
______
RELATED AGENCIES
Prepared Statement of Steven A. Ludsin
I have dealt with the U.S. Small Business Administration for almost
10 years and I was a contractor with the agency for a year and a half
with negotiations stemming from those contracts covering at least 3
years. I have concluded that the agency is an anachronism that should
be reorganized or abolished and funding should be drastically cut.
The U.S. Small Business Administration, the federal agency mandated
by Congress to aid, counsel, assist and protect the interests of small
business has become obsolete. Aside from the government guarantees for
loan programs and advocating small business procurement protection, the
agency is out of touch with our times. I had the simple idea of selling
the SBA's real estate collateral for defaulted small business loans on
the Bloomberg. The resistance was overwhelming and the staff is so
committed to the status quo, they cannot adapt to the changed economic
environment since the 1950's. It is as if they are in a time warp,
forever stuck in a post World War II mentality.
After law school, I began my investment banking career in 1976 and
Michael R. Bloomberg was one of the partners in charge of my
department. In 1985 I purchased a home from foreclosure in East
Hampton, NY. I began to pursue the concept of selling foreclosures on
computers soon after I purchased the home. I tried to get a Small
Business Investment Research grant from the Department of Commerce in
1987 but I was turned down. When the S&L bailout began in 1989, I
brought the idea of electronic marketing on the Bloomberg to the RTC,
the agency in charge of the bailout, but I could not get a contract.
Undaunted I persisted and received a good audience with Erskine B.
Bowles, former SBA Administrator and Chief of Staff of the White House.
In 1993 he was the Administrator of the U.S. Small Business
Administration.
I convinced the SBA to give me a pilot program in 1994 to sell the
real estate collateral on the Bloomberg. After enduring the frustration
of the contract renewal process, I managed to get the contract renewed
in June 1995. Battling the SBA was a full time job; they sapped my
financial resources and the results led to an endless litigation
process.
I had to use the Freedom of Information Act to get the appraisals
of the properties the SBA hired me to sell because they insisted on
charging $10,250 for the processing fee which was discretionary. The
SBA decided I was a commercial requester so I had to pay the fees. I
challenged the decision in the Federal Courts in New York and actually
presented my own oral argument before the Second Circuit Court of
Appeals. The 3-judge panel told me I was at the top of the list of
attorneys who have appeared on their own behalf, but the Appeals Court
held that the SBA could charge me the fee because my contract goals
were not in the public interest. So even though I was selling federal
assets and disseminating the information world wide on the Bloomberg, I
had to pay the SBA the FOIA fee.
I was able to get the appraisals without charge and present them to
investors by displaying the photos and descriptions and scanning the
full appraisals using my own scanner. I finally received bids from 2
major investment banks but after 2 years into the second contract
beginning in June 1995, the SBA had forgotten to tell me that they
would need consent of the lending banks to sell the assets in bulk
which was my goal under the contract. There was a breach of contract
claim before the General Services Board of Contract Appeals. The claim
was for $1.2 to $2.4 million for providing buyers ready, willing and
able. The lawsuit was settled. I have characterized the experience as
``econocide'', the purposeful destruction of an entrepreneur's
financial security. The experience moved me to write a book, ``Roadkill
on the Information Highway'' published by iUniverse.com.
I share this account of my struggle because it is a microcosm of
the cultural rift of the private sector and our federal government.
Ironically the SBA is selling $10 billion of assets over the coming
years. How could they seriously believe the private sector would
participate if the agency doesn't understand the marketplace and
thwarts any innovation at every turn?
Although the experience I had is anecdotal, there is a need to put
a stop to the obfuscation that the SBA uses to justify its existence.
They are eager to hide behind the FOIA laws in order to retard
progress. For example, in May 2001, I requested the information about
the real estate assets still available from the field offices. The knee
jerk reaction was to force the field offices to direct the inquiry to
the headquarters and invoke the FOIA law. This creates delay and
obstacles to purchasing the assets. Similarly, when I sent emails to
the staff asking what their responsibilities were, most responded by
directing me to the SBA website.
Why do you need to pay staff to direct inquiries to the website?
Why do we pay over $500 million annually to maintain the illusion that
the SBA will provide funds for small business, when the real decisions
are made by the banking and venture capital community? The days of
window dressing must end. I have always supported private-public
partnerships, but in the case of the SBA, there is no real capability
to partner. The agency should be reorganized and the guarantee
component should be reassigned to the Department of Commerce or the
Department of the Treasury.
I am grateful for the opportunity to become part of the public
testimony advocating severe cuts to an agency that has outlived its
usefulness. Former SBA Administrator Philip Lader commented that the
SBA was no longer your father's Oldsmobile. Even General Motors retired
the Oldsmobile. Its time to let go of the propagandistic illusions that
the SBA furthers the interests of small business. It should be
abolished.
______
Prepared Statement of The Asia Foundation
Thank you for the opportunity to submit testimony, supporting The
Asia Foundation's fiscal year 2003 budget request.
Mr. Chairman, I would like to present The Asia Foundation's
programs and our future plans to address the challenges and
opportunities facing Asia. We believe that our programs demonstrate how
a small, independent organization can advance American interests in the
Asia-Pacific region.
The Administration has endorsed the work of The Asia Foundation by
requesting an appropriation of $9.44 million for fiscal year 2003.
While we appreciate that support, we respectfully hope the Congress
will add to our funding, given the unparalleled new challenges facing
the Asia region. As you know, The Asia Foundation implements programs
that improve governance and legal reform, protect human rights, promote
economic reform and encourage peaceful, cooperative regional and
international relations. In the post-September 11 period, it is clear
that in the war on terrorism, it is more important than ever to address
its root causes of persistent poverty, lack of opportunity and loss of
faith in local leaders and institutions. It is critical to strengthen
institutions of governance, advance the rule of law and promote
stability. This also means creating economic opportunity, broadening
and improving education systems and other public services and
protecting the rights of women and children.
overview
Let me put the Foundation's work into context. The post-September
11 period presents challenges to political stability, economic growth,
and America's relations in the Asia region. Afghanistan requires
continuing donor attention in response to humanitarian needs, and to
ensure security and stability for the current interim government, the
Loya Jirga process, and the new government. Other countries in the
region, including countries with larger Muslim populations such as
Pakistan, face significant challenges to democratic development, peace
and stability.
Asia continues to face complex regional security challenges: on the
Korean peninsula and the India-Pakistan border, China-Taiwan cross-
straits relations, and in Afghanistan. Despite some recovery from the
1997 crisis, economic stagnation continues in Japan, the world's second
largest economy, and economic uncertainty exists in South and Southeast
Asia economies. Political instability in Indonesia, extremism in the
southern Philippines, and internal conflicts in Sri Lanka and Nepal
also threaten regional stability and impede economic development. Human
rights abuses and questions of impunity continue. Even though women in
Asia have made gains, in many places they are still subject to economic
and political inequities and, in the worst cases, they are victims of
trafficking and abuse. We have seen reductions in United States
presence in Asia over the past few years, due to budgetary and other
circumstances, particularly signaled by a decline of public diplomacy
efforts.
In our view, the new circumstances we face in Asia highlight the
importance and value of the Foundation's programs. There are few
American organizations with the operating experience, relationships and
access enjoyed by The Asia Foundation in the region. For nearly 50
years, the Foundation has operated programs throughout Asia to support
reform-minded government and non-governmental institutions and
individuals.
the asia foundation's mission
The Asia Foundation's core objectives are central to United States
interests in the Asia-Pacific region.
--Democracy, human rights and the rule of law: developing and
strengthening democratic institutions and encouraging an
active, informed and responsible non-governmental sector;
advancing the rule of law; and building institutions to uphold
and protect human rights, including women's rights and
opportunity;
--Open Trade and Investment: Supporting open trade, investment and
economic policy reform at the regional and national levels;
--Peaceful and Stable Regional Relations: Promoting regional
discussions on security cooperation, regional economic policy,
law and human rights.
In the past, this Committee has encouraged the Foundation's grant
making role, and we remain faithful to that mission. The Foundation's
hallmark is to make sequential grants to steadily build and strengthen
institutions, develop leadership and advance policy reforms in
countries in the region. Foundation assistance supports training,
technical assistance, and seed funding for new, local organizations--
all aimed at promoting reform, building Asian capacity and
strengthening relations with United States institutions. Foundation
grantees can be found in every sector in Asia, leaders of government
and industry and at the grass roots level, in the increasingly diverse
civil society of Asia. Notably, the current Afghanistan Ministers of
Higher Education Sharief Fayez and Women's Affairs Sima Simar are
former grantees who have asked the Foundation for immediate assistance
in education and training, including re-starting the Books for Asia
program, the Foundation's long standing program that has distributed
millions of books to Asia since 1954.
The urgency of the political and security needs in Asia,
particularly given the instability in South Asia since September 11,
have increased the need for experienced American actors in the region.
The experiences in countries such as Korea, the Philippines, Thailand
and Taiwan, where democratic and economic transitions are well
underway, represent, in part, the return on investment the Foundation
has made, over time, in support of individuals and institutions
committed to reform.
programs
The Asia Foundation's programs in Asia strengthen formal
institutions of governance--including constitutional frameworks, the
legislative branch and the judiciary--and develop more effective civil
society organizations, the protection of human rights and the
development of law and effective legal systems. The Foundation's
programs also increase economic reform and open trade. Its
international relations programs reflect a unique capacity to promote
increased understanding of different foreign policy perspectives to
complement more formal diplomatic efforts that advance American
economic and security interests in the region.
Legislative development.--The Foundation has contributed to the
development of legislatures in 16 countries in Asia through technical
assistance, training members and staff, facilitating interaction with
the nongovernmental sector and developing parliamentary capacity to
review budgets and other executive functions in Thailand, Taiwan, South
Korea, Mongolia, the Philippines and Indonesia. The Foundation was the
only American organization to provide technical assistance to the
Constituent Assembly in East Timor in the recently completed
constitutional drafting process, providing international experts and
support for the East Timorese People's Constitutional Working Group.
Civil society.--The Foundation is the single largest supporters of
the non-governmental sector in the Asian countries in which we operate.
The Foundation builds the capacity of organizations, encourages public
participation and works to improve the regulatory environment for NGOs.
In Pakistan, the Foundation supports community based organizations that
provide education services in areas where none exist, through public-
private partnerships, particularly in the economically poor Northwest
Frontier Province (NWFP). Continued education and advocacy efforts in
Nepal are supported that focus on addressing the dire problem of the
trafficking of women and children. Many programs focus on western
Nepal, under the greatest risk from the growing Maoist insurgency in
that part of the country. The Foundation has been the largest supporter
of human rights, environmental and research and policy NGOs in
Cambodia.
Human rights.--The Foundation's human rights programs promote the
protection and advancement of human rights as an important priority.
Through its support of nongovernmental and governmental human rights
efforts at the local, regional and national levels, the Foundation's
programs focus on human rights education and the development of
monitoring groups, forensic training to investigate past abuses, media
training, guides on international human rights standards, conflict
reporting for journalists, programs to reduce trafficking and violence
against women, and alternative dispute resolution programs in conflict
areas. The Foundation supports moderate Muslim organizations in
Indonesia, Pakistan and in Mindanao in the Philippines to encourage
programs that promote moderate views, religious tolerance, peace,
conflict management and the rights of women under Islam, including the
use of Islamic scriptures to support messages of peace and non-
violence. The Foundation gives special attention to the troubled areas
of Indonesia through support for local human rights efforts in Aceh,
Papua and most recently, the Maluku Islands. Programs include increased
media campaigns through radio and television by moderate groups to
promote pluralism and tolerance in conflict prone areas and the
utilization of mosque youth networks to educate and strengthen networks
for democracy and pluralistic Islam.
Legal reform.--In China, the Foundation has supported
administrative law reform efforts in China to limit the arbitrary power
of officials and create greater scope for citizen participation and
redress. With China's entry into the WTO, the Foundation has embarked
on a training program for provincial and municipal legal affairs
offices to promote understanding of the complexities of WTO compliance
related to uniform treatment, legal transparency and consistency.
Foundation programs also support legal aid services and popular legal
education to bring the benefits of legal reform directly to China's
citizens, including migrant women populations in the new economic zones
of Southern China. In Nepal, the Foundation has started a legal reform
program for the courts, through training programs in mediation,
establishment of legal information systems, and development of programs
with watchdog citizens' groups to raise awareness of corruption and
misconduct.
Economic growth and opportunity.--Small and medium enterprise
reform is a vital engine of growth, providing employment and
opportunity for millions throughout the region. The Foundation's
programs help to improve the environment for small business growth in
Indonesia, Bangladesh, Thailand and the Philippines by removing policy
barriers and regulatory red tape, reducing corruption, and providing a
voice for small entrepreneurs through support for business associations
and business-government dialogue. The Foundation funds efforts to
improve corporate governance in Korea, China, Japan and the
Philippines, and supports open trade and investment in the region
through assistance to the Pacific Economic Cooperation Council (PECC)
and the Asia-Pacific Economic Cooperation (APEC) process.
International relations.--The Foundation continues to invest in the
development of young leaders, for example through support for
diplomatic training in United States universities for Chinese foreign
affairs staff, and fellowships for Vietnamese, Mongolian and for the
first time, a young Indian diplomat. Programs also include support for
the Council for Security Cooperation in the Asia Pacific (CSCAP),
training programs in compliance with trade agreements and WTO for
Chinese and Vietnamese officials and track II programs on cross-straits
relations an d Northeast Asian security.
conclusion
As the preceding examples of our work emphasize, the Foundation is
a field-based organization that supports projects in Asia that aim at
building the capacity of Asian institutions and supporting reform
efforts, while at the same time, maintaining close links with the U.S.
foreign policy community. Working through 14 offices in the Asia
region, including in China, Hong Kong and Taiwan, with newly
established project offices in East Timor and Afghanistan, the
Foundation provides vital support to local economic and political
reform efforts.
The Foundation is first and foremost a grant making organization.
The Foundation has consistently received national recognition for its
efficient grant-to-operating expense ratio, reflecting its commitment
to maximizing the impact of its programs in Asia, while keeping
expenses low. We are not a research organization or an academic
institution, nor are we Washington based. We work on the ground in Asia
as an accepted, trusted partner and supporter of Asian reform efforts
that simultaneously support and reinforce American political, economic
and security interests. We also partner in our programs with American
and international public and private organizations to leverage our
resources, and make investments pay off. Our partnership with The
Richard & Rhoda Goldman Fund to support Agency Coordinating Body for
Afghan Relief (ACBAR), an Afghan donor coordination organization, and
PARSA, which supports projects for women in Afghanistan, is but one
example.
Public funding is essential to our mission for many reasons. While
the Foundation has made gains in expanding private funding, the
flexibility and reliability that public funding lends to the
Foundation's efforts are critical. As an organization committed to
United States interests in Asia, we can only be successful if potential
private donors understand that the U.S. government continues to support
our efforts in the region. Furthermore, private funding is almost
always tied to specific projects (as are USAID funds for which the
Foundation competes) and do not replace public funding, either in scale
or flexibility. Moreover, the flexibility afforded by U.S. government
appropriated funds enables the Foundation to respond quickly to fast-
breaking developments and program opportunities, as demonstrated by our
programs related to the referendum in East Timor in 2001 and most
recently, needs identified by the Afghan Interim Administration and the
United Nations in Afghanistan related to the upcoming Loya Jirga
process.
As you and your colleagues know, budget constraints resulted in
significant reductions in the Foundation's annual appropriation in
fiscal year 1996. The requested $9.44 million for fiscal year 2003 is
below the $15 million annual appropriation for the Foundation during
the decade prior to 1996. The $15 million level has been authorized
consistently by the Congressional authorizers in recent years. We have
worked hard to manage our budget, reduce staff and expenditures,
increase our efficiency and diversify our funding sources. We have
struggled to maintain our regional presence through our offices in
Asia, although budget cuts did force closure of the Malaysia office in
1996, and ensured that the maximum possible amount of appropriated
funds are dedicated to on-the-ground programs. Nevertheless, this
constrained level of funding has limited the Foundation's ability to
respond to needs in the region.
In closing, Mr. Chairman, I believe that at this critical time in
United States-Asia relations we have the opportunity and the obligation
to demonstrate America's strong commitment to working with Asian
leaders to assure the security and well being of the people of Asia.
Now more than ever, The Asia Foundation's programs represent a positive
American response to the challenges facing Asia today, contributing to
the development of stable societies and advancing the interests of the
United States in the region. At a time of rapid change and uncertainty,
additional funding would enable the Foundation to expand its role and
its programs to help meet these challenges.
Thank you.
LIST OF WITNESSES, COMMUNICATIONS, AND PREPARED STATEMENTS
----------
Page
Airports Council International--North America, prepared statement 441
Alliance for International Educational and Cultural Exchange,
prepared statement............................................. 467
American Association of Airport Executives, prepared statement... 441
American Foreign Service Association, prepared statement......... 469
American Rivers, prepared statement.............................. 450
Anthony, Sheila F., Commissioner, Federal Trade Commission,
prepared statement............................................. 425
Ashcroft, John, Attorney General, Office of the Attorney General,
Department of Justice.......................................... 1
Opening statement............................................ 1
Prepared statement........................................... 6
Campbell, Senator Ben Nighthorse, U.S. Senator from Colorado:
Prepared statement........................................... 259
Questions submitted by....................................... 303
Carman, Gregory W., Chief Judge, United States Court of
International Trade, Federal judiciary, the judiciary, prepared
statement...................................................... 158
Domenici, Senator Pete V., U.S. Senator from New Mexico,
questions submitted by........................114, 220, 296, 354, 425
Donnelly, Tony, Director of Budget and Personnel, Supreme Court
of the United States, the judiciary............................ 131
Evans, Hon. Donald L., Secretary of Commerce, Office of the
Secretary, Department of Commerce.............................. 307
Opening remarks.............................................. 310
Prepared statement........................................... 307
Gregg, Senator Judd, U.S. Senator from New Hampshire, questions
submitted by............................................290, 341, 385
Hantman, Alan, Architect of the Capitol.......................... 131
Prepared statement........................................... 136
Heyburn, Judge John G., II, Chairman, Committee on the Budget of
the Judicial Conference of the United States, Federal
judiciary, the judiciary....................................... 143
Prepared statement........................................... 145
Hollings, Senator Ernest F., U.S. Senator from South Carolina:
Opening remarks.............................................. 1
Questions submitted by............................54, 206, 332, 391
Hutchison, Senator Kay Bailey, U.S. Senator from Texas, questions
submitted by................................................... 221
Inouye, Senator Daniel K., U.S. Senator from Hawaii, questions
submitted by.............................................57, 211, 276
International Research Institute for Climate Prediction, prepared
statement...................................................... 453
Kennedy, Hon. Anthony M., Associate Justice, Supreme Court of the
United States, the judiciary................................... 131
Prepared statement........................................... 134
Kohl, Senator Herb, U.S. Senator from Wisconsin, questions
submitted by............................................110, 216, 340
Lautenbacher, Conrad C., Jr., Vice Admiral, U.S. Navy (Ret.),
Under Secretary of Commerce for Oceans and Atmosphere, National
Oceanic and Atmospheric Administration, Department of Commerce. 365
Opening statement............................................ 376
Prepared statement........................................... 365
Leahy, Senator Patrick J., U.S. Senator from Vermont:
Prepared statementsI6046, 318................................
Questions submitted byI6062, 179, 288........................
Ludsin, Steven A., prepared statement............................ 472
Mayer, Haldane Robert, Chief Judge, U.S. Court of Appeals for the
Federal Circuit, Federal judiciary, the judiciary, prepared
statement...................................................... 171
Mecham, Leonidas Ralph, Director, Administrative Office of the
United States Courts, and member, Executive Committee of the
Judicial Conference of the United States, Federal judiciary,
the judiciary.................................................. 143
Prepared statement........................................... 153
Michael, Judge M. Blane, member, Committee on the Budget of the
Judicial Conference of the United States, Federal judiciary,
the judiciary.................................................. 143
Middle Atlantic-Great Lakes Organized Crime Law Enforcement
Network, prepared statement.................................... 458
Mikulski, Senator Barbara A., U.S. Senator from Maryland,
questions submitted byI60214, 278..............................
Muris, Timothy J., Chairman, Federal Trade Commission............ 405
Prepared statement........................................... 407
Murphy, Diana E., Chair, United States Sentencing Commission,
prepared statement............................................. 163
Murray, Senator Patty, U.S. Senator from Washington, questions
submitted byI60113, 219........................................
National Audubon Society, prepared statement..................... 446
National Congress of American Indians, prepared statement........ 455
National Public Radio, prepared statement........................ 444
National Recreation and Park Association, prepared statement..... 451
National, Coordinated Law-Related Education Program, prepared
statement...................................................... 461
Northwest Indian Fisheries Commission, prepared statement........ 438
Pitt, Harvey L., Chairman, Securities and Exchange Commission.... 225
Prepared statement........................................... 225
Powell, Hon. Colin L., Secretary of State, Office of the
Secretary, Department of State................................. 237
Opening statement............................................ 240
Prepared statement........................................... 237
Powell, Michael K., Chairman, Federal Communications Commission.. 183
Prepared statement........................................... 183
Rider, Sally, Administrative Assistant to the Chief Justice,
Supreme Court of the United States, the judiciary.............. 131
Smith, Hon. Fern M., Director, Federal Judicial Center, Federal
judiciary, the judiciary, prepared statement................... 159
Suter, William, Clerk of the Court, Supreme Court of the United
States, the judiciary.......................................... 131
Talkin, Pamela, Marshal, Supreme Court of the United States, the
judiciary...................................................... 131
The Asia Foundation, prepared statement.......................... 473
The Humane Society of the United States, prepared statement...... 453
The National Consortium for Justice Information and Statistics,
prepared statement............................................. 464
The Nature Conservancy, prepared statement....................... 433
The Ocean Conservancy, prepared statement........................ 429
Thomas, Hon. Clarence, Associate Justice, Supreme Court of the
United States, the judiciary................................... 131
Thompson, Mozelle W., Commissioner, Federal Trade Commission,
prepared statement............................................. 423
Yukon River Drainage Fisheries Association, prepared statement... 436
SUBJECT INDEX
----------
DEPARTMENT OF COMMERCE
National Oceanic and Atmospheric Administration
Page
Additional committee questions................................... 385
Climate services................................................. 369
Conservation Law Foundation, status of negotiations with......... 380
Energy........................................................... 372
Initiative................................................... 402
Financial management in NOAA..................................... 374
Fishing restrictions in Northeast................................ 380
Global climate change:
Addressing................................................... 381
Initiative................................................... 394
Groundfishing in Northeast....................................... 383
Homeland security................................................ 373
International issues............................................. 403
National Estuarine Research Reserve Program...................... 395
National sea grant college programI60375, 379, 383, 390, 391.....
Transfer of.................................................. 378
New England groundfish lawsuit................................... 388
NMFS:
Annual stock assessments..................................... 384
Lawsuits..................................................... 391
Litigation case backlog...................................... 379
NOAA:
Energy initiative............................................ 388
Fisheries, modernization of.................................. 370
Organization and administration.............................. 385
Sole sourcing................................................ 382
Northern right whales............................................ 394
Ocean and coastal programs....................................... 374
Other key NOAA programs.......................................... 372
People and infrastructure: $129.0 million adjustment-to-base..... 366
Saltonstall/Kennedy funds........................................ 400
Science, role of................................................. 390
Weather warnings and forecasts, improving extreme................ 366
Office of the Secretary
Additional committee questions................................... 331
Advanced Technology ProgramI60311, 316, 332......................
Bureau of Economic AnalysisI60321, 354...........................
Bureau of Export Administration.................................. 317
Bureau of the Census............................................. 331
Financial accounting systems................................. 334
Fundamental change at........................................ 351
Internal operating system.................................... 352
Commerce administrative management system (CAMS)................. 341
Critical infrastructure protection............................... 344
Economic information and framework............................... 308
EDA:
Investment criteria.......................................... 336
Program reduction............................................ 326
Election reform standards........................................ 333
Homeland securityI60308, 342, 346................................
Information infrastructure grantsI60321, 323.....................
International Trade Administration............................... 327
Textile and manufacturing jobs............................... 337
MAF/TIGER, cost of............................................... 336
Manufacturing Extension Partnership ProgramI60313, 319, 332, 340,
356............................................................
Manufacturing jobs............................................... 338
Marine research.................................................. 329
National Institute for Standards and Technology (NIST)I60316, 346
Activities since September 11th.............................. 317
National Telecommunications and Information Administration....... 315
Technology Opportunities Program............................. 339
NOAA:
Sea Grant Program............................................ 337
Transfer of National..................................... 354
Northeast economic development representative.................... 325
Oceanic and atmospheric environment, observing and managing the
Nation's....................................................... 309
Patent and Trademark Office (PTO)I60338, 349.....................
Public Telecommunications Facilities Program..................... 356
Sea grant........................................................ 316
Softwood lumber.................................................. 354
Stellar sea lion................................................. 330
Technological innovation, providing infrastructure for........... 309
Trade adjustment assistance...................................... 326
2010 decennial census:
Cost effectiveness of........................................ 351
Cost of...................................................... 333
Cost savings................................................. 335
Vessel monitoring system......................................... 329
World Trade Center:
Investigation................................................ 333
Towers....................................................... 348
DEPARTMENT OF JUSTICE
Office of the Attorney General
Additional committee questions................................... 54
Agreement with DOD, limitations on............................... 34
Anti-terrorism task forces....................................... 66
Antitrust Division............................................... 54
Antitrust:
Enforcement clearance agreement.............................. 15
Responsibilities, DOJ's and FTC's plan to divide............. 110
Attorney General recusals........................................ 18
Background checks................................................ 57
Black tar heroin and methamphetamine trafficking Federal Bureau
of Investigation (FBI) and Drug Enforcement and Administration
(DEA).......................................................... 120
Border security.................................................. 47
Civil rights:
Advancing.................................................... 11
And hate crimes.............................................. 70
Of Arab Americans............................................ 44
Protecting................................................... 49
Civil Rights Division............................................ 76
Coordination between agencies.................................... 57
COPS program, reduction ofI6022, 35, 37..........................
Counterterrorism:
Budget request............................................... 2
Responsibilities............................................. 28
Crime:
Against Arab Americans....................................... 71
Supporting victims of........................................ 10
Crisis management, roles in...................................... 22
Cybercrime, combating............................................ 50
Detention and incarceration capacity, managing increased Federal. 10
Drug trafficking and abuse, curbing.............................. 50
Drugs budget request............................................. 3
Enron case:
Need for special counsel in.................................. 13
Recusal...................................................... 51
Federal Bureau of Investigation.................................. 47
Shift in responsibilities.................................... 64
FEMA transfers................................................... 52
Decision on.................................................. 20
First responder training......................................... 117
First responders funding......................................... 21
Foreign terrorist tracking task force............................ 66
Forensic science services and reducing the DNA backlog, improving 50
Hate crimes:
Legislation.................................................. 45
Since 9/11................................................... 45
Illegal drugs, reducing the availability of and supporting proven
programs aimed at reducing drug use............................ 11
Immigration services and enforcement, improving management of.... 10
INS restructuring................................................ 123
Internet-based regional information sharing system and Internet-
based Law Enforcement Online Program........................... 67
Joint terrorism task forces and anti-terrorism task forces....... 65
Justice Department requests, other............................... 4
Law enforcement:
Improving State and localI6048, 69...........................
In Indian country............................................ 113
Legal activities, enhancing the Department's..................... 12
Liberian deferred enforced departure............................. 24
Mental health courtsI6029, 119...................................
Methamphetamine.................................................. 57
Mississippi redistricting plan................................... 74
National Guard:
Arming the................................................... 35
Deployment................................................... 33
NDPO and ODP to FEMA, transfer of................................ 18
New Mexico....................................................... 126
NICS:
Checklist.................................................... 27
Gun show loopholes........................................... 25
Northern border:
Inspector earmark............................................ 62
Recruiting and retention..................................... 63
Security..................................................... 40
DOD participation in..................................... 32
Office of Victims of Crime....................................... 112
Other important activities....................................... 13
Postconviction DNA............................................... 38
Review....................................................... 64
Preventing and combating terrorism, including securing the
Nation's border................................................ 6
Professional Security Officer Career Program..................... 67
Project Child Safe............................................... 36
Radiation exposure compensation programI6030, 114................
Safe Explosives Act.............................................. 36
Santa Teresa Port of Entry....................................... 31
Staffing at.................................................. 122
SCAAP elimination................................................ 127
September 11th Victim Compensation Fund.......................... 62
State and local:
Assistance grants............................................ 41
Funding...................................................... 43
Law enforcement, streamlining assistance available to........ 12
State court funding.............................................. 111
Tax Division and Environmental and Natural Resources Division.... 77
Title V--Juvenile Justice Local Delinquency Prevention........... 111
Tobacco litigation............................................... 43
Resources.................................................... 69
TrilogyI6042, 64.................................................
Status report on............................................. 42
USA PATRIOT Act, technology funding request under the............ 62
VAWA--New Mexico................................................. 29
Violence against women New Mexico funding........................ 124
Voting and civil rights enforcement.............................. 4
DEPARTMENT OF STATE
Office of the Secretary
Additional committee questions................................... 275
Afghan women..................................................... 278
Afghanistan:
Funding for.................................................. 298
Future of.................................................... 271
Micro lending program in..................................... 269
Peacekeeping and security in................................. 280
Terrorist training camps in.................................. 251
AIDS, funding for the fight against global....................... 284
Arabic Voice of America.......................................... 283
Arms control..................................................... 263
Berlin Embassy site.............................................. 248
Biennial budgeting............................................... 298
Biometric identification......................................... 252
Border security/consular affairs................................. 292
Budget issues.................................................... 255
Capitalism....................................................... 272
And the developing world..................................... 299
Center for Antiterrorism and Security Training (CAST) at Aberdeen
Proving Ground (APG)I60288, 296................................
Colombia:
Human rights certification................................... 288
Situation inI60258, 268......................................
Congo, peacekeeping in the....................................... 252
Congress, consultation with...................................... 266
Convention on the Elimination of All Forms of Discrimination
Against Women (CEDAW).......................................... 277
Corruption/international crime................................... 303
Current events................................................... 256
Cyprus........................................................... 286
Department's long-range IT plan.................................. 293
Diplomatic hiring initiative..................................... 291
Embassy:
ConstructionI60248, 255, 291.................................
Five-year construction plan.................................. 254
Security..................................................... 287
Foreign aid...................................................... 298
Funding...................................................... 256
General State issues............................................. 290
Global hunger.................................................... 285
Globalization and competition.................................... 274
Hawaiian-based fishing fleets.................................... 276
Human rights in Central Asia..................................... 304
International law enforcement.................................... 296
International Law Enforcement Academy [ILEA]..................... 270
International Monetary Fund (IMF)................................ 297
Liberian immigrants in the United States......................... 262
Madagascar, facility in.......................................... 247
Management challenges............................................ 297
Mexico........................................................... 273
Middle East...................................................... 289
Missile defense and Russia....................................... 265
Muslim Center in Vienna.......................................... 249
NATO enlargement................................................. 286
Net fragments.................................................... 276
Nuclear Posture Review (NPR)..................................... 281
OSCE:
And human rights............................................. 260
Countries, police training in................................ 262
Role of the.................................................. 259
Overseas buildings program....................................... 253
Peacekeeping:
Funding...................................................... 283
General...................................................... 294
Personnel........................................................ 245
Policing......................................................... 305
Public diplomacy................................................. 277
Russia: OSCE..................................................... 304
Serbia........................................................... 289
Southeast European Cooperative Initiative........................ 303
State and INS coordination....................................... 251
Terrorism:
Compensation to victims of international..................... 287
Expansion of the war on...................................... 268
Victims of compensation...................................... 246
Winning the war on........................................... 250
Trafficking in human beings...................................... 305
United Nations:
Capital master plan.......................................... 295
Dues, resynchronization of................................... 283
Peacekeeping mission in the Congo............................ 294
Population Fund (UNFPA)...................................... 283
Reforms...................................................... 302
United States:
Long-term commitment to developing countries................. 257
Policy on Iraq............................................... 266
Russia relations............................................. 261
Visa:
And passport activities...................................... 271
And passport fraud........................................... 300
Procedures................................................... 300
Youth in developing countries.................................... 302
FEDERAL COMMUNICATIONS COMMISSION
Additional committee questions................................... 206
Digital conversion............................................... 203
Emergency broadcast platforms.................................... 203
FCC, view on abolishing the...................................... 204
Fiscal year:
2002: maximizing available resources......................... 184
2003: continuing a year of progress.......................... 188
NextWave case.................................................... 195
1934 Communications Act.......................................... 195
Spectrum, ownership of the....................................... 199
Summary statement................................................ 192
Tauzin-Dingell bill.............................................. 197
Universal service fund........................................... 200
FEDERAL TRADE COMMISSION
Additional committee questions................................... 425
Competition mission, maintaining................................. 413
Consumer protection mission...................................... 409
Generic drug industry............................................ 422
Needed resources--fiscal year 2003............................... 418
Summary statement................................................ 405
Telemarketing.................................................... 423
SECURITIES AND EXCHANGE COMMISSION
Accounting industry, review and reform of........................ 234
CEOs, greater responsibilities on................................ 233
Disclosure and accounting........................................ 227
Disclosure system, improving the................................. 234
Funding:
Level........................................................ 225
Structure.................................................... 229
Information technology........................................... 229
Investor education............................................... 229
New legislative needs............................................ 234
Opening remarks.................................................. 230
Pay parity....................................................... 226
Justification for funding.................................... 231
President's proposed approach to address issues.................. 233
Real-time enforcement............................................ 227
Regulatory protection, effectiveness of.......................... 235
Staffing:
Additional needs............................................. 227
Increased request............................................ 231
SEC levels and Commission workload........................... 232
THE JUDICIARY
Federal Judiciary
Additional committee questions................................... 179
Administrative Office:
Budget request............................................... 155
Contributions of the......................................... 150
Relocation of the............................................ 175
Role of the.................................................. 153
Anthrax attacks, impact of the................................... 146
Assistant U.S. Attorneys (AUSAs) impact of additional............ 147
Budget overview.................................................. 145
Civil cases, tracking............................................ 181
Clerks' office staff............................................. 149
Cost containment and the judiciary's budget process.............. 150
Court support staff.............................................. 147
Defender services................................................ 149
Federal Judicial Center, contributions of the.................... 151
Judicial compensation............................................ 151
Junkets/efforts to lobby the judiciary through seminars.......... 179
Las Cruces Federal courthouse, status of......................... 178
Long-term implications........................................... 146
Mentally ill:
Medications for the.......................................... 177
Services for the within the judicial system.................. 176
New Federal defender office...................................... 179
New Mexico, additional judgeship for............................. 178
Off-site court operations support center......................... 174
Panel attorney rate increase..................................... 172
Probation and pretrial services.................................. 148
Program increases, request for................................... 172
Rate increase as an adjustment to base........................... 173
Resources requested.............................................. 165
Responsibilities and accomplishments............................. 156
Security, heightened............................................. 147
September 11th attacks, impact of the............................ 146
Terrorism trials, cost of........................................ 173
2001 terrorism incidents, response to............................ 153
2003 request..................................................... 159
Supreme Court of the United States
Building modernization........................................... 133
Building renovation and improvements............................. 137
Court automation................................................. 138
Judges' pay...................................................... 139
Operations and maintenance....................................... 138
Program changes.................................................. 138
Supreme Court budget............................................. 132
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