Nominations to the U.S. Department of Transportation, Federal Communications Commission (S. Hrg. 116-646)
Summary
Senate Hearing 116-646 records the June 16, 2020, hearing of the Committee on Commerce, Science, and Transportation, with Hon. Roger Wicker presiding, on nominations to the U.S. Department of Transportation, Federal Communications Commission, Consumer Product Safety Commission and U.S. Department of Commerce. The nominees are Hon. Joel Szabat, Michael P. O'Rielly, Dr. Nancy B. Beck, Michael J. Walsh, Jr., and Mary A. Toman. Senator Cantwell's statement says that at EPA, Dr. Beck assisted in delaying the release of a government study which found the EPA's health advisory for PFAS in drinking water too weak. Material for the record includes a letter dated May 12, 2020, from Harold A. Schaitberger, General President, International Association of Fire Fighters.
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[Senate Hearing 116-646]
[From the U.S. Government Publishing Office]
S. Hrg. 116-646
NOMINATIONS TO THE
U.S. DEPARTMENT OF TRANSPORTATION,
FEDERAL COMMUNICATIONS COMMISSION,
CONSUMER PRODUCT SAFETY COMMISSION,
AND THE U.S. DEPARTMENT OF COMMERCE
=======================================================================
HEARING
BEFORE THE
COMMITTEE ON COMMERCE,
SCIENCE, AND TRANSPORTATION
UNITED STATES SENATE
ONE HUNDRED SIXTEENTH CONGRESS
SECOND SESSION
__________
JUNE 16, 2020
__________
Printed for the use of the Committee on Commerce, Science, and
Transportation
[GRAPHIC NOT AVAILABLE IN TIFF FORMAT]
Available online: http://www.govinfo.gov
__________
U.S. GOVERNMENT PUBLISHING OFFICE
54-998 PDF WASHINGTON : 2024
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SENATE COMMITTEE ON COMMERCE, SCIENCE, AND TRANSPORTATION
ONE HUNDRED SIXTEENTH CONGRESS
SECOND SESSION
ROGER WICKER, Mississippi, Chairman
JOHN THUNE, South Dakota MARIA CANTWELL, Washington,
ROY BLUNT, Missouri Ranking
TED CRUZ, Texas AMY KLOBUCHAR, Minnesota
DEB FISCHER, Nebraska RICHARD BLUMENTHAL, Connecticut
JERRY MORAN, Kansas BRIAN SCHATZ, Hawaii
DAN SULLIVAN, Alaska EDWARD MARKEY, Massachusetts
CORY GARDNER, Colorado TOM UDALL, New Mexico
MARSHA BLACKBURN, Tennessee GARY PETERS, Michigan
SHELLEY MOORE CAPITO, West Virginia TAMMY BALDWIN, Wisconsin
MIKE LEE, Utah TAMMY DUCKWORTH, Illinois
RON JOHNSON, Wisconsin JON TESTER, Montana
TODD YOUNG, Indiana KYRSTEN SINEMA, Arizona
RICK SCOTT, Florida JACKY ROSEN, Nevada
John Keast, Staff Director
Crystal Tully, Deputy Staff Director
Steven Wall, General Counsel
Kim Lipsky, Democratic Staff Director
Chris Day, Democratic Deputy Staff Director
Renae Black, Senior Counsel
C O N T E N T S
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Page
Hearing held on June 16, 2020.................................... 1
Statement of Senator Wicker...................................... 1
Statement of Senator Cantwell.................................... 2
Letter dated May 12, 2020 to Hon. Roger Wicker and Hon. Maria
Cantwell from Harold A. Schaitberger, General President,
International Association of Fire Fighters................. 4
Letter dated June 15, 2020 to Hon. Roger Wicker and Hon.
Maria Cantwell from John Wiesman, DrPH, MPH, Secretary,
Washington State Department of Health and Laura Watson,
Director, Washington State Department of Ecology........... 6
Letter dated Sep 11, 2019 to Cynthia Decker, NOAA Federal re:
Scientific Integrity Filing................................ 8
Statement of Senator Moran....................................... 141
Statement of Senator Udall....................................... 143
Letter dated June 10, 2020 to Alexandra Dapolito Dunn,
Assistant Administrator, Environmental Protection Agency
from: Eve C. Gartner, Managing Attorney, Toxic Exposure &
Health Program, Earthjustice; Stel Bailey, Brevard County,
FL, Emily Donovan, Brunswick County, NC, National PFAS
Contamination Coalition; Lynn Thorp, National Campaigns
Director, Clean Water Action; Tom Neltner, Chemicals Policy
Director, Environmental Defense Fund; Melanie Benesh,
Legislative Attorney, Environmental Working Group; Daniel
Rosenberg, Senior Attorney & Director of Federal Toxics
Policy, Natural Resources Defense Council.................. 145
Memorandum from Earthjustice entitled ``EPA's PFAS-related
responsibilities under the National Defense Authorization
Act for FY 2020''.......................................... 148
Opposition letter dated June 10, 2020 re: Nancy Beck to Hon.
Roger Wicker and Hon. Maria Cantwell from Jennifer Sass,
PhD, Senior Scientist, National Resources Defense Council,
Professorial Lecturer, George Washington University and
over 90 scientists......................................... 149
Opposition letter dated June 11, 2020 re: Nancy Beck to Hon.
Roger Wicker and Hon. Maria Cantwell from Linda Lipsen,
Chief Executive Officer, American Association for Justice.. 159
Opposition letter dated June 12, 2020 re: Nancy Beck to Hon,
Roger Wicker and Hon. Maria Cantwell from the Learning
Disabilities Association of America........................ 160
Opposition letter dated June 15, 2020 re: Nancy Beck to Hon.
Roger Wicker and Hon. Maria Cantwell from: AFL-CIO, Alaska
Community Action on Toxics, American Association for
Justice, AKPIRG (Alaska), Arizona PIRG, Asbestos Disease
Awareness Organization, Blue Ridge Environmental Defense
League, Blue Ridge Environmental Defense League (Rabun Gap
Chapter), Breast Cancer Action, Breast Cancer Prevention
Partners, CALPIRG, Cancer Prevention and Treatment Fund,
Center for Biological Diversity, Center for Economic
Justice, Center for Environmental Health, Center for
Environmental Policy and Management, Center for Justice &
Democracy, Center for Science in the Public Interest,
Chapel Hill Organization for Clean Energy, Charlie's House,
Chicago Consumer Coalition, Citizens' Environmental
Coalition, Clean and Healthy New York, Clean Production
Action, Clean Water Action, Collaborative on Health and the
Environment, Columbia Consumer Education Council, Coming
Clean, Consumer Action, Consumer Advocates Against Reverse
Mortgage Abuse, Consumer Assistance Council, Inc., Consumer
Federation of America, Consumers for Auto Reliability and
Safety, CoPIRG (Colorado), ConnPIRG, Data for Justice,
Earthjustice, Earthworks, Ecology Center, Endangered
Species Coalition, Environmental Defense Fund,
Environmental Health Strategy Center, Environmental Working
Group, Fannworker Association of Florida, Florida PIRG,
Florida Silver Haired Legislature Inc, Food & Water Action,
Georgia PIRG, Green Inside and Out, Green Science Policy
Institute, HarperSmiles, Healthy Babies Bright Futures,
Illinois PIRG, Institute for Agriculture and Trade Policy,
International Center For Technology Assessment;
International Union, UAW; Iowa PIRG, KidsAndCars.org, Kids
In Danger, League of Conservation Voters, Maryland PIRG,
Massachusetts Breast Cancer Coalition, MASSPIRG, Meghan's
Hope, Mid-Pinellas Coalition of Neighborhood Associations,
Moms Clean Air Force, MoPIRG (Missouri), NC Child, NCPIRG,
NHPIRG, NJPIRG, NMPIRG, National Consumers League, National
Employment Law Project, National PFAS Contamination
Coalition, National Women's Health Network, Natural
Resources Defense Council, NC Conservation Network,
Nontoxic Certified, Ohio PIRG, Oregon Environmental
Council, OSPIRG (Oregon), Parents Against Tip-Overs,
PennPIRG, PIRGIM (Michigan), Public Citizen, Protect All
Children's Environment, RIPIRG, Safer Chemicals Healthy
Families, Safer States, Shanes Foundation, TexPIRG, Toxic-
Free Future, Toxic Free NC, Union of Concerned Scientists,
Union Veterans Council, UPSTREAM, U.S. Public Interest
Research Group, WashPIRG, WISPIRG (Wisconsin), Women's
Voices for the Earth, Vermont Conservation Voters, Zero
Waste Washington........................................... 163
Oposition letter dated June 15, 2020 re: Nancy Beck to Hon.
Roger Wicker and Hon. Maria Cantwel from Diana Zuckerman,
Ph.D., President, National Center for Health Research...... 167
Opposition letter dated June 16, 2020 re: Nancy Beck to David
Strickland from Jack Fletcher.............................. 168
Opposition letter dated June 16, 2020 re: Nancy Beck to Hon.
Roger Wicker and Hon. Maria Cantwell from: Linda Shosie,
Tucson, Arizona, Environmental Justice Task Force--Tucson;
Anthony Spaniola, Oscada, Michigan, Need Our Water (NOW);
Eric Weiner, Windsor, Connecticut, Clean Water Task Force @
Windsor, Climate Action; Diane and Paul Cotter, Rindge, New
Hampshire, Your Turnout Gear and PFOA; Stel Bailey, Cocoa,
Florida, Fight For Zero; Laurene Allen, Merrimack, New
Hampshire, Merrimack Citizens for Clean Water; Lindsey
Duhe, Pensacola, Florida, Saufley Field Community; Andrea
Amico, Portsmouth, New Hampshire, Testing for Pease; Lynn
Sprayberry, Summerville, Georgia, Chattooga County; Loreen
Hackett, Hoosick Falls, New York, PfoaProjectNY; Susan
Phelan, West Barnstable, Massachusett, GreenCAPE; Jack
Caldwell, New Windsor, New York, Quassiack Creek Watershed
Alliance; Ryan Riley, Salem, Massachusett, Your Turnout
Gear and PFOA; Emily Donovan, Wilmington, North Carolina,
Clean Cape Four; Arnie Leirche, Oscada, Michigan, Wurtsmith
Restoration Advisory Board, Community Co-chair; Katie
Bryant, Pittsboro, North Carolina, Clean Haw River; Hope
Grosse, Joanne Stanton, Bucks and Montgomery Counties,
Pennsylvania, Buxmont Coalition for Safer Water; Cheryl
Cail, Myrtle Beach, South Carolina, SC Idle No More; Kevin
Ferrara, Lock Haven, Pennsylvania, Retired USAF
Firefighter; Shaina Kasper, Montpelier, Vermont, Toxics
Action Center; John Cranmer, Gillette, Wyomihg, USAF
Firefighter................................................ 169
Prepared Statement of Brian Wynne, Chairman, Drew Wynne
Foundation................................................. 172
Statement of Senator Blunt....................................... 172
Statement of Senator Blumenthal.................................. 174
Letter from Crystal Ellis.................................... 174
Letter from Janet McGee, Founding Member, Parents Against
Tip-overs.................................................. 175
Statement of Senator Lee......................................... 177
Statement of Senator Baldwin..................................... 178
Statement of Senator Thune....................................... 180
Statement of Senator Tester...................................... 182
Statement of Senator Rosen....................................... 184
Statement of Senator Capito...................................... 187
Statement of Senator Sullivan.................................... 189
Witnesses
Hon. Joel Szabat, Nominee to be Under Secretary of Transportation
for Policy, U.S. Department of Transportation.................. 80
Prepared statement........................................... 82
Biographical information..................................... 84
Michael P. O'Rielly, Nominee to be a Member, Federal
Communications Commission...................................... 90
Prepared statement........................................... 91
Biographical information..................................... 93
Dr. Nancy B. Beck, Nominee to be a Commissioner and Chairman,
Consumer Product Safety Commission............................. 103
Prepared statement........................................... 105
Biographical information..................................... 106
Michael J. Walsh, Jr., Nominee to be General Counsel, U.S.
Department of Commerce......................................... 120
Prepared statement........................................... 120
Biographical information..................................... 121
Mary A. Toman, Nominee to be Under Secretary of Commerce for
Economic Affairs, U.S. Department of Commerce.................. 128
Prepared statement........................................... 130
Biographical information..................................... 131
Appendix
Response to written question submitted to Hon. Joel Szabat by:
Hon. Roy Blunt............................................... 201
Hon. Shelley Moore Capito.................................... 201
Hon. Ron Johnson............................................. 202
Hon. Maria Cantwell.......................................... 202
Hon. Edward Markey........................................... 205
Response to written question submitted to Dr. Nancy B. Beck by:
Hon. Cory Gardner............................................ 206
Response to written questions submitted to Michael J. Walsh, Jr.
by:
Hon. Dan Sullivan............................................ 207
Response to written questions submitted to Mary A. Toman by:
Hon. Jerry Moran............................................. 208
NOMINATIONS TO THE
U.S. DEPARTMENT OF TRANSPORTATION,
FEDERAL COMMUNICATIONS COMMISSION,
CONSUMER PRODUCT SAFETY COMMISSION,
AND THE U.S. DEPARTMENT OF COMMERCE
----------
TUESDAY, JUNE 16, 2020
U.S. Senate,
Committee on Commerce, Science, and Transportation,
Washington, DC.
The Committee met, pursuant to notice, at 2:30 p.m. in room
SD-G50, Dirksen Senate Office Building, Hon. Roger Wicker,
Chairman of the Committee, presiding.
Present: Senators Wicker [presiding], Thune, Blunt, Cruz,
Fischer, Moran, Sullivan, Blackburn, Capito, Lee, Young, Scott,
Cantwell, Blumenthal, Udall, Peters, Baldwin, Duckworth,
Tester, Sinema, and Rosen.
OPENING STATEMENT OF HON. ROGER WICKER,
U.S. SENATOR FROM MISSISSIPPI
The Chairman. The hearing will come to order.
Today the Committee will consider five nominations to
important positions across the jurisdiction of the Committee.
The nominees before us today are: Joel Szabat, to be Under
Secretary of Transportation Policy; Michael O'Rielly, who has
been nominated for a new term as Commissioner at the Federal
Communications Commission; Nancy Beck, who has been nominated
to be a Commissioner and Chairman of the Consumer Product
Safety Commission; Michael Walsh, nominated to be General
Counsel of the Department of Commerce; and Mary Toman, the
nominee to be Under Secretary of Commerce for Economic Affairs.
Mr. Szabat has been known and respected by the members of
this committee for many years. He has held key positions in the
transportation sector, including his service as Deputy
Assistant Secretary for Transportation Policy, Deputy Assistant
Secretary for Management and Budget, and Executive Director of
the Maritime Administration.
Mr. Szabat was previously considered by this committee and
unanimously confirmed by the full Senate in January 2019 to the
position of Assistant Secretary for Aviation and International
Affairs. In recent months, he has also served as the Acting
Under Secretary of Transportation for Policy and has performed
the duties of this position, giving him valuable experience for
future continued service in this role for which he has been
nominated.
Commissioner Michael O'Rielly has served as a member of the
FCC since 2013, having been unanimously confirmed twice by the
full Senate. He has now been nominated to serve a new term at
this agency. During his tenure, he has been a leader on
spectrum and video policy issues and has made other important
contributions to the work of the Commission. Prior to his
service at the FCC, Commissioner O'Rielly held a number of
staff positions in the U.S. Congress, including service with
the House Committee on Energy and Commerce and on the staffs of
a number of Senators, including former and current members of
this committee.
Dr. Nancy Beck has been nominated to serve as Commissioner
and as Chairman of the Consumer Product Safety Commission. She
has an accomplished academic record, demonstrated by her
Bachelor's Degree in Microbiology from Cornell University and
her Master's and Doctorate degrees in Environmental Health from
the University of Washington. Dr. Beck has gained broad career
experience in the private sector with the Washington State
Department of Health, the Office of Management and Budget, the
American Chemistry Council, and her current position as
Principal Deputy Assistant Administrator for the Office of
Chemical Safety and Pollution Prevention with the U.S.
Environmental Protection Agency. Recently she completed a
detail as a policy advisor with the National Economic Council.
Michael Walsh has built an impressive legal career,
beginning with his law degree from Columbia Law School and
continuing through associate, counsel, and partner positions at
respected firms. Mr. Walsh began his service at the Department
of Commerce as Deputy General Counsel before becoming Chief of
Staff. Additionally, he has been performing the delegated
duties of the General Counsel for almost a year, and he appears
before this committee today as the nominee for this role.
And then appearing remotely by video is Mary Toman. Her
educational and career background are part of her strong record
of achievement, which has resulted in her nomination to serve
as Under Secretary of Commerce for Economic Affairs. She holds
a degree in economics from Stanford University and an M.B.A.
from Harvard Business School. Earlier in her career, she was a
Deputy Assistant Secretary of Commerce, and she also was the
Deputy Treasurer of the State of California. Her current
private sector position focuses on the creation and management
of a successful stock and real estate portfolio.
I would like to thank all the nominees for testifying today
and for your willingness to serve in these key roles in our
government.
And I will now turn to Ranking Member Cantwell for her
opening remarks. Senator Cantwell.
STATEMENT OF HON. MARIA CANTWELL,
U.S. SENATOR FROM WASHINGTON
Senator Cantwell. Thank you, Mr. Chairman.
Today we have five nominees for key positions at several
agencies. Let me start first with the nominee for Chairman and
Commissioner of the U.S. Consumer Product Safety Commission.
The Consumer Product Safety Commission has jurisdiction
over thousands of consumer products, including toys and many
other products used by infants and small children. The agency
is literally the last line of defense against defects and toxic
hazards in consumer products that can kill and cause serious
injuries.
Unfortunately, Dr. Beck's record is clear. She has
repeatedly sided with an industry to represent the American
Chemistry Council over the safety of American families. I
believe that she has a glaring failure in the lack of
meaningful address to the health risk posed by a class of
highly persistent chemicals referred to, PFAS.
PFAS are a class of toxic chemicals that have been linked
to cancers, thyroid disease, decreased response to vaccines,
birth defects, and immune system disorders. These chemicals are
found in many consumer products like carpets, clothing, paint,
nonstick cookware, as well as fire fighting foam that is used
at military bases. In fact, they have contaminated over 300
military installations across the country, including several in
the State of Washington.
Just last week, the Agency for Toxic Substances and Disease
Registry, which is part of the Centers for Disease Control and
Prevention, released PFAS exposure assessments for 333 people
living near Fairchild Air Force Base in Spokane. The assessment
showed that almost all the people studied had PFAS levels
higher than the national average.
Washington has been a leader in the Nation in dealing with
PFAS. It was the first state to ban the use of the fire
fighting foam containing PFAS, as well as PFAS in food
packaging, but it will cost billions of dollars to clean up the
mess, much of that Federal dollars, and millions of people will
continue to be harmed from the exposures for years to come.
Dr. Beck has repeatedly stood in the way of progress on
this issue. At EPA, Dr. Beck assisted in delaying the release
of a government study which found that the EPA's current health
advisory for PFAS in drinking water was too weak to protect the
public. The propose health advisory would show that PFAS is
dangerous at a much lower level than previously thought.
And as a White House official in an e-mail to the Office of
Management and Budget, deemed the report a public relations
nightmare, impervious to the public health nightmare that was
unfolding around the country with PFAS. In fact, the final
report is still stuck at the White House where Dr. Beck was
detailed to work on environmental regulations for the National
Economic Council.
This is one of the reasons why the Secretary of the
Washington State Department of Health where Dr. Beck has worked
sent me a letter yesterday strongly opposing her nomination.
The International Association of Fire Fighters also strongly
oppose her nomination, stating, quote, ``her record promoting
the interests of the chemical industry at the expense of
workers' health and safety makes her ill-suited for this
position.'' I will put these two letters, Mr. Chairman, in the
record.
The Chairman. Without objection, they will be placed in at
this point.
[The information referred to follows:]
Washington State Department of Health
June 15, 2020
Hon. Roger Wicker,
Chairman,
Senate Committee on Commerce, Science, and Transportation,
Washington, DC.
Hon. Maria Cantwell,
Ranking Member,
Senate Committee on Commerce, Science, and Transportation,
Washington, DC.
Dear Chairman Wicker and Ranking Member Cantwell:
We write to express our grave concerns regarding the nomination of
Dr. Nancy Beck to chair the Consumer Product Safety Commission (CPSC)
due to her past actions to undermine the public's health. We urge you
to vigorously oppose her confirmation.
Over the past 40 years, CPSC has kept people safe across the United
States by reducing the unreasonable risk of injuries and deaths from
over approximately 10,000 types of products, including baby strollers,
cribs, and bath seats, to cigarette lighters and lawn mowers.\1\ CPSC
has broad authority under the law to ensure consumer product safety,
including by restricting toxic chemicals like lead, formaldehyde,
asbestos, and fire retardants in consumer products.\2\ Dr. Beck is
grossly unfit to chair the CPSC after having worked inside and outside
of government to roll back regulations aimed at protecting people from
the serious risk of toxic chemicals.\3\ As someone with a clear record
of implementing policies that benefit industry at the expense of
consumer protection, Dr. Beck has no place leading an agency whose
mission is to protect consumer health and safety from being harmed by
the very products. they believe are safe to bring in their homes.
---------------------------------------------------------------------------
\1\ See David Carpenter, The Consumer Product Safety Act: A Lego/
Analysis, Congressional Research Service, available at https://fas.org/
sgp/crs/misc/R45174.pdf
\2\ See David Carpenter, The Consumer Product Safety Act: A legal
Analysis, Congressional Research Service, available at https://fas.org/
sgp/crs/misc/R45174.pdf
\3\ See Eric Lipton, Why Has the E.P.A. Shifted on Toxic Chemicals?
An Industry Insider Helps Call the Shots, The New York Times, Oct 21,
2017, available at https://www.nytimes.com/2017/10/21/us/trump-epa-
chemicals-regulations.html
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Dr. Beck has repeatedly attempted to roll back or water down
Federal regulation on environmental health while working at the Office
of Information and Regulatory Affairs (OIRA) during the Bush
Administration, and more recently, at the Office of Chemical Safety and
Pollution Prevention in the Environmental Protection Agency (EPA)
during the Trump Administration. For example:
Dr. Beck advocated for the revision of language in Federal
lead paint regulations to diminish the link to cardiovascular
disease in adults.\4\
---------------------------------------------------------------------------
\4\ Id.
She helped slow down efforts to protect drinking water from
perchlorate, an ingredient in rocket fuel.\5\
---------------------------------------------------------------------------
\5\ See Majority Staff of the Subcommittee on Investigations and
Oversight for the U.S. House of Representatives Committee on Science
and Technology, Nipping IRIS in the Bud: Suppression of Environmental
Science by the Bush Administration's Office of Management And Budget,
June 11, 2009, available at https://www.documentcloud.org/documents/
4113586-EPA-and-Toxic-Chemical-Rules.html#document/p94/a382944
While at OIRA, she helped draft the 2006 Proposed Risk
Assessment Bulletin that would limit how the Federal government
assesses risks to human health.\6\ The Office of Management and
Budget requested the nonpartisan National Academy of Sciences'
(NAS) National Research Council to review the guidance and NAS
published a report finding the guidance was fundamentally
flawed.\7\ Fortunately, OMB did not finalize the draft
guidance.\8\
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\6\ See Office of Management and Budget, Proposed Risk Assessment
Bulletin, available at https://obamawhitehouse.archives.gov/sites/
default/files/omb/assets/omb/inforeg/proposed_
risk_assessment_bulletin_010906.pdf
\7\ See National Research Council. 2007. Scientific Review of the
Proposed Risk Assessment Bulletin from the Office of Management and
Budget. Washington, DC: The National Academies Press. https://doi.org/
10.17226/11811
\8\ Office of Management and Budget, Updated Principles/or Risk
Analysis, September 19, 2007, available at https://georgewbush-
whitehouse.archives.gov/omb/memoranda/fy2007/m07-24.pdf
While at EPA, she attempted to implement flawed concepts of
the 2006 Proposed Risk Assessment Bulletin during
implementation the Consumer Product Safety Improvement Act of
2016. These proposed regulations were appealed to the Ninth
Circuit and reversed, in part on grounds that the EPA's
exclusion of legacy uses and associated disposals from the
definition of ``conditions of use'' is unlawful.\9\
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\9\ Concerned Scientists Safer Chemicals, Healthy Families v. U.S.
Envtl. Prot. Agency, 943 F.3d 397 (9th Cir. 2019)
Dr. Beck scaled back several policies curbing Federal limits
on chemicals, including two powerful solvents linked to
neurological defects.\10\
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\10\ See Todd Frankel and Juliet Eilperin, Trump may appoint former
chemical industry executive to lead Consumer Product Safety Commission,
The Washington Post, December 10, 2019, available at https://
www.washingtonpost.com/business/2019/12/10/white-house-considering-
former-chemical-industry-executive-lead-consumer-product-safety-
commission/
She also pressured EPA to make changes to loosen a potential
regulation of PFAS.\11\
---------------------------------------------------------------------------
\11\ See Senator Carper's letter to Administrator Andrew Wheeler,
dated April 17, 2020, available at https://www.epw.senate.gov/public/
cache/files/c/1/c15a8ced-03b1-4a46-bb05-aba15d1
0e36e/DC527687B68D0EF6DDE2A93C26A6D6FC.04-17-20-tc-pfas-snur-letter-to-
wheeler.pdf
The Committee should be deeply concerned by Dr. Beck's significant
connections to the very industry she is supposed to regulate. Dr. Beck
worked as a senior policy director at the American Chemistry Council
(ACC), a powerful chemical industry lobbying group.\12\ ACC has opposed
protections against numerous toxic chemicals, including flame
retardants.\13\ The CPSC granted a petition to initiate rulemaking on
the use of certain flame retardants in four categories of consumer
products, including children's products.\14\ A number of flame
retardants are linked to thyroid disruption, cancer, and learning
deficits.\15\ If Dr. Beck were appointed chair of CPSC, we firmly
believe she would fail to put the health of the American public before
industry interests.
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\12\ See Frankel and Eilperin, December 10, 2019
\13\ See American Chemistry Council, NASEM Report Confirms
Organohaolgen Flame Retardant Cannot Be Assessed for Hazards as a
Single Class, May 15, 2019, available at https://
www.americanchemistry.com/Media/PressReleasesTranscripts/ACC-news-
releases/NASEM-Report-Confirms-Organohalogen-Flame-Retardants-Cannot-
Be-Assessed-for-Hazards-as-a-Single-Class.html
\14\ See U.S. Consumer Product Safety Commission webpage on flame
retardants, available at https://www.cpsc.gov/Business-Manufacturing/
Business-Education/Business-Guidance/flame-retardants
\15\ Washington State Department of Ecology, Children's Safe
Products Reporting Rule Rationale for Reporting List of Chemicals of
High Concern to Children 2011-2017, Publication Number 18-04-025, dated
November 2018, available at https://fortress.wa.gov/ecy/publications/
Summary
Pages/1804025
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Additionally, Dr. Beck has a record of ignoring the advice of
scientific advisors and interfering with the development of evidence-
based policy. According to press reports, she was involved in the
shelving of the Centers for Disease Control and Prevention (CDC)
coronavirus guidance while on detail with NEC.\16\ Timely national
guidance from scientific experts at CDC would have been instrumental in
helping states, territories, and local health officials develop
guidance on how to safely reopen communities. As state officials
charged with protecting the public health, we were deeply troubled to
learn Dr. Beck was involved in this matter. CPSC needs leadership that
uses the advice of scientific experts to help guide policy.
---------------------------------------------------------------------------
\16\ See Jason Dearen and Michael Biesecker, E-mails: Trump nominee
involved in shelving CDC virus guide, Associated Press, May 13, 2020,
available at https://www.post-gazette.com/news/nation/2020/05/13/
Emails-Trump-nominee-invotved-in-shelving-CDC-virus-guide/stories
/202005130139
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Finally, we have serious concerns that Dr. Beck's appointment could
lead to CPSC action to preempt our robust state laws.\17\ Washington
State has a number of state laws that protect children from mercury,
lead, flame retardants, PFAS, and other chemicals and that offer robust
consumer and environmental protection.\18\ Because the chemicals in
consumer products can be released into the environment during product
use and disposal, safer consumer products are important for pollution
prevention. Based on Dr. Beck's history of advocating for the national
chemical industry, which frequently takes positions against state-based
regulations, we have reason to believe she would support rolling back
our important consumer protections through Federal preemption.
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\17\ See David Carpenter, The Consumer Product Safety Act: A Legal
Analysis, Congressional Research Service, available at https://fas.org/
sgp/crs/misc/R45174.pdf
\18\ See chapters 70.95M, 70.280, 70.365 of the Revised Code of
Washington available at https://app.leg.wa.gov/rcw/
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For the reasons stated above, we urge you to oppose Dr. Nancy
Beck's confirmation as chair of the Consumer Product Safety Commission.
Her record makes clear that she will fail to put the health and safety
of Americans first. If you have any questions, please contact the
Director of Governor Inslee's Washington, D.C. office, Casey Katims, at
[email protected].
Sincerely,
John Wiesman, DrPH, MPH
Secretary,
Washington State Department of Health.
Laura Watson,
Director,
Washington State Department of Ecology.
______
International Association of Fire Fighters
Washington, DC, May 12, 2020
Hon. Roger Wicker,
Chairman,
Committee on Commerce, Science, and Transportation,
U.S. Senate,
Washington, DC.
Hon. Maria Cantwell,
Ranking Member,
Committee on Commerce, Science, and Transportation,
U.S. Senate,
Washington, DC.
Dear Chairman Wicker and Ranking Member Cantwell,
On behalf of the more than 320,000 professional fire fighters and
emergency medical personnel of the International Association of Fire
Fighters (IAFF), I am writing to express our opposition to the
nomination of Nancy Beck to Chair the U.S. Consumer Product Safety
Commission (CPSC). We believe her record promoting the interests of the
chemical industry at the expense of workers' health and safety makes
her ill-suited for this position.
As a lobbyist and former executive for the chemical industry, Ms.
Beck opposed efforts to ban toxic flame retardants from consumer
products despite research demonstrating their negative health impacts
on vulnerable populations and workers, including fire fighters.
Additionally, in her current role as Principal Deputy Assistant
Administrator in the EPA's Office of Chemical Safety and Pollution
Prevention, Ms. Beck has actively weakened safety protections and
undermined rules on emerging hazards such as PFAS. She also
demonstrated her disinterest in protecting workers through her work to
exclude exposure to legacy asbestos in the chemical's risk evaluation
under TSCA.
Ms. Beck's professional record, while working for the chemical
industry, the EPA and in the White House, illustrates a consistent
disregard for the risks that toxic chemicals pose to workers' health.
Fire fighters are particularly concerned with the potential cancer risk
posed by toxic flame retardants, and have worked in the states to ban
their use. As CPSC Chair, Ms. Beck would be poised to undermine the
significant progress states have made to ban flame retardants and could
reverse the Commission's planned rulemaking on the use of organohalogen
flame retardants in various consumer products.
The IAFF believes if Ms. Beck is appointed as chair to the CPSC
Commission she will continue to advance the agenda of the chemical
industry and reverse health and safety protections for fire fighters
and consumers across the country. We urge you to reject her nomination.
Sincerely,
Harold A. Schaitberger,
General President.
Senator Cantwell. Thank you, Mr. Chairman.
We cannot afford to go backward on regulation of toxic
chemicals like PFAS which are often found in consumer products.
And PFAS is not the only safety issue that I am concerned
about.
Dr. Beck's efforts to implement overwhelming--efforts to
implement the overwhelming bipartisan reform of the Toxic
Substances Control Act led to the Ninth Circuit saying that the
Trump administration was ignoring clear requirements of the
law. And rather than addressing the science evidence showing
that a toxic chemical, TCE, caused birth defects, Dr. Beck
simply directed the Trump EPA to delete that evidence from the
risk evaluation in the first place.
The Associated Press reported that at OMB, Dr. Beck was
involved in a push to block the release of COVID-19 safety
guidance to states and localities from the Centers of Disease
Control.
Now, last December, we released a report about the serious
recall process at the Consumer Product Safety Commission,
including issues about strollers and serious injuries from
infant sleepers. So I want to see someone at the leadership of
the Consumer Product Safety Commission that will help us in
protecting the public.
So, Mr. Chairman, I know we will hear from the witness, and
I look forward to hearing what comments and having a chance to
ask questions about these very important issues.
In addition, Michael Walsh is here to serve as the General
Counsel at the Department of Commerce. He has previously served
as the Department Deputy General Counsel and the Chief of Staff
and has now moved to Acting General Counsel.
Mr. Walsh appears to have been involved in efforts last
summer to stifle career National Weather Service staff who
attempted to correct President Trump's erroneous statements
about Hurricane Dorian.
Just yesterday, NOAA released the findings of an
independent review of allegations of misconduct related to
Dorian, and two officials were found to have knowingly and
willfully or with reckless disregard violated NOAA's own
scientific integrity policy, and unnamed officials at the
Department of Commerce were also implicated.
So, Mr. Chairman, I ask that the assessment and that NOAA's
responses of the IG be listed in the record.
The Chairman. Without objection.
[The information referred to follows:]
September 9, 2019
Cynthia Decker
NOAA Scientific Integrity Officer
[email protected]
Craig McLean
NOAA Acting Chief Scientist
[email protected]
Dear Dr. Decker and Mr. McLean:
As former NOAA leaders, we are writing to request a comprehensive
investigation into all potential violations of the NOAA Scientific
Integrity Policy (cf. NOAA Administrative Order 202-735D: Scientific
Integrity, and associated Procedural Handbook) related to communication
around Hurricane Dorian. Recent actions to censor NWS scientists put
public safety at risk, are inconsistent with NOAA's scientific
integrity principles, violate the public trust, and compromise the
independence and reliability of the National Weather Service.
We also request that you encourage NOAA and Department of Commerce
political leadership to make positive, proactive statements that
reaffirm the rights of NWS experts to share their expertise publicly
regardless of the political inconvenience of that work. Public safety
depends on unfettered access to accurate scientific information, and
both NWS staff and the public are looking for affirmation that
political interference in the communication of such information will
not be tolerated.
First, an inaccurate, non-attributable press release was issued on
Friday, September 6 that repudiated correct information provided by the
National Weather Service that happened to contradict an erroneous
presidential tweet. More troublingly, according to multiple reports,
experts were told during Hurricane Dorian not to speak publicly about
risks to various states, and to route any media requests to public
affairs. It is unconscionable that government experts would be
prevented from communicating relative risk of hurricanes directly to
the public, or to go through political filters to do so, particularly
in times of emergency.
The NOAA Scientific Integrity Policy explicitly gives experts the
right to speak publicly about their scientific work without asking for
permission. Section 4.05 states that:
``To be open and transparent about their work, and consistent
with DAO 219-1 on (Public Communications) and their official
duties, NOAA scientists may freely speak to the media and the
public about scientific and technical matters based on their
official work, including scientific and technical ideas,
approaches, findings, and conclusions based on their official
work. Additional guidance for employees is available in DAO
219-1. Communication by e-mail or other electronic means in
response to inquiries from the media, and concerning scientific
or technical matters based on an employee's official work, are
considered to be the same as oral communication and not subject
to approval . . .''
The policy also gives scientists the right to review official
communications that rely on their work. Specifically, Section 7.01
requires that NOAA ensures that:
``Appropriate rules and procedures are in place and implemented
to preserve the integrity of the scientific process and the
dissemination of its scientific products and information,
including providing scientists the right to review and correct
any official document (such as a press release or report) that
cites or references their scientific work, to ensure that
accuracy has been maintained after the clearance and editing
process . . .''
We are encouraged by Mr. McLean's pledge to investigate the
circumstances around the September 6 NOAA press release. However, we
believe that the investigation should be considerably more
comprehensive to measure the full extent of losses of scientific
integrity at NOAA in order to develop a plan that prevents future
losses of scientific integrity.
Specifically, we would ask you to consider the following:
Did the White House or Department of Commerce put pressure
on NOAA to publicly undermine the NWS Birmingham social media?
Who within NOAA and NWS was involved in developing the NOAA
September 6 statement?
Who within NOAA, NWS, the Department of Commerce, and the
White House was involved in restricting the ability of NWS
staff to publicly communicate up-to-date information about
Hurricane Dorian and when were those restrictions communicated?
Why were these restrictions deemed necessary?
Maintaining high scientific integrity standards is essential to the
ability of NOAA and the National Weather Service to protect the public
and maintain their trust. Thank you in advance for considering this
request for a thorough investigation.
Sincerely,
Dr. Jane Lichen, Oregon State University
NOAA Administrator, 2009-2013
Dr. Richard Spinrad, Marine Technology Society
NOAA Chief Scientist, 2014-2017
NOAA Assistant Administrator, 2003-2010
Dr. Andrew Rosenberg, Union of Concerned Scientists
NOAA Deputy Director, National Marine Fisheries Service, 1998-2000
______
NOAA Scientific Integrity Office
Allegation 2019-009 Allegation
Carl Childs, President, Emergency Response Division Chapter
Email Message 09/11/19
Dear Sir or Madam,
I am writing in regard to the series of events that occurred last
week surrounding warnings and advisories from the federal government
about the approach of hurricane Dorian. Several of these events
constitute scientific misconduct under NOAA's Scientific Integrity
Policy (NAO 2O2-735D).
On the morning of Sept 1, the President tweeted that Alabama, as
well as Florida, South Carolina, North Carolina and Georgia, would
``most likely be hit (much) harder than anticipated.'' This did not
agree with the National Hurricane Center (Miami FL) discussion 32,
produced at 0500 EDT on Sept 1 by Forecaster Pasch, or any later
discussions.
It is unclear what led up to the President's mistaken remarks. He
may have received an inadequate briefing by representatives of the
agency or he may have disregarded what he was told. Regardless of the
reason, the statements of the President regarding potential hazards
from Dorian in the state of Alabama were incorrect.
About 20 minutes after the President's tweets, the National Weather
Service's (NWS) Weather Forecast Office (WFO) in Birmingham, Ala.,
appeared to step in on Twitter to clear up the confusion about the
storm's effects on the state,
``Alabama will NOT see any impacts from Dorian. We repeat, no
impacts from Hurricane #Dorian will be felt across Alabama. The
system will remain too far east.''
Misleading guidance from any part of the Federal government
regarding threats to the public health and welfare are potentially
dangerous in and of themselves. The quick response of the Birmingham
WFO was entirely necessary and appropriate to counter a high profile
incorrect message affecting public safety. Additionally, this statement
as well as the forecasted hurricane impact maps constitute emergency
official communications, covered by Department of Commerce Directive
DAO-209-Section 10. As such, they may be made ``without first obtaining
approval, so long as the procedures of the relevant operating unit (if
any) are followed and applicable law is complied with.''
The White House subsequently released an altered NWS forecast of
the hurricane risk area (``the Sharpie map''). It is unclear who was
responsible for this modification. If this alteration was done by a
NOAA employee then this constitutes a clear violation of NAO 202-735D
on the grounds of falsifying data. It is also possible that this
alteration of the forecast trajectory could constitute a crime as a
counterfeit forecast under 18 U.S. Code Sec. 2074.
On September 6, with no attribution to a specific official, NOAA
public relations released the following statement
``From Wednesday, August 28, through Monday, September 2, the
information provided by NOAA and the National Hurricane Center
to President Trump and the wider public demonstrated that
tropical-storm-force winds from Hurricane Dorian could impact
Alabama. This is clearly demonstrated in Hurricane Advisories
#15 through #41, which can be viewed at the following link (not
provided here).''
``The Birmingham National Weather Service's Sunday morning
tweet spoke in absolute terms that were inconsistent with
probabilities from the best forecast products available at the
time.''
No attempt was apparently made to contact the NOAA staff who
generated the original (unmodified) hurricane forecast before the
statement release. The September 6 statement was an intentional
misrepresentation of scientific findings that damages the scientific
standing of the NWS and the entire agency. It casts unwarranted doubt
on the performance of NWS forecasters and jeopardizes public faith in
NOAA as an impartial communicator of vital public safety information.
It is clear that the statement from NOAA management serves only to
deflect criticism of the source of the misleading information at the
expense of NWS employees who safeguarded the public in manner
consistent with the best scientific information available.
NAO 202-735D: (Scientific Integrity) Section 7.01 requires that
appropriate rules and procedures are in place and implemented to
preserve the integrity of the scientific process and the dissemination
of its scientific products and information, including providing
scientists the right to review and correct any official document (such
as a press release or report) that cites or references their scientific
work, to ensure that accuracy has been maintained after the clearance
and editing process.
This was not done in the September 6 release.
Section 8.01 of the same directive says that Scientific and
Research Misconduct is defined as fabrication, falsification, or
plagiarism in proposing, performing, or reviewing scientific and
research activities, or in the products or reporting of these
activities. Scientific and Research Misconduct specifically includes:
intentional circumvention of the integrity of the science and research
process by violation of NOAA's Code of Ethics for Science Supervision
and Management; and actions that compromise the scientific process by
violating NOAA's Code of Scientific Conduct. At minimum, there is the
appearance of violation of Section 8.01 by NOAA Public Affairs.
I am the president of the bargaining unit representing the
scientists in NOAA's Emergency Response Division (OR&R/NOS) and this
matter is of immediate and direct concern to out members. We are
charged with providing scientific assessments of the threat to the
public welfare resulting from natural disasters, oil spills and
hazardous materials releases. We cannot be expected to perform these
critical responsibilities in an environment where our own leadership
will second guess our judgementment based on trivial political
concerns. I look forward to your rapid response and the results of your
investigation into these clear violations of our Scientific Integrity
Policy.
Respectfully,
Carl R. Childs, Ph.D.,
President, BRD Chapter,
IFPTE Local 8A
______
U.S. House of Representatives
20th District, New York
September 10, 2019
Dr. Cynthia J. Decker, Scientific Integrity Officer
National Oceanic and Atmospheric Administration (NOAA)
Washington, DC
Dear Dr. Decker,
I am writing to request a formal investigation by the National
Oceanic and Atmospheric Administration (NOAA) into actions allegedly
taken by Administration appointees following President Trump's
unsupported public statements about Hurricane Dorian path projections,
in order to determine precisely whether these actions violated the NOAA
Administrative Order on Scientific Integrity.
Recent reporting in The New York Times, conducted by three veteran
political reporters who cite multiple sources with knowledge of the
acts in question, indicates that political leadership responsible for
overseeing NOAA may have communicated threats and applied political
pressure in an effort to suppress the release of vital, current
forecasting information critical to emergency preparedness. I have also
received evidence of an agency-wide directive sent on September 1, 2019
restricting National Weather Service (NWS) from releasing information
that could be seen as contradicting President Trump's false claim that
Alabama would ``most likely be hit (much) harder than anticipated,''
even as forecast guidance indicated that the state was not at risk.
This was reportedly followed by an unsigned statement on September 6,
2019 attributed only to NOAA generally that supported the president's
scientifically groundless assertions.
When the National Weather Service office in Birmingham, Alabama
identified the presence of inaccurate information about the storm, it
clarified to the public that Alabama would not see any impacts from
Hurricane Dorian. Following this correction, the office was rebuked by
NOAA in a September 6, 2019 statement attributable to an unnamed NOAA
spokesperson, who asserted that the Birmingham office ``spoke in
absolute terms that were inconsistent with probabilities from the best
forecast products available at the time.'' Since its release, numerous
former NOAA leaders as well as meteorologists around the country have
criticized NOAA's statement for its rebuke of the Birmingham office,
and voiced concerns about political interference in science. The
Washington Post reported that NOAA's acting Chief Scientist Craig
McLean found that this ``intervention to contradict the forecaster was
not based on science but on external factors including reputation and
appearance, or simply put, political,'' and that he will be pursuing
potential violations of the NOAA Administrative Order on Scientific
Integrity.
Countless state and local leaders, first responders, emergency
managers and American households depend on the communication of clear
scientifically sound information by the National Weather Service to
make critical and sometimes life-saving decisions. The NOAA
Administrative Order on Scientific Integrity has instituted measures to
ensure that such science conducted by the agency is safeguarded from
interference. The order states clearly that NOAA employees, whether
political appointees or civil servants, must not ``intimidate or coerce
employees, contractors . . . into altering or censoring scientific
findings'' or ``suppress, alter, or otherwise impede the timely release
of scientific or technological findings or conclusions unless
explicitly required by a Department or government-wide statute,
regulation, Executive Order, Presidential Memorandum, or other legal
authority.
As one of America's foremost scientific agencies responsible for
supporting public safety, NOAA's policy of upholding scientific
integrity standards is one of the most important in our Federal
government. The reported abuses by high-ranking political appointees,
in contravention of agency convention and best practices, appear to
violate the NOAA Administrative Order on Scientific Integrity. This
policy exists for the very purpose of preventing political interests
from interfering with the agency's protection of the safety and welfare
of the American people.
Accordingly, I ask NOAA to follow the guidance of your own
Administrative Order on Scientific Integrity, which says it is intended
to strengthen widespread confidence in the quality, validity, and
reliability of NOAA science, and uphold your agency's commitment to
support for science, the safety of the American people and the official
duties of your employees. I respectfully request you open an
investigation into this matter immediately.
Should any employee or contractor of NOAA experience retaliation in
relation to this matter, Congress will exercise its oversight authority
and will expect NOAA to fully investigate such subsequent violations of
your agency's scientific integrity policy.
Thank you for your prompt attention to this critical matter.
Sincerely,
Paul D. Tonko,
Member of Congress.
______
Table E-1. Rationale for Selection of Reviewed Allegations
------------------------------------------------------------------------
Policies Allegedly
Violated Complainants Response
------------------------------------------------------------------------
NAO 202-735 D
------------------------------------------------------------------------
Section 4.05: NOAA Lubchenco, Allegation was accepted and
scientists may Rosenberg, subsumed as part of
freely speak to Spinrad. Allegation 1.
the media and Allegation 2019-
public about 008
scientific and
technical matters
based on their
official work.
------------------------------------------------------------------------
Section 5.02(d): McLean. Allegation Allegation was accepted and
Ensure NOAA and 2019-007 subsumed as part of
Department of Allegation 1.
Commerce public
communication
guidance's provide
procedures by
which scientist
may speak to the
media and public
about scientific
and technical
matters based on
their official
work and areas of
expertise.
------------------------------------------------------------------------
Sections 5.02(k): McLean. Allegation Allegation was accepted and
Ensure the sharing 2019-007 subsumed as part of
of best Allegation 1.
administrative and
management
practices that
promote the
integrity of
NOAA's scientific
activities.
------------------------------------------------------------------------
Section 6.01: Code McLean. Allegation Allegation was dismissed, did
of Scientific 2019-007 not rise to the level of this
Conduct. inquiry. Section 6.01 focuses
on the agency's research and
scientific efforts.
------------------------------------------------------------------------
Section 7.01: NOAA McLean. Allegation Allegation was accepted and
science managers 2019-007 discussed herein as
and supervisors Lubchenco, Allegation 2.
will adhere to the Rosenberg,
guidelines for Spinrad.
Scientific Allegation 2019-
Integrity 008
established in the Childs. Allegation
March 9, 2009, 2019-009
Presidential Memo
to Heads of the
Executive
Department and
Agencies and
NOAA's Scientific
Integrity Policy.
------------------------------------------------------------------------
Section 7.02: NOAA McLean. Allegation Allegation was accepted and
science managers 2019-007 Tonka. discussed herein as
and supervisors Allegation 2019- Allegation 3.
must adhere to 0010
NOAA's Code for
Ethics for Science
Supervision and
Management.
------------------------------------------------------------------------
Section 7.03: McLean. Allegation Allegation was dismissed; the
Decisions to 2019-007 September 6 Statement is not
approve or not an FRC.
approve a
Fundamental
Research
Communications
(FRCs) must be
based ONLY on
where the work is
scientifically
meritorious NOT on
policy, budget, or
management
implications.
------------------------------------------------------------------------
Section 8.01: McLean. Allegation Allegation was accepted but
Scientific and 2019-007 subsumed as part of the
Research Childs. Allegation Panel's adjudication
Misconduct is 2019-009 standards (6.2 Adjudication
defined as Standards).
fabrication,
falsification, or
plagiarism in
proposing,
performing, or
reviewing
scientific and
research
activities, or in
the products or
reporting of these
activities.
------------------------------------------------------------------------
Procedural Handbook accompanying NAO 202-735D
------------------------------------------------------------------------
Section 2.03: McLean. Allegation Allegation was accepted but
Coercive 2019-007 subsumed as part of the
manipulation, Panel's adjudication
intimidation, standards (6.2 Adjudication
misrepresentation, Standards.)
censorship, or
other misconduct
that affects the
quality,
reliability of
scientific
information may
involve the loss
of scientific
integrity.
------------------------------------------------------------------------
Department of Commerce DAO 219-1
------------------------------------------------------------------------
Section 4.01: McLean. Allegation Allegation was accepted and
Guidelines for the 2019-007 subsumed as part of
release and Allegation 1.
development of
Department of
Commerce Public
Communications
------------------------------------------------------------------------
Section 5.03: All McLean. Allegation Allegation was accepted and
Commerce public 2019-007 subsumed as part of
affairs employees Allegation 1, 2, and 3.
shall follow best
practices.
------------------------------------------------------------------------
18 U.S. CodeSec. McLean. Allegation Allegation dismissed, out of
2074 False weather 2019-007 the scope of this
reports investigation.
------------------------------------------------------------------------
______
Appendix F: September 1 Birmingham Tweet and September 6 Statement
[GRAPHICS NOT AVAILABLE IN TIFF FORMAT]
Appendix G: Weather Forecast Office Tweets Using Absolute Terms
[GRAPHICS NOT AVAILABLE IN TIFF FORMAT]
Appendix H: List of Records Reviewed
The following is a record of documents received from NOAA that the
Academy Team reviewed.
Allegations Submitted to the NOAA Scientific Integrity Officer
Childs, Carl R. 2019. ``Allegation 2019-009.'' September 11.
Lubchenco, Jane, Richard Spinrad, and Andrew Rosenberg. 2019.
``Allegation 2019-008.'' September 9.
McLean, Craig N. 2019. ``Allegation 2019-007.'' September 10.
Tonko, Paul D. 2019. ``Allegation 2019-0010.'' September 10.
Interview Transcripts and their Associated Exhibits and Documents
Darden, Chris, interview by Academy Team. 2020. ``Interview of Chris
Darden.'' Calera, AL, (January 21).
Darden, Chris, interview by NOAA General Counsel. 2019. ``Interview of
Chris Darden.'' Calera, AL, (October 21).
Friedman, Benjamin, interview by NOAA General Counsel. 2019.
``Interview of Benjamin Friedman.'' Silver Spring, MD,
(October 24).
Jacobs, Neil, interview by Academy Team. 2020. ``Interview of Neil
Jacobs.'' Washington, DC, (February 3).
Jacobs, Neil, interview by NOAA General Counsel. 2019. ``Interview of
Neil Jacobs.'' Washington, DC, (November 6).
Levenbach, Stuart, interview by NOAA General Counsel. 2019. ``Interview
of Stuart Levenbach.'' Washington, DC, (October 29).
McLean, Craig, interview by Academy Team. 2020. ``Interview of Craig
McLean.'' Washington, DC, (January 23).
NWS Birmingham WFO Meteorologist. 2020. ``Written Statement from
Decision Support Services Staff Member on September 1,
2019.'' Calera, AL, (January 22).
Roberts, Julie Kay, interview by Academy Team. 2020. ``Interview of
Julie Roberts.'' Washington, DC, (January 23).
Roberts, Julie Kay, interview by NOAA General Counsel. 2019.
``Interview of Julie Roberts.'' Washington, DC, (October
11).
Uccellini, Louis, interview by NOAA General Counsel. 2019. ``Interview
of Louis Uccellini'' Silver Spring, MD, (November 26).
Vaccaro, Chris, interview by Academy Team. 2020. ``Interview of Chris
Vaccaro.'' Washington, DC, (January 20).
Social Media Related to This Investigation
National Weather Service Birmingham Weather Forecast Office. 2019.
Twitter post. September 1, 10:11 a.m. Eastern Time Zone.
NOAA Communications. 2019. ``Statement attributable to a NOAA
Spokesperson.'' September 6, 4:45 p.m. Eastern Time Zone.
President Donald Trump. 2019. Twitter post. September 1, 9:51 a.m.
Eastern Time Zone.
Freedom of Information Act (FOIA) Documents
Documents released from FOIA requests.
Memoranda, Letters, and Transmittals Regarding this Investigation
Decker, Cynthia J. 2019. ``Memorandum from Cynthia J. Decker for The
Record, Subject: Scientific Integrity Allegations 2019-007/
8/9/10 Inquiry and Investigation Process.''
--. 2019. ``Memorandum to Zach Goldstein and Douglas Perry, Subject:
Request to Search E-mail Accounts in Connection with
Scientific Integrity Complaints.'' October 2.
--. 2019. ``Transmittal for the Inquiry/Investigation Team.''
Friedman, Benjamin. 2019. ``Recusal of DUS-O Benjamin Friedman,
appointing Stephen Volz the Determining Officer.''
Congressional Documents
Memoranda and Letters Regarding Other Ongoing Investigations
Gustafson, Peggy E. 2019. ``Memorandum for Dr. Neil Jacobs, Subject:
Request for Information Pursuant to the Inspector General,
Act of 1978, as Amended.'' September 7.
Johnson, Eddie Bernice. 2019. ``Letter to Peggy E. Gustafson.''
September 10.
--. 2019. ``Letter to President Donald J. Trump.'' September 5.
--. 2019. ``Letter to Secretary Wilbur Ross.'' October 10.
Johnson, Eddie Bernice, and Mike Sherrill. 2019. ``Letter to Secretary
Wilbur Ross.'' September 11.
Johnson, Eddie Bernice, Lizzie Fletcher, and Mikie Sherrill. 2019.
``Letter to Acting Under Secretary Dr. Neil Jacobs.''
September 12.
Testimony
Clement, Joel. 2019. ``Testimony of Joel Clement from the Joint Hearing
on Scientific Integrity in Federal Agencies.'' July 17.
Halpern, Michael. 2019. ``Testimony for Michael Halpern from the Joint
Subcommittee Hearing on Scientific Integrity in Federal
Agencies.'' July 17.
Johnson, Eddie Bernice. 2019. ``Opening Statement from the Joint
Subcommittee Hearing: Scientific Integrity in Federal
Agencies.'' July 17.
Pielke Jr., Roger. 2019. ``Statement of Dr. Roger Pielke, Jr. to the
Subcomittee on Research and Technology & Subcommittee on
Investigations and Oversight.'' July 17.
Sherrill, Mikie. 2019. ``Opening Statement from the Joint Subcomittee
Hearing: Scientific Integrity in Federal Agencies.'' July
19.
Stevens, Haley. 2019. ``Opening Statement from the Joint Subcommittee
Hearing: Scientific Integrity in Federal Agencies.'' July
17.
Tonko, Paul. 2019. ``Opening Statement from the Joint Subcommittee
Hearing: Scientific Integrity in Federal Agencies.'' July
17.
Federal Agencies' Policies, Procedures, Reports, and Other Sources
National Oceanic and Atmospheric Administration
National Oceanic and Atmospheric Administration. 2911. ``NOAA
Administrative Order 202-735D: Scientific Integrity.''
December 7.
--. 2015. ``Approval of Scientific Integrity Committee Terms of
Reference.'' June.
--. 2018. National Weather Service. ``2019-2022 Strategic Plan.''
--. 2017. National Weather Service Office of the Chief Learning
Officer. ``Radar & Applications Course, Storm-Based Warning
Fundamentals, Lesson 12: Impact Based Warnings: Overview.''
--. 2016. ``NOAA Framework for Internal Review and Approval of
Fundamental Research Communications''. November 8.
--. ``Our mission and vision.''
--. 2011. ``Procedural Handbook for NAO 202-735 D: Scientific
Integrity.'' December.
U.S. Department of Commerce
U.S. Department of Commerce. 2008. ``Department Administrative Order
219-1 Public Communications.'' April 30.
--. 2008. ``National Weather Service Central Region Service
Assessment.''
--. 2013. ``Social Media Guidebook.'' January 30.
Other Federal Agencies
National Aeronautics and Space Administration, Office of Inspector
General. 2008. ``Investigation Summary Regarding
Allegations that NASA Suppressed Climate Change Science and
Denied Media Access to Dr. James E. Hansen, a NASA
Scientist'' June 2.
National Institutes of Health, Office of the Director. 2012. ``NIH
Policies and Procedures for Promoting Scientific
Integrity.'' November.
Office of Science and Technology Policy. ``Federal Policy on Research
Misconduct; Preamble for Research Misconduct Policy.''
Federal Register 65, no. 235 (December 6, 2000.) 76260-
76264. https://www.govinfo.gov/content/pkg/FR-2000-12-06/
pdf/00-30852.pdf.
U.S. Department of Agriculture. 2016. ``Scientific Integrity.''
Departmental Regulation DR 1074-001. November 18.
--. 2016. ``Procedures for Responding to Allegations of Compromised
Scientific Integrity.'' Departmental Manual OM 1074-001,
November 18.
U.S. Department of Interior, Office of Inspector General. 2019. ``FWS
Alleged Scientific Integrity Violation and Retaliation.''
August 28.
--. 2016. ``Inspection of Scientific Integrity Incident at USGS Energy
Geochemistry Laboratory.'' June 15.
U.S. Environmental Protection Agency. 2012. ``Scientific Integrity
Policy.''
--. ``Basic Information about Scientific Integrity.'' https://
www.epa.gov/osa/basic-information-about-scientific-
integrity.
U.S. Environmental Protection Agency, Office of Inspector General.
2011. ``Office of Research and Development Should Increase
Awareness of Scientific Integrity Policies.'' July 22.
--. 2013. ``Quick Reaction Report: EPA Must Take Steps to Implement
Requirements of Its Scientific Integrity Policy.'' August
28.
U.S. Government Accountability Office. Scientific Integrity Policies.
Additional Actions Could Strengthen Integrity of Federal
Research (GAO-19-265). April 2019.
Other Memoranda Regarding Scientific Integrity and Research Misconduct
General Counsel of the United States Department of Commerce. 2011.
``Memorandum for All Chief Counsels and General Counsels--
Implementation of Administration Policy on Scientific
Integrity.'' December 16.
Holden, John P. 2010. ``Memorandum to the Heads of Executive
Departments and Agencies, Subject: Scientific Integrity.''
December 17.
Kerry, Cameron F. 2011. ``Memorandum to all Chief Counsels and General
Counsels, Subject: Implementation of Administration Policy
on Scientific Integrity.'' December 16.
McLean, Craig N. 2017. ``Memorandum for the Record, Subject: FY 2016
Scientific and Research Misconduct Annual Report.'' March
1.
--. 2017. ``Memorandum for the Record, Subject: FY 2017 Scientific and
Research Misconduct Annual Report.'' October 3.
--. 2019. ``Memorandum for the Record, Subject: FY 2018 Scientific and
Research Misconduct Annual Report.'' April 23.
--. 2015. ``Memorandum for Vice Admiral Michael S. Devany and Dr. W.
Richard Spinrad, Subject: Approval of Scientific Integrity
Committee Terms of Reference.'' July 15.
Spinrad, Richard. 2015. ``Memorandum for the Record, Subject: FY 2013-
FY 2014 Scientific and Research Misconduct Annual Report.''
April 15.
--. 2016. ``Memorandum for the Record, Subject: FY 2015 Scientific and
Research Misconduct Annual Report.'' February 1.
Sullivan, Kathryn. 2012. ``Memorandum for the Record, Subject: FY 2012
Scientific and Research Misconduct Annual Report.''
December 27.
White House, Office of the Press Secretary. 2009. ``Memorandum for the
Heads of Executive Departments and Agencies on the Subject
of Scientific Integrity.'' March 9.
Reports from Academic and Scientific Organizations
American Meteorological Society. 2014. Professional Guidance Statement.
``Strengthening Social Sciences in Weather--Climate
Enterprise.'' February 2.
Demuth, Julie L., Morss, Rebecca E., Morrow, Betty and Jeffrey Lazo.
2012. ``Creation and Communication of Hurricane Risk
Information.'' American Meteorological Society. August.
Morss, Rebecca E, et al., 2016. ``Understanding Public Hurricane
Evacuation Decisions and Responses to Forecast and Warning
Messages.'' Weather and Forecasting 395-417.
Morss, Rebecca E., et al., 2017; ``Hazardous Weather Prediction and
Communication in the Modern Information Environment.''
American Meteorological Society 2652-2674.
National Academies of Sciences Engineering Medicine, Integrating Social
and Behavioral Sciences Within the Weather Enterprise.
2018.
Nek, Rashida and Anita R. Eisenstadt; 2016. ``Review of Federal Agency
Policies on Scientific Integrity''. Institute for Defense
Analyses. December.
Neumann, John. 2019. ``Federal Research: Agency Actions Could
Strengthen Scientific Integrity Policies.'' July 17.
Public Employees for Environmental Responsibility. 2013. ``Scientific
Integrity Report Card.''
University Corporation for Atmospheric Research. 2019. ``Ethical
Conduct Procedures''. July.
--. 2019. ``Researc Misconduct.'' January.
Union of Concerned Scientists. 2008. ``Press Releases Controlled for
Political, Not Scientific, Importance.'' July 13.
--. 2018. ``Surveying the National Oceanic and Atmospheric
Administration.'' August.
--. 2018. ``Voices of Scientists Across 16 Federal Agencies.'' August.
World Meteorological Organization. 2008. ``Guidelines on Communicating
Forecast Uncertainty.'' WMO/TD No. 1422. https://
library.wmo.int/doc_ntun.php?explnum_id=4687
Other Social Media
National Weather Service Birmingham Weather Forecast Office. 2017.
Twitter post. November 6, 9:37 p.m. Eastern Time Zone.
National Weather Service Glasgow Weather Forecast Office. 2016. Twitter
post. June 9, 6:58 p.m. Eastern Time Zone.
National Weather Service Hanford Weather Forecast Office. 2019. Twitter
post. March 5, 7:55 p.m. Eastern Time Zone.
National Weather Service Mobile Weather Forecast Office. 2019. Twitter
post. May 19, 1:41 p.m. Eastern Time Zone.
--. 2016. Twitter post. May 28, 11:04 p.m. Eastern Time Zone.
National Weather Service New Orleans Weather Forecast Office. 2013.
Twitter post. September 4, 10:37 p.m. Eastern Time Zone.
National Weather Service Salt Lake City Weather Forecast Office. 2019.
Twitter post. June 12, 6:16 p.m. Eastern Time Zone.
National Weather Service Sioux Fa11s Weather Forecast Office. 2019.
Twitter post. February 14, 12:25 p.m. Eastern. Time Zone.
Relevant News Articles Related to this Investigation
Aschwanden, Christie. 2019. ``Severe weather alerts are intended to
protect people. So why do some ignore them?'' The
Washington Post. November 24.
Baker, Peter, Frie4man, Lisa, and Christopher Flavelle. 2019. ``Trump
Pressed Top Aide to Have Weather Service `Clarify' Forecast
That Contradicted Trump.'' The New York Times. September
11.
--. 2019. Commerce Chief Threatened Firings at NOAA after Trump's
Dorian Tweets, Sources Say. The New York Times. September
9.
Other
Garner, Bryan A and Henry Campbell Black. 1999. ``Black's Law
Dictionary.'' St. Paul, Minn.: West Group.
______
NOT FOR RELEASE PREDECISIONAL AND DELIBERATIVE
Review of NAPA's Findings Regarding Scientific Integrity
Neil A. Jacobs, Ph.D.
NAPA's analysis is based on the premise that either the President's
tweet or WFO tweet was right and the statement was choosing between the
two. It did not. The statement, if read objectively, approaches it from
the perspective that both are accurate and reconciles the two
approaches--risk and probability--to conveying information. The NAPA
interview summary provides: ``Dr. Jacobs also offered his perspective
on the correctness of the September 1 tweet from the Birmingham WFO by
explaining that in a technical sense while relatively small, the
probability of Hurricane Dorian impacting a portion of southeast
Alabama existed. However, in terms of communicating the risk to the
people of Alabama, the Birmingham WFO was correct, according to Dr.
Jacobs.'' NAPA never questions or refutes the scientific veracity of
the actual statement.
Applicability of the policy to the tweet and statement
NAPA did not apply the definitions of scientific assessment and
scientific activity to include the tweet and statement within the
scientific integrity policy. NAPA never explains how the tweet or the
statement meet these definitions. Instead, they simply recite the
relevant definitions and summarily conclude that ``individuals engaged
in activities that can be considered scientific activities'' and
``deduced that the [tweet] and [statement] are examples of scientific
product.'' The summary conclusions quoted contain the full content.
NAPA conducted no analysis of the tweet or statement nor an explanation
of how the statements meet, these definitions. In fact, the only
supporting explanation is based on interviews of NOAA and GAO personnel
and creates a new standard for a scientific product to be a
communication: (i) based on scientific analysis and (ii) related to the
core mission of the agency. Rather than evaluate and apply the actual
definitions in the NOAA Scientific Integrity Policy (NAO 202-735D),
NAPA created their own definition based on ``[i]nterviews with NOAA and
GAO personnel'' to analyze and apply to determine that the tweet and
statement are scientific products subject to the NOAA Scientific
Integrity Policy.
As I explained in the interview, they are not the types of science
and research to which the policy applies. It is clear that the
development of a forecast is a scientific assessment and scientific
activity. While the tweet is intended to convey the risks to Alabama
residents based on the scientific assessments used to produce the storm
forecast, it is far removed from the research and underlying science
for which the definitions, policy on integrity of scientific activity,
and codes of scientific conduct and ethics for scientific supervision
and management are predicated. The September 6 statement is even
further removed from science and research. It is a brief comment
collecting past factual information and a reconciliation of two
concepts contained in tweets in a short statement. NAPA later
contradicts their finding, based on their own definition of a
scientific product, by concluding that ``the development of the
statement was not based on science, but appears to be largely driven by
external influences from senior Commerce officials who drafted the
September 6 Statement.''
The NAPA interview summary provides: ``In regard to the September 6
Statement complying with the NOAA Scientific Integrity Policy, Dr.
Jacobs expressed that the September 6 Statement did not necessarily
meet the standards of the Scientific Integrity Policy. Additionally,
Dr. Jacobs explained that his understanding is that the Scientific
Integrity Policy was written for science and research and not
necessarily press releases. Dr. Jacobs often reviews communications
originally written by non-scientists, including people from Commerce
and other parts of NOAA, when the science is incorrect. The correction
process typically requires scientists to check the validity of the
communication and ensure that in a technical sense, the communication
is accurate before it is published.'' With a Ph.D. in numerical weather
prediction, I am eminently qualified, as a scientist, to review
scientific research in this field.
Scope of the NOAA Scientific Integrity Policy and NAPA findings
The NOAA Scientific Integrity Policy sets out the elements for what
constitutes scientific and research misconduct. The standard for a
finding of misconduct is:
1) Scientific and Research Misconduct is defined as fabrication,
falsification, or plagiarism in proposing, performing, or
reviewing scientific and research activities, or in the
products or reporting of these activities. Scientific and
Research Misconduct specifically includes: (i) intentional
circumvention of the integrity of the science and research
process by violation of NOAA's Code of Ethics for Science
Supervision and Management; and (ii) actions that compromise
the scientific process by violating NOAA's Code of Scientific
Conduct. Scientific and Research Misconduct does not include
honest error or differences of opinion.
2) Procedures for lodging and responding to allegations of
misconduct are provided in the Procedural Handbook to this
Order.
This is not the standard that NAPA applied. NAPA substituted
Criteria for Determining Scientific Misconduct in the procedural
handbook combined with five criteria that NAPA developed and identified
to guide their assessment of the allegations. After creating their own
five criteria, NAPA acknowledges the standard for Scientific and
Research Misconduct, but then substitutes different and in critical
areas conflicting adjudication standards contained in the Procedural
Handbook. Under the Scientific Integrity Policy, the elements of
Scientific Research Misconduct are clear: A violation of NOAA's Code of
Ethics for Science Supervision and Management must involve the
intentional circumvention of the integrity of the science and research
process. A violation of NOAA's Code of Scientific Conduct must involve
actions that compromise the scientific process (emphasis added).
Allegation II is based on a violation of the Code of Ethics for
Science Supervision and Management. The Scientific Integrity Policy
standard for a violation related to the Code of Ethics for Science
Supervision and Management requires an intentional circumvention of the
integrity of the science and research process. The adjudication
standards in the handbook completely disregard the mens rea standard
and substitute a new, lower standard of intentionally, knowingly or
reckless disregard of the Code of Ethics.
In addition, it eliminates the element that any violation of the
Code of Ethics for Science Supervision and Management must circumvent
the integrity of the science and research process. That critical
element is not contained in the adjudication standard nor in the NAPA
analysis or their findings. Instead of applying the standard in the
policy, NAPA used the criteria they established, applied the lesser
standard from the handbook, and completely ignored the requirement that
the violation circumvent the integrity of the science and research
process.
NAPA ostensibly found a violation of the Code Ethics for Science
Supervision and Management by not engaging the Birmingham WFO in the
development of the September 6 statement and that the failure was done
intentionally, knowingly, or in reckless disregard of the Code of
Ethics for Science Supervision and Management. There is no finding--as
required by the NOAA Policy that there was an ``intentional
circumvention of the integrity of the science and research process.''
Therefore, there was no scientific and research misconduct.
Allegation III, while styled as external political pressure, is
also based on an alleged violation of the Code of Ethics for Science
Supervision and Management. The NAPA report focuses primarily on the
view that the second paragraph of the statement is a criticism of the
Birmingham WFO tweet. While that is a commonly held view, the statement
was not intended to imply Birmingham did anything wrong. As stated
above, the intent was to reconcile the forecaster's duty to convey
information to the public with probabilistic numerical model guidance
that was still showing a small, but non-zero, chance of impacts.
NAPA analyzed the statement as a violation of Section 7.02. Here,
NAPA fails to apply the appropriate criteria. NAPA sets out the
standard as ``suppressing or altering scientific findings.'' That is
not the standard. Under the Scientific Integrity Policy, the standard
is: ``Suppress, alter or otherwise impede the timely release of
scientific or technological findings or conclusions.'' Even assuming
the September 6 statement is viewed as improper criticism, it in no way
could have ``suppressed, altered, or otherwise impede the timely
release of scientific or technological findings or conclusion'' that
were contained in a tweet on September 1.
NAPA recognizes this fundamental flaw and in fact concludes that
``there was no direct suppression or alteration of scientific
findings.'' Instead, NAPA attempts to pivot to speculate that ``the
September 6 statement might suppress the willingness and ability of
NOAA scientific staff to express their scientific opinions without
reservation in the future.'' The policy does not in any way address a
speculative, future possibility \1\ nor is there any finding that any
NOAA scientific staff was suppressed or unable to express scientific
opinions or findings. While it is fair to criticize whether issuing
such a statement was a wise decision, there was no violation of the
Code of Ethics for Science Supervision and Management.
---------------------------------------------------------------------------
\1\ The policy does provide that individuals covered by the policy
must not ``intimidate or coerce employees, contractors, recipients of
financial assistance awards, or others to alter or coerce scientific
findings'' and no one suggests that this was intended nor does NAPA
evaluate the actions as such.
---------------------------------------------------------------------------
Furthermore, even if there was, the findings in allegation III also
fall short. NAPA again applied the wrong standard and there is no
finding--as required by the NOAA Policy--that there was an
``intentional circumvention of the integrity of the science and
research process.'' Therefore, there was no scientific and research
misconduct.
NAPA found that there was no ``direct suppression or alteration of
scientific findings.'' That alone should have ended the analysis for a
violation based on ``Suppress, alter or otherwise impede the timely
release of scientific or technological findings or conclusions.''
Instead, NAPA based a finding of misconduct by intentionally,
knowingly, or in reckless disregard of the Code of Ethics for Science
Supervision and Management issue a statement that ``is viewed by many
NOAA/NWS scientists as an inappropriate criticism of the Birmingham
office.'' However, the report also finds that I objected, but was
overridden. It cannot be both. NAPA attempts to reconcile this by
characterizing it as ``contextual.'' It is more than context; the
factual determination of objecting and being overridden is not
consistent with a finding of acting with intent, knowing, or reckless
disregard of the Code of Ethics for Science Supervision and Management.
Practical limitations using NAPA's interpretation
For reference, the full text of relevant portion of the policy
about affording scientists the opportunity to review is: ``Appropriate
rules and procedures are in place and implemented to preserve the
integrity of the scientific process and the dissemination of its
scientific products and information, including providing scientists the
right to review and correct any official document (such as a press
release or report) that cites or references their scientific work, to
ensure that accuracy has been maintained after the clearance and
editing process.''
NAPA takes an overbroad approach to the policy provisions that
provides scientists the right to review and correct any official
document that cites or references their report. Such a broad
interpretation is not practical or workable. For example, if we accept
the NAPA interpretation, any scientific work created by NOAA scientists
that cites work performed by another NOAA scientist (for example, a
biological opinion referencing other. NOAA science) would have to have
that work reviewed for accuracy by the scientist who completed the
study referenced.
Using NAPA's interpretation, all social media posts, including
tweets, that referenced any NOAA employee's work would have to be
reviewed by the scientist who completed the initial or previous work.
Using NAPA's own interpretation, forecasters at the Birmingham WFO
would have had to clear the tweet with the NHC before issuing their own
interpretation of the official NHC guidance. That certainly cannot be
what was intended under the Scientific Integrity Policy, as this would
create an untenable policy where thousands of NOAA employees would be
forced to sign off on each use or reference to their work. The
Scientific Integrity Policy was put in place to ensure that scientific
research was conducted objectively using the scientific method and
peer-review process. Perhaps the Scientific Integrity Policy should be
updated to include these cases, but applying an overly-broad
interpretation, as NAPA did, is neither logical or practical.
Such a broad reading also ignores the stated purpose of this
provision, which is ``to ensure the accuracy has been maintained after
the clearance and editing process.'' This implies that it is the
editing and review of the specific report and any accompanying press
release or specific characterization of that report. This purpose makes
clear that the requirement is for the release of the work itself and
accompanying materials, not a subsequent citation to the work or later
comment on it.
If we consider the peer-review process, NAPA's interpretation would
prohibit a NOAA scientist from writing a later scientific analysis
critical of the prior work without getting the approval of the original
authors to publish. This is fundamentally at odds with the scientific
process because no one could ever publish a critique or dissent of any
existing science if the scientists of the original work objected.
Conclusion
As a scientist, I appreciate the importance of scientific integrity
and fully support the NOAA policy. I do believe it needs to be updated
to address issues surrounding handling of social media and non-
research-related and publication-bound work. I fully complied with and
cooperated with the scientific integrity investigation. I encourage a
thorough and thoughtful review and can accept the critique and
criticism contained in the report. It is part of the scientific process
and how we improve both our policies and the processes. Any findings of
misconduct, however, must be based on an objective application of the
standards contained in the actual policy.
[GRAPHICS NOT AVAILABLE IN TIFF FORMAT]
About the Academy
The National Academy of Public Administration is a non-profit, non-
partisan, and independent organization of top public management and
organizational leaders who tackle the Nation's most critical and
complex public management challenges. With a network of more than 900
distinguished Fellows and an experienced professional staff, the
Academy is uniquely qualified and trusted across government to provide
objective advice and practical solutions based on systematic research
and expert analysis.
Established in 1967 and chartered by Congress in 1984, the Academy
continues to make a positive impact by helping federal, state and local
governments respond effectively to current circumstances and changing
conditions. Learn more about the Academy and its work at
www.napawash.org.
______
Table of Contents
Foreword
List of Figures
List of Tables
Acronyms and Abbreviations
Key Terms and Definitions
Executive Summary
Chapter 1: Background
1.1 Project Scope and Deliverables
1.2 Limitations to the Panel's Assessment
1.3 Organization of Report
Chapter 2: Summary of Methodology and Process
2.1 Consideration of Alleged Activities, Allegations, and
Respondents under the NOAA Scientific Integrity Policy
2.2 Methodological Approach to Review and Assess the
Allegations
Chapter 3: Summary of NOAA's Scientific Integrity Policy and
Adjudication Procedures
3.1 Criteria for Determining Scientific Misconduct
3.2 Core Procedures for Adjudicating Alleged Violations of
Scientific Integrity
Chapter 4: Description of the Allegations
Chapter 5: Chronology of Key Events
Chapter 6: Findings and Recommendations
6.1 Criteria to Assess Allegations of Scientific Misconduct
6.2 Adjudication Standards
6.3 Findings and Recommendations
Appendices
Appendix A: Panel Biographies and Study Team Members
Appendix B: Chronology of Key Events
Appendix C: Policies
Appendix D: Summaries of Interviews Conducted and Interview
Questions
Appendix E: Allegations of Scientific Misconduct
Appendix F: September 1 Birmingham Tweet and September 6
Statement
Appendix G: Weather Forecast Office Tweets Using Absolute Terms
Appendix H: List of Records Reviewed
Foreword
The National Oceanic and Atmospheric Administration (NOAA) is a
scientific agency that focuses on the study of climate, weather,
oceans, coasts, and the conservation and management of coastal and
marine ecosystems and resources. The work of NOAA not only supports the
safety and well being of the public, but also has great importance to
the U.S. economy. To maintain public trust in the agency's work, NOAA
must keep scientific integrity at the forefront of all aspects of its
scientific activities.
In September 2019, NOAA's Scientific Integrity Officer received
four complaints of alleged violations of scientific integrity related
to a specific NOAA public statement issued on September 6, 2019. To
ensure that the investigation into these complaints would be conducted
with the highest degree of objectivity and neutrality, NOAA engaged the
National Academy of Public Administration to conduct an independent
assessment of those allegations. The goal of the assessment was to
determine by a preponderance of evidence if the NOAA personnel involved
with the development and issuance of the September 6 Statement violated
NOAA's Scientific Integrity Policy.
As a congressionally chattered, non-partisan, and non-profit
organization with over 900 distinguished Fellows, the Academy is
uniquely qualified to assist NOAA with this complex assignment. The
Academy convened a Panel of four Academy Fellows with deep experience
in the field of public administration, knowledge of scientific
research, and execution of agency policy and procedure. The Panel's
determinations and recommendations have been provided to the NOAA
Determining Official for final adjudication of the allegations.
This report presents the Panel's findings and makes nine
recommendations to enhance NOAA's Scientific Integrity Policy. I expect
that the Academy Panel's report will guide the Determining Official's
deliberation on the allegations and strengthen NOAA's overall framework
of scientific integrity.
The Academy is thankful to have the opportunity to serve as an
independent integrity review panel on behalf of NOAA.
Teresa W. Gerton,
President and Chief Executive Officer,
National Academy of Public Administration.
______
List of Figures
Figure 1. NOAA Organizational Chart
List of Tables
Table 4-1. Allegation 2019-007
Table 4-2. Allegation 2019-008
Table 4-3. Allegation 2019-009
Table 4-4. Allegation 2019-0010
Table 6-1. Media Guidance (September 1, 2019-September 6, 2019)
Table E-1. Rationale for Selection of Reviewed Allegations
Acronyms and Abbreviations
Acronym or Abbreviation Definition
Academy National Academy of Public Administration
Academy Team The Panel members and study team
AMS American Meteorological Society
ARS Agriculture Research Service
Commerce Department of Commerce
DAO Department Administrative Order
DOI Department of the Interior
DSS Decision Support Service
DUS/O Deputy Under Secretary of Operations
EPA Environmental Protection Agency
FAA Federal Aviation Administration
FEMA Federal Emergency Management Agency
FOIA Freedom of Information Act
FRC Fundamental Research Communication
FY Fiscal year
GAO Government Accountability Office
IRP Integrity Review Panel
NAO NOAA Administrative Order
NHC National Hurricane Center
NOAA National Oceanic and Atmospheric
Administration
NWS National Weather Service
OIG Office of Inspector General
OMB Office of Management and Budget
OSTP Office of Science and Technology Policy
ROC Regional Operation Center
SI0 Scientific Integrity Officer
USDA United States Food Department of Agriculture
WFO Weather Forecasting Office
Key Terms and Definitions\1\
---------------------------------------------------------------------------
\1\ Key terms and definitions denoted with an asterisk(*) can be
found in the NOAA Scientific Integrity Policy (NOAA Administrative
Order 202-735D: Scientific Integrity) and the accompanying Procedural
Handbook.
------------------------------------------------------------------------
Key Term Definition
------------------------------------------------------------------------
Allegation* Any written or oral statement or other
indication of possible scientific
misconduct made to a NOAA employee or
contractor, or to an employee of a NOAA
research partner.
Complainant* The person, group, or company that makes an
allegation of scientific misconduct or
loss of scientific integrity.
Determining Official (DO)* NOAA official who makes a final
determination on an allegation of
scientific misconduct or loss of
scientific integrity and proposes
corrective administrative action, as
appropriate.
Integrity Review Panel Group responsible for conducting an
(IRP)* investigation of alleged scientific
misconduct or loss of scientific integrity
when a determination has been made by the
SIO that an investigation is warranted.
Integrity Review Panel The agency official responsible for
Chair (IRPC)* overseeing an investigation, chairing the
Integrity Review Panel, and carrying out
other responsibilities specified in NOAA's
Procedural Handbook. The IRPC is a subject
matter expert and is designated for a
specific investigation.
Official Communication\2\ Any Public Communication by an employee
that relates to the Department's programs;
policies, or operations and takes place or
is prepared: 1. At the direction of a
superior of the employee; 2. Substantially
during the official working hours of the
employee; 3. With the substantial use of
U.S. Government resource(s); or 4. With
substantial assistance of U.S. Government
employee(s) on official duty. All news
releases and similar documents are
Official Communications.
\2\ U.S. Department of
Commerce. 2008.
``Department
Administrative Order 219-1
Public Communications.''
April 30.
Preponderance of Evidence The standard of proof in making a finding
of misconduct under NOAA's Scientific
Integrity Policy and accompanying
Procedural Handbook. Black's Law
Dictionary (11th Ed., 2019) defines this
term as ``superior evidentiary weight
that, though not sufficient to free the
mind wholly from all reasonable doubt, is
still sufficient to incline a fair and
impartial mind to one side of the issue
rather than the other.'' \3\
\3\ Bryan A. Garner and
Henry Campbell Black,
Black's Law Dictionary,
11th ed. (West Group,
2019).
Respondent* The person, group, or NOAA entity who
responds or makes a reply to an allegation
of scientific misconduct or loss of
scientific integrity.
Scientific Activities* Activities that involve inventorying,
monitoring, observations, experimentation,
study, research, integration, modeling,
and scientific. assessment. Scientific
activities are conducted in a manner
specified by standard protocols and
procedures and include any of the
physical, biological, or social sciences,
as well as engineering and mathematics, or
any combination of these.
Scientific Assessment* Evaluation of a body of scientific or
technical knowledge that typically
synthesizes multiple factual inputs, data,
models, and assumptions, and implies the
use of best professional judgment to
bridge uncertainties in the available
information.
Scientific Integrity* The condition resulting from adherence to
professional values and practices when
conducting and applying the results of
science that ensures objectivity, clarity,
and reproducibility, and that provides
insulation from bias, fabrication,
falsification, plagiarism, interference,
censorship, and inadequate procedural and
information security.
Scientific Product* Presentation of the results of scientific
activities including the analysis,
synthesis, compilation, or translation of
scientific information and data into
formats for the use of NOAA, the
Department of Commerce, or the Nation.
September 6 Statement Unattributed Public Statement from the
National Oceanic and Atmospheric
Administration, issued on September 6,
2019 (See Appendix F).
September 1 Birmingham Tweet from the National Weather Service
Tweet Birmingham Weather Forecast Office, posted
on September 1, 2019 (See Appendix F).
Tweet A brief communication made through the
internet-based, for-profit social media
platform, Twitter.
------------------------------------------------------------------------
Executive Summary
The National Oceanic and Atmospheric Administration (NOAA) is a
scientific agency within the United States Department of Commerce that
focuses on the study of climate, weather, oceans, coasts, and the
conservation and management of coastal and marine ecosystems and
resources.
In September 2019, NOAA's Scientific Integrity Officer (SIO)
received four complaints of alleged violations of scientific integrity
filed under the NOAA Scientific Integrity Policy (NOAA Administrative
Order 202-735D: Scientific Integrity). The allegations relate to a
specific NOAA public statement issued on September 6, 2019 (the
September 6 Statement) regarding a tweet previously issued by the
National Weather Service (NWS) Weather Forecast Office (WFO) in
Birmingham, Alabama, on September 1, 2019 (the September 1 Birmingham
Tweet).
NOAA's SIO engaged the National Academy of Public Administration
(the Academy) to conduct an independent assessment of those
allegations. The goal of the assessment was to determine by a
preponderance of evidence, meaning the standard of proof of making a
finding of misconduct under NOAA's Scientific Integrity Policy and
accompanying Procedural Handbook, if the NOAA personnel involved with
the development and issuance of the September 6 Statement violated
NOAA's Scientific Integrity Policy and engaged in the misconduct
intentionally, knowingly, or in reckless disregard of the Scientific
Integrity Policy. Pursuant to the Scope of Work, the Academy was tasked
to:
Determine if scientific misconduct or loss of scientific
integrity has not occurred and the allegation be dismissed; or
Determine if scientific misconduct or loss of scientific
integrity has occurred and recommend any specific action by
NOAA to restore scientific integrity.
Conducted from December 2019 through March 2020, the assessment
employed primarily qualitative research methods. The Academy Team,
comprised of a Panel of Academy Fellows and the study team, gathered
and analyzed primary and secondary data through a review of prior
testimonies and official documents related to the allegations of
scientific misconduct. The Academy Team conducted semi-structured
interviews with subject matter experts and NOAA staff including
personnel from NWS, the Office of Communications, and other senior
leaders. The Academy Team also had conversations with representatives
from NOAA's Office of General Counsel and the SIO which provided
background on the Scientific Integrity Policy. Appendix H contains a
list of all records and documents reviewed by the Academy Team.
The inquiry into the alleged scientific misconduct and loss of
scientific integrity associated with the September 6 Statement and the
September 1 Birmingham Tweet presented a challenge for the Integrity
Review Panel. The facts and circumstances surrounding these allegations
of misconduct are not a perfect fit with the existing NOAA policies
regarding scientific integrity and scientific communication and the
Department of Commerce guidance on public communications. The Academy
Team, therefore, created a process to assess the facts developed
against existing policy and to determine whether personnel and actions
were covered under NOAA and Commerce policies. Those rationales .are
provided later in the report. This process also allowed the development
of recommendations as to how policies might be improved.
In considering the allegations, the Panel recognizes that the
September 6 Statement and the September 1 Birmingham Tweet discussed
herein are inextricably linked. The September 6 Statement directly
addressed the September 1 Birmingham Tweet and the underlying science.
Second, the Panel considered both the content and process by which the
September 6 Statement was developed and released. Finally, it is the
considered opinion of the Panel, that in the aggregate, the evidence
gathered in this inquiry is appropriate and sufficient to provide a
reasonable basis for the findings and conclusions contained herein.
Additionally, the report includes a series of Panel recommendations to
safeguard against future violations of scientific integrity for the
Determining Official (DO) to consider. The following is a summary of
the Panel's major findings and recommendations:
Allegation One: Media guidance issued by NOAA leadership between
September 1 and 6, 2019, limited the ability of scientists to
communicate with the media and the public about their research
findings; Policies allegedly violated include Section 4.05; Section
4.06; and Section 5.02 (a), (d), and (k) of NOM's Scientific integrity
Policy.
Finding One: The Panel determined by a preponderance of the
evidence on the record that the allegation that the media guidance
issued by NOAA leadership between September 1 and 6, 2019, did not
constitute scientific misconduct or a loss of scientific integrity.
Recommendations:
Develop formal policy guidelines for the issuance of media
guidance to NOAA staff. Specifically, these guidelines should
clarify roles and responsibilities, institutionalize the
process, and identify the circumstances under which the agency
should issue media guidance.
Develop an interagency framework (that includes other
Federal agencies and the White House) for the sharing of
scientific data and materials concerning severe weather related
events. The framework would include protocols for the timely
update of information to reflect changing weather conditions
and the release of the information to the general public.
Allegation Two: The Birmingham WFO forecasters were not provided
the opportunity to review and opine on the September 6 Statement that
referenced the September 1 Birmingham Tweet and underlying scientific
activity. Policies allegedly violated include Section 7.01. of NOAA's
Scientific Integrity Policy.
Finding Two: The Panel determined by a preponderance of the
evidence on the record that Dr. Neil Jacobs (Acting Administrator of
NOAA) and Julie Roberts (Deputy Chief of Staff and Director of
Communications for NOAA) \4\ violated the Code of Ethics for Science
Supervision and Management set forth in Section 7.01 of NOAA's
Scientific Integrity Policy when they failed to engage the Birmingham
WFO in the development of the September 6 Statement. Further, the Panel
finds that they engaged in the misconduct intentionally, knowingly, or
in reckless disregard of the Code of Scientific Conduct or Code of
Ethics for Science Supervision and Management in NOAA's Scientific
Integrity Policy.
---------------------------------------------------------------------------
\4\ Julie Roberts left NOAA in December 2019 to join the Economic
Development Administration, which is in the Department of Commerce.
---------------------------------------------------------------------------
Recommendations:
Develop a written policy statement on the right of NOAA
scientists to review, comment, and amend any Official
Communication that relies on their scientific analysis. This
policy statement will complement NOAA's Scientific Integrity
Policy.
Revise NOAA's Scientific Integrity Policy's accompanying
Procedural Handbook to include criteria and supporting examples
to assist with the determination of scientific misconduct and a
loss of scientific integrity. For example, NOAA could cite this
case as an example of a violation of NOAA's Scientific
Integrity Policy and scientific misconduct with regards to
several criteria.
Allegation Three: The drafting of the September 6 Statement was
driven by external political pressure from Department of Commerce
(Commerce) senior leaders and inappropriately criticized the September
1 Birmingham Tweet and underlying scientific activity. Further, the
September 6 Statement compromised NOAA's integrity and reputation as an
independent scientific agency and violated Section 7.02 of NOAA's
Scientific Integrity Policy.
Finding Three: The Panel determined by a preponderance of the
evidence on the record that the actions of Dr. Neil Jacobs and Julie
Roberts involving the development and issuance of the September 6
Statement violated the Code of Ethics for Science Supervision and
Management set forth in Section 7 of NOAA's Scientific Integrity
Policy. Further, the Panel determined that they engaged in the
misconduct intentionally, knowingly, or in reckless disregard of the
Code of Scientific Conduct or Code of Ethics for Science Supervision
and Management in NOAA's Scientific Integrity Policy.
Recommendations:
Establish a formal intra-agency agreement to guide the
interactions between Commerce and NOAA officials in the
drafting of NOAA communications.
Establish an intra-agency policy to articulate the role of
Commerce political appointees in the communication of
scientific findings. Develop supporting procedures and identify
examples of political interference.
Incorporate key principles of scientific integrity,
including NOAA's Codes of Ethics for Science Supervision and
Management, into NOAA's annual ethics training.
Require NOAA staff and NOAA political officials to take
scientific integrity training that includes the Code of Ethics
for Science Supervision and Management. Once a staff member has
completed the training, he/she will sign a statement confirming
they will abide by these principles.
Establish protocols with the Commerce Office of Inspector
General (OIG) and/or other agencies to investigate alleged
violations of scientific integrity involving senior NOAA and
Commerce political leadership.
Chapter 1: Background
Background on the National Oceanic and Atmospheric Administration
The National Oceanic and Atmospheric Administration (NOAA), created
in 1970, is a scientific agency within the Department of Commerce
(Commerce) that focuses on the study of climate, weather, oceans, and
coasts. NOAA's mission of science, service, and stewardship consists of
the following components:
To understand and predict changes in climate, weather,
oceans and coasts;
To share that knowledge and information with others; and
To conserve and manage coastal and marine ecosystems and
resources.\5\
---------------------------------------------------------------------------
\5\ ``Our mission and values,'' National Oceanic and Atmospheric
Administration, http://www.noaa.gov/our-mission-and-vision.
NOAA's wide-ranging services include, but are not limited to,
communicating forecasts and weather advisories, managing the fisheries
industry, handling operational environmental satellites, and providing
the data and products needed to support the economy as it relates to
climate, weather, oceans, and coasts. Figure 1 on the next page
provides the organizational chart of the various NOAA operations and
senior leadership that was effective on September 6, 2019.
Following a 2009 presidential memorandum calling for Executive
Branch departments and agencies to develop scientific integrity
policies,\6\ the Department of Commerce instructed NOAA to develop a
bureau-specific scientific integrity policy.\7\ NOAA adopted its
Scientific Integrity Policy (NOAA Administrative Order 202-735D:
Scientific Integrity) on December 7, 2011, and created the position of
Scientific Integrity Officer (SIO).
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\6\ White House, Office of the Press Secretary, ``Memorandum for
the Heads of Executive Departments and Agencies on the Subject of
Scientific Integrity,'' March 9, 2009.
\7\ Cameron F. Kerry, ``Memorandum for all Chief Counsels and
General Counsels, Subject: Implementation of Administration Policy on
Scientific Integrity,'' December 16, 2011.
---------------------------------------------------------------------------
The SIO responds to allegations of scientific misconduct or the
loss of scientific integrity. The NOAA Scientific Integrity Committee,
comprised of NOAA Line Office Silos and Staff Office Points of Contact,
supports the NOAA SIO in this role.\8\ The SIO must ensure that the
entirety of the allegation review process is independent and has a
thorough and complete methodology.
---------------------------------------------------------------------------
\8\ Craig N. McLean, ``Memorandum for Vice Admiral Michael S.
Devany and Dr. W. Richard Spinrad, Subject: Approval of Scientific
Integrity Committee Terms of Reference,'' July 15, 2015.
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Figure 1. NOAA Organizational Chart\9\
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\9\ This NOAA organizational chart was the version effective on
September 6, 2019. An updated chart that reflect changes in NOAA
leadership is available on NOAA's website.
For the SIO and/or Determining Official (DO) to find that an
instance of scientific misconduct or misconduct resulting in the loss
of scientific integrity occurred, the SIO must determine by a
preponderance of the evidence that a person or entity departed
significantly from the Scientific Integrity Policy and engaged in the
misconduct intentionally, knowingly, or in reckless disregard of that
policy. A loss of scientific integrity can also occur without a finding
of misconduct. For example, a loss of scientific integrity could arise
from an insufficiently rigorous scientific process with no intentional
wrongdoing on the part of the individual and/or entity conducting the
research.\10\ NOAA's Scientific Integrity Policy's Procedural Handbook
does not clearly define a loss of scientific integrity.
---------------------------------------------------------------------------
\10\ This example was provided to the Academy Team by NOAA's SIO
and representatives from the Office of General Counsel during
background conversations on the Scientific Integrity Policy.
---------------------------------------------------------------------------
Background on the alleged violations of NOAA's Scientific Integrity
Policy
On Sunday, September 1, 2019, at 10:51 a.m. Eastern Time Zone (ET),
President Trump tweeted,
In addition to Florida--South Carolina, North Carolina,
Georgia, and Alabama, will most likely be hit (much) harder
than anticipated. Looking like one of the largest hurricanes
ever. Already category 5. BE CAREFUL! GOD BLESS EVERYONE!
Approximately 20 minutes later, in response to a number of ph ne
calls from individuals worried about Hurricane Dorian's impact to
Alabama and unaware of the President's earlier tweet, the National
Weather Service's (NWS) Birmingham Weather Forecast Office (WFO)
tweeted,
Alabama will NOT see any impacts from #Dorian. We repeat, no
impacts from Hurricane #Dorian will be felt across Alabama. The
system will remain too far east. #alwx''
A copy of this tweet (referred to as ``September 1 Birmingham
Tweet'') can be found in Appendix F.
On September 6, 2019, NOAA released an unattributed public
statement (referred to as ``September 6 Statement'') that stated,
From Wednesday, August 28, through Monday, September 2, the
information provided by NOAA and the National Hurricane Center
to President Trump and the wider public demonstrated that
tropical-storm-force winds from Hurricane Dorian could impact
Alabama. This is dearly demonstrated in Hurricane Advisories
#15 through #41, which can be viewed at the following link.
The Birmingham National Weather Service's Sunday morning tweet
spoke in absolute terms that were inconsistent with
probabilities from the best forecast products available at the
time.
A copy of the September 6 Statement can be found in Appendix F.
NOAA subsequently received four complaints of alleged violations of
scientific integrity related to the September 6 Statement. Copies of
the four complaints can be found in Appendix E. NOAA's SIO determined
that further investigation of those allegations was required.
In considering the posture of the Complainants and Respondents to
allegations 2019-007, -008, -009, and -0010, the SIO and NOAA General
Counsel determined that NOAA required an external independent expert to
investigate and make findings and recommendations. In order to ensure
that this investigation maintained the highest degree of independence
and neutrality, NOAA's SIO, in consultation with NOAA's General
Counsel, engaged the National Academy of Public Administration (the
Academy) to conduct an independent assessment of the four allegations
of scientific misconduct.
As the Panel undertook its assessment, two additional
investigations were underway:
Department of Commerce Office of Inspector General (OIG)
began its investigation on September 7, 2019 \11\
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\11\ Peggy E. Gustafson, ``Memorandum for Dr. Neil Jacobs, Subject:
Request for Information Pursuant to the Inspector General Act of 1978,
as Amended,'' September 7, 2019.
House Committee on Science, Space and Technology began its
inquiry on September 11, 2019 \12\
---------------------------------------------------------------------------
\12\ Eddie Bernice Johnson and Mikie Sherrill, ``Letter to
Secretary Wilbur Ross,'' September 11, 2019.
---------------------------------------------------------------------------
While the Panel's review is focused on NOAA personnel and alleged
violations of NOAA's Scientific Integrity Policy, the House Committee
and OIG investigations are broader. The Panel conducted this inquiry
independently of the other two inquiries.
Background on the National Academy of Public Administration
As an independent, non-partisan, non-profit, congressionally
chartered organization, the Academy is uniquely situated to provide the
expertise and skills required of the external investigation requested
by NOAA. Driven by the Academy's core value interdependence, the Panel
of Fellows and professional staff (the ``Academy Team'') conducted this
investigation in an evidence-based, unbiased, and non-partisan manner.
The Panel of Fellows was appointed by the Chair of the Academy Board of
Directors, based on their collective experience in the field of public
administration, knowledge of scientific research, and execution of
agency policy and procedure. Please see Appendix A for Panel member
biographical sketches.
1.1 Project Scope and Deliverables
NOAA's SIO engaged the Academy to conduct an independent assessment
of allegations of scientific misconduct filed under the NOAA Scientific
Integrity Policy. The allegations relate to a specific NOAA public
statement issued on September 6, 2019, regarding a tweet previously
issued by the NWS Birmingham WFO on September 1, 2019. The September 6
Statement and the September 1 Birmingham Tweet are included in Appendix
F.
Pursuant to the Scope of Work, NOAA tasked the Panel with
determining whether the NOAA personnel involved with the development
and issuance of the September 6 Statement violated NOAA's Scientific
Integrity Policy and engaged in the misconduct intentionally,
knowingly, or in reckless disregard of the Scientific Integrity Policy.
The Scope of Work tasks the Panel to:
Determine if scientific misconduct or loss of scientific
integrity has not occurred and the allegation dismissed; or
Determine if scientific misconduct or loss of scientific
integrity has occurred and recommend any specific action by
NOAA to restore scientific integrity.
Further, the final report will include the following components:
Description of allegation(s)
Summary of process
List of records reviewed
Summaries of interviews
Recommendations
1.2 Limitations to the Panel's Assessment
In completing its assessment, the Panel did not attempt to validate
the scientific accuracy of the September 6 Statement and the September
1 Birmingham Tweet. This matter lies outside the charge to the Panel.
Further, the Panel's due diligence was subject to the following
limitations that may, in the aggregate, have limited the Panel's
ability to assess certain aspects of the allegations:
The Academy Team had no access to Department of Commerce
employees involved with the drafting and release of the NOAA
September 6 Statement.
The Academy Team inquired with NOAA about interviewing two Commerce
employees involved with the drafting and release of the NOAA
September 6 Statement. NOAA did not provide the Academy Team
access to those employees. NOAA's rationale behind the decision
to not allow the Academy Team to conduct the interviews was
that NOAA's Scientific Integrity Policy and Procedural Handbook
pertains to NOAA employees only and that a review of Commerce
staffs actions was outside the scope of the assessment.
The Academy Team had no access to infonnation gathered by
the Commerce OIG and the House Committee on Science, Space and
Technology investigations.
At the time that the Panel conducted its assessment, two additional
investigations were underway The Academy Team had neither
access to the individuals conducting those investigations nor
to the evidence gathered by those teams.
NOAA's Scientific Integrity Policy and Procedural Handbook
lack clear and explicit criteria to determine a loss of
scientific integrity and only provide limited guidance.
While NOAA's Scientific Integrity Policy defines scientific
integrity the policy does not provide explicit criteria for
determining a potential loss of scientific integrity.\13\
---------------------------------------------------------------------------
\13\ National Oceanic and Atmospheric Administration, ``NOAA
Administrative Order 202-735D: Scientific Integrity,'' December 7,
2011: Section 3.
The Academy Team had limited access to underlying
---------------------------------------------------------------------------
documentary evidence.
The Academy Team received an abundance of documentation from NOAA
including transcribed statements from key NOAA employees,
related e-mail correspondence, and a copy of relevant NOAA and
Department of Commerce policies, However, certain evidence
related to the events leading up to the drafting and release of
the September 6 Statement was not provided to the Academy Team
Specifically, the text messages from the two key Respondents--
Dr. Neil Jacobs and Julie Roberts--were not provided to the
Panel.\14\
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\14\ The Panel was informed that the text messages from Dr. Jacobs
contained outside equities and would need to be submitted to the
holders of the privilege for a determination concerning assertion of
the privilege. Such a determination had not been made in time for the
Panel to be provided access to the text messages. Further, Julie
Roberts testified that--prior to the Panel's investigation--she had
deleted text messages sent to her. Julie Kay Roberts, ``Interview of
Julie Roberts,'' interview by NOAA General Counsel, October 11, 2019:
Page 81-82.
In addition, certain e-mails provided to the Academy Team had also
been released to requesters pursuant to the Freedom of
Information Act (FOIA) and were redacted in accordance with
FOIA's exemptions.
1.3 Organization of Report
The report is organized as follows:
Chapter 1 provides an introduction to the report, which
includes background information, project scope and
deliverables.
Chapter 2 summarizes the inquiry methodology and process.
Chapter 3 provides a summary of the NOAA's Scientific
Integrity Policy and adjudication procedures.
Chapter 4 provides a description of the allegations.
Chapter 5 provides a chronology of key events.
Chapter 6 provides the Panel's findings and recommendations.
Chapter 2: Summary of Methodology and Process
For this assessment, the Academy appointed four Fellows to serve on
the Panel. The Panel provided ongoing guidance to the study team
throughout the project, including approving the project work plan;
participating in the interview process; reviewing the study team's
progress; developing, reviewing, and approving the study findings,
conclusions, and recommendations; and approving the draft and final
report. Their biographical information can be found in Appendix A.
The Panel for this study included the following Academy Fellows:
Admiral (Ret.) Thad Allen (Chair)
Dr. Shantanu Agrawal
Dr. Kaye Husbands Fealing
Dr. Elizabeth Robinson
Conducted from December 2019 through March 2020, the assessment
employed primarily qualitative research methods. This review was
conducted in accordance with generally accepted research standards
which required that the Academy Team plan and perform the study to
obtain sufficient, appropriate evidence to provide a reasonable basis
for the findings and conclusions based on the study objectives. The
Panel believes the evidence obtained provides a reasonable basis for
the findings and conclusions based on the study objectives.
To identify the appropriate criteria for the assessment, the
Academy Team reviewed a broad array of publicly available literature
and official documentation including NOAA's Scientific Integrity Policy
(NOAA Administrative Order 202-735D: Scientific Integrity), the
Department of Commerce's Public Communication Policy (Department
Administrative Order 219-1: Public Communication), Federal guidance on
scientific integrity policies as promulgated by the Office of Science
and Technology Policy (OSTP) guidance, Congressional hearings on
scientific integrity, reports authored by the Government Accountability
Office (GAO), and other publicly available related literature from
several Offices of Inspector General. The review provided a baseline
for the Panel's findings and additional context for the Academy Team
interviews. See Appendix H for a full list of records reviewed by the
Academy team.
Reflecting the requirements of the Scope of Work, the Academy Team
focused on several overarching issues to inform the scope of research
and selection of assessment questions:
Applicable Jurisdiction: Are the alleged activities;
allegations related to the development and release of the
September 6, 2019, NOAA unattributed public statement (the
September 6 Statement); and Respondents covered under the NOAA
Scientific Integrity Policy?
Applicable Policies: What are the applicable NOAA and
Department of Commerce policies and procedures that relate to
Scientific Integrity and Communication activities?
Applicable Assessment Criteria: What are the applicable
assessment criteria to be used to assess a possible breach of
NOAA Scientific Integrity and Communication policies?
The Academy Team gathered and analyzed primary and secondary data
through a review of prior testimonies and official documents related to
the allegations of scientific misconduct. The Academy Team conducted
semi-structured in-person interviews with NOAA staff including
personnel from NWS and the Office of Communications, and other senior
leaders. Academy Team submitted interview topics and procedures to the
interviewees prior to the interviews. .See Appendix D for a list of
interviews and interview questions. The Academy Team also had
conversations with representatives from NOAA's Office of General
Counsel and SIO which provided background on the Scientific integrity
Policy.
To provide greater context to the study and to better understand
how social science research can inform the effective communication of
severe weather event risk, including emergency preparedness, the
Academy Team interviewed subject matter experts from the University of
Colorado at Boulder and the National Center for Atmospheric Research.
The Academy Team interviewed representatives from GAO to discuss
leading practices to safeguard scientific integrity at Federal
agencies.
Subject matter experts spoke to the Academy Team under the
condition that their comments would not be for attribution. Copies of
the questions asked during the Academy Team's interviews are included
in Appendix D.
2.1 Consideration of Alleged Activities, Allegations, and Respondents
under the NOAA Scientific Integrity Policy
As the first step of its assessment, the Academy Team determined
that the September 1 Birmingham Tweet ,and the September 6 Statement,
the activities underlying the alleged violations, the allegations
related to the development and release of September 6 Statement, and
certain Respondents named in the allegations were all covered under the
NOAA Scientific Integrity Policy. Further, the Academy Team determined
that the above NOAA communications were covered under the Department of
Commerce's Public Communication Policy, as NOAA does not possess its
own communication policy. Separately, NOAA's S10, Dr. Cynthia Decker,
confirmed that the four complaints met the basic criteria to be
adjudicated pursuant to the NOAA Scientific Integrity Policy's
accompanying Procedural Handbook.\15\
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\15\ Cynthia J. Decker, ``Memorandum from Cynthia J. Decker for The
Record, Subject: Scientific Integrity Allegations 2019-007/8/9/10
Inquiry and Investigation Process,'' 2019.
---------------------------------------------------------------------------
The Academy Team's analysis was informed by a review of supporting
documentation as well as interviews with NOAA staff. The following
decision points provide the underlying analysis used to determine the
status of individuals and applicability of policy.
Decision Point: Applicability of Policy to Respondents
The allegations list several Respondents. Are those Respondents subject
to the NOAA Scientific Integrity Policy and Commerce Public
Communication Policy?
Analysis: Although the list of Respondents presented in the
allegations includes both NOAA and non-NOAA employees, only NOAA staff
(career and political) and certain NOAA contractors are covered under
NOAA's Scientific Integrity Policy. The Department of Commerce Public
Communication policies extends to all employees of the Commerce
Department including NOAA staff.
Pursuant to Section 2.02 of NOAA Scientific Integrity Policy, the
policy applies to:
All NOAA employees, political and career, who are engaged in,
supervise, or manage scientific activities, analyze and/or
publicly communicate information resulting from scientific
activities, or use scientific information or analyses in making
bureau or office policy, management, or regulatory decisions;
and contractors who engage in or assist with activities
identified above.
Pursuant to Section 1.01 of Commerce's Public Communications
Policy, the policy applies to ``Department of Commerce employees
engaging in public communications.'' This policy is also applicable to
the Respondents, as they publicly communicated information resulting
from scientific activities.
Decision Point: Applicability of NOAA Scientific Integrity Policy to
the Communications
The allegations refer to the September 6 Statement and the September 1
Birmingham Tweet. Are the September 6 Statement and September l
Birmingham Tweet covered under the NOAA Scientific Integrity
Policy?
Analysis: In considering this question, the Academy Team reviewed
NOAA's Scientific Integrity Policy and concluded that the September 6
Statement and September 1 Birmingham Tweet are covered under NOAA's
Scientific Integrity Policy for the following reasons:
Section 3 of the NOAA Scientific Integrity Policy defines a
scientific assessment as the:
Evaluation of a body of scientific or technical knowledge that
typically synthesizes multiple factual inputs, data, models,
and assumptions, and implies the use of best professional
judgment to bridge uncertainties in the available information.
The persons involved in developing the September 1 Birmingham Tweet
and September 6 Statement conducted a scientific assessment by
evaluating and synthesizing the scientific and technical knowledge
available to them. To develop the September 1 Birmingham Tweet,
Birmingham WFO forecasters evaluated models, forecasts, and other
information. In the case of the September 6 Statement, individuals
involved in developing the statement evaluated National Hurricane
Center (NHC) advisories.
A scientific assessment is included in the list of activities that
define a scientific activity per the NOAA Scientific Integrity Policy.
Section 3 of the policy defines a scientific activity as:
Activities that involve inventorying, monitoring, observations,
experimentation, study, research, modeling, and scientific
assessment. Scientific activities are conducted in a manner
specified by standard protocols and procedures and include any
of the physical, biological, or social sciences, as well as
engineering and mathematics, or any combination of these.
In developing the September 1 Birmingham Tweet and September 6
Statement, individuals engaged in activities that can be considered
scientific activities.
As defined in Section 3 of the NOAA Scientific Integrity Policy, a
scientific product is the:
Presentation of the results of scientific activities including
the analysis, synthesis, compilation, or translation of
scientific information and data into formats for the use of
NOAA, the Department of Commerce, or the Nation.
Therefore, it can be reasonably deduced that the September 1
Birmingham Tweet and September 6 Statement are examples of a scientific
product. The Academy Team's interviews with NOAA and NWS staff and
conversations with representatives from NOAA's Office of General
Counsel and SIO about the Scientific Integrity Policy, supported the
Academy Team's interpretation.
As scientific products based on scientific activities and
assessments, the September 1 Birmingham Tweet and September 6 Statement
are subject to the NOAA Scientific Integrity Policy.
Interviews with NOAA and GAO personnel provided guidance that a
communication can be considered a scientific product if:
The communication is based on scientific analysis and
The communication is related to the core mission of the
agency.
In the case of the September 1 Birmingham Tweet and September 6
Statement, both communications involve scientific assessments and
activities and relate to the core mission of the agency. Informed by
this guidance, the Academy Team determined that both criteria were met
and that both the September 1 Birmingham Tweet and September 6
Statement should be considered scientific products because they are
based on scientific activities and scientific assessments. The Academy
Team determined that the drafting and public release of both
communications were consistent with these covered activities.
Decision Point: Applicability of Department of Commerce Public
Communication Policy to the Communications
Are the September 6 Statement and September 1 Birmingham Tweet covered
under the Department of Commerce Public Communication Policy?
Analysis: The Academy Team determined that the September 6
Statement and September 1 Birmingham Tweet can be considered Official
Communications and are covered under the Department of Commerce Public
Communication Policy for the following reasons:
The Department of Commerce Public Communication Policy defines
Official Communications as:
Any Public Communication by an employee that relates to the
Department's programs, policies, oroperations and takes place
or is prepared: (i) At the direction of a superior of the
employee; (ii) Substantially during the official working hours
of the employee; (iii) With the substantial use of U.S.
Government resource(s); or with substantial assistance of U.S.
Government employee(s) on official duty.
Section 8 of Commerce's Public Communications Policy provides that:
Any Official Communication intended for the media (e.g., news
releases, interviews/news conferences), all written and
audiovisual materials that are, or are prepared or received in
connection with, the Official Communication must be submitted
in a timely manner before the communication occurs to the head
of the operating unit or Secretarial office, or their
designee(s), and to the Appropriate Public Affairs Office (as
defined in Section 8.05) for approval in a timely manner.
Based on the definition of an Official Communication, the Commerce
Public Communication Policy is applicable to both the September 1
Birmingham Tweet and September 6 Statement.
Analysis: As the September 1 Birmingham Tweet and September 6
Statement are defined as ``Official Communications'' per the Commerce
Public Communication Policy, they are also subject to the provisions of
Section 7 of NOAA's Scientific Integrity Policy which states:
Appropriate rules and procedures are in place and implemented
to preserve the integrity of the scientific process and the
dissemination of its scientific products and information,
including providing scientists the right to review and correct
any official document (such as a press release or report) that
cites or references their scientific work, to ensure that
accuracy has been maintained after the clearance and editing
process.
Section 7 of the NOAA Scientific Integrity Policy mandates a review
from the scientists whose scientific work was referenced in the
Official Communication. As Official Communications per the Department
of Commerce Public Communication Policy, the September 1 Birmingham
Tweet and September 6 Statement are subject to Section 7 of the NOAA
Scientific Integrity Policy.
Decision Point: Applicability of Policy to Alleged Violations
The allegations cite violations of numerous provisions of NOAA's
Scientific Integrity Policy. Are the alleged violations covered
under the NOAA Scientific Integrity Policy and Commerce Public
Communication Policy?
Analysis: In considering this question, the Academy Team reviewed
NOAA's Scientific Integrity Policy, Commerce's Public Communication
Policy, OSTP policies, GAO guidance, guidelines followed by other
Federal agencies, and conversations with NOAA's S10 and representatives
from the Office of General Counsel on the Scientific Integrity Policy.
The Academy Team concluded that the alleged violations are covered
under the NOAA Scientific Integrity Policy and Commerce Public
Communication Policy.
Decision Point: Filing of Allegations in Accordance with Policy
Were the allegations filed in accordance with the provisions in the
NOAA Scientific Integrity Policy's accompanying Procedural
Handbook?
Analysis: In considering this question, the Academy Team reviewed
NOAA's Scientific Integrity Policy and the accompanying Procedural
Handbook, GAO guidance and guidelines followed by other Federal
agencies, and conversations with NOAA's SIO and representatives from
the Office of General Counsel on the Scientific Integrity Policy. The
Academy Team concluded that the allegations were filed in accordance
with the provisions in the NOAA Procedural Handbook. The allegations
provided sufficient information for adjudication and were filed within
the stipulated time frame. See Sections 3.02 and 3.04 of the Procedural
Handbook for additional guidance.
2.2 Methodological Approach to Review and Assess the Allegations
The Academy Team's methodological approach to review and assess the
allegations comprised seven key tasks:
Task One: Review allegations of scientific misconduct or loss of
scientific integrity related to the development and release of
September 6 Statement.
For the purposes of this evaluation, NOAA requested the Panel to
consider the following four allegations:
------------------------------------------------------------------------
Complainant and Filing Date Allegation Number
------------------------------------------------------------------------
Craig McLean; September 10, 2019 Allegation 2019-007
Jane Lubchenco, Andrew Rosenberg, Allegation 2019-008
and Richard Spinrad; September 9,
2019
Carl Childs; September 11, 2019 Allegation 2019-009
Rep. Paul Tonko; September 10, 2019 Allegation 2019-0010
------------------------------------------------------------------------
Task Two: Review the applicable NOAA and Commerce policies that
relate to scientific integrity and communication activities.
For the purposes of this evaluation, the Panel considered the
following applicable NOAA and Commerce policies and procedures: \6\
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\16\ NOAA's SIO and representatives from the Office of General
Counsel confirmed that these documents encompass all scientific
integrity and communication policies applicable to NOAA.
NOM's Scientific Integrity Policy and related Procedural
---------------------------------------------------------------------------
Handbook
NOAA Framework for Internal Review and Approval of
Fundamental Research Communications (FRC)
Department of Commerce's Public Communication Policy
Department of Commerce's Social Media Guidebook January 2013
Memorandum for the Heads of Executive Departments and
Agencies: March 9, 2009
Memorandum for the Heads of Executive Departments and
Agencies: December 17, 2010 (from the Director of the OSTP)
Memorandum for all Chief Counsels and General Counsels, on
the implementation of administration policy of scientific
integrity: December 16, 2011 (from the General Counsel of the
Department of Commerce)
Federal Register, Volume 65, Number 235, Notice from the
Science and Technology Policy Office on the Federal Policy on
Research Misconduct: Wednesday, December 6, 2000 \17\
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\17\ The Federal definition of research misconduct is defined as
fabrication, falsification, or plagiarism in proposing, performing, or
reviewing research, or in reporting research results.
Task Three: Select and define criteria to be used to assess a
possible violation of NOAA's Scientific Integrity Policy and Commerce's
Public Communication Policy. For the purposes of this evaluation, the
Panel considered assessment criteria drawn from the applicable
documents listed above in Task Two. Criteria include broad standards
and specific procedural guidance.
Task Four: Develop a fact-based chronology of activities and
individuals involved in the events leading up to and the development
and release of the September 6 Statement and determine in what context
the September 6 Statement was produced.
To develop the chronology, the Panel conducted semi-structured
interviews and reviewed prior testimonial evidence and related
documents.
Task Five: Develop a concise understanding of the adjudication
standards, criteria, and process.
Task Six: Determine whether the NOAA personnel involved in events
leading up to, and in the issuance of, the September 6 Statement
violated the Scientific Integrity Policy.
For the purpose of this evaluation, the Panel took the following
steps:
Map the prescribed procedures and activities related to the
September 6 Statement according to NOAA's policies. This
creates a baseline as to what procedures and steps should have
been followed to comply with NOAA and Commerce policies.
Compare the fact-based chronology of the events, activities,
and individuals determined in Task Four with NOAA policies and
procedures. Identify departures from the baseline policies and
procedures.
Determine whether the departures or variance from the
baseline procedures significantly departed from accepted
practices and rises to the level of a violation of the Code of
Scientific Conduct or Code of Ethics for Science Supervision
and Management set forth in NOAA's Scientific Integrity Policy.
Determine whether the individuals engaged in the misconduct
intentionally, knowingly, or in reckless disregard of the Code
of Scientific Conduct or Code of Ethics for Science Supervision
and Management in NOAA's Scientific Integrity Policy.
Task Seven: In the event that scientific misconduct or misconduct
resulting in a loss of scientific integrity has occurred, determine
what steps are necessary to restore the loss of integrity.
Separately, formulate recommendations for NOAA to help safeguard
against future violations of scientific integrity related to political
interference.
For the purpose of this evaluation, the Panel considered the
analysis included in Tasks One through Seven as well as their
professional expertise and experience to develop recommendations
intended to support more effective adherence to the Scientific
Integrity Policy in the future.
Chapter 3: Summary of NOAA's Scientific Integrity Policy
and Adjudication Procedures
The National Oceanic and Atmospheric Administration's (NOAA)
Scientific Integrity Policy (NOAA Administrative Order 202-735D:
Scientific Integrity) outlines the agency's scientific integrity
principles, code of conduct, code of ethics, and criteria to determine
scientific and research misconduct. Section 3 of the policy defines
scientific integrity as follows:
The condition resulting from adherence to professional values
and practices when conducting and applying the results of
science that ensures objectivity, clarity, and reproducibility,
and that provides insulation from bias, fabrication,
falsification, plagiarism, interference, censorship, and
inadequate procedural and information security.
NOAA's Scientific Integrity Policy and accompanying Procedural
Handbook provide criteria for determining scientific misconduct and
five core procedures for adjudicating alleged violations.
3.1 Criteria for Determining Scientific Misconduct
Section 2.01 of the Procedural Handbook for NOAA's Scientific
Integrity Policy states that:
A finding of scientific misconduct or misconduct resulting in
the loss of scientific integrity requires a determination by
the NOAA Scientific Integrity Officer (SIO) and/or Determining
Officer (DO) by a preponderance of the evidence on the record
before him or her that the person or entity has:
Significantly departed from accepted practices of the
relevant research community and violated the Code of
Scientific Conduct or Code of Ethics for Science
Supervision and Management set forth in NOM's Scientific
Integrity Policy; and
Engaged in the misconduct intentionally, knowingly, or in
reckless disregard of the Code of Scientific Conduct or
Code of Ethics for Science Supervision and Management in
NOM's Scientific Integrity Policy.
3.2 Core Procedures for Adjudicating Alleged Violations of Scientific
Integrity
The accompanying Procedural Handbook to NOM's Scientific Integrity
Policy articulates a precise process for NOM to use in responding to
allegations of scientific misconduct or a loss of scientific integrity
by a NOM employee, contractor, or recipient of NOM financial
assistance. The Procedural Handbook provides the following core
procedures for identifying and adjudicating alleged violations of
scientific integrity.
Reporting the Allegation
Allegations are to be submitted in writing to NOAA's SIO within 90
calendar days of the discovery of the alleged misconduct.\18\ If
applicable, an allegation should contain all of the following
information to evaluate the complaint:
---------------------------------------------------------------------------
\18\ National Oceanic and Atmospheric Administration, ``Procedural
Handbook for NAO 202-735 D: Scientific Integrity;'' December, 2011:
Section 3.02.
a. The name of the person or organization alleged to have committed
---------------------------------------------------------------------------
the misconduct;
b. A statement of facts (including dates, locations, and actions)
that support the allegation, including when and how the
Complainant first learned of such facts;
c. A list of documents supporting the allegation;
d. A list of witnesses who may corroborate the a1legation;
e. An explanation of how the criteria for scientific misconduct or
loss of scientific integrity are met, including for loss of
scientific integrity: citations or other information
identifying the accepted practices of the relevant scientific
community; an explanation of how the alleged misconduct
constitutes a significant departure from those practices and
violates the Code of Scientific Conduct or Code of Ethics for
Science Supervision and Management set forth in NOAA's
Scientific Integrity Policy
f. An explanation of any conflicts of interest, as defined in
section 4.04(b)(i), the Complainant has with the subject of the
allegation;
g. A statement indicating whether the allegation has been submitted
elsewhere, such as the NOAA Employee and Labor Relations
Division, Office of Special Counsel, or Office of the Inspector
General.\19\
---------------------------------------------------------------------------
\19\ NOAA, Section 3.04.
---------------------------------------------------------------------------
Screening the Allegation
NOAA's Scientific Integrity Policy's Procedural Handbook provides
that the SIO is to screen the allegation to decide whether it should be
dismissed or should proceed to an inquiry and possible investigation.
The official may also form a committee for assistance with that
assessment. Pursuant to this requirement, the NOAA SIO, Dr. Cynthia
Decker, concluded that the allegations of misconduct were credible and
consulted with NOAA General Counsel on appropriate procedures to move
the adjudication forward.\20\ Detailed descriptions of the allegations
can be found in tables 4-1; 4-2, 4-3, and 4-4, all found in Chapter 4.
---------------------------------------------------------------------------
\20\ Cynthia J. Decker, ``Memorandum from Cynthia J. Decker for The
Record; Subject: Scientific Integrity Allegations 2019-007/8/9/10
Inquiry and Investigation Process,'' 2019; National Oceanic and
Atmospheric Administration, ``Procedural Handbook for NAO 202-735D:
Scientific Integrity,'' December, 2011: Section 4.03(d).
---------------------------------------------------------------------------
Investigating the Allegation
The purpose of this procedure is to determine whether scientific
misconduct and/or loss of scientific integrity occurred and to
recommend corrective action. NOAA's procedures include a step for the
SIO or other designated body to investigate the allegation and to
decide whether it should be dismissed or, if a violation occurred,
assess whether an allegation sufficiently specifies scientific
misconduct or the loss of scientific integrity and whether that
misconduct or loss can be resolved with evidence and expertise that can
be collected by the Inquiry Team, or if a more extensive investigation
is warranted.\21\
---------------------------------------------------------------------------
\21\ National Oceanic and Atmospheric Administration, ``Procedural
Handbook for NAO 202-735D: Scientific Integrity,'' December, 2011:
Section 4.04.
---------------------------------------------------------------------------
If the Inquiry Team determines by a preponderance of evidence that
a more extensive investigation is warranted, an Integrity Review Panel
(IRP) is formed, tasked to determine whether scientific misconduct or
loss of scientific integrity occurred, and recommends corrective
action.\22\
---------------------------------------------------------------------------
\22\ NOAA, Section 4.05.
---------------------------------------------------------------------------
In considering the posture of the Complainants and Respondents to
allegations 2019-007, -008, -009, and -0010, the SIO with consultation
from NOAA General Counsel determined that NOAA was not suited to
adjudicate this matter internally and required an external independent
expert to investigate and make findings and recommendations. In a
Memorandum for The Record explaining this discussion, the NOAA SIO, Pr.
Cynthia Decker, explains, ``Due to the posture of the complainant and
respondent in the proceeding, no one at NOAA ``is suited to adjudicate
this matter internally, and NOAA requires a neutral expert to
investigate and make findings and recommendations in order for a NOAA
Determining Official to resolve the complaints.'' \23\ To ensure an
unbiased proceeding, the Academy was contracted to serve as a combined
Inquiry/Investigation Team, carry out all functions the Procedural
Handbook bestows to an Inquiry Team and IRP, and submit a report with
findings and recommendations to the DO for review and further action,
as appropriate.
---------------------------------------------------------------------------
\23\ Cynthia J. Decker, ``Memorandum from Cynthia J. Decker for The
Record, Subject: Scientific Integrity Allegations 2019-007/8/9/10
Inquiry and Investigation Process,'' 2019.
---------------------------------------------------------------------------
Responding to the Violation
If the DO finds that scientific misconduct or loss of scientific
integrity has occurred, the DO or Deputy Under Secretary for Operations
will refer the matter to an appropriate manager in the Respondent's
reporting structure for corrective administrative action.
Opportunity for Input from the Complainant and Respondent
During the investigation process, the Complainant and Respondent
may provide written exceptions to the findings of the final
investigation report within 10 calendar days.
Chapter 4: Description of the Allegations
Following the release of the September 6 Statement, NOAA's
Scientific Integrity Officer (SIO), Dr. Cynthia Decker, received four
complaints alleging a violation of NOAA's Scientific Integrity Policy
(NOAA Administrative Order (NAO) 202-735D: Scientific Integrity). These
complaints were then cataloged by the SIO and numbered as Scientific
Integrity Allegations 2019-007 through 2019-0010.
The following tables summarizes the four allegations submitted to
NOAA's SIO. The allegations can be found in Appendix E.
Table 4-1. Allegation 2019-007
------------------------------------------------------------------------
------------------------------------------------------------------------
Complainant: Craig McLean\24\ Date Submitted: September 10, 2019
------------------------------------------------------------------------
\24\ Craig McLean is the NOAA
Assistant Administrator for
Oceanic and Atmospheric Research.
He also serves NOAA in the acting
role of Chief Scientist.
Allegation Summary: The complaint Policies Allegedly Violated:
alleges that, ``intervention to NAO 202-735D: Scientific Integrity
contradict the forecasters was not Section 5.02(d): Guidance for
based in science but on external Scientists to Speak with the Media
factors including reputation and Section 5.02(k): Sharing of Best
appearance, or simply put, Administrative and Management
political. Our NOAA Scientific Practices
Integrity Policy and Code of Section 6.01: NOAA Employee and
Scientific Conduct found in NAO Contractors Code of Scientific
202-735D make clear that all NOAA Conduct
employees shall approach all Section 7.01: Code of Ethics for
scientific activities with Science Managers
honesty, objectively, and Section 7.02: Code of Ethics for
completely, without allegiance to All Science Supervisors and
individuals, organizations, or Management
ideology. The content of this Section 7.03: Fundamental Research
press release is very concerning Communication Approval
as it compromises the ability of Section 8.01: Definitions of
NOAA to convey life-saving Scientific and Research Misconduct
information necessary to avoid Procedural Handbook
substantial and specific danger to Section 2.03: Coercive
public health and safety. If the manipulation, intimidation,
public cannot trust our misrepresentation, etc.
information, or we debase our Department of Commerce
forecaster's warnings and Administrative Order (DAO) 219-1:
products, that specific danger Public Communications
arises.'' Section 4.01 (a)(b)
Section 5.03 (a) (b)
18 U.S. CodeSec. 2074. False
Weather Reports
------------------------------------------------------------------------
Table 4-2. Allegation 2019-008
------------------------------------------------------------------------
------------------------------------------------------------------------
Complainant Dr. Jane Lubchenco,\25\ Date Submitted: September 9, 2019
Dr. Richard Spinrad,\26\ Dr.
Andrew Rosenberg\27\
------------------------------------------------------------------------
\25\ Dr. Jane Lubchenco is the
University Distinguished Professor
and Marine Studies Advisor to the
President at Oregon State
University. She previously served
as Under Secretary of Commerce for
Oceans and Atmosphere and NOAA
Administrator from 2009-2013.
\26\ Dr. Richard Spinrad is the
president of the Marine Technology
Society. He previously served as
the Chief Scientist of NOAA from
2014-2017 and as director for
various NOAA offices from 2003-
2010.
\27\ Dr. Andrew Rosenberg is
director of the Center for Science
and Democracy at the Union of
Concerned Scientists. He
previously served as the Deputy
Director of NOAA's National Marine
Fisheries Service from 1998-2000.
Allegation Summary: The complaint Policies Allegedly Violated: NAO
alleges that, ``recent actions to 202-735D: Scientific Integrity
censor NWS scientists put the Section 4.05: NOAA Scientists May
public safety at risk, are Freely Speak to the Media
inconsistent with NOAA's Section 7.01: Code of Ethics for
scientific integrity principles, Science Managers
violate the public trust, and
compromise the independence and
reliability of the National
Weather Service.''
------------------------------------------------------------------------
Table 4-3. Allegation 2019-009
------------------------------------------------------------------------
------------------------------------------------------------------------
Complainant: Dr. Carl Childs\28\ Date. Submitted: September 11, 2019
------------------------------------------------------------------------
\28\ Dr. Carl Childs is a scientist
on NOAA's Scientific Support Team,
located within the Emergency
Response Division (ERD) of the
NOAA Office of Response &
Restoration. Dr. Childs is the
president of the bargaining unit
representing the scientists in
NOAA's Emergency Response Division
(IFPTE Local 8A).
Allegation Summary: The complaint Policies Allegedly Violated: NAO
alleges that, ``no attempt was 202-735D: Scientific Integrity
apparently made to contact the Sections 7 01: Code of Ethics for
NOAA staff who generated the Science Managers
original (unmodified) hurricane Section 8.01: Definitions of
forecast before the statement Scientific and Research Misconduct
release. The September 6 statement 18 U.S. Code Sec. 2074. False
was an intentional Weather Reports
misrepresentation of scientific
findings that damages the
scientific standing of the NWS and
the entire agency. It casts
unwarranted doubt on the
performance of NWS forecasters and
jeopardized public faith in NOAA
as an impartial communicator of
vital public safety information.
It is clear that the statement
from NOAA management serves only
to deflect criticism of the source
of the misleading information at
the expense of NWS employees who
safeguard the public in a manner
consistent with the best
scientific information
available.''
------------------------------------------------------------------------
Table 4-4. Allegation 2019-0010
------------------------------------------------------------------------
------------------------------------------------------------------------
Complainant: Congressman Paul Date. Submitted: September 11, 2019
Tonko\29\
------------------------------------------------------------------------
\29\ Congressman Paul Tonko
represents New York's 20th
Congressional District. Tonko
serves on the House Committee on
Energy and Commerce; House
Committee on Science, Space, and
Technology; and the House
Committee on Natural Resources. He
chairs the Subcommittee on
Environment and Climate Change.
Allegation Summary: The compliant Policies Allegedly Violated: NAO
alleges that recent reports 202-735D: Scientific Integrity
published by media outlets, No specific sections mentioned.
``indicate that political Although Congressman Tonko does not
leadership responsible for explicitly mention a section, his
overseeing NOAA may have allegation does directly quote
communicated threats and applied Section 7.02: Code of Ethics for
political pressure in an effort to All Science Supervisors and
suppress the release of vital, Management of NOAA's Scientific
current forecasting information Integrity Policy.
critical to emergency
preparedness,'' and, ``an agency-
wide directive sent on September
1, 2019 restricting National
Weather Service from releasing
information that could be seen as
contradicting President Trump.''
These ``reported abuses by high
ranking political appointees in
contravention of agency convention
and best practices, appear to
violate the NOAA Administrative
Order on Scientific Integrity.''
------------------------------------------------------------------------
Chapter 5: Chronology of Key Events
The following is a chronology of key events that occurred leading
up to the formulation and release of the September 1 Birmingham Tweet
by the National Weather Service (NWS) Birmingham Weather Forecast
Office (WFO) and the subsequent September 6 Statement by the National
Oceanic and Atmospheric Administration (NOAA). All of the times in the
chronology below are in Eastern Time Zone. The events and accuracy of
the descriptions were validated using several different sources of
information including interviews conducted by the Academy Team and NOAA
General Counsel, text and e-mail communications, and other
documentation. Appendix B provides a more comprehensive overview
including the events, dates, parties involved; and supporting
documentation.
Wednesday, August 28, 2019
5:02 p.m.: Susan Buchanan (NWS Communications Director)
releases NOAA Communications media plan for Hurricane Dorian.
Thursday, August 29, 2019
Dr. Neil Jacobs (NOAA Acting Administrator) leads a briefing
on Hurricane Dorian at the White House. A NOAA graphic (the one
that later appears altered with a black marker) is used in the
briefing.
Saturday, August 31, 2019
4:00 p.m.: President Trump receives a briefing on Hurricane
Dorian via video teleconference while he is at Camp David.
Sunday, September 1, 2019
8:00 a.m.-11:00 a.m.: NWS Birmingham WFO receives multiple
phone calls from the public. Two of the calls come in directly
after the President's tweet at 10:51 a.m.
10:51 a.m.: President Trump tweets that Alabama, ``will most
likely be hit (much) harder than anticipated.''
11:11 a.m.: NWS Birmingham WFO tweets that, ``Alabama will
NOT see any impacts from #Dorian.'' (``the September 1
Birmingham Tweet'').
12:31 p.m.: President Trump is briefed on Hurricane Dorian
at Federal Emergency Management Administration (FEMA)
Headquarters. Ken Graham (Director of the National Hurricane
Center (NHC)) leads the briefing.
3:00 p.m.: Chris Vaccaro (Senior Media Relations Specialist
at NOAA) sent an e-mail to the NWS Public Affairs team
directing that all media inquiries be sent to him and Julie
Roberts (Deputy Chief of Staff and Director of Communications
at NOAA).
3:06 p.m.: Julie Roberts sends an e-mail asking all NWS
offices to consult with NOAA Office of Communications before
responding to any social media inquiries.
4:49 p.m.: Andrew Stern (Manager of NWS Operations Center)
sends an e-mail to the NWS Operations Center staff to inform
a11 Regional Operation Centers (ROC) and WFOs to ``only stick
with official NHC forecasts if questions arise from some
national level social media posts this afternoon. Staff should
not provide any opinion about the national level post and
should direct any questions that cannot be satisfied to NOAA
Public Affairs.''
9:41 p.m.: Chris Darden (Meteorologist-in-Charge, NWS
Birmingham WFO) sends an e-mail out to all NWS Birmingham WFO
staff updating them on the day's events and to forward any
calls or questions to him.
Wednesday, September 4, 2019
12:57 p.m.: President Trump is briefed on Hurricane Dorian
at the Oval Office in front of the press. A NOAA graphic
appears to be altered with black marker. This becomes national
news.
2:42 p.m.: Julie Roberts e-mails George Jungbluth (NWS Chief
of Staff) and tells him that NOAA Communications is handling
``the situation'' and ``there should be no action taken by
anyone within the National Weather Service or the National
Hurricane Center.''
3:37 p.m.: NWS Operations Center sends out a media guidance
to all ROCs and National Centers asking that they do not
respond via social media or other modes to any questions
related the tweets.
4:45 p.m.: Chris Darden sends an e-mail out to all NWS
Birmingham WFO staff updating them that NOAA Headquarters
called Darden and asked all further media inquiries to be
forwarded to Chris Vaccaro at NOAA Communications.
Thursday, September 5, 2019
5:36 p.m.: Chris Vaccaro sends an e-mail asking NWS to
resend the September 4 media guidance. Vaccaro states in the e-
mail that forecasters should not communicate with media via
their personal Twitter accounts.
7:48 p.m.: George Jungbluth resends September 4 media
guidance to NWS personnel.
Approximately 7:00 p.m.: Secretary Wilbur Ross (Commerce)
calls Dr. Neil Jacobs and asks him to prepare a timeline of
events and communications surrounding Dorian.
10:53 p.m.: Dr. Neil Jacobs calls Julie Roberts and informs
Roberts of Jacobs' phone call with Secretary Ross.
Friday, September 6, 2019
2:30 a.m.: Julie Roberts receives a phone call from
Secretary Wilbur Ross' personal assistant and Mike Walsh
(Department of Commerce Chief of Staff, who had also been
delegated the duties of General Counsel).
2:30-3:48 a.m.: Julie Roberts compiles a summary document of
all events and communications that have happened surrounding
Dorian h03 h00 and sends the summary to Mike
Walsh and other Commerce and NOAA employees.
7:00 a.m.: Julie Roberts calls Dr. Neil Jacobs and fills him
in on the calls she received from the Secretary earlier that
morning.
8:30 a.m.: Julie Roberts and Dr. Neil Jacobs arrive at the
Commerce office and meet in the Deputy Secretary's conference
room.\30\ Commerce Officials who participated in all or a
portion of this meeting include: David Dewhirst (Deputy
General' Counsel), Kevin Manning (Press Secretary and Deputy
Director of Public Affairs), Deputy Secretary Karen Dunn
Kelley, Joe Semsar (Chief of Staff for Deputy Secretary Karen
Dunn Kelley), and Cordell Hull (Deputy General Counsel and also
performing the duties of Assistant Secretary for Legislative
and Intergovernmental Affairs).
---------------------------------------------------------------------------
\30\ According to Julie Roberts, the meeting was never officially
convened, ``it was just everyone sitting around the table working on
whatever we were working on at the time.'' Julie Kay Roberts,
``Interview of Julie Roberts,'' interview by NOAA General Counsel,
October 11, 2019: Page 91, Line 18-21; According to Dr. Neil Jacobs,
``when Julie [Roberts] and I showed up there was already a couple
drafts versions of the statement going back and forth floating
around.'' Neil Jacobs, ``Interview of Neil Jacobs,'' interview by NOAA
General Counsel, November 6, 2019: Page 105, Line 19-21.
Deputy Secretary Karen Dunn Kelley goes to h03
---------------------------------------------------------------------------
h00 a meeting. h03 h00
A statement is drafted on David Dewhirst's tablet.
10:30 a.m.: Julie Roberts goes upstairs and asks Scott
Smullen (NOAA Deputy Director of Communications) and Chris
Vaccaro to look at the statement.
Roberts, Jacobs, Vaccaro, and Smullen edit the September 6
Statement. Jacobs and Roberts work to ensure that the statement
is technically accurate. There was a debate about Birmingham.
Specifically, Jacobs, Roberts, Vaccaro, and Smullen wanted to
remove the Birmingham part of the statement but were told no by
Commerce officials.
Secretary Ross and his staff call to discuss the statement.
Jacobs and Roberts raise their concern about the Birmingham
part of the statement but are told they cannot take out the
reference to the Birmingham office.
3:00 p.m.: Dr. Neil Jacobs calls Stuart Levenbach (NOAA
Chief of Staff) and tells him about the statement.
3:11 p.m.: David Dewhirst e-mails Mike Walsh a copy of the
statement for approval.
Between 3:30 and 4:00 p.m.: Dr. Neil Jacobs calls Stuart
Levenbach, Dr. Louis Uccellini (NOAA Assistant Administrator,
Director of NWS), and Taylor Jordan (NOAA Senior Policy
Advisor) to tell them about the statement before it goes out.
3:43 p.m.: David Dewhirst e-mails Julie Roberts a copy of
the statement after it has been approved by senior political
leaders at Commerce.
4:00 p.m.: Julie Roberts and Dr. Neil Jacobs reach out to
Benjamin Friedman (NOAA Deputy Under Secretary for Operations)
to let him know about the statement before it goes out.
4:40 p.m.: Dr. Louis Uccellini and other NOAA officials
speak over the phone with Chris Darden to give him a heads up
before the statement goes out.
4:45 p.m.: NOAA Communications releases September 6
Statement that says Hurricane Dorian could have impacted
Alabama and that the September 1 Birmingham Tweet was
``inconsistent with probabilities from the best forecast
products available at the time.''
4:52 p.m.: Chris Vaccaro sends out an e-mail to NOAA
personnel informing them that the statement has been
distributed and that inquiries ``should solely be directed to''
the NOAA Office of Communications line. E-mail gets forwarded
to other NOAA staff.
5:31 p.m.: NOAA Communications posts the statement on
Twitter.
6:00 p.m.: Chris Darden sends out an e-mail to the NWS
Birmingham WFO staff informing them of the statement and
commending them on the work they do to support Alabama. Darden
asks the staff to ``please be cautious about commenting
publicly'' on the statement.
8:22 p.m.: Stuart Levenbach e-mails Dr. Louis Uccellini and
tells Uccellini that he (Levenbach) was not involved in any
part of drafting the statement. To Levenbach's knowledge,
Roberts and Jacobs were the only people from NOAA involved in
writing the statement.
Saturday, September 7, 2019
2:26 a.m.: Stuart Levenbach e-mails Kevin Wheeler (NOAA
Deputy Chief of Staff for Policy) with a summary of how the
statement was developed as Levenbach understood it from a call
with Dr. Jacobs.
3:11 p.m.: All hands e-mail sent out to NWS staff thanking
them for their work oil Hurricane Dorian.
Monday, September 9, 2019
Dr. Jane Lubchenco, Dr. Richard Spinrad, and Dr. Andrew
Rosenberg file an allegation of violation of NOAA's Scientific
Integrity Policy.
Tuesday, September, 10, 2019
Representative Paul Tonko files an allegation of violation
of NOAA's Scientific Integrity Policy.
Craig McLean files an allegation of violation of NOAA's
Scientific Integrity Policy.
Wednesday, September 11, 2019
Dr. Carl Childs files an allegation of violation of NOAA's
Scientific Integrity Policy.
Craig McLean provides more alleged violations of NOAA's
Scientific Integrity Policy to expand upon his allegation filed
on September 10.
Chapter 6: Findings and Recommendations
6.1 Criteria to Assess Allegations of Scientific Misconduct
Based on its review of applicable policies and rules, the Panel
identifies five criteria to guide the assessment of allegations of
scientific misconduct filed under NOAA's Scientific Integrity Policy.
Criteria One: Scientific research should be independent from political
interference. Political officials and agency employees should
not suppress or alter scientific findings and conclusions.\31\
---------------------------------------------------------------------------
\31\ Barack Obama, ``Memorandum to the Heads of Executive
Departments and Agencies, Subject: Scientific Integrity,'' March 9,
2009.
---------------------------------------------------------------------------
NOAA is a scientific agency, and its ability to advance its mission
relies on the ``transparency, traceability, and scientific integrity at
all levels.'' \32\ The intent of NOAA's Scientific Integrity Policy
(NOAA Administrative Order 202-735D: Scientific Integrity) is to
protect the independence of the agency's scientific research and
strengthen public confidence in the quality and reliability of NOAA
scientific activities. Scientists should feel that they can focus on
their research free of political concerns. For example, the policy
states:
---------------------------------------------------------------------------
\32\ National Oceanic and Atmospheric Administration, ``NOAA
Administrative Order 202-735D: Scientific Integrity,'' December 7,
2011: Section 4.01
Section 7.02. All individuals [NOAA employees and contractors]
---------------------------------------------------------------------------
identified in Section 2.02 must not:
Suppress, alter, or otherwise impede the timely release of
scientific or technological findings or conclusions, unless
explicitly required by a Department or government-wide statute,
regulation, Executive Order, Presidential Memorandum, or other
legal authority.
Intimidate or coerce employees, contractors, recipients of
financial assistance awards, or others to alter or censor
scientific findings.
Implement institutional barriers to cooperation and the
timely communication of scientific findings or technology.
In addition, the Department of Commerce Public Communication Policy
(Department Administrative Order 219-1: Public Communications)
clarifies that the role of the Office of Communications is to provide
media expertise and assist with the communication of scientific
information.
Section 5.03. All public affairs employees shall adhere to the
following best practices:
Assist with presentation, style, and logistics of scientific
and engineering information, but not alter its substance in
anyway.
Criteria Two: Scientists have the right to communicate with media and
the public about scientific research findings based on their
official work.
NOAA has adopted policies and procedures to ensure a culture of
transparency and openness and facilitate the free flow of scientific
information. N0AA's Scientific Integrity Policy includes provisions
that provide scientists the right to speak publicly about their
scientific research:
Section 4.05. To be open and transparent about their work, and
consistent with DAO 219-1 on (Public Communications) and their
official duties, NOAA scientists may freely speak to the media
and the public about scientific and technical matters based on
their official work, including scientific and technical ideas,
approaches, findings, and conclusions based on their official
work. Additional guidance for employees is available in DAO
219-1. Communication by e-mail or other electronic means in
response to inquiries from the media, and concerning scientific
or technical matters based on an employee's official work, are
considered to be the same as oral communication and not subject
to approval, but are still subject to the restrictions on
protected non-public information set forth in DAO 219-1. Social
media communications are governed by the Department of Commerce
Policy on the Approval and Use of Social Media and Web 2.0, as
well as DAO 219-1.
Section 4.06. NOAA scientists are free to present viewpoints,
for example about policy or management matters, that extend
beyond their scientific findings to incorporate their expert or
personal opinions, but in doing so they just make clear that
they are presenting their individual opinions--not the views of
the Department of Commerce or NOAA. In such cases, NOAA
personnel may also note their NOAA affiliation as part of their
biographical information, provided that their NOAA affiliation
is noted as one of several biographical details, or, if the
information is being published in a scientific or technical
journal, their NOAA affiliation may be listed with an
appropriate disclaimer. Appropriate disclaimers for use by NOAA
scientists when expressing such opinions will be posted to the
Scientific Integrity Commons website.
Section 5.02. NOAA will:
(a) Ensure the free flow of scientific information
online and in other formats, consistent with privacy
and classification standards, and in keeping with the
Department of Commerce and NOAA data sharing and
management policies. Whenever appropriate, this
information will include data and models underlying
regulatory proposals and other policy decisions.
(d) Ensure that NOAA and Department of Commerce public
communications guidance provides procedures by which
scientists may speak to the media and the public about
scientific and technical matters based on their
official work and areas of expertise. In no
circumstances may any NOAA official ask or direct
Federal scientists or other NOAA employees to suppress
or alter scientific findings.
(k) Ensure the sharing of best administrative and
management practices that promote the integrity of
NOAA's scientific activities.
Similarly, Commerce's Public Communication Policy explicitly allows
scientists to engage with the media to discuss their scientific
research.
Section 4.01(d). In support of a culture of openness, and
consistent with this Order and their official duties,
Department employees may speak to the media and the public
about their official work and freely and openly discuss
scientific and technical ideas, approaches, findings, and
conclusions based on their official work.
Criteria Three: Scientists have the right to review and correct any
official document that cites or references their scientific
work to ensure the accuracy of the information.
NOAA's Scientific Integrity Policy requires that NOAA official
documents, including press releases, be reviewed by scientists who
conduct the research to ensure the integrity of its scientific process
and products:
Section 7.01. Science managers and supervisors will ensure:\33\
---------------------------------------------------------------------------
\33\ National Oceanic and Atmospheric Administration, ``NOAA
Administrative Order 202-735D: Scientific Integrity,'' December 7,
2011: Section 2.02.
Appropriate rules and procedures are in place and
implemented to preserve the integrity of the scientific process
and the dissemination of its scientific products and
information, including providing scientists the right to review
and correct any official document (such as a press release or
report) that cites or references their scientific work, to
ensure that accuracy has been maintained after the clearance
and editing process.
Criteria Four: NOAA employees and supervisors should report suspected
cases of scientific or research misconduct.
NOAA's Scientific Integrity Policy requires that NOAA employees and
supervisors report suspected scientific misconduct:
Section 6.01(d). All NOAA employees and contractors should:
Immediately report any observed, suspected, or apparent
Scientific and Research Misconduct through means established in
Section 8 and the Procedural Handbook for this Order.
Section 7.05. NOAA science managers and supervisors will
immediately report suspected cases of scientific or research
misconduct through means established under Section 8 and the
Procedural Handbook for this Order.
Criteria Five: Any Official Communication intended for the media must
be submitted in a timely manner before the communication occurs
to the head of the operating unit or Secretarial office, or
their designee(s), and to the Appropriate Public Affairs Office
(as defined in Section 8.05) for approval.
Commerce's Public Communication Policy clearly lays out the
Department's approval process for Official Communication materials
intended for the media. The head of the operating unit and the Public
Affairs Office must sign off on Official Communication materials prior
to their public release.
Section 8.01. Approval. For any Official Communication intended
for the media (e.g., news releases, interviews/news
conferences), all written and audiovisual materials that are,
or are prepared or received in connection with, the Official
Communication must be submitted in a timely manner before the
communication occurs to the head of the operating unit or
Secretarial office, or their designee(s), and to the
Appropriate Public Affairs Office (as defined in Section 8.05)
for approval in a timely manner. The Appropriate Public Affairs
Office will be responsible for coordinating the finalization of
the communication with the originating offices, including
pertinent staff. Unless otherwise authorized by the Appropriate
Public Affairs Office, all Official Communications with the
media will be on-the-record (i.e., attributable to the person
making the remarks or providing information or materials).
6.2 Adjudication Standards
The Panel followed the procedures and processes provided by the
Scientific Integrity Policy's accompanying Procedural Handbook to
conduct this assessment. The Procedural Handbook identifies two
categories of potential violation of the Scientific Integrity Policy:
(i) scientific misconduct and (2) loss of scientific integrity.
Section 8.01 of NOAA's Scientific Integrity Policy defines
scientific misconduct:
Section 8.01. Scientific and Research Misconduct is defined as
fabrication, falsification, or plagiarism in proposing,
performing, or reviewing scientific and research activities, or
in the products or reporting of these activities. Scientific
and Research Misconduct specifically includes:
intentional circumvention of the integrity of the science
and research process by violation of NOAA's Code of Ethics for
Science Supervision and Management; and
actions that compromise the scientific process by violating
NOAA's Code of Scientific Conduct.
Scientific and Research Misconduct does not include honest
error or differences of opinion.
The adjudication standards for scientific misconduct are set forth
in Section 2.01 of the Procedural Handbook. The evidence required to
support findings of scientific misconduct are:
Significant departure from accepted practices of the
relevant research community and violated the NOAA Code of
Scientific Conduct or Code of Ethics for Science Supervision
and Management set forth in NAO 202-735D;
Commit misconduct intentionally, knowingly, or in reckless
disregard of the Code of Scientific Conduct or Code of Ethics
for Science Supervision and Management in NAO 202-735D;
The allegation is supported by a preponderance of evidence.
The Procedural Handbook does not include explicit criteria to
determine a loss of scientific integrity and only provides limited
guidance:
Section 2.03. Coercive manipulation, intimidation,
misrepresentation, censorship, or other misconduct that affects
the quality or reliability of scientific information may
involve the loss of scientific integrity,
Section 2.04. In the event the NOAA SIO and/or DO determines by
a preponderance of the evidence that a loss of scientific
integrity has taken place, but o misconduct is evident, the
NOAA SIO and/or DO will propose and ensure appropriate action
is taken to restore NOAA's scientific integrity.
6.3. Findings and Recommendations
Having conducted its analysis, the Panel selected three key
allegations for deliberation. The Panel notes that certain allegations
submitted for review were either subsumed by one of the three selected
or did not rise to the level of an actual violation. The table
following the copies of allegations in Appendix E provides a summary of
the rationale for selection of the allegations under review. For each,
the report provides the supporting facts, analysis, findings, and
recommendations. The attendant facts were drawn from the team's review
of prior testimonies, supplemental interviews, and a review of
documents listed in Appendix H.
In considering the allegations, the Panel recognizes that the
September 6 Statement and the September 1 Birmingham Tweet discussed
herein are inextricably linked. The September 6 Statement directly
addressed the September 1 Birmingham Tweet and the underlying science.
Second, the Panel considered both the content and process by which the
September 6 Statement was developed and released. The Panel
acknowledges the unique nature of the circumstances surrounding the
September 6 Statement, including the extensive involvement of the
media. Finally, it is the reasoned opinion of the Panel, that in the
aggregate, the evidence gathered in this inquiry is appropriate and
sufficient to provide a reasonable basis for the findings and
conclusions contained herein.
Allegation One: NOAA Media Guidance limited the ability of scientists
to communicate with the media and the public about their
research findings.
Media guidance issued by NOAA leadership between September 1 and 6,
2019, limited the ability of scientists to communicate with the media
and the public about their research findings. Policies allegedly
violated include Section 4.05, Section 4.06, Section 5.02 (a), (d), and
(k) of NOAA's Scientific Integrity Policy; and Section 4.01 of
Commerce's Public Communication Policy.
Conditions Observed
Between September 1 and 6, 2019, NOAA Office of Communications sent
out various e-mails to National Weather Service (NWS) leadership, the
NWS Public Affairs team, and Communications staff directing NWS offices
and staff to route any media request to NOAA Office of Communications
and not to respond to any questions via media and social media either
officially or through personal Twitter accounts. NWS issued several
media guidance communications instructing staff to stick with official
forecasts and direct media inquiries to NOAA Office of Communications.
Table 6-1 below summarizes the media instructions from NOAA
Communications and NWS.
Table 6-1 Media Guidance (September 1, 2019-September 6, 2019)
Times Shown in Eastern Time Zone (ET)
------------------------------------------------------------------------
------------------------------------------------------------------------
E-mails from NOAA September 1, 2019, 3:00 p.m. Chris Vaccaro, Senior
Communications Media Relations Specialist, sent an e-mail to the
NWS Public Affairs team and communication staff--
``all media inquiries about the President's tweet
and the Birmingham tweet should be directed to me
and Julie Roberts.''
---------------------------------------------------
September 1, 2019, 3:06 p.m. Julie Roberts, Deputy
Chief of Staff, sends an e-mail to the NWS Public
Affairs team and communication staff--``please
ask all NWS offices to consult with us before
responding to any social media inquiries.''
---------------------------------------------------
September 4, 2019, 2:42 p.m. Julie Roberts e-mails
George Jungbluth (NWS Chief of Staff)--``we are
handling the situation there should be no action
taken by anyone within the National Weather
Service or the National Hurricane Center.''
---------------------------------------------------
September 4, 2019, 2:44 p.m. Julie Roberts e-mails
George Jungbluth, Jeremy Andrucyk (NWS Director
of Communications), Mary Erickson (NWS Deputy
Director), and Dr. Louis Uccellini (NWS
Director)--``Please ask NWS Social Media not to
respond to the messages going out. Any media
inquiries to NWS should be directed to Chris to
handle.''
---------------------------------------------------
September 5, 2019, 5:36 p.m. Chris Vaccaro sends
an e-mail to George Jungbluth; Susan Buchanan
(NWS Public Affairs Officer); and Jeremy
Andrucyk, asking NSW to resend the September 4
media guidance. Vaccaro also states in the e-mail
that forecasters should not communicate with
media via their personal Twitter accounts.
---------------------------------------------------
September 6, 2019, 4:52 p.m. Chris Vaccaro sends
out an e-mail to NOAA personnel informing them
that the statement has been distributed and that
inquiries ``should solely be directed to'' the
NOAA Office of Communications line. E-mail gets
forwarded around between NOAA staff.
------------------------------------------------------------------------
E-mails from NWS September 1, 2019, 4:49 p.m. Andrew Stern
Operations Center (Operations Center Manager, NWS) sends out an e-
mail to the NWS Operations Center to inform all
Regional Operation Centers (ROC) and Weather
Forecast Offices to ``only stick with official
NHC forecasts if questions arise from some
national level social media posts this afternoon.
Staff should not provide any opinion about the
national level post and should direct any
questions that cannot be satisfied to NOAA Public
Affairs.''
---------------------------------------------------
September 4, 2019, 9:41 p.m. NWS Operations Center
sends out a media guidance to all ROCs and
National Centers asking that they do not respond
via social media, or other, to any questions
related to the tweets.
---------------------------------------------------
September 5, 2019, 7:48 p.m. George Jungbluth sent
an e-mail asking all media questions to be
forwarded to NOAA Communications.
------------------------------------------------------------------------
Criteria
The NOAA Scientific Integrity Policy and Commerce Public
Communication Policy affords scientists the right to freely communicate
their scientific opinions with the media in Section 4.05, Section 4.06,
and Section 5.02 (a), (d), and (k) of NOAA's Scientific Integrity
Policy and Section 4.01 of Commerce's Public Communication Policy.
Analysis
As presented above, NOAA and NWS leadership issued multiple media
instructions between September 1 and 6, 2019. Some Complainants
perceived the media guidance as restricting the ability of WFO
meteorologists to communicate with the media and the public about their
research findings.\34\ They allege that the media guidance violated
Section 4.05, Section 4.06, and Section 5.02 (a), (d), and (k) of
NOAA's Scientific Integrity Policy; Supporting this position, Chris
Darden noted in the interview that he felt he was not at liberty to
speak to the press--''we certainly felt pressure not to say anything.''
\35\
---------------------------------------------------------------------------
\34\ Jane Lubchenco, Richard Spinrad, and Andrew Rosenberg,
``Allegation 2019-008,'' September 9, 2019; Craig N. McLean,
``Allegation 2019-007,'' September 10, 2019.
\35\ Chris Darden; ``Interview of Chris Darden,'' interview by NOAA
General Counsel, October 21, 2019: Page 157, Line 13.
---------------------------------------------------------------------------
In contrast, staff from NOAA's Office of Communications explained
that the purpose of the media instructions was to shield NOAA forecast
offices and forecasters from aggressive media reporters--not to prevent
scientists from discussing their research with the media.\36\ Further,
as Hurricane Dorian was still active during this period, NOAA senior
management felt it was critical for the affected scientists to focus on
their work and avoid the press.
---------------------------------------------------------------------------
\36\ Julie Kay Roberts, ``Interview of Julie Roberts,'' interview
by NOAA General Counsel, October 11, 2019; Chris Vaccaro, ``Interview
of Chris Vaccaro,'' interview by Academy Team, January 17, 2020.
---------------------------------------------------------------------------
For example, an e-mail from Chris Vaccaro (Senior Media Relations
Specialist, NOAA Office of Communications) to NWS leadership instructed
forecasters not to engage with the media on their personal Twitter
accounts,'' In light of today's additional tweets, can this message be
resent as a reminder? Additionally, I hear that reporters may be
contacting forecasters on their personal Twitter accounts and they
should not engage.'' \37\
---------------------------------------------------------------------------
\37\ Julie Kay Robert, ``Interview of Julie Kay Roberts,''
interview by NOAA General Counsel, October 11, 2019: Exhibit 17.
---------------------------------------------------------------------------
In separate interviews, Roberts and Vaccaro from NOAA's Office of
Communications explained that, similar to prior media instructions,
Vaccaro's e-mail was not intended to limit scientists' ability to
communicate their views on their personal social media accounts but
rather to protect NOAA employees from the social media from surrounding
the September 1 Birmingham Tweet.
In addition, several NOAA officials stated in their interviews that
it is the agency's standard operating procedure to issue this type of
media guidance in controversial situations or if there is a high level
of media inquiries.\38\ Moreover, the officials stated that it is the
responsibility of NOAA's Office of Communications to develop a
coordinated, agency-wide communication strategy in such circumstances.
---------------------------------------------------------------------------
\38\ Neil Jacobs, ``Interview of Neil Jacobs,'' interview by NOAA
General Counsel, November 6, 2019: Page 158, Lines 13-14.; Julie Kay
Roberts; ``Interview of Julie Roberts,'' interview by NOAA General
Counsel, October 11, 2019: Page 46, Line 11; Louis Uccellini,
``Interview of Louis Uccellini,'' interview by NOAA General Counsel,
November 26, 2019: Page 41-43.
---------------------------------------------------------------------------
While NOAA and NWS Communication officials maintain that issuing
media guidance is standard operating procedure, the agency does not
have formal processes in place, and it is not clear who has the final
authority to review and approve media guidance. As Vaccaro noted, the
decision to issue media guidance is typically made in consultation with
the leaders within the Office of Communications and the impacted line
office/operating branch.\39\
---------------------------------------------------------------------------
\39\ Chris Vaccaro, ``Interview of Chris Vaccaro,'' interview by
Academy Team, January 17, 2020: Page 31, Lines 19-22.
---------------------------------------------------------------------------
Findings
The Panel determined by a preponderance of the evidence on record
that the allegation that the media guidance issued by NOAA leadership
between September 1 and 6, 2019, did not constitute scientific
misconduct or a loss of scientific integrity.
The Panel recognizes that a key component of the Scientific
Integrity Policy is to ensure the free flow of scientific information
and for scientists to communicate with the media and the public about
their research findings. Conversely, in times of an emergency, it is
important to develop a coordinated, effective communication approach
with the press and public at large.
Recommendations
The Panel proposes the following recommendations for the
Determining Officer to consider to safeguard against future violations
of scientific integrity:
Develop formal policy guidelines for the issuance of media
guidance to NOAA staff. Specifically, these guidelines should
clarify roles and responsibilities, institutionalize the
process, and identify the circumstances under which the agency
should issue media guidance.
Develop an interagency framework (that includes other
Federal agencies and the White House) for the sharing of
scientific data and materials concerning severe weather related
events. The framework would include protocols for the timely
update of information to reflect changing weather conditions
and the release of the information to the general public.
Allegation Two: Contrary to the NOAA Scientific Integrity Policy,
forecasters in the Birmingham office were not permitted to
review the draft September 6 Statement prior to its release.
NWS Birmingham WFO forecasters were not provided the opportunity to
review and opine on the September 6 Statement that referenced the
September 1 Birmingham Tweet and underlying scientific activity. The
policy allegedly violated is Section 7.01 of NOAA's Scientific
Integrity Policy.
Conditions Observed
As discussed below in Allegation 3, senior Commerce officials
largely directed the drafting of the September 6 Statement. In
addition, two senior NOAA political appointees were involved in the
development of September 6 Statement: Dr. Neil Jacobs (NOAA Acting
Administrator) and Julie Roberts (Deputy Chief of Staff and Director of
Communications). Two NOAA senior career officials, Chris Vaccaro
(Senior Communication Specialist) and Scott Smullen (Deputy Director of
Communications), reviewed an early draft of the statement and offered
their comments. However, they left the meeting before the statement was
finalized,\40\
---------------------------------------------------------------------------
\40\ Julie Kay Roberts, ``Interview of Julie Roberts,'' interview
by NOM General Counsel, October 11, 2019: Page 98, Line 1-17; Chris
Vaccaro, ``Interview of Chris Vaccaro,'' interview by Academy Team,
January 17, 2020: Page 58-64.
---------------------------------------------------------------------------
Shortly before the release of the statement, Jacobs and Roberts
contacted other NOAA officials, including Benjamin Friedman (NOAA
Deputy Under Secretary for Operations), Dr. Louis Uccellini, Stuart
Levenbach (NOAA Chief of Staff), and Taylor Jordan (Senior Policy
Advisor) to inform them of the statement. These officials were not
provided the opportunity to provide substantive input in the drafting
of the draft statement.\41\
---------------------------------------------------------------------------
\41\ Neil Jacobs, ``Interview of Neil Jacobs,'' interview by NOAA
General Counsel, November 6, 2019: Page 160, Line 12-15; Julie Kay
Roberts, ``Interview of Julie Roberts,'' interview by NOAA General
Counsel, October 11, 2019: Page 109, Line 4-7.
---------------------------------------------------------------------------
Dr. Louis Uccellini and several other NWS officials contacted Chris
Darden (Meteorologist-in-Charge, NWS Birmingham Office) to advise him
that the statement would be released. However, according to Darden, by
the time he actually read the statement, it had already been
released.\42\ As such, the forecasters in the Birmingham office were
not afforded an opportunity to review the September 6 Statement before
it went out.
---------------------------------------------------------------------------
\42\ Chris Darden, ``Interview of Chris Darden,'' interview by NOAA
General Counsel, October 21, 2019: Page 162, Line 21-23.
---------------------------------------------------------------------------
Criteria
The NOAA Scientific Integrity Policy provides scientists the right
to review and correct any official document that cites or references
their scientific work to ensure the accuracy of the information.
Section 7.01 of NOAA's Scientific Integrity Policy states:
Appropriate rules and procedures are in place and implemented
to preserve the integrity of the scientific process and the
dissemination of its scientific products and information,
including providing scientists the right to review and correct
any official document (such as a press release or report) that
cites or references their scientific work, to ensure that
accuracy has been maintained after the clearance and editing
process.\43\
---------------------------------------------------------------------------
\43\ National Oceanic and Atmospheric Administration, ``NOAA
Administrative Order 202-735D: Scientific Integrity,'' December 7,
2011: Section 7.01.
---------------------------------------------------------------------------
Analysis
NOAA's Scientific Integrity Policy defines a ``scientific product''
as the ``presentation of the results of scientific activities including
the analysis, synthesis, compilation, or translation of scientific
information and data into formats for the use of NOAA, the Department
of Commerce, or the Nation.'' \44\ According to this definition, the
September 1 Birmingham Tweet is a scientific product, as it reflects
the forecasters' professional judgment and is based on the results of
the forecasters' scientific activities. Further, as discussed above,
Section 7.01 of NOAA's Scientific Integrity Policy provides scientists
the right to review and correct any official document that cites or
references their scientific work to ensure the accuracy of the
information.
---------------------------------------------------------------------------
\44\ NOAA, Section 3, Definition of Scientific Product.
---------------------------------------------------------------------------
As the September 6 Statement references and criticizes the
September 1 Birmingham Tweet, a draft of the statement should have been
provided to the Birmingham office for review and comment prior to its
release.
In contrast with this requirement, the Birmingham office was not
afforded the opportunity to review the draft September 6 Statement. By
the time Jacobs and Roberts communicated with other NOAA and NWS senior
officials and Uccellini had been in contact with Darden, the draft
statement was already in its finished form. According to Uccellini, the
purpose of the phone call with Chris Darden was not to solicit his
feedback, but rather to give him notice that the statement would be
released shortly.\45\
---------------------------------------------------------------------------
\45\ Louis Uccellini, ``Interview of Louis Uccellini,'' interview
by NOAA General Counsel, November 26, 2019: Page 108, Line 3-12.
---------------------------------------------------------------------------
Certain interviewees explained that while the September 6 Statement
was released by NOAA Communications, it was not a true NOAA Official
Communication as the drafting of the statement did not follow NOAA's
standard press release development process and protocols.\46\ Further,
senior Commerce officials took the lead in the development and release
of the statement. Roberts stated in her first interview that, under the
circumstances, there was no practical opportunity to engage the
Birmingham office in the development of the statement and Roberts felt
that even if she had raised the issue with Commerce officials, it would
not have made any difference.\47\ Jacobs also stated in his interview
that ``feedback probably wasn't going to make a whole lot of
difference.'' \48\
---------------------------------------------------------------------------
\46\ Julie Roberts, ``Interview of Julie Roberts,'' interview by
NOAA General Counsel, October 11, 2019; Chris Vaccaro, ``Interview of
Chris Vaccaro,'' interview by Academy Team, January 17, 2020.
\47\ Julie Roberts, ``Interview of Julie Roberts,'' interview by
NOAA General Counsel, October 11, 2019.
\48\ Neil Jacobs, ``Interview of Neil Jacobs,'' interview by NOAA
General Counsel, November 6, 2019: Page 162, Line 13.
---------------------------------------------------------------------------
The September 6 Statement was issued as a NOAA Official
Communication and distributed through NOAA's system and as a result,
NOAA's relevant polices and procedural requirements are applicable.
According to Section 8.01 of Commerce's Public Communication Policy,
the head of the operating unit and the Public Affairs office have the
authority to approve and issue Official Communication materials and
therefore are responsible for ensuring compliance with NOAA's
procedural requirements.
The Panel recognizes that the September 6 Statement is different
from a normal NOAA press release but nonetheless concludes that it is
an Official Communication. Consequently, as the NOAA Acting
Administrator and the Director of NOAA Communications,\49\ Jacobs and
Roberts had a responsibility to ensure that NOAA's Scientific Integrity
Policy and other procedural requirements were followed. This did not
happen during the meeting with Commerce officials or at other critical
points on September 6.
---------------------------------------------------------------------------
\49\ NOAA does not have an Office of Public Affairs. NOAA
Communications serves as the agency's Office of Public Affairs. Julie
Roberts' title was Deputy Chief of Staff, but she also served as the
Director of Communications.
---------------------------------------------------------------------------
Additionally, Jacobs stated in his interview with NOAA General
Counsel that his interpretation of the Scientific Integrity Policy is
that a NOAA press release should be reviewed by scientists, but not
necessarily he scientist who was involved in the original research.
Jacobs said he reviewed the draft statement and that in his opinion as
a trained scientist, the September 6 Statement was technically
accurate.\50\ However, section 7.01 of the Scientific Integrity Policy
requires that the scientists who actually produced the scientific work
have the opportunity to offer comments.
---------------------------------------------------------------------------
\50\ Neil Jacobs, ``Interview of Neil Jacobs,'' interview by NOAA
General Counsel, November 6, 2019: Page 162.
---------------------------------------------------------------------------
Moreover, Section 7.01 of the Scientific Integrity Policy requires
that NOAA science managers and supervisors ensure appropriate rules and
procedures are in place to provide scientists the opportunity to review
and comment on the agency's official documents. Some interviewees
stated that NOAA scientists are normally involved in the development of
the agency's communication materials.\51\ However, the Panel learned
that NOAA lacks formal procedures to ensure compliance with Section
7.01 of the Scientific Integrity Policy.
---------------------------------------------------------------------------
\51\ Julie Roberts, ``Interview of Julie Roberts,'' interview by
NOAA General Counsel, October 11, 2019; Chris Vaccaro, ``Interview of
Chris Vaccaro,'' interview by Academy Team, January 17, 2020.
---------------------------------------------------------------------------
Findings
The Panel determined by a preponderance of the evidence on the
record that Dr. Nell Jacobs and Julie Roberts violated the Code of
Ethics for Science Supervision and Management, set forth in Section
7.01 of NOAA's Scientific Integrity Policy, when they failed to engage
the Birmingham office in the development of the September 6 Statement.
Further, the Panel finds that they engaged in the misconduct
intentionally, knowingly, or in reckless disregard of the Code of
Scientific Conduct or Code of Ethics for Science Supervision and
Management in NOAA's Scientific Integrity Policy.
Recommendations
The Panel proposes the following recommendations for the
Determining Officer to consider to safeguard against future violations
of scientific integrity:
Develop a written policy statement on the right of NOAA
scientists to review, comment, and amend any Official
Communication that relies on their scientific analysis. This
statement will complement NOAA's Scientific Integrity Policy.
Revise NOAA's Scientific Integrity Policy's accompanying
Procedural Handbook to include criteria and supporting examples
to assist with the determination of scientific misconduct and a
loss of scientific integrity. For example, NOAA could cite this
case as an example of a violation of NOAA's Scientific
Integrity Policy and scientific misconduct with regards to
several criteria.
Allegation Three: The drafting and release of the September 6 Statement
was driven by external political pressure.
The drafting and release of the September 6 Statement was driven by
external political pressure from Commerce senior leaders. Further, the
September 6 Statement inappropriately criticized Birmingham's September
1 Tweet and underlying scientific activity and compromised NOAA's
reputation as an independent scientific agency. These actions violated
Section 7.02 of NOAA's Scientific Integrity Policy.
Conditions Observed
The drafting and release of the September 6 Statement did not
follow standard NOAA policies and procedures. Although NOAA policies
call for NOAA scientists and Communications officials to work
collaboratively on an Official Communication, senior Commerce officials
largely directed the drafting of the September 6 Statement.\52\
---------------------------------------------------------------------------
\52\ Neil Jacobs, ``Interview of Neil Jacobs,'' interview by NOAA
General Counsel, November 6, 2019: Page 104, Lines 17-22; Julie
Roberts, ``Interview of Julie Roberts,'' interview by Academy Team,
January 23, 2020: Page 36, Lines 10-12; Chris Vaccaro, ``Interview of
Chris Vaccaro,'' interview by Academy Team, January 17, 2020: Page 76,
Lines 12-18.
---------------------------------------------------------------------------
On the morning of September 6, senior Commerce officials convened a
meeting to develop the public statement. The meeting took place in a
conference room of the Commerce office building. Commerce officials
(and their titles at the time of the events in question) who
participated in all or a portion of this meeting include:
David Dewhirst, Deputy General Counsel;
Kevin Manning, Press Secretary and Deputy Director of Public
Affairs;
Joe Semsar, Chief of Staff for Deputy Secretary Karen Dunn
Kelley;
Deputy Secretary Karen Dunn Kelley; and
Cordell Hull, Deputy General Counsel and also performing the
duties of Assistant Secretary for Legislative and
Intergovernmental Affairs.
Four NOAA officials, including Dr. Neil Jacobs, Julie Roberts,
Chris Vaccaro, and Scott Smullen, were involved in the preparation of
the September 6 Statement, Vaccaro and Smullen reviewed an early draft
version of the statement and offered comments but did not participate
in other parts of the discussion.
Jacobs and Roberts joined the meeting around 8:30 a.m. Eastern Time
Zone. At that point, the draft statement had already been drafted on
Dewhirst's tablet and was subsequently read to everyone in the room.
Jacobs and Roberts said in their interviews that they participated in
the discussion on the technical aspect of the statement to ensure it
was scientifically accurate.\53\
---------------------------------------------------------------------------
\53\ Neil Jacobs, ``Interview of Neil Jacobs,'' interview by NOAA
General Counsel, November 6, 2019: Page 122; Julie Roberts, ``Interview
of Julie Roberts,'' interview by NOAA General Counsel, October 11,
2019: Page 99.
---------------------------------------------------------------------------
According to several interviews,\54\ there was a discussion about
the draft statement's criticism of the Birmingham WFO. NOAA officials
(Jacobs, Roberts, Vaccaro, and Smullen) proposed to remove the
reference to the Birmingham office from the statement, but this
suggestion was rejected by Commerce officials. At some point, other
Commerce officials joined the discussion by phone.\55\ Jacobs and
Roberts raised the concern about the Birmingham reference again, but
were told that the Birmingham reference needed to stay in.
---------------------------------------------------------------------------
\54\ Neil Jacobs, ``Interview of Neil Jacobs,'' interview by NOAA
General Counsel, November 6, 2019: Page 106, Line 7; Julie Roberts,
``Interview of Julie Roberts,'' interview by NOAA General Counsel,
October 11, 2019: Page 98, Line 10; Chris Vaccaro, ``Interview of Chris
Vaccaro,'' interview by Academy Team, January 17, 2020: Page 46, Lines
10-15.
\55\ Neil Jacobs, ``Interview of Neil Jacobs,'' interview by NOAA
General Counsel, November 6, 2019; Julie Roberts, ``Interview of Julie
Roberts,'' interview by NOAA General Counsel, October 11, 2019.
---------------------------------------------------------------------------
Dewhirst sent the draft statement to Mike Walsh at 3:11 p.m.
Eastern Time Zone and forwarded the statement to Julie Roberts at 3:43
p.m. Eastern Time Zone.\56\
---------------------------------------------------------------------------
\56\ Neil Jacobs, ``Interview of Neil Jacobs,'' interview by NOAA
General Counsel, November 6, 2019: Page 180; Julie Roberts, ``Interview
of Julie Roberts,'' interview by NOAA General Counsel, October 11,
2019: Page 104.
---------------------------------------------------------------------------
Roberts, Smullen, and Vaccaro discussed how to release the
statement.\57\ Roberts noted that there was a request from Commerce to
not only distribute the statement through the NOAA media distribution
system, Meltwater, but also post it on NOAA website.\58\ NOAA
Communications released the statement at 4:52 p.m. Eastern Time Zone:
---------------------------------------------------------------------------
\57\ Julie Roberts, ``Interview of Julie Roberts,'' interview by
NOAA General Counsel, October 11, 2019: Page 104, Lines 12-19.
\58\ Roberts, Page 111, Lines 7-11.
From Wednesday, August 28, through Monday, September 2, the
information provided by NOAA and the National Hurricane Center
to President Trump and the wider public demonstrated that
tropical-storm-force winds from Hurricane Dorian could impact
Alabama. This is clearly demonstrated in Hurricane Advisories
---------------------------------------------------------------------------
#15 through #41, which can be viewed at the following link.
The Birmingham National Weather Service's Sunday morning tweet
spoke in absolute terms that were inconsistent with
probabilities from the best forecast products available at the
time.
NOAA Communications posted the statement to the agency's website
and through Twitter.
The second paragraph of the above statement is widely viewed by
NOAA officials and scientific staff as a criticism of the September 1
Birmingham Tweet and underlying scientific activity. For example, Dr.
Louis Uccellini stated that the September 6 Statement criticizes the
Birmingham office publicly when forecasters had done their job
according to all scientific and operational standards.\59\ Chris
Darden, Meteorologist-in-Charge, Birmingham office, said that the
impact of the September 6 Statement on his staff was harsh--``when they
feel like they're basically being told they don't know how to do their
job or they can't do a job, and that's how they perceive this, then it
was a real kick in the gut.'' \60\
---------------------------------------------------------------------------
\59\ Louis Uccellini, ``Interview of Louis Uccellini,'' interview
by NOAA General Counsel, November 26, 2019: Page 108-109.
\60\ Chris Darden, ``Interview of Chris Darden,'' interview by NOAA
General Counsel, October 21, 2019: Page 166, Lines 19-23.
---------------------------------------------------------------------------
Criteria
The principal intent of the Scientific Integrity Policy is to
remove politics from, scientific research and prevent the intentional
or unintentional suppression of scientific findings and conclusions:
Section 7.02 of NOAA's Scientific Integrity Policy states:
All individuals identified in Section 2.02 of this Order must
not:
Suppress, alter, or otherwise impede the timely release of
scientific or technological findings or conclusions, unless
explicitly required by a Department or government-wide statute,
regulation, Executive Order, Presidential Memorandum, or other
legal authority.
Intimidate or coerce employees contractors, recipients of
financial assistance awards, or others to alter or censor
scientific findings.
Implement institutional barriers to cooperation and the
timely communication of scientific findings or technology.
Further, the Office of Science and Technology Policy (OSTP) Memo
enquires that agencies develop policies to:
Ensure a culture of scientific integrity. Scientific progress
depends upon honest investigation, open discussion, refined
understanding, and a firm commitment to evidence. Science, and
public trust in science, thrives in an environment that shields
scientific data and analyses from inappropriate political
influence; political officials should not suppress or alter
scientific or technological findings.\61\
---------------------------------------------------------------------------
\61\ John P. Holden, ``Memorandum to the Heads of Executive
Departments and Agencies, Subject: Scientific Integrity,'' December 17,
2019.
---------------------------------------------------------------------------
Analysis
Section 7.02 of the NOAA's Scientific Integrity Policy prohibits
NOAA employees, including political officials, from suppressing or
altering scientific findings. As discussed below, the development and
release of the September 6 Statement violated NOM's scientific
integrity and reputation as an independent scientific agency in several
respects.
First, the development and release of the September 6 Statement did
not follow NOAA's normal process and appear to be the result of strong
external pressure. Second, the criticism of the Birmingham office in
the September 6 Statement is not consistent with the intent and
requirements of the NOAA Scientific Integrity Policy. This could result
in a chilling effect on other NOAA staff who might be reluctant to
share their scientific opinions in the future to avoid similar
criticism.
The development of the September 6 Statement did not follow NOAA's
normal process.
Under normal conditions, a weather-related statement would be
drafted by NWS. The head of NWS and his/her senior staff would be
involved in reviewing the statement. If there were a contentious issue,
all of the discussions would take place at the line office level first.
NWS would then send the draft statement to NOAA Communications and NOAA
leadership for review.\62\ In this case, four NOAA officials reviewed
the draft September 6 Statement and offered comments before its
release, but none of the NOAA/NWS senior career officials or
forecasters played a meaningful role in the development of the
September 6 Statement.
---------------------------------------------------------------------------
\62\ Craig McLean, ``Interview of Craig McLean,'' interview by
Academy Team, January 23, 2020: Page 16; Julie Kay Roberts, ``Interview
of Julie Roberts,'' interview by Academy Team, January 23, 2020: Page
22.
---------------------------------------------------------------------------
The September 6 Statement appears to be the result of strong external
pressure.
The direction to develop and release the September 6 Statement came
from Commerce officials. Jacobs said in his first interview that ``I
think Dewhirst and other DOC folks had probably also spoken to him
[Walsh] earlier in the morning . . . it was pretty clear that, you
know, they were given instructions to not just fix the problems, but do
it with some type of statement.'' \63\ During the meeting on September
6, Commerce officials took the lead in developing the statement. The
draft statement was reviewed and approved by Commerce officials before
its release. The September 6 Statement was issued as a NOAA public
statement and attributed to a NOAA spokesperson. As Jacobs said, NOAA
officials thought it was not a good idea to put out this statement, and
``no one wanted to own it for obvious reasons.'' \64\
---------------------------------------------------------------------------
\63\ Neil Jacobs, ``Interview of Neil Jacobs,'' interview by NOAA
General Counsel, November 6, 2019: Page 104, Lines 17-22.
\64\ Jacobs, Page 124.
---------------------------------------------------------------------------
Jacobs said that, during the process, no one told him directly,
``do this or you will get fired.'' \65\ However, as Jacobs noted in the
interview, given ``the amount of panic and concern, and getting called
at 3 in the morning, it was pretty well implied that this was something
that was a fireable offense if you disobeyed;'' \66\ Indeed, Jacobs'
perception was that all the political staff at the meeting thought
their jobs were in jeopardy.\67\
---------------------------------------------------------------------------
\65\ Jacobs, Page 100.
\66\ Jacobs, Page 100-101.
\67\ Jacobs, Page 168, Lines 4-6.
---------------------------------------------------------------------------
Several NOAA officials, such as Benjamin Friedman and Craig McLean,
mentioned that they talked to Jacobs subsequent to the release of the
September 6 Statement, and Jacobs sounded very depressed and appeared
to be under great stress.\68\ Roberts spoke with Mike Walsh, Commerce
Chief of Staff, on the phone on September 6 around 2:30 a.m. Walsh told
Roberts, ``There are jobs on the line. It could be the forecast office
or it could be somebody higher than that and that's less palatable to
me.'' \69\ Roberts said she did not think her job was on the line and
felt that the forecasters in the Birmingham office or Dr. Neil Jacobs
could lose their jobs.
---------------------------------------------------------------------------
\68\ Friedman, Benjamin, ``Interview of Benjamin Friedman,''
interview by NOAA General Counsel, October 24, 2019: Page 58; Craig
McLean, ``Interview of Craig McLean,'' interview by Academy Team,
January 23, 2020: Page 61.
\69\ Julie Roberts, ``Interview of Julie Roberts,'' interview by
NOAA General Counsel, October 11, 2019: Page 70.
---------------------------------------------------------------------------
The criticism of the Birmingham office in the September 6 Statement is
not consistent with the intent and requirements of the NOAA
Scientific Integrity Policy.
The September 6 Statement's criticism of the September 1 Birmingham
Tweet's use of absolute terms was inappropriate and inconsistent with
the NOAA Scientific Integrity Policy for several reasons. First, the
use of absolute terms in communicating weather-related risks to the
general public is commonly used by meteorologists across the country. A
review of various WFOs' tweets show that it is common to incorporate
absolute terms in messages to the public. Appendix G shows examples of
these messages.
Second, the use of absolute terms is viewed as an effective tool to
communicate weather related risk--or the lack thereof--on social media.
As NOAA meteorologists posit, a key challenge for forecasters during a
severe weather event is to convert the public's perception of safety
(optimism bias) to a perception of risk and to induce them to take
appropriate measures.\70\ Conversely, a scientifically accurate weather
forecast using risk probabilities and scenario analysis may not be very
useful to the general public who do not understand probabilities,\71\
Indeed, a 2016 study on how forecast and warning messages are perceived
by the general public highlights the importance of separating the
technical details from the actions that must be taken to protect as
individual citizens are not concerned about hurricanes in a scientific
sense.\72\
---------------------------------------------------------------------------
\70\ National Oceanic and Atmospheric Administration, National
Weather Service Office of the Chief Learning Officer. ``Radar &
Applications Course, Storm-Based Warning Fundamentals, Lesson 12:
Impact Based Warnings: Overview,'' 2017.
\71\ World Meteorological Organization, ``Guidelines on
Communicating Forecast Uncertainty,'' WMO/TD No. 1422, 2008.
\72\ Julie L. Demuth et al., ``Creation and Communication of
Hurricane Risk Information,'' Bulletin of the American Meteorological
Society 93, no. 8 (2012): 1133-1145.
---------------------------------------------------------------------------
The National Weather Service states that its primary mission is to
protect lives and property through the timely issuance of watches and
warnings when there are hazardous weather conditions.\73\ Accordingly,
the purpose of the September 1 Birmingham Tweet was to communicate the
risks related to the hurricane to the public so the message should be
phrased in ways that allow the general public to quickly understand
it.\74\ An analysis of public hurricane evacuation decisions and
responses to forecast and warning messages conducted by scientists from
the National Center for Atmospheric Research in 2016 also found that
when issuing safety messages, NWS uses strong, personalized language in
order to get people to follow the instructions of the message,\75\
---------------------------------------------------------------------------
\73\ National Oceanic and Atmospheric Administration, National
Weather Service, ``2019-2022 Strategic Plan,'' 2018.
\74\ Chris Darden, ``Interview of Chris Darden,'' interview by NOAA
General Counsel October 21, 2019: Page 144-145.
\75\ Rebecca E. Morss et al., ``Understanding public hurricane
evacuation decisions and responses to forecast and warning messages,''
Weather and Forecasting 31, no. 2 (2016): 395-417.
---------------------------------------------------------------------------
In a prior interview, Dr. Neil Jacobs commented that NWS is still
in the learning stage and has engaged social scientists to figure out
the most effective approach to communicating risk probability to the
general public.\76\ Supporting the benefit of engaging social
scientists to assist with risk communication, the American
Meteorological Society (AMS) posits that there is a ``clear and
compelling need to enhance the utility of weather and climate research
and the dissemination of atmospheric information using knowledge from
the social sciences about how individuals and society interact with
weather and climate.'' \77\
---------------------------------------------------------------------------
\76\ Neil Jacobs, ``Interview of Neil Jacobs,'' interview by NOAA
General Counsel, November 6, 2019: Page 129, Line 10.
\77\ American Meteorological Society, ``Strengthening Social
Sciences in Weather--Climate Enterprise: Professional Guidance
Statement,'' February 2, 2014.
---------------------------------------------------------------------------
Third, if a forecast office were to issue an inappropriate or
inaccurate forecast, it would not be the agency's typical correction
process to issue a public statement. Jacobs stated that when the
wording of a forecast is not appropriate, NWS leaders or someone from
the regional headquarters will send out an e-mail to forecasters.\78\
McLean said that a forecast office will immediately issue a correction
if there is an inaccurate forecast or a local misunderstanding. NOAA
and NWS would not issue an agency-level public statement to correct an
inappropriate weather forecast and criticize a forecast office.\79\
---------------------------------------------------------------------------
\78\ Neil Jacobs, ``Interview of Neil Jacobs,'' interview by NOAA
General Counsel, November 6, 2019: Page 114, Lines 21-22; Page 115,
Lines 1-3; Page 129, Lines 21-22.
\79\ Jacobs, Page 115, Lines 5-7.
---------------------------------------------------------------------------
Finally; the criticism of the Birmingham office could potentially
have a chilling effect on other NOAA staff who might be reluctant to
share their scientific opinions in the future to avoid similar
criticism. Several NOAA officials expressed their concerns about the
possible chilling effects of the September 6 Statement. For example,
Darden said that scientists in other forecast offices felt ``there is a
little bit of a fear of `this could happen to us' kind of thing.'' \80\
McLean said that NOAA is a resilient agency, but many people worry that
this kind of issue might happen again.\81\ Several NOAA officials
reported that they received hate e-mails from the public that included
threatening language.\82\ McLean noted, the September 6 Statement
``stirred a lot of people and stirred a lot of emotion.'' \83\
---------------------------------------------------------------------------
\80\ Chris Darden, ``Interview of Chris Darden,'' interview by NOAA
General Counsel, October 21, 2019: Page 168, Line 5.
\81\ Craig McLean, ``Interview of Craig McLean,'' interview by
Academy Team, January 23, 2020: Page 106, Lines 2-13.
\82\ Craig McLean, ``Interview of Craig McLean,'' interview by
Academy Team January 23, 2020: Page 92, Lines 1-6. Page 92, Lines 1-6.
\83\ McLean, Page 92.
---------------------------------------------------------------------------
Findings
The Panel determined by a preponderance of the evidence on the
record that the actions of Dr. Neil Jacobs and Julie Roberts involving
the development and issuance of the September 6 Statement violated the
Code of Ethics for Science Supervision and Management set forth in
Section 7 of NOAA's Scientific Integrity Policy. Further, the Panel
finds that they engaged in the misconduct intentionally, knowingly, or
in reckless disregard of the Code of Scientific Conduct or Code of
Ethics for Science Supervision and Management in NOAA's Scientific
Integrity Policy.
The Panel concludes that the development and issuance of the
September 6 Statement is not consistent with the intent and
requirements of NOAA Scientific Integrity Policy.\84\ The September 6
Statement is viewed by many NOAA/NWS scientists as an inappropriate
criticism of the Birmingham office, and the development of the
statement was not based on science but appears to be largely driven by
external influences from senior Commerce officials who drafted. the
September 6 Statement. As a result, while there was no direct
suppression or alteration of scientific findings, the September 6
Statement might suppress the willingness and ability of NOAA scientific
staff to express their scientific opinions without reservation in the
future.
---------------------------------------------------------------------------
\84\ National Oceanic and Atmospheric Administration, ``NOAA
Administrative Order 202-735D: Scientific Integrity,'' December 7,
2011: Section 7.02.
---------------------------------------------------------------------------
According to the Commerce Public Communication Policy, the head of
the operating unit and the public affairs office have the ultimate
responsibility to approve and issue press releases. For the purpose of
this analysis, the September 6 Statement was issued as an official NOAA
statement, and as the head of the agency and the Director of
Communications, Dr. Neil Jacobs and Julie Roberts should take
responsibility for the September 6 Statement.
While Jacobs and Roberts violated NOAA's Scientific Integrity
Policy, there is a contextual factor for the Determining Official to
consider. NOAA officials--Dr. Neil Jacobs and Julie Roberts--followed
the direction from Commerce officials to issue the September 6
Statement. While they expressed their objections to criticizing the
Birmingham WFO in the statement, they were overridden by Commerce
officials. While it was Jacobs' and Roberts' choice to issue the
September 6 Statement as the pertinent leaders of the agency, they
purported to believe that it was out of their hands. It is important
for the Determining Official to take into account the circumstances
under which the September 6 Statement was developed and released when
making final determinations.
Recommendations
The Panel proposes the following recommendations for the
Determining Officer to consider to safeguard against future violations
of scientific integrity:
Establish a formal intra-agency agreement to guide the
interactions between Commerce and NOAA officials in the
drafting of NOAA communications.
Establish an intra-agency policy to articulate the role of
Commerce political appointees in the communication of
scientific findings. Develop supporting procedures and identify
examples of political interference.
Incorporate key principles of scientific integrity,
including NOAA's Codes of Ethics for Science Supervision and
Management, in the agency's annual ethics training.
Require NOAA staff and NOAA political officials to take
scientific integrity training that includes the Code of Ethics
for Science Supervision and Management. Once a staff member has
completed the training, he/she will sign a statement confirming
they will abide by these principles.
Establish protocols with the Commerce OIG and/or other
agencies to investigate alleged violations of scientific
integrity involving senior NOAA and Commerce political
leadership.\85\
---------------------------------------------------------------------------
\85\ In some Federal agencies, such the Department of the Interior
(DOI), the Scientific Integrity Officer has an informal agreement with
the DOI OIG that the OIG would handle a case that involves a senior
official in DOI or one of the bureaus. The Academy Team's interview
with GAO suggests that a formal agreement between an agency and its OIG
to address scientific integrity issues would be helpful. Some agencies,
such as the Federal Aviation Administration (FAA), have contingencies
built into their policies to handle the allegations that involve high
level political officials.
---------------------------------------------------------------------------
Concluding Thoughts
Scientific integrity is the cornerstone of the public's trust in
the Nation's scientific institutions, which the Nation relies on for
accurate and honest scientific and technical information. In the ever-
changing dynamic of social media, people frequently turn to social
media platforms for life-saving information, especially in the event of
a severe weather event. The advent of social media and its ubiquity
create an immediate interactive context for all actions taken by
government that affect the public.
In this dynamic environment, public officials must gauge the
potential effects of actions and communications, including on social
media, on the public's perception and behavior. It was the concern for
public perception and public safety that motivated the September 1
Birmingham Tweet. Public servants on the frontline of communicating the
risks of storms must be able to continue to act quickly and responsibly
when warranted by the situation at hand. Future policy guidance must
reflect this dynamic and the need for local officials to act quickly
and responsibly when the need arises. Moving ahead, there needs to be a
directed effort to inform policy development through the use of the
social sciences so that public servants and government officials can
effectively convey the risk to the public so they can act accordingly.
______
Appendices
Appendix A: Panel Biographies and Study Team Members
Panel of Academy Fellows
Admiral (Ret.) Thad Allen, Panel Chair. 23rd Commandant, U.S. Coast
Guard; James S. Tyler Chair, Institute for Leadership, U.S. Coast Guard
Academy; Member and Board Director, Council on Foreign Relations;
Chair, Space Based Positioning, Navigation, and Timing Advisory Board
(NASA); Member, Homeland Security Advisory Committee; Senior Executive
Advisor at Booz Allen Hamilton, HudsonAnalytix and Fortinet; Former
Board Director, Partnership for Public Service. Former Senior Fellow,
RAND Corporation; Principal Federal Official in the responses to
Hurricanes Katrina and Rita (2005); National Incident Commander,
Deepwater Horizon Oil Spill (2010).
Dr. Kaye Husbands Fealing. Full Professor and Chair, School of
Public Policy, Georgia Institute of Technology; Senior Study Director,
Center for National Statistics, National Academy of Sciences;
Professor, Humphrey School of Public Affairs, University of Minnesota;
Program Director, Social, Behavioral and Economic Sciences, National
Science Foundation; William Brough Professor (also tenured full,
associate, assistant professor), Economics Department, Williams
College.
Dr. Shantanu Agrawal. President and CEO, National Quality Forum.
Former Deputy Administrator and Center Director, Centers for Medicare &
Medicaid Services; Managing Director, Clinical Analytics and
Efficiency, ChenMedical, LLC; Former Positions with Center for Program
Integrity (CPI), Centers for Medicare & Medicaid Services: Director,
Data Sharing and Partnership, Chief Medical Officer; Former Positions
with McKinsey & Company, Inc.: Engagement Manager, Senior Associate,
Associate.
Dr. Elizabeth Robinson. Chief Financial Officer, Air Line Pilots
Association. Former Chief Financial Officer, National Aeronautics and
Space Administration; Assistant Director for Budget, Budget Review
Division, U.S. Office of Management and Budget; Deputy Director,
Congressional Budget Office; Deputy Assistant Director for Budget
Review and Concepts, and Program Examiner for Energy Issues, U.S.
Office of Management and Budget; Staff Member, House Committee on
Science, Space and Technology, U.S. House of Representatives; Project
Director and Expert, Office of Technology Assessment, U.S. Congress;
Congressional Science Fellow, Geological Society of America; Assistant
Professor of Geophysics, Stanford University.
Study Team
Brenna Isman, Director of Academy Studies
Mark Thorum, Project Director
Chloe Yang, Senior Research Analyst
mise Johnson, Research Associate
Gillian Townsend, Research Associate
Appendix B: Chronology of Key Events
All times are in Eastern Time Zone.
------------------------------------------------------------------------
WHO WAS WHERE IS IT
DATE EVENT INVOLVED REFERENCED
------------------------------------------------------------------------
Wednesday, Susan Buchanan Susan Copies of Dr.
August 28, 2019, (NWS Director) Buchanan Louis
5:02 p.m. releases NOAA Maureen Uccellini's e-
Communications O'Leary mails relevant
media plan for Lauren to the
Hurricane Gaches investigation
Dorian Jasmine were provided
Blackwell to the Academy
Dennis by NOAA. This e-
Feltgen mail is page 60
Jeremy of that
Andrucyk document.
NWS
Executive
Council
------------------------------------------------------------------------
Thursday, Dr. Neil Jacobs Dr. Dr. Neil Jacobs'
August 29, 2019 leads a Neil Jacobs interview with
briefing on Preside NOAA General
Hurricane nt Trump Counsel: Page
Dorian at the Vice 11, Line 2.
White House. A President Pence Julie Roberts'
NOAA graphic Admiral interview with
(the one that Pete Brown NOAA General
later appears Pete Counsel: Page
altered with a Gaynor 24, Line 19.
black marker) Julie The official
is used in the Roberts (not in White House
briefing. the Oval Office press release
for tbe and photos from
briefing) the briefing
can be found
online.
------------------------------------------------------------------------
Saturday, The President Dr. Dr. Neil Jacobs'
August 31, 2019, receives a Neil Jacobs interview with
4:00 p.m. briefing on Julie NOAA General
Hurricane Roberts, Counsel: Page
Dorian via Secreta 13, Line 7.
video ry McAleenan Julie Roberts'
teleconference Pete interview with
while he is at Gaynor NOAA General
Camp David. Other Counsel: Page
FEMA leadership 31, Line 6.
Gov.
DeSantis (FL)
Gov.
Kemp (GA)
Gov.
Cooper (NC)
Gov.
McMaster (SC)
Preside
nt Trump
Jeff
Bayard
Dan
Kaniewski
Members
of National
Security
Council
Senator
Rick Scott
------------------------------------------------------------------------
Sunday, National Weather Birming Phone log of the
September 1, 2019, Service ham Weather Birmingham
8:00 a.m.-11:00 Birmingham Forecast Office Weather
a.m. Weather Forecast Office
Forecast Office was provided to
(WFO) receives the Academy
multiple phone Team by NOAA.
calls from the
public. Two of
the calls are
directly after
the President's
tweet.
------------------------------------------------------------------------
Sunday, President Trump Preside Tweet is on the
September 1, 2019, tweets that nt Trump President's
10:51 a.m. Alabama, ``will personal
most likely be Twitter account
hit (much) (@realDonaldTru
harder than mp).
anticipated.''
------------------------------------------------------------------------
Sunday, National Weather Birming Tweet is on NWS
September 1, 2019, Service ham Weather Birmingham
11:11 a.m. Birmingham WFO Forecast WFO's Twitter
tweets that ,Office account.
``Alabama will
NOT see any
impacts from
#Dorian.''
------------------------------------------------------------------------
Sunday, The President is Ken Dr. Neil Jacobs'
September 1, 2019, briefed on Graham (over interview with
12:31 p.m. Hurricane VTC) NOAA General
Dorian at FEMA Members Counsel: Page
Headquarters. of the Press 16, Line 1;
Ken Graham from Dr. Page 25, Line
the Hurricane Neil Jacobs 17.
Center leads Julie Julie Roberts'
the briefing. Roberts interview with
Preside NOAA General
nt Trump Counsel: Page
Gov. 36, Line 2.
DeSantis (FL) The briefing was
Gov. also open to
Kemp (GA) the press.
Gov.
Cooper (NC)
Gov.
McMaster (SC)
------------------------------------------------------------------------
Sunday, Chris Vaccaro Julie Vaccaro's e-mail
September 1, 2019, sent an e-mail Roberts is Exhibit 9 of
3:00 p.m. to the Weather Chris Julie Roberts'
Service Public Vaccaro interview with
Affairs team-- NWS NOAA General
all media Public Affairs Counsel.
inquiries about Dennis
the President's Feltgen
tweet and the David
Birmingham Miller
tweet should be Jeremy
directed to Andrucyk
Julie Roberts Corey
and Vaccaro. Pieper
Scott
Smullen
Kate
Brogan
------------------------------------------------------------------------
Sunday, Julie Roberts Julie Copies of Julie
September 1, 2019, sends e-mails Roberts Roberts' e-
3:06 p.m. asking all NWS Chris mails relevant
offices to Vaccaro to the
consult with NWS investigation
NOAA Office of Public Affairs were provided
Communications Dennis to the Academy
before Feltgen Team by NOAA.
responding to David This e-mail is
any social Miller page 190 of
media Jeremy that document.
inquiries. Andrucyk
Corey
Pieper
Scott
Smullen
Kate
Brogan
------------------------------------------------------------------------
Sunday, Andrew Stern Andrew The e-mail is
September 1, 2019, (Operations Stern page 1 of
4:49 p.m. Center Manager, Nationa Exhibit 5 of
NWS) sends out l Weather Julie Roberts'
an e-mail to Service interview with
the National Operations NOAA General
Weather Service Center Counsel.
Operations John
Center to Murphy
inform all Mary
Regional Erickson
Operation Susan
Centers (ROC) Buchanan
and Weather Lauren
Forecast Gaches
Offices to
``only stick
with official
NHC forecasts
if questions
arise from some
national level
social media
posts this
afternoon.
Staff should
not provide any
opinion about
the national
level post and
should direct
any questions
that cannot be
satisfied to
NOAA Public
Affairs.''
------------------------------------------------------------------------
Sunday, Chris Darden Chris Copies of Chris
September 1, 2019, sends an e-mail Darden Darden's e-
9:41 p.m. out to all NWS NWS mails relevant
Birmingham WFO Birmingham WFO to the
staff updating Staff investigation
them on the Mike were provided
day's events Coyne to the Academy
and to forward Jose Team by NOAA.
any calls or Garcia This e-mail is
questions to Susan page 63 of the
forward them to Buchanan document.
him.
------------------------------------------------------------------------
Wednesday, The President is Preside The briefing was
September 4, 2019, briefed on nt Trump covered by the
12:57 p.m. Hurricane Kevin press and
Dorian at the McAleenan coverage is
Oval Office in Karl available
front of the Schultz online.
press. A NOAA Adm.
graphic appears Peter Brown
to be altered Pete
with black Gaynor
marker. This Press
becomes
national news.
------------------------------------------------------------------------
Wednesday, Julie Roberts e- Julie The e-mail is
September 4, 2019, mails George Roberts page 3 of
2:42 p.m. Jungbluth and George Exhibit 5 of
tells him that Jungbluth Julie Roberts'
NOAA interview with
Communications NOAA General
is handling Counsel.
``the
situation'' and
``there should
be no action
taken by anyone
within the
National
Weather Service
or the National
Hurricane
Center.''
------------------------------------------------------------------------
Wednesday, NWS Operations NWS Exhibit 17 of
September 4, 2019, Center sends Operations Julie Roberts'
3:37 p.m. out a media Center interview with
guidance to all NOAA General
ROCs and Counsel
National
Centers asking
that they do
not respond via
social media or
other to any
questions
related the
tweets.
------------------------------------------------------------------------
Wednesday, Chris Darden Chris Copies of Chris
September 4, 2019, sends an e-mail Darden Darden's e-
4:45 p.m. out to all NWS NWS mails relevant
Birmingham WFO Birmingham WFO to the
staff updating Staff investigation
them that NOAA Chris were provided
Headquarters Vaccaro to the Academy
called Darden Team by NOAA.
and asked all This e-mail is
further media page 19 of the
inquiries to be document.
forwarded to
Chris Vaccaro
at NOAA
Communications.
-------------------
Thursday, Chris Vaccaro Chris Exhibit 17 of
September 5, 2019, sends an e-mail Vaccaro Julie Roberts'
5:36 p.m. asking NWS to George interview with
resend tbe Jungbluth NOAA General
September 4 Susan Counsel.
media guidance. Buchanan
Vaccaro states Jeremy
in the e-mail Andrucyk
that Julie
forecasters Roberts
should not
communicate
with media via
their personal
Twitter
accounts.
-------------------
Thursday, Secretary Wilbur Wilbur Dr. Neil Jacobs'
September 5, 2019, Ross calls Dr. Ross interview with
6/7:00 p.m. Neil Jacobs and Dr. NOAA General
asks him to Neil Jacobs Counsel: Page
prepare a 27 line 9, Page
timeline of 28 line 11.
events and Julie Roberts'
communications interview with
surrounding NOAA General
Dorian.\86\ Counsel: Page
64, line 21.
------------------------------------------------------------------------
\86\ Dr. Neil
Jacobs is the
only one with
firsthand
knowledge that we
have access to
Julie Roberts has
secondhand
knowledge of this
call.
Thursday, Dr. Neil Jacobs Dr. Screenshots of
September 5, 2019, calls Julie Neil Jacobs Julie Roberts'
10:53 p.m. Roberts and Julie phone calls are
informs Roberts Roberts Exhibit 6 of
of Jacobs' Roberts'
phone call with interview with
Secretary Ross. NOAA General
Counsel.
Dr. Neil Jacobs'
interview with
NOAA General
Counsel: Page
27, line 9.
Julie Roberts'
interview with
NOAA General
Counsel: Page
63, line 16.
------------------------------------------------------------------------
Friday, Julie Roberts Julie Julie Roberts'
September 6, 2019, receives a Roberts interview with
2:30 a.m. phone call from Steven NOAA General
Secretary Barranca Counsel: Pages
Wilbur Ross's Mike 68-71.
personal Walsh Screenshots of
assistant and Roberts' phone
Chief of Staff. calls are
Exhibit 6 of
Roberts'
interview with
NOAA General
Counsel.
------------------------------------------------------------------------
Friday, Julie Roberts Julie Copies of Julie
September 6, 2019, compiles a Roberts Roberts e-mails
2:30-3:48 a.m. summary Mike relevant to the
document of all Walsh investigation
events and Joe were provided
communications Semsar to the Academy
that have Rebecca Team by NOAA.
happened Glover The e-mail is
surrounding Kevin page 12 of that
Dorian h06 Manning document. The
h00 and summary is
sends the Exhibit 7 of
summary to Mike Julie Roberts'
Walsh and other interview with
Commerce and NOAA General
NOAA employees. Counsel.
------------------------------------------------------------------------
Friday, Julie Roberts Julie Julie Roberts'
September 6, 2019, calls Dr. Neil Roberts interview with
7:00 a.m. Jacobs and Dr. NOAA General
fills him in on Neil Jacobs Counsel: Page
the calls she 83, Line 20.
received from Neil Jacobs'
the Secretary interview with
earlier that NOAA General
morning. Counsel: Page
29, Line 12.
------------------------------------------------------------------------
Friday, Julie Roberts In room prior to Julie Roberts'
September 6, 2019, and Dr. Neil their arrival: interview with
8:30 a.m. Jacobs arrive David NOAA General
at the Commerce Dewhirst Counsel: Page
office and meet Kevin 84, Line 9.
in the Deputy Manning Dr. Neil Jacobs'
Secretary's Joe interview with
conference Semsar NOAA General
room. Dr. Neil Jacobs Counsel: Page
and Julie 102, Line 13.
Roberts arrive
next.
------------------------------------------------------------------------
Present in the
meeting room
sporadically
throughout the
day:
Deputy
Secretary Karen
Dunn Kelley
Cordell
Hull
Chris
Vaccaro
Scott
Mullen
------------------------------------------------------------------------
Friday, According to Julie Julie Roberts'
September 6, 2019, Julie Roberts, Roberts interview with
8:30 a.m. the meeting was Dr. NOAA General
never Neil Jacobs Counsel: Page
officially David 91, Line 15.
convened, ``it Dewhirst
was just Kevin
everyone Manning
sitting around Joe
the table Semsar
working on
whatever we
were working on
at the time.''
\87\
------------------------------------------------------------------------
\87\ Julie
Roberts' initial
perspective when
she arrived at
the meeting is
not echoed in Dr.
Neil Jacobs'
interview.
Friday, According to Dr. Dr. Dr. Neil Jacobs'
September 6, 2019, Neil Jacobs, Neil Jacobs interview with
8:30 a.m. ``when Julie Julie NOAA General
[Roberts] and I Roberts Counsel:
showed up there David Page105, Line
was already a Dewhirst 19.
couple draft Kevin
versions of the Manning
statement going Joe
back and forth Semsar
floating
around.'' \88\
------------------------------------------------------------------------
\88\ Dr. Neil
Jacobs' initial
perspective when
he arrived at the
meeting is not
echoed in Julie
Roberts'
interview.
Friday, Deputy Secretary Karen Julie Roberts'
September 6, 2019 Karen Dunn Dunn Kelley interview with
Kelley goes to Commerc NOAA General
a h06 e Staff Counsel: Page
h00 meeting 88, Line 16.
Kelley asks
that all
advisories and
communications
h06 h0
0 about Dorian
be
compiled.\89\
------------------------------------------------------------------------
\89\ The only
account of this
event comes from
Julie Roberts'
interview with
NOAA General
Counsel.
Friday, A statement is David Julie Roberts'
September 6, 2019 drafted on Dewhirst interview with
David Julie NOAA General
Dewhirst's Roberts Counsel: Page
tablet. Dr. 96, Line 22.
Neil Jacobs Dr. Neil Jacobs'
Kevin interview with
Manning NOAA General
Joe Counsel: Page
Semsar 109, Line 6.
------------------------------------------------------------------------
Friday, Julie Roberts Julie Julie Roberts'
September 6, 2019, goes upstairs Roberts interview with
10:30 a.m. and asks Scott Scott NOAA General
Smullen and Smullen Counsel: Page
Chris Vaccaro Chris 97, Line 22.
to help look at Vaccaro
the
statement.\90\
------------------------------------------------------------------------
\90\ The only
account of this
event comes from
Ju1ie Roberts'
interview with
NOAA General
Counsel.
Friday, Roberts, Jacobs, Julie Julie Roberts'
September 6, 2019 Vaccaro, and Roberts interview with
Smullen edit Chris NOAA General
the statement. Vaccaro Counsel: Page
Jacobs and Dr. 98, Line 7.
Roberts work to Neil Jacobs Dr. Neil Jacobs'
ensure that the Scott interview with
statement is, Smullen NOAA General
technically Counsel: Page
accurate. 108, Line 9.
There was a
debate about
Birmingham
specifically.
Jacobs,
Roberts, and
Vaccaro wanted
to remove the
Birmingham part
of the
statement but
were told no.
------------------------------------------------------------------------
Friday, Secretary Ross Secreta Julie Roberts'
September 6, 2019 and his staff ry Wilbur Ross interview with
call to discuss Mike NOAA General
the statement. Walsh Counsel: Page
Earl 100, Line 4.
Comstock
Julie
Roberts
------------------------------------------------------------------------
Jacobs and Dr. Dr. Neil Jacobs'
Roberts raised Neil Jacobs interview with
their concern David NOAA General
about the Dewhirst Counsel: Page
Birmingham part Joe 109, Lines 7-
of the Semsar 20.
statement but Cordell
were told they Hull
cannot take
Birmingham out.
------------------------------------------------------------------------
Friday, Dr. Neil Jacobs Dr. Stuart
September 6, 2019, calls Stuart Neil Jacobs Levenbach's
3:00 p.m. Levenbach and Stuart interview with
tells him about Levenbach NOAA General
the Counsel: Page
statement.\91\ 13, Line 4.
------------------------------------------------------------------------
\91\ The only
account of this
phone call comes
from Stuart
Levenbach's
interview.
Friday, David Dewhirst e- David Copies of Julie
September 6, 2019, mails Mike Dewhirst Roberts' e-
3:11 p.m. Walsh a copy of Mike mails relevant
the statement Walsh to the
for approval. investigation
were provided
to the Academy
Team by NOAA.
The e-mail is
page 23 of that
document.
------------------------------------------------------------------------
Friday, Dr. Neil Jacobs Dr. Stuart
September 6, 2019, calls Stuart Neil Jacobs Levenbach's
3:30-4:00 p.m. Levenbach, Dr. Dr. interview with
Dr. Louis Louis Uccellini NOAA General
Uccellini, and Stuart Counsel: Page
Taylor Jordan Levenbach 13, Line 4;
to tell them Taylor Page 36, Line
about the Jordan 6.
statement Dr. Neil Jacobs'
before it goes interview with
out. NOAA General
Counsel: Page
138, Line 10.
Dr. Louis
Uccellini's
interview with
NOAA General
Counsel: Page
69, Line 11.
------------------------------------------------------------------------
Friday, David Dewhirst e- David Copies of Julie
September 6, 2019, mails Julie Dewhirst Roberts' e-
3:43 p.m. Roberts a copy Julie mails relevant
of the Roberts to the
statement after investigation
it has been were provided
approved by to the Academy
higher ups at Team by NOAA.
Commerce. The e-mail is
page 23 of that
document.
------------------------------------------------------------------------
Friday, Julie Roberts Benjami Benjamin
September 6, 2019, and Dr. Neil n Friedman Friedman's
4:00 p.m. Jacobs reach Julie interview with
out to Benjamin Roberts NOAA General
Friedman to let Dr. Counsel: Page
him bow about Neil Jacobs 38, Line 9;
the statement Stuart Page 41, Line
before it goes Levenbach 6.
out. Julie Roberts'
interview With
NOAA General
Counsel: Page
106, Line 13.
Dr. Neil Jacobs'
interview with
NOAA General
Counsel: Page
149, Line 13.
------------------------------------------------------------------------
Friday, Dr. Louis Dr. Dr. Louis
September 6, 2019, Uccellini and Louis Uccellini Uccellini's
4:40 p.m. other NOAA George interview with
officials get Jungbluth NOAA's General
in touch with Mary Counsel: Page
Chris Darden to Erickson 73, Line 1.
give him a Chris Chris Darden's
heads up before Darden interview with
the statement John NOAA General
goes out. Murphy Counsel: Page
Steven 56, Line 22.
Cooper
------------------------------------------------------------------------
Friday, NOAA NOAA Statement is
September 6, 2019 Communications Communications available on
4:45 p.m. releases the NOAA
statement that website.
says Hurricane
Dorian could
have impacted
Alabama and
that the
Birmingham
National
Weather
Service's tweet
was
``inconsistent
with
probabilities
from the best
forecast
products
available at
the time.''
------------------------------------------------------------------------
Friday, Chris Vaccaro Chris Copies of Chris
September 6, 2019, sends out an e- Vaccaro Darden's e-
4:52 p.m. mail to NOAA Nationa mails relevant
personnel l Weather to the
informing them Service Office investigation
that the of Public were provided
statement has Affairs to the Academy
been Dennis Team from NOAA.
distributed and Feltgen This e-mail is
that inquiries Julie page 10 of the
``should solely Roberts document.
be directed Scott
to'' the NOAA Smullen
Office of
Communications
line. E-mail
gets forwarded
around between
NOAA staff.
------------------------------------------------------------------------
Friday, NOAA NOAA Tweet with
September 6, 2019, Communications Communications statement is on
5:31 p.m. posts the NOAA
statement on Communications'
Twitter. Twitter
(@NOAAComms).
------------------------------------------------------------------------
Friday, Chris Darden Chris Copies of Chris
September 6, 2019, sends out an e- Darden Darden's e-
6:00 p.m. mail to the NWS mails relevant
National Birmingham WFO to the
Weather Service Staff investigation
Birmingham were provided
Weather to the Academy
Forecast Office by NOAA. This e-
staff informing mail is page
of the 106 of the
statement and document.
commending them
on the work
they do to
suppo11
Alabama. Darden
asks the staff
to ``please be
cautious about
commenting
publicly'' on
the statement.
------------------------------------------------------------------------
Friday, Stuart Levenbach Stuart Exhibit 3 of
September 6, 2019, e-mails Dr. Levenbach Stuart
8:22 p.m. Louis Uccellini KDr. Levenbach's
and tells Louis Uccellini interview
Uccellini that conducted by
be (Levenbach) NOAA General
was not Counsel.
involved in any
part of
drafting the
statement.
To Levenbach's
knowledge
Roberts and
Jacobs were
they only
people from
NOAA involved
in writing the
statement.'' \9
2\
\92\ Secondhand
knowledge--Stuart
Levenbach was not
in the room when
the statement was
drafted.
------------------------------------------------------------------------
Saturday, Stuart Levenbach Stuart Exhibit 7 of
September 7, 2019, e-mails Kevin Levenbach Stuart
2:26 a.m. Wheeler with a Kevin Levenbach's
summary of how Wheeler interview
the statement Dr. conducted by
was developed Neil Jacobs NOAA's General
as Levenbach Counsel.
understood it
from a call
with Dr.
Jacobs.\93\
\93\ Secondhand
knowledge--Stuart
Levenbach was not
in the room when
the statement was
drafted; his
understanding of
the process comes
from a phonecall
with Dr. Neil
Jacobs.
------------------------------------------------------------------------
Saturday, All hands e-mail Dr. Exhibit 5 of Dr.
September 7, 2019, sent out to Louis Uccellini Louis
3:11 p.m. National Mary Uccellini's
Weather Service Erickson interview
Staff thanking John conducted by
them for their Potts NOAA's General
work on John Counsel.
Hurricane Murphy
Dorian. Kevin
Cooley
Peyton
Robertson
All NWS
Personnel
------------------------------------------------------------------------
Monday, Dr. Jane Dr. Copy of
September 9, 2019 Lubchenco, Dr. Jane Lubchenco allegation
Richard Dr. provided
Spinrad, and Richard Spinrad
Dr. Andrew Dr.
Rosenberg file Andrew
a complaint of Rosenberg
violation of
NOAA's
Scientific
Integrity
Policy
------------------------------------------------------------------------
Tuesday, Representative Represe Copy of
September 10, 2019 Paul Tonko ntative Paul allegation
files a Tonko provided
complaint of
violation of
NOAA's
Scientific
Integrity
Policy
------------------------------------------------------------------------
Tuesday, Craig McLean Craig Copy of
September 10, 2019 files a McLean allegation
complaint of provided
violation of
NOAA's
Scientific.
Integrity
Policy
------------------------------------------------------------------------
Wednesday, Dr. Carl Childs Dr. Copy of
September 11, 2019 files a Carl Childs allegation
complaint of provided
violation of
NOAA's
Scientific
Integrity
Policy
------------------------------------------------------------------------
Appendix C: Policies
Copies of Department of Commerce and National Oceanic and
Atmospheric Administration policies relevant to the inquiry are linked
below.
National Oceanic and Atmospheric Administration Scientific
Integrity Policy (NOAA Administrative Order 202-735D:
Scientific Integrity)
https://www.corporateservices.noaa.gov/ames/administrative_orders/
chapter_
202/202-735-D.pdf
Procedural Handbook to NOAA's Scientific Integrity Policy
https://www.corporateservices.noaa.gov/ames/administrative_orders/
chapter_
202/Procedural_Handbook_NAO_202-735D_%20FINAL_Aug2017%20Amend
ment.pdf
Department of Commerce Public Communication Policy
(Department Administrative Order 219-1)
http://www.osec.doc.gov/opog/dmp/daos/dao219_1.html
Department of Commerce Social Media Guidebook.
htt;p://osec.doc.goy/webresources/socialmedia/
DOC_Social_Media_Guidebook%
20_2013-01-31.pdf
NOAA Framework for Internal Review and Approval of
Fundamental Research Communications.
https://www.corporateservices.noaa.gov/ames/administrative_orders/
chapter_
202/FRC%20Guidance%20Nov%208%202016.pdf
______
Appendix D: Summaries of Interviews Conducted and Interview Questions
Summaries of interviews conducted, and the associated interview
questions appear in the following order in Appendix D:
Chris Darden, Meteorologist-in-Charge, National Weather
Service Birmingham Weather Field Office
Dr. Neil Jacobs, Acting Administrator, National Oceanic and
Atmospheric Administration
Craig McLean, Acting Chief Scientist, National Oceanic and
Atmospheric Administration
Julie Roberts, Deputy Chief of Staff, Director of
Communications, National Oceanic and Atmospheric
Administration\94\
---------------------------------------------------------------------------
\94\ Julie Roberts left NOAA in December 2019 to join the Economic
Development Administration within the Department of Commerce.
Chris Vaccaro, Media Relations Specialist, National Oceanic
---------------------------------------------------------------------------
and Atmospheric Administration
Interview questions for the Subject Matter Expert interviews
conducted appear in the following order in Appendix D:
U.S. Government Accountability Office, Authors of Scientific
Integrity Policies: Additional Actions Could Strengthen
Integrity of Federal Research Report.
Wyatt R. Hundrup, Analyst in Charge
Douglas Hunker, Staff Contributor
Robert Marek, Assistant Director of Science,
Technology Assessment, and
John Neumann, Managing Director
Dr. Leysia Palen, Professor and Founding Chair of
Information Science; Professor of Computer Science
Dr. Rebecca Morss, Deputy Director, Mesoscale & Microscale
Meteorology Lab
______
Chris Darden Interview Summary
Meteorologist-in-Charge, NWS Birmingham Weather Forecast Office
January 21, 2020, at 3:09 p.m. Central Time Zone
NWS Birmingham Weather Forecast Office, Calera, AL
Reason for Selection
The Academy Team selected Chris Darden to be interviewed for a
second time because as the Meteorologist-in-Charge of the NWS
Birmingham WF0,\95\ he oversees the office that sent out the September
1 tweet affirming that Alabama will not see any impacts from Hurricane
Dorian. Through a second interview with Chris Darden, the Academy Team
hoped to learn about the policies and procedures of the Birmingham WFO,
and the involvement of Chris Darden and Birmingham WFO staff in the
development and release of both the September 1 Birmingham Tweet and
September 6 Statement.
---------------------------------------------------------------------------
\95\ NOAA General Counsel first interviewed Chris Darden on October
21, 2019.
---------------------------------------------------------------------------
Interview Objectives
The interview sought to learn more about how a WFO fits into the
larger NWS and NOAA organizational structure and how a WFO collaborates
with other branches of NOAA, such as the National Hurricane Center and
other WFOs. A prominent theme of this interview was policies and
procedures, particularly as they relate to communications and typical
WFO operating procedures. To gain a better understanding of how this
WFO operates, the Academy Team asked about this office's social media
practices, corrective processes, and how NOAA's Office of
Communications works with WFOs like Birmingham. Chris Darden was asked
to expand on answers previously given in the first interview.
Additionally, the Academy Team asked Chris Darden about NOAA's
Scientific Integrity Policy as it relates to his office's involvement
in the events that transpired.
Summary of Interview
Chris Darden informed the Academy Team that not only is his office
responsible for covering 39 counties in Alabama, but also the WFO is
the state liaison officer meaning that the state of Alabama will
request a Birmingham WFO meteorologist to come to the State Emergency
Operations Center to provide 24/7 support to the state in the event of
a major weather-related event. Darden spoke of common communication
channels maintained during a hurricane between the WFO, the National
Hurricane Center (NHC), the Weather Prediction Center, and Regional
Operations Centers.
As Darden explained, the Birmingham WFO has a dedicated decision
support service (DSS) meteorologist on most of their shifts whose
responsibilities include coordinating communication with FEMA and
posting on the office's social media. On September 1, the DSS
communicated with: other meteorologists on shift--who looked at
forecasts, probabilistic models, and the latest morning guidance--to
determine the correct response to the influx of phone calls and
Facebook messages from people in Alabama asking if Alabama was going to
be affected by Hurricane Dorian. Based on the meteorologists'
determination, the DSS issued the September 1 Birmingham Tweet and a
Facebook post about how Alabama will see no impacts from the hurricane.
In the event of issuing an inadvertently wrong warning, the
Birmingham WFO's typical process of correcting a mistake, while not a
formal written policy, would involve immediately cancelling the
warning, posting on social media explaining that the warning was issued
in error, and sending the correction on NWSChat. NWSChat is the
communication group between NWS, FEMA, core media partners, and some
private sector entities such as the Weather Channel, for example. No
corrective action was taken by the Birmingham WFO because the September
1 Birmingham Tweet was consistent with the scientific information
reviewed by the WFO meteorologists. In the event of a discrepancy with
another WFO's forecast, the Birmingham WFO will communicate with the
other WFO to determine the correct forecast or warning to issue.
As for using absolute terms, Chris Darden provided the reasoning
that as a WFO, they try to communicate with the public in a way that
will solicit a desired response to a weather event or lack thereof. He
stressed that their mission is to save lives and their communications
need to reflect the action people need to take to remain safe.
Chris Darden confirmed that on September 1, the Birmingham WFO
forecasters conducted scientific activities, such as looking at model
data and forecast information from NHC, and made a scientific
assessment based off of the best available information to inform the
development of the September 1 tweet from the Birmingham WFO. Chris
Darden characterized the September 1 Birmingham Tweet as a scientific
product.
Chris Darden received several e-mails between September 1 and 6
directing all NWS offices and staff to forward media inquiries to the
NOAA Office of Communications and to not respond to any questions
either officially or through personal social media accounts. Darden
explained that it is common to receive guidance from NOAA
Communications requesting that all media inquiries be directed to that
office during situations that require a coordinated media effort.
In regard to the September 6 Statement, Chris Darden explained that
neither he nor anyone in his office was given the opportunity to review
the statement prior to its release. Chris Darden was not made aware of
the statement until approximately 4:00 p.m. on September 6, when he was
called by Dr. Louis Uccellini, who is the NWS Director, and other NWS
officials. Chris Darden was not afforded the opportunity to make
revisions to the statement as he was told that there was nothing he
could do. By the time he finished the phone call, the September 6
Statement had already been released.
Interview Questions for Chris Darden
Current Position and Responsibilities
Current position, duties and reporting line.
Birmingham Weather Forecast Office Policies and Procedures
Role of the Birmingham Weather Forecast Office within NOAA.
In the event of a serious weather-related event such as
Hurricane Dorian, how does your office typically interact with
the National Hurricane Center and other NOAA offices?
Activities Related to the Development and Release of the September 1
Tweet
How would you characterize the September 1 Tweet including
the underlying science used to inform the tweet?
What is the typical internal process to draft and release a
social media communication such as the September 1 Tweet? Are
there any formal policies and procedures in place?
Activities Related to the Development and Release of the September 6
Statement
Describe your involvement with the activities leading up to
the September 6 Statement including your interaction with other
NOAA offices and any external entities.
Describe your involvement with the development and release
of the September 6 Statement.
Is there anything else you would like to share with the
Academy Team for the record?
______
Dr. Neil Jacobs Interview Summary
Acting Administrator, NOAA
February 3, 2020, at 3:12 p.m. Eastern Time Zone
National Academy of Public Administration, Washington, DC
Reason for Selection
The Academy Team selected Dr. Neil Jacobs for a second interview
because he is the Acting Administrator of NOAA and was involved with
the development and release of the September 6 Statement.\96\ Through a
second interview, the Panel hoped to learn more about the policies and
procedures of NOAA as they relate to scientific integrity, how he
interacts with the Department of Commerce leadership, and Dr. Neil
Jacobs' involvement in the development and release of the September 6
Statement.
---------------------------------------------------------------------------
\96\ NOAA General Counsel first interviewed Dr. Neil Jacobs on
November 6, 2019.
---------------------------------------------------------------------------
Interview Objectives
The purpose of this interview was to understand relevant NOAA
policies and procedures and inquire further about Dr. Neil Jacobs'
involvement in the development and release of the NOAA September 6
Statement. The Academy Team aimed to learn how Dr. Jacobs interacts
with Commerce leadership and what Commerce's typical role in the
development and release of NOAA communications is. Additionally, the
Academy Team requested that Dr. Jacobs explain how he ensures
compliance with NOAA's Scientific Integrity Policy and Commerce's
Public Communication Policy. The Academy Team also sought to learn from
Dr. Jacobs what the agency's standard process for issuing media
guidance is. As Dr. Jacobs was involved in the development and release
of the September 6 Statement, a prominent component of this interview
was inquiring about his involvement in the development and release of
the September 6 Statement.
Summary of Interview
Dr. Neil Jacobs explained that he is only involved in the
communications process when there is a need to elevate the matter to
his level--particularly when there is a quote from him involved.
Usually, no agency-level communications are released without someone in
his office reviewing them first.
As for Commerce's involvement in the drafting of NOAA
communications, Dr. Jacobs explained that Commerce will often review
NOAA agency-level communications as part of the clearance process. Dr.
Jacobs explained that NOAA communications typically originate with a
NOAA line office before Dr. Jacobs reviews it and then sends it to
Commerce before Dr. Jacobs performs the final review. Another typical
chain of approval is that the communication originates within NOAA, is
then sent to a line office for review, is then sent to Commerce, and
finally is sent to Dr. Jacobs for final review. Dr. Jacobs expressed
that to his knowledge, the process of NOAA working with Commerce staff
on communications is not formally written in a policy but he has never
looked to determine if such a policy exists.
As for communicating risk, Dr. Jacobs offered his perspective that
there is no consensus within the National Weather Service on how to
best communicate probabilities and the associated risks with the public
in the messages. Generally speaking, Dr. Jacobs elaborated that people
do not necessarily understand probabilities, however, probabilities are
more objective than other choices of phrasing. The purpose of
communications about weather forecasts is to communicate the risk to
the public. State and local emergency managers play an important role
in translating the probability and risk to their audiences, according
to Dr. Jacobs.
All forecasts eventually become inaccurate, so NWS constantly
updates the forecasts with every shift of forecasters, as Dr. Jacobs
explained. Typically, NWS WFOs will communicate with each other and
other NOAA centers because forecasts are constantly evolving. NOAA
headquarters does not typically comment on the public communications of
a WFO, and there is no formal policy in place that determines the
process of publishing a statement on a WFO's work, according to Dr.
Jacobs.
The media guidance, Dr. Jacobs explained, came from an internal NWS
decision, not NOAA, and media guidance such as the guidance sent
between September 1 and 6 are not uncommon. Forecasters may receive
similar guidance several times a year. The purpose of the media
guidance was for continuity of operations. NOAA does not have a
standard process for issuing media guidance to staff.
Dr. Jacobs explained that he became involved in the development of
the September 6 Statement fairly late because his phone was off during
the early morning hours of September 6 and arrived at the office after
there may have been earlier versions of the statement already drafted.
He missed several calls in the early morning hours of September 6 but
did not speak to Secretary Ross or anyone on his staff about developing
a statement until he arrived in the office on the morning of September
6. Commerce officials were involved from the start of the statement
development process because they were present before Dr. Jacobs
arrived. Dr. Jacobs also stated that the Commerce officials who had
been drafting the statement likely did not understand probabilistic
forecasting. During the drafting of the statement, Commerce officials
called in, but Dr. Jacobs did not know everyone was on the line.
Dr. Jacobs characterized the September 6 Statement as a NOAA
product because everything coming out of the agency is a NOAA product.
As he understands it, Dr. Jacobs stated that the intent of the
statement was to reconcile the Birmingham WFO's tweet with the National
Hurricane Center's forecast products. Dr. Jacobs was not thrilled by
the September 6 Statement because the statement singled out the
Birmingham WFO for its tweet, despite other WFOs and the National
Hurricane Center tweeting variations of the same idea. For that reason,
Dr. Jacobs explained that he objected to the statement during the
development, but no action was taken by Commerce officials in the room
in respect to considering his objection. Dr. Jacobs stated that the
people in the room may have felt pressure to release the statement
because Commerce wanted the statement released.
Dr. Jacobs also offered his perspective on the correctness of the
September 1 tweet from the Birmingham WFO by explaining that in a
technical sense, while relatively Small, the probability of Hurricane
Dorian impacting a portion of southeast Alabama existed. However, in
terms of communicating the risk to the people of Alabama, the
Birmingham WFO was correct, according to Dr. Jacobs.
In regard to the September 6 Statement complying with the NOAA
Scientific Integrity Policy, Dr. Jacobs expressed that the September 6
Statement did not necessarily meet the standards of the Scientific
Integrity Policy. Additionally, Dr. Jacobs explained that his
understanding is that the Scientific Integrity Policy was written for
science and research and not necessarily press releases. Dr. Jacobs
often reviews communications originally written by non-scientists,
including people from Commerce and other parts of NOAA, when the
science is incorrect. The correction process typically requires
scientists to check the validity of the communication and ensure that
in a technical sense, the communication is accurate before it is
published.
Interview Questions for Dr. Neil Jacobs
Position and Responsibilities
Position, duties and responsibilities.
NOAA Policies and Processes
As the Acting Administrator, how do you typically interact
with the Department of Commerce leadership?
Is Commerce typically involved in the development and
release of official NOAA communications? If yes, how?
If a severe weather event occurs, what is the most effective
way/vehicle to communicate probabilistic forecasts to the
general public?
In performing your responsibilities as the Acting
Administrator, how do you ensure compliance with NOAA's
Communication and Scientific Integrity Policy?
What is NOAA's standard process for issuing media guidance?
Are there any formal policies in place?
Activities Related to the Development and Release of the September 6
Statement
Describe your involvement with the development and release
of the September 6 Statement.
Is there anything else you would like to share with the
Academy team for the record?
______
Craig McLean Interview Summary
Assistant Administrator for Oceanic and Atmospheric Research and Acting
Chief Scientist, NOAA
January 23, 2020, 8:30 a.m. Eastern Time Zone
National Academy of Public Administration, Washington D.C.
Reason for Selection
The Academy Team selected Craig McLean to be interviewed because of
McLean's position as NOAA's Acting Chief Scientist and because of
McLean's role in this specific inquiry as one of the four Complainants.
As the Acting Chief Scientist of NOAA, McLean serves as the senior
scientist for the agency, providing direction for science and
technology priorities. McLean also serves NOAA as the Assistant
Administrator for Oceanic and Atmospheric Research and is responsible
for overseeing, directing, and implementing NOAA's research enterprise.
McLean has served over 25 years with NOAA and during his tenure McLean
has been heavily involved in the development of NOAA's Scientific
Integrity Policy. The Academy Team hoped to learn more about NOAA's
standard operating procedures specifically regarding communications and
how the Scientific Integrity Policy operates within the agency, as well
as learning the specific reasoning behind Craig McLean filing an
allegation.
Interview Objectives
The Academy Team had two main objectives for the interview of Craig
McLean. First, the interview sought to learn more about how
communication and collaboration occurs across NOAA, specifically
looking at how the Office of Communications interacts with the
different NOAA line offices and scientists, and how the Department of
Commerce typically interacts with NOAA. Prominent themes for this
section of the interview were policies and procedures, particularly as
they relate to NOAA communications and interactions with Commerce. The
second objective of the interview was to learn about the rationale
McLean had for filing his allegations of violations of NOAA's
Scientific Integrity Policy. The Academy Team asked McLean to walk
through his allegation and how he perceived actions surrounding the
September 6 Statement violating specific sections of the Scientific
Integrity Policy.
Summary of Interview
Craig McLean informed the Academy Team that NOAA relies on Weather
Forecast Offices (WFO) and local expertise to carry out the mission of
NOAA. The public often looks to their local resources for news and
local offices have expertise on the location that they cover. The
forecasters in the WFOs are given specific training related to
communicating with the press and social media and it is unusual for the
Office of Communications to direct forecasters not to speak with the
media. It is imperative to the core mission of NOAA that forecasters
have free access to communicate with the media.\97\ However, McLean did
understand that the purpose of the Office of Communications asking
forecasters not to comment of the events of September 1 through 6 was
to protect them from being pulled into a political debate.
---------------------------------------------------------------------------
\97\ National Oceanic and Atmospheric Administration, ``NOAA
Administrative Order 202-735D: Scientific Integrity,'' December 7,
2019: Section 5.02(d).
---------------------------------------------------------------------------
According to Craig McLean, it was completely within the
responsibilities of the Birmingham WFO to send out the September 1
tweet. The forecasts and related messages produced by NOAA WFOs are
based in science and pro4uced by trained scientists who have the skills
to produce conclusions and messages to the public based on technical
scientific inputs. The forecasters in Birmingham acted swiftly and
accurately to convey a message to the public that addressed their
concerns and kept them safe from any unwarranted panic. The absolute
terms of the tweet were not only accurate as the perceived threat to
Alabama had passed, but also a necessary step to quell the fears of the
public.
Regarding NOAA communication policies, McLean explained that NOAA's
Communications Office has the responsibility of issuing press releases
and in many cases, producing the original drafts of those press
releases. The Communications Office has representatives from each NOAA
line office who liaise between the line offices, scientists, and
communications officials.
When discussing NOAA communications policies and standard operating
procedures related to those policies, McLean brought up the typical
interactions between NOAA and the Department of Commerce. According to
McLean, there is a political pervasiveness from the Department of
Commerce throughout the daily life of NOAA's senior leaders. The
influence has such a far reach that even the NOAA Administrator cannot
send an all hands message to NOAA staff without having it first
reviewed by the Department of Commerce. The NOAA Office of
Communications often needs to go to Commerce for approval before NOAA
issues the communication. McLean sees this pervasiveness as an
underlying issue for NOAA that hinders the agency's ability to carry
out its core mission.
In regard to the September 6 Statement from NOAA, Craig McLean
explained that the statement was unprecedented and anomalous in many
ways. McLean elaborated that it was unusual for a statement to be
attributed to NOAA with no point of contact for further information.
The anonymity of the September 6 Statement harms NOAA's reputation
because there is a need for the agency to be transparent and open to
the public.\98\ From McLean's understanding, no line offices or career
NOAA staff were consulted on the statement, which is a violation of the
Scientific Integrity Policy.\99\ If a WFO were to put out an incorrect
statement or forecast, a correction would have been made soon after the
original posting and have been done by a competent authority close to
the original source such as the National Weather Service or the
National Hurricane Center.
---------------------------------------------------------------------------
\98\ NOAA, Section 4.01.
\99\ NOAA, Section 7.01.
---------------------------------------------------------------------------
McLean perceived numerous violations of the NOAA Scientific
Integrity Policy. The section of the policy that upholds the need for
public access to information was violated because the September 6
Statement contradicted science that was known to be factually correct
and put out untruthful information to the public.\100\
---------------------------------------------------------------------------
\100\ National Oceanic and Atmospheric Administration, ``NOAA
Administrative Order 202-735D: Scientific Integrity,'' December 7,
2011: Section 5.02(b).
---------------------------------------------------------------------------
The Scientific Integrity Policy also upholds that in no
circumstance may any NOAA official ask or direct a Federal scientist to
suppress of alter scientific findings.\101\ In the events surrounding
the September 6 Statement, NOAA parties were directed to say that the
WFO was wrong. These actions also violated the section of the
Scientific Integrity Policy that directs scientists to approach
scientific activity objectively, without allegiance to individuals,
organizations, or ideology.\102\ The way in which the September 6
Statement was constructed and the message that it contained had an
allegiance to entities outside of NOAA. According to McLean, the
actions taken by NOAA officials regarding the creation and release of
the September 1 statement were dishonest and attempted to convey
fraudulent information using deceit and misrepresentation which is a
violation of the Code of Scientific Conduct and Code of Ethics upheld
by the fundamental Principles of Scientific Integrity.\103\
---------------------------------------------------------------------------
\101\ NOAA, Section 5.02(d).
\102\ NOAA, Section 6.01(a).
\103\ NOAA, Section 6 and Section 7.
---------------------------------------------------------------------------
The Scientific Integrity Policy covers all employees of NOAA.\104\
McLean sees Dr. Neil Jacobs as responsible for the September 6
Statement as he is the Acting Administrator of NOAA. According to
McLean, Dr. Neil Jacobs should have raised concerns about potential
violations of scientific integrity and filed a complaint as soon as the
statement was released. McLean also saw Julie Roberts as responsible
for the September 6 Statement as she was the Director of Communications
and had authority over the statement's released.
---------------------------------------------------------------------------
\104\ NOAA, Section 2.02(a).
---------------------------------------------------------------------------
Interview Questions for Craig McLean
Current Position and Responsibilities
Current position, duties and responsibilities.
NOAA Policies and Processes
What is the typical internal process for NOAA to review and
release an organization wide statement such as the September 6
Statement?
What is the typical internal process to draft and release a
social media communication such as the September 1 tweet? What
are the leading practices for communicating scientific/forecast
information via social media?
What's NOAA's standard process for issuing media guidance?
Are there any formal policies in place?
Activities Related to the Development and Release of the September 6
Statement
Describe your involvement with the development and release
of the September 6 Statement.
Allegation of Scientific Misconduct
On September 10, 2019, you submitted a complaint alleging
violations of NOAA's Scientific Integrity Policy (NAO 202-
735D), the Department of Commerce Administrative Order
(DAO)219-1, Public Communications, and 18 USC 2074. Please
explain the rationale behind the allegations.
Is there anything else you would like to share with the
Academy Team for the record?
______
Julie Roberts Interview Summary
Deputy Chief of Staff and Director of Communications, NOAA
January 23, 2020, at 2:36 p.m. Eastern Time Zone
National Academy of Public Administration, Washington, DC
Reason for Selection
The Academy Team selected Julie Roberts for a second interview
because as Deputy Chief of Staff and Director of Communications,\105\
she was involved with the development and release of the NOAA September
6 Statement and the media guidance distributed between September 1 and
6.
---------------------------------------------------------------------------
\105\ NOAA General Counsel first interviewed Julie Roberts on
October 11, 2019.
---------------------------------------------------------------------------
Interview Objectives
In this interview, the Academy Team desired to understand standard
NOAA communications procedures in order to determine if the media
guidance and September 6 Statement deviated from standard procedures.
Additionally, the Academy Team sought to better understand Julie
Roberts' involvement in the development and release of the September 6
Statement, including her interactions with other NOAA offices and
external entities.
Summary of Interview
Julie Roberts informed the Academy Team that in her former role at
NOAA as Director of Communications she was responsible for overseeing
the entire agency's communication strategy. Roberts then went on to
discuss the standard procedures that are followed by NOAA's Office of
Communications. Roberts explained that staff from the Office of
Communications are embedded within the different line offices of NOAA
and the standard practice would be that scientist from the different
line offices would work with the NOAA Office of Communications to
create communications for the public on their work. Sending media
guidance to NOAA scientists is also a standard practice of the Office
of Communications, according to Roberts. When there is a large scale,
high-profile situation, the office sends media guidance to NOAA staff
to ensure that the same messaging given to the public and media is
consistent across the agency. Roberts further elaborated that a many of
press documents go to the Department of Commerce for review or approval
h06 h00. Roberts explained to the Academy Team that while
NOAA's Office of Communications follows these standard practices, there
are no formal policies or procedures that guide how these practices are
followed.
Julie Roberts explained that she was not really involved in the
creation of the September 6 Statement. Roberts stated that she was
tasked with creating a timeline of NOAA communications h06
h00 while the statement was being crafted by Commerce officials in the
room. Roberts explained that she had no substantive comments on the
statement besides pushing back on the part that discussed the
Birmingham office. Roberts did not see this part of the statement as
being productive, as Roberts thought that the September 1 Birmingham
Tweet was not political.
Roberts felt that there was external pressure regarding the
September 6 Statement. Based on the call that Dr. Neil Jacobs received
in the early morning hours of September 6 and the close of business
deadline set by Secretary Ross, Roberts perceived the September 6
Statement as a Commerce statement that was given to NOAA to release.
According to Roberts, there was pressure from Commerce officials for
Roberts to be the attributed spokesperson for the September 6
Statement, but Roberts pushed back because she did not feel comfortable
being attributed to a statement that she did not draft.
Julie Roberts explained to the Academy Team that she was so tired
and overworked from monitoring Hurricane Dorian for the past 10 days
that she did not consider how the September 6 Statement could
potentially violate NOAA's Scientific Integrity Policy or Commerce's
Public Communication Policy. She elaborated that while she and Dr.
Jacobs could have resigned in an attempt to stop the statement from
being released, they felt the need to stay and try to help fix the
situation.
Interview Questions for Julie Roberts
Position and Responsibilities
Position, duties and involvement with the formulation and/or
release of NOAA communications.
Office of Communications Policies and Procedures
Role of the Office of Communications/Public Affairs within
the agency?
How does your office typically interact with the National
Weather Service (NWS) and other offices? How does your office
typically work with NOAA scientists to ensure compliance with
NOAA's Scientific Integrity Policies?
What is NOAA's standard process for issuing media guidance?
Are there any formal policies and procedures in place?
What is the typical internal process for NOAA to draft and
release an organization wide statement such as the September 6
Statement?
Activities Related to the Development and Release of the September 6
Statement
Describe your involvement with the activities leading up to
the September 6 Statement including your interaction with NWS,
other NOAA offices and any external entities.
Describe your involvement with the development and release
of the September 6 Statement.
Is there anything else you would like to share with the
Academy team for the record?
______
Chris Vaccaro Interview Summary
Senior Media Relations Specialist, NOAA
January 20, 2020, at 2:02 p.m. Eastern Time Zone
National Academy of Public Administration, Washington, DC
Reason for Selection
The Academy Team chose to interview Chris Vaccaro, Senior Media
Relations Specialist in the NOAA Office of Communications, because he
was largely involved with the media guidance issued between September 1
and 6 and was present, although briefly, during the development of the
September 6 NOAA statement. As Senior Media Relations Specialist, Chris
Vaccaro is responsible for facilitating communications that originate
at the NOAA headquarters level and coordinating press-related materials
that originate in the line offices and field offices.
Interview Objectives
Through this interview, the Academy Team desired to understand NOAA
Office of Communications policies and procedures as they relate to the
media guidance and the September 6 Statement, how the office works with
other offices inside and outside of NOAA, and the involvement of Chris
Vaccaro and other NOAA officials in the development of the September 6
Statement. A prominent component of this interview was the standard
process for issuing media guidance because the Panel is tasked with
assessing the allegation that the media guidance violated the
Scientific Integrity Policy. Similarly, because the Panel must assess
whether the September 6 Statement violated the Scientific Integrity
Policy, the interview aimed to understand the standard process for
developing and releasing NOAA communications and determine whether the
process on September 6 deviated from the standard process and
constitutes a violation of scientific integrity.
Summary of Interview
The NOAA Office of Communication coordinates with the National
Hurricane Center and other line offices during a large weather-related
event, such as a hurricane, according to Chris Vaccaro. His role is
coordinating with the media and NOAA leadership during such an event.
Chris Vaccaro explained that the Department of Commerce
historically is not involved in most NOAA Communications, with the
exception being that Commerce may become involved in a controversial
issue or a matter requiring the secretary's involvement. There is no
intra-agency agreement outlining when it is appropriate for the
Department of Commerce to become involved in NOAA's communications.
Regarding the involvement of scientists in developing NOAA
communications, Chris Vaccaro expressed that scientists are regularly
involved in the communications process because all of their
communications are derived from science. Often, scientists will write
the communication for NOAA's Office of Communications or at a minimum,
be involved in the drafting of the communication, according to Chris
Vaccaro. The scientists would also see the cleared product before it
goes out, which Vaccaro stated was the normal procedure.
Chris Vaccaro elaborated on the Office of Communication's approval
procedures for communications and touched on the Department of
Commerce's Public Communication Policy (DAO 219-1). Vaccaro explained
that communications are signed off by the head of the operating unit
and the appropriate public affairs officer for approval, per the DAO.
also explained that any entity that has equities the communication,
especially those directly referenced therein, also typically sign off
on the communication before the communication's release.
Typically, as Chris Vaccaro mentioned, NOAA infrequently uses
agency statements and when they do, the Statements are attributed to a
NOAA spokesperson. Unattributed statements are exceptionally rare. The
avenue used to communicate a NOAA message depends on the subject and
the expediency of the matter. In regard to the September 6 Statement
from NOAA, Chris Vaccaro explained that the statement qualifies as an
Official Communication from NOAA because the statement is perceived to
be from the agency.
Chris Vaccaro explained that media guidance is often issued by the
NOAA Office of Communications in consultation with NOAA Communications
leaders and the head of the impacted office. Per his explanation, media
guidance commonly is used to protect an individual or office from
getting involved into a difficult situation from a communications
standpoint. The media guidance offered between September 1 and 6
requesting that NWS staff direct all inquiries to NOAA Communications
was issued by NWS in conjunction with NOAA Office of Communications
leadership. In his interview, Vaccaro explained that the e-mail he sent
on September 5 asking NWS to resend the September 4 media guidance that
mentioned that forecasters should not communicate with the media via
their personal Twitter accounts was not intended to stifle forecasters'
ability to communicate with the media. As explained by Chris Vaccaro,
the intent of the guidance was to tell NWS offices that they are free
to send media inquiries to NOAA public affairs officers because the
agency was the subject of national news. He explained the need for a
coordinated media response from NOAA and to return normalcy from a
chaotic situation.
As for Chris Vaccaro's involvement in the development of the
September 6 Statement, he was minimally involved. A Commerce official,
whose name was unknown to Vaccaro, read aloud from his iPad an earlier
version of the statement during the time that Vaccaro was present in
the Commerce Deputy Secretary's conference room at approximately 10:00
a.m. on September 6. After hearing the statement, he and Scott Smullen
(Deputy Director of NOAA Communications) vocalized that it was not
necessary to mention the Birmingham WFO in the statement, but there was
no action taken then after he gave his input. A Commerce official in
the conference room received a phone call and requested that the rest
of the people in the room leave, which prompted Chris Vaccaro and Scott
Smullen to return to their desks. Vaccaro did not see the statement
again until it was e-mailed to him by Julie Roberts at approximately
4:00 p.m. that day. The final version of the statement that was sent to
Vaccaro in the afternoon was different than the version he heard in the
conference room in the morning. According to Vaccaro, his only official
role in the development and release of the September 6 Statement was to
get the statement to a colleague whose job was to distribute the
statement through their press release channels and post the statement
to NOAA's website and Twitter.
Chris Vaccaro stated that he did not think the statement was
necessary as it was sent out five days after the events on September 1.
From his perspective, he did not think that the September 6 Statement
is a statement that would have originated from within the agency.
Interview Questions for Chris Vaccaro
Current Position and Responsibilities
Current position, duties and involvement with the
formulation and/or release of NOAA communications
Office of Communications Policies and Procedures
Role of the Office of Communications/Public Affairs within
the agency
How does your office typically interact with the National
Weather Service and other offices? How does your office
typically work with NOAA scientists to ensure compliance with
NOAA's Scientific Integrity Policy?
What is NOAA's standard process for issuing media guidance?
Are there any formal policies and procedures in place?
What is the typical internal process for NOAA to draft and
release an organization wide statement such as the September 6
Statement?
Activities Related to the Development and Release of the September 6
Statement
Describe your involvement with the activities leading up to
the September 6 Statement including your interaction with NWS,
other NOAA offices and any external entities.
Describe your involvement with the development and release
of the September 6 Statement.
______
Government Accountability Office (GAO) Interview Questions
February 11, 2020, at 10:30 a.m. Eastern Time Zone
National Academy of Public Administration, Washington, DC
As your team assessed the scientific integrity policies of
nine Federal agencies--including NOAA, can you comment on the
relative strengths and weaknesses of those policies?
Where would you rank NOAA's policies among the nine you
analyzed?
Do the nine Federal agencies you assessed have similar
processes to adjudicate allegations of scientific misconduct?
Your report and Congressional testimony allude to
allegations of Federal officials adversely affecting the
integrity of scientific information. Does GAO have
recommendations for Federal agencies to avoid inappropriate
political influence in the gathering, analysis and release of
scientific data?
How do Federal agencies differ in their definition of a loss
of Scientific Integrity?
How do Federal agencies differentiate between scientific
misconduct and loss of scientific integrity?
Do you have any suggestions as to Federal guidance on the
``generally accepted practices of scientific research?''
As discussed in the GAO report, one key component of
scientific integrity policies is ``facilitating the free flow
of scientific and technological information.'' On the other
hand, many agencies issue media guidance (e.g., instructing
staff to forward all media inquiries to the communication
office) when there is a major event or a high level of media
inquiries. Does GAO have recommendations for Federal agencies
to maintain balance between free flow of scientific information
and the need for a coordinated communication approach?
Does the initial Sept 1 tweet from the Birmingham Office
and/or the Sept 6 statement fall under the purview of NOAA's
Scientific Integrity Policies?
If one or both does, can the explain their reasoning for
their inclusion? For example, for the Sept 1 tweet, was the
tweet a ``scientific assessment''?
Regarding the tweet and statement, would all requirements
from the policy apply? For example, for the Sept 6 statement,
would the requirement to solicit a review of the statement by
the authors of the tweet (to which the statement refers) apply?
______
Dr. Leysia Palen Interview Questions
Professor of Computer Science, and Professor and Founding Chair of the
Department of Information Science, University of Colorado Boulder
February 20, 2020, at 11:00 a.m. Eastern Time Zone
Videoconference
The National Weather Service (NWS) states that its primary mission
is to protect lives and property through the timely issuance of watches
and warnings when there are hazardous weather conditions. We understand
that the use of social media by NWS to communicate severe weather
related risks is increasingly common.
When is it appropriate/effective for NWS to use social media
(Twitter, You Tube and Facebook) as a platform to communicate
weather risks?
How might this practice complement traditional approaches
such as official NOAA communications on web sites?
What is the possible downside of using social media to
communicate severe weather-related risks? Is social media
vulnerable to false and inaccurate reports?
We understand that a key challenge for forecasters during a severe
weather event is to convert the public's perception of safety (optimism
bias) to a perception of risk and to induce them to take appropriate
measures.
In your view, what is the most effective way to communicate
those risks to the general public to induce them to react
appropriately to the risks? Please comment on the advantages/
disadvantages of using clear and certain terms versus
probabilistic forecasts? Should impact statements be
conditional--what may occur if . . .?
In your view, what is the most effective way to communicate
information when you face uncertain probabilities?
Is there a related risk of losing credibility with the
public by issuing false alarms?
In a 2014 Position Statement, The American Meteorological Society
(AMS) posits that there is a ``dear and compelling need'' to enhance
the utility of weather and climate research and the dissemination of
atmospheric information using knowledge from the social sciences about
how individuals arid society interact with weather and climate.
Would you agree with this statement? If so, how can social
science research improve the dissemination of severe weather
events to the public.
How do you bridge the gap between technical science and
social science when disseminating information to the public?
______
Dr. Rebecca Morss Interview Questions
Senior Scientist and Deputy Director of the Mesoscale and Microscale
Meteorology Laboratory,
National Center for Atmospheric Research
February 22, 2020, at 12:00 p.m. Eastern Time Zone
Videoconference
The National Weather Service (NWS) states that its primary mission
is to protect lives and property through the timely issuance of watches
and warnings when there are hazardous weather conditions. We understand
that the use of social media by NWS to communicate severe weather
related risks is increasingly common.
When is it appropriate/effective for NWS to use social media
(Twitter, You Tube and Facebook) as a platform to communicate
weather risks?
Is the use of social media more effective with certain
demographics than others?
Is the use of social media more effective with certain
information products? For example--text versus a graphic
depiction of risk.
How might this practice complement traditional approaches
such as official NOAA communications on websites?
What is the possible downside of using social media to
communicate severe weather-related risks? Is social media
vulnerable to false and inaccurate reports?
We understand that a key challenge for forecasters during a severe
weather event is to convert the public's perception of safety (optimism
bias) to a perception of risk and to induce them to take appropriate
measures.
In your view, what is the most effective way to communicate
those risks to the general public to induce them to react
appropriately to the risks?
Please comment on the advantages/disadvantages of using
clear and absolute terms versus probabilistic forecasts,
In your view, what is the most effective way to communicate
information when you face uncertain probabilities?
Is there a related risk of losing credibility with the
public by issuing false alarms?
In a 2014 Position Statement, The American Meteorological Society
(AMS) posits that there is a ''clear and compelling need'' to enhance
the utility of weather and climate research and the dissemination of
atmospheric information using knowledge from the social sciences about
how individuals and society interact with weather and climate.
Would you agree with this statement? If so, how can social
science research improve the dissemination of severe weather
events to the public.
______
Appendix E: Allegations of Scientific Misconduct
Copies of the complaints submitted alleging violations of NOAA's
Scientific Integrity Policy (NAO 202 735D: Scientific Integrity) appear
in the following order in Appendix E.
Allegation 2019-007; Craig McLean
Allegation 2019-008; Dr. Lubchenco, Dr. Richard Spinrad, and
Dr. Andrew Rosenberg
Allegation 2019-009; Dr. Carl Childs
Allegation 2019-0010; Representative Paul Tonko
The copies of the complaints are followed by a table that
summarizes of the rationale for selection of the allegations under
review.
Senator Cantwell. I know the Department of Commerce
Inspector General is currently also looking into this matter,
so we will get the additions.
Mr. Walsh was apparently involved in efforts to obscure the
origins of the ill-fated citizenship question on the 2020
Census from Secretary Ross and the White House, and so I look
forward to asking questions about that.
Next, Mr. Chairman, we have Mary Toman, who was nominated
to serve as Under Secretary of Commerce for Economic Affairs.
This position oversees both the U.S. Census Bureau and the
Bureau of Economic Analysis, which puts critical information
like the Gross Domestic Product report.
And as you mentioned, Joel Szabat to serve as the Under
Secretary of Policy for the Department of Transportation. If
confirmed, he would have a key position in dealing with matters
like ensuring the safety of our transportation networks in the
wake of COVID-19 and working on the surface transportation
reauthorization bill.
And finally, Mr. O'Rielly, to serve as Commissioner of the
FCC. Welcome back. We have a lot to talk about, everything from
the Ligado decision to your views on the 5.9 megahertz to media
ownership and many, many other issues. So we will look forward
to a chance to ask you questions.
Again, Mr. Chairman, thank you for the time. I look forward
to hearing from the witnesses.
The Chairman. Thank you, Senator Cantwell.
To our witnesses, your full written statements will be
admitted into the record, and we ask each of you to summarize
your testimony at this point in 5 minutes or less. So we will
begin down at this end of the table with Mr. Szabat. You are
recognized, sir, for 5 minutes.
STATEMENT OF JOEL SZABAT, NOMINEE TO BE UNDER
SECRETARY OF TRANSPORTATION FOR POLICY,
U.S. DEPARTMENT OF TRANSPORTATION
Mr. Szabat. Chairman Wicker, Ranking Member Cantwell,
members of the Committee, thank you for the opportunity to
appear before you today and thanks to President Trump and
Secretary Chao for their continuing confidence in me. I am
grateful that this committee and your Senate colleagues saw fit
to confirm me in my current position as Assistant Secretary for
Aviation and International Affairs. I look forward to
continuing to work with each of you and your staff to
strengthen our nation?s transportation system.
Since June 2019, I have additionally been performing the
duties and responsibilities of the Under Secretary of
Transportation for Policy, for which position I have been
nominated. If confirmed, I will be the seventh Under Secretary
of Transportation for Policy since the post was created in
2002.
As a measure of my tenure in the Department of
Transportation, specifically in the Policy Office, I have
served under four of the six prior Under Secretaries. My
experience runs across each of the last three administrations,
including the first Under Secretary and the most recent. At
various times, I have run three of the four components that
comprise the Office of the Under Secretary: the Office of
Aviation and International Affairs; the Office of Policy; and
the first multimodal discretionary grant program, TIGER, which
has since morphed into the Build America Bureau.
Over the course of the last 12 months, I have tried leading
the Office of the Under Secretary on a path consistent with
Secretary Chao's vision and our statutory mandate. The
Department of Transportation is, first and foremost, a
transportation safety agency.
The release of the President's budget on February 10
previewed the administration's upcoming surface transportation
reauthorization proposal. Longer authorizations provide more
certainty to local governments and drive down construction
costs. The President's budget announced a $1 trillion 10-year
plan. The primary theme will be improvements that benefit
safety.
Since the coronavirus arrived in America earlier this year,
the Department's major focus has been battling the disease and
ensuring that our transportation systems support the ongoing
economic rebound. That has also become my primary concern as
one of the original members of the White House Coronavirus Task
Force.
Following the advice of our nation's health professionals,
the Department coordinated flight restrictions to slow the
spread of the virus. We adjusted hazardous material regulations
to allow the seamless delivery of testing kits and supplies.
As the Centers for Disease Control publishes guidelines for
safely reopening the economy, we are securing tens of millions
of face coverings for transportation passengers and workers,
truck and bus drivers, transit and train operators, pilots and
flight attendants, air traffic controllers, and many more.
These critical transportation workers are unsung heroes in the
front lines of fighting the disease. It is an ongoing honor to
be able to support them.
Prior to the coronavirus, we were already grappling with
the impact of the accelerating rate of technological change
across all modes of transportation. As technology rapidly
alters the face of transportation, it is our duty to keep pace
as a transportation safety agency. A priority of mine, in
support of Secretary Chao's vision, is to continue to work to
safely integrate emerging technologies, including drones and
other autonomous vehicles, into our existing and national
aviation and surface transportation networks.
Nobody yet knows what the new normal will be when the
immediate threat of the coronavirus recedes. Changes in how we
live and work will also drive changes in transportation. The
Office of the Under Secretary oversees or coordinates the work
of hundreds of outstanding research scientists, engineers,
statisticians, and economists. Some of them are already looking
into what changes might emerge, so we are better prepared for
them if they do.
Because of necessary social-distancing requirements, I
cannot be joined today by family, mentors, or colleagues. Since
she cannot join me, I would like to acknowledge my wife,
Chiling Tong, in absentia. A prominent Asian Pacific American
activist, she worked with a group of mostly Chinese American
organizations that have collectively purchased and distributed
over 10 million masks and other protective gear for hospitals
and emergency services in the greater New York City and
Washington, D.C. areas. This kind of citizen activism makes
Americans and America great.
Nearly 40 years ago, I began my public service as a United
States Army cavalry scout and tanker, patrolling the East-West
German border. All of us who have worn our country's uniform
well remember the camaraderie of being in a close-knit group
sharing a common mission. That spirit still animates us today.
When I tried to thank our transportation coronavirus team in
early March for working their twenty-first straight day, a
senior career executive would have none of it. ``Most of us
chose public service because we wanted to help people,'' he
said. ``Now is our time.'' I try to live up to that ethos
daily.
Thank you again for the opportunity to appear before you
today. I am happy to take your questions.
[The prepared statement and biographical information of Mr.
Szabat follow:]
Prepared Statement of Joel Szabat, Nominee for Under Secretary of
Transportation for Policy, U.S. Department of Transportation
Chairman Wicker, Ranking Member Cantwell, members of the Committee
. . .
Thank you for the opportunity to appear before you today. I am
grateful that this Committee and your Senate colleagues saw fit to
confirm me in my current position as Assistant Secretary for Aviation &
International Affairs. I look forward to continuing to work with each
of you and your staff to strengthen our Nation's transportation system.
Since June of 2019 I have additionally been performing the duties
and responsibilities of the Under Secretary of Transportation for
Policy, for which position I have been nominated. If confirmed, I will
be the seventh Under Secretary of Transportation for Policy, since the
post was created in 2002.
It is a measure of my tenure in the Department of Transportation,
specifically in the policy office, that I have served under four of the
six prior Under Secretaries. My experience runs across each of the last
three administrations, including the first Under Secretary (Jeff Shane)
and the most recent (Derek Kan). At various times I have run three of
the four components that comprise the Office of the Under Secretary:
the Office of Aviation and International Affairs; the Office of Policy;
and the first multimodal discretionary grant program (TIGER), which has
grown into the Build America Bureau.
Over the course of the last twelve months I have sought to perform
duties of the Under Secretary consistent with Secretary Chao's vision
and our statutory mandate. The Department of Transportation is, first
and foremost, a transportation safety agency.
The release of the President's budget on February 10th previewed
the Administration's upcoming Surface Transportation Reauthorization
proposal. Longer authorizations provide more certainty to local
governments, and drive down construction costs. The President's Budget
announced a $1 trillion, ten-year plan. The primary theme will be
improvements that benefit safety.
Since the coronavirus arrived in America earlier this year, the
Department's major focus has been on battling the disease, and ensuring
that our transportation systems support the ongoing economic rebound.
That has also become my primary concern, as one of the original members
of the White House Coronavirus Task Force.
Following the advice of our Nation's health professionals, the DOT
coordinated flight restrictions to slow the spread of the virus. We
adjusted hazardous material regulations to allow the seamless delivery
of testing kits and supplies.
Secretary Chao herself has been outspoken about the need for
practices that protect our front-line transportation workers as the
economy reopens. We have responded to her direction that ample face
coverings be made available to the travelling public, both for their
own health, and to protect those who serve them.
As the Centers for Disease Control publishes public health
guidelines for safely reopening the economy, we are working through
FEMA to secure tens of millions of face coverings for transportation
workers--truck and bus drivers, transit and train operators, pilots and
flight attendants, air traffic controllers, and many more. These
critical transportation workers are unsung heroes in the front lines of
fighting the disease. It is an ongoing honor to be able to support
them.
Prior to the coronavirus, we were already grappling with the impact
of an accelerating rate of technological change across all modes of
transportation. As technology rapidly alters the face of transportation
it is our duty to keep pace, as a transportation safety agency. A
priority of mine, in support of Secretary Chao's vision, is to continue
to work to safely integrate emerging technologies, including drones and
other autonomous vehicles, into our existing national aviation and
surface transportation networks. We are in the process of endorsing a
standardized list of advanced driver assistance systems terminologies
this year through the Clearing the Confusion initiative. By the end of
this year we will release the fourth iteration of our Autonomous
Vehicle Federal guidance.
Nobody yet knows what the `new normal' will be, when the threat of
the coronavirus recedes. Changes in how we live and work will also
drive changes in transportation. The Office of the Under Secretary
oversees or coordinates the work of hundreds of outstanding research
scientists, engineers, statisticians and economists. Some of them are
already looking into what changes might emerge, so we are better
prepared for them if they do.
Since my expanded role began in the Under Secretary's office a year
ago, our important work has continued apace. Through the multimodal
BUILD and INFRA programs, and related grant and loan programs within
the office, we awarded about $4 billion to over 100 projects
nationwide, annually. In the past twelve months the Build America
Bureau closed five loans in as many states, supporting $8 billion of
needed transportation infrastructure improvements, with the American
taxpayers' $2.2 billion share to be repaid. The Bureau also launched
the Railroad Rehabilitation and Improvement Financing Express Program
(``RRIF Express'') aimed at removing barriers and expediting loans to
small railroads.
In aviation, we have quickly implemented our CARES Act mandates to
preserve the Essential Air Service program, and to continue scheduled
flights to all points served by passenger air carriers receiving
financial assistance from the Treasury department. We also provided
technical assistance to the Treasury department, and validated which
applicants were bona fide air carriers. We, in conjunction with the
Federal Aviation Administration, coordinated within the Administration,
with foreign partners, and with U.S. and foreign airlines to implement
flight restrictions to slow the spread of the coronavirus. Today, we
are working with the same counterparts to plan for the safe resumption
of international air travel.
Our Office of Research and Technology has played a lead role in the
past year in advancing the Department's responsibilities in spectrum,
and as the civilian Federal government lead for the Global Positioning
Satellite system. In that capacity, we recommended against the
introduction of new broadband that would interfere with GPS, and tested
eleven potential backup technologies. We have also advocated for the
preservation of the 5.9 GHZ ``Transportation Safety Band'' to allow for
the emergence of new technologies, with a plan to deploy connected
vehicle technology in 5 million vehicles in five years.
I am especially proud of our role in coordinating and advancing
Secretary Chao's signature initiative to fight human trafficking. We
received over 200 new commitments from transportation stakeholders
through our ``One Hundred Pledges in One Hundred Days,'' outreach
campaign. These organizations will train over 1.3 million
transportation employees on how to spot trafficking, and help the
victims.
Because of necessary social-distancing requirements I cannot be
joined today by family, mentors or colleagues. Since she cannot join
me, I would like to acknowledge my wife, Chiling Tong, in absentia. A
prominent Asian Pacific American activist, she worked with a group of
mostly Chinese-American organizations that have collectively purchased
and distributed over ten million masks and other protective gear for
hospitals and emergency services in the greater New York City and
Washington D.C. areas. It is this kind of citizen activism that makes
Americans, and America, great.
Nearly forty years ago I began my public service as a United States
Army cavalry scout and tanker, patrolling the East-West German border.
All of us who have worn our country's uniform well-remember the
camaraderie of being in a close-knit group, sharing a common mission.
That same spirit animates us today. When I tried to thank our DOT
coronavirus team for working their 21st straight day, a senior career
executive would have none of it. ``Most of us chose public service
because we wanted to help people,'' he said. ``Now is our time.''
I try to live up to that ethos, daily.
Thank you again for the opportunity to appear before you today. I
am happy to take any questions.
______
a. biographical information
1. Name (Include any former names or nicknames used): Joel Matthew
Szabat.
2. Position to which nominated: Under Secretary of Transportation
Policy, U.S. Department of Transportation.
3. Date of Nomination: May 4, 2020.
4. Address (List current place of residence and office addresses):
Residence: Information not released to the public.
Office: 1200 New Jersey Ave, SE, Washington, D.C. 20590.
5. Date and Place of Birth: 25 January 1959; Fort Worth, TX.
6. Provide the name, position, and place of employment for your
spouse (if married) and the names and ages of your children (including
stepchildren and children by a previous marriage).
Spouse: Chiling Tong, Chief Executive Officer and President of
the National Asian/Pacific Islander Chamber of Commerce and
Entrepreneurship (National Ace), 1300 Pennsylvania Ave., NW,
Suite 700, Washington, D.C. 20004.
7. List all college and graduate degrees. Provide year and school
attended.
Georgetown University, 1981 BA Economics & Public
Administration.
Harvard University, 1988 MBA.
8. List all post-undergraduate employment, and highlight all
management level jobs held and any non-managerial jobs that relate to
the position for which you are nominated.
Captain, U.S. Army, 1981-86.
Management Consultant, Strategic Planning Associates, 1988-90.
Executive Officer, U.S. EPA, 1990-93.
Principal Consultant (Transportation), California State
Assembly, 1993-2001.
Principal, White Dragon Group (self-employed) 2001-02.
Deputy Assistant Secretary for Transportation Policy, USDOT,
2002-03.
Deputy Assistant Secretary for Management & Budget, USDOT,
2003-05.
Transportation Counselor, U.S. Embassy, Baghdad, Iraq, 2005.
Senior Counselor to the Secretary, USDOT, 2005-06.
Chief of Staff, Small Business Administration, 2006-08.
Deputy Assistant Secretary for Transportation Policy, USDOT,
2008-11.
Executive Officer, Maritime Administration, USDOT, 2011-18.
Deputy Assistant Secretary for Aviation & International
Affairs, USDOT, 2018-2019.
Assistant Secretary for Aviation & International Affairs,
USDOT, January 2019 to present.
Acting Under Secretary of Transportation for Policy, USDOT
(through January 2020); and Performing the Duties of the Under
Secretary January 2020-Present.
9. Attach a copy of your resume: See attached.
10. List any advisory, consultative, honorary, or other part-time
service or positions with Federal, State, or local governments, other
than those listed above, within the last ten years. None.
11. List all positions held as an officer, director, trustee,
partner, proprietor, agent, representative, or consultant of any
corporation, company, firm, partnership, or other business, enterprise,
educational, or other institution within the last ten years.
Unpaid advisor to the International Leadership Foundation (ILF), an
educational non-profit my wife and I founded in 2000.
12. Please list each membership you have had during the past ten
years or currently hold with any civic, social, charitable,
educational, political, professional, fraternal, benevolent or
religiously affiliated organization, private club, or other membership
organization. (For this question, you do not have to list your
religious affiliation or membership in a religious house of worship or
institution.). Include dates of membership and any positions you have
held with any organization. Please note whether any such club or
organization restricts membership on the basis of sex, race, color,
religion, national origin, age, or disability.
Unpaid advisor to the International Leadership Foundation (ILF), an
educational non-profit my wife and I founded in 2000.
13. Have you ever been a candidate for and/or held a public office
(elected, non-elected, or appointed)? If so, indicate whether any
campaign has any outstanding debt, the amount, and whether you are
personally liable for that debt.
Unsuccessful candidate for the Sacramento, CA Municipal Utility
District (SMUD) in 1998. No debts.
14. List all memberships and offices held with and services
rendered to, whether compensated or not, any political party or
election committee within the past ten years. If you have held a paid
position or served in a formal or official advisory position (whether
compensated or not) in a political campaign within the past ten years,
identify the particulars of the campaign, including the candidate, year
of the campaign, and your title and responsibilities. None.
15. Itemize all political contributions to any individual, campaign
organization, political party, political action committee, or similar
entity of $500 or more for the past ten years.
Judy Chu for Congress--August 6, 2011--$1,750.
McConnell Senate Committee--August 22, 2014--$2,100.
McConnell Senate Committee--October 31, 2014--$2,100.
16. List all scholarships, fellowships, honorary degrees, honorary
society memberships, military medals, and any other special recognition
for outstanding service or achievements.
Army Commendation Medal.
Army Meritorious Service Medal.
Presidential Rank Award (Meritorious Service).
USDOT War on Terror Medal.
USDOT Inspirational Leader.
Ellis Island Foundation Medal of Honor.
Distinguished Visitor, Eisenhower School for National Security
and Resource Strategy, National Defense University.
17. Please list each book, article, column, Internet blog posting,
or other publication you have authored, individually or with others.
Include a link to each publication when possible. Also list any
speeches that you have given on topics relevant to the position for
which you have been nominated. Do not attach copies of these
publications unless otherwise instructed.
No books, articles, columns, or publications. Since becoming the
Assistant Secretary for Aviation & International Affairs, and
subsequently the Acting Under Secretary I have spoken to transportation
stakeholder organizations and on panels at the Transportation Research
Board (TRB).
18. List digital platforms (including social media and other
digital content sites) on which you currently or have formerly operated
an account, regardless of whether or not the account was held in your
name or an alias. Include the name of an ``alias'' or ``handle'' you
have used on each of the named platforms. Indicate whether the account
is active, deleted, or dormant. Include a link to each account if
possible.
Facebook--Joel Szabat--dormant. I have no other social media
accounts.
19. Please. identify each instance in which you have testified
orally or in writing before Congress in a governmental or non-
governmental capacity and specify the date and subject matter of each
testimony.
(House) Committee on Small Business, March 12, 2009, Ensuring
Stimulus Contracts for Small and Veteran-Owned Businesses.
(House) Committee on Transportation & Infrastructure, March 26,
2009, DOT's Disadvantaged Business Enterprise Program.
(House) Transportation & Infrastructure Committee, Subcommittee
on Coast Guard & Marine Transportation, April 4, 2017,
Authorization of Coast Guard & Maritime Transportation
Programs.
(Senate) Committee on Appropriations, Subcommittee on
Transportation, Housing & Urban Development and Related
Agencies, April 5, 2017, Preventing Sexual Assault & Sexual
Harassment at the U.S. Merchant Marine Academy.
(Senate) Committee on Science, Commerce & Transportation, May
9, 2017, Maritime Transportation.
(Senate) Committee on Science, Commerce & Transportation,
August 23, 2018, Nominations Hearing.
(Senate) Committee on Science, Commerce & Transportation, June
19, 2019, Reauthorization of the Fixing America's Surface
Transportation (FAST) Act of 2015.
(House) Transportation & Infrastructure Committee, Subcommittee
on Aviation, September 26, 2019, 2018 FAA Reauthorization.
(Senate) Committee on Commerce, Science, and Transportation,
November 20, 2019, Highly Automated Vehicles: Federal
Perspectives on the Deployment of Safety Technology.
(Senate) Commerce Committee, Subcommittee on Transportation &
Safety, January 28, 2020, Overview of the Build America Bureau
and the U.S. Department of Transportation Rural Transportation
Initiatives.
(Senate) Commerce Committee, Subcommittee on Aviation & Space,
March 4, 2020, From SARS to Coronavirus: Examining the Role of
Global Aviation in Containing the Spread of Infectious Disease.
20. Given the current mission, major programs, and major
operational objectives of the department/agency to which you have been
nominated, what in your background or employment experience do you
believe affirmatively qualifies you for appointment to the position for
which you have been nominated, and why do you wish to serve in that
position?
I have been performing the duties of the position to which I have
been nominated since June, 2019. Because ofmy work history, I had prior
experience in most of the functions of my position before I assumed the
responsibilities.
For a year-and-a-half before I became Acting Under Secretary, I ran
the Office of Aviation & International Affairs (January 2018-June
2019), one of the four subordinate offices under the aegis of the Under
Secretary.
I have had two stints (2002-2003; 2009-2011) as Deputy Assistant
Secretary for Policy, a second office that reports to the Under
Secretary. In 2009 I was the senior career official and performed the
duties of the Under Secretary during the gap between the departure of
the political appointees of one administration, and the confirmation of
appointees for the incoming administration.
In 2009 I was also named the Federal official responsible for
overseeing DOT's $48 billion in Recovery Act funds. During this period
I oversaw the establishment of staff to oversee the first major
intermodal competitive grant program (TIGER) which has grown into a
third office (Build America Bureau) that reports to the Under
Secretary.
The Department of Transportation has a unique ``modal'' structure,
with decentralized statutory and regulatory authorities given to
organizations such as the Federal Aviation Administration and Federal
Highway Administration. The Under Secretary has to coordinate their
policy efforts with that of the rest of the Secretary's leadership. My
time as the Executive Director of the Maritime Administration (2012-
2018) gives me better understanding, experience, and credibility in
performing that coordination.
I have the good fortune to be an American, and I appreciate that
public service is a way to give back to the country. This particular
job is important. I believe I can do it well, and I have the background
to do it better than most.
21. What do you believe are your responsibilities, if confirmed, to
ensure that the department/agency has proper management and accounting
controls, and what experience do you have in managing a large
organization?
I am already responsible for ensuring that the Office of the Under
Secretary and its component offices have proper management controls. If
confirmed, I would continue that responsibility, and continue to work
closely with both the Chief Financial Officer of the Office of the
Secretary and the management and procurement staff in the Office of the
Under Secretary, who provide financial controls expertise for this
office.
During the transition between Presidents Bush and Obama, I was the
senior official managing the entire Office of the Under Secretary.
During the transition between Presidents Obama and Trump, I was the
senior official managing the Maritime Administration.
As Executive Director of the Maritime Administration, all the
program and support offices reported to me, totaling over 700 Federal
employees. As Chief of Staff of the Small Business Administration, I
directly supervised numerous staff offices, including the CFO,
procurement, human resources, administration, civil rights, and
government affairs.
In the Army, I was a Tank Platoon leader, and then the Executive
Officer and Acting Troop Commander of a Cavalry Troop of 200 officers
and soldiers.
22. What do you believe to be the top three challenges facing the
department/agency, and why?
Transportation in a Pandemic: Maintaining vital national
transportation services, and the well-being of critical infrastructure
workers, is essential to fighting COVID-19. Transportation will also
lead the national rebound, and must be positioned to do so quickly, as
the threat of the virus abates.
Safety: Safety is Secretary Chao's top priority. Safety is the
primary statutory mission of most of the component administrations
within the Department. Reducing accidents, injuries and deaths across
transportation is far and away our most important mission.
Infrastructure & Innovation: Much of our existing infrastructure is
aging-out, or is obsolete for emerging technologies. The administration
has recognized the need to reinvest in infrastructure with a ten year,
$1 trillion plan. If confirmed, I would look forward to working with
Congress on a new Surface Transportation Reauthorization. Our top
innovation challenge is to safely integrate promising new technologies
(e.g., drones, autonomous vehicles, hyperloop) into our existing
transportation system.
b. potential conflicts of interest
1. Describe all financial arrangements, deferred compensation
agreements, and other continuing dealings with business associates,
clients, or customers. Please include information related to retirement
accounts.
My arrangement are fully described in Part 3 of my Public Financial
Disclosure Report.
2. Do you have any commitments or agreements, formal or informal,
to maintain employment, affiliation, or practice with any business,
association or other organization during your appointment? If so,
please explain. No.
3. Indicate any investments, obligations, liabilities, or other
relationships which could involve potential conflicts of interest in
the position to which you have been nominated. Explain how you will
resolve each potential conflict of interest.
In connection with the nomination process, I have consulted with
the Office of Government Ethics and the Department of Transportation's
(DOT) Designed Agency Ethic Official to identify potential conflicts of
interest. Further any potential conflicts of interest will be resolved
in accordance with the terms of the ethics agreement that I have
entered into with DOT's Designated Agency Ethics Official and that has
been provided to this Committee. I am not aware of any other potential
conflicts of interest.
4. Describe any business relationship, dealing, or:financial
transaction which you have had during the last ten years, whether for
yourself, on behalf of a client, or acting as an agent, that could in
any way constitute or result in a possible conflict of interest in the
position to which you have been nominated. Explain how you will resolve
each potential conflict of interest.
In connection with the nomination process, I have consulted with
the Office of Government Ethics and the Department of Transportation's
(DOT) Designed Agency Ethic Official to identify potential conflicts of
interest. Further any potential conflicts of interest will be resolved
in accordance with the terms of the ethics agreement that I have
entered into with DOT's Designated Agency Ethics Official and that has
been provided to this Committee. I am not aware of any other potential
conflicts of interest.
5. Identify any other potential conflicts of interest, and explain
how you will resolve each potential conflict of interest.
In connection with the nomination process, I have consulted with
the Office of Government Ethics and the Department of Transportation's
(DOT) Designed Agency Ethic Official to identify potential conflicts of
interest. Further any potential conflicts of interest will be resolved
in accordance with the terms of the ethics agreement that I have
entered into with DOT's Designated Agency Ethics Official and that has
been provided to this Committee. I am not aware of any other potential
conflicts of interest.
6. Describe any activity during the past ten years, including the
names of clients represented, in which you have been engaged for the
purpose of directly or indirectly influencing the passage, defeat, or
modification of any legislation or affecting the administration and
execution of law or public policy.
As a Federal government employee since 2002, I have only ever been
involved in representing the administration's position on legislative
matters.
c. legal matters
1. Have you ever been disciplined or cited for a breach of ethics,
professional misconduct, or retaliation by, or been the subject of a
complaint to, any court, administrative agency, the Office of Special
Counsel, professional association, disciplinary committee, or other
professional group? If yes:
a. Provide the name of agency, association, committee, or group;
b. Provide the date the citation, disciplinary action, complaint, or
personnel action was issued or initiated;
c. Describe the citation, disciplinary action, complaint, or
personnel action;
d. Provide the results of the citation, disciplinary action,
complaint, or personnel action.
No.
2. Have you ever been investigated, arrested, charged, or held by
any Federal, State, or other law enforcement authority of any Federal,
State, · county, or municipal entity, other than for a minor
traffic offense? If so, please explain. No.
3. Have you or any business or nonprofit of which you are or were
an officer ever been involved as a party in an administrative agency
proceeding, criminal proceeding, or civil litigation? If so; please
explain. No.
4. Have you ever been convicted (including pleas of guilty or nolo
contendere) of any criminal violation other than a minor traffic
offense? If so, please explain. No.
5. Have you ever been accused, formally or informally, of sexual
harassment or discrimination on the basis of sex, race, religion, or
any other basis? If so, please explain. No.
6. Please advise the Committee of any additional information,
favorable or unfavorable, which you feel should be disclosed in
connection with your nomination. None.
d. relationship with committee
1. Will you ensure that your department/agency complies with
deadlines for information set by congressional committees, and that
your department/agency endeavors to timely comply with requests for
information from individual Members of Congress, including requests
from members in the minority?
Yes, insofar as it is in my power to do so.
2. Will you ensure that your department/agency does whatever it can
to protect congressional witnesses and whistle blowers from reprisal
for their testimony and disclosures? Yes.
3. Will you cooperate in providing the Committee with requested
witnesses, including technical experts and career employees, with
firsthand knowledge of matters of interest to the Committee? Yes.
4. Are you willing to appear and testify before any duly
constituted committee of the Congress on such occasions as you may be
reasonably requested to do so? Yes.
______
Resume of Joel Szabat
2002-2006, 2008-Present
US Department of Transportation (DOT)
Washington, DC
Acting Under Secretary for Transportation Policy June 2019-present.
Direct DOT's offices of Aviation & International Affairs, Policy,
Research and the Build America Bureau. Manage 800 Federal employees and
a $1 billion annual budget. Advise the Secretary on policy and research
initiatives; help shape DOT's annual budget requests. Represent DOT on
the Amtrak Board of Directors; DOT's representative on the White House
Coronavirus Task Force.
Assistant Secretary for Aviation & International Affairs: January 2018-
present. Confirmed in position January 2019. As Deputy Assistant
Secretary ran the office in the absence of a non-career appointee from
January 2018 until confirmed. Oversee staff that: negotiates agreements
for U.S. air carriers to operate internationally; licenses all foreign
and domestic air carriers to operate in the United States; rules on
airline merger and joint venture requests; manages the Essential Air
Service and Small Community Air Service Development grant programs; and
coordinates international activities and policy for the Secretary
across DOT.
Executive Director of the Maritime Administration (MARAD) from 2011-
2018. MARAD's senior career official and Chief Operating Officer,
overseeing MARAD's career staff of nearly 800 Federal employees, and
several hundred contractors, with an annual budget of over $700
million, and over $1 billion of outstanding loans and grants. MARAD
runs the Nation's only civilian Federal service academy (university),
the United States Merchant Marine Academy at King's Point, New York.
MARAD maintains a reserve fleet of cargo ships for military sealift and
manages a commercial program including most of the US-flag
international fleet. MARAD rose from the bottom third to the top half
of agencies in the Federal Best Places to Work survey, during this
period.
Deputy Assistant Secretary for Transportation Policy from 2002-2003,
2008-2011. Named DOT's Federal officer responsible for the Recovery Act
in 2009. Stood up a dozen programs, which invested $48 billion in over
15,000 road, transit and rail surface transportation projects
nationwide. Oversaw the initial development and administration of the
first three rounds of TIGER grants. Coordinated a seven-federal agency
effort in 2002 under a Presidential executive order, to streamline
project reviews of key transportation infrastructure. Co-chaired, along
with the Department of Defense, the steering group of a multi-agency
committee that developed and coordinated the Federal government's GPS
policy. Managed budget, staff and contract resources for the Office of
the Under Secretary, including Aviation & International Affairs.
Senior Counselor for Transportation Infrastructure from 2005-2006.
Advised Secretary. Led special projects such as Pandemic Flu
preparation, reviewing research and development across the department,
and Hurricane Katrina Lessons Learned.
Deputy Assistant Secretary for Management & Budget from 2003-2005. Led
DOT's participation in the President's Management Agenda. Tied for
first Federal agency to meet all requirements in four measured areas
(Human Capital, Budget and Performance Integration, Competitive
Sourcing, E-Government).
2006-2008
Chief of Staff, Small Business Administration
Washington, DC
Spearheaded the creation of the Patriot Express loan program, to help
veterans and their families. Helped to reform SBA's disaster-assistance
program, and to establish a public scorecard to track the progress of
Federal agencies in meeting their small business contracting goals.
Supervised the Chief Financial Officer, Human Resources, and other
administration. Inherited the lowest score among large agencies in the
Best Places to Work survey. The very next survey gave SBA the largest
increase (30 percent) of any large Federal agency.
February 2005-September 2005
Transportation Counselor to the Ambassador
Baghdad, Iraq
Directed the U.S. government's transportation reconstruction program in
Iraq. Managed $544m in Federal funds, and coordinated with foreign
governments, to restore ports, airports and railroads in Iraq.
2001-2002
Principal, White Dragon Group
Sacramento, CA
Advised Asian Pacific American business leaders on how to increase
their civic engagement and effectiveness.
1993-2001
Principal Consultant for Transportation, California State Assembly
Sacramento, CA
Served as the minority (Republican) party's sole transportation
consultant. Analyzed bills, recommended how to vote, negotiated with
stakeholders and with the majority. Developed a proposal for long-term
infrastructure investment in California (the `20/20 vision'), adopted
by the party.
1990-1993
Executive Officer, U.S. Environmental Protection Agency
Washington, DC--Sacramento, CA
Advised the Administrator and Deputy Administrator on management,
budget and personnel issues. Piloted a program to embed Federal
officials with state governments for better federal-state cooperation.
1988-1990
Associate, Strategic Planning Associates (now Mercer Management)
Washington, DC
As a management consultant, advised railroad and trucking firms. Helped
develop an economic pricing model for long-haul trucking.
1981-1986
Captain, United States Army
Fulda Gap, Germany--Fort Devens, Massachusetts
Led a tank platoon and an Armored Cavalry Troop, as Executive Officer
and Acting Commander, patrolling the East-West German border during the
Cold War.
Education
Received a B.A. in Economics and Government from Georgetown University
(1981) and an MBA from Harvard Business School (1988)
Personal
Born in Texas; grew up in Massachusetts. Co-founded the International
Leadership Foundation (ILF), a non-profit organization promoting public
service for Asian Pacific American college students. Married to Chiling
Tong, a prominent APA activist, and co-founder of the ILF.
Received the Presidential Meritorious Rank Award for leading the
Recovery Act and TIGER within DOT. Named an `inspirational leader' in
DOT in 2015. Earned the Meritorious Service Medal in the Army, and
awarded the Ellis Island Foundation Medal of Honor for work with the
Asian Pacific American community.
Career and Non-Career Positions
Appointed to a Schedule C (Administratively Determined) position at
USEPA from 1990-1993. Appointed to a Schedule C Senior Executive
Service position from 2002-2008. While at the Small Business
Administration in 2008, applied to, and was accepted for, a vacant
career Senior Executive Service position at USDOT. Career SES in USDOT
from 2008-2019. Became Presidentially-appointed Senate-confirmed (PAS)
Assistant Secretary in January, 2019.
The Chairman. Thank you, Mr. Szabat.
Commissioner O'Rielly.
STATEMENT OF MICHAEL P. O'RIELLY, NOMINEE TO BE A MEMBER,
FEDERAL COMMUNICATIONS COMMISSION
Mr. O'Rielly. Chairman Wicker, Ranking Member Cantwell, and
members of the Committee, I sincerely appreciate the
opportunity to appear before you to discuss my nomination for a
new term at the Federal Communications Commission.
During my tenure, I have absolutely loved serving the
American people and will be honored to continue in my position
at the Commission, if you deem it appropriate. FCC work is both
challenging and rewarding, and I believe that there is so much
more that I can accomplish to improve the communication
landscapes in the years to come.
Nearly 7 years ago during my original confirmation hearing,
I promised the Committee that I would seek to work with my
fellow colleagues, to the extent possible, to find common
ground. I think my record since suggests that I have kept my
word. In sum, my commitment has been to find and support good
ideas and sound policy outcomes no matter where or from whom
they originate.
Throughout, I have tried to stay true to my original
commitments in approaching my role as a Commissioner. My
principles are used as an important prism that guides me in my
review of the issues, and I have focused on limiting the costs
and burdens on the American people from new regulations and
eliminating existing regulations that are no longer necessary.
Regardless of my personal views on a particular matter,
however, I am always beholden to the will of Congress.
Substantively, one area on which I have spent considerable
attention and energy is FCC process reform, which gets few
headlines and little attention from practitioners. I firmly
believe that transparency, accountability, and responsiveness
of the Commission can be improved for the betterment of our
decisionmaking and the American people.
On policy matters, there is much work ahead. The biggest
issue facing the Commission is how to bring broadband to those
Americans without service. I am painfully aware of this
demographic despite our poor mapping and related data. It is
indisputable that broadband brings many benefits to those who
are able to obtain it. Having traveled the Nation and heard
from American families and businesses that do not have access,
I am committed as ever to shrinking this population as fast as
possible in a thoughtful way.
Second and on a related note, since wireless broadband is a
key part of solving this problem, the Commission must identify
and reallocate additional spectrum bands for new wireless
services, including 5G, 6G, and beyond. It is essential that
the mid-band pipeline, which lies mostly empty, be replenished
in the very near term. Absent this, we face the real risk that
the U.S. will lose its preeminent position in global wireless
leadership.
Finally, there has been considerable debate in Congress and
elsewhere about the regulatory treatment of the U.S. high
technology community. Recently, the conversation has focused on
the legal liability protections provided to high-tech companies
and others offering applications or platforms for third party
content. If asked to intervene, I intend to fully explore all
of the extremely complex and relevant issues involved. Like my
practice of reading every item on which I am asked to vote, you
can be assured that I will do my homework on this important
subject as well.
I thank the Committee for its consideration of my
nomination and stand ready to answer any questions you may
have.
[The prepared statement and biographical information of Mr.
O'Rielly follow:]
Prepared Statement of Michael P. O'Rielly, Commissioner,
Federal Communications Commission
Chairman Wicker, Ranking Member Cantwell, and Members of the
Committee: I sincerely appreciate the opportunity to appear before you
to discuss my nomination for a new term at the Federal Communications
Commission, especially in the midst of the current COVID-19 pandemic
facing our Nation.
Many Members of the Committee may be familiar with me from my many
years at the FCC or from just short of twenty years working on Capitol
Hill. I have absolutely loved serving the American people and would be
honored to continue in my position at the Commission, if you deem it
appropriate. The work is both challenging and rewarding, and I believe
that there is so much more that I can accomplish to improve the
communications landscape in the years to come.
Nearly seven years ago, during my original confirmation hearing, I
promised the Committee that I would seek to work with my fellow
colleagues, to the extent possible, to find common ground. I think my
record since then suggests that I kept my word. Former Chairman Tom
Wheeler, with whom I strongly disagreed on many issues, collaborated
with me on numerous important matters, including reforming legacy rate-
of-return regulation to promote broadband buildout. Similarly, I have
worked with Commissioner Rosenworcel and former Commissioner Clyburn on
a fair number of projects and issues. I have also joined with--and
occasionally opposed--my fellow Republican colleagues to advance
communications policy. While most of the time I have agreed with
Chairman Pai's priorities, there have been some disagreements from time
to time that may not have been necessarily visible to the public. You
can be assured that I have worked behind the scenes to effectuate
changes to those items, or portions thereof, that I couldn't support as
presented. As is his reputation, Chairman Pai has been incredibly
gracious in working with me to improve these items to mitigate my
concerns. In sum, my commitment has been to find and support good ideas
and sound policy outcomes, no matter where or from whom they originate.
Throughout, I have tried to stay true to my original commitments in
approaching my role as commissioner. As a self-admitted conservative
Republican and firm defender of freedom, my principles are used as an
important prism that guide me in my review of the issues, and I have
focused on limiting the costs and burdens on the American people from
new regulations and eliminating existing regulations that are no longer
necessary. Regardless of my personal views on a particular matter,
however, I am always beholden to the will of Congress: if Congress has
not provided authority to act, then I have respected those constraints
on our authority and openly opposed moving forward. Alternatively, if
the Commission has been directed to take specific action, I have always
voted to approve corresponding Commission implementation efforts. My
fidelity remains to the statutory provisions as written by Congress,
along with the FCC public record on any given topic. That said, the
record in any proceeding is not a counting exercise or polling matter.
A thoughtful submission, well-grounded in the law and Commission
precedent, can and does outweigh thousands of form e-mails containing
little real substance.
One area that on which I have spent considerable attention and
energy is improving the inner workings of the Commission. FCC process
reform, which gets few headlines and little attention from
practitioners, has been an important issue set for me--whether in the
minority or majority. From making the text of items publicly available
three weeks before a Commission Open Meeting, to my 60-plus procedural
ideas, to my recent call for video conferencing to increase the
accessibility of FCC meetings during COVID-19, I firmly believe that
the transparency, accountability, and responsiveness of the Commission
can be improved, for the betterment of our decision making and the
American people. I appreciate that a number of my ideas have been
incorporated into our procedures, but I believe there is more work to
be done. Further, any improvements that have been made should be
maintained and not erased at the whim of a new chair.
On policy matters, there is much work ahead. I believe the biggest
issue facing the Commission is how to bring broadband to those
Americans without service. While some want to focus on affordability,
and others on ensuring multiple competitors within a market, I have
focused my time and efforts on bringing service to those millions of
Americans without any access to broadband at all. I am painfully aware
of this demographic, despite our poor mapping and related data. It is
indisputable that broadband brings many benefits to those who are able
to obtain it, and this is especially true in circumstances like the
pandemic we face today. Having travelled the Nation and heard from
American families and businesses that don't have access, I am committed
as ever to shrinking this population as fast as possible in a
thoughtful way.
Secondly, and on a related note, since wireless broadband is a key
part of solving this problem, the Commission must identify and
reallocate additional spectrum bands for new wireless services,
including 5G, 6G, and beyond. As a lead advocate for both 3.5 GHz and
C-Band, I have worked extensively to make more mid-band spectrum
available, but the progress we have made is not enough. The 350
megahertz of licensed spectrum in both the 3.5 GHz band, which has
certain limitations, and C-Band will not meet the future spectrum needs
of new technology and the mobility-demanding public. It is essential
that the mid-band pipeline, which lies mostly empty, be replenished in
the very near term. Absent this, we face the real risk that the U.S.
will lose its preeminent position in global wireless leadership.
Preventing such an outcome means that the Commission is likely headed
for future clashes with those entities occupying the most ideal mid-
band spectrum.
I have also been at the forefront of identifying additional bands
for unlicensed use. Early on, I identified the 6 GHz band, which is
located near the 5 GHz spectrum so prevalent in our existing Wi-Fi
systems, as the best opportunity to expand unlicensed opportunities and
provide the larger bandwidth channels needed for greater capacity,
higher speed, and lower latency Wi-Fi, along with other unlicensed
offerings. The Commission recently opened these frequencies for some
unlicensed uses, and I hope to expand upon our technical rules to
permit even more uses in the future, such as for very low power
devices.
Finally, there has been considerable debate in Congress and
elsewhere about the regulatory treatment of the U.S. high technology
community. Generally, the FCC does not have authority over many of the
issues pertaining to these companies. Recently, the conversation has
focused on the legal liability protections provided to high-tech
companies and others offering applications or platforms for third party
content. If asked to intervene, I intend to fully explore all of the
extremely complex and relevant issues involved. Prior to getting to
that point, I believe that the Commission would benefit from seeking
public comment on any forthcoming petition to be filed by the National
Telecommunications and Information Administration from a wide range of
experts, including constitutional scholars, academics, and public
policy leaders, on issues such as the Commission's jurisdiction and the
First Amendment implications of any action under consideration. Like my
practice of reading every item on which I am asked to vote, you can
expect that I will do my homework on this important subject as well.
I thank the Committee for its consideration of my nomination and
stand ready to answer any questions you may have.
______
a. biographical information
1. Name (Include any former names or nicknames used): Michael
Patrick O'Rielly.
2. Position to which nominated: Commissioner, Federal
Communications Commission.
3. Date of Nomination: March 18, 2020.
4. Address (List current place of residence and office addresses):
Residence: Information not released to the public.
Office: Federal Communications Commission, 445 12th Street, SW,
Room 8-A302, Washington, DC 20554.
5. Date and Place of Birth: July 8, 1971; Lockport, NY.
6. Provide the name, position, and place of employment for your
spouse (if married) and the names and ages of your children (including
stepchildren and children by a previous marriage).
Sarah Elizabeth Goss O'Rielly, Cash Forecasting and Modeling
Advisor, Office of the Chief Financial Officer, Government of
the District of Columbia.
7. List all college and graduate degrees. Provide year and school
attended.
University of Rochester, 1993, Bachelor of Arts, Political
Science.
8. List all post-undergraduate employment, and highlight all
management level jobs held and any non-managerial jobs that relate to
the position for which you are nominated.
A. Federal Communications Commission, Commissioner, November 2013 to
present, management.
B. Office of the Senate Republican Whip, Senator John Cornyn, Policy
Advisor, January 2013 to November 2013.
C. Office of the Senate Republican Whip, former Senator Jon Kyl,
Deputy Chief of Staff and Policy Director, April 2012 to
January 2013, management.
D. Office of the Senate Republican Whip, former Senator Jon Kyl,
Policy Advisor, July 2010 to April 2012.
E. Senate Republican Policy Committee, Senator John Thune and former
Senator John Ensign, Policy Analyst, January 2009 to July 2010.
F. Former Senator John E. Sununu, Legislative Director, January 2007
to January 2009, management.
G. Former Senator John E. Sununu, Legislative Assistant, January
2003 to January 2007.
H. House of Representatives' Committee on Energy & Commerce, former
Chairman W.J. ``Billy'' Tauzin and former Chairman Tom Bliley,
Professional Staff Member, January 1998 to January 2003.
I. House of Representatives' Committee on Energy & Commerce, former
Chairman Tom Bliley, Telecommunications Policy Analyst, January
1995 to January 1998.
J. Former Representative Tom Bliley, Legislative Assistant, January
1994 to January 1995.
9. Attach a copy of your resume.
Attached.
10. List any advisory, consultative, honorary, or other part-time
service or positions with Federal, State, or local governments, other
than those listed above, within the last ten years. Not Applicable.
11. List all positions held as an officer, director, trustee,
partner, proprietor, agent, representative, or consultant of any
corporation, company, firm, partnership, or other business, enterprise,
educational, or other institution within the last ten years. Not
Applicable.
12. Please list each membership youhavehad during the past ten
years or currently hold with any civic, social, charitable,
educational, political, professional, fraternal, benevolent or
religiously affiliated organization, private club, or other membership
organization. (For this question, you do not have to list your
religious affiliation or membership in a religious house of worship or
institution.). Include dates of membership and any positions you have
held with any organization. Please note whether any such club or
organization restricts membership on the basis of sex, race, color,
religion, national origin, age, or disability.
Member, Knights of Columbus, Arlington VA Chapter, (March 2017 to
present); membership is based on a male holding the Catholic faith.
13. Have you ever been a candidate for and/or held a public office
(elected, non-elected, or appointed)? If so, indicate whether any
campaign has any outstanding debt, the amount, and whether you are
personally liable for that debt. No.
14. List all memberships and offices held with and services
rendered to, whether compensated or not, any political party or
election committee within the past ten years. If you have held a paid
position or served in a formal or official advisory position (whether
compensated or not) in a political campaign within the past ten years,
identify the particulars of the campaign, including the candidate, year
of the campaign, and your title and responsibilities.
Volunteer: Health, Education, & Crime Policy Staff, 2012 Republican
Platform Committee.
15. Itemize all political contributions to any individual, campaign
organization, political party, political action committee, or similar
entity of $500 or more for the past ten years. None.
16. List all scholarships, fellowships, honorary degrees, honorary
society memberships, military medals, and any other special recognition
for outstanding service or achievements.
A. CTIA Wireless Foundation, Mobile Life Award, 2018.
B. Phoenix Center for Advanced Legal & Economic Public Policy
Studies, Jerry B. Duval Public Service Award, 2018.
C. Wireless Connect, Spectrum Champion of the Year, 2019.
D. Wi-Fi Alliance, Commitment to Wi-Fi Award, 2019.
E. Women in Cable Telecommunications, Washington/Baltimore Chapter,
Touchstones of Leadership Outstanding Public Service Award,
2019.
F. New York State Broadcasters Association, Inc., New Yorker of the
Year, 2019.
17. Please list each book, article, column, Internet blog posting,
or other publication you have authored, individually or with others.
Include a link to each publication when possible. Also list any
speeches that you have given on topics relevant to the position for
which you have been nominated. Do not attach copies of these
publications unless otherwise instructed.
Columns
1. The Hill, ``FCC's grab for new regulatory power could go beyond
broadband providers,'' May 6, 2014
2. National Review Online, ``Net Neutrality & Cost Benefit
Analysis'' (with then Rep. Blackbum), July 10, 2014
3. Politico, ``FCC's Lifeline Program Ripe for Fraud, Abuse'' (with
then Rep. Blackburn), July 12, 2015
4. WSJ, ``The Consequences of a Washington Internet Power Grab,''
(with then FTC Commissioner Maureen Ohlhausen, August 8, 2015
5. The Hill, ``Improving the 5.9 GHz band to enhance unlicensed and
Wi-Fi networks'' (with Rep. Latta), March 2, 2016
6. National Review Online, ``The Path to protecting Americans
Online,'' April 7, 2017
7. Roll Call, ``Opinion: Stop the Next Internet Power Grab'' (with
Sen. Cruz), November 21, 2017
8. The Hill, ``States are stealing funds from 9-1-1 emergency
services now they'll be punished'' (with FCC Commissioner
Rosenworcel), February 9, 2018
9. WSJ, ``A Smarter Approach to Saturday Morning Cartoons,'' June
20, 2018
10. National Review Online, ``A Solid Process and Proposal to Update
Kid Vid,'' July 5, 2018
11. The Hill, ``Reining in UN's little known International
Telecommunication Union,'' August 8, 2018
12. Morning Consult, ``Empowering U.S. 5G by Fixing the CBRS
Rules,'' October 2, 2018
13. The Hill, `` `Kid Vid' TV rules are growing up,'' July 19, 2019
Official FCC Blog (available on FCC Website)
1. Blog Introduction and Views on E-Rate Reform, February 12, 2014
2. Thoughts on Broadcast Television JSAs and SSAs, February 9, 2014
3. Duplication Alert: Broadband Pilot Projects, March 5, 2014
4. TCPA: It is Time for Clarity, March 25, 2014
5. On the Rise: Regulating Through Pilot Programs, April 10, 2014
6. E-Labeling Deserves Serious Consideration, April 25, 2014
7. FCC Needs to Improve its 911 and IPv6 Compliance, June 2, 2014
8. With an Eye Towards WRC 2015, June 9, 2014
9. Introducing the Internet to the FCC's Contest Rules, June 16,
2014
10. Disturbing Trend in USF Funding, July 7, 2014
11. Most Definitely: Terminate Dormant Proceedings, July 8, 2014
12. Post Text of Meeting Items in Advance, August 7, 2014
13. Alaska: Lessons Learned, September 5, 2014
14. USF Contribution Factor Over Time, September 11, 2014
15. Harmful Consumer Wireless Behavior and Practices, October 14,
2014
16. More Pocket Dialing, October 30, 2014
17. Lessons of the 2014 Plenipot, November 17, 2014
18. Expanding FCC Use of Electronic Communications, January 14, 2015
19. Update on Advanced Posting of Commission Meeting Items, January
l6, 2015
20. Municipal Broadband: A Snapshot, January 30, 2015
21. Delegated Authority: Serious Objections and Solutions, February
2, 2015
22. Sound Principles for Lifeline Reform, February 13, 2015
23. Embrace the Internet for EEO ``Widely Disseminated Rule,''
February 20, 2015
24. Driving Wi-Fi Ahead: The Upper 5 GHz Band, February 23, 2015
(with Commissioner Rosenworcel)
25. Affirmatively Expand Permissible Foreign Ownership, March 3,
2015
26. Fixing Flawed and Non-Existent ``Editorial Privileges,'' March
9, 2015
27. USF High-Cost Programs: Best and Realistic Timelines, March 24,
2015
28. AWS-3 Auction: Lessons Learned, March 27, 2015
29. FCC Pre-Adoption Process Also Needs Work, April 1, 2015
30. Consider a New Way to Combat Pirate Radio Stations, April 8,
2015
31. Guest Speakers & Questions at FCC Open Meetings, April 10, 2015
32. Problems with FCC Advisory Committees, May 1, 2015
33. Accountability for Enforcement Penalties & Fines, May 14, 2015
34. Setting Timelines for Revisiting Agency Decisions, July 10, 2015
35. Revamping predicative Judgments & Interim Rules, July 27, 2015
36. Enacting More ``Sticks'': Spectrum Fees for Government Users,
September 8, 2015
37. Steering into the Future with More Wi-Fi by Sharing the Upper 5
GHz Band, September 16, 2015
38. Team Telecom Needs More Structure, September 18, 2015
39. A Draft Pirate Radio Policy and Enforcement Statement, September
24, 2015
40. Improving Broadcasters' Physical Security, September 29, 2015
41. Rethinking Outdated Voice Regulations, November 12, 2015
42. Fixing a Problem with the Hearing Aid Compatibility Mandate,
November 30, 2015
43. A Starting Point for CAF Post-ROFR Auction, December 10, 2015
44. Regulation by Citation, January 5, 2016
45. 2015 World Radiocommunication Conference: A Troubling Direction,
January 15, 2016
46. Defending Capitalism in Communications, February 12, 2016
47. Stop Unfairly Censoring Commissioners, February 24, 2016
48. Lifeline Reform: Add a Hard Budget, March 3, 2016
49. Improving the FCC Circulation Process, May 31, 2016
50. Principles for Media Ownership Reform, June 3, 2016
51. Defining Auto Safety of Life in 5.9 GHz, June 8, 2016
52. Debunking Anti-App Claims, June 27, 2016
53. Snapshot of Process Reform Ideas, July 8, 2016
54. A Path for Mobility Fund Phase II? July 25, 2016
55. Ending Cable Signal Leakage Rules for Fiber Builds, September
16, 2016
56. Preserving Consumer Privacy Trades, September 21, 2016
57. Set Top Box End Game, October 4, 2016
58. Federal Broadband Infrastructure Spending: Potential Pitfalls,
February 1, 2017
59. Needed: A Universal FCC Deadline Policy, February 8, 2017
60. A Modified Delegated Authority Proposal, February 22, 2017
61. States Must Stop Raiding9-l-l Fees, March 1, 2017
62. Taking Stock of FCC Paperwork Burdens, March 3, 2017
63. New Tower Marking Provision Could Use Tweaks, March 10, 2107
64. Improved Staff Openness & New Priorities, March 22, 2017
65. International Efforts to Regulate the Internet Continue, April
21, 2017
66. Would Means-Testing Bring More Efficiencies to the High-Cost
Program? May 31, 2017
67. A Mid-Band Spectrum Win in the Making, July 10, 2017
68. How to Free Up Government Held Spectrum in the Face of
Increasing Budgetary Pressure, September 6, 2017
69. Thoughtfully Modernizing the Commission's Media Ownership Rules,
October 20, 2017
70. Repairing the Must Vote Timing, January 9, 2018
71. Its Time to Reexamine the FCC' s Kid Vid Requirements, January
26, 2018
72. Defining Recoverable Expenses for Rate-of-Return Providers,
(with former Commissioner Mignon Clyburn), January 31, 2018
73. Paper FCC Record: Why in the World? February 2, 2018
74. Abusing Section 1, February 21, 2018
75. Experienced Advice for New Broadband Program, April 11, 2018
76. Debunking the Sinclair Agenda Myth, May 18, 2018
77. FCC Regulatory Free Arena, June 1, 2018
78. Status Update: Fixing the 9-1-1 Fee Diversion, June 8, 2018
79. Status Update: Fixing 9-1-1 Fee Diversion, November 29, 2018
80. Muni Broadband's Ominous Threat to the First Amendment, December
13, 2018
81. Further Improving the FCC' s Procedures, December 20, 2018
82. A Needed USF Budgetary Cap, April 2, 2019
83. Substantive Objections to a Government 5G Wholesale Network, May
7, 2019
84. More Media Modernization: Program Carriage Process& Cable
Operator Interests Recordkeeping, January 28, 2020
85. The 3.5 Auction is Finally a Go!, February 7, 2020
Speeches (available on FCC website)
1. Remarks before the Hudson Institute, January 27, 2014
2. Remarks before the Federal Communications Bar Association,
April 1, 2014
3. Remarks before the Media Institute, June 19, 2014
4. Remarks before the LinkIDAHO 2014 Broadband Summit, September
2, 2014
5. Remarks before the NTCA Telecom Policy Summit, October 27, 2014
6. Remarks before the Free State Foundation, November 14, 2014
7. Remarks before the U.S. Chamber of Commerce, November 17, 2014
8. Remarks before American Enterprise Institute Luncheon, January
21, 2015
9. Remarks before NAB State Leadership Conference, February 24,
2015
10. Remarks before WISPAmerica2015, February 25, 2015
11. Remarks before Association of National Advertisers, April 1,
2015
12. Remarks before 2015 NAB Show, April 14, 2015
13. Remarks before the 2015 Wireless Infrastructure Show, April 28,
2015
14. Remarks before the WTA-Advocates for Rural Broadband, May 5,
2015
15. Remarks before the Federal Communications Bar Association
Annual Meeting, June 11, 2015
16. Remarks before the NY State Broadcasters Association, June 23,
2015
17. Remarks before the Internet Innovation Alliance, June 25, 2015
18. Remarks before the Free State Foundation, July 28, 2015
19. Remarks before the Rural Wireless Association, September 11,
2015
20. Remarks before the Prosperity Caucus, September 22, 2015
21. Remarks before former Rep. Dave Brat's Spotsylvania, VA Town
Hall, September 24, 2015
22. Remarks before PACE 2015 TCPA Washington Summit, September 28,
2015
23. Remarksbeforethe2015 NAB Radio Show, October 1, 2015
24. Remarks before the Competitive Carrier Association, October 7,
2015
25. Remarks before New America, January 12, 2016
26. Remarks before the Country Radio Seminar 2016, February 9, 2016
27. Remarks before the NAB State Leadership Conference, February
23, 2016
28. Remarks before Faegre Baker Daniels Insights Luncheon, March 8,
2016
29. Remarks before the FCC's Spectrum Frontiers Workshop, March 10,
2016
30. Remarks before American Action Forum, March 29, 2016
301 Remarks before 2016 NAB Show, April 18, 2016
32. Remarks before the FCC's DAS & Small Cell Solutions Workshop,
May 3, 2016
33. Remarks before the Advanced Television Systems Committee, May
11, 2016
34. Remarks before Hogan Lovells' Technology Forum, May 25, 2016
35. Remarks before New Jersey Broadcasters Association 2016
Conference, June 23, 2016
36. Remarks before Broadband for All Seminar, June 27,2016
37. Remarks before the Communications Consulting Engineers,
September 16, 2016
38. Remarks before the International Bar Association Conference,
September 20, 2016
39. Remarks before the TPRC Research Conference, September 30, 2016
40. Remarks before Hudson Institute, October 13, 2016
41. Remarks before the International Broadcasters Idea Bank
Conference, October 19, 2016
42. Remarks before Catholic University School of Law, November 3,
2016
43. Remarks before the Free State Foundation, December 7, 2016
44. Remarks before the New England Ratepayers Association, December
7, 2016
45. Remarks before the Satellite Industry Association, March 7,
2017
46. Remarks before the Hispanic Radio Conference, March 28, 2017
47. Remarks before NG91 l Institute Lunch and Learn: Challenges and
Opportunities for Funding the Future 9-1-l, April 12, 2017
48. Remarks before the Broadband Deployment Advisory Committee,
April 21, 2017
49. Remarks before 2017 NAB Show, April 25, 2017
50. Remarks before Freedomworks & SBE Council Event, April 26, 2017
51. Remarks before ACA International's Washington Insights
Conference, May 4, 2017
52. Remarks before ALEC Task Force Summit, May 5, 2017
53. Remarks before the Media Institute Luncheon, May 11, 2017
54. Remarks before the Wireless Infrastructure Show, May 23, 2017
55. Remarks before CITEL PCC. II Delegation, June 26, 2017
56. Remarks before Free State Foundation, July 25, 2017
57. Remarks before the CBRS Alliance, August 1, 2017
58. Remarks before the Americans for Prosperity Summit, August 2l,
2017
59. Remarks before the 7th Congreso Internacional de Espectro,
September 6, 2017
60. Remarks before Latin America Spectrum Management Conference,
September 7, 2017
61. Remarks before WTA's Fall Conference, September 19, 2017
62. Remarks before 5G Americas' Tech Briefing, October 5, 2017
63. Remarks before the IIC International Regulators Forum 2017,
October 10, 2017
64. Remarks before the IIC Annual Conference 2017, October 11, 2017
65. Remarks before the Americas Spectrum Management Conference,
October 13, 2017
66. Remarks before the New Jersey Wireless Association, October 18,
2017
67. Remarks before the Broadband Deployment Advisory Committee,
November 9, 2017
68. Remarks before the Future of the Internet Freedom Event,
November 28, 1017
69. Remarks before the Hudson Institute, February 6, 2018
70. Remarks before AT&T 3.5 GHz Future Innovation Showcase,
February l3, 2018
71. Remarks before Rhode Island E911 Summit, March 20, 2018
72. Remarks before Diversity-Digital Entertainment Advisory
Committee, March 27, 2018
73. Remarks before Garvey Schubert & Barer Communications Group,
April 9, 2018
74. Remarks before 2018 NAB Show, April 10, 2018
75. Remarks before American Enterprise Institute, April 19, 2018
76. Remarks before Philadelphia Federalist Society, June 12, 2018
77. Remarks before Mackinac Center for Public Policy, June 20, 2018
78. Remarks before Cloud Comm Summit, June 27, 2018
79. Remarks before Free State Foundation, June 28, 2018
80. Remarks before Midwest Next-Gen TV Summit, June 28, 2018
81. Remarks before Mobile World Congress Americas, September 13,
2018
82. Remarks before 2018 NAB Radio Show, September 27, 2018
83. Remarks before Americas Spectrum Management Conference, October
2, 2018
84. Remarks before Kentucky Broadcasters Association Conference,
October 10, 2018
85. Remarks before Media Institute Free Speech America Gala,
October 25, 2018
86. Remarks before Build Smart Cities of Tomorrow Conference,
October 30, 2018
87. Remarks before NAB State Leadership Conference, February 26,
2019
88. Remarks before ACA Annual Summit, March 20, 2019
89. Remarks before Wireless Connect 2019, April 4, 2019
90. Remarks before Disability Advisory Committee, April 10, 2019
91. Remarks before NTCA Legislative & Policy Conference, April 15,
2019
92. Remarks before Brooklyn 5G Summit 2019, April 25, 2019
93. Remarks before CBRS Alliance, April 30, 2019
94. Remarks before Daniel Morgan Graduate School of National
Security, May 16, 2019
95. Remarks before ACA International Washington Insights
Conference, May 16, 2019
96. Remarks before Wi-Fi Alliance Annual Member Meeting, June 4,
2019
97. Remarks before American Society of Civil Engineers Conference,
June 10, 2019
98. Remarks before Hudson Institute, June 25, 2019
99. Remarks before Arkansas Broadcasters' Annual Conference, July
19, 2019
100. Remarks before Pennsylvania NENA, September 12, 2019
101. Remarks before OnGo Commercial Service Launch, September 18,
2019
102. Remarks before Americas Spectrum Management Conference,
September 24, 2019
103. Remarks before FCBA Young Lawyers Committee USF Seminar,
October 2, 2019
104. Remarks before NY State Broadcasters' Broadcast Leadership &
Hall of Fame Luncheon, October 18, 2019
105. Remarks before Mobile World Congress Americas 2019 Everything
Policy Track, October 24, 2019
106. Remarks before Massachusetts Broadcasters' Sound Bites 2019
Event, November 15, 2019
107. Remarks before Silicon Flatirons' Annual Flagship Conference,
February 10, 2020
108. Remarks before the America's Public Television Stations' 2020
Public Media Summit, February 25, 2020
18. List digital platforms (including social media and other
digital content sites) on which you currently or have formerly operated
an account, regardless of whether or not the account was held in your
name or an alias. Include the name of an ``alias'' or ``handle'' you
have used on each of the named platforms. Indicate whether the account
is active, deleted, or dormant. Include a link to each account if
possible.
A. Twitter: mikeofcc, active, https://twitter.com/mikeofcc
B. Twitter: mpo44, dormant, https://twitter.com/mpo44
C. Facebook: Mike ORielly, active, https://www.facebook.com/
mike.orielly.50
D. LinkedIn https://www.linkedin.com/in/michael-o-1ielly-25a8257a/
E. Next Door: Mike O'Rielly, Leeway Overlee, active
19. Please identify each instance in which you have testified
orally or in writing before Congress in a governmental or non-
governmental capacity and specify the date and subject matter of each
testimony.
A. House Energy and Commerce's Subcommittee on Communications and
Technology: December 12, 2013; March 19, 2015; April 30, 2015;
November 17, 2015; March 22, 2016; July 12, 2016; July 25,
2017; October 25, 2017; July 25, 2018; May 15, 2019; December
5, 2019
B. Senate Committee on Commerce, Science, and Transportation:
September 18, 2013 (nomination); March 18, 2015; March 02,
2016; September 15, 2016; March 8, 2017; August 16, 2018; June
12, 2019; January 15, 2020
C. Senate Appropriations Committee's Subcommittee on Financial
Services and General Government: March 19, 2015, June 20, 2017
The subject matter of all of these instances was my work on policy
matters at the FCC.
20. Given the current mission, major programs, and major
operational objectives of the department/agency to which you have been
nominated, what in your background or employment experience do you
believe affirmatively qualifies you for appointment to the position for
which you have been nominated, and why do you wish to serve in that
position?
As a current Commissioner, I believe my six-year record provides
ample evidence that I take the enormous responsibilities seriously. I
am interested in continuing to serve in order to continue my efforts to
improve the availability of the communications services and sensible
regulation of providers, when necessary, on behalf of the American
people.
21. What do you believe are your responsibilities, if confirmed, to
ensure that the department/agency has proper management and accounting
controls, and what experience do you have in managing a large
organization?
Individual FCC Commissioners influence over the management and
accounting control processes is limited but important in a number of
ways. For instance, Commissioners vote on those selected by the
Chairperson for management positions within the appropriate bureaus.
Moreover, I have been aggressive and outspoken in seeking changes and
accountability within the Universal Service Administrative Company
(USAC), which implements the bulk of our universal service programs.
22. What do you believe to be the top three challenges facing the
department/agency, and why?
A. Access to Broadband-By any measure, a portion of Americans are
without access to broadband at home. These people tend to
reside in more rural, less population dense locations, and/or
economically challenged areas. Given our statutory
responsibilities and recognizing the importance of having
access to broadband, the Commission has an obligation to find
ways to get broadband to these families. This has proven to be
a monumental task as the Commission faces considerable pressure
to switch attention and resources to address broadband speeds,
rates and options for those that already have access.
B. Midband Spectrum Supply for 5G U.S. wireless providers and
potential new users, such as the so-called Internet of Things,
need access to midband spectrum in order to offer advanced
wireless services, including 5G, domestically and to compete
globally. Unfortunately, the most likely midband frequencies
are already occupied, meaning that existing users must cease
operations, reduce their band use, or relocate to other
frequencies. I have spent considerable time, with varying
success, over the last three years to free midband spectrum in
the 3 GHz range (i.e., C-Band, CBRS, and 3.1 to 3.55 GHz).
Given the current state of play, this issue will require
considerable time and effort by the Commission to conclude.
C. Modernizing Regulations--The dynamic communications industry is
facing constant pressure to change and modernize its operations
and offerings to meet consumer demand. Accordingly, the
Commission's regulations must adapt and modernize at the same
time so as to not prevent the development of consumer benefits.
Continuing to impose obligations and requirements that are no
longer necessary wastes precious time and raises costs, which
are passed onto consumers in one form or another.
b. potential conflicts of interest
1. Describe all financial arrangements, deferred compensation
agreements, and other continuing dealings with business associates,
clients, or customers. Please include information related to retirement
accounts. None.
2. Do you have any commitments or agreements, formal or informal,
to maintain employment, affiliation, or practice with any business,
association or other organization during your appointment? If so,
please explain. No.
3. Indicate any investments, obligations, liabilities, or other
relationships which could involve potential conflicts of interest in
the position to which you have been nominated. Explain how you will
resolve each potential conflict of interest.
The U.S. Office of Government Ethics has deemed my spouse's
employment as a fixed salary position for the District of Columbia to
be a potential conflict of interest. I have stipulated, in writing,
that for as long as my spouse continues to work for the District of
Columbia Government, I will not participate personally and
substantially in any particular matter involving specific parties in
which I know the District of Columbia Government is a party or
represents a party, unless I am first authorized to participate.
4. Describe any business relationship, dealing, or financial
transaction which you have had during the last ten years, whether for
yourself, on behalf of a client, or acting as an agent, that could in
any way constitute or result in a possible conflict of interest in the
position to which you have been nominated. Explain how you will resolve
each potential conflict of interest. None.
5. Identify any other potential conflicts of interest, and explain
how you will resolve each potential conflict of interest.
As applicable, I will continue to discuss any issues involving
potential conflict of interest with the FCC's designated agency ethics
officials.
6. Describe any activity during the past ten years, including the
names of clients represented, in which you have been engaged for the
purpose of directly or indirectly influencing the passage, defeat, or
modification of any legislation or affecting the administration and
execution of law or public policy.
In various roles while a staff member in the U.S. Senate, I engaged
directly and indirectly in influencing legislation and affecting the
administration and execution of law or public policy on behalf of
Members of the U.S. Senate. Moreover, in my current role at the FCC, I
have lent support and/or registered concern with various legislative
measures under discussion or active consideration in the U.S. Senate
and/or U.S. House of Representatives.
c. legal matters
1. Have you ever been disciplined or cited for a breach of ethics,
professional misconduct, or retaliation by, or been the subject of a
complaint to, any court, administrative agency, the Office of Special
Counsel, professional association, disciplinary committee, or other
professional group? If yes:
a. Provide the name of agency, association, committee, or group;
b. Provide the date the citation, disciplinary action, complaint, or
personnel action was issued or initiated;
c. Describe the citation, disciplinary action, complaint, or
personnel action;
d. Provide the results of the citation, disciplinary action,
complaint, or personnel action.
In May 2018, the Office of Special Counsel sent me a letter
indicating that my comments made while attending and speaking at CPAC
2018 were in violation of the Hatch Act. The warning letter indicated
that it declined to pursue disciplinary action. My comments were an
inadvertent and unintentional effort to answer the question posed by
the moderator.
2. Have you ever been investigated, arrested, charged, or held by
any Federal, State, or other law enforcement authority of any Federal,
State, county, or municipal entity, other than for a minor traffic
offense? If so, please explain. No.
3. Have you or any business or nonprofit of which you are or were
an officer ever been involved as a party in an administrative agency
proceeding, criminal proceeding, or civil litigation? If so, please
explain. No.
4. Have you ever been convicted (including pleas of guilty or nolo
contendere) of any criminal violation other than a minor traffic
offense? If so, please explain. No.
5. Have you ever been accused, formally or informally, of sexual
harassment or discrimination on the basis of sex, race, religion, or
any other basis? If so, please explain. No.
6. Please advise the Committee of any additional information,
favorable or unfavorable, which you feel should be disclosed in
connection with your nomination. None.
d. relationship with committee
1. Will you ensure that your department/agency complies with
deadlines for information set by congressional committees, and that
your department/agency endeavors to timely comply with requests for
information from individual Members of Congress, including requests
from members in the minority?
Yes, to the extent within my ability.
2. Will you ensure that your department/agency does whatever it can
to protect congressional witnesses and whistle blowers from reprisal
for their testimony and disclosures?
Yes, to the extent within my ability.
3. Will you cooperate in providing the Committee with requested
witnesses, including technical experts and career employees, with
firsthand knowledge of matters of interest to the Committee?
Yes, to the extent within my ability.
4. Are you willing to appear and testify before any duly
constituted committee of the Congress on such occasions as you may be
reasonably requested to do so? Yes.
______
Resume of Michael P. O'Rielly
Professional Experience
Federal Communications Commission
Commissioner--November 2013 to present
Review, negotiate, revise content, and vote on regulatory
items before the full Commission.
Serve as active lead on select substantive issues for
Commission consideration and adoption, including:
CBRS spectrum rule reform and authorization
Children's Television Rules modernization and
improvement
Internal Commission operations
Modernization and elimination of outdated and
unnecessary Commission rules
Provide active leadership for advancement of U.S. wireless
licensed services, including SG, and unlicensed services
through revisions to spectrum allocations.
Give policy speeches, participate in public forums, maintain
active blog, and write newspaper editorials regarding
substantive Commission issues.
Participate in international communications forums to extend
U.S. influence and policy objectives, including WRC-15 & WRC-
19.
Participate in monthly Commission Open Meetings and testify
before the Committees of jurisdiction in Congress.
Host ex parte meetings and interact with parties that have
an interest in communications policy or business before the
Commission.
Manage an office of five paid employees, including three
legal advisors, and provide internship opportunities each
semester for law school students.
Republican Whip Office--U.S. Senate
Policy Advisor--January 2013 to November 2013
Deputy Chief of Staff and Policy Director--April 2012 to January 2013
Advisor--July 2010 to April 2012
Managed and provided policy analysis on an expansive
portfolio of issue areas to the Republican Senate Whip
operations.
Helped position Republican Senators on complex policy
matters, maintained cohesion, and determined necessary changes
in strategy and message.
Advocated and negotiated on behalf of the Republican Whip's
policy positions and goals.
Served as lead Senate Republican negotiator for Title
VI-Public Safety Communications and Electromagnetic
Spectrum Auctions of the Middle Class Tax Relief and Job
Creation Act of 2012 (P.L. 112-96).
Established and led coalitions involving Senate
leadership, congressional committees, diverse commercial
interests, and consumer groups.
Republican Policy Committee--U.S. Senate
Banking, Technology, Transportation, Trade & Commerce Analyst--January
2009 to August 2010
Provided in-depth policy analysis and counsel to Republican
Senators on a broad array of issues, including political and
practical implications of pending legislation.
Crafted policy alternatives, legislative substitutes, and
strategic options for the Republican Conference.
Prepared issue papers and background materials on high
profile issues and key votes.
Communicated the Republican message and positions to
industry and press.
Former Senator John E. Sununu--U.S. Senate (R-NH)
Legislative Director--January 2007 to January 2009
Senior Legislative Assistant--January 2003 to January 2007
Supervised eleven person staff in preparing and executing
legislative priorities.
Responsible for office's Senate floor relations, procedure,
and strategy.
Served as the liaison to staffs of Senate leadership and
Senate Commerce Committee.
Led the Senator's aggressive technology-focused agenda,
including:
Internet Tax Moratorium expansion and extension
Voice over Internet Protocol (VoIP) legislation
Internet video regulatory treatment legislation
Unlicensed spectrum in TV White Spaces
Wireless spectrum policy reform
Committee on Energy and Commerce--U.S. House of Representatives
Telecom and E-Commerce Professional Staff Member--August 1998 to
January 2003
Telecom Legislative Analyst--January 1995 to August 1998
Managed agendas for telecommunications and electronic
commerce issues.
Played an active role on all technology bills and issues
considered by the Committee during this period, including:
The Telecommunications Act of 1996
Electronic signatures and records legislation
International Satellite Reform
Electronic Commerce and Privacy
FCC & NTIA Reform and Reauthorization
Drafted legislation, prepared for legislative hearings and
committee mark-ups, and staffed conference committee meetings.
Former Congressman Tom Bliley (R-VA)--U.S. House of Representatives
Legislative Assistant--January 1994 to January 1995
Advised Congressman on a wide range of legislative issues
important to the Congressional District of Virginia.
Reviewed pending legislation and amendments for the House
Floor and provided vote recommendations.
Education
University of Rochester, Rochester N.Y.
Bachelor of Arts, magna cum laude in political science, May 1993
The Chairman. Thank you, Commissioner O'Rielly.
And now, Ms. Beck, you are recognized.
STATEMENT OF DR. NANCY B. BECK,
NOMINEE TO BE A COMMISSIONER AND CHAIRMAN,
CONSUMER PRODUCT SAFETY COMMISSION
Dr. Beck. Good afternoon, Chairman Wicker, Ranking Member
Cantwell, and members of the Committee. Thank you for the
opportunity to appear before you today as you consider my
nominations to the Consumer Product Safety Commission. I would
also like to thank the President for nominating me. I am
humbled by this opportunity, and if confirmed, I will look
forward to working with all of you to advance public health and
safety and engaging on any issue of particular interest to you.
While my family is not here with me today due to the COVID
pandemic, I would like to acknowledge all the love and support
they have provided to me. They are watching from their homes in
New York. I have six unique and wonderful nieces and nephews
and they are with me in spirit as they always are.
Now more than ever, it is imperative that we ensure that
the American public is protected from the myriad of consumer
risks encountered on a daily basis. Our homes and our
recreational environments must be safe spaces where we can
relax and not have to worry about encountering harmful risks.
If confirmed to work at the CPSC, I would continue to
pursue my lifelong commitment to promoting public safety
through policies supported by objective and transparent
science. My career, which has spanned State government, Federal
Government, and the private sector, has been driven by my
commitment to public health.
My career in public health started when I worked at a
cosmetics company as a microbiologist, ensuring that cosmetics
were safe for our daily use. While in graduate school at the
University of Washington, I volunteered for a program run
through the American Lung Association that helped the residents
of Seattle identify and address contaminants such as lead,
mold, and other indoor pollutants in the household. The
satisfaction that came from working to keep consumers and
homeowners safe inspired me to devote my career to furthering
public protection.
My interest in public health was solidified while I was
working for the Washington State Department of Health. There, I
conducted the risk evaluation that led to the closure of a
paint shop in a low-income residential community. The growth of
this facility had put the community at risk. This experience
demonstrated to me the important role that data and analysis
can play in improving communities throughout our country.
Additionally, engaging at the community level, protecting
children and the elderly, was highly motivating.
I moved to Washington, D.C. to pursue opportunities that
advanced my interests, knowledge, and experience. I
participated in a respected science policy fellowship program,
and through this fellowship program working at the EPA, I
advanced my knowledge regarding how science informs policy and
focused on health issues related to protecting those most at
risk.
My fellowship was followed by almost a decade at the OMB,
working under both President Bush and President Obama. As a
career civil servant, I worked to establish science as a pillar
of good regulation. At OMB, I honed my experience in risk
assessment and regulatory policy, and I advanced public health
by ensuring that regulations were grounded in objective
science.
I have also had the privilege of serving in a leadership
role at EPA in the Office of Chemical Safety and Pollution
Prevention overseeing the pesticides and chemicals program.
While there, I worked to implement the bipartisan Frank R.
Lautenberg Chemical Safety Act as EPA put in place a framework
to ensure that future chemical assessments are grounded in
science, accountability, and transparency.
The mission of the CPSC is to protect the public against
unreasonable risks of injury and death associated with consumer
products. This mission continues to be of utmost importance.
Having dedicated my career to protecting and improving public
health, I am well equipped to help the CPSC advance its
essential mission.
If confirmed, my priorities will include ensuring three
things.
One, we must ensure that the CPSC takes appropriate and
timely action to protect the public from risks, consistent with
the CPSC statutory mandates.
Two, we must ensure that CPSC has effective communication
and outreach tools. In particular, we must address the changing
ways through which consumers purchase products and receive
important information.
And three, it is important that we ensure that the CPSC has
the full confidence of the American public. This means that the
CPSC programs must be run as effectively as possible to provide
the highest level of protection to consumers and families. This
includes hiring a chief technologist, as recommended by this
committee, to make certain that CPSC decisions are informed by
the best available data and information.
If confirmed, I will look forward to working with each of
you, as well as CPSC's dedicated staff, to fulfill the
Commission's essential mission.
I will be happy to answer any questions you have for me
today. Thank you.
[The prepared statement and biographical information of Dr.
Beck follow:]
Prepared Statement of Nancy B. Beck, Nominee,
U.S. Consumer Product Safety Commission
Good Afternoon Chairman Wicker, Ranking Member Cantwell, and
Members of the Committee. Thank you for the opportunity to appear
before you here today as you consider my nominations to the Consumer
Product Safety Commission. I would like to thank the President for
nominating me. I am humbled by this opportunity and, if confirmed, I
look forward to working with all of you to advance public health and
safety and engaging on any issues of particular interest to you as
members of this Committee.
While my family is not here with me today due to the COVID
pandemic, I would like to acknowledge all the love and support they
have provided to me. They are watching from their homes in New York. I
have six unique and wonderful nieces and nephews and they are with me
in spirit.
Now more than ever, it is imperative that we ensure that the
American public is protected from the myriad of consumer risks
encountered on a daily basis. Our homes and recreational environments
must be safe spaces where we can relax and not have to worry about
encountering harmful risks.
If confirmed to work at the CPSC, I would continue to pursue my
life-long commitment to promoting public safety through policies
supported by objective and transparent science. My career, which has
spanned state government, Federal government, and the private sector,
has been driven by my commitment to public health.
My career in public health started when I worked at a cosmetics
company as a microbiologist, ensuring that cosmetics were safe for
daily use. While in graduate school at the University of Washington, I
volunteered for a program run through the American Lung Association
that helped residents of Seattle identify and address contaminants such
as lead, mold, and other indoor pollutants in the household. The
satisfaction that came from working to keep consumers and homeowners
safe inspired me to devote my career to furthering public protection.
My interest in public health was solidified while I was working for
the Washington State Department of Health. There, I conducted the risk
evaluation that led to the closure of a paint shop located in a low-
income residential community. The growth of this facility had put the
community at risk. This experience demonstrated to me the important
role data and analysis can play in improving communities throughout our
country. Additionally, engaging at the community level, and protecting
children and the elderly, was highly motivating.
I moved to Washington D.C. to pursue opportunities that advanced my
interests, knowledge, and management experience. I participated in the
respected American Association for the Advancement of Science (AAAS)
Science and Technology Policy Fellowship program. Through this
fellowship, at the Environmental Protection Agency (EPA), I advanced my
knowledge regarding how science informs policy, and focused on health
issues related to protecting those most at risk.
My fellowship was followed by almost a decade at the Office of
Management and Budget (OMB), working under both President Bush and
President Obama. As a career civil servant, I worked to establish
science as an integral pillar of good regulation. At OMB, I honed my
expertise in risk assessment and regulatory policy, and advanced public
health by ensuring regulations were grounded in objective science.
I have also had the privilege of serving in a leadership role at
EPA in the Office of Chemical Safety and Pollution Prevention (OCSPP),
to help oversee the pesticides and chemicals programs. While there, I
worked to implement the bipartisan Frank R. Lautenberg Chemical Safety
for the 21st Century Act, as EPA put in place the framework to ensure
that future chemical assessments are grounded in science,
accountability, and transparency.
The mission of the CPSC is to protect the public against
unreasonable risks of injury and death associated with consumer
products. This mission continues to be of utmost importance. Having
dedicated my career to protecting and improving public health, I am
well equipped to help the CPSC advance its essential mission.
If confirmed, my priorities will include ensuring:
(1) That CPSC takes appropriate and timely action to protect the
public from risks, consistent with the CPSC statutory mandates.
(2) That CPSC has effective communication and outreach tools. In
particular, to address the changing ways through which
consumers purchase products and receive important information.
(3) The full confidence of the American public. CSPC programs must
be run as effectively as possible to provide the highest level
of protection to consumers and families. This includes hiring a
Chief Technologist, as recommended by the Senate, to make
certain that CPSC decisions are informed by the best available
data and information.
If confirmed, I will look forward to working with each of you as
well as CPSC's dedicated staff to fulfill the Commission's essential
mission. I will be happy to answer any questions you may have for me
today.
______
a. biographical information
1. Name (Include any former names or nicknames used): Nancy Beth
Beck.
2. Position to which nominated: Chair and Commissioner, Consumer
Product Safety Commission.
3. Date of Nomination: March 16, 2020.
4. Address (List current place of residence and office addresses):
Residence: Information not released to the public.
Office: US EPA, 3101-M, 1200 Pennsylvania Ave, N.W.,
Washington, DC 20460.
5. Date and Place of Birth: May 5, 1966; New York, NY.
6. Provide the name, position, and place of employment for your
spouse (if married) and the names and ages of your children (including
stepchildren and children by a previous marriage).
Not applicable.
7. List all college and graduate degrees. Provide year and school
attended.
Ph.D. Environmental Health, University of Washington, 1998
M.S. Environmental Health, University of Washington, 1992
B.S. Microbiology, Cornell University, 1988
8. List all post-undergraduate employment, and highlight all
management level jobs held and any non-managerial jobs that relate to
the position for which you are nominated.
National Economic Council, Executive Office of the
President, June 2019 to present.
Policy Advisor, on detail under the leadership of NEC Director
Larry Kudlow.
U.S. Environmental Protection Agency, May 2017 to present.
Principal Deputy Assistant Administrator for the Office of
Chemical Safety and Pollution Prevention.
American Chemistry Council, Jan. 2012-April 2017.
Senior Director of Regulatory Science Policy.
Office of Management and Budget, Office of Information and
Regulatory Affairs, Executive Office of the President, Aug.
2002-Jan. 2012.
Toxicologist/Risk Assessor/Policy Analyst.
AAAS (American Association for the Advancement of Science)
Science and Technology Policy Fellow, Sept. 2000-Aug. 2002.
Fellow, U.S. EPA, National Center for Environmental Assessment.
Washington State Department of Health, Office of
Environmental Assessments, Feb. 1999-July 2000.
Toxicologist/Public Health Advisor.
Estee Lauder Companies, Aug. 1988-Sept. 1990.
Microbiologist/Research scientist.
9. Attach a copy of your resume.
See attached.
10. List any advisory, consultative, honorary, or other part-time
service or positions with Federal, State, or local governments, other
than those listed above, within the last ten years. None.
11. List all positions held as an officer, director, trustee,
partner, proprietor, agent, representative, or consultant of any
corporation, company, firm, partnership, or other business, enterprise,
educational, or other institution within the last ten years.
Board of Trustees, Evidence Based Toxicology Collaboration,
May 2015-July 2017.
Trustee, Toxicology Education Foundation, 2014-May 2017.
Elected Treasurer, Society of Toxicology, National Capital
Area Chapter, Apr 2014-2017.
Elected Chair, Society of Risk Analysis, Risk Policy and Law
Specialty Group, 2015-2016.
Elected Councilor, Society of Toxicology, Risk Assessment
Specialty Section, Mar 2012-Mar 2014.
Elected Councilor, Society of Toxicology, Regulatory Safety
Evaluation Specialty Section, Mar 2009-Mar 2012.
12. Please list each membership you have had during the past ten
years or currently hold with any civic, social, charitable,
educational, political, professional, fraternal, benevolent or
religiously affiliated organization, private club, or other membership
organization. (For this question, you do not have to list your
religious affiliation or membership in a religious house of worship or
institution.). Include dates of membership and any positions you have
held with any organization. Please note whether any such club or
organization restricts membership on the basis of sex, race, color,
religion, national origin, age, or disability.
For the last 10 years I have been a member of the following
scientific organizations: Society of Toxicology; American
Association for the Advancement of Science (AAAS); Society of
Risk Analysis; American Board of Toxicology; Association of
Government Toxicologists (until 2012).
None of the organizations listed above restrict membership
on the basis of sex, race, color, religion, national origin,
age, or disability.
Additional positions held are listed in response to question
11 (see above).
13. Have you ever been a candidate for and/or held a public office
(elected, non-elected, or appointed)? If so, indicate whether any
campaign has any outstanding debt, the amount, and whether you are
personally liable for that debt.
No, I have never been a candidate for and/or held a public office.
14. List all memberships and offices held with and services
rendered to, whether compensated or not, any political party or
election committee within the past ten years. If you have held a paid
position or served in a formal or official advisory position (whether
compensated or not) in a political campaign within the past ten years,
identify the particulars of the campaign, including the candidate, year
of the campaign, and your title and responsibilities.
None, not applicable.
15. Itemize all political contributions to any individual, campaign
organization, political party, political action committee, or similar
entity of $500 or more for the past ten years.
None, not applicable.
16. List all scholarships, fellowships, honorary degrees, honorary
society memberships, military medals, and any other special recognition
for outstanding service or achievements.
Fellow, Society of Risk Analysis, Dec. 2018
Selected as a Fellow for substantial achievements in
science or public policy relating to risk analysis and
substantial service to the Society.
American Association for the Advancement of Science (AAAS)
Science and Technology Policy Fellow, Sept. 2000-Aug. 2002
Selected and served at the U.S. EPA Office of Research
and Development
OMB Cross-Cutting Group Award, July 2011
Award given ``For extraordinary efforts to develop and
implement responses to the Deepwater Horizon oil spill.''
OMB Special Achievement Award, July 2009
Award given ``For continuing well-grounded scientific
analyses that guide policy, initiatives to increase
transparency in the presentation of risk values, and
leadership of U.S. contributions to the international risk
dialogue.''
17. Please list each book, article, column, Internet blog posting,
or other publication you have authored, individually or with others.
Include a link to each publication when possible. Also list any
speeches that you have given on topics relevant to the position for
which you have been nominated. Do not attach copies of these
publications unless otherwise instructed.
In my capacity as a Federal employee and in the private sector, I
have spoken at many scientific conferences and have spoken to many
outside parties about science policy and regulatory issues domestically
and internationally. Many of these speaking events, as a federal
employee, are listed on my attached resume. In addition, scientific
publications are also listed on my resume. This list is complete to the
best of my knowledge.
18. List digital platforms (including social media and other
digital content sites) on which you currently or have formerly operated
an account, regardless of whether or not the account was held in your
name or an alias. Include the name of an ``alias'' or ``handle'' you
have used on each of the named platforms. Indicate whether the account
is active, deleted, or dormant. Include a link to each account if
possible.
Facebook: https://www.facebook.com/
nancy.beck.3154?ref=bookmarks
Twitter: @NancyB61
Linkedin: https://www.linkedin.com/in/nancybbeck/
Instagram: nancyb477
19. Please identify each instance in which you have testified
orally or in writing before Congress in a governmental or non-
governmental capacity and specify the date and subject matter of each
testimony.
I have testified before congress once. The date was March 9, 2017,
in front of the U.S. Senate Committee on Homeland Security and
Governmental Affairs, Subcommittee on Regulatory Affairs and Federal
Management. The topic was ``Regarding a Hearing on the Agency Use of
Science in the Rulemaking Process: Proposals for Improving Transparency
and Accountability''
A link to my testimony can be found here: https://
www.hsgac.senate.gov/imo/media/doc/BECK%20TESTIMONY.pdf
20. Given the current mission, major programs, and major
operational objectives of the department/agency to which you have been
nominated, what in your background or employment experience do you
believe affirmatively qualifies you for appointment to the position for
which you have been nominated, and why do you wish to serve in that
position?
I have spent the majority of my career in government service
helping to improve safety and public health. I have focused not just on
the general public, but also in ensuring the protection of susceptible
populations, those who may have the greatest risks. The mission of the
CPSC is to protect the public against unreasonable risks of injury or
death from consumer products through education, safety standards
activities, regulation, and enforcement. My educational training and
work experiences make me an exceptional candidate for a leadership
position at the CPSC. In addition to my scientific expertise in
toxicology, I am a recognized leader in risk assessment--not only in
understanding the principles and methodologies, but in implementing
risk based programs that are designed to evaluate and regulate
unreasonable risks. Having spent 10 years in the Office of Management
and Budget (OMB), I have a depth and breadth of understanding of the
regulatory process that is unmatched by most scientific experts.
Coupling my strong understanding of the regulatory process, with my
deep understanding of risk evaluation and toxicology, provides me with
a strong ability to be an effective leader at the CPSC.
I wish to serve as Chairman/Commissioner of the CPSC because I know
I can contribute greatly to meeting the mission of the CPSC. I have the
skills not only to identify unreasonable risks, but to also help ensure
that appropriate and permanent regulations are put in place to ensure
public health protection. A leader of the CPSC must be able to ensure
that the best available science and information are used to inform a
science-based evaluation of unreasonable risks. These evaluations must
include consideration of our most vulnerable populations, including our
children and the elderly. In addition, a CPSC leader needs to be able
to take appropriate risk management actions to ensure that unreasonable
risks are prevented. The agency must be able to act quickly and
deliberatively to protect public health. Finally, a CPSC leader must
also be able to communicate both the risks and the preventative
solutions to the public. My years of service in state and Federal
government have provided me with the background, skills, and
experiences necessary to be a highly effective leader of the CPSC. I
would be honored to serve as chairman and commissioner of the CPSC.
21. What do you believe are your responsibilities, if confirmed, to
ensure that the department/agency has proper management and accounting
controls, and what experience do you have in managing a large
organization?
If confirmed, I will be responsible for ensuring the proper
management and accounting controls for the CPSC. My 10 years at OMB,
the preeminent budget authority within the government, have afforded me
the opportunity to understand not only the budget process but also the
importance of stong accounting controls throughout an agency. This
includes ensuring that the leadership team of CPSC is properly trained,
acting in accordance with all statutory and regulatory requirements,
and leading with highest levels of ethical conduct. In my capacity as
Deputy Assistant Administrator and Principal Deputy Assistant
Administrator for the Office of Chemical Safety and Pollution
Prevention (OCSPP) within EPA, I led a team of over 1,200 FTE with a
program budget of 240 million in appropriated dollars. The full OCSPP
budget is greater than the appropriated funds as OCSPP also has fee
programs associated with statutory programs (PRIA and FIFRA) that
provide additional funds. For 20 months, I was the highest level
political appointee overseeing the program and as such was also
responsible for insuring the integrity of our financial systems and
budgeting processes, including but not limited to grants, contracts,
hiring, travel, and other program expenses.
22. What do you believe to be the top three challenges facing the
department/agency, and why?
Three challenges include:
(1) Taking appropriate and timely action to protect the public
against unreasonable risks associated with consumer products
within the CPSC statutory framework;
(2) ensuring that CPSC has the risk communication and outreach tools
to guarantee protection to our most vulnerable populations
considering the changing ways through which consumers purchase
and receive important information regarding consumer products;
and
(3) ensuring that CPSC programs are running as effectively and
efficiently as possible so that CPSC can provide the highest
level of protection to consumers and families. This includes
ensuring that CPSC has the tools to assess and manage all the
data that are used to inform safety determinations.
b. potential conflicts of interest
1. Describe all financial arrangements, deferred compensation
agreements, and other continuing dealings with business associates,
clients, or customers. Please include information related to retirement
accounts.
I do have a personal Roth IRA and a contributory IRA.
2. Do you have any commitments or agreements, formal or informal,
to maintain employment, affiliation, or practice with any business,
association or other organization during your appointment? If so,
please explain.
Not applicable I have no existing commitments or agreements, formal
or informal.
3. Indicate any investments, obligations, liabilities, or other
relationships which could involve potential conflicts of interest in
the position to which you have been nominated. Explain how you will
resolve each potential conflict of interest.
During the nomination process, I consulted with the Office of
Government Ethics and the CPSC's Designated Agency Ethics Official to
identify potential conflicts of interest. Any conflicts will be
resolved in accordance with the terms of the Ethics Agreement that I
have entered into with CPSC's Ethics Official (a copy of which has been
provided to the Committee). I am not aware of any other conflicts of
interest.
Any potential conflicts of interest will be resolved in accordance
with the terms of the Ethics Agreement that I have entered into with
CPSC's Ethics Official (a copy of which has been provided to the
Committee). If any other potential conflict arises, I will seek the
advice and counsel of the CPSC's Designated Ethics Official and, if
faced with a legitimate conflict of interest, I will recuse myself and/
or divest if necessary.
4. Describe any business relationship, dealing, or financial
transaction which you have had during the last ten years, whether for
yourself, on behalf of a client, or acting as an agent, that could in
any way constitute or result in a possible conflict of interest in the
position to which you have been nominated. Explain how you will resolve
each potential conflict of interest.
During the nomination process, I consulted with the Office of
Gove111ment Ethics and the CPSC's Designated Agency Ethics Official to
identify potential conflicts of interest. Any conflicts will be
resolved in accordance with the terms of the Ethics Agreement that I
have entered into with CPSC's Ethics Official (a copy of which has been
provided to the Committee). I am not aware of any other conflicts of
interest.
Any potential conflicts of interest will be resolved in accordance
with the terms of the Ethics Agreement that I have entered into with
CPSC's Ethics Official (a copy of which has been provided to the
Committee). If any other potential conflict arises, I will seek the
advice and counsel of the CPSC's Designated Ethics Official and, if
faced with a legitimate conflict of interest, I will recuse myself and/
or divest if necessary.
5. Identify any other potential conflicts of interest, and explain
how you will resolve each potential conflict of interest.
During the nomination process, I consulted with the Office of
Government Ethics and the CPSC's Designated Agency Ethics Official to
identify potential conflicts of interest. Any conflicts will be
resolved in accordance with the terms of the Ethics Agreement that I
have entered into with CPSC's Ethics Official (a copy of which has been
provided to the Committee). I am not aware of any other conflicts of
interest.
Any potential conflicts of interest will be resolved in accordance
with the terms of the Ethics Agreement that I have entered into with
CPSC's Ethics Official (a copy of which has been provided to the
Committee). If any other potential conflict arises, I will seek the
advice and counsel of the CPSC's Designated Ethics Official and, if
faced with a legitimate conflict of interest, I will recuse myself and/
or divest if necessary.
6. Describe any activity during the past ten years, including the
names of clients represented, in which you have been engaged for the
purpose of directly or indirectly influencing the passage, defeat, or
modification of any legislation or affecting the administration and
execution of law or public policy.
From 2012-2017 I was employed at the American Chemistry Council
(ACC) a 50l(c)(6). At ACC, I was not a lobbyist. As a technical expert,
I did provide technical assistance and background information to inform
legislative proposals regarding chemical safety.
From 2009-2012 I was at OMB and since May 2017, I have been at EPA.
While serving in the government, I have been involved in providing
technical assistance on numerous legislative proposals. While serving
at EPA I have had responsibility for programs which develop and
imple1nent Federal regulations.
c. legal matters
1. Have you ever been disciplined or cited for a breach of ethics,
professional misconduct, or retaliation by, or been the subject of a
complaint to, any court, administrative agency, the Office of Special
Counsel, professional association, disciplinary committee, or other
professional group? If yes:
a. Provide the name of agency, association, committee, or group;
b. Provide the date the citation, disciplinary action, complaint, or
personnel action was issued or initiated;
c. Describe the citation, disciplinary action, complaint, or
personnel action;
d. Provide the results of the citation, disciplinary action,
complaint, or personnel action.
No to all the items above.
2. Have you ever been investigated, arrested, charged, or held by
any Federal, State, or other law enforcement authority of any Federal,
State, county, or municipal entity, other than for a minor traffic
offense? If so, please explain.
No to all the items above.
3. Have you or any business or nonprofit of which you are or were
an officer ever been involved as a party in an administrative agency
proceeding, criminal proceeding, or civil litigation? If so, please
explain.
No to all the items above.
4. Have you ever been convicted (including pleas of guilty or nolo
contendere) of any criminal violation other than a minor traffic
offense? If so, please explain.
No I have never been convicted of any criminal violation.
5. Have you ever been accused, formally or informally, of sexual
harassment or discrimination on the basis of sex, race, religion, or
any other basis? If so, please explain.
No, I have never been accused formally or informally, of sexual
harassment or discrimination on the basis of sex, race, religion, or
any other basis.
6. Please advise the Committee of any additional information,
favorable or unfavorable, which you feel should be disclosed in
connection with your nomination.
No further information to disclose.
d. relationship with committee
1. Will you ensure that your department/agency complies with
deadlines for information set by congressional committees, and that
your department/agency endeavors to timely comply with requests for
information from individual Members of Congress, including requests
from members in the minority? Yes.
2. Will you ensure that your department/agency does whatever it can
to protect congressional witnesses and whistle blowers from reprisal
for their testimony and disclosures? Yes.
3. Will you cooperate in providing the Committee with requested
witnesses, including technical experts and career employees, with
firsthand knowledge of matters of interest to the Committee? Yes.
4. Are you willing to appear and testify before any duly
constituted committee of the Congress on such occasions as you may be
reasonably requested to do so? Yes.
______
Resume of Nancy Beth Beck PhD, DABT
SCIENCE & REGULATORY POLICY EXPERT
Ph.D. Toxicologist with over twenty years of applied public health
experience. Recognized leader of large Federal program/workforce.
Played a critical role in implementing bipartisan legislation to
improve how the Federal Government ensures the safety of chemicals in
commerce. Guided by the science, and focused on transparency and
clarity, Dr. Beck has a deep understanding of scientific issues, risk
assessment, and the U.S. regulatory process. Always brings a scientific
dialogue to the policy discussions to inform critical decision-making
to protect public health. Successful collaborations have involved
partnerships with senior staff and policy officials throughout the
Executive Office of the President and Federal agencies.
Education & Certification
Diplomat American Board of Toxicology (DABT), November 2002,
recertified Aug 2016
Ph.D. Environmental Health, University of Washington, Seattle, WA, 1998
M.S.
Environmental Health, University of Washington, Seattle, WA, 1992
B.S. Microbiology (minor economics), Cornell University, Ithaca, NY,
1988
APPLIED PUBLIC HEALTH & TOXICOLOGY EXPERIENCE
National Economic Council (NEC), Executive Office of the President,
Washington DC
Policy Advisor, on detail under the leadership of NEC Director Larry
Kudlow
June 2019-present
Provide technical and policy advice to the Special Assistant
to the President and the Deputy Assistant to the President and
Deputy Director of the NEC on diverse environmental and energy
issues.
Assist with the drafting and implementation of energy and
environmental executive orders.
Environmental Protection Agency, Washington DC
Principal Deputy Assistant Administrator for the Office of Chemical
Safety and Pollution Prevention
Dec 2018-present
Deputy Assistant Administrator for the Office of Chemical Safety and
Pollution Prevention
May 2017-Dec 2018
Serving as principal policy advisor to the EPA Administrator
in the management, operation, decision-making, planning,
programming, policy development and implementation of the
Office of Chemical Safety and Pollution Prevention (OCSPP).
Program has over 1,200 FTE with a budget of over $240 Million.
Responsible for managing and establishing strategies to
implement EPA's programs under the Toxic Substances Control Act
(TSCA), the Federal Insecticide, Fungicide and Rodenticide Act
(FIFRA), the Federal Food, Drug, and Cosmetic Act (FFDCA), the
Food Quality Protection Act (FQPA), and for promoting and
coordinating programs engaged in chemical safety and pollution
prevention.
Successfully met all statutory deadlines for the first two
years of implementation of the 2016 Frank R. Lautenberg
Amendments to the TSCA statute.
Represent the EPA Administrator in communications with
Congress, OMB, White House Offices, other Federal agencies,
states, regional and local governments, public interest
organizations, private industry, professional groups and the
general public.
Provide policy and program guidance to Regional
Administrators and EPA Assistant Administrators in their
relationships with other entities in establishing and
implementing chemical safety and pollution prevention policies.
Represent, explain, and defend the policies and programs of
OCSPP to other agency, Federal, Congressional, and private
sector groups.
American Chemistry Council (ACC), Washington DC
Senior Director of Regulatory Science Policy
January 2012-April 2017
Leading expert for ensuring sound implementation of risk
assessment practices within the Frank R. Lautenberg Chemical
Safety for the 21st Century Act (signed into law June 2016).
Develop technical and policy materials to develop sound
scientific policies on science and health critical for the
government assessment of chemicals.
Oversee funding and development of projects to advance risk
assessment methodologies and practices.
Serve as an expert technical and strategy resource to
committees and self-funded groups on the development and
improvement of scientific documents.
Analyze scientific documents to identify critical scientific
issues relating to improving the scientific basis to support
decisions making. Provide technical assistance in protocol
development, monitoring, auditing and communication of results.
Co-lead ACC panel on advancing risk assessment and science
policy regarding issues related to characterizing uncertainty,
systematic review, and weight of evidence evaluations.
Work to resolve member company concerns and problems related
to chemical assessments and their interpretation.
Monitor, analyze, and track emerging issues, developments
and trends on science policy and chemical assessment and
management.
Serve as spokesperson on behalf of ACC in front of Federal
agencies, congressional staff, press, international groups,
scientific societies and other organizations.
Executive Office of the President, Office of Management and Budget,
Office of Information and Regulatory Affairs, Washington, DC
TOXICOLOGIST/RISK ASSESSOR/POLICY ANALYST
AUG. 2002-January 2012
Utilized toxicology expertise to bridge the science and
policy gap by framing and identifying scientific issues for an
active policy debate.
Lead expert for international regulatory discussions with
the EU, Canada and Mexico on risk assessment and nanotechnology
policy.
Managed and led the scientific review of the toxicological/
scientific analyses and risk assessments upon which
rulemakings, proposals, notices, guidance documents, and
information collection requests rely as part of the review and
approval by the Executive Office of the President (EOP).
Included review of IRIS assessments.
Supervised the oversight of Federal agency implementation of
the Information Quality Law and OMB Information Quality
Guidelines.
Coordinated and led OMB risk assessment initiatives,
including oversight, authorship, coordination of working group,
shepherding of draft documents through peer review and public
comment, and culmination into a final OMB/OSTP Memorandum on
Risk Analysis.
Monitored and analyzed human health, environmental and
safety information which appears in legislative testimony
through the legislative review clearance process within the
EOP.
Provided direct scientific, risk assessment, toxicological,
and environmental health assistance and interpretation to White
House political appointees and senior leaders. Prepared and
conducted various briefing papers and talks.
US EPA CAREER DEVELOPMENT DETAIL
US EPA, Office of the Assistant Administrator for the Office of
Research and Development, Washington DC
Feb. 2006-May 2006
Reviewed and provided comments on strategies and draft
documents for the EPA Assistant Administrator (Dr. George
Gray).
Assessed differences and similarities of risk assessment
procedures among different EPA program offices, with a specific
emphasis on pesticides and the IRIS processes.
Gained critical understanding of the Office of Research and
Development and its role in regulations.
AAAS (American Association for the Advancement of Science) Science and
Technology Policy Fellow, Washington DC
FELLOW--US EPA, National Center for Environmental Assessment
Sept. 2000-Aug. 2002
Worked on toxicology projects focused on identifying health
issues related to childhood susceptibilities, human
variability, childrens toxicokinetics and toxicodynamics, and
susceptible populations.
Washington State Department of Health, Office of Environmental
Assessments, Olympia, WA
Toxicologist/Public Health Advisor
Feb. 1999-July 2000
Prepared health and exposure assessments, including site
specific risk assessments, for ATSDR and the Washington State
Department of Health.
Evaluated and analyzed human health risks using
comprehensive toxicology knowledge, risk assessment tools, air
modeling programs, hydrogeology knowledge, and a strong
understanding of the fate and transport of compounds in the
environment and the body.
Interacted regularly and participated with other regulators
and the general public at availability sessions, community
meetings, and public meetings.
Provided comments and technical support to local, state, and
Federal agencies on Remedial Investigations, Feasibility
Studies, sampling workplans, and adverse health outcomes
associated with exposures to chemicals and hazardous
substances.
Estee Lauder Companies
Microbiologist/Research Scientist
Aug. 1988-Sept. 1990
Initiated, coordinated, and assumed full responsibility for
adaptation and in-house validation of two in vitro toxicity
tests.
Worked with chemists to develop preservative systems for
products for human use.
RECENT PROFESSIONAL ACTIVITIES AND LEADERSHIP ACTIVITIES
Society Memberships: American Board of Toxicology;
Association of Government Toxicologists; Society of Toxicology;
American Association for the Advancement of Science (AAAS);
Society of Risk Analysis
Board of Trustees--Evidence Based Toxicology Collaboration,
May 2015-July 2017
Trustee--Toxicology Education Foundation, 2014-May 2017
Elected Treasurer--Society of Toxicology, National Capital
Area Chapter, Apr 2014-2017
Elected Chair--Society of Risk Analysis, Risk Policy and Law
Specialty Group, 2015-2016
Elected Councilor--Society of Toxicology, Risk Assessment
Specialty Section, Mar 2012-Mar 2014
Elected Councilor--Society of Toxicology, Regulatory Safety
Evaluation Specialty Section, Mar 2009-Mar 2012
Elected President--Association of Government Toxicologists,
Mar. 2007-Mar. 2008
Elected President-Elect, Councilor--Association of
Government Toxicologists, Mar. 2004-Mar. 2007
ADDITIONAL LEADERSHIP AND TRAINING ACTIVITIES
Internal Revenue Service, Volunteer Income Tax Assistant, certified
2004-2017
Prepare tax returns for low-income DC residents during tax season
ACC Management Training Program, completed August 2016
European Union Visitors Program, November 2009, selected to participate
in a six day program in Brussels visiting EU offices and experts
including official visits to the Belgium Food Safety Authority, DG-
SANCO, DG-Environment, DG-Research, DG-Agriculture, the European
Parliament, and the U.S. Mission to the EU.
OPM, Executive Development Seminar: Leading Change, two week course
completed May 2009
OPM, Conflict Resolution Skills Seminar, three day course completed
August 2007
AWARDS & HONORS
Fellow, Society of Risk Analysis, December 2018
Selected as a Fellow for substantial achievements in science or public
policy relating to risk analysis and substantial service to the
Society.
OMB Cross-Cutting Group Award, July 2011
OMB Awards Ceremony, award given ``For extraordinary efforts to develop
and implement responses to the Deepwater Horizon oil spill.''
OMB Special Achievement Award, July 2009
Award given ``For continuing well-grounded scientific analyses that
guide policy, initiatives to increase transparency in the presentation
of risk values, and leadership of U.S. contributions to the
international risk dialogue.''
OMB Quality Step Increase Award, July 2008
Award recognizes employees whose performance is consistently at a high
level in terms of quality and quantity, and appears likely to continue
to be so indefinitely into the future.
OMB Professional Achievement Award, July 2007
Award given ``For creative efforts in the uncharted territory of
implementing the Information Quality Act, outstanding work in
shepherding OMB's Proposed Bulletin on Risk Assessment, and important
contributions to building support for scientific expertise in policy
decisions.''
OMB Special Achievement Award, July 2006
Award given ``For sound judgment, creativity, and groundbreaking work
to develop the Proposed Bulletin on Risk Assessment.''
OMB Cross-Cutting Group Award, July 2005
OMB Awards Ceremony, award given ``For working with EPA to develop an
innovative cap-and-trade program to limit mercury emissions from coal-
fired plants.''
OMB Professional Achievement Award, July 2004
OMB Awards Ceremony, award given ``For contributions that have informed
and improved numerous public health policy decisions and have fostered
solid support for the critical importance of scientific expertise.''
Graduate Student Travel Award, Dec. 1998
Society of Toxicology 38th Annual Meeting
Graduate Student Platform Presentation Award, Sept. 1998
Pacific Northwest Association of Toxicologists, 15th Annual Mtg.
Excellent Question Award, Sept. 1998
Pacific Northwest Association of Toxicologists, 15th Annual Mtg.
Environmental Pathology/Toxicology Training Grant, 1993-1998
National Institute of Environmental Health Sciences (NIEHS)
Research Assistantship, Oct. 1990-Jan. 1993
Department of Environmental Health, University of Washington, Seattle,
WA
Deans List, Aug. 1987-May 1988
Cornell University, Ithaca, NY
PUBLICATIONS
Hoffmann S, de Vries RBM, Stephens ML, Beck NB, Dirven HAAM, Fowle JR
3rd, Goodman JE, Hartung T, Kimber I, Lalu MM, Thayer K, Whaley P,
Wikoff D, Tsaioun K. A Primer on Systematic Review in Toxicology, Arch
Toxicol. Jul;91(7):2551-2575, 2017
Juberg DR, Knudsen TB, Sander M, Beck NB, Faustman EM, Mendrick DL,
Fowle JR 3rd, Hartung T, Tice RR, Lemazurier E, Becker RA, Fitzpatrick
SC, Daston GP, Harrill A, Hines RN, Keller DA, Lipscomb JC, Watson D,
Bahadori T, Crofton KM., Future Tox III: Bridges for Translation,
Toxicol Sci, Oct 25, 2016 epub ahead of print
Simon TW, Zhu Y, Dourson ML, Beck NB, Bayesian methods for uncertainty
factor application for derivation of reference values, Regul Toxicol
Pharmacol, Oct;80:9-24, 2016
Stephens ML, Betts K, Beck NB, Cogliano V, Dickersin K, Fitzpatrick S,
Freeman J, Gray G, Hartung T, McPartland J, Rooney AA, Scherer RW,
Verloo D, Hoffmann S., The emergence of systematic reviews in
toxicology, Toxicol Sci. Jul;152(1):10-6, 2016.
Beck NB, Becker RA, Erraguntla N, Farland WH, Grant RL, Gray G, Kirman
C, LaKind JS, Jeffrey Lewis R, Nance P, Pottenger LH, Santos SL,
Shirley S, Simon T, Dourson ML., Approaches for describing and
communicating overall uncertainty in toxicity characterizations: U.S.
Environmental Protection Agency's Integrated Risk Information System
(IRIS) as a case study, Environ Int. Apr-May;89-90:110-28, 2016.
Beck NB, Becker RA, Boobis A, Fergusson D, Fowle JR, Goodman J,
Hoffmann S, Lalu M, Leist M, Stephens ML. Instruments for assessing
risk of bias and other methodological criteria of animal studies:
omission of well-established methods, Environ Health Perspect.
Mar;122(3):A66-7, 2014.
Rhomberg LR, Goodman JE, Bailey LA, Prueitt RL, Beck NB, Bevan C,
Honeycutt M, Kaminski NE, Paoli G, Pottenger LH, Scherer RW, Wise KC,
Becker RA., A survey of frameworks for best practices in weight-of-
evidence analyses, Crit Rev Toxicol. 2013 Oct;43(9):753-84, 2013.
Ylitalo GM, Krahn MM, Dickhoff WW, Stein JE, Walker CC, Lassitter CL,
Garrett ES, Desfosse LL, Mitchell KM, Noble BT, Wilson S, Beck NB,
Benner RA, Koufopoulos PN, Dickey RW., Federal Seafood Safety Response
to the Deepwater Horizon Oil Spill, Proc Natl Acad Sci USA, Dec
11;109(50):20274-9, 2012.
Sonawane, B., Beck, N.B., Threats to Children's Environmental Health In
Developing Countries: An Overview of the Problem, book chapter in: The
Handbook of Pediatric Environmental Health 2nd Edition. Amer. Academy
of Pediatrics 2003.
Beck, N.B., Sidhu, J.S., Omiecinski, C.J. Baculovirus Vectors Repress
Phenobarbital-Mediated Gene Induction and Stimulate Cytokine Expression
in Primary Cultures of Rat Hepatocytes. Gene Therapy 7: 1274-1283,
2000.
Beck, N.B., Omiecinski, C.J. Lack of Involvement of cAMP/PKA Pathways
in the Phenobarbital Mediated Induction of the Rat CYP2B Genes in
Primary Hepatocyte Cultures. Biochemical Pharmacology 58:1109-1114,
1999.
Ramsden, R., Beck, N.B., Sommer, K.M., Omiecinski, C.J. Phenobarbital
Responsiveness Conferred by the 5'-Flanking Region of the Rat CYP2B2
Gene in Transgenic Mice. Gene 228:169-179, 1999.
Beck, N.B. Phenobarbital Mediated Induction of the Cytochrome P450 2B
Genes: Mechanistic Investigations. Doctoral Dissertation. 1998.
Hassett, C, Robinson, K.B., Beck, N.B., Omiecinski, C.J. The Human
Microsomal Epoxide Hydrolase Gene (EPHX1): Complete Nucleotide Sequence
and Structural Characterization. Genomics 23:433-442, 1994.
Beck, N.B., Koenig, J.Q., Luchtel, D.L., Altman, L.C., Orsborn, M.T.,
Kenney, J.S. Ozone Can Increase the Expression of Intercellular
Adhesion Molecule-1 and the Synthesis of Cytokines by Human Nasal
Epithelial Cells. Inhalation Toxicology 6:345-357, 1994.
Beck, N.B. The Effects of Ozone on Intercellular Adhesion Molecule 1
Expression in Human Nasal Epithelial cells. Masters Thesis. 1992.
PUBLISHED ABSTRACTS, PRESENTATIONS, POSTERS, AND OTHER REPORTS:
Beck, N.B., Pottenger, L, Workshop: Understanding and Communicating
Uncertainty in Hazard Assessment and Dose Response. March 2015 Society
of Toxicology Annual Meeting, serving as workshop organizer and
chairperson.
Beck, N.B., Symposium: Understanding the Elements of Systematic Review
and Evidence Integration. December 2014 Society of Risk Analysis Annual
Meeting.
Lewis, R.J., Beck, N.B., Symposium: EPA's Framework for Human Health
Risk Assessment to Inform Decision Making: An Industry Perspective.
December 2014 Society of Risk Analysis Annual Meeting.
Beck, N.B., Dose-Response: Current Challenges and Opportunities for
Improvement. Presented at the October 2014 Society of Toxicology
Environmental Toxicology and Chemistry Annual meeting as part of a
workshop on Challenges Facing the Next Generation of Risk assessment.
Beck, N.B., Goodman, J.E., Continuing Education Course: Epidemiology
for Toxicologists: What the Numbers Really Mean. March 2014 Society of
Toxicology Annual Meeting, served as course organizer and chairperson.
Beck, N.B., Goodman, J.E., Workshop: Understanding Weight of Evidence:
Exploring Different Approaches to Integrating Evidence From Diverse
Data Streams. Presented at the 2014 Society of Toxicology Annual
Meeting, served as workshop organizer and chairperson.
Beck, N.B., Dose-Response: Current Challenges and Opportunities for
Improvement. Presented at the 2014 Society of Toxicology Annual Meeting
as part of a workshop on Challenges Facing the Next Generation of Risk
assessment.
Beck, N.B., Symposium: Modernizing the Tools & Approaches to Improve
Data Availability & Transparency, 2013 Society of Risk Analysis
Meeting, symposium chair and organizer.
Wise K, Beck N.B., Fischer D, Pottenger L.H., Beatty P, Cruzan G,
Becker R.A., Getting the Science Right on Mode of Action: An Essential
Element for IRIS Improvement. 2013 Society of Risk Analysis Meeting,
Symposium on EPA's IRIS. Presentation to be given by Rick Becker.
Beck, N.B., Discussion: Pulling the Pieces Together. 2013 Society of
Risk Analysis Meeting, Symposium on Integrating Evidence. Symposium
Presentation.
Beck, N.B., Becker, R.A., Twardowski, A, Is there Overlap in U.S.
Hazard Characterization Programs that Focus on Environmental Exposure?
An Evaluation of the Data, Presented at the 2013 Society of Toxicology
Annual Meeting, March 2013. Poster Presentation.
Beck, N.B., Becker, R.A., Twardowski, A, Is there Overlap in U.S.
Hazard Characterization Programs that Focus on Environmental Exposure?
An Evaluation of the Data, Presented at the 2012 Society of Risk
Analysis Annual Meeting, December 2012. Poster Presentation.
Mercado-Feliciano, M., Beck, N.B., Refining Your Science Communication
Skills: The Art of the One Pager; Session Chair and Presenter, Annual
Society of Toxicology Meeting March 2012. Education Career Development
Session.
Memorandum on Policy Principles for the U.S. Decision-Making Concerning
Regulation and Oversight of Applications of Nanotechnology and
Nanomaterials, co-lead staff author, released June 9 2011, available
at: http://www.whitehouse.gov/sites/default/files/omb/inforeg/for-
agencies/nanotechnology-regulation-and-oversightprinciples.pdf.
Beck, N.B., Mercado-Feliciano, M., Bringing Toxicology to the Decision-
Makers Table: Opportunities for Science Policy Positions in Washington
DC; Session Chair at the 50th Annual Society of Toxicology Meeting
March 2011. Education Career Development Session.
2011 Report to Congress on the Costs and Benefits of Federal
Regulation. OMB report to Congress. lead author of Chapter 3 on
Information Quality, released June 2011: available at: http://
www.whitehouse.gov/sites/default/files/omb/inforeg/2011_cb/
2011_cba_report.pdf
2010 Report to Congress on the Costs and Benefits of Federal
Regulation. OMB report to Congress. lead author of Chapter 3 on
Information Quality, released January 2009: available at: http://
www.whitehouse.gov/sites/default/files/omb/legislative/reports/
2010_Benefit_Cost_Report.pdf
2009 Report to Congress on the Costs and Benefits of Federal
Regulation. OMB report to Congress. lead author of Chapter 4 on
Information Quality, released January 2009: available at: http://
www.whitehouse.gov/sites/default/files/omb/assets/legislative_reports/
2009_final_BC_Report_01272010.pdf
2008 Report to Congress on the Costs and Benefits of Federal
Regulation. OMB report to Congress. lead author of Chapter 3 on
Information Quality, released January 2009: available at: http://
www.whitehouse.gov/omb/assets/information_and_regu
latory_affairs/2008_cb_final.pdf
2007 Report to Congress on the Costs and Benefits of Federal
Regulation. OMB report to Congress. lead author of Chapter 3 on
Information Quality, released June 2008: available at: http://
www.whitehouse.gov/omb/assets/omb/inforeg/2007_cb/
2007_cb_final_report.pdf.
OMB/OSTP Principles for Risk Analysis, M-07-24, lead author, released
September 19, 2007, available at: http://www.whitehouse.gov/omb/assets/
regulatory_matters
_pdf/m07-24.pdf.
2006 Report to Congress on the Costs and Benefits of Federal
Regulation. OMB report to Congress. lead author of Chapter 4 on
Information Quality, released January 2007: available at: http://
www.whitehouse.gov/omb/inforeg/2006_cb/2006_cb_final
_report.pdf.
OMB Proposed Bulletin on Risk Assessment. lead staff author, released
January 2006: available at: http://www.whitehouse.gov/omb/inforeg/
proposed_risk_assess
ment_bulletin_010906.pdf.
2005 Report to Congress on the Costs and Benefits of Federal
Regulation. OMB report to Congress. lead author of Chapter 4 on
Information Quality, released December 2005: available at: http://
www.whitehouse.gov/omb/inforeg/2005_cb/final
_2005_cb_report.pdf.
Information Quality: A Report to Congress Fiscal Year 2003. OMB Report
to congress. lead author, April 2004; available at: http://
www.whitehouse.gov/omb/inforeg/fy03_info_quality_rpt.pdf.
Beck, N.B., Sonawane B. Chilren's Health Risk Characterization from
Exposure to Tetrachloroethylene. Presented at the 42nd Annual Society
of Toxicology Meeting by B. Sonawane, March 2003. Poster Presentation.
Beck, N.B., Rice, D, Sonawane B. The National Survey of Mercury
Concentrations in Fish, Fish Consumption Patterns, and Major Sources of
Mercury Throughout the United States. Presented at the WHO
International Conference on Environmental Threats to the Health of
Children, Bangkok, Thailand, March 2002. Session Talk.
Beck, N.B., Sonawane B. Are the Data Available to Protect the Children:
Recent U.S. EPA Risk Assessments and Childrens Health. Presented at the
WHO International Conference on Environmental Threats to the Health of
Children, Bangkok, Thailand, March 2002. Poster Presentation.
Beck, N.B., Sonawane B. Children's Health and Air Toxics: How Recent
Risk Assessments are Addressing the Issues. Presented at 9th
International Congress of Toxicology Meeting, Brisbane, Australia, July
2001. Poster presentation.
Ginsberg G.L., Hattis D.B., Smolenski S., Russ A., Kozlak M., Goble,
R.L, Beck, N.B., Sonawane B. Assessing Pharmacokinetic Differences
Between Children and Adults: Implications for Chemical Risk Assessment.
Presented at 9th International Congress of Toxicology Meeting,
Brisbane, Australia, July 2001. Poster presentation.
Sonawane B. Beck, N.B. Health Risk Assessment of Benzene, an Update.
Presented at 9th International Congress of Toxicology Meeting (by B.
Sonawane), Brisbane, Australia, July 2001. Poster presentation.
Sonawane B. Ginsberg G.L., Goldstein, D.A., Beck, N.B. A Conceptual
Framework to Evaluate the Risks of Environmental Chemical Exposures to
Children: Issues for Consideration. Presented at 9th International
Congress of Toxicology Meeting (by D. Goldstein), Brisbane, Australia,
July 2001. Poster presentation.
Beck, N.B., Omiecinski, C.J. Lack of Involvement of cAMP and PKA in the
Phenobarbital (PB) Mediated Induction of the Rat Cytochrome P450 (CYP)
CYP2B Genes in Primary Hepatocyte Cultures. Toxicological Sciences
48(1-S) 405 abstr. 1999. Presented at the Society of Toxicology Annual
Meeting, New Orleans, LA, March, 1999. Poster presentation.
Beck, N.B., Omiecinski, C.J. Phenobarbital Mediated Induction of the
Rat CYP2B Genes in Primary Hepatocyte Cultures. Presented at the
Pacific Northwest Chapter of the Society of Toxicology, 15th Annual
Meeting, Leavenworth, Washington, September 1998. Platform talk.
Beck, N.B., Ramsden, R., Sommer, K.M., Omiecinski, C.J. Transcription
Factor Binding to the Phenobarbital Responsive Element (PBRE) in the
P450 2B2 Gene. Toxicological Sciences 42(1-S) 22 abstr. 1998. Presented
at Society of Toxicology Annual Meeting, Seattle, Washington, 1998.
Poster session.
Beck, N.B., Ramsden, R., Sommer, K.M., Omiecinski, C.J.
Characterization of the Phenobarbital Responsive Element (PBRE) in the
P450 2B2 Gene. Presented at the Pacific Northwest Chapter of the
Society of Toxicology, 14th Annual Meeting, Ocean Shores, Washington,
September 1997. Platform talk.
Beck, N.B., Omiecinski, C.J. Cooperative Interactions of Nuclear
Proteins with the 5' Upstream Region of the Rat Cytochrome CYP2B2 Gene.
International Toxicologist 7(1) abstr. 1995. Presented at the meeting
of the International Congress of Toxicology, Seattle, WA, 1995. Poster
Discussion session.
Beck, N.B., Altman, L.C., Koenig, J.Q., Luchtel, D.L., Orsborn, M.T.,
Costa, L.G., Reilly, M.T., Kavanagh, T.J. Development of a Quantitative
Morphometric Approach to Examine the Effects of Ozone on Intercellular
Adhesion Molecule-1 on Human Nasal Epithelial Cells. Toxicologist.
13(1):298 abstr. 1993. Presented at Society of Toxicology Annual
Meeting, New Orleans, LA, 1993. Poster discussion session.
Beck, N.B., Altman, L.C., Luchtel, D.L., Koenig, J.Q., Orsborn, M.T.,
Kavanagh, T.J., Baker, C., Welch, M., Kinney, J.S. Ozone Stimulates
ICAM-1 Expression and Cytokine Release from Cultured Human Nasal
Epithelial Cells. J Allergy Clin Immunol. 91:254 abstr. 1993. Presented
(by L.C. Altman) at Society of Allergy and Clinical Immunology Annual
Meeting, Chicago, IL, 1993. Poster session.
SELECTED INVITED EVENTS
2017-2019: Diverse Domestic and International Speaking Engagements on
behalf of EPA and the Office of Chemical Safety and Pollution
Prevention.
Transatlantic Week, July 23, 2015, Invited speaker at session on
Transatlantic Dialogue on Science and Public Policy, Washington DC.
Alliance for Risk Assessment, May 21, 2014, Invited Speaker at workshop
on problem formulation and dose response, Austin TX.
US Risk Assessment and Regulatory Policy, 2012-2015, multiple
presentations to various ACC member companies in the U.S.
OPM Course on Federal Regulatory Policy, May 22, 2013, Invited Speaker
on Information Quality and Risk Analysis in the Federal Government,
Shepardstown, WV.
OECD/Mexico Workshop `New Ideas for Risk Based Regulation and
Regulatory Governance in Mexico, July 13, 2011, Invited Speaker on U.S.
Risk Guidance and International Cooperation in Evaluating and Improving
the Quality of Domestic Policies and Regulations, Mexico City, Mexico.
OPM Course on Federal Regulatory Policy, June 29, 2011, Invited Speaker
on Information Quality and Risk Analysis in the Federal Government,
Shepardstown, WV.
2nd International Conference on Risk Assessment, Jan. 25-25, 2011, Lead
of U.S. delegation, Invited Speaker, Uncertainty Working Group Session
Chair, Brussels Belgium.
Treasury Board of Canada Conference on Risk and Transatlantic Risk
Dialogue meeting, June 2-4, 2010, Invited Speaker on U.S. Risk Analysis
Guidelines and Session Lead for Working Group on Uncertainty, Ottowa,
Canada.
OPM Course on Federal Regulatory Policy, June 17, 2009, Invited Speaker
on Information Quality and Risk Analysis in the Federal Government.
Transatlantic Risk Dialogue, July 10-11, 2008, Speaker and Organizer,
Washington DC; Nov. 12-14, 2008, Speaker and Co-organizer, Brussels,
Belgium.
Bertelsmann International Risk Governance Conference, Nov. 16, 2008,
invited co-chair of session, Berlin, Germany.
Workshop on the Regulatory Risk Assessment Guidelines for the
Government of Canada. Feb 20 2008, Invited Participant and Speaker,
Ottawa, Canada.
Society of Risk Analysis, Workshop on Quantitative Risk Assessment and
Cost Benefit Analysis, Dec 9, 2007, Invited Speaker on Updated
Principles for Risk Analysis and OMB Quality Initiatives, San Antonio,
Texas.
Global Approaches to Risk and Regulation: A high level policy seminar.
Feb 20th and 21st 2007, Invited Participant and Speaker, Ditchley Park,
Oxfordshire, UK.
United Kingdom, Better Regulation Executive, Invited Speaker on
Regulatory Review, Feb 19 2007, Whitehall St., London, UK.
Toxicology Forum, 32nd Annual Summer Meeting, Aspen, Colorado, July 10-
13, 2006 Invited Speaker on Proposed Risk Assessment Bulletin.
Sponsored by the Toxicology Forum.
House Science Briefing on the Proposed Risk Assessment Bulletin,
Invited Lead Speaker, June 23, 2006, Washington DC.
Society of Risk Analysis Symposium, May 23, 2006, Invited Speaker on
Proposed Risk Assessment Bulletin, representing OMB. 90 minute talk.
Washington DC.
National Academy of Sciences, May 22, 2006, Invited Speaker on Proposed
Risk Assessment Bulletin, representing OMB. Washington DC.
Society of Toxicology, Risk Assessment Specialty Section Annual
Meeting, San Diego, California, March 6-9, 2006,
Invited Speaker on OMB Proposed Bulletin on Risk Assessment. Sponsored
by the U.S. EPA.
Toxicology Forum 31st Annual Summer Meeting, Aspen, Colorado, July 10-
14, 2005, Invited Speaker on Peer Review. Sponsored by the Toxicology
Forum.
EPA National Conference on Managing Environmental Quality Systems, San
Diego, California, April 11-13, 2004, Invited Speaker on Information
Quality at plenary panel. Sponsored by the U.S. EPA.
University of Washington, School of Public Health and Community
Medicine, Seattle, Washington October 14, 2004, Invited Speaker for
Departmental Seminar Series. Sponsored by the University of Washington.
WHO IPCS Uncertainty in Exposure Assessment Working Group and Scoping
Discussion on Data Quality, Geneva Switzerland, Aug 19-20 2004, Invited
Participant and document preparer, Sponsored by the World Health
Organization.
European Union-United States Meeting on Precaution, Berlin Germany,
June 19-21 2003, invited participant, Sponsored by the U.S. State
Department and the European Policy Center.
Chemical Control Policy Dialogue Meeting, Stockholm Sweden, Sept 15-17
2003, Invited participant, Sponsored by the U.S. State Department and
the European Policy Center.
Association of Government Toxicologists, Washington DC, Sept 11 2003,
invited speaker, topic: the Role of Science at OMB: Risk Assessment and
Regulations.
National Science Board, National Science Foundation, Oct 16, 2003,
invited speaker, topic: peer review.
National Center for Dissemination of Disability Research, Knowledge,
Dissemination and Utilization Program meeting, Aug 26, 2003, invited
speaker, topic: Information Quality Guidelines.
EPA/AFS/AAP/ACOG/AOEC Mercury Medical Symposium, Burlington, Vermont,
Nov 19-20, 2002. Invited attendee.
Allegheny-Erie Society of Toxicology (AESOT) Meeting, Pittsburgh PA,
May 2001. Led interactive lecture/training on toxicology outreach using
the Tox-in-the-Box Toolkit.
The Chairman. Thank you very much, Dr. Beck.
And now Mr. Walsh.
STATEMENT OF MICHAEL J. WALSH, JR., NOMINEE TO BE GENERAL
COUNSEL, U.S. DEPARTMENT OF COMMERCE
Mr. Walsh. Chairman Wicker, Ranking Member Cantwell, and
members of the Commerce, Science, and Transportation Committee,
thank you for considering my nomination to be General Counsel
at the U.S. Department of Commerce.
It is a privilege to appear before you today.
Thank you too, to the staff of the Committee for all the
work that you have done in preparing for this hearing.
I am especially grateful to President Trump for nominating
me to this position and for the continued support of Commerce
Secretary Wilbur Ross.
And though they are not able to be here, I must also thank
my wife Emily and my children, Charlotte, Michael, Francis
Xavier, and Nicholas, who are watching on the Web stream right
now, for all the sacrifices that they have made during my
tenure in public service.
I also want to thank my parents, my sister, her family, and
all of my family members and friends who are watching from
Connecticut, Massachusetts, New York, and Virginia.
Finally, I would like to thank my wonderful colleagues at
the Department of Commerce with whom I have enjoyed working
over the past two and a half years.
Prior to joining the Commerce Department as Deputy General
Counsel in early 2018, I was a partner at an international law
firm where I litigated complex class action cases.
Since my arrival at the Department, I have been involved in
many of the issues that encompass our agency's broad mission,
including those associated with NIST, NOAA, trade enforcement,
the protection of intellectual property, patents, and
trademarks; and economic and minority business development and
the Census Bureau, which announced this morning that retail
sales were up 17.7 percent.
I have also supported the Bureau of Industry and Security's
initiatives to secure our nation's defense industrial base and
to carefully and thoughtfully administer our nation's export
control laws.
I understand the importance of compliance with the laws
that dictate every aspect of the Commerce Department's
operations. If confirmed, I will ensure that these laws are
upheld and are being applied with the greatest programmatic
integrity and transparency.
I also look forward to working with all of the members of
this committee on your ideas for new programs and policies
aimed at rebuilding our industrial base, reshoring essential
industries, protecting American intellectual property from
foreign predation, and creating millions of great jobs that
will provide every American with the opportunity to pursue the
American dream.
I look forward to answering any questions and, again, I
sincerely thank you for your consideration.
[The prepared statement and biographical information of Mr.
Walsh follow:]
Prepared Statement of Michael J. Walsh, Jr., Nominee to be General
Counsel, U.S. Department of Commerce
Chairman Wicker, Ranking Member Cantwell, and members of the
Commerce, Science, and Transportation Committee, thank you for
considering my nomination to be General Counsel at the U.S. Department
of Commerce.
It is a privilege to appear before you today.
Thank you, too, to the staff of the Committee for all the work you
have done in preparing for this hearing.
I am especially grateful to President Trump for nominating me to
this position, and for the continued support of Commerce Secretary
Wilbur Ross.
And though they are not able to be here, I must also thank my wife,
Emily and my children, Charlotte, Michael, Francis Xavier, and
Nicholas, who are watching via the live Web stream, for all the
sacrifices they have made during my tenure in public service.
I also want to thank my parents, my sister, her family, and all of
my family members and friends who are watching from Connecticut,
Massachusetts, New York, and Virginia.
Finally, I would like to thank my wonderful colleagues at the
Department of Commerce, with whom I have enjoyed working over the past
two and a half years.
Prior to joining the Commerce Department as Deputy General Counsel
in early 2018, I was a partner at an international law firm, where I
litigated complex class action cases.
Since my arrival at the Department, I have been involved in many of
the issues that encompass our agency's broad mission, including those
associated with NOAA; NIST; Census; trade enforcement; the protection
of intellectual property, patents, and trademarks; and economic and
minority business development.
I have also supported the Bureau of Industry and Security's
initiatives to secure our Nation's defense industrial base, and to
carefully and thoughtfully administer our export-control laws.
I understand the importance of compliance with the laws that
dictate every aspect of the Commerce Department's operations.
If confirmed, I will ensure that these laws are upheld, and are
being applied with the greatest programmatic integrity and
transparency.
I also look forward to working with all members of this Committee
on your ideas for new programs and policies aimed at rebuilding our
industrial base, reshoring essential industries, protecting American
intellectual property from foreign predation, and creating millions of
great jobs that will provide every American with the ability to pursue
the American Dream.
I look forward to answering any questions and, again, I sincerely
thank you for your consideration.
______
a. biographical information
1. Name (Include any former names or nicknames used):
Michael John Walsh, Jr. (Mike).
2. Position to which nominated: General Counsel, Department of
Commerce.
3. Date of Nomination: May 4, 2020.
4. Address (List current place of residence and office addresses):
Residence: Information not released to the public.
Office: 1401 Constitution Avenue, NW, Washington, D.C. 20230.
5. Date and Place of Birth: September 21, 1977; Waterbury, CT.
6. Provide the name, position, and place of employment for your
spouse (if married) and the names and ages of your children (including
stepchildren and children by a previous marriage).
Emily Walsh, N/A.
7. List all college and graduate degrees. Provide year and school
attended.
Boston College, B.A., 1999.
Columbia Law School, J.D., 2002.
8. List all post-undergraduate employment, and highlight all
management-level jobs held and any non-managerial jobs that relate to
the position for which you are nominated.
Brenner Saltzman & Wallman, LLP, Summer Associate (2000, 2001).
Hale & Dorr, LLP, Summer Associate (2001).
Hunton & Williams, LLP, Associate (2002).
O'Melveny & Myers LLP, Associate (2003-2007), Counsel (2008-
2012), Partner (2012-2018).
U.S. Department of Commerce, Deputy General Counsel (January
2018-October 2018).
U.S. Department of Commerce, Chief of Staff (October 2018-
August 2019).
U.S. Department of Commerce, Chief of Staff; Performing the
Delegated Duties of the General Counsel (August 2019 to
present).
Beginning at O'Melveny & Myers and continuing through the present,
all of my employment involved managing large teams of lawyers. As
Deputy General Counsel at the Department of Commerce, I, along with the
then-General Counsel, managed the Office of General Counsel. As Chief
of Staff at the Department of Commerce, I manage the Office of the
Secretary and together with the Deputy Secretary, I am responsible for
overseeing all of the Department's component bureaus on behalf of the
Secretary of Commerce.
9. Attach a copy of your resume.
Attached.
10. List any advisory, consultative, honorary, or other part-time
service or positions with Federal, State, or local governments, other
than those listed above, within the last ten years. None.
11. List all positions held as an officer, director, trustee,
partner, proprietor, agent, representative, or consultant of any
corporation, company, firm, partnership, or other business, enterprise,
educational, or other institution within the last ten years.
I was an equity partner at my former law firm, O'Melveny & Myers
LLP, from February 1, 2012 through January 7, 2018.
12. Please list each membership you have had during the past ten
years or currently hold with any civic, social, charitable,
educational, political, professional, fraternal, benevolent or
religiously affiliated organization, private club, or other membership
organization. (For this question, you do not have to list your
religious affiliation or membership in a religious house of worship or
institution.). Include dates of membership and any positions you have
held with any organization. Please note whether any such club or
organization restricts membership on the basis of sex, race, color,
religion, national origin, age, or disability.
Hidden Creek Country Club, Reston, VA (2008-2011).
Army Navy Country Club, Arlington and Fairfax, VA (2011 to
present).
Barefoot Resort & Golf Club, North Myrtle Beach, SC (2013 to
present).
These clubs do not restrict membership on the basis of sex, race,
color, religion, national origin, age, or disability.
13. Have you ever been a candidate for and/or held a public office
(elected, non-elected, or appointed)? If so, indicate whether any
campaign has any outstanding debt, the amount, and whether you are
personally liable for that debt. No.
14. List all memberships and offices held with and services
rendered to, whether compensated or not, any political party or
election committee within the past ten years. If you have held a paid
position or served in a formal or official advisory position (whether
compensated or not) in a political campaign within the past ten years,
identify the particulars of the campaign, including the candidate, year
of the campaign, and your title and responsibilities.
In 2016, I volunteered to assist the president's campaign with
vetting potential Vice Presidential candidates. I also provided
volunteer assistance to the transition team.
15. Itemize all political contributions to any individual, campaign
organization, political party, political action committee, or similar
entity of $500 or more for the past ten years.
I have not made any political contributions to any individual,
campaign organization, political party, or similar entity over the past
10 years. I did contribute $1,120 to my former law firm's political
action committee between April 2013 and December 2016.
16. List all scholarships, fellowships, honorary degrees, honorary
society memberships, military medals, and any other special recognition
for outstanding service or achievements.
I received scholarships from the Waterbury Country Club, the
Knights of Columbus and the Middlebury Lions Club for my undergraduate
studies at Boston College. I graduated from Boston College magna cum
laude. I also received a partial merit scholarship to attend Columbia
Law School.
In private law practice, I received the following recognitions and
awards:
Super Lawyers, Rising Star, 2013-2018.
Legal 500, Leading Lawyer, Securities: Shareholder Litigation,
2015-2018.
Friend of Children (for pro bono work), Justice for Children,
2011.
17. Please list each book, article, column, Internet blog posting,
or other publication you have authored, individually or with others.
Include a link to each publication when possible. Also list any
speeches that you have given on topics relevant to the position for
which you have been nominated. Do not attach copies of these
publications unless otherwise instructed.
Seth Aronson, Robert Stern, and Michael Walsh, ``Courts Deny
Plaintiffs Over Section 304 Suits,'' International Financial
Law Review, March 2006.
Jeffrey Kilduff, Robert Stern, Michael Walsh, and Julia
Schiller, ``Digimarc: The Final Nail in the SOX 304 Coffin,''
Securities Law 360, January 2009.
18. List digital platforms (including social media and other
digital content sites) on which you currently or have formerly operated
an account, regardless of whether or not the account was held in your
name or an alias. Include the name of an ``alias'' or ``handle'' you
have used on each of the named platforms. Indicate whether the account
is active, deleted, or dormant. Include a link to each account if
possible.
LinkedIn: https://www.linkedin.com/in/mike-walsh-8563ab
Twitter: @m_j_w_j_r
19. Please identify each instance in which you have testified
orally or in writing before Congress in a governmental or non-
governmental capacity and specify the date and subject matter of each
testimony. None.
20. Given the current mission, major programs, and major
operational objectives of the department/agency to which you have been
nominated, what in your background or employment experience do you
believe affirmatively qualifies you for appointment to the position for
which you have been nominated, and why do you wish to serve in that
position?
I have served at the Department of Commerce since 2018. As Deputy
General Counsel, Chief of Staff, and now performing the duties of the
General Counsel, I oversee all mission critical legal matters within
the Department, including litigation, export enforcement, AD/CVD and
other trade compliance issues, GDPR, CFIUS, and supply chain risk
management. I provide legal and strategic advice to the Secretary,
Deputy Secretary, and other senior Department leaders. I also
coordinate closely with other senior lawyers in the Executive Branch
through the interagency process. I am deeply familiar with the
operations of the Office of General Counsel and the Department.
In private practice, I provided clients with strategic legal advice
on cutting edge legal issues. If confirmed, I look forward to
continuing to do so at the Department of Commerce.
21. What do you believe are your responsibilities, if confirmed, to
ensure that the department/agency has proper management and accounting
controls, and what experience do you have in managing a large
organization?
The role of the General Counsel is to provide legal advice to
support the strategic vision and policies set by the Secretary of
Commerce as informed by the President's agenda. If confirmed, I will
ensure that the execution of this strategic vision complies with the
law. Proper management and accounting controls are critical to the
health of any large organization, and, if confirmed, I will continue to
work with the Secretary, Deputy Secretary, and Chief Financial Officer
to ensure those controls are maintained and remain strong.
I have managed large teams of people for more than a decade, first
as counsel and partner at my former law firm, and next as Deputy
General Counsel and Chief of Staff at the Department of Commerce.
22. What do you believe to be the top three challenges facing the
department/agency, and why?
The top challenge facing the Department is conducting a complete
and accurate 2020 Decennial Census in the face of unprecedented
attempts to misinform the public and disrupt or otherwise undermine the
count. The Department must successfully implement and integrate all
operations and information technology systems and complete non-response
follow up operations in an uncertain environment as the Federal
government battles the COVID-19 virus. The Department must also ensure
data quality, motivate hard to count populations to respond, and
effectively monitor contracts to validate performance, control costs,
and achieve 2020 Census goals.
Second, the Department must continue to pursue free, fair, and
reciprocal trade policies for the United States. The continued focus on
anti-dumping and countervailing duties investigations alongside the
Department's trade promotion efforts will continue to reinvigorate
domestic industry and provide economic prosperity for all Americans.
Third, the Department must continue to refine existing processes
and personnel allocation to continue to ensure protection of economic
and national security. From the administration of the Section 232
exclusion process to the implementation of ECRA and FIRRMA, the
Department must continue to ensure it is well placed to protect our
Nation's economic and national security.
b. potential conflicts of interest
1. Describe all financial arrangements, deferred compensation
agreements, and other continuing dealings with business associates,
clients, or customers. Please include information related to retirement
accounts.
I do not have any financial arrangements, deferred compensation
agreements, or other continued dealings with my former law firm. I
rolled my former employer sponsored Keogh retirement account into an
IRA in 2018.
2. Do you have any commitments or agreements, formal or informal,
to maintain employment, affiliation, or practice with any business,
association or other organization during your appointment? If so,
please explain. No.
3. Indicate any investments, obligations, liabilities, or other
relationships which could involve potential conflicts of interest in
the position to which you have been nominated. Explain how you will
resolve each potential conflict of interest.
I am not aware of any investments, obligations, liabilities, or
other relationships which could involve potential conflicts of interest
in the position to which I have been nominated.
4. Describe any business relationship, dealing, or financial
transaction which you have had during the last ten years, whether for
yourself, on behalf of a client, or acting as an agent, that could in
any way constitute or result in a possible conflict of interest in the
position to which you have been nominated. Explain how you will resolve
each potential conflict of interest.
Under the Trump Administration Ethics Pledge, I was subject to a
two-year bar on participating in matters directly involving my former
law firm and my former clients. That bar expired on January 8, 2020.
5. Identify any other potential conflicts of interest, and explain
how you will resolve each potential conflict of interest.
In connection with the nomination process, I have consulted with
the Office of Government Ethics and Department of Commerce ethics
officials to identify any potential conflicts of interest. Any
potential conflicts of interest will be resolved in accordance with the
terms of my ethics agreement. I understand that my ethics agreement has
been provided to the Committee. I am not aware of any potential
conflict of interest.
6. Describe any activity during the past ten years, including the
names of clients represented, in which you have been engaged for the
purpose of directly or indirectly influencing the passage, defeat, or
modification of any legislation or affecting the administration and
execution of law or public policy. None.
c. legal matters
1. Have you ever been disciplined or cited for a breach of ethics,
professional misconduct, or retaliation by, or been the subject of a
complaint to, any court, administrative agency, the Office of Special
Counsel, professional association, disciplinary committee, or other
professional group? If yes:
a. Provide the name of agency, association, committee, or group;
b. Provide the date the citation, disciplinary action, complaint, or
personnel action was issued or initiated;
c. Describe the citation, disciplinary action, complaint, or
personnel action;
d. Provide the results of the citation, disciplinary action,
complaint, or personnel action.
No.
2. Have you ever been investigated, arrested, charged, or held by
any Federal, State, or other law enforcement authority of any Federal,
State, county, or municipal entity, other than for a minor traffic
offense? If so, please explain.
In approximately June 2011, I was charged with violating Virginia
Code 46.2-862 for traveling 81 mph in a 70 mph zone. The charge was
reduced to ``defective equipment,'' a non-criminal, non-moving, non-
point violation on August 2, 2011.
3. Have you or any business or nonprofit of which you are or were
an officer ever been involved as a party in an administrative agency
proceeding, criminal proceeding, or civil litigation? If so, please
explain. No.
4. Have you ever been convicted (including pleas of guilty or nolo
contendere) of any criminal violation other than a minor traffic
offense? If so, please explain. No.
5. Have you ever been accused, formally or informally, of sexual
harassment or discrimination on the basis of sex, race, religion, or
any other basis? If so, please explain. No.
6. Please advise the Committee of any additional information,
favorable or unfavorable, which you feel should be disclosed in
connection with your nomination. None.
d. relationship with committee
1. Will you ensure that your department/agency complies with
deadlines for information set by congressional committees, and that
your department/agency endeavors to timely comply with requests for
information from individual Members of Congress, including requests
from members in the minority? Yes.
2. Will you ensure that your department/agency does whatever it can
to protect congressional witnesses and whistle blowers from reprisal
for their testimony and disclosures? Yes.
3. Will you cooperate in providing the Committee with requested
witnesses, including technical experts and career employees, with
firsthand knowledge of matters of interest to the Committee? Yes.
4. Are you willing to appear and testify before any duly
constituted committee of the Congress on such occasions as you may be
reasonably requested to do so? Yes.
______
Resume of Michael J. Walsh, Jr.
EDUCATION
Columbia Law School, New York, New York
J.D., May 2002
Journal: Columbia Business Law Review
Boston College, Chestnut Hill, Massachusetts
B.A., magna cum laude, Political Science, May 1999 Minor:
Faith, Peace, and Justice
REPRESENTATIVE EXPERIENCE
Department of Commerce, Washington, D.C., August 2019-present
Chief of Staff, Performing the Delegated Duties of the General Counsel
(Security Clearance--TS/SCI)
Oversee the Office of General Counsel; Chief Legal Officer, Department
of Commerce
Manage entire legal portfolio at the Department of Commerce,
with over 600 lawyers reporting through to me.
Oversee highest impact legal initiatives throughout the
Department, including export administration, export
enforcement, emerging technologies supply chain risk
management, GDPR, and CFIUS.
Manage critical litigation in Federal district and appellate
courts throughout the country.
Coordinate the determination of Department positions on
Supreme Court cases.
Provide legal and strategic advice to the Secretary, Deputy
Secretary, bureau leadership, and other senior Department
leaders.
Coordinate with White House counsel and interagency lawyers
on important legal issues.
Department of Commerce, Washington, D.C., September 2018-August 2019
Chief of Staff (Security Clearance--TS/SCI)
Oversee the entire Department of Commerce, a 47,000-employee
organization divided into twelve bureaus reporting to the Secretary of
Commerce through me.
Together with the Office of General Counsel, oversee all
mission critical legal matters within the Department, including
litigation, export enforcement, AD/CVD and other trade
compliance issues, GDPR, CFIUS, supply chain risk management,
and congressional oversight.
Interface with CEOs, boards of directors, and other C-suite
executives with critical business before the Department.
Interface with foreign heads of state, ministers, and other
officials on a variety of issues.
Represent the United States in bilateral trade talks.
Interface with Cabinet members, their Chiefs of Staff and
General Counsels, and the White House on important
administration priorities and execute those priorities through
bureau heads and other senior Commerce Department leadership.
Coordinate with senior administration policymakers through
NSC-led interagency process to determine, implement, and
execute administration policy.
Provide legal and strategic advice to the Secretary of
Commerce.
Department of Commerce, Washington, D.C., January 2018-October 2018
Deputy General Counsel (Security Clearance--TS/SCI)
Principal Deputy to General Counsel; oversee all legal and operational
aspects of Office of General Counsel.
O'Melveny & Myers LLP, Washington, D.C., January 2003-January 2018
Partner, Litigation Department, Securities Litigation Practice Group
and Financial Services Group, February 2012-2018; Managing Partner, Pro
Bono, Washington, DC Office, 2013-2018
Securities and Shareholder Derivative Litigation
Represented government sponsored enterprise in complex,
Federal multi-district securities class action and parallel
individual securities and shareholder derivative actions
arising out of the financial crisis of 2008 and alleging
upwards of $40 billion in damages.
Briefed general counsel, head of litigation, C-suite
executives, and members of the Board of Directors on
litigation strategy and impact of litigation positions on
business.
Successfully dismissed Section 11 and 12(a)(2) claims
under the Securities Act of 1933 on novel exemption
grounds.
Successfully dismissed two counts of fraud under
Securities Exchange Act of 1934.
Successfully argued for dismissal of individual
plaintiff state law claims under Securities Litigation
Uniform Standards Act of 1998.
Led successful multi-firm effort before the Judicial
Panel on Multidistrict Litigation to transfer and
coordinate all actions in Southern District of New York.
Managed all aspects of electronic document discovery
and successfully argued against motion to compel production
of over 60 million pages of documents.
First chair defense of senior executive and board
member depositions.
First chair merits depositions of senior executives
and board members of plaintiff institutions.
Negotiated resolution of matter in hotly contested
mediation.
Represented government sponsored enterprise in complex
Federal multi-district securities class action arising out of
accounting restatement and alleging upwards of $9 billion in
damages as well as accompanying regulatory and internal
inquiries.
Briefed general counsel, head of litigation, and C-
suite executives on litigation strategy and impact of
litigation positions on business.
Authored motions to dismiss and motions for summary
judgment.
Managed all aspects of electronic document discovery.
Coordinated team of twenty attorneys preparing for
offensive and defensive expert discovery regarding
accounting standards, corporate governance, and damages.
First chair merits depositions of senior management
and outside director witnesses.
Interfaced daily with accounting and corporate
governance experts and economists in connection with
preparation of expert reports.
First chair expert depositions of plaintiff and
defense-side experts.
Coordinated responses to over 75 third-party document
subpoenas issued to current and former officer and director
indemnitees.
Created and implemented crisis management strategies
in response to government and internal investigations and
multi-billion dollar private lawsuits.
Collaborated with client to formulate strategy
regarding protection of attorney-client and attorney work
product privilege. Formulated offensive and defensive
discovery strategy from document retention, collection and
production through fact development and merits depositions.
Collaborated with client to create comprehensive
records retention policy tailored to banking regulatory
examination, SEC and DOJ investigations, and civil
litigation.
Conducted document retention training sessions in
connection with implementation of records retention policy
for all client employees, including those in legal,
finance, and accounting divisions. Monitored employee
compliance with records retention policy in accordance with
Zubulake decisions.
Led team that evaluated electronic vendors, including
assessing capability to provide full service in-house
archiving system.
Managed team of over 75 attorneys for expedited
privilege review.
Represented Real Estate Investment Trust in shareholder
derivative litigation regarding allegedly improper payment of
management compensation. Motions to dismiss are pending.
Financial Services and ERISA Litigation
Represented government sponsored enterprise in all
litigation stemming from allegations of constitutional takings
and violations of the Administrative Procedure Act in
connection with amendment to Treasury's preferred stock
purchase agreement.
Secured dismissal of APA case filed in District Court
for the District of Columbia.
Numerous dispositive motions pending in other actions.
Represented health insurer in multiple ERISA class actions
and individual actions stemming from allegations of improper
overpayment recovery processes and procedures.
First chair defense of merits depositions of company
employees.
First chair deposition of plaintiff corporate
representatives and fact witnesses.
Authored motions to dismiss, motions for summary
judgment, and motion for class decertification. Motions for
summary judgment and decertification are pending.
Successfully argued against motion seeking to
impermissibly broaden the fiduciary exception to the
attorney client privilege.
Attempting to negotiate resolution in court-ordered
mediation sessions.
Represented senior officers and directors of government
sponsored enterprise named as defendants in ERISA class action
case stemming from financial crisis of 2008.
Authored motion that resulted in dismissal of one
count and six defendants.
First chair defense of merits depositions of senior
officers.
Participated in hotly contested mediation that led to
settlement.
Represented government sponsored enterprise and senior
officers and directors named in ERISA class action stemming
from accounting restatement.
First chair defense of merits depositions of senior
officers and members of board of directors.
Participated in contested mediation that led to
settlement.
Congressional Investigations
Coordinated multi-firm effort to respond to requests for
documents and other information regarding financial crisis from
House Committee on Oversight and Government Reform on behalf of
client.
Led team of over 25 attorneys collecting, reviewing, and
producing responsive documents. Coordinated with senior client
officers to formulate responses to committee staff requests for
information.
Lead attorney in responding to requests for information from
the Minority side of the House Committee on Oversight and
Government Reform regarding allegations of improper
preferential treatment for senior officers of client by
customer.
Financial Crisis Inquiry Commission
Interfaced regularly with Commission Staff in connection
with all aspects of inquiry into client.
Represented witnesses as first chair in connection with
Staff interviews.
Assisted former officers of client with preparation for
public hearings.
Supervised team of ten attorneys responding to requests for
documents, data and other information from Staff.
Telecommunications Litigation
Managed successful representation of incumbent local
exchange carrier in arbitration before Federal Communications
Commission; drafted pre-filed direct and rebuttal testimony,
prepared cross-examination questions, sat as second chair at
hearing, and drafted initial post-hearing brief and reply
brief.
Managed representation of incumbent local exchange carrier
in litigation of inter-carrier compensation dispute in two
states; argued summary judgment motion, cross-examined Chief
Executive Officer of opposing party, first-chaired latter
portion of multi-week hearing, and drafted all pre-trial and
post-trial briefs.
Provided strategic counseling to incumbent local exchange
carrier; prepared briefing points for Senate Judiciary
Committee and ``red team'' examination of carrier's general
counsel.
AWARDS AND ACTIVITIES
Super Lawyers, Rising Star, 2013-2018
Legal 500, Leading Lawyer, Securities: Shareholder Litigation, 2015-
2018
Friend of Children (for pro bono work), Justice for Children, 2011
PUBLICATIONS
Seth Aronson, Robert Stern, and Michael Walsh, ``Courts Deny Plaintiffs
Over Section 304 Suits,'' International Financial Law Review, March
2006.
Jeffrey Kilduff, Robert Stern, Michael Walsh, and Julia Schiller,
``Digimarc: The Final Nail in the SOX 304 Coffin,''
Securities Law 360, January 2009.
BAR MEMBERSHIPS
New York (2003), District of Columbia (2003), United States District
Court for the District of Columbia (2004), United States Court of
Appeals for the District of Columbia Circuit (2004), United States
District Court for the Southern District of New York (2009), United
States District Court for the Eastern District of Michigan (2009),
United States Court of Appeals for the Second Circuit (2012), United
States Court of Federal Claims (2016), United States Supreme Court
(2019)
The Chairman. Thank you very, very much, Mr. Walsh.
And now remotely by video, the Chair recognizes Mary Toman.
STATEMENT OF MARY A. TOMAN, NOMINEE TO BE UNDER
SECRETARY OF COMMERCE FOR ECONOMIC AFFAIRS,
U.S. DEPARTMENT OF COMMERCE
Ms. Toman. Good afternoon. Mr. Chairman, Ranking Member
Cantwell, and distinguished members of the Committee, thank you
for inviting me today.
What a great country that someone like me, the first in my
family to speak English as a native language, could be at a
hearing in front of such a distinguished Senate Committee. I am
grateful to President Donald Trump, Secretary of Commerce
Wilbur Ross, and many others for having the confidence in me to
nominate me for Under Secretary for Economic Affairs at the
Department of Commerce. I am deeply humbled and honored.
I am grateful to my family and friends: my very supportive
husband of 31 years, Milt Miller; my daughter Mary Ann, whom I
respect for balancing law school and child care for her young
daughter; and my mother, energetic at 96.
One reason for my interest in returning to public service
is my strong desire to give others the opportunities I have
had. New prospects for economic growth must be identified and
communicated to all.
If confirmed, I would oversee an important constitutional
responsibility, the 2020 Decennial Census. I will do everything
in my power to ensure that everyone is counted. I would work
with Congress and your staffs to ensure that the Census is
completed fully and accurately. Data security, privacy, and
confidentiality are paramount.
The Bureau of Economic Analysis calculates our country's
GDP and other key economic indicators. This treasure trove of
data must become increasingly accessible to all users to
identify new jobs. That is how to expand our manufacturing
base, services, and exports.
The Under Secretary is also responsible for macroeconomic
and fiscal policy analyses. Regaining the momentum that
prevailed in our economy as recently as February is key. We
must use our resilient economic engine to restore employment
through the innovation that drives America's growth.
The digital data world is upon us and can boost
productivity. We must reflect innovation in our analyses and
communications. The Commerce Department is at the forefront of
these governmentwide efforts, serving as a lead for the Federal
data strategy and the implementation of the Foundations for
Evidence-Based Policymaking Act. The Under Secretary's office
drives this for the Department, using data to do its
decisionmaking and increase data access for American businesses
and households.
In my previous position as Deputy Assistant Secretary of
the Commerce Department, we produced key industrial statistics
for over 120 industries. Much of this directly complemented the
data produced by Commerce's Bureau of Economic Analysis. I led
trade negotiations with the Government of Japan that
significantly increased U.S. exports and brought more jobs to
America. Encouraging job growth is a key goal for the Commerce
Department. If confirmed, I will take that objective to heart
daily to produce incisive economic information as data opens
doors.
In my time as Deputy Treasurer of the State of California,
we used Commerce data extensively. We managed about $200
billion, including the CalPERS and CalSTRS pension funds. That
experience would be relevant as the Under Secretary advises the
Secretary of Commerce in his role as a member of the Pension
Benefit Guarantee Corporation board.
My career has been balanced between government public
service and the private sector. At Procter & Gamble, we used
Commerce statistics daily for forecasts and new product
markets. As a commissioner of the City of Los Angeles, we
relied on Commerce data too. So I understand the practical side
of how Commerce data is used.
If reported favorably by this committee and confirmed by
the full Senate, I look forward to working with you and your
staffs. I will always be interested in hearing about your
priorities and working with you cooperatively. Working
together, anything is possible in America.
Thank you for this opportunity and I look forward to
answering any questions.
[The prepared statement and biographical information of Ms.
Toman follow:]
Prepared Statement of Mary A. Toman, Nominee to be Under Secretary for
Economic Affairs, U.S. Department of Commerce
Good afternoon. Mr. Chairman, Ranking Member Cantwell, and
distinguished members of the Committee. Thank you for inviting me
today.
What a great country that someone like me, the first in my family
to speak English as a native language, could be at this hearing before
such a distinguished Senate Committee. I am grateful to President
Donald Trump, Secretary of Commerce Wilbur Ross, and many others for
having the confidence in me to nominate me for Under Secretary for
Economic Affairs at the Department of Commerce. I am deeply humbled and
honored.
I am grateful to my family and friends: my energetic 96 year old
mother Mary; my very supportive husband of 31 years Milt Miller; and my
daughter Mary Ann whom I respect for simultaneously balancing law
school and childcare for her young daughter.
One reason for my interest in returning to public service is my
strong desire to give others the opportunities I have had. New
prospects for economic growth must be identified and communicated to
all.
If confirmed, I would oversee an important Constitutional
responsibility, the 2020 Decennial Census. I will do everything in my
power to ensure that everyone is counted. I will work with Congress and
your staffs to ensure that the 2020 Decennial Census is completed fully
and accurately. Data security, privacy, and confidentiality are also
paramount.
The Bureau of Economic Analysis calculates our country's Gross
Domestic Product (GDP) and other key economic indicators. One of my
goals is to make this treasure trove of data increasingly accessible to
all users so new jobs can be identified. That's how to expand our
manufacturing base, services and exports.
The Under Secretary is also responsible for macroeconomic and
fiscal policy analyses. Regaining the momentum that prevailed in our
economy as recently as February is key. We must use our resilient
economic engine to restore employment with the innovation and
adaptability that have traditionally driven America's growth.
The digital data world is upon us and can boost productivity. We
must reflect innovation effectively in our analyses and communications.
The Commerce Department is at the forefront of these government-wide
efforts, serving as a lead of the Federal Data Strategy and the
implementation of the Foundations for Evidence-Based Policymaking Act.
The Under Secretary's Office drives this forward for the Department. I
understand the importance of the Department using its data to both
guide its own decision-making, as well as increasing access to data for
American businesses and households.
In my previous position as Deputy Assistant Secretary of the
Commerce Department, we produced key industry statistics for over 120
industries. Much of this directly complemented the data produced in
Commerce's Bureau of Economic Analysis. I led trade negotiations with
the Government of Japan that significantly increased U.S. exports and
brought more jobs to America. Encouraging job growth is a key goal for
the Commerce Department. If confirmed, I will take that objective to
heart daily to produce incisive economic information. Data opens doors.
In my time as Deputy Treasurer of the State of California, we used
Commerce data extensively. We managed about $200 billion, including the
CalPERS and CalSTRS pension funds. That experience would become
directly relevant as the Under Secretary advises the Secretary of
Commerce in his role as a member of the Pension Benefit Guarantee
Corporation board.
My career has been balanced between government public service and
the private sector. At Procter & Gamble, we used Commerce statistics
daily for forecasts and new product markets. As a Commissioner of the
City of Los Angeles, we relied on Commerce data to project growth and
resource allocation, so I understand the practical side of how Commerce
data is used.
If reported favorably by this committee and confirmed by the full
Senate, I look forward to working with you and your staffs. I will
always be interested in hearing your priorities and working with you
cooperatively. Working together, anything is possible in America.
Thank you for this opportunity and I look forward to answering any
questions.
______
a. biographical information
1. Name (Include any former names or nicknames used): Mary A.
Toman.
2. Position to which nominated: Under Secretary (Economic Affairs),
Department of Commerce.
3. Date of Nomination: May 4, 2020.
4. Address (List current place of residence and office addresses):
Residence: Information not released to the public.
Office: 604 N. Elm Dr., Beverly Hills, CA 90210.
5. Date and Place of Birth: March 31, 1954; Pasadena, CA.
6. Provide the name, position, and place of employment for your
spouse (if married) and the names and ages of your children (including
stepchildren and children by a previous marriage).
Husband: Milton A. Miller, retired partner, Latham & Watkins
LLP, Los Angeles, CA.
Daughter: Mary Ann Toman-Miller, 28.
7. List ail college and graduate degrees. Provide year and school
attended.
B.A. with honors in Economics, Stanford University, 1976.
MBA, Harvard Business School, 1981.
8. List all post-undergraduate employment, and highlight all
management level jobs held and any non-managerial jobs that relate to
the position for which you are nominated.
Government
*Deputy Assistant Secretary of Commerce, International Trade
Administration, Trade Development, Automotive Affairs and
Consumer Goods (1989-1992). Headed U.S. delegations negotiating
auto parts (the MOSS Talks) and vehicle issues with the
Government of Japan. Duties included responsibility for export
expansion and trade policies in I20 industries.
*Deputy Treasurer of the State of California (1995-1996).
Responsible for the State of California's treasury management,
banking, cash management, investments and pensions. Represented
the State Treasurer on the boards of the State's two public
pension funds: the California Public Employees' Retirement
System (CalPERS) and the State Teachers' Retirement System.
*Chairman and Commissioner, Industrial Development Authority of
the City of Los Angeles (1993-1995). Responsible for
development projects and job creation through infrastructure
and business development with emphasis on underserved urban
neighborhoods.
*Presidential Transition Team of President-Elect George H.W.
Bush: The Export-Import Bank of the United States and Overseas
Private Investment Corporation (1988-1989)
Business
*Bain & Co., Strategic Planning (1976-1977). Research and
Management Consulting.
*Procter & Gamble Company (1977-1979). Brand management and
marketing.
E.F. Hutton (1980). Corporate Finance Department.
*The Burton Group PLC (1981-1984). Corporate and Strategic
Planning Department founder for an international diversified
company.
The London Group (1992-1994, 1997-1999, 2003 present). Created
and manage international stock and real estate portfolio.
9. Attach a copy of your resume.
Please see resume attachment.
10. List any advisory, consultative, honorary, or other part-time
service or positions with Federal, State, or local governments, other
than those listed above, within the last ten years.
Member, Advisory Committee on Human Trafficking Subcommittee on
Training and Awareness, U.S. Department of Transportation (2018-2019)
11. List all positions held as an officer, director, trustee,
partner, proprietor, agent, representative, or consultant of any
corporation, company, firm, partnership, or other business, enterprise,
educational, or other institution within the last ten years.
Board of Governors, Bath S. University, Bath, United Kingdom
(1988-2014).
Director of a homeowners' association called ''4 Ferncroft
Freehold'' during the past ten years. A directorship comes with
ownership of an apartment. I have never worked and do not work
for the homeowners' association and receive no income or fees
of any kind from it.
12. Please list each membership you have had during the past ten
years or currently hold with any civic, social, charitable,
educational, political, professional, fraternal, benevolent or
religiously affiliated organization, private club, or other membership
organization. (For this question, you do not have to list your
religious affiliation or membership in a religious house of worship or
institution.). Include dates of membership and any positions you have
held with any organization. Please note whether any such club or
organization restricts membership on the basis of sex, race, color,
religion, national origin, age, or disability.
Harvard Business School Alumni Association (1981 to present)
Stanford Alumni Association (lifetime member)
Board of Governors, Bath S. University, Bath, England (1988-
2014)
University Club, Washington, D.C. (2015 to present)
California Republican Party (2010-2014, 2016)
Heritage Foundation (2017-2019)
CPAC (2018-2019)
Incline Village Crystal Bay Republican Women (2016-2017)
Jonathan Club, Los Angeles (2004 to present)
Harvard Club of New York (over 25 years)
To the best of my knowledge, none of these organizations restricts
membership on any of the stated grounds.
13. Have you ever been a candidate for and/or held a public office
(elected, non-elected, or appointed)? If so, indicate whether any
campaign has any outstanding debt, the amount, and whether you are
personally liable for that debt.
Yes. No debt was ever incurred, and no debt is outstanding.
14. List all memberships and offices held with and services
rendered to, whether compensated or not, any political party or
election committee within the past ten years. If you have held a paid
position or served in a formal or official advisory position (whether
compensated or not) in a political campaign within the past ten years,
identify the particulars of the campaign, including the candidate, year
of the campaign, and your title and responsibilities.
Member, California Republican Party (2010-2014, 2016), no services
rendered.
15. Itemize all political contributions to any individual, campaign
organization, political party, political action committee, or similar
entity of $500 or more for the past ten years.
11-05-2018 Marsha Blackburn 1,000
09-27-2017 Ed Royce 900
12-31-2016 Ed Royce 2,700
09-17-2016 Ed Royce 300
09-22-2014 Ed Royce 500
10-26-2012 Tommy Thompson 1,000
12-30-2011 Ed Royce 2,500
16. List all scholarships, fellowships, honorary degrees, honorary
society memberships, military medals, and any other special recognition
for outstanding service or achievements.
Honorary Fellowship awarded by Bath S. University in 2014 in
recognition of service on the Board of Governors of the University.
17. Please list each book, article, column, Internet blog posting,
or other publication you have authored, individually or with others.
Include a link to each publication when possible. Also list any
speeches that you have given on topics relevant to the position for
which you have been nominated. Do not attach copies of these
publications unless otherwise instructed.
None.
18. List digital platforms (inc1uding social media and other
digital content sites) on which you currently or have formerly operated
an account, regardless of whether or not the account was held in your
name or an alias. Include the name of an ``alias'' or ``handle'' you
have used on each of the named platforms. Indicate whether the account
is active, deleted, or dormant. Include a link to each account if
possible.
Facebook, active, https://www.facebook.com/mary.toman.125
2002 campaign website, dormant, http://marytoman.org/
19. Please identify each instance in which you have testified
orally or in writing before Congress in a governmental or non-
governmental capacity and specify the date and subject matter of each
testimony.
Testimony, Hearing before the Subcommittee on Innovation,
Technology and Productivity of the Committee on Small Business, U.S.
Senate, on U.S./Japan Auto Parts Trade, April 20, 1990. This testimony
was in my capacity as Deputy Assistant Secretary of Commerce.
20. Given the current mission, major programs, and major
operational objectives of the department/agency to which you have been
nominated, what in your background or employment experience do you
believe affirmatively qualifies you for appointment to the position for
which you have been nominated, and why do you wish to serve in that
position?
My background demonstrates deep experience in federal, state and
local government as well as extensive and successful involvement in the
private sector in both large and small businesses. In my government and
private sector roles, I have been both a producer and consumer of
Commerce Department data, experiences that will facilitate the making
and implementation of policies to promote jobs, growth and continued
prosperity.
As Deputy Assistant Secretary of Commerce, International Trade
Administration, Trade Development for Automotive Affairs and Consumer
Goods in President George H. W. Bush's Administration, I gained
experience in the areas for which the Under Secretary is now
responsible. My group produced statistics for analyses and forecasts
for the automotive and 120 consumer goods industries that were
published in the Department's annual U.S. Industrial Outlook. Many of
these analyses now take place in Bureau of Economic Analysis (BEA). We
used Census Bureau data, inflation data and GDP statistics along with
private sector sources to produce and analyze key information about the
economy.
As Deputy Assistant Secretary, I led quarterly International Trade
Advisory Committee meetings of industry experts to consult with the
private sector on economic issues and sectoral developments including
trade and tariffs. I am very familiar with how the Commerce Department
works not only on a data and statistical basis, but also through
synergistic interaction with other parts of the government such as the
Council of Economic Advisors, with which the Under Secretary
interfaces. I established and led an interagency group to communicate
and coordinate trade and economic policies regarding the auto sector
(USTR, Treasury, State, Labor and Agriculture). Interagency
coordination is an integral part of this Under Secretary position.
My responsibility for heading U.S. delegations negotiating auto
parts (the MOSS Talks) and vehicle trade issues with the government of
Japan provided an extensive and relevant understanding of international
trade, an important data area of BEA. I have observed the Commerce
Department activities since I was a DAS, so would hit the ground
running.
My Stanford University degree in Economics (with Honors) and my
Harvard University MBA gave me relevant economic, management and data
skills to lead this area. At Stanford I studied under Michael Spence,
recipient of the Nobel Prize in Economics, whose specialty was
information flows and market development. The appropriate data and
information flows in BEA and for the Census Bureau must be constantly
improved to best serve our country, while taking appropriate measures
to maintain the accuracy, security and integrity of the data.
As Deputy Treasurer of the State of California, I was responsible
for the State's treasury management, banking, cash management and
investments. This required extensive knowledge of fiscal and monetary
policy, national and state macroeconomic policy and forecasts,
inflationary trends and regulatory issues, which is also necessary to
oversee and lead BEA. Working with state data agencies provided
experience directly relevant to BEA. The Treasurer's office used the
data produced by BEA and the Census Bureau on a regular basis, as the
State and localities made key decisions based on its statistics. In any
treasury function, the accuracy of numbers is paramount.
I represented the State Treasurer on the boards of the State's two
public pension funds: the California Public Employees' Retirement
System (CalPERS) and the State Teacher's Retirement System (CalSTRS)
which had combined pension assets of $150 billion and over two million
beneficiaries. This deep experience with pension funds will be useful
as the Under Secretary represents the Commerce Secretary on the U.S.
Pension Benefit Guarantee Corporation.
BEA is also involved with government policy development, which I
have performed as a DAS, Deputy Treasurer, and as a member of a
Presidential transition team focusing on the Export-Import Bank of the
United States and the Overseas Private Investment Corporation (OPIC).
Moreover, as a Commissioner and Chair of the Los Angeles Industrial
Development Authority, I focused on economic policies that would create
jobs with an emphasis on underserved urban areas.
Having spent roughly half of my career in the private sector, I
have been an extensive user of BEA and Census Bureau data and
statistics. At Procter & Gamble, I analyzed and applied these
statistics daily, with many strategies driven by Census demographic
data. I planned million dollar marketing plans and chose test markets
based on Census data. We relied fully on the accuracy of this data, so
I clearly understand how BEA and Census data drives industry growth and
jobs.
Strategic planning was my specialty at Bain & Company, where every
day we used data produced by BEA and the Census Bureau (overall
economic information, sector specific data, demographic data) to
prepare long term forecasts for company and industry growth strategies.
Sectors included high tech (silicon chip manufacturers, LED producers
and other electronics), chemicals, financial service and mining.
I wish to serve in this position because I believe deeply in this
country and our Constitution. Conducting an accurate decennial census
is a vital constitutional responsibility, and it would be a great honor
to help fulfill these duties that strengthen our democracy, recognize
and enhance economic and job growth and help society as a whole.
This country has given me unparalleled opportunities to experience
firsthand the blessings of liberty and achievement. I want to do my
part to keep our country strong through economic growth and strength so
that more and more people can prosper and achieve their potential.
21. What do you believe are your responsibilities, if confirmed, to
ensure that the department/agency has proper management and accounting
controls, and what experience do you have in managing a large
organization?
As Deputy Treasurer of the State of California, I managed and
oversaw nearly $200 billion of pension and other assets, which required
strong and effective measures to identify and eliminate risks quickly.
I have a successful track record of proper management and improving
accounting controls in large organizations. Having direct
responsibility for banking for the state required working closely with
staff in the Treasurer's Office as well as those in the banking sector
to reduce risks. I made significant improvements in accounting
controls. My responsibilities included representing the State Treasurer
on the boards of the CalPERS and CalSTRS pension funds, which provided
retirement and other benefits for over two million state employees and
retirees. These roles presented extremely large management issues
regarding people and funds, and reviews of hundreds of contracts each
month. I did not approve any without improved scrutiny, due diligence
and proper assurances. I provided educational opportunities for other
board members and staff to learn about proper and effective accounting
controls so that my improvements could be enhanced and sustained.
My training at Harvard Business School (MBA) in advanced accounting
has served taxpayers well in discovering problems and finding
solutions. My extensive people management skills and experience are
also critical to achieving this mission.
As a Deputy Assistant Secretary of the U.S. Department of Commerce
as well as in my service on a presidential transition team, my
management skills were applied to the Federal government to recommend
ways to reduce risks and apply cost-effective strategies. I sought to
ensure that the country would receive optimal benefits from our budgets
and the taxpayers would be proud of our work. Regarding staff, my
approach was to work with those around me to motivate and empower them
to prioritize proper management and accounting controls for the present
and future.
My experience in the private sector, such as with Procter & Gamble,
trained me well in the very best of management and accounting skills.
Accuracy, timeliness, integrity and good planning are hallmarks of the
culture of Procter & Gamble. My budgeting and expenditure
responsibilities in numerous industries and government entities have
given me a broad base of judgment to carry out effectively these
responsibilities.
22. What do you believe to be the top three challenges facing the
department/agency, and why?
The top three challenges are:
(1) To conduct a full, fair, accurate and efficient decennial
census, with subsequent accurate analyses of the data to
fulfill essential functions including reapportionment of
representation in the Congress and states in a timely and
transparent manner. Supporting the hardworking staff is
critical.
(2) To provide accurate and relevant data to support economic
activity in the United States and disseminate it clearly to all
potential users. There are always ways to improve the
timeliness, accuracy and relevance of data, its analyses and
forecasting so that job creation can be enhanced through policy
development As the U.S. economy evolves, new and more modem
ways of structuring the architecture of U.S. economic data and
analyses must be considered, developed, implemented and
communicated. It is important to increase consultations with
the private sector on new sectoral developments and to be
responsive to Congress and users of the information.
(3) To continue actively supporting the hardworking staff in the
Bureau of Economic Analysis as we constantly seek to assist
growth and job creation in the U.S. economy. The workload is
heavy and their invaluable efforts to monitor and analyze an
evolving and innovative economy must be facilitated.
b. potential conflicts of interest
1. Describe all financial arrangements, deferred compensation
agreements, and other continuing dealings with business associates,
clients, or customers. Please include information related to retirement
accounts.
457(b) Plan with the State of California. I have not received any
distributions from this Plan to date.
2. Do you have any commitments or agreements, formal or informal,
to maintain employment, affiliation, or practice with any business,
association or other organization during your appointment? If so,
please explain. No.
3. Indicate any investments, obligations, liabilities, or other
relationships which could involve potential conflicts of interest in
the position to which you have been nominated. Explain how you wil1
resolve each potential conflict of interest.
In connection with the nomination process, I have consulted with
the Office of Government Ethics and Department of Commerce agency
ethics officials to identify any potential conflicts of interest. Any
potential conflicts of interest will be resolved in accordance with the
terms of my ethics agreement. I understand that my ethics agreement has
been provided to the Committee. I am not aware of any potential
conflict of interest other than those that are the subject of my ethics
agreement.
4. Describe any business relationship, dealing, or financial
transaction which you have had during the last ten years, whether for
yourself, on behalf of a client, or acting as an agent, that could in
any way constitute or result in a possible conflict of interest in the
position to which you have been nominated. Explain how you will resolve
each potential conflict of interest. None.
5. Identify any other potential conflicts of interest, and explain
how you will resolve each potential conflict of interest.
Any potential conflicts of interest will be resolved in accordance
with the terms of my ethics agreement. I understand that my ethics
agreement has been provided to the Committee.
6. Describe any activity during the past ten years, including the
names of clients represented, in which you have been engaged for the
purpose of directly or indirectly influencing the passage, defeat, or
modification of any legislation or affecting the administration and
execution of law or public policy. None.
c. legal maiters
1. Have you ever been disciplined or cited for a breach of ethics,
professional misconduct, or retaliation by, or been the subject of a
complaint to, any court, administrative agency, the Office of Special
Counsel, professional association, disciplinary committee, or other
professional group? If yes:
a. Provide the name of agency, association, committee, or group;
b. Provide the date the citation, disciplinary action, complaint, or
personnel action was issued or initiated;
c. Describe the citation, disciplinary action, complaint, or
personnel action;
d. Provide the results of the citation, disciplinary action,
complaint, or personnel action.
No.
2. Have you ever been investigated, arrested, charged, or held by
any Federal, State, or other law enforcement authority of any Federal,
State, county, or municipal entity, other than for a minor traffic
offense? If so, please explain. No.
3. Have you or any business or nonprofit of which you are or were
an officer ever been involved as a party in an administrative agency
proceeding, criminal proceeding, or civi1 litigation? If so, please
explain. No.
4. Have you ever been convicted (including pleas of guilty or nolo
contendere) of any criminal violation other than a minor traffic
offense? If so, please explain. No.
5. Have you ever been accused, formally or informally, of sexual
harassment or discrimination on the basis of sex, race, religion, or
any other basis? If so, please explain. No.
6. Please advise the Committee of any additional information,
favorable or unfavorable, which you feel should be disclosed in
connection with your nomination. None.
d. relationship with committee
1. Will you ensure that your department/agency complies with
deadlines for information set by congressional committees, and that
your department/agency endeavors to timely comply with requests for
information from individual Members of Congress, including requests
from members in the minority? Yes.
2. Will you ensure that your department/agency does whatever it can
to protect congressional witnesses and whistle blowers from reprisal
for their testimony and disclosures? Yes.
3. Will you cooperate in providing the Committee with requested
witnesses, including technical experts and career employees, with
firsthand knowledge of matters of interest to the Committee? Yes.
4. Are you willing to appear and testify before any duly
constituted committee of the Congress on such occasions as you may be
reasonably requested to do so? Yes.
______
Resume of Mary A. Toman
Education and Degrees
1979-1981 HARVARD GRADUATE SCHOOL OF BUSINESS ADMINISTRATION
Awarded Master of Business Administration (MBA).
1972-1976 STANFORD UNIVERSITY
Awarded Bachelor of Arts degree, in Economics,
with honors. Studied under Michael Spence,
recipient of Nobel Prize in Economics, 2001
(information flows and market development).
Government/Political Experience
1989-1992 UNITED STATES DEPARTMENT OF COMMERCE--WASHINGTON,
D.C.
Deputy Assistant Secretary of Commerce,
International Trade Administration, Trade
Development, Automotive Affairs and Consumer
Goods
Headed U.S. delegations negotiating auto parts
(the MOSS Talks) and vehicle trade issues with
the Government of Japan. Achieved significant
increases in U.S. industry exports through trade
negotiations and intensive compliance monitoring.
Portfolio included responsibility for export
expansion, trade policies and economic forecasts
for 120 industries. Developed strategies to open
global market access for U.S. companies small and
large. Established and led interagency
coordination on auto parts with White House and
State, USTR, Treasury and Labor. Successfully
resolved numerous trade disputes. Administrative
achievements included budget reductions. Led
quarterly International Trade Advisory Committee
meetings of industry experts to consult with
private sector on economic issues, sectoral
developments and tariffs. Trade missions to
increase exports to Asia (Japan, Korea), Europe
and the Middle East. Produced and analyzed
international and domestic economic data and
statistics for Commerce Department publications,
including the U.S. Industrial Outlook. Handled
national security oceanic border dispute as well
as sensitive agricultural and fishing issues.
1995-1996 STATE OF CALIFORNIA--SACRAMENTO
Deputy Treasurer of California
Responsible for the State of California's treasury
management, banking, cash management, investments
and pensions. California's investments totaled
nearly $200 billion and included: domestic and
international equity of developed and emerging
economies; domestic and international fixed
income (U.S. Government Treasury bonds and
bills); and domestic and international real
estate. Position required firm grasp of monetary
and fiscal policies, national and state
macroeconomic policy and forecasts, inflationary
trends and regulatory issues. Represented the
State Treasurer on the boards of the State's two
public pension funds: the California Public
Employees' Retirement System (CalPERS) and the
State Teachers' Retirement System, with combined
assets of $150 billion. Responsible for analyses
and voting decisions on CalPERS, including
investments, general administration and personnel
responsibilities, long-term care insurance,
mortgage programs, healthcare appellate reviews
and healthcare for over 2 million CalPERS
beneficiaries. Reviewed thousands of
international and domestic investment proposals
requiring complex statistical analyses. Dealt
with contentious labor and environmental
investment issues. Refused to support investing
in risky derivatives and mortgage-backed
securities long before such instruments were
recognized as too speculative for pension funds
and fiduciary institutions.
2018-2019 U.S. DEPARTMENT OF TRANSPORTATION--WASHINGTON,
D.C.
Member, Advisory Committee on Human Trafficking
Subcommittee on Training and Awareness
2002 REPUBLICAN CANDIDATE FOR CALIFORNIA STATE
TREASURER
1999-2003 REPUBLICAN PARTY OF LOS ANGELES COUNTY--LOS
ANGELES
Chairman
Elected and re-elected Chairman of the Nation's
largest county with approximately IO million
people and 18 Congressional seats--larger than 42
states. Speaker at Republican National Convention
2000 in Philadelphia. To be elected Chairman, one
must first run for public office (the position of
County Central Committee member) and be elected
by the voters in a California State Assembly
district (approximately 475,000 people). Ran
successfully for eight successive terms on County
Central Committee.
1988 to present BATHS. UNIVERSITY--BATH, ENGLAND
Fellow; Former Governor
Privatized university from government control.
Board's governance includes strategic planning,
financial results, academic quality,
international students and exchange programs,
investments, treasury and banking functions,
budget. growth, policy, labor management, land
use, community relations and commercial
operations for 8,000 students. As a Fellow, was
graduation keynote speaker.
1993-1995 CITY OF LOS ANGELES--LOS ANGELES
Chairman and Commissioner, Industrial Development
Authority
Appointed by Mayor Richard Riordan and confirmed
by the City Council in a unanimous vote. Focused
on job creation through infrastructure and
business development with emphasis on underserved
urban neighborhoods. Authorized to issue
industrial development bonds. Keynote speaker at
convocation of city commissioners.
1988-1989 PRESIDENT-ELECT GEORGE H.W. BUSH--WASHINGTON, D.C.
PRESIDENTIAL TRANSITION TEAM
The Export-Import Bank of the United States
Overseas Private Investment Corporation (OPIC)
Focused on economic growth, strategic trade, trade
finance, and international trade exports
strategy.
1998-1999 CALIFORNIA PUBLIC SERVICE BOARDS--SACRAMENTO
California State Jobs Training Coordinating
Council, implementing the Federal Workforce
Investment Act of 1998 in California to increase
the employment, retention and earnings of
workers. Labor market policies and jobs training
to increase occupational skill attainment.
1994-1995 California State Economic Advisory Council
Key Business Experience
2003 to present
1997-1999 THE LONDON GROUP--LOS ANGELES
1992-1994 Created and manage successful stock and real
estate portfolio.
1981-1984 THE BURTON GROUP PLC--LONDON
Corporate and Strategic Planning Department
founder, Finance Department, for an international
diversified company, including manufacturing,
finance, data analyses, trucking, and property
management of over 1,000 key properties and 600
retail stores. Trebled stock price in three
years. Achieved profitable turnaround. Worldwide
supply chains from over 50 countries, with India,
Turkey and Hong Kong being the largest suppliers.
Complex international exchange rates, economic
analyses and forecasts.
1980 E.F. HUTTON--NEW YORK
Corporate Finance Department Paid intern assigned
to mergers and acquisitions including Gulfstream/
Rockwell.
1977-1979 THE PROCTER & GAMBLE COMPANY--CINCINNATI
Brand Management and Marketing. Coordinated
product development, market research, statistical
analyses, focus groups, economic forecasts,
communications, polling, finance, sales,
production and engineering. Used census and other
data to plan multimillion-dollar marketing
campaigns. Implemented bar coding. Improved
efficiency of factory production lines for
environmental improvements (chlorofluorocarbon
eradication).
1976-1977 BAIN & COMPANY, Strategic Planning--BOSTON
Research and management consulting. Prepared
economic forecasts and statistical analyses to
plan company growth strategies. Integrated
finance, marketing, manufacturing policy and
competitive analyses to identify growth
opportunities for silicon chip manufacturer,
chemical company, high tech companies, mining and
service companies.
The Chairman. Well, thank you very, very much. And the
remote testimony went very nicely.
We now begin questions under the 5-minute rule.
Mr. Szabat, the U.S. Department of Transportation is
expected to release a detailed reauthorization plan in the near
future. Do you have an update on the reauthorization of the
surface transportation programs? We need to act on this, and I
am hoping that the Department's plan will be released soon.
What can you tell us about that?
Mr. Szabat. Thank you, Senator. I believe if not for COVID-
19, I believe the Administration's plan, the entire $1 billion
10-year plan, would have been released in full by now.
Currently, my hope is that we will have the plan out before the
members of this committee have an opportunity to ask me
questions for the record, and I am confident that we will have
the plan out before I have an opportunity to answer those
questions for the record.
The Chairman. OK, all right. So, well, thank you very much.
Let me move on then to the Consumer Product Safety
Commission. Dr. Beck, thank you for being with us.
Let me ask about an investigation last June. The Committee
conducted an investigation into unauthorized disclosure of the
confidential manufacturer information in violation of section
6(b) of the Consumer Product Safety Act. The investigation
found that a lack of formal training, ineffective management,
and poor information technology implementation at the CPSC
contributed to the disclosures. If confirmed, how will you work
to address these issues to improve the functioning of the
Commission and ensure that incidents like the unauthorized
disclosures do not happen again?
Dr. Beck. Senator, thank you for that question.
I am aware of the report and the investigation from this
committee.
First and foremost, it is important that CPSC follow all
the statutory requirements, and one of those includes
protecting important confidential business information. If
confirmed to the CPSC, I will make it a priority to ensure that
that part of the statute is followed to make sure that everyone
at the CPSC, including myself, is appropriately trained on a
regular basis so that releases such as this will not happen
again.
The Chairman. OK. Well, let us see. But they also found
that lack of formal training was a problem and ineffective
management. Could you comment on those findings, since you are
familiar with the report? What about the ineffective management
aspect of it?
Dr. Beck. So not being at the CPSC, it is hard for me to
comment on that aspect. I believe it was related to the
managers and the training and the oversight of the training and
the processes and procedures. So it is really important that
every manager, including the Commissioners, be trained on the
appropriate statutory requirements, be trained on the processes
and procedures throughout the organization. Everyone needs to
be aware of the appropriate practices.
The Chairman. All right. Thank you very much.
Senator Cantwell.
Senator Cantwell. Thank you, Mr. Chairman.
And I thank the witnesses. I have a lot of questions and
not probably enough time to go through all of them. So if you
could be succinct on your answers, I would certainly appreciate
it.
I want to start with you, Dr. Beck. Obviously, the Consumer
Product Safety Commission and its important responsibility is
to protect the public. I mean, literally these rules are about
life and death.
And overwhelmingly bipartisan 2016 Toxic Substances Control
Act reform, TSCA, requires the EPA to study the risk of
chemicals and then step up to protect people against those
risks. One of those chemicals being studied is TCE, a chemical
used for decades as a grease remover and dry cleaning solvent.
It was found at hundreds of Super Fund sites in every single
state and drinking water all across America. It was poisonous.
Documents and other Trump reports show that the Trump
administration EPA rejected industry science designed to
downplay the risk of birth defects and those chemical causes
and the White House overruled EPA's own scientists.
So, Dr. Beck, yes or no. Were you involved or responsible
for the direction of the White House that it gave EPA to edit
the risks of TCE to remove the cardiac birth defects from those
documents?
Dr. Beck. Senator Cantwell, I think you are referring to an
interagency review process, which is standard practice. During
that process, the lead agency has the authority and they have
the pen. They decide which comments are accepted, which
comments are rejected, and whether or not any changes are made
to the assessment. So the draft assessment that was released is
a reflection of the EPA.
Senator Cantwell. So did you advocate for removal of
cardiac birth defect risk from those documents? Did you
advocate for that?
Dr. Beck. So the interagency review process, which I
participated in for many years, 15 years now, is a very
important process that allows for frank and candid and
deliberative discussion within an agency and across an agency.
Senator Cantwell. Yes or no. Did you advocate? Yes or no.
That is all I am asking.
Dr. Beck. Senator, what you are asking for is deliberative
information.
Senator Cantwell. So you are saying at this point you do
not know whether you believe that TCE information about cardiac
birth defects is important?
Dr. Beck. Information about cardiac birth defects with TCE
or with any chemical is very, very important.
Senator Cantwell. And so did you participate, you
personally, in asking for that to be removed?
Dr. Beck. So the interagency process is designed to protect
deliberative information----
Senator Cantwell. OK. We are going to go on to the next
question.
Senator Carper has been a lead obviously in his EPA role.
In 2015, the Obama administration proposed a rule that was
designed to restrict the use of the most dangerous PFAS
chemicals in consumer products. And Senator Carper has
indicated that you personally tried to delay and weaken a
proposed rule. Senator Carper--as part of the White House
review, when you left EPA, you tried repeatedly to weaken the
rule by allowing companies that continued to include PFAS
chemicals in consumer products have a safe harbor from
enforcement if they said they did not know they were supposed
to have ensured that PFAS was removed. So yes or no. Did you
participate in that process?
Dr. Beck. Senator, I can assure you that I did not weaken
or delay any PFAS rules. The PFAS--I think it is the SNUR that
you are referring to, is a draft document that was released by
EPA. EPA has the pen on that document, and EPA decides what is
in and what is not in that draft document.
Senator Cantwell. So do you believe that the company should
have a safe harbor?
Dr. Beck. I am not prepared to answer that question.
Senator Cantwell. OK. Well, here is what my constituents
are prepared for, this report, this report that basically is
from the Agency for Toxic Substances and Disease Registry. And
it is about the assessment in the Spokane community about the
unacceptable levels of PFAS. That is what is beyond acceptable.
I cannot support your nomination when you cannot answer these
questions. When I go to this report and I look on page 4 of the
report and it says PFAS levels in tap water, collected and
tested water samples from participating households, the PFAS
levels for all 19 tap water samples were below all Federal and
applicable State guidelines for PFAS in drinking water. I
cannot tell my constituents that I supported you because you
cannot tell me about this important thing did not have a safe
harbor for these people. So, listen, this issue is well known
in Spokane. It is well known at Fairchild Air Force Base. I
know our colleagues have tried to deal with this issue.
But I have to just bring up the Ligado issue, if I could,
really quickly because it is such an important issue. And we
have three people here that also could say something about it.
Obviously, the Ligado issue--you know, with the FCC's
recent approval, you are putting into competition, in my mind
this GPS system, which threatens the safety and security from
civil aviation and military operations to weather forecasting.
And I just want to know what the witnesses, Mr. Szabat, Walsh,
and Toman, whether you have any comments about that, and Mr.
O'Rielly, if I have a minute left or have a few comments. I
guess I could wait another round.
Mr. Szabat. Thank you, Senator, for the question.
The Ligado issue and its predecessor, the LightSquared
issue, was in fact a very difficult issue to grasp with.
The Department of Transportation--I think we have an easier
way forward than our colleagues do at the FCC. Our mandate is
to look out for the interests of the GPS system, as you have
pointed out. Our testing has indicated that the Ligado system,
if deployed, would interfere with GPS, and therefore we have
been remaining opposed to its deployment.
Senator Cantwell. OK. My time has run out, Mr. Chairman. So
I will put in for the record, if I could, to let the rest of
the witnesses answer that question.
But I am also going to put into the record a question to
Ms. Beck about COVID-19 guidelines for the White House. There
are also questions about your role in basically trying to deny
the release of information that would have been helpful in a
horrific accident in Washington as people conveyed in Skagit
County to sing in a choir, and so many people from that event
got COVID. So I want to understand whether you participated in
anything in suppressing information that would have been
helpful in that.
So thank you, Mr. Chairman.
Senator Blunt [presiding]. Thank you, Senator Cantwell.
Senator Moran.
STATEMENT OF HON. JERRY MORAN,
U.S. SENATOR FROM KANSAS
Senator Moran. Let me turn my attention first to Ms. Beck.
Ms. Beck, I chair the Subcommittee on Consumer Protection with
jurisdiction over the CPSC, and I want to see that that agency
is managed in a way and that there is camaraderie and good will
among the members. And I would love to hear your assurance that
as we have hearings in our Subcommittee that deal with the
Commissioners, that you move the Commission in the direction of
transparency, fair process, bipartisanship in every way
possible. Can you assure me of that?
Dr. Beck. Yes, Senator, I can. There is no place for
bipartisanship when it comes to public health and consumer
protection.
I have already spoken with all the sitting Commissioners,
both Democratic and Republican, and if confirmed, I would look
forward to working with all of them. Each one brings a unique
background and experience to the Commission, and we can only
really truly be effective if we work together toward a common
goal.
Senator Moran. Do you see impediments toward that
happening?
Dr. Beck. I certainly hope not, no.
Senator Moran. Ms. Beck, Chairman Wicker asked you about
this topic, about the release of information that was
inappropriately released. He asked you about management. I just
want to also reiterate the importance of that issue. Senator
Wicker and I wrote inquiring about this topic. I want to make
sure you will use your chairmanship to address those concerns
and make certain that the individuals are educated, trained,
and have the right approach and attitude toward protecting the
privacy as required by law. Is that something you can assure me
of?
Dr. Beck. Yes, Senator. I would be happy to make that a
priority, and if confirmed, I will look into it and I would be
happy to report back to you.
Senator Moran. Thank you very much.
Let me turn to Commissioner O'Rielly. Commissioner, it is
nice to see you again. This morning I was with Chairman Pai in
an Appropriations subcommittee hearing.
You wrote an interesting blog, a post on an issue related
to prohibiting presale or conditional sale radio frequency
devices that caught my attention. And are there other similar
consumer good marketing prohibitions that you are aware of
outside this issue of radio frequency devices that we ought to
be paying attention to?
Mr. O'Rielly. None off the top of my head that come to
mind. I spent a good deal of time working on the presale issue
and the importation issue that I both wrote about. But I am
happy to review to make sure that we have not missed anything.
Senator Moran. Do you think that the FCC has the ability to
change what you find flawed?
Mr. O'Rielly. I do, yes. We do have within our rights to
change our process. We always look to Congress, to your
leadership if you so would choose.
Senator Moran. Let me ask you a question that I asked
Chairman Pai this morning. Keep America Connected Pledge. The
result of that pledge, abiding by that pledge would have caused
a number of companies, providers, to lose income related to
those who are unable and have not paid their bills or unable to
pay late charges. So as we try to make certain that those
companies remain in existence to provide broadband services to
Americans, particularly rural Americans, what is in the works
to see that there is the actual capability of doing so,
sufficient revenue in light of the fact that people are not or
cannot pay bills? I asked the Chairman this morning if the FCC
has any numbers about lost revenue, which I was informed does
not exist. But do you have any understanding of what the
magnitude of this problem is?
Mr. O'Rielly. I do not have any better data. I would have
to defer to the Chairman on his program in terms of its
establishment.
But your point is well taken. I am concerned about the lost
revenue and the potential--it would not just be the late fees
but also the underlying revenue from the service. And it is a
one thing to pledge if it is a month or 2 months, but now we
are talking 6 months or 9 months. And that is going to be
problematic for a lot of small providers.
Now, when I talk to providers and representatives of them,
their interest is to keep people connected and do everything
they need to make sure. Whether it be deferral payments or to
try and work out payment plans, I would certainly appreciate
that. And then Congress itself has a number of programs that
may be applicable, already in the CARES Act depending on the
size of the company. But I certainly would look to the guidance
of the Committee or the Congress in terms of if it decides to
allocate additional resources or funding for this purpose.
Senator Moran. If you have suggestions in that regard,
please let me know.
Mr. Szabat, I have 22 seconds in my allocation. I
appreciate the time you spent with me by phone considering
essential air service and the response under the CARES Act. I
would ask you for airports, the EAS and non-essential air
service airports--they continue to feel the impact of COVID-
19--what else can we be doing to support them?
Mr. Szabat. Senator, thank you for the question and for
your interest and concern for essential air service because
they are, in fact, essential for the rural communities that
they serve.
Right now, the single most important thing you have already
done, which is through the CARES Act, that you have ensured
funding to keep all of those services operating through the end
of this fiscal year, well into next fiscal year. I would ask
only that we are able to continue to have contact with you,
your staff, the other members of this committee as we identify
going into next year what the overall effects of the
coronavirus will be and what alterations and changes we have to
make in policy and funding to keep EAS performing.
Senator Moran. Mr. Szabat, thank you for your answer and
thank you for working with me earlier this year in this regard.
Thank you.
Senator Blunt. Thank you, Senator Moran.
Senator Udall.
STATEMENT OF HON. TOM UDALL,
U.S. SENATOR FROM NEW MEXICO
Senator Udall. Thank you, Mr. Chairman.
Dr. Beck, I think members of this committee should oppose
your nomination. You have taken actions that demonstrate a real
disregard for public health and safety. And we are talking
about a position that is supposed to be one of our nation's
preeminent consumer watchdogs.
Why should members of this committee place their trust in
you when your record has been one of constantly blocking,
weakening, and delaying public health protections proposed by
our nation's top scientists and regulators? I think if they
hear from people like Wendy Hartley, they will have trouble
putting their trust in you. Wendy's son, Kevin, lost his life
using a dangerous chemical in paint strippers--methylene
chloride, while you stalled the effort to remove this chemical
from store shelves. Drew Wynne lost his life as well and many
others that we know of.
As you know, I was the lead author of the chemical safety
reform effort in the Senate. We worked very hard to move
forward with a very protective law. But your implementation of
the law has been anything but protective. Shortly before your
arrival at the EPA, the agency proposed regulating methylene
chloride in paint strippers. EPA had been reviewing this
chemical for many years, and our legislation explicitly
protected that work. But after your arrival, we saw nothing but
blocking, weakening, and delaying, and that resulted in the
loss of Kevin's life, Drew's life and several others.
According to the ``New York Times,'' you questioned the
proposed ban on methylene chloride, suggesting that only a
small number of users are harmed by it. It is 1 percent. You
purportedly asked an EPA colleague, is that report true or
false, and is the 1 percent an acceptable rate of injury when
those injuries include a risk of death?
Dr. Beck. Senator Udall, thank you for your question.
My heart goes out to the Hartley family and the Wynne
family. The acute fatalities were tragic that we saw with
methylene chloride. This is why there is now a ban in place so
that methylene chloride can no longer be manufactured,
processed, distributed to retailers or by retailers to
consumers. It is effectively removed from the big box stores
and from the local hardware stores, and I am confident that we
have effectively blocked any further acute fatalities.
Protection of public health is first and foremost.
Senator Udall. You are not answering my question. I asked
you specifically is the report true and is this 1 percent
figure an acceptable rate of injury? What is the answer to
those two questions?
Dr. Beck. Senator, before answering a specific question
like that, I would like to see the report that you are
referring to. But I do not believe that we can put a number or
a percentage on the value of a life.
Senator Udall. This was an esteemed EPA Deputy
Administrator, longtime career employee, that says that you
made that quote. And I think Wendy Hartley and Brian Wynne
would strongly object if their loved ones are just a minor
statistic. It is unacceptable that it took 2 years and a
lawsuit for you to finalize this regulation, and you still
managed to put out a less protective rule which allows the use
of methylene chloride in paint strippers for commercial use by
workers. This is despite the EPA's own conclusions that workers
are at much greater risk from exposure than consumers. And in
fact, its use by workers also endangers bystanders. EPA had
already considered and rejected the extra training as
insufficient to protect workers and bystanders from the
unreasonable risk, including a quick death posed by methylene
chloride.
Did you know that Kevin Hartley was professionally trained
to use this product and he wore gloves and a ventilator mask
and still this chemical infiltrated his mask and the heavy
fumes killed him? Did you know those facts? It is a yes or no
question.
Dr. Beck. Senator, I was aware of the tragic circumstances
that surrounded his death. I was not aware of the particular
type of respirator that he was wearing.
But the evaluation that was done----
Senator Udall. OK.
Had you and the EPA not delayed banning methylene chloride,
Kevin would be alive today. Drew would be alive today, and
others would still be alive. For a scientist charged with
protecting public health, we should expect better. Your
training gave you the tools to fully assess risk and exposure
to toxic chemicals. Instead, you go against peer-reviewed
science and consistently favor industry without a solid
scientific basis. Your entire career has been less like a
toxicologist conducting rigorous, unbiased science and more
like a defense attorney zealously defending guilty chemical
clients.
Mr. Chairman, in my work to reform the chemical safety law,
I spent years working hard to reform a badly broken law, but
with Nancy Beck at the EPA, we have seen chemical safety reform
fail us time and time again. In the 4 years since it passed,
Nancy Beck and the EPA have blocked, weakened, and delayed
protections from PFAS, from lead, from TCE, and so many other
dangerous chemicals. In these 4 years, the only ones who have
been protected by her leadership have been chemical companies,
not workers exposed to dangerous toxins at work, not the public
who purchases dangerous products at the store.
That is why I am so concerned to see her nomination to
chair the very organization charged with protecting consumers.
The American consumer is entitled to leadership at the Consumer
Product Safety Commission that will protect their health,
safety, and lives. This nominee fails this test, and I urge
this committee to oppose.
Mr. Chairman, I would ask to enter into the record a list
of dangerous and unprotected measures that Nancy Beck has taken
during her tenure at EPA, along with a letter from over 100
national and state organizations that have joined to oppose
this nomination, and a statement from Brian Wynne, Chairman of
the Drew Wynne Foundation. In his statement, it starts, this
nominee delayed a ban on the toxic chemical that killed my
brother.
I yield back, Mr. Chairman.
Senator Blunt. Thank you, Senator Udall. Without objection,
those will be entered into the record.
[The information referred to follows:]
June 10, 2020
Via Electronic Mail
Alexandra Dapolito Dunn, Assistant Administrator
Environmental Protection Agency
Office of Chemical Safety and Pollution Prevention
Washington, DC.
E-mail: [email protected]
Re: Urgent Request to Prevent Federal Register Publication of Final
Rule, ``Implementing Statutory Addition of Certain Per- and
Polyfluoroalkyl Substances; Toxic Chemical Release
Reporting'' (Docket# EPA-HQ-TRI-2020-0142) Due to Legal
Violations
Dear Assistant Administrator Dunn:
The undersigned organizations and coalition of communities impacted
by per- and polyfluoroalkyl substances (``PFAS'') urgently request that
you prevent publication in the Federal Register of the final rule
entitled ``Implementing Statutory Addition of Certain Per- And
Polyfluoroalkyl Substances; Toxic Chemical Release Reporting,'' Docket#
EPA-HQ-TRI-2020-0142 (``TRI reporting rule'').\1\ The TRI reporting
rule suffers from three major flaws: First, the public was not given
notice of a proposed rule and the opportunity to comment on it, in
violation of the Administrative Procedure Act (``APA''). EPA's
invocation of the ``good cause exception'' is unsustainable; notice and
comment is practicable, necessary, and in accord with the public
interest. Second, the TRI reporting rule violates section 7321 of the
National Defense Authorization Act for Fiscal Year 2020, Pub. L. 116-
92, Sec. 7321, 133 Stat. 1198, 2277-81 (``NDAA TRI mandate'') because
it allows exemptions to the reporting mandate not contemplated by
Congress or permitted by the statute's plain terms. Finally, the TRI
reporting rule reflects a dramatic departure from prior EPA policy
without explanation, rendering it arbitrary and capricious. It is
imperative that EPA withdraw the prepublication version of the TRI
reporting rule from EPA's website and from the Office of the Federal
Register, and publish a proposed version of the rule so that the
concerns of the undersigned groups, as well as others with a direct
interest in enforcement of the NDAA TRI mandate, can be considered
before EPA adopts a final rule.
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\1\ The pre-publication version of the TRI reporting rule was
signed by you on May 18, 2020, and is posted on the website of the U.S.
Environmental Protection Agency (``EPA''). See Pre Publication Version
of Final Rule: Implementing Statutory Addition of Certain Per- and
Polyfluoroalkyl Substances to the TRI Chemical List, EPA (May 18,
2020), https://www.epa.gov/toxics-release-inventory-tri-program/pre-
publication-version-final-rule-implementing-statutory (``Pre-pub
lication version'').
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A. The APA requires EPA to publish a proposed rule implementing the
NDAA TRI mandate.
It is critical that the TRI reporting rule not be officially
published as a final rule because the public has not received proper
notice and sufficient time to comment on a proposed version, in
violation of a fundamental tenet of rulemaking required by the APA. See
5 U.S.C. Sec. 553(b) (c). This requirement may be skipped only when the
agency finds good cause that notice and comment are ``impracticable,
unnecessary, or contrary to the public interest.'' Id.
Sec. 553(b)(3)(B). The ``good cause'' exception, however, is to ``be
narrowly construed and only reluctantly countenanced.'' Petry v. Block,
737 F.2d 1193, 1200 (D.C. Cir. 1984) (quotations and citation omitted).
Indeed, the exception is applied only in emergency situations or where
there is an imminent threat of serious harm. Jifry v. Fed. Aviation
Admin., 370 F.3d 1174, 1179 (D.C. Cir. 2004) (``The exception excuses
notice and comment in emergency situations . . . or where delay could
result in serious harm.'') (citation omitted).
There is no emergency or serious threat that requires EPA to deny
the public its right to comment on the Agency's proposed approach for
incorporating the NDAA TRI mandate into its regulations. Companies are
already conducting the data collection that the rule purports to
require because they are already required to do so by the NDAA. Given
the self-executing nature of the NDAA TRI mandate, EPA cannot claim any
emergency justification for forgoing notice-and-comment rulemaking
here.
Moreover, EPA is simply wrong to contend that notice and comment is
``unnecessary'' because the TRI reporting rule was adopted ``to comply
with an Act of Congress.'' \2\ Prepublication version at 6. Although
Congress did not specify where in the Code of Federal Regulations EPA
would codify the addition of PFAS to the TRI, by mandating a 100-pound
reporting threshold, Pub. L. 116-92, Sec. 7321(b)(2), Congress
contemplated that PFAS would be listed without being subject to a de
minimis concentration exemption, as is the case for all other TRI
chemicals with a 100-pound reporting threshold. See 40 C.F.R.
Sec. Sec. 372.28 (lower threshold chemical listing), 372.38(a) (carving
out chemicals listed inSec. 372.28 from de minimis concentration
exemption). In defiance of clear congressional intent (which is
discussed below in section B, and calls for further elaboration in a
public comment period), EPA codified the addition of 172 PFAS to the
TRI in a manner that incorporates the de minimis concentration
exemption. See Pre-Publication Version of Final Rule: Implementing
Statutory Addition of Certain Per- and Polyfluoroalkyl Substances to
the TRI Chemical List at 11-12 ((failing to incorporate newly listed
PFAS chemicals into Sec. 372.28 de minimis exemption carve-out). As
this approach has significant consequences for how much information the
public will receive, and was not specified by Congress, notice and
comment is ``[]necessary'' and in ``the public interest.'' 5 U.S.C.
Sec. 553(b)(3)(B).\3\
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\2\ EPA does not contest that notice and comment is practicable and
it says nothing about public interest.
\3\ For this same reason, EPA lacks ``good cause'' for ordering an
immediate effective date for purposes of the Congressional Review Act.
Prepublication version at 10.
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EPA's assertion that it ``does not expect the public to object'' to
the TRI reporting rule, Prepublication version at 6, is not
credible.\4\ The Agency is well aware that the Attorneys General of
eighteen states recently filed comments asking EPA to add the newly
listed PFAS to 40 C.F.R. Sec. 372.28--the path EPA went out of its way
not to take.\5\ The Agency should expect these states to have strong
objection to its decision to reject their request. In addition, EPA
should have expected that communities in the ;icinity of facilities
that manufacture or process PFAS--such as the members of the National
PFAS Contamination Coalition,\6\ which is a signatory to this letter--
among others concerned about PFAS contamination, will have strong
objection to application of the de minimis concentration exemption to
PFAS since it will significantly limit the information they receive. As
just one example, if this exemption applies, a facility could specify
that it will not purchase any mixture containing any single PFAS at a
concentration greater than 1 percent, so that it would not have to
submit a TRI report for these chemicals. Yet, a facility's use of a
mere 25 drums (or 1,400 gallons) of a mixture that includes a 0.9
percent concentration of a PFAS could result in the facility releasing
more than 100 pounds of the PFAS to the environment in a year.
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\4\ EPA's expectation is also irrelevant, as the APA requires
notice and comment regardless of whether an agency ``expect[s]'' its
action will be uncontroversial.
\5\ Comments of the Attorneys General of the States of New York,
California, Connecticut, Delaware, Illinois, Iowa, Maine, Maryland,
Massachusetts, Michigan, New Jersey, New Mexico, Oregon, Pennsylvania,
Rhode Island, Virginia, Washington, and Wisconsin on the Advance Notice
of Proposed Rulemaking, Addition of Certain Per- and Polyfluoroalkyl
Substances; Community Right-to-Know Toxic Chemical Release Reporting,
84 Fed. Reg. 66,369 (Dec. 4, 2019) (Feb. 3, 2020), https://
www.regulations.gov/document?D=EPA-HO-TRI-2019-0375-0086 (``State ANPRM
comments''), at 6.
\6\ The National PFAS Contamination Coalition is an organization of
30 grassroots community groups in 21 states around the country whose
members have been exposed to PFAS and who, collectively, are seeking
stronger health protections for their families and communities.
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Under these circumstances, the APA requires EPA to adhere to the
standard rulemaking process, including the publication of a proposed
rule for notice and comment.\7\
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\7\ This is also the approach used when an agency issues an
``interim'' or ``direct'' final rule that receives substantive adverse
public comments. See Office of the Fed. Reg., A Guide to the Rulemaking
Process 9 (Jan. 2011), https://www.federalregister.gov/uploads/2011/01/
the_rulema
king_process.pdf.
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B. The TRI reporting rule should not be published as a ``final rule''
in its current form because it violates the NDAA TRI mandate
and EPA has not explained its departure from a longstanding
practice.
EPA should also withdraw the final TRI reporting rule because in
its current form it runs afoul of the NDAA TRI mandate and contravenes
EPA's established practice. The proper time to provide a detailed
accounting of the legal flaws is after EPA has published a proposed
rule and given the public at least 30 days to comment. 5 U.S.C.
Sec. 553(d). While we are not attempting to identify all of the legal
flaws in the TRI reporting rule at this time, without the benefit of
the required 30-day comment period, we note that when Congress
specified a 100-pound reporting threshold for releases of the PFAS
subject to the TRI reporting rule, Pub. L. 116-92, Sec. 7321(b)(2), it
was well aware that all other TRI chemicals with a 100-pound reporting
threshold are codified at 40 C.F.R. Sec. 372.28. It was also well aware
that the de minimis concentration reporting exemption in 40 C.F.R.
Sec. 372.38(a) does not apply to chemicals listed in in 40 C.F.R.
Sec. 372.28. Goodyear Atomic Corp. v. Miller, 486 U.S. 174, 184-85
(1988) (``We generally presume that Congress is knowledgeable about
existing law pertinent to the legislation it enacts.''). Under these
circumstances, there is no ambiguity that Congress intended releases of
PFAS to be reported without an exemption for de minimis concentrations,
as is the case for all other TRI chemicals with a lower reporting
threshold. Had Congress intended EPA to treat PFAS differently than any
other lower threshold chemical, it would have said so. EPA cannot adopt
an exemption that Congress did not authorize. Sierra Club v. EPA, 755
F.3d 968,980 (D.C. Cir. 2014) (holding that EPA cannot adopt an
unauthorized regulatory ``carve out'').
Not only does the TRI reporting rule violate the NDAA TRI mandate,
it also violates the APA because it reverses longstanding EPA policy
without a reasoned explanation. The APA prohibits an agency from acting
in a manner that is ``arbitrary, capricious, an abuse of discretion, or
otherwise not in accordance with law.'' 5 U.S.C. Sec. 706(2)(A). Though
an agency may lawfully reverse its position on a particular policy
choice, it must ``display awareness that it is changing position,'' Fed
Commc 'ns Comm'n v. Fox Television Stations, Inc., 556 U.S. 502, 515
(2009), and it must provide a ``reasoned explanation . . . for
disregarding facts and circumstances that underlay or were engendered
by the prior policy.'' Id at 516. EPA has a longstanding policy that
the TRI de minimis concentration exemption does not apply to
persistent, bioaccumulative, and toxic chemicals (PBTs). See Persistent
Bioaccumulative Toxic (PBT) Chemicals; Lowering of Reporting Thresholds
for Certain PBT Chemicals; Addition of Certain PBT Chemicals; Community
Right-to-Know Toxic Chemical Reporting, 64 Fed. Reg. 58,666, 58,670
(Oct. 29, 1999). As discussed in the State ANPRM comments, and
recognized by scientists and governments around the world,\8\ some PFAS
are PBTs, a fact EPA itself acknowledges.\9\ Accordingly, for EPA to
codify the addition of 172 PFAS to the TRI so that the de minimis
concentration reporting exemption applies, without providing a
``reasoned explanation'' for this dramatic change, is arbitrary,
capricious, and unlawful.
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\8\ See, e.g., Stockholm Convention on Persistent Organic
Pollutants, The 16 New POPs (June 2017), http://chm.pops.int/
TheConvention/ThePOPs/TheNewPOPs/tabid/2511/Default.aspx; The Madrid
Statement on Poly- and Perfluoroalkyl Substances (PFASs), 123 Envtl.
Health Persp. A107 (2015), https://ehp.niehs.nih.gov/doi/pdf/10.l289/
ehp.1509934; Heisinger Statement on Poly- and Perfluorinated Alkyl
Substances (PFASs), 114 Chemosphere 337 (2014), https://
www.sciencedirect.com/science/article/pii/S004565351400678X?via%3Dihub;
Eur. Chems. Agency, Candidate List of Substances of Very High Concern
for Authorisation, https://www.echa.europa.eu/candidate-list-table
(last visited June 9, 2020).
\9\ See, e.g., EPA, PFAS Research and Development, Presentation at
Community Engagement in Fayetteville, North Carolina (Aug. 14, 2018),
https://www.epa.gov/sites/production/files/2018-08/documents/
r4_combined_presentations.pdf.
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For the foregoing reasons, we strongly urge you to withdraw the TRI
reporting rule from the Office of the Federal Register, and to publish
a proposed version of the rule for notice and comment. We also urge EPA
to advise the regulated community that its obligations under the NDAA
TRI mandate went into effect on January 1, 2020 and that any delay in
codification of EPA's rule does not impact the duty to comply, and to
publicly affirm that it has done this. If you have any questions,
please contact Eve Gartner, [email protected] or (212) 845-
7381.
Eve C. Gartner
Managing Attorney, Toxic Exposure & Health Program
Earthjustice
Stel Bailey, Brevard County, FL
Emily Donovan, Brunswick County, NC
National PFAS Contamination Coalition
Lynn Thorp
National Campaigns Director
Clean Water Action
Tom Neltner
Chemicals Policy Director
Environmental Defense Fund
Melanie Benesh
Legislative Attorney
Environmental Working Group
Daniel Rosenberg
Senior Attorney & Director of Federal Toxics Policy
Natural Resources Defense Council
cc: Yvette T. Collazo, Director, Office of Pollution Prevention and
Toxics
[[email protected]]
Lawrence A. Reisman, Director, Toxics Release Inventory Program
Division
[[email protected]]
Matthew Z. Leopold, General Counsel
[[email protected]]
Daniel R. Bushman, Toxics Release Inventory Program Division
[[email protected]]
______
EARTHJUSTICE
NEW YORK, NY
MEMORANDUM
EPA's PFAS-related responsibilities under the National Defense
Authorization Act for FY-2020
______
On December 20, 2019, the National Defense Authorization Act for
Fiscal Year 2020 (``NDAA 2020'' or the ``Act'') was enacted. NDAA 2020
requires the Environmental Protection Agency (``EPA'') to add certain
per- and poly-fluoro alkyl substances (``PFAS'') to the Toxic Release
Inventory (``TRI''), which was established under the Emergency Planning
and Community Right-to-Know Act to ensure communities know when toxic
chemicals are released near them. 42 U.S.C. section 11023.
NOAA 2020 creates three distinct processes for introducing PFAS to
the TRI: 1) immediate inclusion, 2) inclusion following EPA action, and
3) inclusion following determination.\1\ These are described below.
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\1\ Sec. 732l(b)-(d).
(1) Immediate Inclusion on the TRI. The NDAA mandated that certain
PFAS be added to the TRI as of January 1, 2020. Based on this
mandate, EPA added 172 PFAS to the TRI. https://www.epa.gov/
toxics-release-inventory-tri-program/list-pfas-added-tri-ndaa
EPA is in the process of codifying these additions to the TRI.
However, its approach is deeply flawed because it allows
exemptions to the reporting mandate not contemplated by
Congress or permitted by the plain terms of the NDAA 2020. I
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have shared a letter to EPA outlining the concerns.
(2) Inclusion on the TRI Following Certain EPA Action. Certain
categories of PFAS will be added to the TRI on January 1 of the
year after EPA takes certain actions. Notably, when a
significant new use rule (``SNUR'') is issued for a PFAS, it is
automatically added to the TRI. The NOAA 2020 requires EPA to
adopt a SNUR for certain PFAS in consumer products this month
(June 2020), so many more PFAS will be added to the TRI
shortly.
The EPA actions that trigger adding PFAS to the TRI are:
EPA finalizes a toxicity value for a PFAS (or classes
of PFAS);
EPA adopts a SNUR for a PFAS (or classes of PFAS);
EPA adds a PFAS to a list of covered substances subject
to an existing SNUR; and
EPA approves a new PFAS for manufacture or processing,
and it is added to the TSCA Inventory and designated as an
active chemical under either subsections 5(A) or (5)(B) of
TSCA Section 8(b).
______
June 10, 2020
Hon. Roger Wicker,
Chairman,
Committee on Commerce, Science, and Transportation,
United States Senate,
Washington, DC.
Hon. Maria Cantwell,
Ranking Member,
Committee on Commerce, Science, and Transportation,
United States Senate,
Washington, DC.
Dear Chairman Wicker and Ranking Member Cantwell:
We write this letter--supported by over 90 scientists--to express
our opposition to the White House nomination of Nancy Beck to Chair the
U.S: Consumer Product Safety Commission (CPSC).\1\
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\1\ White House Press Release. President Donald J. Trump Announces
Intent to Nominate and Appoint Individuals to Key Administration Posts.
Issued on: March 2, 2020. Available at https://www.whitehouse.gov/
presidential-actions/president-donald-j-trump-announces-intent-
nominate-appoint-individuals-key-administration-posts-32/
A New Face at the CPSC? White House to Nominate Dr. Nancy Beck as
Chair. The National law Review, March 3, 2020 https://
www.natlawreview.com/article/new-face-cpsc-white-house-to-nominate-dr-
nancy-beck-chair
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Nancy Beck is currently detailed to the White House, where she is
empowered to oversee the chemical evaluations that she was in charge of
developing while serving as the political head of the EPA's Office of
Chemical Safety and Pollution Prevention (OCSPP).\2\ In that role she
led the implementation of the revised Toxics Substances Control Act
(TSCA), updated in 2016 by Congress to ensure that chemical substances
and mixtures are evaluated and regulated so as not to present an
unreasonable risk to human health or the environment, including
infants, children, pregnant women, workers, and the elderly.\3\
---------------------------------------------------------------------------
\2\ https://www.epa.gov/aboutepa/about-office-chemical-safety-and-
pollution-prevention-ocspp
\3\ The official text of TSCA as amended by the Frank R. Lautenberg
Chemical Safety Act of the 21st Century is available in the United
States Code, from the U.S. Government Printing Office. 15 USC Ch. 53:
TOXIC SUBSTANCES CONTROL. https://uscode.house.gov/view.xhtml?
path=/prelim@title15/chapter53&edition=prelim
---------------------------------------------------------------------------
Under Beck's leadership, her office issued a TSCA Systematic Review
document that was strongly criticized by scientists:
``The EPA officially calls the method a ``systematic review''
framework for TSCA, but it is systematic in name only, as it
falls far short of best practices for systematic reviews.
Application of the TSCA method will exclude relevant research
from chemical assessments, leading to underestimation of health
risks and resulting in inadequate policies that allow unsafe
chemical exposures, thus harming public health. The TSCA
systematic review method could be especially detrimental for
populations more vulnerable to chemical exposures, such as
pregnant women and children.'' \4\
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\4\ Singla VI, Sutton PM, Woodruff TJ. The Environmental Protection
Agency Toxic Substances Control Act Systematic Review Method May
Curtail Science Used to Inform Policies, With Profound Implications for
Public Health. Am J Public Health. 2019 Jul;109(7):982-984. doi:
10.2105/AJPH.2019.305068.
Among its many flaws, Beck's notion of a ``systematic review''
incorporates one of her most harmful policy positions--to discount
epidemiologic evidence if all the rai,,y data (including information on
individual study participants) are not made public. Beck argued for
this in public comments to EPA, while she was still working for the
American Chemistry Council, the chemical industry trade association,
immediately prior to her move to EPA.\5\
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\5\ Public comments submitted by Nancy Beck on behalf of the
American Chemistry Council. Teleconference of the Science Advisory
Board Chemical Assessment Advisory Committee Augmented for the Review
of EPA's Draft Ammonia Assessment 12/17/2014. Available at https://
yosemite.epa.gov/sab/sabproduct.nsf/MeetingCal/
SAC4AB630077A1B385257D860078EA72?
OpenDocument. Direct link at https://yosemite.epa.gov/sab/
sabproduct.nsf/0B80EDF9EA0C407
D85257DAF00797454/$File/
ACC+Comments+on+Ammonia+CAACdraft+report+12152014.pdf
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Beck's dangerous and unscientific policy--to discount relevant
evidence from human populations--is also at the center of EPA's
discredited so-called `Science Transparency Rule' that was strongly
criticized by experts including academic scientists, EPA's own Science
Advisory Board, and the Bipartisan Policy Center, among others.\6\ In
fact, ``[E]ditors-in-chief of five major scientific journals in May
2018, reflected alarm that the proposal's push for `transparency' would
be used as a mechanism for suppressing the use of relevant scientific
evidence in policy-making, including public-health regulations.'' \7\
Even The Economist opposed the rule, in an editorial titled `Swamp
Science' emphasizing that it would stifle science, and hamstring health
protective regulations.\8\ In summary, Beck's views are long-standing
and inconsistent with scientific best practices.\9\
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\6\ More than forty medical and environmental health professionals
with expertise and interest in protecting children and their families
from exposures to neurotoxic chemicals write to oppose Pruitt's flawed
``censored science'' proposed rule. July 16, 2018. Available at https:/
/www.nrdc
.org/resources/letter-opposing-pruitts-proposed-rule-restrict-epas-use-
science
Science Advisory Board (SAB) Consideration of EPA Proposed Rule:
Strengthening Transparency in Regulatory Science. EPA-SAB-18-003. June
28, 2018. Available at https://yosemite.epa.gov/sab/sabproduct.nsf/
LookupWebProjectsCurrentBOARD/4ECB44CA28936083852582
BB004ADES4/$File/EPA-SAB-18-003+Unsigned.pdf
Bipartisan Policy Center (BPC) comments. EPA-HQ-OA-2018-0259-0670.
May, 2018. Available here: https://www.regulations.gov/document?D=EPA-
HQ-OA-2018-0259-0670
\7\ Joint statement on EPA proposed rule and public availability of
data (2019) H. Holden Thorp, Magdalena Skipper, Veronique Kiermer, May
Berenbaum, Deborah Sweet, Richard Horton. PLoS Med. 2019 Nov; 16(11):
e1003014. Published online 2019 Nov 26. doi: 10.1371/
journal.pmed.1003014
Joint statement on EPA proposed rule and public availability of
data (2019). H. Holden Thorp, Magdalena Skipper, Veronique Kiermer, May
Berenbaum, Deborah Sweet, Richard Horton. Proc Natl Acad Sci U.S. A.
2019 Dec 17; 116(51): 25368. Published online 2019 Nov 26. doi:
10.1073/pnas.1920635117
J. Berg et al., Nature http://doi.org/crq8; 2018
\8\ The Economist. Swamp science: Scott Pruitt embarks on a
campaign to stifle science at the EPA. New policies would hamstring
clean-air and pesticide standards. April 26, 2018. Available at:
https://www.economist.com/united-states/2018/04/26/scott-pruitt-
embarks-on-a-campaign-to-stifle-science-at-the-epa
\9\ For more information and citations on Nancy Beck, see: Six Ways
Nancy Beck Showed Us She Doesn't Care About Us or Science. Genna Reed,
Lead Science and Policy Analyst. May 13, 2020. https://blog.ucsusa.org/
genna-reed/six-ways-nancy-beck-doesnt-care-about-science
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Beck's approaches consistently disregarded scientific best
practices, favor chemical manufacturers, and put vulnerable populations
in harm's way. As one of her first acts at EPA, Beck refused to
finalize the 2017 proposed ban on methylene chloride (MC) in paint
strippers for consumer uses and most commercial uses. Four people died
of MC asphyxiation between the time the ban was proposed and when EPA
finally took partial, inadequate action. When Beck's office did
ultimately finalize the ban, after a two-year delay, it excluded
commercial products, thus stripping worker protections.\10\
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\10\ The deadly omission in EPA's Methylene Chloride rule. Program
on Reproductive Health and the Environment Program on Reproductive
Health and the Environment, University of California, San Francisco.
June 4, 2019. Swati Rayasam. Available at https://prheucsf.blog/2019/
06/04/the-deadly-omission-in-epas-methylene-chloride-rule/
---------------------------------------------------------------------------
Nancy Beck's disregard for worker protections runs through all the
TSCA chemical evaluations that she oversaw. All her TSCA chemical risk
evaluations--including TCE, methylene chloride, 1,4 dioxane, carbon
tetrachloride and 1-bromopropane--presume that personal protective
equipment (PPE) is available, in good working condition, provided to
all workers that need it, fitted properly, used consistently, and
adequately protective in all situations of workplace and do-it-yourself
exposure to chemicals. However, EPA's Scientific Advisory Committee on
Chemicals (SACC) has repeatedly underscored that an expectation of
universal and effective PPE use is in fact contrary to the scientific
evidence of real-world workplace practice and contrary to established
principles of worker protection:\11\ ``[M]any members of the Committee
believed EPA should place more emphasis on the limited likelihood that
respiratory protection will be adopted without specific occupational
exposure guidelines . . . EPA's characterization of reasonable risk
relying on use of PPE is not sufficiently supported by the practical
realities of many workplaces,'' \12\ Yet, EPA has maintained that it
will continue this unscientific and unprotective approach in its
upcoming chemical assessments, including for formaldehyde: ``EPA also
plans to consider the effect(s) that engineering controls (EC) and/or
personal protective equipment (PPE) have on occupational exposure
levels as part of the draft risk evaluation.'' \13\
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\11\ Information for all the EPA Science Advisory Committee on
Chemicals (SACC) meetings, including final reports, can be found on
EPA's webpage at https://www.epa.gov/tsca-peer-review/science-advisory-
committee-chemicals-meetings
\12\ Toxic Substances Control Act (TSCA) Science Advisory Committee
on Chemicals (SACC) meeting, July 2019. Peer Review of the Draft Risk
Evaluations for HBCD and 1,4-Dioxane. Final Report, October 2019. EPA-
HQ-OPPT-2019-0237-0064. Available at https://www.epa.gov/tsca-peer-
review/peer-review-draft-risk-evaluations-hbcd-and-14-dioxane
\13\ Draft Scope of the Risk Evaluation for Formaldehyde, EPA
Document# EPA-740-D-20-014, April 2020 (Section 2.3.5, p. 33) Available
here: https://www.epa.gov/assessing-and-managing-chemicals-under-tsca/
risk-evaluation-formaldehyde
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EPA's fictitious assumption of 100 percent PPE availability use is
only one of numerous policy decisions made by Nancy Beck that are
contrary to scientific practice and undermine protection for children,
consumers, first responders and other workers. A Federal court
overturned the decision by Beck's office to unlawfully exclude common
sources of exposure to lead and asbestos--two of the most notoriously
dangerous chemicals known to science--from TSCA risk evaluations.\14\
Beck's approach would have ignored exposures to leaded paint, lead
water pipes, asbestos insulation, and other toxic consumer products.
Beck's unwillingness to include a half-century of scientific evidence
on the health harms of even low levels of lead and asbestos in her
office's risk evaluations is deeply disturbing.
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\14\ Court rules Trump EPA unlawfully ignored dangerous chemicals.
A Federal appeals court says the Trump administration unlawfully
excluded millions of tons of some of the most dangerous materials in
public use from a safety review. By Matthew Brown, Associated Press.
November 14, 2019. Available at https://abcnews.go.com/Technology/
wireStory/court-rules-trump-epa-unlawfully-dangerous-chemicals-67025256
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The risk evaluations prepared under Beck's leadership have also
failed to consider the potential impacts of exposure to chemicals from
drinking water, air pollution, and contaminated soil--justifying this
exclusion by claiming that other environmental statutes address these
exposure pathways. Here again, EPA has refused to alter its
unscientific approach, despite repeated criticism from the Agency's own
Scientific Advisory Committee on Chemicals: ``Exposure scenarios that
include consumers are important given the known presence of 1,4-Dioxane
in plastics, other commercially available products, surface water,
drinking water, groundwater, and in sediments. The Committee also had
concerns that the omission of these multiple routes of exposure puts
workers who inhale or ingest 1,4-Dioxane outside the workplace at even
greater risk.'' \15\ The Science Advisory Committee further noted that
this exclusionary approach, ``strayed from basic risk assessment
principles by omitting well known exposure routes such as water
consumption by all occupationally and non-occupationally-exposed humans
as well as similar exposures to other biological receptors.'' \16\ The
Scientific Advisory Committee on Chemicals similarly pushed back on
Beck's EPA in its review of 1-Bromopropane for failing to include air
emissions and other environmental releases.\17\
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\15\ Toxic Substances Control Act (TSCA) Science Advisory Committee
on Chemicals (SACC) meeting, July 2019. P er Review of the Draft Risk
Evaluations for HBCD and 1,4-Dioxane. Final Report, October 2019. P.
18. EPA-HQ-OPPT-2019-0237-0064. Available at https://www.epa.gov/tsca-
peer-review/peer-review-draft-risk-evaluations-hbcd-and-14-dioxane
\16\ Toxic Substances Control Act (TSCA) Science Advisory Committee
on Chemicals (SACC) meeting, July 2019. Peer Review ofthe Draft Risk
Evaluations for HBCD and 1,4-Dioxane. Final Report, October 2019. P.
18. EPA-HQ-OPPT-2019-0237-0064. Available at https://www.epa.gov/tsca-
peer-review/peer-review-draft-risk-evaluations-hbcd-and-14-dioxane
\17\ Toxic Substances Control Act (TSCA) Science Advisory Committee
on Chemicals (SACC) meeting, Sept 2019. Peer Review of the Draft Risk
Evaluations for 1-Bromopropane. Final Report, December 2019. P. 17.
EPA-HQ-OPPT-2019-0235-0061. Available at https://www.epa.gov/tsca-peer-
review/peer-review-draft-risk-evaluation-1-bromopropane
---------------------------------------------------------------------------
EPA's pesticide office also fell under Beck's leadership, where she
withheld needed protection for children, agricultural workers and rural
communities by blocking the proposed cancellation of the neurotoxic
organophosphate pesticide chlorpyrifos.\18\ Prenatal exposure to
chlorpyrifos is linked to neurodevelopmental disorders including
impaired cognition, behavioral problems, and delayed social development
in children.\19\
---------------------------------------------------------------------------
\18\ U.S. EPA. EPA Revised Human Health Risk Assessment on
Chlorpyrifos. December 2014. Docket ID EPA-HQ-OPP-2008-0850. Available
from: http://www.epa.gov/ingredients-used-pesticide-products/revised-
human-health-risk-assessment-chlorpyrifos
U.S. EPA. Chlorpyrifos: Revised Human Health Risk Assessment for
Registration Review. U.S. Environmental Protection Agency Washington,
DC; 2016. Document ID: EPA-HQ-2015-0653-0454. Available from: https://
www.regulations.gov/document?D=EPA-HQ-OPP-2015-0653-0454.
\19\ Hertz-Picciotto I, Sass JB, Engel S, Bennett DH, Bradman A,
Eskenazi B, et al., (2018) Organophosphate exposures during pregnancy
and child neurodevelopment: Recommendations for essential policy
reforms. PLoS Med 15(10): e1002671. https://doi.org/10.1371/journal
.pmed.1002671
---------------------------------------------------------------------------
Under Beck's leadership, EPA delayed children's protections for
lead by failing to update the hazard standard for lead paint--contrary
to decades of scientific evidence showing harm, and in violation of a
Federal court order.\20\
---------------------------------------------------------------------------
\20\ Groups sue over botched lead hazard rule: no level of lead
exposure is safe for children. Earthjustice press release, August 1,
2019. https://earthjustice.org/news/press/2019/groups-sue-over-
botchedslead-hazard-rule
---------------------------------------------------------------------------
And, under Beck's leadership, EPA failed to take meaningful action
to address the crisis of PFAS chemicals that contaminate our drinking
water, food, and consumer products. Beck had the authority to take
numerous steps to gather additional information, inform the public and
impose restrictions on the use of PFAS--but she did none of those
things. Congress has been forced to step in and require action by EPA,
yet even the records released illustrate Beck's attempts to weaken
those actions mandated by Congress.
If she was confirmed as Chair of the Consumer Product Safety
Commission, Nancy Beck would be in a position to rollback important
consumer protections including the CPSC's planned rulemaking to limit
toxic flame retardant chemicals in furniture including children's
products;\21\ and, the CPSC's recently adopted bans on certain
phthalate chemicals in toys and other children's products.\22\ These
classes of chemicals are linked to reproductive impairment,
neurological impacts, and disruption of critical hormones. The CPSC's
actions are supported by a decade of scientific evidenc:e, expert peer
review and multiple opportunities for stakeholder and public comment.
---------------------------------------------------------------------------
\21\ Guidance Document on Hazardous Additive, Non-Polymeric
Organohalogen Flame Retardants in Certain Consumer Products. September
2017. 82 FR 45268. Available at https://www.federalregister.gov/
documents/2017/09/28/2017-20733/guidance-document-on-hazardous-
additive-non-polymeric-organohalogen-flame-retardants-in-certain
\22\ Final Rule. Children's Products, Children's Toys, and Child
Care Articles: Determinations Regarding Lead, ASTM F963 Elements, and
Phthalates for Engineered Wood Products. June 2018. 83 FR 28983.
https://www.federalregister.gov/documents/2018/06/22/2018-13392/chi1d
rens-products-childrens-toys-and-child-care-articles-determinations-
regarding-lead-astm-f963
---------------------------------------------------------------------------
The Consumer Product Safety Commission must provide important
public protections from dangers associated with consumer products
including toys, children's products, home furnishings, cleaning
supplies, and some building materials. There is no place for Nancy Beck
in such an Agency.
Respectfully,
Jennifer Sass, PhD,
Senior Scientist, Natural Resources Defense Council, Professorial
Lecturer,
George Washington University.
______
Academic and government affiliation provided for identification
purposes only; does not imply institutional support.
Laura Anderko PhD RN
Robert and Kathleen Scanlon Endowed Chair in Values Based Health Care &
Professor
School of Nursing & Health Studies
Georgetown University
Washington, DC
John R. Balmes, MD
Professor of Medicine, University of California, San Francisco
Professor of Environmental Health Sciences, School of Public Health
University of California, Berkeley
David C. Bellinger, PhD MSc
Professor of Neurology
Harvard Medical School
Boston Children's Hospital
David Bezanson, PhD
Clinical Psychologist, retired
University of California San Francisco
Linda S. Birnbaum, PhD, DABT, ATS
Scientist Emeritus and Former Director
National Institute of Environmental Health Sciences and National
Toxicology Program
Research Triangle Park, NC
Asa Bradman, PhD, MS
Center for Environmental Research and Children's Health (CERCH)
Associate Adj. Professor of Environmental Health Sciences
University of California, Berkeley
Joseph M. Braun, RN, MSPH, PhD
Associate Professor of Epidemiology
Director, Center for Environmental Health and Technology
Brown University School of Public Health
Providence, RI
Phil Brown, PhD
University Distinguished Professor of Sociology and Health Sciences
Director, Social Science Environmental Health Research Institute
Northeastern Universjty
Boston, MA
Jessie Buckley, PhD, MPH
Assistant Professor, Environmental Health and Engineering
Bloomberg School of Public Health, Johns Hopkins University, Maryland
Thomas A. Burke, PhD, MPH
Former Deputy Assistant Administrator of Environmental Protection
Agency's (EPA) Office of Research and Development (ORD), and EPA
Science Advisor.
Jacob I and Irene B. Fabrikant Professor and Chair in Health Risk and
Society Director, Risk Sciences and Public Policy Institute, Johns
Hopkins University
Bloomberg School of Public Health
Baltimore, MD
Carla Campbell, MD, MS, FAAP
Retired pediatrican and public health physician
Las Cruces, NM
Nicholas Chartres, PhD
Associate Research Scientist, Science & Policy
Program on Reproductive Health and the Environment (PRHE)
University of California, San Francisco
Aimin Chen, MD, PhD
Professor of Epidemiology
Department of Biostatistics, Epidemiology and Informatics
Perelman School of Medicine
University of Pennsylvania
Margart Chen, MD
Clinical Professor, emeritus
Department of Obstetrics, Gynecology and Reproductive Sciences
University of California, San Francisco
Marie V Coignet, PhD
Oakland, CA
Jeanne A. Conry, MD, PhD
President elect,
The International Federation of Gynecology and Obstetrics
Robin Cooper, MD
Assistant Clinical Professor, Dept of Psychiatry, Langley Porter
Psychiatric Institute, School of Medicine
University of California, San Francisco
Brett Doherty, PhD, MSPH
Epidemiology Department, Dartmouth College
Stephanie M. Engel, PhD
Professor and Associate Chair of Epidemiology
Gillings School of Global Public Health
University of North Carolina at Chapel Hill
Barbara C. Erny, MD
Medical Liaison for International Programs
ASCRS Foundation
Brenda Eskenazi, PhD
Professor, School of Public Health
Division of Epidemiology
University of California, Berkeley
Penelope A. Fenner-Crisp, PhD
Former Deputy Director and Senior Science Advisor
Office of Pesticide Programs
Retired, U.S. Environmental Protection Agency
Charlottesville, VA
Adam M Finkel, ScD, MPP, CIH
Clinical Professor of Environmental Health Sciences
University of Michigan School of Public Health
Katherine A Foster, MD, FAAP
Pediatric Hospitalist, Retired
Kaiser-Permanent Santa Rosa
Associate Clinical Professor, Retired
Dept of Community Medicine
University of California, San Francisco
Member, Physicians for Social Responsibility SFBA Environmental Health
Committee
Mary Fox, PhD, MPH
Assistant Professor, Health Policy and Management
Johns Hopkins Bloomberg School of Public Health
Baltimore, MD
Victoria Frye, MPH, DrPH
Associate Medical Professor
City University of New York School of Medicine
New York, NY
Tova Fuller MD PhD
Assistant Clinical Professor, Department of Psychiatry
Langley Porter Psychiatric Institute
University of California San Francisco
Vice President, Nuclear Abolition Committee Chair
SF Bay Area Physicians for Social Responsibility
Mary Gant, MS
Policy Analyst
Retired, National Institute of Environmental Health Sciences
Bethesda, MD
Steven G. Gilbert, PhD, DABT
INND (Institute of Neurotoxicology & Neurological Disorders)
Seattle, WA
Gretchen T. Goldman, PhD
Research Director, The Center for Science and Democracy (she/her)
Union of Concerned Scientists
Robert M. Gould, MD
Associate Adjunct Professor
Program on Reproductive Health and the Environment
Department of Obstetrics, Gynecology and Reproductive Sciences
UCSF School of Medicine
and Past-President, Physicians for Social Responsibility
Tracy Gregoire
Learning Disabilities Association of America
Healthy Children Project Director
Tina Grosowsky, MA
Mass Elder Climate Action
Hudson, MA
Tina Grosowsky, MA
Mass Elder Climate Action
Hudson, MA
Dale Hattis, PhD
Clark University
Russ Hauser MD, ScD, MPH
Chair, Department of Environmental Health
Frederick Lee Hisaw Professor of Reproductive Physiology
Professor of Environmental and Occupational Epidemiology
Harvard T.H. Chan School of Public Health
Professor of Obstetrics, Gynecology and Reproductive Biology
Harvard Medical School
Shelley A. Hearne, DrPH
Inaugural Alfred Sommer and Michael Klag Decanal Professor of the
Practice for Public Health Advocacy
Director, Center for Public Health Advocacy
Department of Health Policy and Management
Johns Hopkins University Bloomberg School of Public Health
Yogi Hendlin, MSc, PhD
Environmental Health Initiative
University of California, San Francisco
Irva Hertz-Picciotto, PhD
Director, Environmental Health Sciences Core Center
Professor and VC for Research, Department of Public Health Sciences
MIND Institute Program on Epidemiology of Autism and Neurodevelopment
University of California, Davis
Deborah Hirtz, MD
Professor, Neurological Sciences and Pediatrics
University of Vermont School of Medicine
Burlington, VT
Katie Huffling, 3RN, MS, CNM, FAAN
Executive Director
Alliance of Nurses for Healthy Environments
Richard J Jackson MD MPH
Professor emeritus, UCLA Fielding School of Public Health
Former Director, CDC National Center for Environmental Health
Former State of California Public Health Officer
Jennifer Jinot, PhD
Retired, U.S. Environmental Protection Agency
Camille Jones MD MPH
Retired, Assistant Health Commissioner
Margaret R. Karagas, MS, PhD
Professor and Chair
Department of Epidemiology
Geisel School of Medicine at Dartmouth
Philip J. Landrigan, MD, MSc, FAAP
Director, Program for Global Public Health and the Common Good
Director, Global Observatory on Pollution and Health
Professor of Biology
Schiller Institute for Integrated Science and Society
Chestnut Hill, MA
Bruce P. Lanphear, MD, MPH
President, International Society for Children's Health & the
Environment
Professor, Simon Fraser University,
Vancouver, BC, Canada
Arthur Lavin, MD FAAP
Associate Clinical Professor of Pediatrics
Case Western Reserve University School of Medicine
Rainer Lohmann, Ph.D.
Graduate School of Oceanography
University of Rhode Island
Narragansett, RI
Erin R Lutes, MS, RN, PHN, CNS
University of California, San Francisco
San Francisco Department of Public Health
Samuel Merritt University
Emily Marquez, Ph.D.
Staff Scientist
Pesticide Action Network
Michael J. Martin, MD, MPH, MBA
Associate Clinical Professor
Department of Epidemiology and Biostatistics
University of California, San Francisco
Chair, Environment & Health Committee, Physicians for Social
Responsibility (PSR) National
Duncan Maru, MD, PhD
NYC Health & Hospitals/Elmhurst Hospital Center
Arnhold Institute for Global Health and
Departments of Global Health, Pediatrics, and General Internal
Medicine,
Icahn School of Medicine at Mount Sinai
Queens, NY
David Michaels, PhD, MPH
Professor I Department of Environmental and Occupational Health
Milken Institute School of Public Health I
The George Washington University
Former Asst Sec U.S. Occupational Safety and Health Admin
Mark Miller, MD, MPH
Associate Clinical Professor
University California, San Francisco
Pamela Miller, MEn
Executive Director
Alaska Community Action on Toxics
Mark A. Mitchell MD, MPH, FACPM
Co-Chair, Commission on Environmental
Health National Medical Association
Rachel Morello-Frosch, PhD, MPH
Professor, Department of Environmental Science, Policy and Management &
School of Public Health, University of California, Berkeley
J.P. Myers, Ph.D.
Adjunct Professor of Chemistry
Carnegie Mellon University
Pittsburgh, PA
Chief Scientist, Environmental Health Sciences Charlottesville VA
Pasky Pascual, PhD
Retired, U.S. Environmental Protection Agency
Deborah Passey, PhD
Division of Epidemiology
University of Utah
Heather B Patisaul, PhD
Associate Dean for Research
College of Sciences
Center for Human Health and the Environment
NC State University
Raleigh, NC
Jerome A. Paulson, MD, FAAP
Professor Emeritus
of Pediatrics and of Environmental & Occupational Health
George Washington University School of Medicine and Health Sciences and
George Washington University Milken Institute School of Public Health
Washington, DC
Devon Payne-Sturges, DrPH
Associate Professor, Maryland Institute for Applied Environmental
Health, School of Public Health,
University of Maryland, College Park, MD
Frederica Perera, DrPH, PhD
Professor of Public Health
Director Translational Research and Founding Director
Columbia Center for Children's Environmental Health
Mailman School of Public Health
Columbia University, NY
Janet Perlman, MD, MPH
Clinical Professor of Pediatrics
University of California, San Francisco
UCB-UCSF Joint Medical Program
University of CaHfornia San Francisco
Christopher J. Portier, PhD
Former Director, National Center for Environmental Health and
Agency for Toxic Substances and Disease Registry
Adjunct Professor, Emory University
Visiting Professor, University of Maastricht
Swati Rayasam, MSc
Science Associate, Science & Policy
Program on Reproductive Health and the Environment (PRHE)
University of California, San Francisco
Jeffrey B. Ritterman, M.D.
Lifelong Medical Care
San Pablo, CA
Beate Ritz, MD, PhD
Professor of Epidemiology, Environmental Health, and Neurology
Fielding School of Public Health and School of Medicine
University of California Los Angeles
Leslie Rubin, MD
The Rubin Center for Autism and Developmental Pediatrics
Adjunct Associate Professor, Department of Pediatrics,
Emory University School of Medicine
Rupal Sanghvi, MPH
Founding Principal, HealthxDesign
Berkeley, CA
Katherine Schaff, DrPH, MPH
Public Health Justice Collective
San Francisco, CA
Susan L Schantz, PhD
Professor Emeritus
Beckman Institute for Advanced Science and Technology
Urbana, IL
Ted Schettler MD, MPH
Science Director
Science and Environmental Health Network
Rachel M. Shaffer, MPH
UW Seattle School of Public Health
Seattle, WA
Veena Singla, PhD
Senior Scientist
Natural Resources Defense Council
San Francisco, CA
Emerald Snow, MSPH, MA
Los Angeles, CA
Donna M. Staton, MD MPH
Program Director
International Community Access to Child Health (ICATCH) Grant Program
American Academy of Pediatrics' Section on Global Health (SOGH)
Elizabeth Southerland, Ph.D.
Former Director of Science and Technology
Office of Water
Retired, U.S. Environmental Protection Agency
Patrice Sutton, MPH
Research Scientist, Program on Reproductive Health and the Environment
University of California San Francisco
Maureen Swanson, MPA
Director, Environmental Risk Reduction & Project TENDR
The Arc
Jean-Luc Szpakowski MD
Gastroenterologist, Highland Hospital
Oakland CA
Tanya Khemet Taiwo, MPH, PhD
Co-Director, Community Engagement Core
Environmental Health Sciences Center
University of California, Davis
Gary Timm, MS
Former Chief of the Chemical Testing Branch
Office of Pollution Prevention and Toxics
Retired, U.S. Environmental Protection Agency
Tarlise Townsend, PhD
Department of Population Health, NYU School of Medicine
New York, NY
Wendy E. Wagner, JD, MES
Joe A. Worsham Centennial Professor
University of Texas School of Law
Austin, TX
Thomas Webster, PhD
Professor, Dept Environmental Health
Boston University School of Public Health
Robin M. Whyatt, DrPH
Professor Emeritus
Department of Environmental Health Sciences
Mailman School of Public Health
Columbia University, NY
Mary L. Williams, M.D.
Clinical Professor of Dermatology and Pediatrics
University of California San Francisco
Tracey Woodruff, PhD, MPH
Alison S Carlson Endowed Professor & Director
Program on Reproductive Health and the Environment, Dept Ob/Gyn
PRL Institute for Health Policy Studies
University of California, San Francisco
R. Thomas Zoeller, PhD
Professor Emeritus
Biology Department
University of Massachusetts Amherst
Ami R. Zota, ScD, MS
Associate Professor
Department of Environmental and Occupational Health
George Washington University School of Public Health and Health
Services
Washington, DC
______
American Association for Justice
June 11, 2020
Hon. Roger Wicker,
Chairman,
Committee on Commerce, Science, and Transportation,
United States Senate,
Washington, DC.
Hon. Maria Cantwell,
Ranking Member,
Committee on Commerce, Science, and Transportation,
United States Senate,
Washington, DC.
Dear Senator Wicker and Senator Cantwell:
The American Association for Justice (AAJ), formerly the
Association of Trial Lawyers of America (ATLA), is writing to express
our opposition to the nomination of Nancy Beck as Chair of the Consumer
Product Safety Commission (CPSC). AAJ, with members in the United
States, Canada, and abroad, is the world's largest plaintiff trial bar
and works to preserve access to justice. AAJ speaks for individuals who
have been exposed to and harmed by toxic substances. We work to ensure
that all impacted individuals retain their ability to hold the
responsible party accountable under the law.
The CPSC is a small agency with big responsibilities. The agency is
responsible for protecting children and families by overseeing the
safety of over 15,000 consumer products, including toys, cribs, home
furnishings, power tools and cleaning supplies. Its jurisdiction is
broad and critically important to the health and well-being of every
American. The commitment by the Chair of CPSC to fulfilling the life-
saving mission of the agency is critical to its success or failure. We
believe Nancy Beck is absolutely the wrong person for the job.
Throughout her career, Ms. Beck has worked to weaken, delay and
undermine important health protections from toxic chemicals in the
environment and household products. She served for over five years as a
senior director at the American Chemistry Council, the trade
association that lobbies on behalf of the Nation's largest chemical
manufacturers. In her position at ACC, she repeatedly advocated
positions harmful to consumers and workers. For example, she argued
against strong regulation of inorganic arsenic, a highly toxic
carcinogen; she urged EPA to adopt procedures that would limit the
effectiveness of the Lautenberg Chemical Safety Act, a bipartisan bill
intended to improve EPA's oversight of toxic chemicals; and she
advocated for EPA to delay a regulation for two toxic chemicals in
particular--NMP and Methylene Chloride. In her current position in the
Trump Administration, Ms. Beck continued to delay these protections,
and in the meantime, at least four people have died from exposures to
methylene chloride, exposures that could have been prevented if EPA had
acted.
Ms. Beck joined the Trump Administration in 2017 as director of
EPA's Chemical Safety office, and was detailed to the White House in
2019. During her time as a government official, she has been able to
implement many of the policies she advocated for on behalf of the
chemical industry. Her record of harm to the American people includes
blocking a proposed ban on chlorpyrifos, a pesticide that can cause
brain damage; stopping proposed regulations of TCE, which is linked to
cancer, fetal heart defects and other serious health issues; delaying
important changes to the lead paint standard that would have helped to
prevent childhood lead poisoning; and pushing an interpretation of
Federal chemical safety laws that ignore legacy exposures to harmful
substances such as asbestos.
Of great concern to many of AAJ's members, who represent
communities harmed by the toxic chemicals called PFAS (per- and poly-
fluoroalkyl substances), Ms. Beck has led efforts within the Trump
Administration to block stronger protections from these very dangerous
chemicals. PFAS exposures have been linked to cancer, birth defects and
immune system disorders. They are called ``forever chemicals'' because
they never break down in the environment and remain in our bodies for
years. Studies show that almost every American has PFAS in their blood.
PFAS contaminated drinking water has been found on military bases and
in communities across the United States. Firefighters, in particular,
have elevated blood levels because PFAS is found in firefighting foams.
Despite all the evidence and a bipartisan consensus that we need to
strengthen protections against PFAS, Ms. Beck has used her position at
EPA and the White House to block needed reforms.
Ms. Beck's record of aggressive advocacy in favor of the chemical
industry and against the health and safety of consumers and workers
makes her particularly unsuited to lead the CPSC. The Commission has
jurisdiction over a wide variety of consumer products that contain
hazardous substances, such as phthalates, lead, asbestos, PFAS and
toxic flame retardants. In fact, the agency has an active rulemaking to
ban the use of toxic organohalogen flame retardants in toys,
mattresses, children's products and electronic casings. We are very
concerned that Ms. Beck would undermine and block needed action to
protect the public from these harmful substances.
But our concern is not limited to chemical hazards. Ms. Beck's
record of favoring industry interests over public health indicates that
she will not provide the leadership necessary to.carry out CPSC's
mission to protect children and families from unreasonably dangerous
consumer products, from lead in toys to cribs that strangle to unsafe
table saws. In fact, we are concerned that Ms. Beck will actively
undermine that mission by blocking, delaying and weakening needed
protections, as she has done throughout her career. For the foregoing
reasons, AAJ strongly urges you to oppose the nomination of Nancy Beck
as Chair of the Consumer Product Safety Commission.
Sincerely,
Linda Lipsen,
Chief Executive Officer,
American Association of Justice.
______
Learning Disabilities Association of America
June 12, 2020, Pittsburgh, PA
Hon. Roger Wicker,
Chairman,
Committee on Commerce, Science. and Transportation,
United States Senate,
Washington, DC.
Hon. Maria Cantwell,
Ranking Member,
Committee, on Commerce, Science and Transportation,
United States Senate,
Washington, DC.
Dear Chairman Wicker and Ranking Member Cantwell:
The Learning Disabilities Association of America (LDA), is a
national nonprofit organization representing individuals with learning
disabilities and their families and has 29 state affiliates and members
in nearly every state and territory. One in 5 American children have a
learning or attention disability and over 7 million children, including
more than 2 million with specific learning disabilities, rely on IDEA
and Section 504 to receive necessary special education supports,
services, instruction and protections. The autism rate continues to
rise now affecting 1 in 54 children, which nearly tripled since
2000\1\. The incidence of these types of disabilities is rising every
year at an alarming pace, especially for autism and ADHD.
---------------------------------------------------------------------------
\1\ John Hopkins Bloomberg School of Public Health https://
www.jhsph.edu/news/news-releases/2020/us-autism-rates-up-10-percent-in-
new-cdc-report.html and Center for Disease Control https://www.cdc.gov/
ncbddd/autism/data.html, March 2020
---------------------------------------------------------------------------
We are writing to express our opposition to the White House
nomination of Dr. Nancy Beck to Chair the U.S. Consumer Product Safety
Commission (CPSC) and to urge you to oppose this nomination.\2\
---------------------------------------------------------------------------
\2\ White House Press Release. President Donald J. Trump Announces
Intent to Nominate and Appoint Individuals to Key Administration Posts.
Issued on: March 2, 2020, https://www
.whitehouse.gov/presidential-actlons/president-donald-j-trump-
announces-intent-nominate-appoint-individuals-key-administration-posts-
32/
---------------------------------------------------------------------------
The National Academy of Sciences estimates that environmental
factors, including toxic chemicals, cause or contribute to 28 percent
of learning and developmental disabilities in American children.\3\
Scientists have learned that the developing human brain is much more
susceptible to toxic substances than the adult brain, and that even
tiny amounts of certain chemicals can do lasting harm to the developing
brain, at levels that were once thought to be safe.
---------------------------------------------------------------------------
\3\ Scientific Frontiers in Developmental Toxicology and Risk
Assessment, Executive Summary, http://www.nap.edu/
openbook.php?record_id=987l&page=1, National Academy of Sciences
Committee on Developmental Toxicology
---------------------------------------------------------------------------
LDA's Healthy Children Project was established in 2002 to eliminate
the preventable causes of neurological disabilities, particularly
chemical exposures, and reduce the incidence of neurological
disabilities in future generations.
The U.S. Consumer Product Safety Commission (CPSC) is the key
Federal agency that is charged with protecting the public from consumer
products that pose dangers, including from chemical, fire, electrical,
and mechanical hazards.\4\ They regulate over 15,000 different consumer
products, including most products in our homes.
---------------------------------------------------------------------------
\4\ https://www.cpsc.gov/About-CPSC
---------------------------------------------------------------------------
The CPSC is governed by a bipartisan commission of five
commissioners with staggered terms. The Chair is currently vacant, and
Nancy Beck has been nominated to be the Chair. She now serves at the
Office of Management & Budget after spending years in the chemical
safety office of the Environmental Protection Agency. Prior to that,
she was a high-ranking senior executive for the American Chemical
Council.
Sadly, Nancy Beck has a history of not protecting our health, and
even worse, has used her positions to prevent other public officials
from doing more to protect children and adults with learning
disabilities from harm.
While at the EPA, Beck overrode the agency staff and rewrote
rules under the Toxic Substances Control Act (TCSA) \5\ to
ignore exposures to lead from pipes and paint because they are
no longer used in new products, and other chemicals when
deciding whether they pose an ``unreasonable risk'' to health.
Her approach was rejected\6\ by a Federal Court of Appeals\7\--
in a case brought by the LDA and other environmental and health
organizations--for violating the health protective requirements
of the law.
---------------------------------------------------------------------------
\5\ https://www.nytimes.com/2017/10/21/us/trump-epa-chemicals-
regulations.html
\6\ https://www.nrdc.org/experts/trump-epas-industry-friendly-tsca-
policy-starts-unravel
\7\ httos://www.nrdc.org/sites/default/files/tsca-opinion-
20191114.pdf
Beck also directed EPA staff to ignore that people are
exposed \8\ to neurotoxic chemicals from polluted drinking
water, air and soil when evaluating whether the containment
chemicals pose an unreasonable risk to health. That approach
dramatically underestimates the impacts of exposure to those
chemicals--particularly for infants, children and vulnerable
communities. The agency refused to change the approach, despite
criticism from the EPA's own Science Advisory Committee which
noted that consumer exposures including drinking water, air
pollution, and other environmental releases exposures should be
included.\9\
---------------------------------------------------------------------------
\8\ https://www.nytimes.com/2018/06/07/us/politics/epa-toxic-
chemicals.html?action=click&
module=Relatedlinks&pgtype=Article and https://www.documentcloud.org/
documents/4495888-Problem-Forumulations.html
\9\ Toxic Substances Control Act (TSCA) Science Advisory Committee
on Chemicals (SACC) meeting, July 2019. Peer Review of the Draft Risk
Evaluations for HBCD and 1,4-Dioxane October 2019, https://www.epa.gov/
tsca-peer-review/peer-review-draft-risk-evaluations-hbcd-and-14-dioxane
Beck has withheld needed protections for children \10\,
workers \11\, and rural communities \12\ by blocking the
proposed ban\13\ on brain-damaging pesticide chlorpyrifos.\14\
EPA Administrator Andrew Wheeler said EPA blocked the ban
because it questioned the link between chlorpyrifos and brain
damage, despite the strong scientific evidence cited by EPA's
own scientists. EPA's failure to ban chlorpyrifos is currently
undergoing legal challenge by health groups including the
Learning Disabilities Association of America and some of our
state affiliates.
---------------------------------------------------------------------------
\10\ https://www.nrdc.org/experts/miriam-rotkin-ellman/epa-toxic-
pesticide-fruitsveggies-puts-kids-risk
\11\ https://energycommerce.house.gov/sites/
democrats.energycommerce.house.gov/files/documents/
Giev%20Kashkooli%20TestimonyPESTICIDES031319.pdf
\12\ https://www.nytimes.com/2019/12/17/opinion/chlorpyrifos-
pesticide.html
\13\ https://www.nytimes.com/2019/07/18/climate/epa-chlorpyrifos-
pesticide-ban.html
\14\ http://www.panna.org/resources/chlorpyrifos-facts
Beck has rejected protection for children by refusing to ban
the use of a brain-damaging pesticide (TCVP) \15\ in pet
products, including flea collars and shampoos. A Federal court
recently ordered \16\ EPA to respond to a petition to ban the
use of TCVP in pet products.
---------------------------------------------------------------------------
\15\ https://www.nrdc.org/experts/miriam-rotkin-ellman/no-more-
poisons-pets-epa-must-act
\16\ https://www.nrdc.org/sites/default/files/court-opinion-tcvp-
20200422.pdf
Beck delayed children's protections for lead by failing to
update the hazard standard for lead paint\17\--contrary to
Federal court order.
---------------------------------------------------------------------------
\17\ https://earthjustlce.org/news/press/2019/groups-sue-over-
botched-lead-hazard-rule
The pattern of decisions demonstrates that Nancy Beck has a clear
history of not protecting the health of families. If confirmed by the
U.S. Senate for a position of much greater authority, Nancy Beck will
Chair the CPSC for seven years, and be able to not only block our
efforts to protect our members, but to repeal existing protections as
well.
For all the above reasons we ask you to oppose Nancy Beck's
nomination to the Consumer Product Safety Commission.
Respectfully,
Tracy Gregoire,
Healthy Children Project Director
Learning Disabilities Association of America
Matthew Talley, President
Learning Disabilities Association of Alaska
Tamara Massey, President
Learning Disabilities Association of Alabama
Brittany Franklin, MSE ECSE, Healthy Children Project Coordinator
Learning Disabilities Association of Arkansas
Gregg French, President
Learning Disabilities Association of Connecticut
Cathy Einhorn, President
Learning Disabilities Association of Florida
Carolyn Kingsley, Healthy Children Project Volunteer
Learning Disabilities Association of Georgia
Bev Johns, President
Learning Disabilities Association of Illinois
Penny Richards, President
LDA of Illinois Kane/Kendall Chapter
Patty Useem, President
Learning Disabilities Association of Indiana
Paula Hamp, President
Learning Disabilities Association of Iowa
Ann Johnson, President
Learning Disabilities Association of Maine
Jaime Brown, President
Learning Disabilities Association of Maryland
Amy Barto, Healthy Children Project Coordinator
Learning Disabilities Association of Michigan
Martha Moriarity, Executive Director
LDA Minnesota
Clarice Jackson, President
Learning Disabilities Association of Nebraska
Sollie Pinkston, Healthy Children Project Coordinator
Learning Disabilities Association of New Jersey
Kathryn Cappella, Treasurer
Learning Disabilities Association of New York
JoAnna J. Barnes, Esq., President
Learning Disabilities Association of North Carolina
Evie Lindberg, Executive Director
Learning Disabilities Association of Oklahoma
Analisa Smith, President
Learning Disabilities Association of South Carolina
Dr. Joy S. Marsh, State President
Learning Disabilities Association of Tennessee
Pam Smith, Healthy Children Project Coordinator
Learning Disabilities Association of Texas
Gaylia Tanner, Healthy Children Project Coordinator
Learning Disabilities Association of Utah
Dr. Louis Allen MD, FAAP, MPH
Able Differently
Diane Sixel, President
Learning Disabilities Association of Wisconsin
______
June 15, 2020
Hon. Roger Wicker,
Chairman,
Committee on Commerce, Science, and Transportation,
United States Senate,
Washington, DC.
Hon. Maria Cantwell,
Ranking Member,
Committee, on Commerce, Science, and Transportation,
United States Senate,
Washington, DC.
Dear Chairman Wicker and Ranking Member Cantwell:
We write to express our strong opposition to the confirmation of
Nancy Beck to be Chair of the Consumer Product Safety Commission
(CPSC).\1\ Throughout her career, Ms. Beck has opposed and weakened
standards that impact our health, safety, and environment, particularly
with respect to toxic chemicals. If confirmed to lead the CPSC, she
will be empowered to do even more damage to public health and consumer
protection for many years.
---------------------------------------------------------------------------
\1\ The term ``chairman'' is codified in statute and states that
the chair is the ``principal executive officer of the Commission'' and
exercises ``all of the executive and administrative functions of the
Commission.'' 15 U.S. Code Sec. 2053.
---------------------------------------------------------------------------
The CPSC is responsible for protecting consumers from hazards posed
by consumer products.\2\ The agency has the responsibility for ensuring
that more than 15,000 products are safe, including toys, household
products, furniture, cribs, and recreation equipment including all-
terrain vehicles. Robust product safety protects not only consumers,
but also workers including those involved in product manufacturing and
disposal, as well as fire fighters who face high risk of illness when
exposed to smoke from consumer products containing toxic chemicals.
From lead paint to flame retardants to toxic per- and poly-fluoroalkyl
substances (PFAS) to asbestos, Ms. Beck has fought for years to weaken
safeguards designed to protect public health.
---------------------------------------------------------------------------
\2\ About CPSC, U.S. Consumer Prod. Safety Comm'n, https://
www.cpsc.gov/About-CPSC (last visited December 19, 2019).
---------------------------------------------------------------------------
As an official at the Environmental Protection Agency (EPA) over
the past three years, Beck has been the architect of numerous policies
to undermine health protection from toxic chemicals, increasing risk to
first responders, children, and vulnerable communities.
Beck's Record on PFAS Is Troubling
Per and polyfluroalkyl substances (PFAS) are a class of toxic
chemicals that have been linked to testicular and kidney cancer,
thyroid disease, decreased fertility, decreased response to vaccines,
birth defects, immune system disorders and other health effects.\3\
PFAS are found in many consumer products as well as firefighting foam
that is used at military bases. PFAS chemicals, which are highly
persistent and mobile, have contaminated drinking water throughout the
United States. Nearly 99 percent of people have PFAS in their
bodies.\4\
---------------------------------------------------------------------------
\3\ Per- and Polyfluoroalkyl Substances (PFAS) and Your Health,
Agency for Toxic Substances and Disease Registry, https://
www.atsdr.cdc.gov/pfas/PFAS-health-effects.html (last visited Jan. 13,
2020) and Perfluoroalkyl and Polyfluoroalkyl Substances (PFAS),
National Institute of Environmental Health Sciences, https://
www.niehs.nih.gov/health/materials/
perfluoroalkyl_and_polyfluoroalkyl_substances_508.pdf (last visited
Jan. 13, 2020).
\4\ Calafat, A. M., Wong, L. Y., Kuklenyik, Z., Reidy, J. A., &
Needham, L. L. (2007). Polyfluoroalkyl Chemicals in the U.S.
Population: Data from the National Health and Nutrition Examination
Survey (NHANES) 2003-2004 and Comparisons with NHANES 1999-2000.
Environmental Health Perspectives, 115(11), 1596-1602, https://doi.org/
10.1289/ehp.10598.
---------------------------------------------------------------------------
While at EPA, Beck assisted in delaying the release of a government
study which found that EPA's current health standard for PFAS is too
weak to protect the public. The White House deemed the report a
``public relations nightmare.'' \5\ The final report is still stuck at
the White House, where Beck is currently working on PFAS policies. Beck
also failed to take measures to protect drinking water from PFAS
contamination, to limit people's exposure to PFAS in consumer products,
or to provide information to communities about discharges into the
local environment--all measures that have been urged by a bipartisan
group of Senators, Representatives, Governors, local officials, EPA
staff, and the public. Congress finally stepped in with last year's
National Defense Authorization Act to direct EPA to take some of the
protective actions that Beck had resisted for years. Despite this
congressional intervention, Beck has worked to weaken the measures that
Congress directed.\6\ With such a troubling track record, if Beck is
confirmed to chair the CPSC, it is foreseeable that she will continue
to undermine efforts to protect consumers from PFAS.
---------------------------------------------------------------------------
\5\ Annie Snider, White House, EPA Headed Off Chemical Pollution
Study, Politico (May 14, 2018), https://www.politico.com/story/2018/05/
14/e-mails-white-house-interfered-with-science-study-536950.
\6\ Press Release, Carper: New Evidence and Leaked Documents Reveal
White House Official Worked to Weaken PFAS Protections (April 17,
2020).
---------------------------------------------------------------------------
Beck's Implementation of TSCA Has Been Rejected by Federal Courts and
Scientific Peer Reviewers
Beck has played the leading role in EPA's implementation of the
Toxic Substances Control Act (TSCA), revised in 2016 by Congress to
require evaluation of chemicals, and protection of the public--
including susceptible populations--from unreasonable risks. One of
Beck's first actions at EPA was to block a proposed ban on the use of
the dangerous solvent methylene chloride in paint strippers. It is
known to pose a lethal risk to workers and consumers. In the two years
that followed, four people died using the paint strippers. After
several organizations sued EPA, it finalized a ban on consumer sales,
but not commercial use--meaning workers and consumers are still
unprotected. Beck also blocked proposed bans on some workplace and
consumer uses of trichloroethylene (TCE) a cancer-causing solvent that
has also been associated with structural cardiac defects in newborns
resulting from in utero exposures. And she pressured EPA scientists not
to focus on the cardiac hazards when they evaluated whether the
chemical presents unreasonable risk.
But Beck was just getting started: she overrode agency science and
legal staff to re-write EPA's policies for evaluating toxic chemicals--
directing staff to ignore potential exposure from drinking water, air
pollution, and contaminated soil--a policy that will exclude the most
vulnerable communities from protection. Another Beck policy would have
ignored potential exposure to asbestos and lead in homes, buildings,
and schools across the country when evaluating how much of a danger
they pose to public health. A Federal appeals court recently rejected
that approach. Beck has also blocked EPA from prohibiting the use of
the brain damaging pesticide chlorpyrifos, which several states have
since banned, and is under review by a Federal court. And she has
blocked the ban of a related pesticide commonly used in pet collars and
other products, endangering children. A Federal court recently ordered
the agency to respond to a rulemaking petition to ban it.
Beck's Work Has Been Criticized for Distorting Science and Undermining
Health Protections
While Beck's supporters tout her scientific education and training,
her background as a scientist adds little value to the CPSC because her
scientific work has repeatedly been criticized by independent experts.
A peer review panel appointed by the Trump administration found that
chemical evaluations produced under Beck's oversight ``strayed from
basic risk assessment principles,'' resulting in draft evaluations that
were. ``unscientific,'' ``misleading,'' riddled with ``mistakes and
inconsistencies,'' and ``generally lacking in [their] ability to
present a coherent picture of' worker risks. This assessment is
consistent with previous reviews of Beck's work. In 2006, the non-
partisan National Academy of Sciences noted in a report that a document
Beck wrote during her time at 0MB was ``fundamentally flawed,''
``simplistic'' and ``of serious concern,'' and unanimously recommended
that .it be withdrawn. It was. Beck has also advocated for policies
embodied in the administration's proposed rule to limit the use of
human exposure studies, which has been widely criticized by scientific
bodies and organizations, including EPA's own Science Advisory Board.
Nancy Beck's professional training as a scientist is not a sufficient
reason to confirm her to lead the CPSC, and her record of advocacy far
outside mainstream public policy or science underscores her lack of
fitness for this important position.
Beck Played a Role in Suppressing CDC Guidelines, Continuing a Career-
Long Trend
The Associated Press reported that as an official on detail to the
White House, Beck recently contributed to suppressing detailed
guidelines that the Centers for Disease Control and Prevention (CDC)
sought to release to help the country reopen in the midst of the COVID-
19 pandemic. Beck is neither a public health official, a medical
doctor, nor a virologist, and there is a great deal of uncertainty as
to what her current responsibilities are within this administration.\7\
Although her role in this recent matter has not been fully explained,
it appears to be consistent with other incidents--including blocking or
slow-walking the release of the government report on PFAS noted above,
and administration efforts to suppress the release of hazard
assessments of formaldehyde and other chemicals by EPA's IRIS
Program.\8\ If the CPSC is to be led by someone who follows the
science, it is clear that Nancy Beck is the wrong choice for the
position.
---------------------------------------------------------------------------
\7\ Ms. Beck currently works at the White House, though her title
and position are not clear; indeed, the website of the Environmental
Protection Agency (EPA) reports that she holds a senior position there.
\8\ Annie Snider, Sources: EPA Blocks Warnings on Cancer-Causing
Chemical https://www.politico.com/story/2018/07/06/epa-fonnaldehyde-
warnings-blocked-696628
---------------------------------------------------------------------------
CPSC Will Be Beck's Biggest Perch to Weaken Safety Standards and
Undermine Science
Immediately prior to joining EPA, Beck was the Senior Director of
Regulatory & Technical Affairs at the American Chemistry Council, a
powerful chemical industry lobbying group. Understanding her role there
is important because the CPSC has jurisdiction--and the statutory
obligation--to safeguard consumers from products that contain hazardous
levels chemicals. For example, the CPSC has issued a rule, as directed
by Congress, limiting the use of phthalates in children's products, and
is currently considering a rule limiting the use of toxic flame
retardants in certain consumer products. The chemical industry has
ardently opposed these protections, which have significant impacts for
the health and safety of consumers and is even challenging the
phthalates ban in Federal court. It is foreseeable that Nancy Beck will
thwart the CPSC's ability to protect consumers from the well-documented
harms that these chemicals pose.
Confirming Nancy Beck would leave a seasoned and aggressive fox
guarding the henhouse--and responsible for the protection of children
and consumers--for the next seven years. The CPSC is already hamstrung
by laws that make it difficult for the agency to robustly protect
families from injury and death. For example, recent reports have shown
how a little-known provision of the law prevented the CPSC from
informing the public that inclined sleep products were linked to the
deaths of more than 90 infants.\9\ The agency has also come under fire
for working with a stroller company to evade undergoing a recall for
faulty parts that contributed to injuries of more than a hundred
children and adults.\10\ Consumers and children cannot afford a further
erosion of the CPSC's commitment to protect the public from dangerous
products.
---------------------------------------------------------------------------
\9\ Public Citizen, Delay and Secrecy: How Section 6(b) of the
Consumer Product Safety Act Keeps Consumers in the Dark, available at
https://www.citizen.org/article/delay-and-secrecy/ (last visited Dec.
19, 2019) and Rachel Rabkin Peachman, When Recalls Fail, Consumer
Reports (Oct. 31, 2019), https://www.consumerreports.org/recalls/when-
recalls-fail/.
\10\ All Things Considered, How a Stroller Company Avoided a Recall
with the Help from the CPSC, NPR (April 3, 2019), https://www.npr.org/
2019/04/03/709573914/how-a-stroller-company-avoided-a-recall-with-help-
from-the- chair-of-the-cpsc.
---------------------------------------------------------------------------
After examining her very troubling track record, only briefly
summarized here, there is no reason to doubt that if confirmed, Nancy
Beck would continue to block and oppose needed safety standards, but
with even more power to do so. Confirming her into a position of such
public trust where she would slow down, weaken, or thwart safety
standards will be to the lasting detriment of families and communities
across the country. We urge you to make clear that you stand with our
families, our children, and our first responders and oppose Nancy
Beck's nomination. With questions, please contact: Eve Gartner, at
[email protected], Remington A. Gregg, at [email protected],
Daniel Rosenberg, at [email protected], Pamitha Weerasinghe, at
[email protected], and Rachel Weintraub, at rweintraub
@consumerfed.org
Sincerely,
AFL-CIO
Alaska Community Action on Toxics
American Association for Justice
AKPIRG (Alaska)
Arizona PIRG
Asbestos Disease Awareness Organization
Blue Ridge Environmental Defense League
Blue Ridge Environmental Defense League (Rabun Gap Chapter)
Breast Cancer Action
Breast Cancer Prevention Partners
CALPIRG
Cancer Prevention and Treatment Fund
Center for Biological Diversity
Center for Economic Justice
Center for Environmental Health
Center for Environmental Policy and Management
Center for Justice & Democracy
Center for Science in the Public Interest
Chapel Hill Organization for Clean Energy
Charlie's House
Chicago Consumer Coalition
Citizens' Environmental Coalition
Clean and Healthy New York
Clean Production Action
Clean Water Action
Collaborative on Health and the Environment
Columbia Consumer Education Council
Coming Clean
Consumer Action
Consumer Advocates Against Reverse Mortgage Abuse
Consumer Assistance Council, Inc.
Consumer Federation of America
Consumers for Auto Reliability and Safety
CoPIRG (Colorado)
ConnPIRG
Data for Justice
Earthjustice
Earthworks
Ecology Center
Endangered Species Coalition
Environmental Defense Fund
Environmental Health Strategy Center
Environmental Working Group
Fannworker Association of Florida
Florida PIRG
Florida Silver Haired Legislature Inc
Food & Water Action
Georgia PIRG
Green Inside and Out
Green Science Policy Institute
HarperSmiles
Healthy Babies Bright Futures
Illinois PIRG
Institute for Agriculture and Trade Policy
International Center For Technology Assessment
International Union, UAW
Iowa PIRG
KidsAndCars.org
Kids In Danger
League of Conservation Voters
Maryland PIRG
Massachusetts Breast Cancer Coalition
MASSPIRG
Meghan's Hope
Mid-Pinellas Coalition of Neighborhood Associations
Moms Clean Air Force
MoPIRG (Missouri)
NC Child
NCPIRG
NHPIRG
NJPIRG
NMPIRG
National Consumers League
National Employment Law Project
National PFAS Contamination Coalition
National Women's Health Network
Natural Resources Defense Council
NC Conservation Network
Nontoxic Certified
Ohio PIRG
Oregon Environmental Council
OSPIRG (Oregon)
Parents Against Tip-Overs
PennPIRG
PIRGIM (Michigan)
Public Citizen
Protect All Children's Environment
RIPIRG
Safer Chemicals Healthy Families
Safer States
Shanes Foundation
TexPIRG
Toxic-Free Future
Toxic Free NC
Union of Concerned Scientists
Union Veterans Council
UPSTREAM
U.S. Public Interest Research Group
WashPIRG
WISPIRG (Wisconsin)
Women's Voices for the Earth
Vermont Conservation Voters
Zero Waste Washington
cc: Members of the Senate Commerce, Science, and Transportation
Committee
______
NATIONAL CENTER FOR HEALTH RESEARCH
June 15, 2020
Hon. Roger Wicker,
Chairman,
Committee on Commerce, Science, and Transportation,
Washington, DC.
Hon. Maria Cantwell,
Ranking Member,
Committee, on Commerce, Science, and Transportation,
Washington, DC.
Dear Chairman Wicker, Ranking Member Cantwell, and Members of the
Committee:
On behalf of the National Center for Health Research, I am writing
to express our opposition to the confirmation of Nancy Beck to be Chair
of the Consumer Product Safety Commission (CPSC).
The mission of the Consumer Product Safety Commission is to protect
consumers, and especially children, from exposure to harmful products.
Their work saves thousands of lives every year. When Congress confirms
a CPSC Chair, the lives of all their constituents are at stake.
Unfortunately, while at the Environmental Protection Agency (EPA),
Nancy Beck has consistently worked to oppose and weaken standards
designed to protect the health and safety of children and adults. Her
track record makes it clear that if she is confirmed, it will damage
public health, and would put the safety of our children and
grandchildren at risk.
The National Center for Health Research is a nonprofit research
center that focuses on bridging the gap between scientific evidence and
public policy, in order to improve the health and safety of all
Americans. Our scientific staff review the same evidence that EPA and
CPSC scientists and decision-makers review. We can say with confidence
that Nancy Beck's scientific work has:frequently been criticized by
independent experts, including a peer review panel appointed by the
Trump administration found that chemical evaluations under Beck's
oversight were ``unscientific,'' and filled with ``mistakes and
inconsistencies.'' And as an official recently on detail to the White
House, Beck was partly responsible for delaying the detailed guidelines
that the Centers for Disease Control and Prevention had planned to
release to provide safety recommendations for enable businesses and
schools to reopen during the COVID-19 pandemic.
We can't emphasize strongly enough how important it is to American
families that the CPSC Chair be committed to protecting the health and
safety of our citizens. Nancy Beck's track records has demonstrated
that she is not. Please do not hesitate to contact me at
[email protected] with any questions.
Sincerely,
Diana Zuckerman, Ph.D.,
President.
cc: Members of the Senate Commerce, Science and Transportation
Committee
______
Learning Disabilities Association of America
Pittsburgh, PA
Subject: Nancy Beck Articles (2)--June 16, 2020
Date: Tuesday, June 16, 2020 at 1:27:07 PM Eastern Daylight Time
From: Fletcher, Jack (Commerce)
To: Strickland, David (Commerce)
CC: Burgess, Jami (Cantwell), Porter, Melissa (Commerce), Lacitis,
Ansley (Cantwell), True, Peter (Commerce), Marvin-Vanderryn, Ben
(Cantwell), Savin, Naomi (Cantwell), Day, Christopher (Commerce),
Wildgoose, Laurence (Commerce), Marten, David (Cantwell), Mehyar,
Naseem (Cantwell), Hale, Jonathan (Cantwell), Almond, Rance (Commerce),
Stout, David (Commerce), Hurt, Louisa (Commerce)
[LINK] Environmental Working Group--How Trump's Consumer Safety Nominee
Weakened Regulation of `Forever Chemicals' in Consumer Products
There are many reasons for the Senate to oppose President Trump's
nominee to chair the Consumer Products Safety Commission, Nancy Beck.
Since 1980, the use of methylene chloride in paint strippers has
killed scores of people. But while in a top position at the
Environmental Protection Agency's Office of Chemical Safety, Beck
delayed a proposed ban of methylene chloride in paint strippers. People
died.
Beck also stymied a proposed ban of some uses of the known
carcinogen TCE, which contaminates hundreds of military bases, and
played down the impact of TCE on fetal hearts. Beck twisted Federal law
to frustrate EPA's efforts to finally ban asbestos--an interpretation
recently deemed illegal.
But it's Beck's efforts to weaken consumer protections from the
toxic fluorinated chemicals known as PFAS--also called ``forever''
chemicals because they never break down and build up in our blood--that
should give senators the most serious pause.
Records released by the Senate Environment and Public Works
Committee show that Beck succeeded in weakening a regulation that
requires companies to notify and get permission from the EPA before
they start using so-called long-chain PFAS like PFOA--the most
notorious of the PFAS chemicals, linked to cancer and other serious
health effects--in consumer products ranging from carpets to wiring to
clothing.
In 2015, the EPA proposed a Significant New Use Rule, or SNUR, for
long-chain PFAS that applied to many products. What that means is that
manufacturers of everyday products would not only have to let the EPA
know they were planning to use PFOA or other long-chain PFAS but would
also have to seek the agency's approval.
In 2017, when Beck took a senior position in the EPA's chemical
safety office, she sought to exploit a provision in a new toxic
chemical law to weaken the SNUR for PFAS. After she left the EPA to
work at the White House, records show, Beck continued her crusade
against PFAS regulation.
Earlier this year, Beck succeeded in her quest to narrow the scope
of the rule by limiting it to the surface coatings of products. As a
result of her efforts, a company could use PFOA inside a product
without getting the EPA's permission--even though many products degrade
over time or wind up being disposed of in a landfill or incinerator.
[LINK] Union of Concerned Scientists--How Safe Are Children's Products?
It Might Depend on Trump's Next Nominee to the Consumer Product
Safety Commission
Today the Senate holds a hearing on the nomination of Dr Nancy Beck
to chair the Consumer Product Safety Commission (CPSC). I doubt you
spend much time thinking about the CPSC, but the little-known agency
plays a crucial role in ensuring that the products in our homes are
safe. And when things go wrong, that's when you do hear about it--from
lunchboxes contaminated with lead, to faulty jogging strollers that
have injured children, to crib recalls due to infant deaths.
The Trump administration has already made harmful picks for
commissioners at the CPSC, and under this administration's tenure, the
agency has had the lowest number of child product recalls in more than
a decade. Nancy Beck is more bad news. For the full scoop on the risks
to public health imposed by Beck's problematic and conflicted history
of interfering in science, see my colleague Genna Reed's posts here and
here.
Yesterday, at a Senate briefing hosted by Senator Richard
Blumenthal and Senator Tom Udall, I spoke alongside advocates and
parents who told powerful stories about lost loved ones and the dangers
of having someone like Nancy Beck in charge at the CPSC. You can watch
the full recording of the event here, and my comments are below.
Finally, please contact your Senators and tell them that Nancy Beck is
a dangerous choice for the CPSC.
______
National PFAS Contamination Coalition
June 16, 2020
Via electronic mail
Hon. Roger Wicker,
Chairman,
Committee on Commerce, Science, and Transportation,
United States Senate,
Washington, DC.
Hon. Maria Cantwell,
Ranking Member,
Committee, on Commerce, Science, and Transportation,
United States Senate,
Washington, DC.
RE: National PFAS Contamination Coalition OPPOSES Nancy Beck Nomination
To Chair Consumer Product Safety Commission
Dear Chairman Wicker and Ranking Member Cantwell:
We, the undersigned community group leaders, are writing to express
our strong opposition to the nomination of Nancy Beck to Chair the
Consumer Product Safety Commission (CPSC). We are members of the
National PFAS Contamination Coalition \1\. Our membership represents
over 30 grassroots community groups in 21 states fighting PFAS chemical
pollution in our air, soil, water, food, and from occupational
exposures.
---------------------------------------------------------------------------
\1\ https://pfasproject.net/
---------------------------------------------------------------------------
For decades, many residents in our communities have been
overexposed to PFAS chemicals. We call PFAS ``forever chemicals''
because that's what they do--they live forever, never breaking down.
This dangerous forever chemistry bioaccumulates in our bodies \2\ and
in our environment.
---------------------------------------------------------------------------
\2\ Calafat, A. M., Wong, L. Y., Kuklenyik, Z., Reidy, J. A., &
Needham, L. L. (2007). Polyfluoroalkyl Chemicals in the U.S.
Population: Data from the National Health and Nutrition Examination
Survey (NHANES) 2003-2004 and Comparisons with NHANES 1999-2000.
Environmental Health Perspectives, 115(11), 1596-1602, https://doi.org/
10.1289/ehp.10598.
---------------------------------------------------------------------------
For too long, the health and safety of our families have been
disregarded. We are seeing major diseases and illnesses in people far
too young in our communities. Many in our group have visited Congress
on numerous occasions testifying about our personal heartaches, our
illnesses, and our fears because of these forever chemical exposures.
As you know, the CPSC is the Federal agency responsible for
protecting the public against dangers associated with consumer products
including toys, children's products, home furnishings, cleaning
supplies, cookware, and some tools and building materials. We rely on
this agency to protect our health and our children's health from
unnecessary toxic exposures. That's why it concerned us to learn Nancy
Beck is best known for her long career of opposing health protections
from dangerous toxic chemicals, including her time as an official for
the largest trade association of chemical manufacturers. For the past
three years, Beck has headed EPA's ``Chemical Safety'' office, and she
is currently leading the Trump administration's policies on PFAS.
As organizations and individuals whose families and communities
have been directly harmed by PFAS chemicals in our drinking water, food
supply, the very air we breathe, occupational exposures and consumer
products, we judge her suitability as a nominee by her record of action
(or inaction) to address the Nation's burgeoning PFAS contamination
crisis. Unfortunately, her record is one of failure rather than one of
action and urgency.
While directing EPA's Chemical Safety office, Nancy Beck has failed
to use her authority to address PFAS contamination and she has
undermined efforts to strengthen protections from these harmful toxic
chemicals.
Nancy Beck's first actions after arriving at EPA were to
rewrite rules under the Toxic Substances Control Act (TSCA) to
prevent consideration of the harm caused by PFAS in drinking
water or polluted air.\3\ \4\
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\3\ Lipton, E. (2017, October 21). Why Has the E.P.A. Shifted on
Toxic Chemicals? An Industry Insider Helps Call the Shots. The New York
Times. https://www.nytimes.com/2017/10/21/us/trump-epa-chemicals-
regulations.html
\4\ Lipton, E. (2019, February 12). How the Trump Administration
Pulled Back on Regulating Toxic Chemicals. Yale Environment 360.
https://e360.yale.edu/features/how-trump-administration-has-pulled-
back-on-regulating-toxic-chemicals. (``The changes [Beck] ordered
reflected arguments, almost word for word, that she pushed as an
industry advocate. She engineered these changes over the strong
objection of long-time EPA professional staff.'')
Beck never required chemical manufacturers to disclose
information about PFAS, including how much was produced, how
and where it was disposed of, and how many works and people
were exposed. Finally, Congress stepped in and ordered the EPA
---------------------------------------------------------------------------
to gather the information.
Beck never required industry dischargers to report their
releases of PFAS into our air, water or land. Finally, Congress
stepped in and ordered EPA gather the information.
Beck failed to require notice of potential new uses of PFAS
in consumer products. Finally, Congress stepped in and ordered
EPA to act. Beck has pressed EPA to adopt the weakest approach
she could get away with \5\, meaning more of our loved ones
will be exposed to PFAS.
---------------------------------------------------------------------------
\5\ Snider, A. (2018, May 14). White House E.P.A., Headed Off
Chemical Pollution Study.
Politico. https://www.politico.com/story/2018/05/14/emails-white-house-
interfered-with-science
-study-536950
Beck failed to ban, or even temporarily postpone, the
introduction of any new PFAS into the marketplace (and into the
environment and our bodies). Instead, when the House was
considering bipartisan legislation to postpone the approval of
any new PFAS for five years, Beck helped issue a statement from
the White House threatening to veto the bill (it passed
---------------------------------------------------------------------------
anyway).
Beck failed to issue a single order requiring toxicity
testing of PFAS, despite the Administration's claims that it
needs more information about PFAS before it can restrict their
use or set safety standards.
Beck worked with White House staff to suppress a CDC report
showing EPA's existing health standards for toxic PFAS
chemicals are too weak to protect our families. The White House
was concerned that the report would be a ``public relations
nightmare.'' \6\
---------------------------------------------------------------------------
\6\ Annie Snider, White House, EPA Headed Off Chemical Pollution
Study, POLITICO (May 14, 2018), https://www.politico.com/story/2018/05/
14/e-mails-white-house-interfered-with-science-study-536950.
The CPSC has jurisdiction over numerous consumer products that may
contain PFAS, including cookware, carpets, Grainger, and footwear.
Beck's record at the EPA and the White House amply demonstrates her
total lack of commitment to addressing the PFAS crisis and should
disqualify her for consideration to be the next Chair of the CPSC.
Unfortunately, Nancy Beck's deeply problematic record isn't limited
to undermining efforts to address the PFAS crisis. She has blocked
numerous efforts to protect the public from cancer causing and brain-
damaging chemicals, demonstrating her unfitness to lead an Agency
charged with protecting our Nation's children.
Most notably, Nancy Beck has:
Withheld needed protection for children, workers and rural
communities by blocking the proposed ban on the brain-damaging
pesticide chlorpyrifos.\7\
---------------------------------------------------------------------------
\7\ Lipton, E. (2017, March 29). E.P.A. Chief. Rejecting Agency's
Science, Chooses Not to Ban Insecticide New York Times. https://
www.nytimes.com/2017/03/29/us/politics/epa-insecticide-
chlorpyrifos.html
Rejected needed protection for children by refusing to ban
the use of a brain damaging pesticide (TCVP) in pet products
---------------------------------------------------------------------------
including flea collars and shampoos.
Blocked proposed rules \8\ for protecting workers, consumers
and children from TCE which is linked to cancer, fetal heart
defects, liver and kidney toxicity and harm to the immune
system.
---------------------------------------------------------------------------
\8\ Tabuchi, H. (2019, January 2). A Trump County Confronts the
Administration Amid a Rash of Child Cancers. The New York Times.
https://www.nytimes.com/2019/01/02/climate/tce-cancer-trump-
environment-deregulation.html
Refused to consider exposure to contaminated drinking water
as a factor in determining whether to impose restrictions or
set safety standards for 1,4 dioxane.\9\
---------------------------------------------------------------------------
\9\ Denison R., (2019, November 4). EPA's scientific peer reviewers
don't mince words in blasting its 1,4-dioxane and HBCD risk
evaluations. Environmental Defense Fund blog. http://blogs.edf.org/
health/2019/11/04/epas-scientific-peer-reviewers-dont-mince-words-in-
blasting-its-14-dioxane-and-hbcd-risk-evaluations/
Delayed children's protections for lead by failing to update
the hazard standard for lead paint--contrary to a Federal court
---------------------------------------------------------------------------
order.
The last thing that our communities need is Nancy Beck asa Chair of
the Consumer Product Safety Commission. Our children and family's
health should be protected, not sacrificed. We strongly urge you to
oppose her nomination.
Signed,
Linda Shosie Anthony Spaniola
Tucson, Arizona Oscada, Michigan
Environmental Justice Task Force-- Need Our Water (NOW)
Tucson
Eric Weiner Diane and Paul Cotter
Windsor, Connecticut Rindge, New Hampshire
Clean Water Task Force @ Windsor Your Turnout Gear and PFOA
Climate Action
Stel Bailey Laurene Allen
Cocoa, Florida Merrimack, New Hampshire
Fight For Zero Merrimack Citizens for Clean Water
Lindsey Duhe Andrea Amico
Pensacola, Florida Portsmouth, New Hampshire
Saufley Field Community Testing for Pease
Lynn Sprayberry Loreen Hackett
Summerville, Georgia Hoosick Falls, New York
Chattooga County PfoaProjectNY
Susan Phelan Jack Caldwell
West Barnstable, Massachusett New Windsor, New York
GreenCAPE Quassiack Creek Watershed Alliance
Ryan Riley Emily Donovan
Salem, Massachusett Wilmington, North Carolina
Your Turnout Gear and PFOA Clean Cape Four
Arnie Leirche Katie Bryant
Oscada, Michigan Pittsboro, North Carolina
Wurtsmith Restoration Advisory Clean Haw River
Board
Community Co-chair
Hope Grosse Cheryl Cail
Joanne Stanton Myrtle Beach, South Carolina
Bucks and Montgomery Counties, SC Idle No More
Pennsylvania
Buxmont Coalition for Safer Water
Kevin Ferrara Shaina Kasper
Lock Haven, Pennsylvania Montpelier, Vermont
Retired USAF Firefighter Toxics Action Center
John Cranmer
Gillette, Wyomihg
USAF Firefighter
______
Prepared Statement of Brian Wynne, Chairman, Drew Wynne Foundation
This Nominee Delayed a Ban on the Toxic Chemical that Killed my
Brother. Last year, the chemical that killed my brother, Drew, was
finally banned from store shelves. My family was relieved when the
long-sought-after protection--a nationwide ban on the chemical
methylene chloride in paint strippers for consumer uses--was finally
adopted. But it was a battle: this ban was first proposed nine months
before Drew passed away, and it took over two years before it was
finalized. It was originally stronger too: the proposed ban included
commercial uses of the paint strippers--to protect workers who are at
risk when using the products.
Now, one of the key officials involved in delaying this ban and
opposing other regulations on chemicals, Nancy Beck, could be nominated
to lead the Consumer Products Safety Commission (CPSC) until 2025. This
is a small, but critical, agency tasked with protecting Americans from
dangers associated with consumer products, from cribs and children's
toys to furniture and cleaning products. Nancy Beck is the absolute
wrong choice for this role.
Beck started work for this administration at the Environmental
Protection Agency (EPA), straight from her posting as a top executive
at the chemical industry's main trade association. One of her first
actions at EPA was blocking the proposed ban on methylene chloride in
paint strippers--a move at the top of the chemical industry's wish
list.
In an interview with the New York Times, Wendy Cleland-Hamnett--who
previously led EPA's toxic chemicals office--cited a conversation in
which Beck questioned whether the number of deaths from methylene
chloride paint strippers warranted a ban on the chemical: `` `Is it 1
percent?' Ms. Hamnett recalled Dr. Beck asking.'' Such callous
disregard for people's lives would be concerning for any position--but
it is particularly alarming for someone nominated to protect American's
health and safety.
Drew was only 31 when he died while using a methylene chloride
paint stripper. From that tragedy, my family worked tirelessly to get
paint strippers containing this chemical off of store shelves--we
lobbied in Washington, urged retailers to stop selling the products,
and kept telling Drew's story to draw attention to the problem. We were
determined to save other parents and families from the pain that we
have felt.
But Nancy Beck will put the safety of American families at risk if
she is confirmed to lead the CPSC. In addition to her interference on
methylene chloride, she also delayed bans on high-risk uses of another
toxic chemical, trichloroethylene (TCE); made systemic changes to
weaken how the country's main chemical safety law is carried out; and
more. Her record clearly shows that, when making decisions about
hazardous chemicals, industry interests outweigh the public's health
and safety.
I did not want to have to speak out again--to feel the pain of
sharing Drew's story again--but I knew I needed to do everything
possible to stop this dangerous nomination from moving forward. The
stakes are too high. My family and I know all too well that the
decisions made in Washington about health and safety regulations have
real life consequences. We cannot afford to have Nancy Beck in charge
of protecting health for years to come.
STATEMENT OF HON. ROY BLUNT,
U.S. SENATOR FROM MISSOURI
Senator Blunt. I want to recognize myself for two questions
before we go to Senator Blumenthal.
Mr. Szabat, in the FAST Act, I was able to secure a
provision in the FAST Act where existing railroad right-of-way
would be treated like we had decided in a previous law to treat
existing interstate right-of-way as it related to historic
preservation and the impact an existing railroad would have had
if you made changes in that existing railroad bed.
I think the Federal Railroad Administration and the
Advisory Council on Historic Preservation have been working
together to implement this provision. It has not been
implemented yet, though I think most of them have done what
they needed to do. I understand there remains a concern about a
property-based approach included in program guidance.
So I have written a letter on this issue to both the FRA
and the Advisory Council on Historic Preservation in November.
I recently received a response.
I want to use this opportunity to raise this issue with you
since you will be overseeing the Federal Railroad
Administration. I hear that some of the railroads--there remain
concerns about the direction you are headed here. Would you
talk to me a little bit about that? So what we are asking is
you need to do the historic preservation effort you would need
to do in an entirely new place if you are working where the
railroad has always been. We made that decision on interstate
highways. The Congress made the same decision for railroads,
but it has not been implemented yet. And I would like to ask
what you are going to do about that.
Mr. Szabat. Senator Thune, thank you for the question and
for your interest in this issue that is important both for
historic preservation----
Senator Blunt. It is actually Senator Blunt. I got out of
the line here when Senator Thune was not here.
Mr. Szabat. My apologies, Senator. Thank you, Senator
Blunt.
This is an issue that is important, both to historical
preservationists and, as you point out, also to our railroad
stakeholders.
My understanding of the challenge is, as you mentioned, on
the highway side the statutory provisions that were put in the
regulations make it clear that the historical preservation, the
section 160 provisions do not apply except for those instances
that are explicitly spelled out. And the draft proposal that we
have right now that we are working with the preservationist
community and with the FRA flips that and says that on the
railroad side, all the grade crossings would be affected by the
160's unless they are explicitly exempted.
So there is clearly some work to do, as you point out, for
us to square the circle to ensure that we are not doing this
inconsistently. You have my commitment that I work with the
stakeholders, also with you, your staff, and the members of
this committee to hopefully get us to a happy place where the
interests of all of the stakeholders will be addressed.
Senator Blunt. Well, that would be good, and I would be
glad to help with that as I could.
Commissioner O'Rielly, you have been a vocal and vigorous
member of the Commission. I admire what you have done there.
There are a lot of consumers who are looking at the choices
they have for content now, the competition that is out there.
Would you share with me some of your goals for working to
update how the FCC views what competition means in our current
media marketplace from an antitrust perspective?
Mr. O'Rielly. Well, I believe that our current rules and
those of the Department of Justice are problematic to reflect
what is happening in the marketplace today. There are a number
of video providers offering services to consumers that are
regulated by no entity beyond there are just general practices,
but they are not governed by the FCC. The legacy providers are,
whether they are broadcasters or cable providers. And the
dichotomy between the two is incredibly problematic.
We have done good work at the FCC in my opinion to modify
our rules to reflect that situation. I have run into a
roadblock in my interpretation with the Department of Justice
who refuses to change its perspective on how broadcasters and
who they compete with. It is very problematic from my viewpoint
that they believe that broadcasters only compete with
broadcasters in a select market at a select time for select
advertising. And I have tried to figure out how best to change
that. We have done good work at the FCC. As the circumstance
may be, I was hoping to work with the Department of Justice,
but we ran into this--the pandemic has certainly changed the
dynamic.
Senator Blunt. Well, I think, Commissioner, on ownership
issues and other issues, not recognizing how big the
competitive field is, it makes a big mistake as we move into
the future. And I hope you continue to vigorously pursue that
discussion.
Senator Blumenthal.
STATEMENT OF HON. RICHARD BLUMENTHAL,
U.S. SENATOR FROM CONNECTICUT
Senator Blumenthal. Thanks, Mr. Chairman.
To Nancy Beck, you have been nominated for one of the most
significant positions in our Federal Government. Fewer people
have heard of the Consumer Product Safety Commission than maybe
the Department of Defense or Veterans Affairs or some of the
others, but this agency makes a life or death difference in the
lives of literally hundreds of millions, maybe all Americans.
And there is no better illustration of it than two letters that
I have here, one from Crystal Ellis, the other from Janet McGee
who lost children as a result of furniture tipping over on
them. I ask that they be made part of the record, Mr. Chairman.
Senator Blunt. Without objection.
[The information referred to follows:]
Prepared Statement of Crystal Ellis
Hello, my name is Crystal Ellis. 6 years ago today, I removed my
son from life support, because of injuries resulting from a furniture
tip-over. Camden is a casualty of not only a specific manufacturer that
chose to ignore ``voluntary standards'' that were already weak and
ineffective at preventing injuries and deaths, his death is the
consequence of an agency tasked with protecting consumers that has
their hands tied by a small budget and the 6(b) gag order that prevents
them from being able to do their job of protecting consumers.
The CPSC is the agency that has CONSUMER in its title, but has a
history with struggles in being able to actually represent the voices
and interests of Americans. This is in great part because of an
unbalanced influence by industry, since 1981. Industry will always try
and convince all parties tasked with regulation, that they can do a
great job with self-regulation and the answer to all problems is de-
regulation. Self-regulation is impossible, when it will affect the
bottom line. De-regulation has hurt consumers in innumerable ways.
Nancy Beck has a strong history of de-regulation and ignoring risk
assessment data. This would be devastating for an agency that is
already hurt by a balance of power in favor of industry.
Americans believe that if a product is in our marketplace, it has
been vetted and tested by their government and would not be sold if it
wasn't safe. They don't know which agency has this responsibility and
they don't know who to report to, when they have problems. This lack of
visibility favors industry and allows companies, like the one that
killed my child, to hide their injuries and deaths for decades, without
recalls or civil penalties of any significant amount or public
awareness. Looking at Nancy Beck's history, consumers would be at an
even bigger disadvantage with her at the helm. We need a champion for
protecting consumers and standing up to big companies that will fight
hard to hide all of their misdeeds.
______
Prepared Statement of Janet McGee, Founding Member,
Parents Against Tip-overs
I'm Janet McGee, a founding member of Parents Against Tip-overs,
which is a nationwide coalition of parents who have lost their children
from furniture and TV tip-overs. On average, tip-overs happen every 24
minutes and a child in the U.S. dies every 2 weeks from a tip-over.
For about 20 years, the ASTM subcommittee that sets the voluntary
safety standard for clothing storage units has been painstakingly slow
to solve the furniture tip-over problem that has unknowingly lurked
inside U.S. homes for decades. It's a problem that has, and continues
to kill hundreds of children (my son, Ted, being one of them) and
injure thousands more. We parents rely heavily on the Agency to use
every tool available to them to stop production and sales, and push for
recalls of unstable furniture on the market. While most manufacturers
may tell parents to simply anchor your furniture, the real problem we
face as a nation is poorly designed and unstable dressers, a risk that
cannot be mitigated solely by anchoring. Just last week we watched
nanny cam footage of a piece of furniture that fell on two children;
the furniture HAD been anchored to a stud in the wall.
We need the Commission to lead their charge of protecting
consumers, not defending businesses. We need the CPSC to push the
voluntary standard process to result in a robust and effective standard
that will save lives. The CPSC is currently conducting research on the
adequacy of the current standard, has issued an ANPR, and is expected
to issue an NPR this year. Would Nancy Beck support that? Would she
find that a child dying every 2 weeks from a tip-over is sufficient
risk for the CPSC to take action and aggressively pursue writing a
mandatory standard? Nancy Beck's history of deregulation and protecting
businesses in her position at OMB and EPA is deeply concerning as we
consider what that might look like for the U.S. Consumer Product Safety
Commission. We depend on this agency to protect our families.
As parents and families who have lost their children to defective
products, Parents Against Tip-overs stands against the nomination of
Nancy Beck for the U.S. CPSC Chairperson. We have significant concerns
regarding how well consumers will be protected if she were to lead the
Agency.
Thank you for allowing me to voice our concern today. I'm now going
to turn it over to Crystal Ellis.
Senator Blumenthal. So let me just ask you right from the
start. All four current CPSC Commissioners have said that the
furniture stability standard is inadequate. Do you agree? Yes
or no.
Dr. Beck. Senator, thank you for your question.
I agree with you about the essential and important mission
of the CPSC.
Regarding the tip over standard, I believe that is
something that needs to be a priority. I am aware that CPSC is
doing essential and important research on this now. Not being
at the CPSC, I do not have access to all the data that the
other Commissioners have. If confirmed, I would be happy to get
back to you.
Senator Blumenthal. You know, I am giving you a chance, in
effect, to show us that you are on the side of consumers. I
believe that your record to date is disqualifying for this
position. And I am really giving you a chance to show that you
would take vigorous and aggressive action to protect the
consumers like Ms. McGee and Ms. Ellis and their families and
children. And that answer is simply inadequate. I am not a
member of the Commission either.
Dr. Beck. Senator, my heart goes out to those families.
Senator Blumenthal. Well, I know your heart goes out to
them, and I believe you.
My time is limited, so I am going to move on. Tell me about
your role at the CDC in blocking the scientific guidance that
it wanted to issue regarding COVID-19 standards?
Dr. Beck. Thank you for that question.
I can assure I did not block any CDC guidance. At the OMB,
OMB plays an essential and important role in coordinating
interagency review of thousands of regulations and guidance
documents every year. I was helping to coordinate the review of
the CDC guidance document, and my role was to make sure that
all the decisionmakers have an opportunity to comment on the
document----
Senator Blumenthal. Is it a fact that you blocked the
issuance of the guidance?
Dr. Beck. Senator, I coordinated the interagency review to
ensure that all the comments were received and considered by
the CDC. That was essentially my only role.
Senator Blumenthal. Well, in coordinating it, you prevented
it from being released. Correct?
Dr. Beck. The OMB process requires that all the
decisionmakers have an opportunity to review and comment on the
document.
Senator Blumenthal. Let me ask you about a separate issue,
PFAS. As you know I am sure, a review from the United States
Centers for Disease Control and Prevention, CDC, outlined a
host of hazardous health effects associated with PFAS exposure,
including cancer, liver damage, decreased fertility, increased
risk of asthma, and thyroid disease. Connecticut had a major
pollutant release of PFAS recently. These chemicals do not
break down over time. They are forever chemicals. Do you agree
that PFAS poses a significant health threat and should be
removed from all household items?
Dr. Beck. Senator, the Federal Government is working very
hard to understand the science and to take appropriate
regulatory action to address PFAS.
My understanding is that the companies that used the long
chain PFAS compounds, which were the ones that were going in
consumer products, have essentially been phased out since, I
think, 2008 or 2009. The problem is that we have these older
rugs and carpets that were made before that period of time.
Senator Blumenthal. Well, would you support removing PFAS
from fire fighting chemicals that endanger the lives of those
fire fighters?
Dr. Beck. Senator, I believe the National Defense
Authorization Act requires the DOD to remove PFAS chemistries--
--
Senator Blumenthal. The DOD, yes. And by the way----
Dr. Beck. And they are working hard.
Senator Blumenthal.--I was one of the principal
supporters----
Dr. Beck. Great.
Senator Blumenthal.--of that amendment, as you may know.
But I am talking about the countless fire service departments
around the nation, including Connecticut, where PFAS flame
retardants and chemicals are still in use. Would you support
removing them and substituting other kinds of materials?
Dr. Beck. Senator, I am sure that once there is an
appropriate--there is plenty of research going on, FAA, DOE,
DOD, to help find an effective replacement to the PFAS
chemistries for fire fighting foam, and I am confident that
once that replacement is found, there will be a broad
transition in the marketplace.
Senator Blumenthal. And you would support a ban.
Dr. Beck. I support a transition away from the PFAS foams.
Absolutely.
Senator Blumenthal. I have no further questions right now
because my time has expired. Thanks, Mr. Chairman.
Senator Blunt. Thank you, Senator Blumenthal.
Senator Lee.
STATEMENT OF HON. MIKE LEE,
U.S. SENATOR FROM UTAH
Senator Lee. Thank you very much, Mr. Chairman.
Mr. Szabat, I would like to start with you, if that is OK.
Navigable airspace is defined as the minimum altitude at
which safe flight is possible. I understand that to be
generally 500 feet. Does that sound about right to you?
Mr. Szabat. Yes, Senator.
Senator Lee. Drones, of course, create a special set of
circumstances because they really fall into a different
category. A drone, if it goes to your house, can hover just
inches above the blades of grass on your front yard, and that
is a feature, not a bug. That is considered the safe, effective
zone for a drone to operate, whereas with an aircraft, that
would be unsafe. That is not a safe place to operate that. You
are at that altitude only for a millisecond as you are taking
off and as you are landing.
But the FAA believes that because drones can hover inches
above the blades of grass in the front yard, the agency can,
therefore, control that airspace in front of your front yard.
Now, do you agree with the FAA's current legal
interpretation on that point?
Mr. Szabat. Well, Senator, what I would agree with is to
say that the Federal Government has authority over the national
airspace for obvious reasons. You have to have one overriding
standard. There are a lot of issues that are playing out right
now regulatorily over who has what say for drones in that lower
airspace, and we know that there is an awful lot of room for
local law enforcement, State and local governments, emergency
services, for example, to have their say as well.
So I would say for the higher airspace, yes. The FAA has--
after a plane has taken off, after you are into the national
airspace, the overriding consideration, except for the security
agencies, is FAA. In the lower airspace, we are still frankly
working out some of those issues.
Senator Lee. So what would you say to those property owners
who are struggling to understand where their rights end and
where they begin and what that means?
Mr. Szabat. So, Senator, I would say the obvious. This is a
complicated, difficult issue. This is a new emerging
technology. And one of the reasons that we have been so
hesitant to step in with new regulations right off the bat is
because it is complicated and we want to get it right.
Senator Lee. Mr. O'Rielly, let us go to you for a moment.
Spectrum is a finite resource and it is one that is
extremely valuable. Spectrum access both in the licensed realm
and in the unlicensed realm is essential for any future U.S.
efforts there might be to develop IOT devices and lead in the
race toward 5G and eventually 6G networks or whatever comes
after that.
Now, the FCC with your support has taken a number of very
admirable efforts to find inefficiencies in commercial bands.
What is the current state of our commercial spectrum pipeline?
Mr. O'Rielly. So we have a number of auctions that are
coming up for mid-band spectrum that will be key for 5G
services. But post those, in both the C band and CBRS, with the
premier being C-band and CBRS, and then 3.1 to 3.55 has been
identified as a possibility. Beyond that, the pipeline in my
opinion is fairly bare.
Senator Lee. Do we have enough commercial spectrum being
made available to meet the future needs of the United States,
and if not, how much time do you think we have?
Mr. O'Rielly. I would say no.
Senator Lee. So you described the cupboard as being bare,
meaning there is just nothing in there.
Mr. O'Rielly. Well, we have not identified new bands that
we should be trying to reallocate for commercial services,
whether they be from commercial services today or from Federal
Government agencies. That needs to be done immediately because
it takes quite a number of years to clear a band. Even C band
where providers are willing to change, it is still a number of
years to make that happen.
Senator Lee. And we talk a lot, of course, about
reallocating commercial spectrum, which is a good thing. We
also cannot forget that there are large swaths of spectrum,
really valuable beachfront spectrum that are in the possession
of various government agencies. And everything affects
everything else, and those agencies sitting on that spectrum to
whatever degree they might not need it has a significant cost
attached to it.
Would you agree that part of keeping the United States
competitive in the tech space is going to require an all-of-
the-above approach, one that will objectively consider both
Federal and commercial spectrum allocation for future needs?
Mr. O'Rielly. Oh, absolutely. I think in terms of acquiring
or making available new mid-band spectrum for commercial
services, 5G, 6G, et cetera, we are going to need an all-of-
the-above strategy, but that certainly means the Federal
agencies are going to need to shrink their footprint. That is,
they hold the most ideal bands in mid-band. And it is a very
difficult challenge, I admit, but that is part of our job.
Senator Lee. Thank you very much.
Senator Blunt. Thank you, Senator.
Senator Baldwin.
STATEMENT OF HON. TAMMY BALDWIN,
U.S. SENATOR FROM WISCONSIN
Senator Baldwin. I want to direct my question first to Mr.
Szabat.
In 2018, the Trump administration released an
infrastructure plan that did not mention Buy America once,
despite the President's Executive Order to buy American and
hire American which, by the way, he announced and signed in
Kenosha, Wisconsin.
With 21 million people currently unemployed, it is really
more important than ever that we use taxpayer dollars spent on
infrastructure to support the American workforce. Will you
commit that any infrastructure proposal that comes out of the
Trump administration in your jurisdiction contains strong ``Buy
America'' language?
Mr. Szabat. Yes, Senator. I can go beyond that to say that
all of the proposals that have come out of the Department, at
least since I have had the honor of serving as the Acting Under
Secretary, have reinforced the importance of ``Buy America'' or
``Buy American.''
Senator Baldwin. And then President Trump also promised
bold new steps on ``Buy America'' when he was in Kenosha 3
years ago. If confirmed as Under Secretary for Transportation
Policy, what bold, new steps would you be recommending for
``Buy America'' at the Department of Transportation?
Mr. Szabat. Thank you, Senator, for the question. I will
always continue to support strong efforts for ``Buy America''
as I did in my previous job as Executive Director of the
Maritime Administration where those ``Buy America'' provisions
are so important for the maritime industry. I am not in a
position to say specifically what I will be able to offer in
the future because, of course, whatever I offer in the future
has to be supported by my superiors in the administration.
Senator Baldwin. I appreciated the chance to speak with you
by telephone last week, and one of the things we discussed was
the increasing frequency of flooding and extreme weather
events. And certainly these events are not going to stop
because Congress and our state and local partners are focused
on the COVID-19 pandemic. They are still going to continue.
So as Congress works on surface transportation
reauthorization, in my view it is imperative that we invest in
climate-resilient infrastructure and ensure that State and
local governments have the resources they need to do the same.
For example, my bipartisan ``Rebuilding Stronger
Infrastructure Act'' was included in the EPW Committee's
reauthorization legislation, and that bill requires the Federal
Highway Administration to provide states and localities with
the tools that they need to rebuild infrastructure that can
withstand the next storm or flood. So I am looking forward to
working with this committee to ensure that our reauthorization
legislation similarly includes strong resiliency measures.
Now, I understand that the administration is working to
release its own reauthorization proposal, and I will be looking
closely at how that proposal prioritizes infrastructure
resilience.
If confirmed, what would you do to ensure transportation
infrastructure across DOT is more resilient to climate change
and extreme weather events?
Mr. Szabat. Again, Senator, thank you for your question but
also for your focus on this important issue.
We will, as you say, be rolling out very shortly the
administration's surface transportation reauthorization bill.
My commitment to you is if you find that it falls short in
the resiliency aspect, that we look forward to working with
you, the other interested members of this committee, and the
staff to make sure it reflects those priorities.
In a different context, General Darren McDew, the former,
now retired, head of the U.S. Department of Defense's
Transportation Command, testified that his concern was the
Nation was sacrificing too much resiliency for the sake of
efficiency.
I think the same thing can be said for transportation, and
to your point, the standards that we have for the next round of
infrastructure that we build have to be something that can deal
with the challenges 40 and 50 years from now, not just the
standards that we had a decade ago.
Senator Baldwin. And on a closely related topic, what more
could you do, would you do to ensure that our State and local
partners receive the technical support and funding that they
need to build and rebuild more resilient infrastructure?
Mr. Szabat. Senator, thank you. That is always an issue
that we have to grapple with anytime that we are posing new
programs or funding for our current programs is what is that
right local-Federal match. Certainly right now we are seeing
this as we go through the COVID-19 period. There are stress
points for local governments where we cannot expect them to
pitch in as much as they would have when the economy is in a
better spot. And that is going to be one of the issues we are
going to have to work through in consultation with the Congress
as we discuss the various surface transportation
reauthorization proposals.
Senator Baldwin. Thank you, Mr. Chairman.
Senator Blunt. Thank you, Senator Baldwin.
Senator Thune.
STATEMENT OF HON. JOHN THUNE,
U.S. SENATOR FROM SOUTH DAKOTA
Senator Thune. Thank you, Mr. Chairman.
Commissioner O'Rielly, welcome back to the Committee. We
look forward to confirming you to another term of the FCC.
As we have discussed before in this committee in the past,
mid-band spectrum is crucial to 5G deployment. My question is
how important is it that the FCC meet its planned auction in
December to make C band spectrum available for commercial use?
Mr. O'Rielly. I think it is critical. It is the only band
identified that will make such a block available for 5G
services in mid-band. The 280 megahertz is critically needed.
The CBRS spectrum, which we are going to auction off in, give
or take, 6 weeks, is not comparable because of some of the
power limits and other things to it. This is the only band we
have in the pipeline that is ready to go, and anything that
delays that in my opinion would be extremely harmful.
Senator Thune. I agree, and I hope you guys can expedite
that process.
The coronavirus pandemic has highlighted the need for
reliable broadband networks, particularly in the most rural
areas of the country. If nothing else, what this pandemic has
taught us is how important the investments we make in that
infrastructure--how much they pay off particularly at a time
like this.
Would you support setting aside a portion of the auction
proceeds for the build-out of broadband networks in unserved
areas?
Mr. O'Rielly. I appreciate anytime Congress dedicates
additional funding for this purpose. This idea has been out
there for a little bit and I think it is very favorable.
The only caveat I would say is sometimes our spectrum
auctions can be a little--we have some ups and downs in terms
of when we hold our auctions. So we can flush this year with
some auctions held, but then we have a dearth. When I got there
in 2013, it had been awhile. So it is a little bit
unpredictable, and maybe there is a way to figure out how to
resolve that issue.
But in terms of additional funding for building out
broadband services to the millions of Americans who need it,
absolutely.
Senator Thune. Mr. Szabat, I have consistently asked the
Department to thoroughly consider comments from rural states to
ensure that these regions are adequately represented in the
final national multimodal freight network. Can you provide an
update on the Department's efforts to finalize the national
multimodal freight network, specifically the evaluation of
comments from states?
Mr. Szabat. Senator, I can, and thank you for your interest
in this issue.
So we got through a big hurdle at the end of last summer
when finally we received all 51 of the state plans, which were
a precursor before we went out for public comment. Those
comments are now in, and the Department is in the process of
evaluating and assessing and responding to each of those
comments. And we are confident that we will, in fact, have the
plan out this year.
Senator Thune. Good.
Another question for you. The Department of Transportation
has already made important strides toward safely testing and
deploying automated vehicles, including granting exemption
petitions and working with other Federal agencies to develop
the AV 4.0 guidance document.
Could you speak more to the department's current efforts to
safely test and deploy automated vehicles, particularly the
testing partnership announced by NHTSA yesterday?
Mr. Szabat. Yes, Senator.
So as I said in my opening statement, safety, both for
drivers and pedestrians, remains the Department's number one
priority. The automated driving systems offer significant
safety enhancement opportunities.
You mentioned AV 4.0. We did. We rolled that out in
January. This is consistent with our governmentwide approach
for AV technologies that we want to support U.S. leadership in
AV technology research, deployment, and integration. So this
follows the release of our 2018 AV 3.0, which establishes
voluntary guidance and outlines our multimodal approach toward
tackling these issues.
And also, as you have mentioned, Senator, yesterday we
rolled out the automatic vehicle transparency and engagements
for safe testing, which is a mouthful, so we call it AV TEST.
And this, again, is a voluntary, non-regulatory partnership to
provide an online public-facing platform for sharing automated
systems information. So eight states and nine companies are
participating in this initiative, including some of the largest
automotive companies and some of the most innovative companies
that are working in this space.
Senator Thune. Well, and I thank you for the work you are
doing. We had hoped, I think as you know, to have legislative
direction originating in this committee, working with other
committees and through Congress, that would help advance the
cause of automated vehicles. But it is, as always, much harder
to thread that needle than it should be. But I am pleased that
you and your team are moving forward with that because it is
critically important. It is a technology that I think will
offer enormous benefits to people across this country, and we
want to make sure that it proceeds in a safe way.
I guess I am out of time, Mr. Chairman. I will submit maybe
another one for the record.
The Chairman [presiding]. Thank you very much, Senator
Thune.
Senator Tester.
STATEMENT OF HON. JON TESTER,
U.S. SENATOR FROM MONTANA
Senator Tester. Thank you, Mr. Chairman, and thank you,
Ranking Member Cantwell.
I am going to start with you, Dr. Beck.
The Chairman. Senator Tester, could you move just a little
closer to the microphone?
Senator Tester. OK. I can holler a little louder.
I will start with you, Dr. Beck.
Asbestos is a known carcinogen and it was one of the
drivers behind TSCA. And quite frankly, the people of Libby,
Montana know just how dangerous asbestos is and what kind of
legacy it can leave behind.
Can you shed some light as to why the EPA has not completed
its evaluation yet of asbestos?
Dr. Beck. Senator, thank you for that question.
When the Lautenberg Act was passed, the EPA had to
prioritize 10 chemicals that would move first through the
process. Asbestos was one of those chemistries.
EPA has met all the deadlines so far and has released a
draft risk evaluation for asbestos. My understanding is that it
has undergone peer review. I think that was last week, and I
believe EPA intends to finalize that risk evaluation by the end
of the year.
Senator Tester. OK. So, you know, it has been 4 years I
think since we passed--I mean, Frank has been dead a long time,
quite frankly. So it has been a number of years since we passed
it. It takes that long to do a review on a known carcinogen?
Dr. Beck. The Lautenberg amendments required that EPA do
the robust risk evaluation before taking risk management
action, and they gave us very rigorous deadlines considering
the complexity of the science and the extent of the evaluation
that EPA is conducting.
But I will say that EPA has also taken other action under
this administration to strengthen protections on asbestos. Last
year, EPA finalized a significant new use rule which
essentially blocks new uses of asbestos that had not been
banned in 1989. So the agency is trying to move aggressively.
Senator Tester. Let me ask you this. Is asbestos banned
today?
Dr. Beck. I am sorry. I could not hear your question. Would
you mind repeating it?
Senator Tester. Is asbestos banned today?
The Chairman. He is asking if asbestos is banned today?
Senator Tester. Thank you.
Dr. Beck. Certain uses of asbestos are banned today, but in
1989 when the ban was passed, there were ongoing uses.
Senator Tester. But stop.
Dr. Beck. Those ongoing uses are what EPA is evaluating
now.
Senator Tester. Ma'am, just for a second. In 1989, they
were supposed to evaluate on basic cost. The TSCA that we
passed that Lautenberg pushed out and that Udall had such a big
role on was supposed to deal with evaluating from health and
safety standpoints. So the question is, four years later, if my
math is right--and it could be off six months--is asbestos
banned today?
Dr. Beck. There are still existing uses of asbestos today,
and EPA is working aggressively under the Lautenberg
requirements to conduct the risk evaluation that are required.
Senator Tester. I would say this. I do not know what your
definition of ``aggressive'' is, but with a known carcinogen
such as asbestos is, it would appear to me that it has not been
very aggressive from my perspective.
Dr. Beck, you were given a lot of opportunities, as I have
been watching this entire hearing, to answer questions when
people asked you direct questions. Senator Cantwell did on a
chemical that causes birth defects. I listened to your opening
statement and I listened to it very carefully because you
talked about your whole career has been advancing public health
and safety. You talked about the myriad of consumer risks that
are out there. You talked about science informing policy. You
talked about science as a pillar of good regulation.
I am going to tell you I have studied your record, and it
does not bear out what you said in your opening statement
unfortunately. And what is curious to me is not only why anyone
on this committee would vote for your confirmation, but why you
would want the job as Chairman of the Consumer Product Safety
Commission when your career does not bear out anything about
safety for consumers. And the truth is you could get a great
job with a corporation doing what you have done your whole
career, which is protecting those corporations.
I have one last question. And, by the way, O'Rielly, you
get off easy this time because I will put some in the record
for you. This is for Mary Toman.
Mary, my question deals with the 2020 Census and COVID-19.
How do you plan to overcome those challenges that COVID-19 has
presented for an accurate Census, particularly in Indian
Country, particularly in the areas that are impacted by
poverty?
Ms. Toman. Thank you, Senator Tester, for this very
important question.
As I said in my opening statement, that is my first
priority to count everywhere everyone. And I know that this is
going to be very difficult with COVID in certain areas that you
have just discussed. When I had some meetings last week with
some staff, they asked me what the first thing I would do in
this position. I said the first thing I would do is to go to
people of consensus and say what can we do to make sure more
people are counted. That is my first priority and my second
priority and my third priority.
There have got to be more creative ways that we can always
think about if we all put our heads together. I also would look
forward to talking to your staff and staff for any states that
face these issues because if there are community organizations
that we can work with to learn from and work with immediately,
we would very much like to work with you if you think that
anything is being missed. This is a very, very serious
question, very, very important.
Senator Tester. I am way over time. I just want to say that
I never heard the plan. And so if you can get that to me in
writing, I would really appreciate it. Either my staff or I
would be more than happy to talk with you about what needs to
be done from our perspective. But we really need to have a plan
or this thing is going to be a fiasco.
Thank you.
The Chairman. Thank you, Senator Tester.
Senator Rosen.
STATEMENT OF HON. JACKY ROSEN,
U.S. SENATOR FROM NEVADA
Senator Rosen. Can everyone hear me? Yes.
Thank you, Ranking Member Cantwell, of course, to our
nominees here today.
I want to talk about consumer confidence in air travel. So,
Mr. Szabat, I am going to direct my questions to you because in
Nevada, our economy depends on travel and tourism for motels,
casinos, restaurants on the Las Vegas strip to outdoor
recreation businesses near Lake Tahoe and everywhere in
between. As a state where travel and tourism supports one in
every three jobs, is $20 billion in wages and salaries
annually, and generates $75 billion in annual economic output,
Nevada now, unfortunately, has the highest unemployment rate in
the nation, 28 percent, as a result of COVID-related slowdown
in travel.
So the pandemic has been especially challenging for our
aviation industry. In 2019, Las Vegas McCarran Airport saw over
50 million passengers, and in the wake of the pandemic,
passenger totals have dropped precipitously down to about only
150,000 people in April, a 96.4 percent drop from last year.
It is clear that reinstilling confidence in air travel,
that it is safe, is going to be key to bringing back the
industries that support Nevada. We have to bring back travel
and tourism to revive our economy.
So, Mr. Szabat, in your current position as Assistant
Secretary for Aviation and International Affairs, you are very
familiar with the devastating impact COVID-19 has had on
aviation. So if you are confirmed as Under Secretary, you would
be responsible for developing policies across all modes of
transportation, including aviation, and I have to imagine that
mitigating impacts of COVID-19, well, if it is not, it should
be a top priority.
So let me ask you this. Is the Department working closely
with the Centers for Disease Control and Prevention on science-
based steps that you can take to protect the health of
passengers and employees at the airports and in the air? And
how else might these agencies work together to collaborate to
protect public health as our travelers venture out again? They
are not going to go out if they do not have confidence.
Mr. Szabat. Senator, thank you for the question.
And this is, indeed, an issue of our time. You are exactly
correct. If we are going to reinstall a sense of confidence in
the public for flying, the very first thing that we have to do
is to demonstrate that it is safe to fly, not to make claims
but to actually show that.
But to your specific question, yes. We are working very
closely with the CDC and with the other public health agencies
in the administration to develop the guidelines and
requirements for the air carriers, for the airports, for the
traveling public, and also in several levels to come up with
common international standards for the resumption of
international travel between the United States and other
countries.
Senator Rosen. Well, thank you.
I am going to also ask you, if you are confirmed, what
other policies, what ideas do you have, what might you
recommend based on the advice that you have received from
medical and transportation efforts, particularly because many
COVID-19 patients are asymptomatic. So what would you do in
that regard? I think people are worried about the asymptomatic
carriers.
Mr. Szabat. Senator, again a great question.
The first and foremost thing in the transportation sphere
is wherever you cannot social distance, people should be
wearing face coverings. Secretary Chao has kind of made this a
tenet of what we are doing in the Department in our discussions
with other Federal agencies and also in our public-facing
comments as well.
Just yesterday, you saw the association covering the
largest air carriers in the United States carrying the bulk of
the passengers. They have all agreed that they will set a
common industry standard to require all passengers to wear face
coverings. We encourage that. We encourage all other air
carriers to follow that. And we will have the back of the air
carriers, and, of course, their frontline employees, the flight
attendants, will deliver that message to the passengers and are
delivering that message both for the safety of the passengers
and also for the safety of the crew.
Senator Rosen. Thank you. I appreciate that.
I think I am just about done with my time, so I will yield
back. Thank you.
The Chairman. Thank you very much, Senator Rosen.
Let me check with staff just a moment.
[Pause.]
The Chairman. Commissioner O'Rielly, this committee on a
bipartisan basis sent to the Senate and to the House and to the
President, the BROADBAND DATA Act. It has been signed into law
by President Trump. This law requires the FCC to collect more
precise, granular data from broadband providers so it can
develop more accurate broadband availability maps. Those maps
are, of course, not developed yet since the law is so new on
the statute. But the FCC's notice of proposed rulemaking for
the new 5G Fund raises the possibility that it may begin
distributing money to support the 5G deployment before the new
maps are completed.
Commissioner O'Rielly, if confirmed, will you commit not to
support moving forward with the 5G Fund until the FCC completes
the new maps as required by statute?
Mr. O'Rielly. I looked at the statute closely. I have
serious concerns and have raised them regarding moving forward
without new maps and would certainly want to listen to this
committee and its views on the matter. And I certainly would be
hesitant to move forward in any capacity without addressing the
issue of mapping.
The Chairman. But you stop short of an absolute commitment?
Mr. O'Rielly. Well, if you are saying that that was what
your position is, since you were an author, then I would agree
with you.
The Chairman. Well, OK.
Mr. O'Rielly. Then yes.
The Chairman. All right. So we have moved from serious
reservations to you would commit not to support moving forward
until we get the maps.
Mr. O'Rielly. Yes.
The Chairman. And when do you think we are going to be able
to see those maps? When do you think this might be completed?
And is there anything this committee or this Congress can do to
assist that, Mr. Commissioner?
Mr. O'Rielly. It is my understanding the Chairman has been
advocating for additional funding for the issue, some amount of
money that would help implement the mapping program needed.
That would certainly be supportive from my viewpoint. I think
we certainly could do some things in the meantime. We have
staff that could certainly start work. So we should not be at
zero right now. But I have to defer to the Chairman exactly
where we are on the bigger picture.
The Chairman. OK. Well, it is a concern. I wish the
Congress could move instantaneously. But we are fulfilling the
Founders' desires for lawmaking to be slow and cumbersome, and
we got it done and got it signed by the President. So I guess
it is unfair for us having taken as long as the Congress takes
to want to speed up the implementation. But we really do think
the money should be distributed according to accurate maps, and
that is why it passed on a bipartisan basis.
Let us talk about RDOF, Rural Digital Opportunity Fund,
auction. Phase one of the auction is scheduled for October.
There are some folks around the country, including in my home
state of Mississippi, who would certainly like to move that
auction earlier than October. We have received information from
Chairman Pai that as much as we might like to do that, it is
simply unworkable to do so.
Why is that the case, Commissioner O'Rielly?
Mr. O'Rielly. I do not know what the Chairman provided you,
but I would argue that we have difficulty running--I have made
this case in this committee before. We cannot run two auctions
at the same time. And so we have a full summer and fall already
scheduled, CBRS for July. The RDOF is in October, and then we
have C band for December. And so they are planned out, and
there is a timing in terms of the short forms and the long
forms and everything that goes into schedulings.
I would say part of the difficulty with--and I appreciate
that people would like to bypass the timing that we are talking
about and expedite things. But what it does do is put some of
these companies that would like to do this at the forefront and
say we would like our money up front, and in doing so, they
bypass the benefits of the auction process and the efficiencies
that we get from that.
And then two, it potentially allows those entities to go
into areas where there is already an existing competitor. And
then to me overbuilding would be incredibly problematic given
that we have such finite resources in this program.
The Chairman. Does an important part of this RDOF begin
next month, July 2020?
Mr. O'Rielly. There are pieces. We just did one in our last
meeting. There are pieces coming up in terms of the--next week
I think is the timing of some of the bidding--the final
payments or payments are due--excuse me--next week. And so we
will see where that stands.
The Chairman. If I could snap my fingers and pass a law
today trying to speed up the auction, would there be notice and
comment requirements that we would still have to fulfill?
Mr. O'Rielly. Yes, and there are just so many steps to our
auction process. If you want to throw the auction process away,
which I would not recommend at all, that can help do some of
those things. And that is the thing. There are so many things
that we go through that are intentionally beneficial to our
programs that need to take time. And getting to October--and
the Chairman rushed really hard to get the timing right on
this. So I appreciate what he has done.
Could it be expedited with the right incentives? Maybe you
could pick up some time here, but I do not know. It might be
more to expedite on the building side versus in terms of the
auction side.
The Chairman. OK. Now you have really--I think you have hit
on something there. Senator Capito has been patient, but I am
going to come back to this after she and other members who have
not been recognized take their round. But this point I will
reserve for round three and recognize my friend from West
Virginia.
STATEMENT OF HON. SHELLEY MOORE CAPITO,
U.S. SENATOR FROM WEST VIRGINIA
Senator Capito. Thank you, Mr. Chairman, and thank all of
you for being here today and for your willingness to serve.
Dr. Beck, we had a telephone conversation last week, and I
found I did not get the clarity really in your answers that I
was hoping we could get to. So I wanted to talk about your role
in possible bureaucratic delays when it comes to PFAS. We
talked about that. As I mentioned to you, this is a priority to
me both out of respect for my state but also because we face
challenges both in our industry but also in our military
installations and for our future generations.
So I had received assurances--and I mentioned this to you--
from then-EPA Administrator Scott Pruitt and then acting and
now Administrator Andrew Wheeler that EPA would be advancing
its PFAS action plan, and that would include an MCL, or maximum
containment level, for PFAS in drinking water. The day of Mr.
Wheeler's confirmation hearing, a politically timed press
report stated that EPA and the administration actually had no
plans to regulate PFAS in drinking water, which came as quite a
shock to me.
The EPA has belatedly advanced its PFAS action plan and the
regulatory process to examine MCL for PFOA and PFAS in no small
part due to my and others' insistence that we get this done.
But valuable time has been lost, almost a year, due to this
interagency dithering. At every turn, your name has been
implicated in the media in the slow walking of the Federal
response.
So in the interest of time--and I know you have been asked
some yes/no questions to this point. I have not been able to
see the whole hearing, but I did see part of this. I would like
to ask you some yes or no questions to outline your involvement
in this area.
So, yes or no. During your time at the EPA's Office of
Chemical Safety, were you consulted on the EPA's draft PFAS
action plan?
Dr. Beck. Yes, but the Office of Chemical Safety and
Pollution Prevention had a section in the PFAS action plan.
Senator Capito. OK. So was it your view then that PFAS
should be examined for potential regulation when you were in
that office?
Dr. Beck. Yes----
Senator Capito. Yes.
Dr. Beck.--chemistry across many offices.
Senator Capito. OK. So in that capacity, were you consulted
on the promulgation of an MCL for PFAS, including PFOA and
PFAS?
Dr. Beck. No. That was the Office of Water. That was not
something from the Office of Chemical Safety and Pollution
Prevention.
Senator Capito. So those are two separate offices that were
dealing with the same substance, but Water was dealing with
the----
Dr. Beck. MCL.
Senator Capito.--MCL.
Once you moved over to the NEC, did you handle oversight of
interagency coordination on any PFAS policies? Yes or no.
Dr. Beck. No, I did not handle oversight. I assisted with
some coordination of information across agencies.
Senator Capito. So did you work with the PFAS action plan
in that capacity?
Dr. Beck. Only in the sense that if EPA had information
they wanted to share with the interagency, we facilitated those
discussions.
Senator Capito. And did that include setting an MCL for
drinking water out of the Office of Water? Are you familiar
with that?
Dr. Beck. Yes. The MCL, since it is a regulatory
determination, was handled by OMB in the Office of OIRA. So I
did not coordinate that.
Senator Capito. So basically kind of what you are telling
me on the answers to the two questions on MCL is you have not
had any involvement on setting an MCL for PFAS at all?
Dr. Beck. I am not a decisionmaker in the Office of Water,
and that is where those decisions are being made.
Senator Capito. Did you advocate for slowing or halting the
interagency review of the EPA's action plan in your role at the
NEC?
Dr. Beck. No.
Senator Capito. Did you oppose setting an MCL for PFAS
while at the NEC?
Dr. Beck. I was not a decisionmaker at the NEC. So that was
not something I commented on.
Senator Capito. So if you have had no role in this slow
policy response, which has been your response to this point,
why do you think your name is continually implicated in this
slowing of the regulatory agenda even well before your
consideration before this nomination became public?
Dr. Beck. I could only speculate. My speculation is that
because I spent some time in industry, in addition to my time
in government, they want to--I do not know. I think there is a
concern that I spent time in industry so they want to say that
industry is holding things up. But in my case, that has not
been the case because I am not, for instance, a decisionmaker
on the MCL. I am not a decision-maker on the Super Fund
standard.
Senator Capito. But you were in a position at your Office
of Chemical Safety to, obviously, have PFAS directly in your
portfolio. Correct?
Dr. Beck. Through the new chemical program, yes.
Senator Capito. And what was your involvement in that?
Dr. Beck. Making sure that the new chemicals program runs
effectively to review and evaluate new chemicals before they
come to the market.
Senator Capito. So were you reviewing at that point the
legacy chemicals of these original chemicals?
Dr. Beck. So currently the new chemicals program reviews
new chemicals when they come in. So the legacy PFAS are not
part of the new chemicals review.
Senator Capito. They are not.
Dr. Beck. I am sorry. It is confusing.
Senator Capito. Yes, that is confusing.
Dr. Beck. There is a new chemicals program and an existing
chemicals program.
Senator Capito. So if you have a new chemical that comes
from a legacy chemical that possibly caused damage, which we
know these have, they would come in under the existing chemical
protocol?
Dr. Beck. Yes, because it would be a breakdown product of
an existing chemical. Yes.
Senator Capito. All right. Thank you.
The Chairman. Thank you, Senator Capito.
Senator Sullivan.
STATEMENT OF HON. DAN SULLIVAN,
U.S. SENATOR FROM ALASKA
Senator Sullivan. Thank you, Mr. Chairman.
And there are so many nominees who have so many important
issues before them that deal with my state that I could take 50
minutes here, but I am going to try and be succinct, which is
not one of my strong suits, but I will try anyway.
Mr. Walsh, I really appreciated the issues that you and I
talked about yesterday and just want to get your commitment on
the record here. I pretty much got it yesterday, but I just
want to do it for the official record. The NOAA hiring issue,
the migration of people, scientists who work for NOAA, a great
agency, but who have Alaska-oriented missions almost
exclusively and are in other states. Can you work with me on
that issue and also the issue of 100 vacancies that we have in
Alaska and we need to get those filled soon?
Mr. Walsh. Yes. Thank you, Senator. I can make that
commitment. I look forward to working with you and your staff
on those issues.
Senator Sullivan. Excellent.
And then the fish surveys, as we talked about yesterday, a
huge issue in my state. I am very disappointed that--you know,
look, we all got to be careful with regard to the pandemic and
COVID-19, but it cannot be used by Federal agencies to say we
are not going to do the work. The surveys are super important
to my state. I think they are important to most Americans. Can
I get your commitment to work with me on making sure that we
have robust surveys for our fishing fleet next year?
Mr. Walsh. Yes, Senator. I appreciated our conversation
yesterday. I have already begun making some inquiries, and I
look forward to getting back to you in the near term.
Senator Sullivan. Excellent. Thank you.
And then the home-porting of the NOAA vessel Fairweather in
Ketchikan. I think my state, my legislature, the people of
Alaska have bent over backward on that one. We would like to
close the deal on that finally, working together with NOAA and
contributing our own resources as a state. Can I get your
commitment to work with me on that one as well?
Mr. Walsh. Yes, Senator. I look forward to working with
you.
Senator Sullivan. And then finally, the very illegal
Russian embargo of seafood for not just Alaskan exporters but
all Americans. The Russians have embargoed any seafood exports
from America into Russia since 2014, and we let their seafood
in and it is dominating. It is ridiculous. We got to change it.
As the President has been focused on promoting and Secretary
Ross has been promoting American seafood exports, can I get
your commitment to work with my office and this committee to
take a hard look at this very unfair, non-reciprocal approach
that is really hurting the fishermen of the great State of
Alaska, but really Mississippi, everywhere?
Mr. Walsh. Yes, Senator.
Senator Sullivan. Great. Thank you. I really appreciate
that. I look forward to strongly supporting your nomination.
Mr. Szabat, I appreciated our discussion on the phone as
well. I am also a strong supporter of yours. I do want to get
your commitment again in this hearing to work with my office
and this committee on the issue of Alaska aviation safety and
maybe even looking at the establishment of a safety office or
an Alaska FAA Czar. You saw the NTSB report where, once again,
it says that the fatality rates in the great State of Alaska
are much too high and we need a strategy with the FAA to
address that.
Can I get your commitment to work with this committee, the
FAA, and the Department of Transportation on addressing, which
is really a matter of life and death issue for my state?
Mr. Szabat. Senator, yes, you have my commitment.
Senator Sullivan. Great. I appreciate that very much and I
look forward to working with you not only on that but on roads.
You know, every now and then, you have one of my Senate
colleagues, unfortunately usually from the other side of the
aisle, who cares all about roads in my state and essentially
wants to stop building roads in my state because radical
extreme environmental groups do not like roads in Alaska. It is
ridiculous. I wish my Senate colleague could focus more on
Massachusetts and New Mexico and other places like that, take
care of their own states, not my state.
But I need you to help me build roads. Can you help me
build roads in the great State of Alaska? Every other state
gets to build roads, but my state, for some reason, does not.
You got radical guys on the other side saying do not build
roads in Alaska. Can you help my state build roads?
Mr. Szabat. Senator, yes, we can help your state build
roads.
Senator Sullivan. A strong commitment on that, please.
Mr. Szabat. Yes, Senator.
Senator Sullivan. Thanks.
And then finally, Mr. O'Rielly, I am very strongly
supportive of your re-nomination to be the Commissioner. And
again, I appreciated our discussion yesterday.
I would like to just get your honest assessment of what has
happened, unfortunately, with the current Chairman of the FCC
where they clawed back, no transparency, opaqueness with regard
to the Universal Services Fund, telehealth programs in my
state. Our state was the state that invented that. And yet, we
have a Chairman of the FCC that seems hell-bent on collapsing
that system in Alaska.
Can I get your views on whether you think that has been
fair, whether you think that has been transparent, whether you
think that has actually helped the people of my state, but also
ways in which we can improve that going forward perhaps with a
new Chairman?
Mr. O'Rielly. So you got a lot there about my good friend,
the Chairman.
But to your point, I was not exactly fully supportive of
the actions the Commission took. I did not have all the----
Senator Sullivan. Do you think they were fair? Do you think
they were transparent? Do you think the rules are even still
understood by industry?
Mr. O'Rielly. No.
Senator Sullivan. It is unbelievable.
Mr. O'Rielly. Yes.
Senator Sullivan. Unbelievable. We have two years going,
the Chairman made commitments to me on expediting appellate
reviews. That has been ignored. They have made stuff up as they
have gone along. It is really harming not just the people who
deliver but some of the most needy people in America from some
of the most, you know, economically disadvantaged communities
in the country, and they do not seem to get it. But I would
like you to comment, what we can do about it.
Mr. O'Rielly. Well, I have seen personally the benefits of
telehealth in your state, and they should be the model. I have
written a blog about this particular topic. It should be the
model for the rest of the United States and how efficiently
they were able to offer the services. I think there should be
an opportunity to resolve any past disputes with the providers
in Alaska.
Senator Sullivan. In an expeditious manner. Correct?
Mr. O'Rielly. Absolutely.
Senator Sullivan. Not two and a half years of opaqueness
and rope-a-doping my state.
Mr. O'Rielly. Those words are yours, not mine, but I
understand the point you are making. It should be done
expeditiously.
Senator Sullivan. Well, I look forward to working with you
and all of you.
And thank you very much, Mr. Chairman.
The Chairman. Thank you.
Mr. O'Rielly, those questions were coming so rapid fire
from my friend from Alaska. You may want to supplement those on
the record.
Senator Sullivan. We welcome that too.
The Chairman. Thank you so much, Senator.
Let us get back to where I think you were getting to on the
RDOF fund, the Rural Digital Opportunity Fund.
Mr. O'Rielly. And can I correct one thing I said before? I
apologize to the timing. I said we are getting close to a
deadline. I have the CBRS deadline of June 19 on my head. The
short form for RDOF phase one is July 1. It opens up the short
window, and that runs two weeks to July 15. So I apologize
confusing the two issues. We are two weeks away. The short form
does have financial information.
The Chairman. So the process with regard to the forms
really begins next month.
Mr. O'Rielly. July 1 we will open up the window. Right.
The Chairman. OK. So I think the point you were trying to
get to, though, Mr. Commissioner, is that it is not so much
when the auction is but when the deployment of high-speed fixed
broadband networks in rural America occurs. And so I am going
to pick up where we left off there.
Once the auction is done--this is phase one of the auction,
and there are other phases. But I was disappointed to learn
recently how time-consuming the buildout of the actual networks
would be once the auction is over. Can you discuss that?
Mr. O'Rielly. Well, the buildouts--you know, we have
milestones in our rules in terms of how much and how quickly
you are to build out to be able to continue to receive funding
or if there are penalty obligations. We have tried to match
them up with what we think that a provider can actually do.
There are certainly some that are able to move faster and get
their buildout done quicker.
The Chairman. OK. Well, just give us an idea, though,
Commissioner O?Rielly, about the time-frame because I do not
want to raise the expectations of the consumer, raise the
expectations of the public.
Mr. O'Rielly. The program, as I remember--it is a 6-year
total buildout. You have time to get to all the areas within
the winning portions in 6 years. You have milestones to meet in
terms of percentages along the way to get there. It is a 10-
year funding. I will be corrected, I am sure, by my good staff,
but I believe it is a 6-year buildout. There may be a mechanism
and a way to expedite some of that buildout time, and that
would be something I would be happy to work with you on.
The Chairman. You know, I think there is, but I think you
have answered correctly under what we have now and how much we
have now. I think members of the public are going to be
disappointed at the 10-year period and the 6-year buildout.
Mr. O'Rielly. Let me give you an example of an issue. So I
was reading--Mississippi--the neighbor gentleman, Mr. Prissley,
was talking about a pilot program from the co-op in Mississippi
that they are going to try. And then his point was that if they
found that it was beneficial, their buildout would be 4 to 6
years to get fiber. So it does take a while physically to get
out the broadband to consumers, but there may be a way to
shorten that window.
The Chairman. OK. Well, I think there is.
Mr. O'Rielly. OK.
The Chairman. And I may have a proposal. I think this is
going to require more resources. But frankly, this is the
important aspect of it. The auction in October, the process of
which has already sort of begun, is apparently what we are
saddled with. But once the phase one auction occurs, I think we
can help you with some extra funds and some incentive from the
administration on a bipartisan basis to move this ahead. So I
hope you will work with us there and the rest of the Commission
on a bipartisan basis. I think you will be interested in some
ideas that we have.
Go ahead and say what you would like to say about that, and
then we will move on to one other topic.
Mr. O'Rielly. I would say I certainly commit to you.
Absolutely.
The Chairman. Good, good, because we need to move it faster
once the auction is over. The build-out is the key.
But Senator Cantwell I think realized she was about to get
into a lengthy process on asking about Ligado, and so I think
that is probably worth talking about. And perhaps Mr. Szabat
had made a comment, but Commissioner O'Rielly and Mr. Walsh had
not. So I am going to let both of you comment on this, and this
may be an opportunity to do what we have had a frustration
about in other forums and that is hear both sides sitting at
the same table.
Bands like 24 gigahertz and spectrum assigned to Ligado
have generated high profile disputes within the administration
at the highest levels, you know, cabinet secretaries on
different sides of this issue.
In order to achieve widespread 5G deployment, the FCC will
likely have to continue to seek ways to increase spectrum
efficiency and reallocate spectrum to federal and non-federal
4spectrum uses.
So let us begin with you, Commissioner O'Rielly. Talk about
what you have done on a 5 to 0 vote with regard to Ligado. And
what assurance can you give us that this is not going to
interfere with GPS? And that those entities that have had to
change their equipment and undergo an expenditure there will be
made whole by the amended use of the spectrum by Ligado.
Mr. O'Rielly. Well, I appreciate the views of my good
friend, Mr. Szabat. We actually--the Commission--have to
balance all those points, which I think he said. We have to
balance all of the record and all of the different concerns. We
do not advocate on behalf of one equity.
And I think what the Commission did in Ligado--and though I
was not the lead voice or the lead supporter of the issue--I
think the Commission put forward a license modification that is
well defended by the record that is presented of a 17-year
legal battle. And I think--I believe by reading the document,
it provides sufficient protections on the front end, in the
middle, and at the end to address the concerns that have been
raised.
I was concerned about the hearing that I watched on this
issue in a different committee when they started talking about
what bands or what protections were needed for what pieces, and
they were far outside of the GPS licenses where they thought
the protection was needed. And that is a concern for me because
that is not what the licenses provide for. And so what Ligado
was trying to do was defended by the record and supported by
the information that we made a vote on. We have difficulty
finding commonality on a lot of issues, but here we were able
to do so.
The Chairman. OK. Is this going to interfere with GPS or
not?
Mr. O'Rielly. I do not believe, based on the
recommendations that have been provided in the material that it
will lead to interference with GPS to the degree that it would
cause a harmful interference. I do think that the mitigation
tools that we put in the item will be helpful if absolutely
necessary. So I think it is a situation where we addressed it
up front and in the middle and at the end. And so the end has a
number of mechanisms, including Ligado doing street drives to
make sure, to do sensing to see if it causes interference.
The Chairman. And at that point then, would we know who
would be entitled to compensation from Ligado for any
expenditures that would need to be made?
Mr. O'Rielly. The item does go through that issue in terms
of who would be eligible, and we would have to see exactly
who--if it were to come to case, which I hope not to be the
case--if it were to come to that case, we would have to see
who--for lack of a better word, whose ox is being gored. I do
not think that is going to be a circumstance that is going to
happen, but we would have to see when the information and data
is presented.
The Chairman. Mr. Walsh, would you like to comment on this
issue?
Mr. Walsh. Certainly. Our NTIA has long expressed the
widely held view across the Executive Branch that Ligado's
proposed terrestrial operations in historically satellite
spectrum bands pose an unacceptable risk to the critical GPS
service that is relied upon for our national defense, homeland
security, aviation safety, public safety, and economic growth.
NTIA in May did file two petitions with the FCC requesting
a stay and reconsideration of the decision to conditionally
grant Ligado's applications. NTIA's positions at a high level
contend on behalf of the Executive Branch that Ligado's
prospective operations threaten to harm Federal Government
users of GPS, along with a variety of other public and private
stakeholders.
The Chairman. How will that harm manifest itself?
Mr. Walsh. I am sorry. I missed that, Senator.
The Chairman. How will the harm occur? What will the harm
be?
Mr. Walsh. Interference, Senator.
The Chairman. OK.
Well, let me ask you both. I am sitting here in this room
today and I hear the air conditioning whirring a little bit. I
think all of you can do that. I am told that is interference,
but according to the FCC, we are still able to have this
hearing and it is not harmful interference. Mr. Walsh, am I
getting somewhere in the distinction between interference and
harmful interference? I will let you go first and then the
Commissioner after that.
Mr. Walsh. Certainly, Senator, there is a distinction
between interference and harmful interference. It is NTIA's--on
behalf of the Executive Branch, NTIA has filed their petition
stating that there is harmful interference.
The Chairman. OK. So in practical terms so the listening
public can know what we are talking about, what would that be?
Who would be a user and what would be the harmful interference,
and how would that affect the user and the American public?
Mr. Walsh. Senator, most of that is set forth in the
petition. I would be happy to take that question for the record
and give you a detailed, technical answer.
The Chairman. Oh, dear. OK. And I realize I did not notice
both of you that we would get into a back and forth on that.
Commissioner O'Rielly, what response would you have to
that?
Mr. O'Rielly. Two parts.
One, you are absolutely right on the harmful interference.
Two, I am not sure that my fellow colleague at the table is
right to say that NTIA has been uniformly opposed to the
situation. My conversations with multiple people suggest that
NTIA has had a different viewpoint over the time period, and it
was not until the dismissal of an Administrator that the
position was as it is now.
But to your point, I would say if harmful interference is
demonstrated, then the item has a requirement actually a kill
switch, that the Ligado system be turned off.
The Chairman. How would that occur? Let us let the public
know what we are talking about. This may be the first time some
of our listeners have even heard this.
Mr. O'Rielly. Sure.
The Chairman. You have got somebody using GPS and it is a
very important part of our economy.
Mr. O'Rielly. And it is likely the device itself will
likely either have data missing, you know, not receptive, or
the information will be inaccurate.
The Chairman. At what point will we know this?
Mr. O'Rielly. We should know--you know, assuming that
Ligado actually does develop into something, which is something
for the markets to determine, but if it does develop into what
their plans say they would like to do, we should know fairly
soon the practical implications. We believe that the data
represented and presented does not lead to that situation, but
when it gets to sort of the real-world circumstances, we will
know pretty quickly given all of the user community who has
been so outraged by this issue. There is not one of them that
is not going to put their hands up and say I have got a
problem.
The Chairman. Would this be done in a test run at the
outset there, or could someone be using GPS and be in a life-
threatening situation and the harmful interference occur at
that point and risk life or limb?
Mr. O'Rielly. Well, I think coming operational will be part
of the last phase, which I talked about, all of the different
mitigation tools that we have, including the kill switch.
The Chairman. So that is part of the rollout before it is
ever----
Mr. O'Rielly. The rollout is going to be the turning on the
system, and you will know. You should know fairly quickly
whether there is an ongoing issue.
The Chairman. Well, I am going to let all three of you--OK,
Mr. Szabat, do you want to weigh in? Because I was not here
when Senator Cantwell asked the question. So I will let you
respond if you would care to join in.
Mr. Szabat. Thank you, Senator Wicker.
The Chairman. And, Dr. Beck, I am going to leave you off
the hook on this one.
Dr. Beck. Thank you very much.
The Chairman. Mr. Szabat.
Mr. Szabat. Thank you, Senator, and I will try to be brief.
From our testing, we see certainly that there is harmful
interference in at least three sub-categories of GPS use: hyper
vision surveying, anything space-based, and the timing sector.
So banks, locks and dams, a whole subsector of the economy
depends on accurate timing. These things are most sensitive and
would be most interfered with most often and at the most
harmful level from Ligado's proposed deployment strategy.
At a middle level are what I call the general navigation,
you know, GPS in cars, general aviation. There would be
interference, and that may or may not be harmful interference
depending on how close they get to a transmitter, which again
by plan could be 433 meters apart, and how close and how often
they are in conjunction with these transmitters.
And then finally, there are the areas that Ligado, to their
credit, has protected in their plan. So we believe that
cellular services and certified commercial aviation services by
our testing would not receive harmful interference.
The Chairman. OK. Well, what about, though, these first
things you mentioned? What about this guard band that is part
of the unanimous proposal of the FCC? Does that not help in
those three situations that you mentioned initially?
Mr. Szabat. Senator, thank you.
We believe it helps but not enough. The challenge, as Mr.
O'Rielly has pointed out, is when GPS was deployed, it took
advantage of the adjacent quiet sector, which was used for
satellite communications. And so the most sensitive, the most
accurate GPS receivers receive signals from all over that
adjacent sector, which is now proposed to be sold to Ligado for
them to use for broadband. So even with the guard band, those--
and ironically it is the most expensive, most accurate of our
GPS systems would, we believe, not be able to operate.
The Chairman. So give me then of these first instances you
mentioned--give us an example in practical terms that even I
could understand what might happen that you are objecting to.
Mr. Szabat. So on the most sensitive side--I will just use
a common example. On the most sensitive side, you have
surveying equipment that are used by companies, by government
agencies, and in the best case, they would be jammed so you
would get no signal. In the worst case, there would be
interference. And so they would be coming back to say, you
know, this pipeline is located here or this road curve should
be built here, and instead it would be giving a false signal.
It would be off by some number of meters or hundreds of meters.
The Chairman. Now, would we be able to determine that
fairly early in the process?
Mr. Szabat. That I do not know, and I would defer back to
the engineers and technical experts.
The Chairman. Well, Commissioner O'Rielly, what about that
example? We finally got a real concrete example here, surveying
equipment.
Mr. O'Rielly. Right. If harmful interference is causing the
issues to surveying, that is what I mentioned the mitigation
techniques are intended to resolve fairly instantaneous to
turning on the system. I think the difficulty is that our
experts did not agree with the Department of Transportation's
testing methodology, and they think that they have properly set
both the power limits and the guard band to preserve the
surrounding GPS.
I think my colleague at this table anyway makes the point
that they have taken advantage of neighboring spectrum bands--
--
The Chairman. Yes. I did pick up on that.
Mr. O'Rielly.--that are not part of their license. And that
is a problem. And we are trying to address spectrum efficiency
with what is our responsibility.
The Chairman. Mr. Walsh and Mr. Szabat, is there a way to
work this out? Is there a way for the experts--as you said, Mr.
Szabat, the technical expertise--to get together and work this
out? Because we need the 5G. And I will let you go first, Mr.
Walsh. Is there a way for people of good will on both sides to
sit down and resolve this?
Mr. Walsh. I would hope so, Senator, but I will say that
the position of the Executive Branch on this, as articulated by
NTIA in its petition, was uniform. There are critical military
applications in GPS. So there is a lot to be done, but we are
always willing to work with our colleagues.
The Chairman. Mr. Szabat.
Mr. Szabat. And, Senator, I would add I am an optimist, but
I regret to say in this case I believe that physics stand
between the people of good will. I do not see a way in which
anything approaching the Ligado proposal can succeed without
interference with GPS. So in this case, again, I mentioned at
the very beginning to Senator Cantwell's question I do not envy
the position that FCC is in because at the end of the day,
there is going to be a winner or a loser. We are either going
to have more broadband at the expense of GPS, or we are going
to protect GPS at the expense of a fourth broadband system.
The Chairman. Mr. Walsh, what would the military
implications be? What would be an example?
Mr. Walsh. I would be hesitant to speak about that here at
this----
The Chairman. And, again, I have sprung this on you.
Somebody has got to wind this up. Mr. O'Rielly, it is 2 to
1. So I will give you the last word.
Mr. O'Rielly. And they are still outmatched. Right?
[Laughter.]
Mr. O'Rielly. But to your point, look it, I cannot commit
the Commission's resources. I am merely a Commissioner. But if
there is a way to resolve this issue, if necessary, then I
would think that would be advantageous. After 17 years of
working on this matter, I think the Commission came to a
reasonable outcome that is highly defensible.
I look forward to reading NTIA's petition, which I have not
done so yet. I will read the petition to see if it presents new
data or evidence that the Commission should consider as
required under our rules for a recon petition.
I would like to believe that we can move forward, and we
have done so in a very thoughtful manner. The Office of
Engineering and Technology is highly regarded at the FCC. There
are many times that I would like to turn them in a direction
and go further, and they will stop me as well. So their
recommendation on a landing spot for this item comes with heavy
weight in my opinion.
The Chairman. Well, thanks to all five of you.
And I am required by the Committee to ask one final
question. To all of our nominees--and I will need a yes or no
answer--if confirmed, will you pledge to work collaboratively
with this committee and provide thorough and timely responses
to our requests for information as we work together to address
important policy issues?
Mr. Szabat?
Mr. Szabat. Yes.
The Chairman. Commissioner O'Rielly?
Mr. O'Rielly. Yes.
The Chairman. Dr. Beck?
Dr. Beck. Yes.
The Chairman. Mr. Walsh?
Mr. Walsh. Yes.
The Chairman. And Ms. Toman?
Ms. Toman. Yes.
The Chairman. Thank you very much.
And let me consult with staff.
[Pause.]
The Chairman. Let me also state that the hearing record
will remain open for two weeks. And you three gentlemen who
have commented on Ligado may very much want to supplement your
answers. The hearing record will remain open for two weeks.
During this time, Senators are asked to submit any questions
for the record with the final submission deadline being close
of business on Tuesday, June 30, 2020. The Committee asks the
witnesses that upon your receipt of any questions for the
record, you submit your written answers to the Committee as
soon as possible, but no later than close of business on
Tuesday, July 14, 2020.
And with that and with the thanks of the entire Committee,
this hearing is adjourned.
[Whereupon, at 4:50 p.m., the hearing was adjourned.]
A P P E N D I X
Response to Written Question Submitted by Hon. Roy Blunt to
Hon. Joel Szabat
Question. Mr. Szabat, I want to bring to your attention a project
that I have long championed and a project that is incredibly important
to rural communities in Missouri. North Central Missouri is facing a
critical water shortage which would have a devastating impact on the
lives of families, farmers, and business owners in the region.
The East Locust Creek Watershed project, which has been in the
making over the last 20 years, is a joint partnership with Federal
partners, the North Central Missouri Regional Water Commission
(NCMRWC), and the Missouri Department of Natural Resources to establish
a multi-purpose reservoir with the primary purpose of providing an
abundant source of low-cost and safe water for residents in 10 rural
counties in North Central Missouri.
This project is multifaceted and encompasses several agencies at
the Federal level including the U.S. Department of Agriculture's
Natural Resources Conservation Service (NRCS) and Rural Development,
the U.S. Army Corps of Engineers, and the Department of Transportation.
Last year, the Department of Transportation awarded a $13.5 million
Better Utilizing Investments to Leverage Development (BUILD) grant for
the East Locust Creek Reservoir Project to relocate roads surrounding
the reservoir and install road safety improvements. I understand there
are ongoing interagency discussions with DOT regarding the finalization
of this BUILD grant. Can I receive a commit from you that, if
confirmed, you will work to help expedite the interagency clearance of
this critical infrastructure grant and utilize all flexibilities to
ensure that this grant gets the necessary work implemented on the
ground?
Answer. Yes.
______
Response to Written Question Submitted by Hon. Shelley Moore Capito to
Hon. Joel Szabat
Question. Emerging technologies--such as tunneling, hyperloop, and
autonomous vehicles--represent a giant leap forward for the future of
transportation in the United States. In January, I commended Secretary
Chao and the Department of Transportation (DOT) for establishing the
Non-Traditional and Emerging Transportation Technology (NETT) Council.
The NETT Council plays a critical role in providing guidance and
leadership when resolving regulatory gaps that may impede the
deployment of new technology. I believe that it is important to foster
a regulatory environment that encourages and promotes new and
innovative transportation technologies. Mr. Szabat, if confirmed, in
your role as Under Secretary of Transportation Policy do you commit to
the continuing the Non-Traditional and Emerging Transportation
Technology (NETT) Council and their work on identifying the resolving
regulatory gaps that may impede the deployment of new technology? If
confirmed, what steps do you see that are needed at DOT in order to
foster an environment that promotes innovative technologies rather than
stifling or impeding them?
Answer. Yes, I am committed to the important, continuing work of
the NETT Council. One of the most important things we can do as a
Department is to continue to listen to stakeholders on how the
Department can best serve innovators. To that effect, the Department
will establish a framework for innovators to engage with the NETT
Council and continue to explore what sorts of resources innovators may
find most helpful as they navigate the Department's authorities and
regulations.
______
Response to Written Question Submitted by Hon. Ron Johnson to
Hon. Joel Szabat
Question. Section 514 of the FY 2018 Coast Guard Authorization Act
directed the Department of Transportation to establish requirements for
a land-based, resilient, and reliable alternative timing system and to
provide Congress an implementation plan for such a system. Both efforts
were expected to be completed by June of 2019. This date recognized the
economic and national security significance of fielding a viable timing
signal in the event of a GPS disruption. We are now a year late. Can
you commit to providing these deliverables, based on the Department's
recent testing and finding, to the committee by July 31, 2020?
Answer. I whole-heartedly agree on the importance of identifying
and deploying resilient and reliable back-up position, navigation and
timing systems to protect our economic security, as well as
transportation safety, from the damage that would occur if GPS were
effectively disrupted. It will be my highest priority to move forward
with our deliverables. I hesitate to commit to a fixed date only
because it is preferable to move forward with a whole-of-government
plan, given the many equities that must be protected, rather than a
report from a single Department.
______
Response to Written Questions Submitted by Hon. Maria Cantwell to
Hon. Joel Szabat
Equity in Transportation. During the last Administration, the
Department of Transportation undertook several activities designed to
address transportation equity, including establishing the
Transportation Equity Advisory Committee to provide comprehensive and
inclusive advice to the Secretary to advance the principles of
providing transportation opportunity and access to everyone. The
Department also instituted a Local Labor Hiring Pilot Program to ensure
that infrastructure investments in minority communities resulted in job
creation within those communities. Unfortunately, this Administration
ended both of those initiatives, with the pilot program disbanded
before it could collect or analyze data to determine the program's
impact.
Question 1. What is the Department of Transportation doing to
ensure equity in transportation opportunity and access?
Answer. Transportation should be an avenue that eases social
equality and upward economic mobility, not an obstacle. It should be
accessible for all.
One of the lessons we have learned during this pandemic is that new
transportation technologies can be used to meet our most pressing
needs. We want to harness the power of this innovation to enhance
quality of life for all Americans.
Disability advocates often remark that ``technology is the great
equalizer.'' The Department has implemented accessible transportation
initiatives that aim to harness the equalizing power of technology to
improve mobility for people with disabilities. At the October 2019
Access and Mobility for All Summit, Secretary Chao announced almost $50
million in new initiatives as part of the Complete Trip Portfolio to
develop and deploy innovations in technology and further interagency
partnerships to improve mobility. This includes $3.5 million for the
Federal Transit Administration's Mobility for All Pilot Program, $40
million for the Complete Trip--ITS4US Deployment Program, and $5
million for the Inclusive Design Challenge.
We are prioritizing accessibility because 25.5 million Americans
have disabilities that make traveling outside the home difficult,
according to the 2017 National Household Travel Survey. While access to
critical services, including medical care, is always vital, the
pandemic has underscored the importance of meeting transportation
needs. It is critical that people with disabilities have access to the
transportation they need to get to workplaces, the doctor, the grocery
store, and all the destinations they need and want to get to as the
Nation recovers.
This month we celebrate the 30th anniversary of the passage of the
Americans with Disabilities Act. The spirit of the ADA was to ensure
the full participation of people with disabilities in all aspects of
community life. This landmark civil rights law has led to major
improvements in transit systems across the country; however, there are
still barriers that we need to address, such as access to on-demand,
accessible transportation services. As we celebrate many
accomplishments stemming from the ADA over the past three decades, we
have an opportunity to build on its success.
Perhaps one of the opportunities we're most hopeful about is
automated vehicles. To help us all plan for the future of automation
with the goal of developing truly inclusive approaches to passenger
vehicles, the Department launched the Inclusive Design Challenge on
April 21. The Inclusive Design Challenge is a prize competition that
rewards innovative ideas and design solutions to enable people with
disabilities to use automated vehicles independently. By using a prize
competition format, DOT seeks to draw attention to the topic of
passenger vehicle accessibility; encourage new cross-disciplinary
collaborations; incentivize the development of new approaches and
technologies to improve mobility; and tap into the creativity and
knowledge of the disability community, researchers, advocates,
manufacturers, and entrepreneurs.
Our Federal partners at the Department of Labor are examining how
accessible AVs can bridge transportation gaps and connect people with
disabilities to jobs. This is more important now than ever as states,
businesses and jobs reopen and the economy revs up. We partnered with
DOL to host a series of 4 listening sessions with our Federal partners,
AV companies, disability advocates, and researchers to gather
information on this topic, and learned a lot about the transportation
and accessibility needs of the disability community. There is a report
with all the findings on the Office of Disability Employment Policy's
website at dol.gov/odep. We listed this report as a resource for teams
that are participating in the Inclusive Design Challenge.
We believe that technology innovation holds the promise to make our
lives better, so we are investing in solutions that can be used to make
them work for all of us. We will be announcing some new projects in our
accessibility initiative on July 30 at a virtual event we are planning
to celebrate the 30th Anniversary of the ADA and we hope you can join
us!
Freight Policy. I am concerned that the Department of
Transportation is not making freight policy a priority. It has been
nearly five years since the enactment of the FAST Act, which required
the Department to create a national strategic freight plan and develop
a national freight network. However, it was not until earlier this year
that the Department began requesting input from the public on a freight
plan.
Question 1. Does the Department need additional resources to focus
on freight policy?
Answer. No. At the direction of Secretary Chao, the Department has
added Policy staff in the last year, several of whom are focused on the
freight portfolio. I recognize that developing a truly intermodal
national freight plan, and identifying the national network, are of
crucial importance. The main reason for our prior delay was the need to
allow every State to complete its State Freight Plan and provide
additional opportunities for public input.
Question 2. When will the national strategic freight plan and the
national freight network be finalized?
Answer. The Department is working to complete the National Freight
Strategic Plan by later this year. In December, the Department
requested information from States, local governments, and other
stakeholders to inform the development of the national freight
strategy. The completion of the National Freight Strategic Plan will
directly lead into the identification of the National Multimodal
Freight Network.
Executive Branch Concerns with FCC's Ligado Decision. The
Departments of Commerce and Transportation (along with the entirety of
the executive branch) believe that the Federal Communications
Commission's (``FCC's'') recent approval of Ligado's terrestrial
wireless plans threatens the Nation's global positioning system
(``GPS'') on which the safety and security of everything from civil
aviation to military operations to weather forecasting rely. The FCC
rejected the executive branch's concerns and related technical studies
both from the government and the private sector showing that the
precision and effectiveness of GPS could be impaired. Instead, the FCC
relied on competing technical studies (some of which were funded by
Ligado), and its own conclusion that the government studies measured
the wrong things, to allow Ligado to move forward with its plans. Yet
in its decision to allow Ligado to move forward, the FCC acknowledged
that its ``analysis [in the order] should not be construed to say there
is no potential for harmful interference to any GPS device currently in
operation in the marketplace.''
Question 1. Did the FCC quantify the number of receivers that would
be negatively impacted by its decision, or analyze the impact of its
decision on the risk this interference could cause to safety of life or
property?
Answer. Not to my knowledge. One of the primary concerns of the
Department of Transportation, discussed in the Executive Branch's
reconsideration petition to the FCC, is that FCC's Ligado decision does
not account for the significant damage Ligado's deployment would impose
on the broad swathes of the economy that rely on position, navigation
and timing devices. Nor can we see that the FCC sufficiently accounted
for the impact of its decision upon emergency response systems and
other applications used to promote transportation safety and
efficiency.
Question 2. Did the Department of Transportation or Commerce
provide data in its study on the percentage of GPS receivers that would
suffer interference from Ligado's terrestrial operations at the power
levels recently authorized by the FCC? Did the FCC ask for such
information?
Answer. Yes. The Department of Transportation conducted engineering
studies that identified what interference would do to a range of
different types of receivers. For each type, the Department identified
interference up to total `loss-of-lock' at the thresholds of 10
percent, 50 percent, and 90 percent of the types of receivers tested
(high precision, timing, general location and navigation, general
aviation, space-based, and cellular). This data is included in the DOT
GPS Adjacent Band Compatibility Assessment Final Report and was
provided to the FCC when the report was published in April 2018.
Question 3. Do you agree that in high-profile spectrum decisions,
particularly ones which create potential risk to safety of life, that
it is in the greater public interest to reach consensus among and
between the FCC and the expert Federal agencies on aviation,
transportation safety, and national defense?
Answer. Yes. In the reconsideration petition and stay request in
the Ligado proceeding, DOT and the rest of the Executive Branch have
called upon the FCC to pause its decisionmaking process and revisit the
important issues involved here. DOT remains ready to work with FCC,
other agencies, and other stakeholders to address the critical national
interests at stake.
The Jones Act. The Jones Act is one of the foundational American
maritime laws, supporting 650,000 jobs in the U.S. and generating $150
billion in economic activity. Secretary Chao has been a vocal proponent
of the Jones Act as Secretary of Transportation.
Question 1. In your role as Assistant Secretary for Policy, will
you also take steps to ensure the continuation of the Jones Act?
Answer. Yes
Airline Passenger Consumer Protections. In the 2016 Federal
Aviation Administration (FAA) reauthorization, Congress specifically
directed DOT to promulgate a rule requiring refunds for delayed checked
baggage. The rule is now almost three years overdue, and consumers
continue to lose thousands of dollars every day that DOT ignores its
statutory mandate to protect consumers.\1\ Similarly, in the 2018 FAA
reauthorization, DOT was directed to require airlines to refund
ancillary fees for products and services that are not delivered.\2\
This requirement is almost one year overdue and, again, DOT has taken
no action to protect consumers.
---------------------------------------------------------------------------
\1\ FAA Extension, Safety, and Security Act of 2016, sec. 2305,
P.L. 114-21 (July 15, 2016) (stating that the ``Secretary of
Transportation shall issue final regulations'' requiring air carriers
to refund fees for delayed checked baggage no later than July 16,
2017).
\2\ FAA Reauthorization Act of 2018, sec. 421, P.L. 115-254 (Oct.
5, 2018) (stating that the ``Secretary of Transportation shall
promulgate regulations that require each covered air carrier to
promptly provide a refund to a passenger of any ancillary fees paid for
services related to air travel that the passenger does not receive''
not later than Oct. 6, 2019).
Question 1. When will DOT complete the delayed checked baggage
refund rule and the ancillary fee refund rule?
Answer. The Department is scheduled to issue this month the Notice
of Proposed Rulemaking (NPRM) on refunds for delayed checked baggage
fees and ancillary service fees. More specifically, the NPRM would
require airlines to refund checked baggage fees when they fail to
deliver the bags in a timely manner as provided by the FAA Extension,
Safety and Security Act of 2016. The NPRM would also require airlines
to promptly provide a refund to a passenger of any ancillary fees paid
for services that the passenger did not receive, as provided by the FAA
Reauthorization Act of 2018. The rulemaking schedule is available in
the Administration's Spring 2020 Unified Agenda of Regulatory and
Deregulatory Actions.
FAA Information Regarding the 737 MAX Crashes. Following the two
crashes of Boeing 737 MAX aircraft in Indonesia and Ethiopia, Members
of Congress, including myself and members of the Commerce Committee,
have made repeated requests for information from the Federal Aviation
Administration regarding that agency's decision to certify the model as
a 737 derivative. Specifically, these parties have requested un-
redacted versions of the Transport Airplane Risk Assessment Methodology
(TARAM) and any risk analyses or other assessments conducted prior to
and after the Lion Air and Ethiopian Airlines crashes. To date, we have
not received a satisfactory reply from the FAA or DOT.
Question 1. When will DOT and the FAA comply with the Congressional
requests for information regarding the FAA's certification activities
for the 737 MAX, including any TARAMs, risk analyses, or similar
assessments?
Answer. FAA provided the unredacted TARAM in response to the
Committee's request prior to Administrator Dickson's hearing on June
17, 2020. A copy of the TARAM is attached for your reference. FAA has
and will continue to provide documents and information in response to
requests from the Committee.
______
Response to Written Questions Submitted by Hon. Edward Markey to
Hon. Joel Szabat
Question 1. As you know, our dependence on GPS for Positioning,
Navigation, and Timing (PNT) is a single point of failure for critical
infrastructure. To address this security concern, Congress passed and
the President signed the National Timing Resilience and Security Act of
2018, which I sponsored. The law requires the Department of
Transportation (DOT) to provide for the establishment, sustainment, and
operation of a backup timing signal for GPS. The statue further
establishes an implementation deadline of no later than two years from
the date of the law's enactment.
If confirmed, will you devote and prioritize sufficient
administrative and leadership resources to implementing the National
Timing Resilience and Security Act?
Answer. Yes.
Question 2. Although the DOT is currently behind on its interim
implementation deadlines, are you committed, and is the DOT prepared,
to ensuring the overall law is executed as written and fully
implemented by Congress's statutory deadline at the end of this year?
If not, why not? And if not by the end of this year, what is the DOT's
schedule for having the backup system in operation?
Answer. Both the Department and I are committed to executing the
overall law as written, insofar as it is in our power to do so. If
there is a delay in putting a backup system in operation, it will be
because the importance of GPS cuts across every sector of the economy,
and the development and deployment of a backup deserves a coordinated
whole-of-government response.
Question 3. After the attacks of September 11, 2001, the DOT
immediately initiated steps to protect the security of airline
passengers and aviation workers. By contrast, during the COVID-19
crisis, the DOT has stepped back and left questions about how to
protect the health of passengers and employees up to a patchwork quilt
of inconsistent and often conflicting policies introduced by individual
airlines, airports, and states.
Do you believe the DOT has the authority to set baseline health and
safety standards for airlines and airports? If no: What authority would
it need? If yes: What specific steps will DOT take to set such
standards, especially as more restrictions are being lifted and airline
travel is slowly increasing?
Answer. The Department of Transportation, specifically the FAA,
unequivocally has the authority to set safety standards for airlines
and airports. Across the Department, safety is our primary mission.
Both before and during the spread of COVID-19, our position has been
consistent: directions and guidance for aircraft safety will come from
FAA; directions and guidance for contagious diseases best comes from
the medical professionals and public health experts at NIH, CDC and
elsewhere in HHS.
Question 4. To address the patchwork of policies for air travel, I
have introduced the Ensuring Health Safety in the Skies Act (S.3681).
This legislation instructs the Departments of Transportation, Health
and Human Services, and Homeland Security to establish a joint task
force--advised by aviation, security and public health experts--that
will develop recommended requirements, plans, and guidelines to ensure
safe and healthy air travel during and after the coronavirus pandemic.
Do you support the goals of my legislation?
Answer. Yes, I support the goals of ensuring safe and healthy air
travel.
Question 5. In an op-ed in USA Today in May, the Secretary of
Transportation wrote about the importance of airlines following Federal
requirements to provide refunds to consumers when their flights are
canceled or substantially changed. The Secretary went on to write:
``Many Americans, who canceled their reservations based on COVID-19
health concerns, are seeking refunds for the non-refundable tickets
they purchased but could not use . . . They deserve fair treatment.''
However, subsequent reports indicate that the problem persists and
consumers are not receiving refunds for unused airline tickets.
Is it unfair for the airlines to deny travelers refunds when they
proactively cancel their own ticket due to concerns around COVID-19?
Answer. Secretary Chao has been vocal about the urgent need to
refund airline passengers, including passengers who choose not to
travel due to safety or health concerns related to the COVID-19 public
health emergency. However, under current law, passengers who purchase a
non-refundable ticket on a flight that is still being operated without
a significant change, but would like to change or cancel their
reservation, are generally not entitled to a refund or a travel voucher
for future use on the airline. This is true even if the passenger
wishes to change or cancel due to concerns related to the COVID-19
public health emergency. Although not required, many airlines are
providing travel credits or vouchers that can be used for future travel
for those passengers electing to cancel their travel due to health or
safety concerns related to COVID-19. The Department strongly encourages
airlines to do even more and offer passengers the option of a refund,
instead of a voucher, as many consumers may be under enormous financial
strain given the COVID-19 public health emergency.
Question 6. What does the DOT consider ``fair'' treatment when it
comes to airline refunds?
Answer. Airlines have an obligation to provide a refund to a
ticketed passenger when the carrier cancels or significantly changes
the passenger's flight, and the passenger chooses not to accept an
alternative offered by the carrier. The Department considers a practice
of offering a refund to a ticketed passenger when an airline cancels a
flight or significantly changes the passenger's flight to be ``fair''
treatment of passengers.
Question 7. If the DOT finds that airlines are not treating
consumers fairly, what steps will the agency take to address these
refund issues?
Answer. Given the unprecedented impact of the COVID-19 public
health emergency on the aviation industry, the Department's Office of
Aviation Consumer Protection is exercising its enforcement discretion
and first providing carriers and ticket agents an opportunity to become
compliant. However, the Office of Aviation Consumer Protection will
take enforcement action as necessary and appropriate. Enforcement
action may include, for example, seeking corrective actions through
warning letters, issuing consent orders (which may include fines), or
filing an enforcement proceeding in front of an Administrative Law
Judge.
______
Response to Written Question Submitted by Hon. Cory Gardner to
Dr. Nancy B. Beck
Question. PFAS is a serious issue in Colorado for communities like
Colorado Springs where water has been contaminated through years of
PFAS exposure. I have worked with my colleagues on both sides of the
aisle to address the risks posed by these harmful chemicals including
introducing legislation to limit PFAS use, supporting efforts to
provide resources for PFAS cleanup, and advocating for additional
research dollars toward studying harmful effects of PFAS chemicals. Do
you believe that PFAS chemicals, including PFOA and PFOS, pose any
hazardous risks to human health? Do you believe the Federal government
has an important role to play in protecting the public from exposure to
harmful chemicals? If confirmed, how do you intend to use the Consumer
Product Safety Commission's authorities in law to keep my Colorado
constituents safe from hazardous products?
Answer. PFAS chemicals pose hazardous risks to human health, and I
do strongly believe that the Federal government has a very important
role to play in protecting the public from harmful exposures.
I have spent my career committed to promoting public safety through
policies supported by objective and transparent scientific analysis. If
confirmed to serve on the Commission, I would make it a priority to
ensure that CPSC takes appropriate and timely action to protect the
public from risks, including from PFAS. Specifically, I would ask the
Commission to inventory known and suspected consumer products
containing PFAS. I would then work collaboratively with the CPSC staff
experts and other Commissioners to make sure the Commission is guided
by the scientific information, the data, and our legal obligations to
make timely decisions to ensure that robust protections are put in
place to protect the public, including our most vulnerable populations.
______
Response to Written Questions Submitted by Hon. Dan Sullivan to
Michael J. Walsh, Jr.
The Pacific Salmon Treaty is a Federal obligation to Canada. Alaska
has repeatedly taken harvest reductions through the Pacific Salmon
Treaty process, and worked hard to accommodate ESA concerns. FY20
appropriations provided $35.2 million dollars (an additional $20
million above FY19) to NOAA/NMFS for Pacific Salmon Treaty-related
work. Of that, NMFS has proposed to allocate 92 percent of that money
to themselves for ESA priorities.
Additionally, even with this huge amount of money going to ESA
obligations, Wild Fish Conservancy has sued on ESA violations perceived
to originate from Southeast Alaska salmon fisheries. Under NOAA's
current approach, failing to supply adequate funding does not reflect
the terms agreed to by both countries under the Pacific Salmon Treaty,
nor does it meet the funding commitments of the Biological Opinion
prepared by the NMFS West Coast Region.
Question 1. Why has NOAA continually not included Pacific Salmon
Treaty obligation funding in their budget, instead relying on
alternative sources, to meet requirements that are clearly a Federal
responsibility for ESA, and which the United States has agreed to?
Answer. The President's FY 2021 Budget requests $16.2 million to
implement the Pacific Salmon Treaty. This represents an increase of
$5.0 million from FY 2020 President's Request. This increase reflects
NOAA and the Department's efforts to prioritize Pacific Salmon Treaty
requirements within the Administration's FY 2021 Budget Request. NMFS
will continue to support the ongoing Pacific Salmon Treaty
implementation and provide personnel support to the Pacific Salmon
Commission's technical committees, as well as a broad range of salmon
stock assessment and fishery monitoring programs that produce
information required to implement Pacific Salmon Treaty provisions.
Question 2. How does the large amount of PCSRF funding allocated to
Pacific Northwest relate to meeting the Pacific Salmon Treaty
obligations? Why are other sources of funding, such as those
appropriated by state governments, or appropriated through the Pacific
Coastal Salmon Recover Fund (PCSRF) not accounted for in the United
States Pacific Salmon Treaty obligations?
Answer. Contributions from these other sources, such as the Pacific
Coastal Salmon Recovery Fund and recent funding by Washington State to
increase hatchery production of Chinook salmon for Southern Resident
killer whale prey, may contribute to the anticipated benefits of the
conservation program considered as part of the action and environmental
baseline evaluated in the following three biological opinions.
In April 2019, NMFS completed a biological opinion on the
delegation of management authority to Alaska for some Southeast Alaska
fisheries. In May 2020, NMFS completed two additional biological
opinions on the 2020 Pacific Fishery Management Council ocean salmon
fisheries, and on the 2020 Puget Sound salmon fisheries. The Southeast
Alaska biological opinion evaluated the effects of discretionary
domestic actions associated with implementing the new Pacific Salmon
Treaty agreement on species listed under the Endangered Species Act as
well as a conservation program for threatened Puget Sound Chinook
salmon and endangered Southern Resident killer whales. This
conservation program includes conservation hatcheries for critical
Puget Sound Chinook salmon stocks, hatchery production for increased
prey for SRKW, as well as habitat improvements. The conservation
program was also evaluated as part of the environmental baseline in
NMFS' subsequent biological opinions on the Pacific Fishery Management
Council ocean salmon fisheries, and the Puget Sound salmon fisheries.
NMFS took considerable care to apply consistent approaches and the best
available science in each of these three biological opinions.
Whether a given activity contributes to the conservation program
will be evaluated on a case-by-case basis. These other sources of
funding would be applied in addition to any congressionally
appropriated funds for Pacific Salmon Treaty implementation.
Question 3. Why are these programmatic funding actions included in
the Southeast Alaska Biological Opinion, but not in any of the Pacific
Northwest Biologic Opinions?
Answer. The 2020 Pacific Fisheries Management Council ocean salmon
fisheries and the 2020 Puget Sound salmon fisheries biological opinions
considered the conservation program and its anticipated benefits to
Puget Sound Chinook salmon and Southern Resident killer whales as part
of the environmental baseline. While these consultations considered the
conservation program as a whole (as opposed to focusing on specific
funding details), the two May 2020 biological opinions did examine
additional details on Federal and state funding appropriated in FY
2020, criteria for selecting projects, and specifics of hatchery and
habitat projects where currently available. NMFS believes Alaska and
the southern states and tribes have a unity of interest in implementing
the proposed actions in all three biological opinions to sustain
fisheries coastwide consistent with the 2019 Pacific Salmon Treaty
agreement.
______
Response to Written Questions Submitted by Hon. Jerry Moran to
Mary A. Toman
Question 1. The economy is measured by the data collected by BEA
and the ongoing Census. The current year has created many challenges in
collecting data in a timely manner across all sectors and in conducting
the decennial census because of COVID. How will you instill in the
public, and stakeholders, confidence in the data being collected?
Answer. If confirmed, I look forward to working with BEA and the
Census Bureau to ensure that timely and accurate data collection
continues. Both agencies have made adjustments because of COVID-19. We
must ensure that technology and methodologies continue to be adapted to
maintain accuracy during the current public health emergency. I would
look forward to working with you and your staff in a cooperative effort
so that we instill in the public, and stakeholders, confidence in the
data collected.
Question 2. The components of the DOC that you will oversee are
vital to the Nation's economy and representation in Congress. Data
integrity is crucial. What do you feel are the greatest risks to
security of the information collected by BEA and Census and how will
you address them if confirmed?
Answer. Yes, data integrity is crucial, and the public is
increasingly aware of both the value of data and the risks to data
security. It is paramount that risks such as cybersecurity issues are
identified and mitigated. The Census Bureau is bound by Title 13 of the
U.S. Code, which is fundamental to the collection and security of data.
If confirmed, I will work hard to help explain and reassure our fellow
Americans that they can trust us to safeguard their personal
information. I would look forward to working in partnership with you
and your staff on these issues.
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