[Senate Hearing 108-976]
[From the U.S. Government Publishing Office]


                                                        S. Hrg. 108-976
 
                     NOMINATIONS OF PAMELA HARBOUR 
                      TO BE A COMMISSIONER OF THE 
                      FEDERAL TRADE COMMISSION AND 
                 NICOLE NASON TO BE ASSISTANT SECRETARY 
                      FOR GOVERNMENTAL AFFAIRS FOR 
                    THE DEPARTMENT OF TRANSPORTATION 

=======================================================================

                                HEARING

                               before the

                         COMMITTEE ON COMMERCE,
                      SCIENCE, AND TRANSPORTATION
                          UNITED STATES SENATE

                      ONE HUNDRED EIGHTH CONGRESS

                             FIRST SESSION

                               __________

                              JULY 8, 2003

                               __________

    Printed for the use of the Committee on Commerce, Science, and 
                             Transportation

                               ----------

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       SENATE COMMITTEE ON COMMERCE, SCIENCE, AND TRANSPORTATION

                      ONE HUNDRED EIGHTH CONGRESS

                             FIRST SESSION

                     JOHN McCAIN, Arizona, Chairman
TED STEVENS, Alaska                  ERNEST F. HOLLINGS, South 
CONRAD BURNS, Montana                    Carolina, Ranking
TRENT LOTT, Mississippi              DANIEL K. INOUYE, Hawaii
KAY BAILEY HUTCHISON, Texas          JOHN D. ROCKEFELLER IV, West 
OLYMPIA J. SNOWE, Maine                  Virginia
SAM BROWNBACK, Kansas                JOHN F. KERRY, Massachusetts
GORDON H. SMITH, Oregon              JOHN B. BREAUX, Louisiana
PETER G. FITZGERALD, Illinois        BYRON L. DORGAN, North Dakota
JOHN ENSIGN, Nevada                  RON WYDEN, Oregon
GEORGE ALLEN, Virginia               BARBARA BOXER, California
JOHN E. SUNUNU, New Hampshire        BILL NELSON, Florida
                                     MARIA CANTWELL, Washington
                                     FRANK R. LAUTENBERG, New Jersey
      Jeanne Bumpus, Republican Staff Director and General Counsel
             Robert W. Chamberlin, Republican Chief Counsel
      Kevin D. Kayes, Democratic Staff Director and Chief Counsel
                Gregg Elias, Democratic General Counsel



                            C O N T E N T S

                              ----------                              
                                                                   Page
Hearing held on July 8, 2003.....................................     1
Statement of Senator Lautenberg..................................     3
Statement of Senator McCain......................................     1
    Prepared statement...........................................     2
    Prepared statement of Representative Hyde....................     2
Statement of Senator Sununu......................................    25

                               Witnesses

Harbour, Pamela Jones, Commissioner-Designate, Federal Trade 
  Commission.....................................................     4
    Prepared statement...........................................     5
    Biographical information.....................................     5
Nason, Nicole, Nominated to be Assistant Secretary for 
  Governmental Affairs, U.S. Department of Transportation........    14
    Prepared statement...........................................    16
    Biographical information.....................................    16


                     NOMINATIONS OF PAMELA HARBOUR
                  TO BE A COMMISSIONER OF THE FEDERAL
                   TRADE COMMISSION AND NICOLE NASON
                     TO BE ASSISTANT SECRETARY FOR
                      GOVERNMENTAL AFFAIRS FOR THE
                      DEPARTMENT OF TRANSPORTATION

                              ----------                              


                         TUESDAY, JULY 8, 2003

                                       U.S. Senate,
        Committee on Commerce, Science, and Transportation,
                                                    Washington, DC.
    The Committee met, pursuant to notice, at 9:30 a.m. in room 
SR-253, Russell Senate Office Building, Hon. John McCain, 
Chairman, presiding.

            OPENING STATEMENT OF HON. JOHN McCAIN, 
                   U.S. SENATOR FROM ARIZONA

    The Chairman. Good morning. The Commerce Committee meets 
today to consider the qualifications of two individuals who 
have been nominated by the President to serve the Nation in 
very important posts. Ms. Pamela Harbour has been nominated to 
be a Commissioner of the Federal Trade Commission, the agency 
whose primary mission is to protect consumers. Among Ms. 
Harbour's credentials are more than 10 years of service in the 
Office of the New York State Attorney General, including over 7 
years as Assistant Attorney General in the Antitrust Bureau.
    Also here today is Ms. Nicole Nason, who has been nominated 
to serve as Assistant Secretary for Governmental Affairs at the 
Department of Transportation (DOT). Ms. Nason comes to DOT 
after serving in a similar capacity with the U.S. Customs 
Service and thus brings a unique perspective to her new 
position.
    The nominees, if confirmed, will enter their positions at a 
very auspicious time. In the coming months Congress will act on 
three major DOT programs: the federal highway program, 
including the federal safety programs under the jurisdiction of 
the Commerce Committee; the Federal Aviation Administration; 
and the future of Amtrak.
    Congress will also consider important legislation relating 
to FTC matters, including two bills recently reported out of 
this Committee.
    The Committee takes its advice and consent role very 
seriously. I will note that each of the nominees has responded 
in detail to the Committee's request for biographical and 
financial data. I have had the opportunity to review their 
responses to the Committee questionnaire as well as prehearing 
questions, and I look forward to moving these nominations 
quickly.
    [The prepared statement of Senator McCain follows:]

   Prepared Statement of Hon. John McCain, U.S. Senator from Arizona
    Good morning. The Commerce Committee meets today to consider the 
qualifications of two individuals who have been nominated by the 
President to serve the Nation in very important posts. Ms. Pamela 
Harbour has been nominated to be a Commissioner of the Federal Trade 
Commission, the agency whose primary mission is to protect consumers. 
Among Ms. Harbour's credentials are more than ten years' service in the 
Office of the New York State Attorney General, including over seven 
years as Assistant Attorney General in the Antitrust Bureau. Also here 
today is Ms. Nicole Nason, who has been nominated to serve as Assistant 
Secretary for Governmental Affairs at the Department of Transportation 
(DOT). Ms. Nason comes to DOT after serving in a similar capacity with 
the U.S. Customs Service and thus brings a unique perspective to her 
new position.
    The nominees, if confirmed, will enter their positions at a very 
auspicious time. In the coming months, Congress will act on three major 
DOT programs the Federal highway program, including the Federal safety 
programs under the jurisdiction of the Commerce Committee, the Federal 
Aviation Administration, and the future of Amtrak.
    Congress will also consider important legislation relating to FTC 
matters, including two bills recently reported out of this Committee: 
(1) an FTC reauthorization bill that would, among other things, enhance 
the Commission's ability to fight cross-border fraud, and (2) the CAN-
SPAM Act of 2003, which would regulate interstate commerce by imposing 
limitations and penalties on the transmission of spam.
    This Committee takes its advice and consent role very seriously, 
and I will note that each of the nominees has responded in detail to 
the Committee's requests for biographical and financial data. I have 
had the opportunity to review your responses to the Committee 
questionnaire as well as pre-hearing questions, and I look forward to 
moving your nominations quickly.
    We will begin today by hearing from Ms. Harbour and then proceed to 
the consideration of Ms. Nason. I thank the nominees for being here 
today. I know your nomination is a great honor, and that your families 
are very proud. Please feel free to introduce any family members who 
are present here today before you begin your remarks.
    I would like to note that Congressman Hyde wanted to be here today 
to introduce Ms. Nason, but is unable to attend. His full statement 
will be included in the record.
    Unless other members of the Committee have opening statements, I 
invite Ms. Harbour to give her statement.

    The Chairman. We will begin today by hearing from Ms. 
Harbour and then proceed to the consideration of Ms. Nason. I 
thank the nominees for being here today. I know your nomination 
is a great honor, and that your families are very proud. Please 
feel free to introduce any family members who are here today 
before you begin your remarks.
    I would like to note that Congressman Hyde wanted to be 
here today to introduce Ms. Nason, but is unable to attend. His 
full statement will be included in the record.
    [The prepared statement of Representative Hyde follows:]
              Prepared Statement of Chairman Henry J. Hyde
    It's a pleasure to be able to testify on behalf of Nicole Nason's 
nomination to be the Assistant Secretary for Governmental Affairs for 
the Department of Transportation.
    I know Nicole well. When I was Chairman of the House Committee on 
the Judiciary, she worked as a summer intern right after she finished 
law school. She was so impressive as a lawyer I retained her on the 
full committee staff. When a vacancy arose on the very important Crime 
Subcommittee, our former colleague Bill McCollum, the Chair of that 
subcommittee, requested that I permit her to join that staff. She 
served as Counsel on the House Judiciary Committee and its Subcommittee 
on Crime during all the years that I was Chairman of the Committee 
(1995-2001). Since matters of criminal law were a major part of the 
Committee's work, I got to work closely with Nicole.
    I have relied on Nicole's wise counsel on a series of complex and 
contentious matters. Having Nicole to advise me during those times gave 
me a feeling of comfort. Not only is Nicole an excellent lawyer, but 
she also possesses pure common sense. That combination made her an 
invaluable asset to me, the Committee, and Congress over the years.
    While she was working for Chairman Porter Goss, her understanding 
of Congress resulted in the White House recruiting her to work in the 
Legislative Affairs office at the Treasury Department.
    Nicole's reputation for being able to deal with controversial 
issues in a professional, skillful, and tactful manner is well-
deserved. She is well respected on both sides of the aisle, both sides 
of the Hill, and in the executive branch. Her nomination itself speaks 
for how positively the Administration feels about her knowledge, 
skills, and abilities.
    I believe she has a comprehensive understanding of the practices 
and procedures involved in the legislative process, which makes her an 
outstanding candidate for this position.
    Mr. Chairman, Members of the Committee, I am confident that Nicole 
Nason will acquit herself ably as Assistant Secretary for the Office of 
Governmental Affairs for the Department of Transportation. As a 
knowledgeable lawyer, and a dedicated professional, Nicole is well-
suited to serving both the Department of Transportation and Congress in 
this important capacity.

            STATEMENT OF HON. FRANK R. LAUTENBERG, 
                  U.S. SENATOR FROM NEW JERSEY

    Senator Lautenberg. Mr. Chairman, Ms. Harbour is from New 
Jersey and I would like an opportunity to say something about 
her.
    The Chairman. I recognize Senator Lautenberg.
    Senator Lautenberg. Thank you.
    Welcome to both of our candidates. I want to say that in 
recommending Ms. Pamela Jones Harbour the President has 
nominated someone what is very able and committed to the 
mission and that we are proud that she is from New Jersey and 
we know that she will do a good job, and we congratulate you on 
your nomination.
    Ms. Harbour--and I want to point out something about her 
background which I think is really distinctive. That is that 
she has worked in the private sector as a partner in the 
prestigious law firm Kaye Scholer and the public sector as the 
New York State Deputy Attorney General and Chief of the 
Office's 150-attorney Public Advocacy Division. That is a lot 
of attorneys to manage. And I know that she has worked with 
you, Mr. Chairman, on boxing reform in that capacity.
    Although most of us do not consciously think about the FTC 
as we go around our daily lives, this agency deals with issues 
that directly affect all Americans.
    Mr. Chairman, Ms. Harbour is well qualified to be an FTC 
commissioner. She has got extensive experience in consumer 
protection, antitrust, trade regulation, product liability, and 
is going to help the agency continue its regulatory mission of 
striking a balance between maintaining a vigorous marketplace 
and ensuring that consumers are appropriately protected.
    So I hope that Ms. Harbour will take an active role on an 
issue that I am particularly concerned with and that is 
tobacco. The FTC is the sole agency with authority over tobacco 
through its ability to enforce federal truth in advertising 
laws and monitor unfair practices or deceptive claims and 
report to Congress on cigarettes and smokeless tobacco 
labeling, advertising, and promotion. So I hope Ms. Harbour 
will take a leadership role on tackling the tobacco issues.
    I am so pleased to speak on her behalf to make the 
recommendation I am making. I am convinced that she is going to 
serve the American consumer well as she carries out her 
responsibilities.
    Thank you, Mr. Chairman.
    The Chairman. Welcome. Ms. Harbour, we will begin with you.

  STATEMENT OF PAMELA JONES HARBOUR, COMMISSIONER-DESIGNATE, 
                    FEDERAL TRADE COMMISSION

    Ms. Harbour. Thank you and good morning, Chairman McCain, 
Senator Lautenberg.
    I come before you today with pride, humility, and grateful 
thanks, regardless of your ultimate action on my nomination. My 
family is here with me today: my husband John Harbour and my 
daughters Victoria, Alexandra, and Catherine; their caregiver 
Karmin Rine; my parents Joseph and Verneta Jones; my mother and 
father-in-law Rachel and Ed Harbour; my aunt and uncle, 
Marzella and Walter Dalkins; my brother-in-law Greg Harbour; 
and his niece and nephew, Melissa and James Harbour; and 
friends and colleagues.
    The Chairman. I welcome all of your family members and I 
know this is a very proud moment for them. I think this may be 
a record for the most family members ever in attendance, and 
congratulations. I know this is a very proud moment for all of 
them. Thank you for having them all here today.
    Ms. Harbour. Thank you. Their presence, Senator, and 
encouragement and unconditional support makes this occasion 
possible and even more meaningful to me.
    Public service is both an obligation of citizenship and the 
greatest professional honor. I served the public for 15 years 
in New York State government, including my role as supervisor 
of the Attorney General's Antitrust and Consumer Protection 
Bureaus.
    The antitrust laws are the Magna Carta of the incredible 
American free enterprise system, as frequently recognized by 
the Supreme Court, a body which I have had the honor to argue 
before while upholding those laws. The antitrust laws and the 
open competition which they foster and protect work best when 
business and consumers meet in a marketplace unsullied by 
fraud, deception, and misinformation perpetrated on consumers 
and businesses.
    The enforcement of antitrust and consumer protection laws, 
properly informed by economics, is the mission of the FTC. I 
have devoted virtually all of my professional career to these 
important legal regimes and I am humbly confident that I can 
advance the work of the commission and help extend the benefit 
of intelligent antitrust and consumer protection enforcement to 
our entire society.
    This is my only agenda as I appear before you to offer my 
credentials to you, answer your questions, and hopefully win 
your confidence and consent to my nomination by the President.
    Thank you.
    [The prepared statement and biographical information of Ms. 
Harbour follow:]

  Prepared Statement of Pamela Jones Harbour, Commissioner-Designate, 
                        Federal Trade Commission
    Good morning, Chairman McCain, Senator Hollings and distinguished 
members of the Committee. I come before you today with pride, humility 
and grateful thanks regardless of your ultimate action on my 
nomination. My family is here with me today. My husband John Harbour--
and my daughters--Victoria, Alexandra and Catherine. Their presence, 
encouragement and unconditional support makes this occasion possible 
and even more meaningful.
    Public service is both an obligation of citizenship and the 
greatest professional honor. I served the public for 15 years in New 
York State government, including my role as supervisor of the attorney 
general's antitrust and consumer protection bureaus.
    The antitrust laws are the Magna Carta of the incredible American 
free enterprise system, as frequently recognized by the Supreme Court, 
a body which I have had the honor to argue before, while upholding 
those laws. The antitrust laws and the open competition which they 
foster and protect work best when business and consumers meet in a 
marketplace unsullied by fraud, deception and misinformation 
perpetrated on consumers and businesses. The enforcement of antitrust 
and consumer protection laws, properly informed by economics, is the 
mission of the FTC.
    I have devoted virtually all of my professional career to these 
important legal regimes, and I am humbly confident that I can advance 
the work of the Commission and help extend the benefit of intelligent 
antitrust and consumer protection enforcement to our entire society.
    This is my only agenda as I appear before you, to offer my 
credentials to you, answer your questions and hopefully win your 
confidence and consent to my nomination by the President.
                                 ______
                                 
                      a. biographical information
    1. Name (Include any former names or nicknames used.): Pamela Jones 
Harbour (``Pamela'') (``Pam'') (formerly: Pamela L Jones or Pamela 
LeDeyce Jones).
    2. Position to which nominated: Commissioner, Federal Trade 
Commission.
    3. Date of nomination: June 12, 2003.
    4. Address (List current place of residence and office addresses):

        Residence: Information not released to the public.

        Office: Kaye Scholer LLP 425 Park Avenue, New York, NY 10022.

    5. Date and place of birth: July 15, 1959; Queens, New York.
    6. Marital status (Include maiden name of wife or husband's name.): 
Married to John W. Harbour.
    7. Names and ages of children: (Include stepchildren and children 
from previous marriages.)

        Victoria Heath Harbour (11); Alexandra Taylor Harbour (9); 
        Catherine Burke Harbour (1).

    8. Education: (List secondary and higher education institutions, 
dates attended, degree received, and date degree granted.)

        Guilderland Central High School--1974-77 (High School Diploma)

        Indiana University School of Music--1978-81 (BM 1981)

        Indiana University School of Law--1981-84 (JD 1984)

    9. Employment record: (List all jobs held since college, including 
the title or description of job, name of employer, location of work, 
and dates of employment.)

        Partner, Kaye Scholer LLP, New York, N.Y., June 1999 to 
        Present; Assistant First Deputy Attorney General, Executive 
        Office, Office of the New York State Attorney General, New 
        York, N.Y., January 1999-May 1999; Deputy Attorney General of 
        the Public Advocacy Division, Office of the New York State 
        Attorney General, New York, N.Y., October 1996-December 1998; 
        Assistant Attorney General, Antitrust Bureau, Office of the New 
        York State Attorney General, New York, N.Y., January 1989-
        October 1996; As a member of both Screen Actors Guild and 
        AFTRA, I have appeared from time to time in television 
        commercials and film from 1989 through 1992; Deputy Bureau 
        Chief, Legal Training Recruitment and Development Bureau, 
        Office of the New York State Attorney General, New York, N.Y., 
        October 1987-December 1988; General Counsel, New York State 
        Public Transportation Safety Board, New York State Department 
        of Transportation, Albany, N.Y., August 1985-October 1987; 
        Assistant Counsel, New York State Department of Transportation, 
        Albany, N.Y., August 1984-October 1987; Student Legal Services, 
        Indiana University, Bloomington, IN, 1982-83; Dormitory 
        Assistant Coordinator and Resident Assistant, Indiana 
        University, Bloomington, IN, 1981-83; Concession Stand Employee 
        at NASCAR Grand Prix Race in Detroit, MI, August 1981.

    10. Government experience: (List any advisory, consultative, 
honorary or other part-time service or positions with Federal, State, 
or local governments, other than those listed above.)

        Board Member, New York City Campaign Finance Board, 2000 to 
        Present; Member, Chief Judge Judith S. Kaye's New York State 
        Commission on Public Access to Court Records, 2002 to Present.

    11. Business relationships: (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.)

        Partner, Kaye Scholer LLP, 1999 to Present.

    12. Memberships: (List all memberships and offices held in 
professional, fraternal, scholarly, civic, business, charitable and 
other organizations.)

        Section Delegate, American Bar Association, Antitrust Section 
        of Law, 2001 to Present; Antitrust Section Liaison, American 
        Bar Association Commission on Women, 2001 to Present; Chair, 
        New York State Bar Association, Antitrust Section, 2003 to 
        Present; Board Member, New York City Campaign Finance Board, 
        2000 to Present; Member, Chief Judge Judith S. Kaye's New York 
        State Commission on Public Access to Court Records, 2002 to 
        Present; Member, Loyola University Institute for Consumer 
        Antitrust Studies, 2001 to Present; Choir Member, Christ 
        Episcopal Church, 1993 to Present; Council Member, American Bar 
        Association, Antitrust Section of Law, 1997-2001; Chair, State 
        Antitrust Enforcement Committee, American Bar Association, 
        Antitrust Section of Law, 1995-1997; Vice Chair, State 
        Antitrust Enforcement Committee, American Bar Association, 
        Antitrust Section of Law, 1992-1995; Vice Chair, New York State 
        Bar Association, Antitrust Section, 2002-2003; Secretary, New 
        York State Bar Association, Antitrust Section, 2001-2002.

    13. Political affiliations and activities:

        (a) List all offices with a political party which you have held 
        or any public office for which you have been a candidate. None.

        (b) List all memberships and offices held in and services 
        rendered to all political parties or election committees during 
        the last 10 years. None.

        (c) Itemize all political contributions to any individual, 
        campaign organization, political party, political action 
        committee, or similar entity of $500 or more for the past 10 
        years. None.

    14. Honors and awards: (List all scholarships, fellowships, 
honorary degrees, honorary society memberships, military medals and any 
other special recognitions for outstanding service or achievements.)

        Award Recipient, Women History Makers, Caribbean Chamber of 
        Commerce & Industry, NYC March 12, 1998.

    15. Published writings: (List the titles, publishers, and dates of 
books, articles, reports, or other published materials which you have 
written.)
    I have authored the following articles, columns, or publications, 
individually or with co-authors:

        ``B2B Basics and Antitrust Issues.'' (ALI-ABA Product 
        Distribution and Marketing, March 2002)

        ``A Practical Guide to the Donnelly Act, Antitrust Law in New 
        York State, Second Edition'' (NYS Bar Association, January 
        2002) (Editor-in-Chief with Robert L. Hubbard)

        ``State Attorneys General: The Third Prong in the Antitrust 
        Triad.'' Antitrust Review of the Americas: A Global Competition 
        Review Special Report. (Law Business Research 2001) (co-
        authored with Robert M. Langer)

        ``Jury Trials in Antitrust Cases: Juror Competence and Tools 
        for Increasing Comprehension and Participation by the Antitrust 
        Jury.'' (ABA Task Force on Civil Practice and Procedure, 
        September 2001) (co-authored with James V. Kennedy and James A. 
        Wilson)

        ``B2B Basics and Antitrust Issues.'' (Emerging Issues for 
        Competition Policy in the E-Commerce Environment, May 2001; FTC 
        website, www.ftc.gov/opp/ecommerce/comments/harbour.htm)

        ``B2B Basics and Antitrust Issues.'' (ALI-ABA Product 
        Distribution and Marketing, March 2001)

        ``Antitrust Refusals to Deal.'' (PLI 40th Annual Advanced 
        Antitrust Seminar, February 2001)

        ``B2B Basics and Antitrust Issues.'' (Internet Law & Business 
        andRepresenting the New Media Company, February 2001)

        ``B2B Basics and Antitrust Issues.'' PLI Representing the New 
        Media Company, January 2001)

        ``Refusals to Deal.'' (PLI 39th Annual Advanced Antitrust 
        Seminar, Distribution and Marketing, February 2000)

        ``Antitrust Enforcement in the Area of Vertical Trade 
        Restraints by State Attorneys General.'' (ABA Section of 
        Antitrust Law Advanced Distribution Workshop: Antitrust and 
        Advertising Issues, September 1999)

        ``Non-Price Vertical Restraints: Toward a Rule of Per Se 
        Legality?'' (ABA Antitrust Section of Law Annual Meeting 
        Program, August 1999).

        ``Antitrust Enforcement in the Area of Vertical Trade 
        Restraints by State Attorneys General.'' (The Westchester 
        Women's Bar Association of the State of New York, May 1999)

        ``State Antitrust Law and Enforcement.'' (PLI 40th Annual 
        Antitrust Law Institute, May 1999) (co-authored with Thomas 
        Green and Kevin O'Connor)

        ``Antitrust Enforcement in the Area of Vertical Trade 
        Restraints by State Attorneys General.'' (PLI 38th Annual 
        Advanced Antitrust Seminar: Distribution and Marketing, January 
        1999)

        ``What are the Implications of The Supreme Court's Decisions in 
        State Oil Company v. Khan?'' (International Franchise 
        Association, 31st Annual Legal Symposium, May 1998) (co-
        authored with Steven B. Feirman and Paula J. Morency)

        ``Antitrust Enforcement in the Area of Vertical Restraints by 
        State Attorneys General.'' (PLI 37th Annual Advanced Antitrust 
        Seminar: Distribution and Marketing, March 1998)

        ``Antitrust Enforcement in the Area of Vertical Trade 
        Restraints by State Attorneys General.'' (13th Annual Advanced 
        ALI-ABA Course of Study: Product Distribution and Marketing, 
        March 1998)

        ``State Antitrust Law and Enforcement.'' (PLI 38th Annual 
        Antitrust Law Institute, May 1997) (co-authored with Thomas 
        Greene, Kevin J. O'Connor, and Laurel A. Price)

        ``Antitrust Enforcement in the Area of Vertical Trade 
        Restraints by StateAttorneys General.'' (ALI-ABA Course of 
        Study: Product Distribution and Marketing, March 1997)

        ``Antitrust Enforcement in the Area of Vertical Trade 
        Restraints by State Attorneys General.'' (PLI 36th Annual 
        Advanced Antitrust Seminar, Jan. Feb. 1997)

        ``Antitrust Enforcement in the Area of Vertical Trade 
        Restraints by State Attorneys General.'' (Conference jointly 
        sponsored by the ABA Section of Antitrust Law and the Corporate 
        Counsel Center of Northwestern University School of Law, May 
        1995)

    16. Speeches: Provide the Committee with two copies of any formal 
speeches you have delivered during the last 5 years which you have 
copies of on topics relevant to the position for which you have been 
nominated.
    I have given the following speeches during the last 5 years:

        B2B Basics and Antitrust Issues, PowerPoint (17th Annual 
        Advanced ALI-ABA Product Distribution & Marketing, San 
        Francisco, March 7-9, 2002)

        Panelist analyzing e-commerce antitrust issues (FTC Public 
        Workshop on Emerging Issues for Competition Policy in the World 
        of E-Commerce, May 7-8, 2001)

        B2B Internet Exchanges & Antitrust Implications (16th Annual 
        Advanced ALI-ABA Product Distribution & Marketing, New Orleans, 
        March 15-17, 2001)

        Refusals to Deal & Termination Issues, (PLI Advanced Antitrust 
        Seminar: Distribution and Marketing Program, NYC, February 5-6, 
        2001)

        B2B Basics and Antitrust Issues, (PU Representing the New Media 
        Company, NYC, January 11-12, 2001)

        E-Commerce: The Digital Divide (Federal Trade Commission, 
        Empowerment Through Technology: The African American 
        Experience, Washington, D.C., February 24, 2000)

        Refusals to Deal (PLI 39th Annual Advanced Antitrust Seminar: 
        Distribution & Marketing, New York City, February 14-15, 2000)

        Dealer Termination and Resale Price Maintenance Panel (ABA 
        Antitrust Section of Law, Advanced Distribution Workshop: 
        Antitrust and Advertising Issues, New York City, October 1, 
        1999)

        Non-Price Vertical Restraints: Toward a Rule of Per Se 
        Legality? (ABA Annual Meeting Program, Atlanta, August 9-11, 
        1999)

        Antitrust Federalism (Bundesvergand def Jun Deutschen 
        Industrie, Cologne, Germany, June 29, 1999)

        Government Enforcement Panel (PU 40th Annual Antitrust Law 
        Institute, New York City, May 14, 1999)

        Donnelly Act and Vertical Restraints Lecture (The Westchester 
        Women's Bar Association of the State of New York Convention 
        1999, Tarrytown, NY, May 1, 1999)

        Vertical Restraints Lecture (PLI 38th Annual Advanced Antitrust 
        Seminar: Distribution & Marketing, New York City, January 14-
        15, 1999)

        NAAG Boxing Task Force Speech (World Boxing Council, 36th 
        Annual World Convention, Johannesburg, South Africa, October 
        25-31, 1998)

        Protecting Consumers Against Exclusionary Conduct (ABA Advanced 
        Antitrust Counseling Workshop, New York City, September 25, 
        1998)

    17. Selection:

        (a) Do you know why you were selected for the position to which 
        you have been nominated by the President?
        It is my understanding that Senator Tom Daschle recommended my 
        nomination to President Bush to fill the seat being vacated by 
        Commissioner Sheila Foster Anthony on the Commission. It is my 
        belief that I was also recommended by others.

        (b) What in your background or employment experience do you 
        believe affirmatively qualifies you for this particular 
        appointment?
        I have considerable leadership and management experience in 
        government, having served under four New York State Attorneys 
        General, where the bulk of my practice has focused upon 
        antitrust and consumer protection matters. As Deputy Attorney 
        General, I had supervisory responsibility over both the 
        Antitrust and Consumer Protection Bureaus. In this capacity, I 
        have coordinated, investigated and prosecuted Federal and state 
        antitrust violations and represented numerous state attorneys 
        general in the United States Supreme Court, the United States 
        Court of Appeals, and various United States District Courts. I 
        have also counseled clients on a variety of competition and 
        consumer related matters, including matters before the U.S. 
        Department of Justice, the Federal Trade Commission and state 
        attorneys general. I have lectured extensively on antitrust and 
        consumer protection matters in the U.S. and abroad and have 
        published numerous articles on antitrust as well.

                   b. future employment relationships
    1. Will you sever all connections with your present employers, 
business firms, business associations, or business organizations if you 
are confirmed by the Senate? Yes.
    2. Do you have any plans, commitments, or agreements to pursue 
outside employment, with or without compensation, during your service 
with the government? If so, explain. No.
    3. Do you have any plans, commitments, or agreements after 
completing government service to resume employment, affiliation, or 
practice with your previous employer, business firm, association, or 
organization? No.
    4. Has anybody made a commitment to employ your services in any 
capacity after you leave government service? No.
    5. If confirmed, do you expect to serve out your full term or until 
the next Presidential election, whichever is applicable? Yes.
                   c. potential conflicts of interest
    1. Describe all financial arrangements, deferred compensation 
agreements, and other continuing dealings with business associates, 
clients, or customers.
    I will receive a final partnership salary payment, from Kaye 
Scholer LLP, for my 2003 work in two installments, in January and 
April, 2004. The amount of this payment will be determined on or before 
the date of my resignation from the firm, and will include a percentage 
of the profits from work performed by the firm only up to the day of my 
resignation from the firm. I also will be reimbursed the value of my 
Kaye Scholer capital account. This value will be fixed on the date of 
my resignation and will be paid in three installments, three months, 
fifteen months and twenty-seven months after my resignation. Until 
these amounts are paid, I will not participate in any particular matter 
that would have a direct and predictable effect on Kaye Scholer's 
ability or willingness to make these payments. During this time, I also 
will seek the advice of an ethics official before participating in any 
particular matter involving specific parties in which the firm is a 
party or represents a party. I will continue to participate in Kaye 
Scholer's 401(k) and HR10 plans. I also will continue to participate in 
the New York State pension and 401(k) plans.
    2. Indicate any investments, obligations, liabilities, or other 
relationships which could involve potential conflicts of interest in 
the position to which you have been nominated.
    I understand that the following stock holdings or stock options 
present potential conflicts of interest under section 18 U.S.C. 
Sec. 208(a), although it has been determined that it is not necessary 
at this time for me to divest these interests: Johnson & Johnson, 
Merck, General Electric, Colorcom, Accelerated I/O Inc., and Blacklight 
Power Inc. I will not participate personally and substantially in any 
particular matter that will have a direct and predictable effect on the 
financial interests of these entities, unless I first obtain a written 
waiver or qualify for a regulatory exemption.
    3. Describe any business relationship, dealing, or financial 
transaction which you have had during the last 10 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?
    During the last 10 years, I have had dealings with and represented 
clients in various matters before the FTC. I am aware of the conflict 
of interest rules pertaining to these prior dealings. I will abide by 
the conflict rules if and when applicable.
    4. Describe any activity during the past 10 years in which you have 
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 my capacity as New York State Deputy Attorney General of Public 
Advocacy, in April 1999, I organized a bi-partisan group of 22 state 
attorneys general who sent a letter to various Senators strongly 
endorsing the Muhammad Ali Boxing Reform Act (S. 305), which sought to 
curb anti-competitive and fraudulent business practices and prevent 
blatant exploitation of professional boxers. My activities focused on 
the Senate and House Commerce Committees.
    5. Explain how you will resolve any potential conflict of interest, 
including any that may be disclosed by your responses to the above 
items. (Please provide a copy of any trust or other agreements.)
    I am not aware of any potential conflicts of interest other than 
the matters previously disclosed and will abide by all applicable 
conflicts of interest rules.
    6. Do you agree to have written opinions provided to the Committee 
by the designated agency ethics officer of the agency to which you are 
nominated and by the Office of Government Ethics concerning potential 
conflicts of interest or any legal impediments to your serving in this 
position? Yes.
                            d. legal matters
    1. Have you ever been disciplined or cited for a breach of ethics 
by, or been the subject of a complaint to any court, administrative 
agency, professional association, disciplinary committee, or other 
professional group? If so, please explain. No.
    2. Have you ever been investigated, arrested, charged, or held by 
any Federal, State, or other law enforcement authority for violation of 
any Federal, State, county, or municipal law, regulation, or ordinance, 
other than for a minor traffic offense? lf so, please explain. No.
    3. Have you or any business of which you are or were an officer 
ever been involved as a party in an administrative agency 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. Please advise the Committee of any additional information, 
favorable or unfavorable, which you feel should be disclosed in 
connection with your nomination. None.
                     e. relationship with committee
    1. Will you ensure that your department/agency complies with 
deadlines for information set by congressional committees? 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. Please explain how if confirmed, you will review regulations 
issued by your department/agency, and work closely with Congress, to 
ensure that such regulations comply with the spirit of the laws passed 
by Congress.
    In regard to congressional and Commission interaction, Congress has 
a vital and important role to play by conducting reviews of Commission 
programs and plans. When Commission enforcement policy changes, for 
example, it is appropriate for Congress to request and receive an 
explanation. Members of Congress--like other citizens--should feel free 
to call illegal activity to the Commission's attention and suggest 
rulemaking, litigation and other action. When the Commission has 
promulgated a trade regulation rule, Congress may consider its 
desirability and, if Congress deems the rule harmful, enact substantive 
legislation to undo it. With this in mind, I will review Commission 
regulations and work with Congress to ensure that such regulations 
fulfill the spirit of the laws passed by Congress.
    5. 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.
                  f. general qualifications and views
    1. How does your previous professional experiences and education 
qualify you for the position for which you have been nominated? See 
response to Questions A9, A12, A15, A16, and 17(b)
    2. Why do you wish to serve in the position for which you have been 
nominated?
    I believe that my professional experience well qualifies me for 
this important position. Although I have grown considerably from my 
experience as a partner at a great American law firm, my greatest 
professional fulfillment has come through government service, to which 
I have devoted most of my career. If confirmed, I will work at the 
Commission to advance the goal of a strong and competitive U.S. economy 
and a business environment which provides high quality and 
competitively priced goods and services to a well and accurately 
informed consuming public.
    3. What goals have you established for your first two years in this 
position, if confirmed?
    If confirmed, I have no current agenda or policy goals but will 
bring to the job a mind objective and open to master the complicated 
facts and sophisticated concepts upon which I will be called to 
deliberate.
    4. What skills do you believe you may be lacking which may be 
necessary to successfully carry out this position? What steps can be 
taken to obtain those skills?
    I lack no specific skills to speak of, but view myself as a 
perpetual student of the law and will take the opportunity, if 
confirmed, to immerse myself in the substantive work of the Commission.
    5. Please discuss your philosophical views on the role of 
government. Include a discussion of when you believe the government 
should involve itself in the private sector, when society's problems 
should be left to the private sector, and what standards should be used 
to determine when a government program is no longer necessary.
    I believe that the people of the United States are its government 
and that government's essential role is to allow the people to achieve 
their personal and collective objectives within our constitutional 
framework. The efficacy of government involvement in the private sector 
will depend upon the particular issue and the appropriate mandate of a 
particular government body. The Federal Trade Commission was conceived 
by President Wilson and Louis Brandeis as a new kind of governmental 
body. Its mandate was not primarily to intervene in private sector 
matters but to work with the private sector to improve the performance 
of business for the mutual benefit of consumers and business and 
derivatively to improve the manner in which government and business 
interact. The antitrust laws are properly viewed as the Magna Carta of 
the American system of free enterprise.
    For the antitrust laws to fulfill their objectives, the consuming 
public must be fully and accurately informed. Congress was wise to 
empower a single agency to enforce both consumer protection and 
antitrust laws because of the interdependent relationship of these two 
legal regimes. Many competitive and informational defects are self-
correcting and should be left to the market for self-correction. The 
government, however, should and indeed must intervene when the nature 
of the competitive defect is not self-correcting or when market forces 
will expunge restraints of trade too slowly or only partially. There is 
no general formula for predetermining when government intervention in 
private sector behavior, raising questions under the antitrust and 
consumer protection laws, is appropriate. These decisions are 
contextual and require wisdom, skill, and a proper understanding of 
when past government intervention has worked well and when it has not.
    Practically speaking, general standards should be used to determine 
when government programs are no longer necessary. In the case of the 
FTC, for example, I understand that the Commission periodically reviews 
past rules, guides, orders, and initiatives and has found that many 
were obsolete or inappropriate and thus vacated some 25 percent of its 
rules and guides in 1995. Although most of the vacated rules involved 
consumer protection initiatives, a few also involved competition 
issues. I also understand that, based on complaints by regulated 
companies, the Commission instituted reforms that would make the merger 
review process more meaningful and efficient before a second request 
issued. I believe that the Commission's policy under both Chairman 
Muris and former Chairman Pitofsky, of instituting workshops so that 
more factual data can be gathered about how present and proposed rules 
operate, is a sound one. I believe periodic review is important to 
ensure that the rules in place are proper and are still necessary. It 
is also a good practice to listen to suggestions from those who are 
regulated to assess how the regulatory process might work even more 
efficiently.
    6. Describe the current mission, major programs, and major 
operational objectives of the department/agency to which you have been 
nominated.
    The current mission of the FTC is to prevent or correct business 
practices that are anticompetitive or deceptive or unfair to consumers; 
to enhance informed consumer choice and public understanding of the 
competitive process; and to accomplish these missions without unduly 
burdening legitimate business activity.
    The major programs of the Commission, during the past year, include 
the far reaching amendments to the Telemarketing Sales Rule, in the 
Privacy area, where the FTC launched its ``Do Not Call'' registry. The 
registry will be a central database of telephone numbers of consumers 
who choose not to receive telemarketing calls.
    Prescription drugs in the health care area is another key program 
of the Commission. To help ensure that anticompetitive practices do not 
injure consumers by reducing the availability or increasing the price 
of drugs, the FTC published a study examining the frequency of 
anticompetitive abuses to block market entry of lower-cost generic 
drugs. The Commission also provided comments to the Food and Drug 
Administration (FDA) on the potential for misusing procedures under the 
Hatch-Waxman Amendments governing employing improper efforts to delay 
generic entry, also, has been a priority of the Commission.
    Recently, the Commission and Department of Justice concluded 
extensive hearings on Competition and Intellectual Property Law and 
Policy in the Knowledge-Based Economy. The hearings responded to the 
growth of the knowledge-based economy; the increasing role of dynamic, 
innovation-based considerations in antitrust policy; and the importance 
of managing the intersection of intellectual property and competition 
law to realize the goal of promoting innovation.
    The Commission also has sought to protect competition in the 
gasoline market. In a recently issued administrative complaint, the 
Commission alleged that Unocal improperly manipulated the process 
through which the California Air Resources Board set regulations for 
the formulation of low-emissions gasoline. The Commission alleged that 
Unocal's anticompetitive conduct potentially could cost California 
consumers hundreds of millions of dollars a year in higher gasoline 
prices. The case currently is in trial before an administrative law 
judge. Gasoline price monitoring is another effort by the Commission 
which complements and supports its enforcement in the energy field. 
Staff members have analyzed wholesale gasoline prices in more than 20 
cities and resale gas prices in 360 cities throughout the U.S. I 
understand that the Commission will analyze this data and take any 
action deemed appropriate.
    The Internet's development has created many consumer issues, 
requiring the Commission to draw on its competition and consumer 
protection capabilities. The Commission has formed an Internet Task 
Force to analyze state regulations that may restrict the entry of new 
Internet competitors. Likewise, the Commission hosted public workshops 
on spam and potential anticompetitive barriers to e-commerce, 
continuing its efforts to keep this medium free from fraud, deception, 
and unfair or anticompetitive practices.
    In the financial practices area, the Commission has targeted 
deceptive lending as an enforcement priority. A court recently 
finalized a settlement to resolve charges that a banking company had 
engaged in widespread deceptive and abusive practices involving 
subprime home mortgage lending. The settlement is expected to provide 
$215 million in redress through cash refunds and reduced loan balances 
to 2.2 million consumers in the U.S., Puerto Rico, and the Virgin 
Islands.
    The major operational objective of the Commission's competition 
program is to prevent anticompetitive mergers and other anticompetitive 
business practices in the marketplace by identifying such mergers and 
practices that cause the greatest consumer injury; stemming 
anticompetitive mergers and practices through law enforcement; and 
preventing consumer injury through education. In the area of consumer 
protection the Commission seeks to prevent fraud, deception, and unfair 
business practices in the marketplace by identifying practices that 
cause the greatest consumer injury; by stopping such practices through 
law enforcement, ensuring broad-based protection for consumers and by 
preventing consumer injury through education.
    7. What do you believe to be the top three challenges facing the 
department/agency and why?
    A challenge which constantly faces the Commission and the Antitrust 
Division as well, is to find and allocate sufficient resources to 
engage in non-merger related antitrust investigation and enforcement. 
Despite the recent and likely short-term downturn in mergers subject to 
Hart-Scott-Rodino review, the agency has for more than twenty years 
struggled to devote sufficient resources to non-merger enforcement 
under the Commission's Section 5 authority to enforce the Nation's 
primary antitrust law, the Sherman Act. The recent downturn in merger 
filings should create the opportunity for additional and vital non-
merger antitrust activities. The experience gained and the lessons 
learned in these activities should help the Commission strike a new and 
a proper balance between merger and non-merger enforcement when merger 
activity increases with a rebounding economy.
    As is clear from my resume, a good portion of my antitrust work in 
government involved prosecuting violations of law relating to so-called 
vertical restraints of trade. My extensive experience in this area has 
taught me that vertical trade restraints often harm consumers as 
clearly as the horizontal trade restraints which the Federal agencies 
have focused upon almost exclusively. A clear challenge for the 
Commission is to investigate and, when warranted, prosecute vertical 
trade restraints. I am sure that the lack of Commission activity in 
this area is not justified by any lack of problems in this area or due 
to the adequacy of private or state attorney general enforcement. While 
the states have traditionally played the lead role in this area, they 
and the consuming public need an active and knowledgeable Commission in 
this important part of antitrust enforcement.
    The Commission has identified deceptive spam as a growing problem, 
which it isaddressing through law enforcement efforts, consumer and 
business education, and a recent recommendation for legislation to 
enhance its effectiveness in fighting spam. The problems caused by 
unsolicited commercial e-mail go well beyond the annoyance spam causes 
to the public. These problems include the fraudulent and deceptive 
content of most spam messages, the sheer volume of spam being sent 
across the Internet, and the security issues raised, because spam can 
be used to disrupt service or as a vehicle for sending viruses. The 
Commission has found that 66 percent of spam contained obvious indicia 
of falsity. Moreover, a significant portion of spam is likely to be 
routed through foreign servers. For these reasons, the Commission 
believes it would be useful to have additional legislative authority, 
addressing both procedural and substantive issues, that would enhance 
the agency's effectiveness in fighting fraud and deception. The 
procedural legislative proposals would improve the Commission's ability 
to investigate possible spam perpetrators, and the substantive 
legislative proposals would improve the agency's ability to sue the 
perpetrators.
    8. In reference to question number six, what factors in your 
opinion have kept the department/agency from achieving its missions 
over the past several years?
    The question assumes that the Commission has not achieved its 
mission. I am unable to comment on that assumption, with one exception. 
That exception being the lack of there are factors, however, which 
might prevent the agency from accomplishing its mission such as limited 
resources due to budgetary constraints; complexities involved in 
assessing new technology and intellectual property; and the ease with 
which scam artists have taken to new technology to prey upon consumers.
    9. Who are the stakeholders in the work of this department/agency?
    The American consumer, the general public, quality producers of 
goods and services, members of various congressional committees, 
numerous Federal and state agencies and private organizations are the 
stakeholders in the work of the Commission.
    10. What is the proper relationship between the position to which 
you have been nominated, and the stakeholders identified in question 
number nine?
    The FTC has a unique adjudicative, educational, and investigatory 
mission. In relation to the stakeholders, the Commission should be 
cognizant of their concerns and responsive when this responsiveness is 
consistent with the Commission's investigatory or adjudicative 
missions. In fulfilling its duties to the stakeholders, Commissioners 
should approach each matter diligently, fairly, well-informed, and with 
an open-mind.
    11. The Chief Financial Officers Act requires all government 
departments and agencies to develop sound financial management 
practices.
    (a) What do you believe are your responsibilities, if confirmed, to 
ensure that your department/agency has proper management and accounting 
controls?
    The Commission has published a Strategic Plan for Fiscal Years 
2000-2005 with clearly articulated performance measures and targets. If 
confirmed, it will be essential to familiarize myself with the 
strategic plan and other relevant documents to assess proper management 
and accounting controls.
    (b) What experience do you have in managing a large organization?
    In my previous experience as New York State Deputy Attorney General 
of Public Advocacy, my duties included oversight of the Attorney 
General's Public Advocacy Division which employed over 350 Assistant 
Attorneys General and supporting staff, in seven substantive areas of 
law (Antitrust, Consumer Protection, Civil Rights, Charities, 
Environmental Protection, Investor Protection and Real Estate Finance).
    12. The Government Performance and Results Act requires all 
government departments and agencies to identify measurable performance 
goals and to report to Congress on their success in achieving these 
goals.
    (a) What benefits, if any, do you see in identifying performance 
goals and reporting on progress in achieving those goals?
    Identifying, reporting on and meeting articulated performance goals 
provides significant benefits to the American consumer. The cost of the 
Commission's operations is a good investment for consumers and 
businesses. Effective management of Commission resources provides an 
additional benefit to the public. The Commission's internal control 
review program, along with its Inspector General's audits, plays a 
significant role in ensuring effective and responsive agency 
operations.
    (b) What steps should Congress consider taking when a department/
agency fails to achieve its performance goals? Should these steps 
include the elimination, privatization, downsizing, or consolidation of 
departments and/or programs?
    When an agency fails to achieve its performance goals, Congress 
should determine the reason such goals have not been achieved. If the 
failure is due to external factors, such as reduced funding, the above 
steps would not appear warranted. Before any such structural actions 
are taken, Congress should weigh the benefits and burdens of the 
proposed action to the ultimate stakeholders.
    (c) What performance goals do you believe should be applicable to 
your personal performance, if confirmed?
    If confirmed, the applicable performance goal should be that of an 
informed, engaged member of the Commission, who executes her duties 
with integrity, intelligence, compassion, selflessness, and honesty. As 
these standards apply to my own performance--so, too, should they apply 
to our Nation. In the words of Frederick Douglass, ``The life of a 
nation is secure only while the Nation is honest, truthful, and 
virtuous.''
    13. Please describe your philosophy of supervisor/employee 
relationships. Generally, what supervisory model do you follow? Have 
any employee complaints been brought against you?
    My ``philosophy'' in this area precisely matches my practice. I 
believe in leadership by example. While I do not follow any particular 
supervisory model, I believe in the responsible and appropriate 
delegation of authority and the knowledge that those who work with me 
will do so intelligently, professionally and with integrity. No 
employee complaints have been brought against me.
    14. Describe your working relationship, if any, with the Congress. 
Does your professional experience include working with committees of 
Congress? If yes, please explain.
    During my tenure as the New York State Deputy Attorney General of 
Public Advocacy, I created the National Association of Attorneys 
General Boxing Task force, comprised of 18 member states, that 
collaborated with Senator John McCain to reform professional boxing in 
the U.S. As a member of the Task Force, I and others strongly endorsed 
The Muhammad Ali Boxing Reform Act (S. 305) sponsored by Senator 
McCain. The final bill, Public Law 106-210, was passed May 26, 2002, 
during the 106th Congress.
    15. Please explain what you believe to be the proper relationship 
between yourself, if confirmed, and the Inspector General of your 
department/agency.
    Though I have no specific knowledge about the duties of the FTC 
Inspector General, my general sense of an Inspector General's role 
would be to conduct and supervise audits and investigations relating to 
the programs and operations of an agency; to promote economy, 
efficiency, and effectiveness in agency administration; to prevent and 
detect fraud and abuse in agency programs and operations; and to 
provide a means for keeping the head of an agency and the Congress 
fully and currently informed about problems and deficiencies relating 
to the administration of particular programs and operations and the 
necessity for and progress of correct action. In this regard, the 
proper relationship should be to fully cooperate with such audits and/
or investigations and not unduly influence or impede the investigatory 
process.
    16. In the areas under the department/agency's jurisdiction to 
which you have been nominated, what legislative action(s) should 
Congress consider as priorities? Please state your personal views.
    Congress should consider for legislative action unauthorized 
commercial e-mail (spam) (a discussion of spam is stated, supra, on 
pages 15-16), cross-border fraud, and identity theft.
    Cross-border fraud is a growing problem for consumers and 
businesses in the U.S. and abroad. During 2002, approximately 14 
percent of complaints collected in the FTC's Consumer Sentinel 
complaint database involved a cross-border element. The number of 
Commission cases involving offshore defendants, offshore evidence, or 
offshore assets has also increased. In 2002, the Commission brought 
over 20 law enforcement actions involving cross-border fraud. To 
address this problem, Chairman Muris announced a Five-Point Plan to 
Combat Cross-Border Fraud by (1) Developing OECD Guidelines on cross-
border fraud; (2) Strengthening bilateral and multilateral 
relationships with foreign jurisdictions; (3) Continuing public-private 
partnerships with industry; (4) Providing technical assistance to 
developing countries; and (5) Recommending proposals for legislative 
amendments.
    Identity fraud was number one on the top ten consumer fraud 
complaints in calendar year 2002. In response, the Commission has 
implemented a toll-free number as the central clearinghouse for 
identity theft complaints and provides a valuable source of consumer 
complaint data. The identity theft database now holds more than 430,000 
entries. The Commission began making the data available to law 
enforcement partners through an online database, and now more than 540 
law enforcement agencies access the data. Working with the Secret 
Service, the Commission investigators develop preliminary investigative 
reports that are referred to regional Financial Crimes Task Forces for 
possible prosecution.
    17. Within your area of control, will you pledge to develop and 
implement a system that allocates discretionary spending in an open 
manner through a set of fair and objective established criteria? If 
yes, please explain what steps you intend to take and a time frame for 
their implementation. If not, please explain why.
    I know that the Commission submits a detailed programmatic budget 
to the Congress, together with its Strategic Plan, performance 
measures, and audited financial statements. Transparency in the area of 
discretionary spending is a laudable goal, and if confirmed, I will 
discuss this initiative with my fellow Commissioners.

    The Chairman. Thank you very much.
    Ms. Nason.

           STATEMENT OF NICOLE NASON, NOMINATED TO BE

         ASSISTANT SECRETARY FOR GOVERNMENTAL AFFAIRS,

               U.S. DEPARTMENT OF TRANSPORTATION

    Ms. Nason. Thank you very much, Mr. Chairman.
    I am also blessed to have many members of my family here 
today: my mother, Janice Robilotto, here from New York; my in-
laws George and Ann Nason, coming from Rhode Island; my husband 
David; and my two-year-old daughter Alexandra. I apologize in 
advance if she tries to upstage mommy in her developing public 
speaking abilities.
    Senator Lautenberg. She will get you a lot of votes.
    The Chairman. Your family members are very welcome here 
today and thank you for coming.
    Ms. Nason. Chairman McCain and Members of the Committee: 
Thank you for the opportunity to appear before you today to 
consider my nomination to be Assistant Secretary for 
Governmental Affairs of the Department of Transportation. It is 
an honor to be here and a privilege to have been selected by 
President Bush and Secretary Mineta for this position.
    Mr. Chairman, if confirmed I look forward to working with 
this Committee on the many critical pieces of legislation 
moving through the Congress this session and next. I would also 
like to express my appreciate for the support I have received 
from both of my former Chairmen, Congressman Henry Hyde and 
Congressman Porter Goss. Although they are both on travel 
today, they have been the most reliable and trustworthy 
advisers any person could have asked for and I am in their 
debt.
    Mr. Chairman, as you noted, this is a significant year for 
the Department of Transportation as so many of the modes are 
facing Congressional reauthorization. If confirmed, I intend to 
work closely with all of the modal administrators to help 
coordinate their dealings with Congress on the critical issues 
they are facing. They have been selected for their positions 
because of their expertise in the field and I intend to listen 
closely to their concerns so that the Department can speak with 
one voice to Congress.
    Mr. Chairman, I believe it is my primary responsibility and 
the primary responsibility of any government affairs office to 
ensure that lines of communication between the Department and 
the Congress are always open. If confirmed, it is my goal to be 
in constant consultation with Congress and the other 
transportation stakeholders to ensure that laws and regulations 
are implemented effectively.
    I believe it is crucial that the Department complies with 
both the letter and the spirit of laws passed and that all 
sides fully understand both Congressional history and 
Congressional intent with respect to any law.
    The opportunity to serve as Assistant Secretary to 
President Bush and Secretary Mineta is a great honor. If 
confirmed, I know this will be a very interesting and 
challenging role, and I look forward to working with you, Mr. 
Chairman, and the Members of this Committee to help make 
transportation in America the safest and most efficient 
possible.
    Again, thank you for the opportunity. I look forward to 
answering your questions.
    [The prepared statement and biographical information of Ms. 
Nason follow:]

Prepared Statement of Nicole R. Nason, Nominee for Assistant Secretary 
      for Governmental Affairs, U.S. Department of Transportation
    Chairman McCain, Senator Hollings and members of the Committee, 
thank you for the opportunity to appear before you today to consider my 
nomination to be Assistant Secretary for Governmental Affairs of the 
Department of Transportation. It is an honor to be here and a privilege 
to have been selected by President Bush and Secretary Mineta for this 
position. Mr. Chairman, if confirmed, I look forward to working with 
this Committee on the many critical pieces of legislation moving 
through the Congress this session and next.
    I also would like to express my appreciation for the support I have 
received from both of my former Chairmen, Congressman Henry Hyde and 
Congressman Porter Goss. Although they are both on travel today, they 
have been the most reliable and trust-worthy advisors any person could 
have asked for and I am in their debt. I still approach them both 
regularly when I need advice and guidance and their doors are always 
open.
    This is a significant year for the entire Department, as so many of 
the modes are facing congressional reauthorization. If confirmed, I 
intend to work closely with all of the modal administrators to help 
coordinate their dealings with Congress on the critical issues they are 
facing. They have been selected for their positions because of their 
expertise in the field, and I intend to listen closely to their 
concerns so that the Department can speak with one voice to Congress.
    Mr. Chairman, I believe it is the primary responsibility of the 
government affairs office to ensure that lines of communication between 
the Department and the Congress are always open. If confirmed, it is my 
goal to be in constant consultation with Congress and other 
transportation stakeholders to ensure that laws and regulations are 
implemented effectively. I believe it is crucial that the Department 
complies with both the letter and the spirit of the laws passed, and 
that all sides fully understand both congressional history and intent 
with respect to any law.
    The opportunity to serve as Assistant Secretary to President Bush 
and Secretary Mineta is a great honor. If confirmed, I know this will 
be a very interesting and challenging role, and I look forward to 
working with you, Mr. Chairman, and members of the Committee to help 
make transportation in America the safest and most efficient possible.
    Again, thank you for the opportunity to appear, and I look forward 
to answering your questions.
                                 ______
                                 
                      a. biographical information
    1. Name: (Include any former names or nicknames used.): Nicole 
Robilotto Nason.
    2. Position to which nominated: Assistant Secretary of 
Transportation for Governmental Affairs.
    3. Date of nomination: May 14, 2003.
    4. Address (List current place of residence and office addresses):

        Residence: Information not released to the public.

        Office: U.S. Dept. of Transportation, 400 Seventh St., SW, 
        Washington, D.C. 20590.

    5. Date and place of birth: August 12, 1970, Bayshore, New York.
    6. Marital status (Include maiden name of wife or husband's name.): 
Married to David G. Nason.
    7. Names and ages of children: (Include stepchildren and children 
from previous marriages.)

        Alexandra Hope Nason, born March 29, 2001.

    8. Education: (List secondary and higher education institutions, 
dates attended, degree received, and date degree granted.)

        Case Western Reserve University, Juris Doctorate, 1995

        The American University, Bachelor of Arts in Political Science, 
        1992

    9. Employment record: (List all jobs held since college, including 
the title or description of job, name of employer, location of work, 
and dates of employment.)

        Department of Transportation, Consultant, Washington, D.C., 
        March 2003 to Present.

        U.S. Customs Service, Assistant Commissioner of Congressional 
        Affairs, Washington, D.C., Jan. 2002-March 2003.

        Congressman Porter J. Goss, Communications Director, 
        Washington, D.C., Sept. 2000-Jan. 2002.

        MetLife, Inc. (formerly Metropolitan Life Insurance Company), 
        Government Relations Counsel, Washington, D.C., March 1999-
        August 2000.

        U.S. House Committee on the Judiciary, Counsel, Washington, 
        D.C., Sept. 1995-March 1999.

    10. Government experience: (List any advisory, consultative, 
honorary or other part-time service or positions with Federal, State, 
or local governments, other than those listed above.)

        Not Applicable.

    11. Business relationships: (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.)

        MetLife, Inc., Government Relations Office Counsel.

    12. Memberships: (List all memberships and offices held in 
professional, fraternal, scholarly, civic, business, charitable and 
other organizations.)

        Delta Gamma Fraternity, 1989-1992 (Recording Secretary 1990-
        1991; Vice President 1991-1992), Student Advisor: 1995-2001; 
        American Bar Association, 1992-1996 (approx.); Maryland State 
        Bar Association, 1995-1997 (approx.); Cornerstone School of 
        Washington, D.C. (local, faith-based elementary school), 
        sponsor for 1 child, 2000 to Present; Washington Golf & Country 
        Club (Arlington, VA), Wait List; St. Agnes Catholic Church.

    13. Political affiliations and activities:

        (a) None

        (b) None

        (c) To the best of my knowledge, I have made the following 
        political contributions, although none were over $500.00: 
        National Governor's Association, 2000; Abraham for Senate, 
        2000; Rob Portman for Congress, 1999-2000; National Republican 
        Senatorial Committee, 1999.

    14. Honors and awards: (List all scholarships, fellowships, 
honorary degrees, honorary society memberships, military medals and any 
other special recognitions for outstanding service or achievements.)

        Suffolk County Police Memorial Scholarship winner, 1988-1992.

    15. Published writings: (List the titles, publishers, and dates of 
books, articles, reports, or other published materials which you have 
written.) None.
    16. Speeches: Provide the Committee with two copies of any formal 
speeches you have delivered during the last 5 years which you have 
copies of on topics relevant to the position for which you have been 
nominated: None.
    17. Selection:

    (a) I believe I was chosen because of my experience as the 
Assistant Commissioner of Congressional Affairs of the U.S. Customs 
Service and my time as a staff member in the House of Representatives. 
I believe that President Bush and Secretary Mineta focused on my 
management experience and familiarity with the legislative process in 
determining my suitability as Assistant Secretary of Governmental 
Affairs of the Department for Transportation.

    (b) Should be confirmed by the U.S. Senate, I will bring my 
experience in governmental relations in a variety of positions to my 
new role in the Department of Transportation. Having worked as a 
committee counsel, a communications director, a lobbyist, and an agency 
government relations representative, I am looking forward to being a 
part of President Bush's senior legislative team. This is an especially 
significant time for transportation interests, and I am eager to work 
with the Congress towards passage of the significant transportation 
legislative initiatives this session.
                   b. future employment relationships
    1. Will you sever all connections with your present employers, 
business firms, business associations, or business organizations if you 
are confirmed by the Senate?
    Yes, except that I am presently employed by the Department of 
Transportation as a consultant.
    2. Do you have any plans, commitments, or agreements to pursue 
outside employment, with or without compensation, during your service 
with the government? If so, explain. No.
    3. Do you have any plans, commitments, or agreements after 
completing government service to resume employment, affiliation, or 
practice with your previous employer, business firm, association, or 
organization? No.
    4. Has anybody made a commitment to employ your services in any 
capacity after you leave government service? No.
    5. If confirmed, do you expect to serve out your full term or until 
the next Presidential election, whichever is applicable? Yes.
                   c. potential conflicts of interest
    1. Describe all financial arrangements, deferred compensation 
agreements, and other continuing dealings with business associates, 
clients, or customers. None.
    2. Indicate any investments, obligations, liabilities, or other 
relationships which could involve potential conflicts of interest in 
the position to which you have been nominated.
    I am not aware of any conflicts of interest.
    3. Describe any business relationship, dealing, or financial 
transaction which you have had during the last 10 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?
    I am not aware of any conflicts of interest.
    4. Describe any activity during the past 10 years in which you have 
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 counsel to the House Judiciary Committee, I was engaged in the 
passage, defeat or modification of numerous pieces of legislation. 
Also, as government relations counsel at MetLife, I lobbied the 
Congress in support of several legislative initiatives. Finally, while 
serving as the Assistant Commissioner of the U.S. Customs Service, I 
represented the Administration's position regarding many bills 
affecting the Customs Service and/or the Department of the Treasury. I 
have outlined below, to the best of my ability, some of the major 
pieces of legislation that I was involved with during the past ten 
years.
    Judiciary: Several different pieces of antiterrorism legislation; 
U.S. Marshals Service oversight legislation; BATF oversight 
legislation; H.R. 3633, the Controlled Substances Trafficking 
Prohibition Act; H.R. 2070, Correction Officers Health and Safety Act 
of 1997; H.R. 1524, Rural Law Enforcement Assistance Act of 1997; H.R. 
2829, Bulletproof Vest Partnership Grant Act of 1997; H.R. 2134, Bail 
Bond Fairness Act of 1997; H.R. 2380, Internet Gambling Prohibition Act 
of 1997; cellular telephone fraud legislation; H.R. 218, Community 
Protection Act of 1997; H.R. 339, to provide for a national concealed 
firearm standard; H.R. 2380, the Internet Gambling Prohibition Act of 
1997; H.R. 1248, the Violence Against Women Act; H.R. 1869, the 
``Stalking Prevention and Victim Protection Act of 1999.''
    MetLne: Legislation related to electronic signatures, pension 
reform and employee benefits, tort reform.
    U.S. Customs Service: Legislation related to trade facilitation; 
sea, air and land cargo; air passenger manifests; drug smuggling; 
antidumping duty enforcement; Jones Act compliance; money laundering.
    5. Explain how you will resolve any potential conflict of interest, 
including any that may be disclosed by your responses to the above 
items. (Please provide a copy of any trust or other agreements.)
    Please refer to the Deputy General Counsel's opinion letter.
    6. Do you agree to have written opinions provided to the Committee 
by the designated agency ethics officer of the agency to which you are 
nominated and by the Office of Government Ethics concerning potential 
conflicts of interest or any legal impediments to your serving in this 
position? Yes.
                            d. legal matters
    1. Have you ever been disciplined or cited for a breach of ethics 
by, or been the subject of a complaint to any court, administrative 
agency, professional association, disciplinary committee, or other 
professional group? If so, please explain. No.
    2. Have you ever been investigated, arrested, charged, or held by 
any Federal, State, or other law enforcement authority for violation of 
any Federal, State, county, or municipal law, regulation, or ordinance, 
other than for a minor traffic offense? If so, please explain. No.
    3. Have you or any business of which you are or were an officer 
ever been involved as a party in an administrative agency 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. Please advise the Committee of any additional information, 
favorable or unfavorable, which you feel should be disclosed in 
connection with your nomination.
    I am not aware of any additional information that is not already 
covered in other sections of this questionnaire.
                     e. relationship with committee
    1. Will you ensure that your department/agency complies with 
deadlines for information set by congressional committees?
    Yes, to the best of my ability.
    2. Will you ensure that your department/agency does whatever it can 
to protect congressional witnesses and whistleblowers from reprisal for 
their testimony and disclosures?
    Yes, to the best of 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 best of my ability.
    4. Please explain how if confirmed, you will review regulations 
issued by your department/agency, and work closely with Congress, to 
ensure that such regulations comply with the spirit of the laws passed 
by Congress.
    It is my intent to work closely with every modal administrator of 
the Department of Transportation to ensure that regulations issued 
comport with both the letter and the spirit of the law. Additionally, I 
will consult with Members of Congress and staff to gain as clear an 
understanding as possible of the congressional intent of a given law. 
As a former Member of Congress, Secretary Mineta has a keen 
understanding of the importance of complying with legislative intent, 
and I will also rely on his judgment and experience to assist me.
    5. Are you willing to appear and testify before any duly 
constituted committee of the Congress on such occasions you may be 
reasonably requested to do so? Yes.
                  f. general qualifications and views
    1. How does your previous professional experiences and education 
qualify you for the position for which you have been nominated?
    My undergraduate degree from The American University was in 
political science, and my first exposure to the political process was 
as an intern in the House of Representatives. Following college 
graduation, I moved to Cleveland to attend Case Western Reserve 
University's law school, but I returned immediately to Washington after 
I completed my studies to prepare for the Maryland bar and find 
employment on Capitol Hill. I spent nearly four years as a committee 
counsel for the House Judiciary Committee, most with the Subcommittee 
on Crime, and I believe I gained a good understanding of the challenges 
associated with the legislative process. I then left to work as a 
government relations counsel in the Washington, D.C. office of MetLife, 
Inc. As a lobbyist for MetLife, I saw a different and equally important 
side to the process--the role of the private sector. When I returned to 
government service working for Congressman Porter Goss, I was 
privileged to gain both committee and personal office experience in the 
role of communications director. After September 11, I was honored to 
have been asked by the Administration to serve as the Assistant 
Commissioner for Congressional Affairs for the U.S. Customs Service, 
and subsequently saw yet another side to the process. I believe that 
this wide variety of viewpoints will assist me as I try to understand 
all of the different perspectives relative to transportation policy. I 
am interested in learning all the various views on a particular issue 
because I believe everyone--the Congress, the Administration and the 
private sector--can all contribute in a meaningful way to a particular 
piece of legislation.
    2. Why do you wish to serve in the position for which you have been 
nominated?
    I believe this nomination represents a wonderful opportunity to 
represent two people I greatly admire and respect, President George 
Bush and Secretary Norman Mineta. The position will certainly be 
challenging, and I am very enthusiastic about learning much more about 
transportation law and policy. I think transportation is one of the 
most basic and significant needs of the American public, and I am 
excited about all of the reauthorization bills coming before the 
Congress this year. Also, I believe the Department can contribute 
significantly to ensuring the Nation's domestic security, and look 
forward to working on that agenda. I can't think of a better time to 
get involved with such a fundamentally important department as the 
Department of Transportation.
    3. What goals have you established for your first two years in this 
position, if confirmed?
    My primary goal will be to support the President and the Secretary 
on all issues that fall within my purview at the Department of 
Transportation. If confirmed, I hope to ensure that Congress and the 
Administration maintain or improve communication regarding the other's 
concerns and needs. I believe that regular and open communication will 
be critical to achieve passage of the numerous comprehensive 
legislative proposals that must pass this year. I believe that, while 
the agenda is very heavy and complex, an open dialog will guarantee 
success for all parties.
    I also hope to make communication within the Department's 
government affairs team even stronger. It is critical that the 
Department speaks with one voice. Otherwise we risk confusing the 
Congress and the private sector unfairly and unnecessarily. I know that 
many employees have new ideas, and I look forward to hearing their 
proposals regarding better and more productive meetings, conference 
calls, etc.
    I will also seek to ensure that the entire government affairs team 
at the Department strives to meet the highest ethical standards. I 
believe that integrity and credibility are the most important 
characteristics of a government relations employee. The Congress must 
know that we are honest and straightforward in our dealings, and the 
President and the Secretary deserve nothing less.
    4. What skills do you believe you may be lacking which may be 
necessary to successfully carry out this position? What steps can be 
taken to obtain those skills?
    I hope and expect to continue to develop my management skills in 
this role. I also know that I will have to develop a much more detailed 
knowledge base on transportation policy. The role of Assistant 
Secretary for Governmental Affairs carries great responsibility, and I 
know that I have much to learn from my advisors within the Department 
and the policy experts in the Congress.
    5. Please discuss your philosophical views on the role of 
government. Include a discussion of when you believe the government 
should involve itself in the private sector, when society's problems 
should be left to the private sector, and what standards should be used 
to determine when a government program is no longer necessary.
    I have never believed that government can cure all of society's 
problems; however, I do believe that it is incumbent upon all levels of 
government to invest in transportation infrastructure. Particularly in 
the transportation arena, federal, state and local governments need to 
partner with the private sector to benefit the citizenry. Government 
investment in transportation infrastructure is not meddling, and I 
believe most Americans expect and depend on their elected 
representatives to support a strong national transportation system.
    This should not mean that the Federal Government has a 
responsibility to ``bailout'' every different mode of transportation. 
On the contrary, I believe the government has an obligation to show 
restraint, and allow the free market to expand or contract based on the 
public's needs. The government should not become a public trough for 
every transportation industry that has fallen upon hard times. As 
recent reports have demonstrated, bad business decisions by the private 
sector can cause, or at least contribute to, a corporation's downward 
fiscal slide. The government has sensibly embraced a periodic review of 
the various modes to determine if emerging trends are positive or 
negative for the traveling public.
    It is difficult to say at what point exactly the government needs 
to intervene and what standards should be used. A strong public-private 
partnership should aid in such a determination. With a strong 
partnership comes strong communication, and the government can know 
sooner of a developing problem. The government then has the option to 
insert itself partially or totally to help resolve the potential 
crisis. Hopefully, in cases where the market needs to work its will, 
the government will not choose to get involved at all.
    6. Describe the current mission, major programs, and major 
operational objectives of the department/agency to which you have been 
nominated.
    The primary responsibility of the Department of Transportation is 
to ensure that a safe, efficient and cost-effective transportation 
system is available for the traveling public. One of Secretary Mineta's 
major goals this year is to promote safety in all modes of 
transportation, and I believe that is a very significant and worthwhile 
objective. The challenge to each of the appropriate agencies within the 
Department is to improve upon its own safety record, and to publicly 
promote safety as a top priority. Although safety should not slow 
efficiency; both can be achieved when the Department is committed as 
the Secretary is--to meeting these twin objectives.
    This is an extremely busy year for the Department of 
Transportation, as the Administration works with the Congress on 
several major legislative reauthorizations. The surface reauthorization 
proposal affects many of the modes, including the Federal Highway 
Administration, the Federal Transit Administration, the National 
Highway Transportation Safety Administration, and the Federal Motor 
Carrier Safety Administration. The Administration's proposal for 
reauthorization of the Federal Aviation Administration, dubbed ``Flight 
100,'' is also a top priority for this session. Another major 
operational objective is to work closely with the Congress on a plan to 
restructure Amtrak. Considering all these difficult issues, the Office 
of Governmental Affairs will need to ensure close coordination between 
the Congress and the Administration, so that information is shared 
appropriately and inquiries are answered promptly.
    7. What do you believe to be the top three challenges facing the 
department/agency and why?
    As Secretary Mineta has repeatedly stressed, the primary challenge 
facing the Department this year is to improve the overall safety 
record. For example, although improvements have been made in the rates 
of fatalities and injuries on highways, the total numbers are 
unacceptably high. Even more troubling is the fact that they are 
climbing. There are also attendant economic costs, such as medical and 
insurance costs, and loss of workplace productivity. Stressing the 
importance of making the national transportation system the safest 
possible is a top challenge.
    There are numerous additional challenges of the Nation's 
transportation system that the Department must tackle this year, during 
the reauthorization process. It is difficult to assign a ranking to 
these challenges, as all are significant. For example, congestion 
mitigation, intermodal connectivity, efficiency, and timely project 
delivery are all important. Overall, President Bush and Secretary 
Mineta are committed to promoting a safer, simpler and smarter Federal 
transportation system.
    8. In reference to question number six, what factors in your 
opinion have kept the department/agency from achieving its missions 
over the past several years?
    This is a very significant congressional session for the Department 
of Transportation because nearly all of the modes have reauthorization 
legislation pending. Although it will be a challenge to give each a 
high level of attention, I believe the Department will meet its 
mission. It is simply coincidence that smaller modes, such as the 
Maritime Administration with its approximately 850 total employees, are 
facing major legislative reviews simultaneous to the larger modes, like 
the Federal Aviation Administration with its forty-eight thousand 
employees. In recent years, the Inspector General has done thorough 
reviews of the agencies within the Department of Transportation; and 
many of the recommendations are now ready to be implemented during the 
reauthorization process. Additionally, much of the focus since 
September 11 was on development of the Transportation Security 
Administration, which has now been folded into the Department of 
Homeland Security. If confirmed, I will help ensure that the Office of 
Government Affairs works closely with the Congress to give each agency 
the assistance it deserves during this busy session.
    9. Who are the stakeholders in the work of this department/agency?
    The Department stakeholders are the Congress; the states and 
localities; the various transportation industries; and, of course, the 
traveling public. If the Department has failed the users of the 
transportation system, the traveling public, then the most critical 
stakeholders have been forgotten.
    10. What is the proper relationship between the position to which 
you have been nominated, and the stakeholders identified in question 
number nine?
    The position of Assistant Secretary requires me to be accountable 
to the stakeholders. If confirmed, I intend to learn the issues, listen 
to the stakeholders' concerns, and work to resolve any problems. I 
believe the primary role of Assistant Secretary for Government Affairs 
is to facilitate communication between the stakeholders and help solve 
problems.
    11. The Chief Financial Officers Act requires all government 
departments and agencies to develop sound financial management 
practices.
    (a) What do you believe are your responsibilities, if confirmed, to 
ensure that your department/agency has proper management and accounting 
controls?
    The primary responsibility for proper management and accounting at 
the Department of Transportation is with the Assistant Secretary for 
Budget and Programs. who also serves as the Department's Chief 
Financial Officer. If confirmed, I intend to work closely with the 
Budget Office, to help ensure that Members of Congress get timely 
responses to inquiries regarding proper accounting and management. I 
also intend to work with the Department's Inspector General tomake sure 
that funding is allocated lawfully and appropriately.
    (b) What experience do you have in managing a large organization?
    As the former head of an agency government affairs office, I was 
responsible for supervising an office of approximately twenty 
employees. These employees ranged from a GS-6 entry-level to several 
GS-15 senior managers. The office operated on an approximately $2 
million dollar budget. As Assistant Commissioner, I was responsible for 
ensuring that all budgetary needs were appropriately balanced, from 
salary to equipment to yearly bonuses. I also conducted all performance 
reviews and was responsible for all staffing changes (hires, transfers, 
etc.) below the GS-15 level.
    12. The Government Performance and Results Act requires all 
government departments and agencies to identify measurable performance 
goals and to report to Congress on their success in achieving these 
goals.
    (a) What benefits, if any, do you see in identifying performance 
goals and reporting on progress in achieving those goals?
    I believe that measurable performance goals are very helpful for 
setting achievable standards over the course of the year. Goals provide 
clarity for all employees, and help everyone work towards the same set 
of objectives. However, goals must be reviewed periodically, to ensure 
that new needs have not overtaken old ones, and performance adjustments 
are made as necessary. Otherwise, the value in setting measurable 
performance goals is lost. Also, I believe that employees need to have 
an active voice in the goal-setting process, so the goals have a 
positive meaning for everyone.
    (b) What steps should Congress consider taking when a department/
agency fails to achieve its performance goals? Should these steps 
include the elimination, privatization, downsizing, or consolidation of 
departments and/or programs?
    While the Department sets its own goals, many of the Department's 
successes or failures are tied to congressional determination. 
Reviewing the Department's goals is an appropriate and important role 
undertaken by the Congress, but Congress can also help the Department 
achieve success by providing the necessary tools and resources. The 
Department has failed to meet its goals if it first fails to 
communicate regularly with the Congress about its needs and shortfalls. 
If the Department doesn't meet its goals, investigation into the 
failure must be conducted and Congress should review to determine 
whether elimination, privatization, downsizing or consolidation is 
necessary. Any of these options may be viable alternatives. The 
Department also has the responsibility to learn from its mistakes, to 
ensure that they are not repeated.
    (c) What performance goals do you believe should be applicable to 
your personal performance, if confirmed?
    If confirmed, I believe my first responsibility will be to set 
goals relative to the Department's goals for the congressional session. 
I believe that any Office of Government Affairs can help guarantee a 
Department's success by focusing on communication with stakeholders as 
a performance measure. Although this is difficult to quantify, regular 
communications can be measured and accounted for by employees. If 
confirmed, I hope to do a review with current employees to learn their 
perspective on whether the office is operating at a high level of 
success. I believe they will expect the Assistant Secretary to 
implement necessary changes, and I hope to meet that goal. I also 
intend to hire as appropriate to fill any existing or upcoming staffing 
vacancies, so work is distributed fairly. I hope to set an example of 
integrity and responsiveness, so employees in the office feel that we 
are all held to the same high standards.
    Please describe your philosophy of supervisor/employee 
relationships. Generally, what supervisory model do you follow? Have 
any employee complaints been brought against you?
    I believe that employees who feel involved and empowered are more 
likely to be enthusiastic in their work. In my experience at the U.S. 
Customs Service, I saw that employees were more likely to embrace 
additional responsibilities if they felt included in the process. In 
other words, people like to know what is going on within an 
organization. Information sharing is key to helping people feel like 
part of a team. I always maintained an open door policy, so staff could 
share concerns at any time. While at Customs, I embraced a model of 
``team'' work, so that several people worked on projects together. I 
also believe that giving public credit to individuals, even within a 
team, is a very important tool. I am not aware of any employee 
complaints that have even been brought against me.
    14. Describe your working relationship, if any, with the Congress. 
Does your professional experience include working with committees of 
Congress? If yes, please explain.
    My professional career has related to working with the Congress in 
several different forms. As a committee counsel for the Judiciary 
Committee of the House of Representatives, I saw the congressional 
perspective on the lawmaking process. When I left the Judiciary 
Committee, I took a position as government affairs counsel with 
MetLife, Inc. and saw the legislative process from a very different 
angle. I planned briefings for Members and staff on MetLife's 
legislative priorities, and participated in fundraisers and retreats. 
This was unfamiliar work for me, and extremely valuable because I got 
to meet numerous congressional staff who didn't focus on Judiciary 
Committee issues. When I returned to Congress to work for 
Representative Porter J. Goss, I took a position as Communications 
Director and was able to learn about a broad range of issues from a 
communications perspective. Later, as the Assistant Commissioner for 
Government Affairs for the U.S. Customs Service, I interacted with the 
Congress on behalf of the Administration regarding primarily cargo, 
trade and security issues. I also communicated regularly with a wide 
range of Members' personal and district offices concerning their local 
port needs.
    15. Please explain what you believe to be the proper relationship 
between yourself, if confirmed, and the Inspector General of your 
department/agency.
    The Inspector General has a unique role to play, as he or she is 
independently confirmed and required by statute to report to Congress. 
The IG needs to remain somewhat insulated, to give an unbiased 
accounting to Congress regarding the Department's practices and 
activities. If confirmed, I intend to review the IG's reports and 
findings carefully, to better understand what concerns the Congress may 
have about the Department's practices. Also, I intend to work with the 
IG and the Congress as appropriate to assist with implementation of any 
needed changes 'within the Department.
    16. In the areas under the department/agency's jurisdiction to 
which you have been nominated, what legislative action(s) should 
Congress consider as priorities? Please state your personal views.
    With so many major pieces of legislation up for reauthorization 
this year, there are several obvious priorities, and I believe they are 
all important. One example is the reauthorization of the Federal 
Aviation Administration. The Senate Commerce, Science, and 
Transportation Committee has already begun action on the FAA bill. The 
Committee's markup represents an important first step in moving this 
significant piece of legislation forward. Another major issue for the 
Department is the reauthorization of TEA-21, which the Administration 
has named SAFETEA. Secretary Mineta has made the focus of this proposal 
an overall increase in safety. As the Secretary has stated repeatedly, 
it is not acceptable that the Nation suffers approximately 43,000 
deaths and over 3 million injuries annually on our highways. If 
confirmed, I intend to work closely with all committees of jurisdiction 
in the House and Senate on this critical bill. Also very important this 
year is the reauthorization of Amtrak. The Senate Commerce Committee 
and other committees have already held hearings on various proposals to 
reform Amtrak, and if confirmed I intend to work with the committees to 
develop consensus legislation for passenger rail reform.
    17. Within your area of control, will you pledge to develop and 
implement a system that allocates discretionary spending in an open 
manner through a set of fair and objective established criteria? If 
yes, please explain what steps you intend to take and a time frame for 
their implementation. If not, please explain why.
    The discretionary funds allocated by the Department are significant 
and must be awarded through an open process. It is important to note 
that the percentage of funds over which the Department has discretion 
is relatively small. Much of the funding is either earmarked or awarded 
to the States for their prioritization. As transportation funding 
becomes ever more critical, I believe the Department has an obligation 
to ensure that funds are spent on the most necessary and cost-effective 
projects. If confirmed, I would immediately begin working with the 
Congress and the State and local governments to guarantee that funds 
are used in the best and most fiscally prudent manner possible.

    The Chairman. Thank you very much. We welcome both 
witnesses.
    Ms. Nason, I noticed in the news this morning that Michael 
Jackson has announced his departure and we note that with great 
regret because of the outstanding job that he has done with 
this Committee and for the Nation.
    Senator Lautenberg, do you have any questions?
    Senator Lautenberg. Thank you, Mr. Chairman.
    I did not want Ms. Nason to think that I was displeased in 
any way with her nomination. But Ms. Harbour, coming from New 
Jersey, establishes an inextricable link. So if I neglected, I 
do want to say that we are very proud of the appointment that 
is being recommended for you as well.
    I have this question. Just a few weeks ago the Senate voted 
overwhelmingly to adopt an amendment that I offered to S. 824, 
the FAA reauthorization bill, to prevent the administration 
from privatizing the air traffic control. Now, leading up to 
that, though, DOT, the Office of Congressional Affairs, sent an 
unsolicited e-mail to Senate staffers in opposition to my 
amendment. Not only was the e-mail unsolicited, but it was 
factually incorrect. Interestingly, DOT did not send it to my 
staff. They had to get it secondhand.
    I understand that you, Ms. Nason, have been working as a 
consultant to DOT for the past several months. So I am 
interested to learn what involvement, if any, you had in 
preparing and sending that ATC e-mail.
    Ms. Nason. Thank you, Senator Lautenberg. I would be very 
concerned to learn if the government affairs office was sending 
misinformation through e-mail or any other means of 
communication. I think the most important thing any government 
affairs office can do is to help facilitate communication 
between the Hill and the Administration, and the one most 
important responsibility for someone in that office is to be 
credible and honest at all times.
    So I would be extremely concerned to learn that there was 
any kind of misinformation. I assure you I will look into that.
    Senator Lautenberg. Please do.
    Ms. Harbour--enough with the nice guy stuff. Are there any 
areas of consumer protection that are of particular interest to 
you at the FTC?
    Ms. Harbour. Thank you, Senator. Yes, I have a particular 
interest in cross-border consumer protection initiatives. The 
Internet and electronic commerce, as we all know, is 
boundaryless and cross-border fraud is a growing problem for 
consumers and businesses in the United States and abroad. I 
understand that in Fiscal Year 2002 approximately 14 percent of 
complaints collected at the Federal Trade Commission complaint 
database involved a cross-border element, and I know that the 
FTC is currently working with foreign countries to develop OECD 
guidelines--that is the international Organization for Economic 
Cooperation and Development--and that this effort was actually 
spearheaded by Commissioner Thompson, who leads the U.S. 
delegation to the OECD committee. This cross-border initiative 
would also help the Commission fight spam, the unsolicited 
commercial e-mails, and would allow sharing with foreign 
counterparts.
    If confirmed, Senator, I will work with my fellow 
commissioners to continue this very important initiative.
    Senator Lautenberg. Thank you.
    Two FTC chairmen, public health agencies, even cigarette 
companies, have recognized that current tar and nicotine rating 
system for cigarettes is deeply flawed. It gives false 
information to consumers. Ms. Harbour, do you think that the 
FTC ought to reexamine whether the rating system that is 
presently in place ought to be continued?
    Ms. Harbour. I am aware that the rating system for 
assessing the tar and the nicotine yields for cigarettes was 
promulgated back in 1967 and the science has definitely 
progressed since then. I do know that this system does not 
mimic the actual smoking behavior of consumers. I am aware that 
consumers will compensate in their smoking styles by drawing 
deeper, longer, more frequent puffs and that they might 
inadvertently cover the air holes in the filter and thereby 
negate the benefits that the low tar and nicotine cigarettes 
might offer.
    I do agree that the current rating system should definitely 
be reassessed. I believe, however, that it should be done by a 
public Federal agency with scientific-based expertise. I 
believe that the FTC has indicated this as well, that a 
science-based public agency such as the Health and Human 
Services' National Cancer Institute should develop a 
methodology for testing this tar and nicotine to see the amount 
of yield.
    Senator Lautenberg. So you will be looking at that, and we 
encourage you to do so because it is believed in many circles 
that the advertisements for light, for less, is false, and that 
it should be examined by an agency with credibility and 
staffing and knowledge to evaluate this and make sure that 
people are getting the truth.
    Ms. Nason, thank you for your answer to the first question 
about the e-mail. We will take you at your word that you will 
check on that, please, and see what happened and make certain 
that it does not happen again in the future to the best of your 
ability.
    Mr. Chairman, these are two outstanding candidates and I 
hope that, even though the family pictures are beautiful, that 
there will be an opportunity to interview that little one 
there. I have a granddaughter about her age. I love talking to 
them. Maybe that is my class of intellect, Mr. Chairman. I 
preempt you on any comment you might want to make.
    The Chairman. Thank you very much, Senator Lautenberg.
    Senator Sununu.

                STATEMENT OF HON. JOHN SUNUNU, 
                U.S. SENATOR FROM NEW HAMPSHIRE

    Senator Sununu. Thank you, Mr. Chairman.
    I just want to congratulate both nominees and their 
families. This is obviously an important day for you. I wish 
you well in your work. I certainly look forward to working with 
you.
    These are tough positions, challenging positions that deal 
with a whole host of complex issues, and they do not get a lot 
of accolades and a lot of publicity for the hard work that you 
are going to do. But rest assured you will get plenty of 
criticism from both friends and foes alike, not just here on 
the Committee but elsewhere on Capitol Hill.
    So I certainly wish you well in your service and thank you 
for serving.
    Ms. Harbour. Thank you, Senator.
    The Chairman. Both nominees responded in detail to a long 
series of questions that were submitted to them and they did so 
satisfactorily. I have also reviewed their background 
investigations.
    I just want to point out, Ms. Harbour, the FTC has 
considered and continues to be involved with some very, very 
important issues--spam, don't-call lists, a broad variety of 
very important issues--and we work very closely with the FTC. 
So you assume a very responsible position.
    Ms. Nason, as we again approach our oncoming battle over 
highway funding--I know of no more acrimonious encounter every 
year or so than that--we look forward to working with you very 
closely on a broad variety of issues, with our outstanding 
Secretary of Transportation Mr. Mineta. As I mentioned earlier, 
we will miss Mr. Jackson very much, who we have had a very 
close working relationship with.
    I congratulate you both. We will move your nominations as 
quickly as possible. Hopefully, we will be able to report them 
out on Thursday and move them to the floor of the Senate so you 
can get to work.
    Thank you both for your willingness, your past and present 
and future service to our nation. Thank you for being here 
today.
    Ms. Nason. Thank you very much.
    Ms. Harbour. Thank you.
    The Chairman. This hearing is adjourned.
    [Whereupon, at 9:50 a.m., the hearing was adjourned.]

                                  
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