[Senate Hearing 113-528]
[From the U.S. Government Publishing Office]
S. Hrg. 113-528
NOMINATIONS TO THE U.S. DEPARTMENT
OF COMMERCE, THE U.S. DEPARTMENT
OF TRANSPORTATION, AND THE
CONSUMER PRODUCT SAFETY COMMISSION
=======================================================================
HEARING
before the
COMMITTEE ON COMMERCE,
SCIENCE, AND TRANSPORTATION
UNITED STATES SENATE
ONE HUNDRED THIRTEENTH CONGRESS
SECOND SESSION
__________
JUNE 11, 2014
__________
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 THIRTEENTH CONGRESS
SECOND SESSION
JOHN D. ROCKEFELLER IV, West Virginia, Chairman
BARBARA BOXER, California JOHN THUNE, South Dakota, Ranking
BILL NELSON, Florida ROGER F. WICKER, Mississippi
MARIA CANTWELL, Washington ROY BLUNT, Missouri
MARK PRYOR, Arkansas MARCO RUBIO, Florida
CLAIRE McCASKILL, Missouri KELLY AYOTTE, New Hampshire
AMY KLOBUCHAR, Minnesota DEAN HELLER, Nevada
MARK BEGICH, Alaska DAN COATS, Indiana
RICHARD BLUMENTHAL, Connecticut TIM SCOTT, South Carolina
BRIAN SCHATZ, Hawaii TED CRUZ, Texas
EDWARD MARKEY, Massachusetts DEB FISCHER, Nebraska
CORY BOOKER, New Jersey RON JOHNSON, Wisconsin
JOHN E. WALSH, Montana
Ellen L. Doneski, Staff Director
John Williams, General Counsel
David Schwietert, Republican Staff Director
Nick Rossi, Republican Deputy Staff Director
Rebecca Seidel, Republican General Counsel and Chief Investigator
C O N T E N T S
----------
Page
Hearing held on June 11, 2014.................................... 1
Statement of Senator Rockefeller................................. 1
Statement of Senator Nelson...................................... 2
Statement of Senator Thune....................................... 3
Statement of Senator Klobuchar................................... 6
Statement of Senator Blumenthal.................................. 67
Statement of Senator Ayotte...................................... 79
Witnesses
Bruce H. Andrews, Nominee to be Deputy Secretary, U.S. Department
of Commerce.................................................... 7
Prepared statement........................................... 8
Biographical information..................................... 9
Victor M. Mendez, Nominee to be Deputy Secretary, U.S. Department
of Transportation.............................................. 17
Prepared statement........................................... 18
Biographical information..................................... 19
Peter M. Rogoff, Under Secretary for Policy-Designate, U.S.
Department of Transportation................................... 28
Prepared statement........................................... 30
Biographical information..................................... 31
Marcus D. Jadotte, Nominee to be Assistant Secretary for Industry
and Analysis, International Trade Administration, U.S.
Department of Commerce......................................... 38
Prepared statement........................................... 39
Biographical information..................................... 40
Hon. Robert S. Adler, Nominee to be a Commissioner, Consumer
Product Safety Commission...................................... 47
Prepared statement........................................... 48
Biographical information..................................... 50
Appendix
Letter dated June 25, 2014 to Hon. Robert Adler, Acting Chairman,
U.S. Consumer Product Safety Commission from Hon. John Thune,
Ranking Member, U.S. Senate Committee on Commerce, Science, and
Transportation................................................. 83
Letter dated July 17, 2014 to Hon. John Thune, Ranking Member,
Committee on Commerce, Science, and Transportation from Robert
S. Adler, U.S. Consumer Product Safety Commission.............. 84
Prepared statement of Rep. Henry A. Waxman, Ranking Member,
Committee on Energy and Commerce............................... 90
Response to written questions submitted to Bruce H. Andrews by:
Hon. Mark Pryor.............................................. 90
Hon. Mark Begich............................................. 91
Hon. John Thune.............................................. 92
Hon. Kelly Ayotte............................................ 94
Response to written questions submitted by Hon. John D.
Rockefeller IV to Victor M. Mendez and Peter M. Rogoff......... 95
Response to written questions submitted to Victor M. Mendez by:
Hon. Maria Cantwell.......................................... 97
Hon. John Thune.............................................. 99
Response to written questions submitted to Peter M. Rogoff by:
Hon. Maria Cantwell.......................................... 101
Hon. John Thune.............................................. 102
Response to written question submitted by Hon. John Thune to
Marcus D. Jadotte.............................................. 104
Response to written questions submitted to Hon. Robert S. Adler
by:
Hon. John Thune.............................................. 104
Hon. Roy Blunt............................................... 115
Hon. Dean Heller............................................. 118
Hon. Ron Johnson............................................. 124
NOMINATIONS TO THE U.S. DEPARTMENT
OF COMMERCE, THE U.S. DEPARTMENT
OF TRANSPORTATION, AND THE
CONSUMER PRODUCT SAFETY COMMISSION
----------
WEDNESDAY, JUNE 11, 2014
U.S. Senate,
Committee on Commerce, Science, and Transportation,
Washington, DC.
The Committee met, pursuant to notice, at 2:41 p.m., in
room SR-252, Russell Senate Office Building, Hon. John D.
Rockefeller IV, Chairman of the Committee, presiding.
OPENING STATEMENT OF HON. JOHN D. ROCKEFELLER IV,
U.S. SENATOR FROM WEST VIRGINIA
The Chairman. I apologize to everybody, except you, Mr.
Andrews.
[Laughter.]
Senator Thune. Here we go again.
The Chairman. OK. We have got some important folks here--
Department of Commerce, Department of Transportation, Consumer
Product Safety Commission. And it says here, at least, that it
is a particular pleasure for me to see Mr. Bruce Andrews, from
Syracuse. The Orange, with just a hint maybe of some athletic
scandal at the student stuff----
[Laughter.]
The Chairman.--associated with Syracuse. I mean, I don't
know if that is true or not, but it is now part of the record.
[Laughter.]
Mr. Nelson. Are we going to have a hearing about that?
[Laughter.]
The Chairman. No. No. No, because you have got a Florida
State University guy here, too.
Mr. Nelson. Oh.
The Chairman. You see? In good form. OK.
Now, Bruce is a trusted aide and adviser. He worked forever
for this committee as its General Counsel and just sort of had
marvelous instincts. I regret to say, and I told the fellow
outside, the Congressman who you grew up with and went to
school with, that the only problem that you have in life is
that you will have to live the rest of your life out knowing
that I am just two or three steps ahead of you on baseball
trivia.
[Laughter.]
The Chairman. Otherwise, you are perfect. You are a proud
product of upstate New York. You were always very tuned into
rural problems, which is important for Senator Thune and
myself. You are kind of a big urban guy.
Senator Thune. Both rural and urban.
The Chairman. Both rural and--you are just showing off, you
know?
Anybody who spent--this, I love this part. Anybody who
spent time with Bruce knows him to be smart, stubborn, wily,
and an operator with a pragmatist's approach to getting things
done. So I like that combination, which is true, you get stuff
done.
You are liked on both sides of the aisle. You were here.
You are now, in your present job. You know the House and the
Senate so well, and you are going to be Chief of Staff to
Secretary Pritzker. I think that is really good news for the
Department of Commerce, and not meaning to show my bias, I plan
on voting for you three times.
[Laughter.]
The Chairman. I am confident that Bruce will provide a
strong and effective leader in this role. It is a very
difficult role. I mean, there is the Chief of Staff and there
is a Deputy, and then how all that works, but you understand
all of that. You are comfortable with all of that, and you are
comfortable with power. You are comfortable with standing back
when that arrives at a settlement more quickly.
You have got to stay on top of the agency's management
challenges. It is a large agency. You are a good organizer.
Secretary Pritzker is an incredible organizer. I think she is
the best Secretary of Commerce I have ever known. And you are
committed to making the Department a consumer-friendly advocate
for the American people.
Our next nominee is going to be introduced right now by
Senator Nelson.
STATEMENT OF HON. BILL NELSON,
U.S. SENATOR FROM FLORIDA
Senator Nelson. Well, thank you, Mr. Chairman, and yes----
The Chairman. Oh, no.
Senator Thune. No, that is all right. That is fine.
The Chairman. Do you want to make a statement?
Senator Thune. No, no. Go ahead. Go ahead.
The Chairman. OK.
Senator Nelson. I defer to the handsome Senator from South
Dakota.
[Laughter.]
Senator Thune. Go ahead. He has teed you up.
[Laughter.]
Senator Nelson. Indeed, I met----
The Chairman. He has 10 pages there.
Senator Nelson.--Marcus Jadotte two decades ago when he was
a graduate student at Florida State, and he had been positioned
in the Florida legislature, in the Governor's office, and Chief
of Staff for two members of the Florida delegation up here. He
has also been in the private sector with NASCAR, and he has
moved up the ranks.
He is here with his wife, Jennifer, and their two children,
Marcus and Sofia, and----
The Chairman. Tell them to stand up.
Senator Nelson. Would you all stand and be recognized?
Welcome.
And if he is confirmed, and I hope we do, as Assistant
Secretary for Industry and Analysis, it is going to be an
important liaison between U.S. industry and government, and his
extensive experience between the Government sector and the
private sector is going to allow him to even facilitate that
communication between the two. I think Secretary Pritzker knows
what she is doing in seeking him to be one of the leadership of
her team.
And I want to also say that I want to recognize
Commissioner Bob Adler in the Consumer Product Safety
Commission. A number of us worked very hard years ago to try to
reform and reauthorize the CPSC. We wanted to get it off its
duff when it was doing nothing, and since his appointment, he
has worked very hard on that reform.
Now, you see, that wasn't 10 pages.
The Chairman. No, it wasn't.
Senator Nelson. Thank you, Mr. Chairman.
The Chairman. Thank you, Senator Nelson.
And now, I turn to the esteemed co-leader of this
committee.
STATEMENT OF HON. JOHN THUNE,
U.S. SENATOR FROM SOUTH DAKOTA
Senator Thune. I thank you, Mr. Chairman.
And I want to welcome all of our nominees to the Committee
today, and you are under consideration for senior positions in
Department of Commerce and Department of Transportation, as
well as the renomination of the current Acting Commissioner,
Acting Chairman, I should say, of the Consumer Product Safety
Commission.
DOT, of course, plays a key role in the infrastructure of
the Nation. It is important that its senior leadership be in
place to work with Congress and the array of stakeholders as we
seek to improve safety and maintain and expand the Nation's
transportation networks.
These transportation networks fundamentally underpin the
Nation's economy. So it is important that those who directly
oversee these networks have the experience and skills necessary
to manage this critical enterprise.
I will be asking Mr. Mendez and Mr. Rogoff about their
perspectives on some of the challenges facing the Highway Trust
Fund, as well as their broader views on the state of the
Nation's transportation networks. These nominees already have
track records of valuable service to DOT, and I suspect there
will be considerable support for their nominations.
The Department of Commerce plays an important role on a
diverse range of issues, from managing satellite programs
within the National Oceanic and Atmospheric Administration to
managing the Federal Government's radio spectrum holdings.
Senior leaders at the Department of Commerce must manage a wide
range of challenging programs.
If confirmed, Mr. Andrews and Mr. Jadotte will have no
shortage of issues and problems to tackle. I am guessing that
Mr. Andrews may have observed many nominees from this side of
the dais and thought to himself, ``I can do that.''
[Laughter.]
Senator Thune. You think? Or maybe he was just thinking
that while he was looking at us, Mr. Chairman, but either way,
he is going to have his chance.
I will be asking Mr. Andrews about his views on how best to
manage the risks facing the Department of Commerce,
particularly with respect to its satellite programs. I am also
interested in Mr. Andrews' views on the progress of the
FirstNet program, the nationwide public safety network that
will be funded by the proceeds from the broadcast spectrum
auction currently planned for next year.
Finally, Mr. Chairman, the Consumer Product Safety
Commission plays a leading role in overseeing the safety of a
wide variety of consumer products. This is important work, and
I am looking forward to hearing how the Commission is faring in
meeting its mission and obligations.
As I have stated previously, the CPSC is a creature of
Congress, created in 1972 by the Consumer Product Safety Act,
and as such, its authority is very carefully bounded by the
law. I am aware that some have characterized the Commission as
being too unaccountable and overreaching as a regulator that
does not always abide by the boundaries prescribed by Congress.
I will look forward to asking Mr. Adler, who has served as
Acting Chairman of the CPSC over the past 8 months, about
issues such as third-party testing, where Congress mandated
that the CPSC pursue opportunities to reduce testing burdens,
but where the Commission has thus far failed to adopt any
meaningful reforms.
Another issue surrounds the Buckyballs case, where many
legal experts observed an apparent overreach in Federal
regulatory power when the CPSC sought to pierce the so-called
corporate veil of a lawful corporation selling a legal product,
a step that is traditionally reserved for cases of fraud or
criminal conduct.
All of us support the CPSC's mission of ensuring consumer
safety, but I am hoping that Mr. Adler will be able to address
my misgivings about what appears to be a regulatory agency that
has ignored some of its congressional moorings.
Mr. Chairman, before we turn to the nominees for their
prepared remarks, I also would like to underscore the
importance of two pressing issues that relate to matters that
this committee is closely involved with, the one being the
Highway Trust Fund, which is going to be depleted here next
month or the month after. And as we look toward a long-term
solution, I hope we can come up with a short-term solution that
at least addresses the immediate crisis in front of us,
recognizing how important it is that we fund our highway and
transportation infrastructure in this country.
And then, second, is the Internet tax moratorium, which is
set to expire on November 1. And this committee has had a role
in establishing that, if you go back to 1998. We have to act
before the August recess on that as well because if we don't,
there will be tens of millions of Americans who will be
receiving notifications from their Internet and wireless phone
providers about new taxes that would kick in just before the
holiday season.
So I raise this topic because the tax moratoriums have been
very instrumental when it comes to ensuring that broadband
infrastructure investments are made, which is a win-win not
just for consumers, but for our economy. And those of us who
serve on the Finance Committee are also very interested in this
issue, and I have worked with the Chairman there, Senator
Wyden, on a permanent extension of the Internet tax moratorium
and have appreciated the work of Senator Ayotte on this
legislation on this committee and note that we have all of our
members on this side as co-sponsors. A number of Democratic
colleagues are co-sponsors.
And I hope that we can, in addition to getting the Highway
Trust Fund gap dealt with, also pass this bipartisan
legislation before August so that we ensure that American
consumers and businesses aren't faced with new charges and
unnecessary taxes on their phone and cable bills come November
of this year.
So, Mr. Chairman, I appreciate having these nominees before
us today and look forward to their testimony, and thank you for
holding the hearing.
The Chairman. Thank you.
I am going to continue my opening statement.
I welcome Victor Mendez, who is the President's nominee to
be Deputy Secretary for the Department of Transportation. A lot
of transportation experience, and serving as Administrator of
Federal Highways and the Director of the Arizona Department of
Transportation.
And Peter Rogoff, who has been mentioned already, is
nominated to be Under Secretary of Transportation for Policy at
the Department of Transportation. Peter is a familiar face to
many of us here. Many years in the Senate Appropriations where
he served both with Patty Murray and a fellow named Robert C.
Byrd, if I am not mistaken.
Mr. Mendez, Mr. Rogoff, I am looking forward to hearing
your perspectives on our transportation funding, which my able
colleague has already mentioned, and I expect that, if
confirmed, you will pay close attention to the transportation
challenges of the State of West Virginia. You could do a
minimalist effort with South Dakota.
[Laughter.]
The Chairman. As you both know, the Highway Trust Fund is
going broke this summer, and the question that I am fascinated
by is, at what point is it that contractors stop bidding
because our short-term solution is too short-term, and they are
expecting more short-term? So, in other words, how does that
get in the way of or not get in the way of the right people
bidding on important road, bridge projects, et cetera?
States are already canceling and slowing down important
projects, and on the other hand, allowing our transportation to
run out of money is not an option.
The Senate is hard at work finding a solution. Last month,
EPW Chairman Boxer marked up a long-term, 6-year highway bill.
In the Finance Committee, Senator Thune and myself, others of
my colleagues and I are in the process of trying to find
funding for our infrastructure needs, whether it is 6 years or
shorter. And I am very hopeful, and I think I have some reason
to be optimistic after our meeting that we will reach a deal
before the August recess, which would be very good news.
I worry that any solution that can pass this Congress will
again be, however, a short-term fix, and that is why I want
this discussion about when is it that contractors begin to pull
back or charge more?
I am a firm believer that the Federal Government has a
major responsibility when it comes to investing in our Nation's
infrastructure. We have to be leaders. Others aren't going to
do it. This is not a private sector job. We can share
responsibility, but basically, it is Federal and State that
does this. That is the way it has been. That is really our
proper role.
And we need to be leaders on this committee. We are in some
things, and we are not as much on others as we should be. We
need to create a coherent and unified mission for our Federal
Surface Transportation Programs and invest in those programs.
We have to invest.
Since becoming chairman, I have made safety a top priority
for this committee, and recent safety incidents, such as the GM
recalls, crude oil train derailments, truck crashes, highlight
the need to find out just how much progress we really have
made.
And as an interesting dichotomy, for example, Senator
Klobuchar, you remember with pilots, we wanted to make sure
they got a full 8 hours of sleep, and that is now working. But
on the other hand, at the same time, at essential air service
airports, it is hurting because there are fewer pilots who are
so trained, et cetera. So I want to discuss that also.
And Mr. Robert Adler, who has been spoken of, Consumer
Product Safety Commission, an incredibly important post you
joined in 2009. You are already recognized as a leading
consumer protection scholar, teacher, and advocate.
And I really appreciate all of you being able to being
willing to do public service. I mean, you know, we have a,
what, the Congress has a 9 percent approval rating. That may be
a point or two higher than we deserve. But public service, I
fully believe, is one of the very best ways that one can serve
out of life, and you are all prepared to do that, and I admire
each of you greatly for that.
Amy, do you want to say anything?
STATEMENT OF HON. AMY KLOBUCHAR,
U.S. SENATOR FROM MINNESOTA
Senator Klobuchar. Well, I am just very excited about the
nominees here, working in areas I care a lot about and my state
does in the area of exports with Commerce. And also, both Mr.
Mendez and Mr. Rogoff have been out in Minnesota, and we have
some really exciting news this weekend with our light rail
between Minneapolis and St. Paul opening. So we thank you for
that.
And obviously, I also do a lot of work with the CPSC from
the day I got here on consumer issues, and we have really
appreciated the work done on lead in children's toys, as well
as the pragmatism on some of the issues with that legislation.
And then, finally, the swimming pools, which we have had some
success with.
So thank you, Mr. Adler.
The Chairman. Mr. Andrews, can we start with you, sir? And
you can shoot back any bullets you want at me.
[Laughter.]
STATEMENT OF BRUCE H. ANDREWS, NOMINEE TO BE DEPUTY SECRETARY,
U.S. DEPARTMENT OF COMMERCE
Mr. Andrews. Chairman Rockefeller, Ranking Member Thune,
and members of the Committee, thank you for having me here
today regarding my nomination as the Deputy Secretary of the
U.S. Department of Commerce.
It is a great honor to be back at the Commerce Committee,
although to your point, Senator Thune, I recall it being much
more fun on that side of the dais than it is on this side of
the dais.
I would first like to introduce my wonderful family, who
are here with me today. My wife, Didem; my daughters, Ella and
Dahlia; my parents, Bill and Ginger Andrews, and my brother
David, who came from Syracuse, New York, for this hearing.
Mr. Chairman. Can they stand, please?
[Applause.]
Mr. Andrews. It is a true honor to be nominated to be the
Deputy Secretary of Commerce. When I first moved to Washington,
D.C., 24 years ago, I planned to stay for only a few years and
then move back to my hometown of Syracuse, New York, where I
would mention the basketball is much better.
From a young age, my father, a World War II combat
infantryman who spent his entire life engaged in his community,
and my mother, a social worker who devoted her life to helping
others, taught me and my siblings the importance of public
service and giving back to your community and to your country.
I have carried and nurtured my commitment to public service
throughout my professional career.
During both my work in the public and private sectors, I
have had the opportunity to see the important work of the
Department of Commerce from a variety of perspectives. In my
position as Chief of Staff to the Secretary, I have served as a
senior leader in the Department, overseeing its operations,
including our 12 bureaus and over 44,000 employees, and have
been heavily involved in creating and implementing the
Department's strategic plan.
During my tenure, I have become familiar with every aspect
of the Department and Secretary Pritzker's vision for it. If
confirmed, I will work hard to advance the Department's agenda
and continue to build on our success as the voice of business
and workers in the administration.
My experience in the private sector at Ford Motor Company
gave me a strong appreciation for the ways in which the
Department of Commerce can help create the favorable conditions
to help American businesses thrive. And as General Counsel of
this committee, I had the unique opportunity to see the
operations of the Commerce Department from an oversight
perspective and understand the importance of the Department
working closely with Congress.
If confirmed, I will apply these skills and experiences to
help American businesses and workers achieve success in the
global marketplace. That is what we do at the Department of
Commerce. We help the American public and businesses by
creating the conditions for economic growth through our diverse
programs.
I have seen firsthand the valuable work of the Department
and its hard-working employees. Under Secretary Pritzker's
leadership, the Department is laser focused on developing and
implementing our Open For Business agenda.
One of the key elements underlying the Department's
strategic plan is the focus on customer service and providing
high-quality assistance to our stakeholders. Like a business,
we have a number of customers who rely on our services and
products, and we are very focused on delivering value for our
customers and the American taxpayer.
In order to deliver value, it is critical that the
Department is well run. The Deputy Secretary serves as the
Chief Operating Officer of the organization and is very focused
on the Department's operations. Secretary Pritzker made
operational excellence one of the key pillars of the
Department's strategic plan because we need to constantly
improve our efficiency and the Department's operations. And if
confirmed as Deputy Secretary, this will be one of my primary
objectives.
I have had the honor to work for a number of great leaders
during my career--Secretary Pritzker, Alan Mulally and Mark
Fields at the Ford Motor Company, and you, Senator Rockefeller.
And one of the things that I have learned from these
experiences is that leadership matters. Leaders set the vision
and the tone for an organization and play a key role in leading
the team.
I am proud of our team at Commerce and excited for the
opportunity to help lead the Department as Deputy Secretary. If
confirmed, I look forward to working with the Commerce team and
this committee to strengthen the Department, help our
stakeholders, grow the economy, and make our country a better
place.
Thank you for your consideration of my nomination. I am
happy to respond to any questions that members of this
committee may have.
[The prepared statement and biographical information of Mr.
Andrews follow:]
Prepared Statement of Bruce H. Andrews, Nominee to be Deputy Secretary,
U.S. Department of Commerce
Chairman Rockefeller, Ranking Member Thune, and Members of the
Committee, thank you for having me here today regarding my nomination
as the Deputy Secretary of the U.S. Department of Commerce. It is a
great honor to be back at the Commerce Committee, although I recall it
being more fun on your side of the dais than this side.
I would first like to introduce my wonderful family who is here
with me today--my wife Didem; my daughters, Ella and Dahlia; and my
parents, Bill and Ginger Andrews, who came from Syracuse, New York for
this hearing.
It is a true honor to be nominated to be the Deputy Secretary of
Commerce. When I first moved to Washington, D.C. 24 years ago, I
planned to stay for only a few years and then return to my hometown of
Syracuse, New York. From a young age, my father, a World War II combat
infantryman, who spent his entire life engaged in his community, and my
mother, a social worker who has devoted her life to helping others,
taught me and my siblings the importance of public service and giving
back to your community and your country. I have carried and nurtured my
commitment to public service throughout my professional career.
During my work in both the public and private sectors, I have had
the opportunity to see the important work of the Department of Commerce
from a variety of perspectives.
In my position as Chief of Staff to the Secretary, I have served as
a senior leader in the Department--overseeing its operations (including
the 12 bureaus and over 44,000 employees), and have been heavily
involved in creating and implementing the Department's strategic plan.
During my tenure, I have become familiar with every aspect of the
Department and Secretary Pritzker's vision for it. If confirmed, I will
work hard to advance the Department's agenda and continue to build upon
our success as the voice of business in the Administration.
My experience in the private sector at Ford Motor Company gave me a
strong appreciation for the ways in which the Department of Commerce
can help create the favorable conditions to help American businesses
thrive.
And as General Counsel of this Committee, I had the unique
opportunity to see the operations of the Commerce Department from an
oversight perspective and understand the importance of the Department
working closely with Congress.
If confirmed, I will apply these skills and experiences to help
American businesses and workers achieve success in the global
marketplace.
That is what we do at the Commerce Department, help the American
public and American businesses by creating the conditions for economic
growth, through our diverse programs.
I have seen firsthand the valuable work of the Department and its
hardworking employees. Under Secretary Pritzker's leadership, the
Department is laser-focused on developing and implementing our ``Open
for Business Agenda.''
One of the key elements underlying the Department's strategic plan
is a focus on customer service and providing high quality assistance to
our stakeholders. Like a business, we have a number of customers who
rely on our services and products, and we are very focused on
delivering value for our customers and the American taxpayer.
In order to deliver value, it is critical that the Department is
well run. The Deputy Secretary serves as the Chief Operating Officer of
the organization and is very focused on the Department's operations.
Secretary Pritzker made ``Operational Excellence'' one of the key
pillars of the Department's Strategic Plan because we need to
constantly improve our efficiency and the Department's operations. If
confirmed as Deputy Secretary, this will be one of my primary
objectives.
I have had the honor to work for a number of great leaders during
my career--Secretary Pritzker; Alan Mulally and Mark Fields at Ford
Motor Company; and you, Senator Rockefeller. And one of the things that
I have learned from these experiences is that leadership matters.
Leaders set the vision and tone for an organization and play a key role
in leading the team. I am proud of our Commerce employees and am
excited for the opportunity to help lead the Department as Deputy
Secretary.
If confirmed, I look forward to working with the Commerce team and
with this committee to strengthen the Department, help our
stakeholders, grow the economy, and make our country a better place.
Thank you for your consideration of my nomination. I am happy to
respond to any questions members of the Committee may have.
______
a. biographical information
1. Name (Include any former names or nicknames used):
Bruce Huntington Andrews.
2. Position to which nominated: Deputy Secretary, U.S. Department
of Commerce.
3. Date of Nomination: May 22, 2014.
4. Address (List current place of residence and office addresses):
Residence: Information not released to the public.
Office: U.S. Department of Commerce, 1401 Constitution Ave, NW,
Washington, D.C. 20230.
5. Date and Place of Birth: February 24, 1968; Syracuse, NY.
6. Provide the name, position, and place of employment for your
spouse (if married) and the names and ages of your children (including
stepchildren and children by a previous marriage).
Didem Nisanci (wife), Promontory Financial Group, Washington,
D.C., Managing Director; children: Ella Andrews--age 10; Dahlia
Andrews--age 8.
7. List all college and graduate degrees. Provide year and school
attended.
College: Haverford College, Bachelor of Arts, 1990.
Graduate: Georgetown University Law Center, JD, 1997.
8. List all post-undergraduate employment, and highlight all
management-level jobs held and any non-managerial jobs that relate to
the position for which you are nominated.
*Indicates management-level position.
U.S. Department of Commerce: Chief of Staff, Office of the
Secretary (10/2011 to present)*
U.S. Senate Committee on Commerce, Science, and Transportation:
General Counsel (03/2009-10/2011)*
Ford Motor Company: Vice President (03/2007-03/2009)*
Friends of Congressman Tim Holden: Campaign Manager (06/2002-
11/2002)*
Quinn Gillespie & Associates: Partner (01/2000-03/2007)*
Arnold & Porter, LLP: Associate (09/1997-12/1999)
Congressman Tim Holden: Legislative Director (01/1993-0611997)*
Congressman Gus Yatron: Legislative Assistant (07/1991-12/1992)
Senator Alan Cranston: Staff Assistant (09/1990-07/1991)
9. Attach a copy of your resume. A copy is attached.
10. List any advisory, consultative, honorary, or other part-time
service or positions with Federal, State, or local governments, other
than those listed above, within the last five years. None.
11. List all positions held as an officer, director, trustee,
partner, proprietor, agent, representative, or consultant of any
corporation, company, firm, partnership, or other business, enterprise,
educational, or other institution within the last five years.
Haverford College, Class Representative
12. Please list each membership you have had during the past ten
years or currently hold with any civic, social, charitable,
educational, political, professional, fraternal, benevolent or
religious organization, private club, or other membership organization.
Include dates of membership and any positions you have held with any
organization. Please note whether any such club or organization
restricts membership on the basis of sex, race, color, religion,
national origin, age, or handicap.
No Greater Sacrifice Foundation
Position: Executive Patron
Dates: 09/2008 to Present
American Constitution Society
Position: Member
Dates: Approx. 2001-2008
116 Club
Position: Member
Dates: 04/2009-11/2011
District of Columbia Bar Association
Position: Member
Dates: 11/1997 to Present
New York Bar Association
Position: Member
Dates: Membership issued 01/1998; membership currently
inactive.
13. Have you ever been a candidate for and/or held a public office
(elected, non-elected, or appointed)? If so, indicate whether any
campaign has any outstanding debt, the amount, and whether you are
personally liable for that debt. No.
14. Itemize all political contributions to any individual, campaign
organization, political party, political action committee, or similar
entity of$500 or more for the past ten years. Also list all offices you
have held with, and services rendered to, a state or national political
party or election committee during the same period.
Political Contributions
------------------------------------------------------------------------
Recipient Date Amount
------------------------------------------------------------------------
Democratic Senatorial Campaign Commitiee 10/8/2008 $500
------------------------------------------------------------------------
Dingell, John D. Mr. via John D. Dingell for 7/28/2008 $1,000
Congress
------------------------------------------------------------------------
Childers, Travis W. via Childers for Congress 7/21/2008 $500
------------------------------------------------------------------------
Kratovil, Frank M. Mr. Jr. via Frank Kratovil 6/24/2008 $500
for Congress
------------------------------------------------------------------------
Cazayoux, Donald J. via Cazayoux for Congress 4/22/2008 $500
------------------------------------------------------------------------
Democratic Senatorial Campaign Commitiee 4/18/2008 $500
------------------------------------------------------------------------
Maffei, Daniel Benjamin Mr. via Friends of Dan 3/31/2008 $500
Maffei
------------------------------------------------------------------------
Adler,John H. via Adler for Congress 3/31/2008 $500
------------------------------------------------------------------------
Democratic Congressional Campaign Commitiee 3/19/2008 $1,000
------------------------------------------------------------------------
Cahir, William John via Cahir for Congress 3/17/2008 $500
------------------------------------------------------------------------
Cahir, William John via Cahir for Congress 2/5/2008 $500
------------------------------------------------------------------------
Democratic Congressional Campaign Commitiee 12/18/2007 $1,000
------------------------------------------------------------------------
Stabenow, Debbie via Stabenow For U.S. Senate 12/13/2007 $500
------------------------------------------------------------------------
Democratic Senatorial Campaign Commitiee 10/31/2007 $500
------------------------------------------------------------------------
Clinton, Hillary Rodham via Hillary Clinton for 9/29/2007 $1,000
President
------------------------------------------------------------------------
Klein, Ron via Klein for Congress 6/30/2007 $500
------------------------------------------------------------------------
Rodriguez, Ciro D. via Ciro D. Rodriguez for 6/30/2007 $500
Congress
------------------------------------------------------------------------
Pryor, Mark Lunsford via Mark Pryor for U.S. 6/29/2007 $500
Senate
------------------------------------------------------------------------
Carney, Christopher P. via Carney for Congress 6/29/2007 $500
------------------------------------------------------------------------
Hill, Baron Paul via Hoosiers for Hill 6/28/2007 $500
------------------------------------------------------------------------
Clinton, Hillary Rodham via Hillary Clinton for 6/26/2007 $1,000
President
------------------------------------------------------------------------
Pelosi, Nancy via Nancy Pelosi for Congress 6/21/2007 $1,000
------------------------------------------------------------------------
Murphy, Patrick J. via Patrick Murphy for 6/21/2007 $500
Congress
------------------------------------------------------------------------
America's Leadership Pac 5/22/2007 $500
------------------------------------------------------------------------
Rockefeller, John Davison IV via Friends of Jay 3/28/2007 $500
Rockefeller
------------------------------------------------------------------------
Democratic Senatorial Campaign Commitiee 3/20/2007 $500
------------------------------------------------------------------------
Landrieu, Mary L. via Friends of Mary Landrieu, 1/31/2007 $1,000
Inc.
------------------------------------------------------------------------
Cantwell, Maria via Friends of Maria 9/30/2006 $500
------------------------------------------------------------------------
Democratic Congressional Campaign Commitiee 9/29/2006 $500
------------------------------------------------------------------------
Tester, Jon via Montanans for Tester 7/11/2006 $1,000
------------------------------------------------------------------------
Ford, Harold E. Jr, via Harold Ford Jr. for 6/15/2006 $1,000
Tennessee
------------------------------------------------------------------------
Sanders, Bernard via Friends of Bernie Sanders 5/23/2006 $1,000
------------------------------------------------------------------------
Democratic Senatorial Campaign Commitiee 5/23/2006 $500
------------------------------------------------------------------------
Casey, Robert P. Jr. via Bob Casey for 3/31/2006 $1,000
Pennsylvania Commitiee
------------------------------------------------------------------------
McCaskill, Claire via McCaskill for Missouri 3/30/2006 $1,000
------------------------------------------------------------------------
Pederson, Jim via Pederson 2006 2/15/2006 $1,000
------------------------------------------------------------------------
Democratic Senatorial Campaign Commitiee 10/28/2005 $1,000
------------------------------------------------------------------------
Bingaman, Jeff via A Lot of People Who Support 6/30/2005 $500
Jeff Bingaman (2000)
------------------------------------------------------------------------
Casey, Robert P, Jr, via Bob Casey for 6/29/2005 $1,000
Pennsylvania Commitiee
------------------------------------------------------------------------
Carper, Thomas R. via Carper for Senate 3/14/2005 $500
------------------------------------------------------------------------
Democratic Senatorial Campaign Commitiee 3/14/2005 $500
------------------------------------------------------------------------
Higgins, Brian via Brian Higgins for Congress 10/4/2004 $500
------------------------------------------------------------------------
Salazar, John Tony Mr. via John Salazar for 9/30/2004 $500
Congress
------------------------------------------------------------------------
Kerry, John F. via John Kerry for President Inc. 8/9/2004 $750
------------------------------------------------------------------------
Obama, Barack via Obama for Illinois Inc. 6/25/2004 $500
------------------------------------------------------------------------
15. List all scholarships, fellowships, honorary degrees, honorary
society memberships, military medals, and any other special recognition
for outstanding service or achievements. None.
16. Please list each book, article, column, or publication you have
authored, individually or with others. Also list any speeches that you
have given on topics relevant to the position for which you have been
nominated. Do not attach copies of these publications unless otherwise
instructed.
Co-authored Government Contractors chapter in Political
Activity, Lobbying Laws and Gift Rules Guide (Chapter 11,
Glasser Legal Works, 2nd Issue, 1999); and Congressional Gift
Rules: New Congressional Gift Rules: A Summary (Arnold &
Porter, l998).
17. Please identify each instance in which you have testified
orally or in writing before Congress in a governmental or non-
governmental capacity and specify the date and subject matter of each
testimony. None.
18. Given the current mission, major programs, and major
operational objectives of the department/agency to which you have been
nominated, what in your background or employment experience do you
believe affirmatively qualifies you for appointment to the position for
which you have been nominated, and why do you wish to serve in that
position?
I have over 20 years of professional experience that has prepared
me for the position of Deputy Secretary at the U.S. Department of
Commerce. This wide range of experience includes holding a senior
position at the Department of Commerce; experience in the private
sector; and serving on the staff of the U.S. Senate. I am honored to be
nominated for the Deputy Secretary position, and if confirmed, would
like to serve in this role because I am deeply committed to the mission
of the Department to help create the conditions for economic growth in
the United States.
In my current position as Chief of Staff to the Secretary of
Commerce, I have been one of the leaders in the Department--overseeing
the operation of the Department (including its 12 bureaus and over
40,000 employees), and have been heavily involved in creating and
implementing the Department's strategic plan. I am very familiar with
every aspect of the Department and Secretary Pritzker's vision for it.
If confirmed, I would be honored to help advance the Department's
agenda in a new leadership role as Deputy Secretary.
My experience in the private sector at Ford Motor Company gave me a
strong appreciation for the ways in which the Department of Commerce
can help to create the conditions to help American businesses thrive.
The Department's work in international trade and investment, data,
innovation, research and development, and even the weather, contributes
to the ability of American businesses to be successful. My experience
at Ford provided me significant insight on how the United States
Government can work with American businesses to help advance U.S.
competitiveness.
As General Counsel of the Senate Commerce Committee, I had the
unique opportunity to see the operations of the Commerce Department
from an oversight perspective and appreciate the importance of the
Department working closely with Congress. In the Committee's oversight
of the Department, I saw a number of the high risk areas and gained a
better understanding of the importance of several of the Department's
operations to Committee members. If confirmed, I will apply the skills
and experience I have gained during my career to my work as Deputy
Secretary to help American businesses and workers achieve success in
the global marketplace.
19. What do you believe are your responsibilities, if confirmed, to
ensure that the department/agency has proper management and accounting
controls, and what experience do you have in managing a large
organization?
The Deputy Secretary plays a key role as the Chief Operating
Officer of the Department in overseeing the operations and internal
controls of the Department. To this end, the Deputy Secretary has two
key direct reports, the Assistant Secretary for Administration/Chief
Financial Officer and the Chief Information Officer, and works closely
with every bureau and major function (including the Inspector General
and General Counsel) on the efficient and effective operations of the
Department. The Deputy Secretary also plays a key role in the budget
process, overseeing the Department's high risk programs, implementing
the strategic plan, and working closely to manage problems and issues
within the Department.
As previously mentioned, I have served in numerous senior
management roles and have seen firsthand how important effective
management and accounting is to running a large organization. As Chief
of Staff at the Department of Commerce, I have eight direct reports and
manage the Office of the Secretary staff of over 80 employees. I also
assist the Secretary with the Department's day-to-day operations and am
involved with all aspects of the Department's management and will
therefore have no learning curve in understanding the operations and
issues. Likewise, as Vice President at Ford Motor Company, I oversaw a
large staff and was part of the senior management team. I worked
closely with the current CEO, Alan Mullaly and incoming CEO, Mark
Fields, and learned a great deal about managing a large organization.
If confirmed, I will utilize all of my management experience and
work closely with Secretary Pritzker and key leaders across the
Department to ensure we do an outstanding job of managing the
Department.
20. What do you believe to be the top three challenges facing the
department/agency, and why?
Three challenges I believe the Department faces are: implementation
of the strategic plan, overseeing high risk programs, and doing more
with our budget.
1. Implementation of the Strategic Plan: Under Secretary
Pritzker's leadership, the Department has created a
comprehensive strategic plan, focusing on Trade and Investment,
Innovation, Data, the Environment, and Operational Excellence.
We are now in the process of implementing and executing the
plan. Like any large organization, there are constant
distractions, and competing demands and challenges. The
Department's senior management team needs to remain focused on
executing the strategic plan and working to implement its goals
and objectives to achieve results. If confirmed, overseeing
this process will be one of my primary objectives as Deputy
Secretary.
2. Overseeing High Risk Programs: The Department has a number
of very important, but also operationally challenging programs,
such as the NOAA Satellites, the 2020 Census, SelectUSA, and
the FirstNet First Responder Network. Each of these programs is
very important to our country, but also requires capable and
effective management. If confirmed as Deputy Secretary, I would
spend a substantial amount of time working on the oversight of
these programs and their operation to ensure that they are
meeting established milestones and spending money smartly and
efficiently.
3. Doing More with our Budget: In the current budget
environment, the Department's budget is likely to remain
relatively constant as we are asked to do more. The Department
will need to operate smarter and more efficiently to make the
most of our appropriated funds. There are a number of programs
which would be good investments if we were able to allocate
additional funding, including hiring more Commercial Services
Officers, scaling up SelectUSA, increasing the Federal
investment in manufacturing programs, adding resources to
enhance cybersecurity and fix or replace the Department's old
IT infrastructure, and moving to shared services. While
individual programs may change incrementally, we will need to
push to better prioritize and more efficiently spend our
resources in order to focus on high priority needs.
b. potential conflicts of interest
1, Describe all financial arrangements, deferred compensation
agreements, and other continuing dealings with business associates,
clients, or customers. Please include information related to retirement
accounts.
QGA 401(k) Plan Holdings
Great West Maxim Life 2035: $423,512
Ford Motor Company 401(k) Plan Holdings
Black Rock Life Path 2030: $9,858
Black Rock Life Path 2035: $17,243
Ford Savings and Stock Plan for Salaried Employees
Fidelity Contra Fund: $12,758
Neuberger Berman Genesis Fund: $11,217
T Rowe Price International Discovery Fund: $12,241
Thrift Savings Plan: $107,253
2. Do you have any commitments or agreements, formal or informal,
to maintain employment, affiliation, or practice with any business,
association or other organization during your appointment? If so,
please explain. No.
3. Indicate any investments, obligations, liabilities, or other
relationships which could involve potential conflicts of interest in
the position to which you have been nominated.
In connection with the nomination process, I have consulted with
the Office of Government Ethics and the Department of Commerce's
designated agency ethics official to identify potential conflicts of
interest. Any potential conflicts of interest will be resolved in
accordance with the terms of an ethics agreement that I have entered
into with the Department's designated agency ethics official and that
has been provided to this Committee. I am not aware of any other
potential conflicts of interest.
4. Describe any business relationship, dealing, or financial
transaction which you have had during the last ten years, whether for
yourself, on behalf of a client, or acting as an agent, that could in
any way constitute or result in a possible conflict of interest in the
position to which you have been nominated.
In connection with the nomination process, I have consulted with
the Office of Government Ethics and the Department of Commerce's
designated agency ethics official to identify potential conflicts of
interest. Any potential conflicts of interest will be resolved in
accordance with the terms of an ethics agreement that I have entered
into with the Department's designated agency ethics official and that
has been provided to this Committee. I am not aware of any other
potential conflicts of interest.
5. Describe any activity during the past ten years in which you
have been engaged for the purpose of directly or indirectly influencing
the passage, defeat, or modification of any legislation or affecting
the administration and execution of law or public policy.
In my positions at Ford Motor Company and Quinn, Gillespie &
Associates (QGA), I served as a registered lobbyist. At Ford, I worked
on automobile issues impacting the company. At QGA, I represented a
variety of clients before Congress and the Executive Branch.
6. Explain how you will resolve any potential conflict of interest,
including any that may be disclosed by your responses to the above
items.
In connection with the nomination process, I have consulted with
the Office of Government Ethics and the Department of Commerce's
designated agency ethics official to identify potential conflicts of
interest. Any potential conflicts of interest will be resolved in
accordance with the terms of an ethics agreement that I have entered
into with the Department of Commerce's designated agency ethics
official and that has been provided to this Committee. I am not aware
of any other potential conflicts of interest.
c. 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 of any Federal,
State, county, or municipal entity, other than for a minor traffic
offense? If so, please explain.
I was issued an appearance ticket in 1990 for unauthorized use of a
motor vehicle. The charges were dismissed. The Dewitt, NY Police
Department mistakenly believed that two of my friends had stolen golf
carts which they had found on the road and driven back to the golf
course.
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. Have you ever been accused, formally or informally, of sexual
harassment or discrimination on the basis of sex, race, religion, or
any other basis? If so, please explain. No.
6. Please advise the Committee of any additional information,
favorable or unfavorable, which you feel should be disclosed in
connection with your nomination.
None to my knowledge.
d. relationship with committee
1. Will you ensure that your department/agency complies with
deadlines for informationn 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. 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.
______
Resumee of Bruce H. Andrews
Professional Experience
U.S. Department of Commerce, Washington, D.C.
Chief of Staff, Office of the Secretary, October 2011-Present
Manage the day-to-day operations of the Office of the
Secretary, including supervising seven office directors and
ensuring coordination with the Department's bureaus.
Serve as the most senior advisor and counselor to the
Secretary.
Lead coordination with the White House and other Federal
agencies.
Work closely with bureau heads, bureaus, and administrative
offices; and oversee the Department's administrative,
programmatic, and policy functions.
Managed several Secretarial-transitions (of the Secretary
and Acting Secretary).
U.S. Senate Committee on Commerce, Science, and Transportation
Washington, D.C.
General Counsel, March 2009-October 2011
Served as chief counsel of the Committee.
Was a senior member of the Committee's management team, and
served as a senior policy advisor for Chairman Rockefeller.
Acted as primary parliamentary, jurisdictional, and ethics
officer for the Committee.
Worked on all nominations and confirmations in the
Committee's jurisdiction.
Ford Motor Company, Washington, D.C.
Vice President, Government Affairs, March 2007-March 2009
Oversaw and led all U.S. Federal and state government
affairs. Supervised government affairs personnel and a team of
outside government affairs and public affairs consultants, and
managed a $10 million annual budget.
Acted as lead external liaison to Executive Branch,
Congress, and state governments.
Coordinated and led internal policy development process to
achieve Ford's business objectives.
Initiated and supervised Washington communications and
public affairs including advertising, communications related to
legislation, and political branding.
Served as Member of the Board of Directors and Executive
Committee of the Alliance of Automobile Manufacturers, the
primary auto industry trade association.
Served as a Trustee of the Ford Motor Company Fund, the
philanthropic arm of the Ford Motor Company.
Quinn Gillespie & Associates, Washington, D.C.
Partner, January 2000-February 2007
Provided strategic and tactical counsel to clients on
administrative, legislative, political, and regulatory issues;
and represented clients before executive and legislative branch
officials.
Advised clients on public relations issues and worked with
the media on their behalf.
Arnold & Porter, LLP, Washington, D.C.
Attorney, September 1997-January 2000
Focused on state and Federal election and lobbying law,
government ethics, telecommunications, and legislative and
public policy issues.
Drafted legal briefs, motions, and administrative petitions;
researched complex legal and policy issues; and drafted policy
papers, talking points, legislation, and amendments.
Represented pro-bono clients before Congress, the Federal
Election Commission, the Social Security Administration, and
the District of Columbia Superior Court.
Co-authored Government Contractors chapter in Political
Activity, Lobbying Laws and Gift Rules Guide (Chapter 11,
Glasser Legal Works, 2nd Issue, 1999); and Congressional Gift
Rules: New Congressional Gift Rules: A Summary (Arnold &
Porter, 1998).
Congressman Tim Holden, Washington, D.C.
Legislative Director, November 1994-July 1997
Senior Legislative Assistant, January 1993-November 1994
Served as the Congressman's senior legislative and political
advisor; initiated and directed Member's legislative agenda;
and oversaw the legislative operations, including the training
and supervision of legislative staff.
Congressman Gus Yatron, Washington, D.C.
Legislative Assistant, July 1991-December 1992
Provided legislative support and expertise to the
Congressman on a range of policy issues.
Senator Alan Cranston, Washington, D.C.
Staff Assistant, September 1990-July 1991
Education
Georgetown University Law Center, Washington, D.C.
Juris Doctor, Cum Laude, May 1997
Haverford College, Haverford, PA
Bachelor of Arts, Political Science, May 1990
Bar Admissions: District of Columbia, New York
The Chairman. Thank you, Mr. Andrews. That was--it was
actually quite emotional, and I am almost tempted to adjourn
the hearing.
[Laughter.]
The Chairman. But I am not going to.
Mr. Andrews. I would be fine with that.
[Laughter.]
The Chairman. But that was a lovely statement. And the
public service thing is so incredibly important, and you know,
you don't find it all by yourself. That gets handed to you by
parents.
Mr. Andrews. Indeed.
The Chairman. Yes, so that is great.
Mr. Victor Mendez, please?
STATEMENT OF VICTOR M. MENDEZ, NOMINEE TO BE DEPUTY SECRETARY,
U.S. DEPARTMENT OF TRANSPORTATION
Mr. Mendez. Good afternoon, Chairman Rockefeller, Ranking
Member Thune, and members of the Committee. I do appreciate the
opportunity to be here today, as you consider my nomination to
serve as the next Deputy Secretary of Transportation.
It is an honor and a privilege to be recommended by
Secretary Foxx and nominated by President Obama for this very
important position. I appreciate the significant role this
committee plays in establishing transportation policy, and if
confirmed, I pledge to you that I will work every day to
support Secretary Foxx, the Committee, and the talented
professionals of the Department of Transportation.
Transportation is a critical engine of the Nation's
economy. Investments in the national air, highway, rail
transport, transit, and pipeline transportation networks over
the country's history, and especially the last half century,
have been instrumental in developing the world's largest
economy and most mobile society, and this system continues to
be essential to the long-term prosperity of the United States.
While the Department's mission is to ensure the safe and
efficient movement of people and goods, we face daunting
challenges ahead of us. Safety will always be the top priority
of the Department, and in addition, virtually every element of
our transportation system faces daunting capacity constraints
and investment needs.
We also face unprecedented challenges in maintaining our
existing infrastructure while simultaneously building a true
multi-modal transportation system that will serve the various
needs of our communities and economy, now and into the future.
Further, as several of you have mentioned, the Highway Trust
Fund is in danger of becoming insolvent, as we fail to take
action.
I am very mindful of the challenges. However, I am
confident that, if confirmed, I will be able to apply the
skills that I have developed over 30 years in the
transportation arena, including 5 years as Administrator of the
Federal Highway Administration, over 7 years as Director of the
Arizona Department of Transportation, and my hands-on
transportation expertise to support Secretary Foxx and to work
with you to address these challenges head on.
During the President's first term, I had the privilege to
serve as the Administrator of FHWA, and FHWA is the second-
largest mode in the Department, with field offices in every
state and an annual budget of almost $40 billion per year.
Early in my tenure as the Administrator, I launched the
Every Day Counts innovation initiative that identified three
areas for initial focus: shortening project delivery,
accelerating technology and innovation deployment, and the
Going Greener initiative, which is focused on internal
operations within FHWA.
EDC gives states a range of tools to streamline
construction projects and make them more cost effective, all
while drawing upon new and established technologies and working
within current legal requirements. This very successful program
has encouraged numerous innovations, such as the slide-in
construction bridge, one of my favorites, and an example of the
type of leadership that I will bring to bear as the Deputy
Secretary.
Prior to joining the Department, I served as the Director
of the Arizona Department of Transportation, and during my
tenure as Director at ADOT, we built the regional freeway
system in Phoenix 6 years ahead of schedule. We delivered the
statewide construction project on time for the past 8 years
that I was there, and we continued to provide excellent
customer service at Motor Vehicle Division offices throughout
the state.
This was accomplished during a time when there was hyper-
growth in Arizona, while demand for MVD's services increased
dramatically and the highway construction program actually
doubled. I also led ADOT in implementing many innovations in
the area of funding and financing, technology, infrastructure,
research, planning, and internal operations that resulted in
improved agency operations and program delivery.
So, Mr. Chairman, and members of the Committee, thank you
very much for your consideration and the opportunity to appear
before you. I am committed to work with you, if confirmed, to
work with the administration, Secretary Foxx, and all the
transportation stakeholders to find ways to meet our Nation's
transportation needs. And I look forward to your questions.
Thank you.
[The prepared statement and biographial information of Mr.
Mendez follow:]
Prepared Statement of Victor M. Mendez, Acting Deputy Secretary,
U.S. Department of Transportation
Chairman Rockefeller, Ranking Member Thune, and Members of the
Committee, I appreciate the opportunity to be here today as you
consider my nomination to serve as the next Deputy Secretary of
Transportation.
It is an honor and a privilege to be recommended by Secretary Foxx
and nominated by President Obama for this very important position. I
appreciate the significant role this Committee plays in establishing
transportation policy and, if confirmed, I pledge to you that I will
work every day to support Secretary Foxx and the talented professionals
of the Department of Transportation.
Transportation is a critical engine of the Nation's economy.
Investments in the national air, highway, rail, port, and pipeline
transportation networks over the country's history, and especially the
last half-century, have been instrumental in developing the world's
largest economy and most mobile society and this system continues to be
essential to the long term prosperity of the United States.
While the Department's mission is to ensure the safe and efficient
movement of people and goods, we face daunting challenges ahead. Safety
will always be the top priority of the Department. In addition,
virtually every element of our transportation system faces daunting
capacity constraints and investment needs. We also face unprecedented
challenges in maintaining our existing infrastructure while
simultaneously building a true multi-modal transportation system that
will serve the varied needs of our communities and economy now and into
the future. Further, the Highway Trust Fund is in danger of becoming
insolvent if we fail to take action.
I am mindful of these challenges. However, I am confident that, if
confirmed I would be able to apply the skills I have developed over 30
years in the transportation arena, including five years as
administrator of the Federal Highway Administration (FHWA), over seven
years as Director of the Arizona Department of Transportation (ADOT)
and my hands-on transportation expertise to support Secretary Foxx and
working with you to address these challenges head on.
During the President's first term, I had the privilege of serving
as Administrator of the FHWA. The FHWA is the second largest mode in
the Department with field offices in every state and an annual budget
of almost $40 billion. Early in my tenure as Administrator, I launched
the Every Day Counts (EDC) innovation initiative that identified three
areas for initial focus: Shortening Project Delivery, Accelerating
Technology and Innovation Deployment, and the Going Greener initiative,
which is focused on how the Agency can improve the environment through
improvements in the internal operations. EDC gives states a range of
tools to streamline construction projects and make them more cost
effective--all while drawing upon new and established technologies and
working within current legal requirements. This very successful program
has encouraged numerous innovative projects such as the ``Slide-in''
construction bridge, one of my favorites, and is an example of the type
of leadership I would bring to bear as Deputy Secretary.
Prior to joining the Department, I served as the Director of ADOT.
During my tenure as Director of ADOT we: 1) built the Regional Freeway
System in the Phoenix area six years ahead of schedule, 2) delivered
the statewide transportation construction program on time for the past
eight years, and 3) continued to provide excellent customer service at
all Motor Vehicle Division (MVD) field offices throughout the State.
This was accomplished through innovative management strategies and
solutions during a time of hyper-growth in Arizona, when demand for MVD
services increased dramatically and the highway construction program
doubled. I also led ADOT in implementing many innovations in the areas
of funding and financing, technology, infrastructure, research,
planning and internal operations, that resulted in improved agency
operations and program delivery.
Chairman Rockefeller and Members of the Committee, thank you for
your consideration and the opportunity to appear before you today. I am
committed to working with you, the Administration, Secretary Foxx, and
all transportation stakeholders to find ways to meet our Nation's
transportation needs, and I look forward to your questions.
______
a. biographical information
1. Name (Include any former names or nicknames used): Victor Manuel
Mendez.
2. Position to which nominated: Deputy Secretary, U.S. Department
of Transportation.
3. Date of Nomination: May 15, 2014.
4. Address (List current place of residence and office addresses):
Residence: Information not released to the public.
Office: U.S. Department of Transportation, 1200 New Jersey
Avenue SE, Washington, DC 20590.
5. Date and Place of Birth: August 13, 1957; Ciudad Juarez,
Chihuahua, Mexico.
6. Provide the name, position, and place of employment for your
spouse (if married) and the names and ages of your children (including
stepchildren and children by a previous marriage).
None.
7. List all college and graduate degrees. Provide year and school
attended.
Arizona State University
Tempe, AZ
Masters in Business Administration, 1994
University of Texas at El Paso
El Paso, TX
Bachelors of Science in Civil Engineering, 1980
8. List all post-undergraduate employment, and highlight all
management level jobs held and any non-managerial jobs that relate to
the position for which you are nominated.
(Management-level experience denoted in italics)
United States Department of Transportation (Washington, D.C.)
Acting Deputy Secretary, U.S. Department of Transportation (01/
2014 to present)
Administrator, Federal Highway Administration (07/2009-12/2013)
Arizona Department of Transportation (Phoenix, AZ)
Director, Arizona Department of Transportation (07/2001-02/
2009)
Deputy Director, Arizona Department of Transportation (09/1999-
07/2001)
Deputy State Engineer, Arizona Department of Transportation
(02/1997-09/1999)
Assistant State Engineer, Arizona Department of Transportation
(09/1995-02/1997)
Transportation Engineering Supervisor--Program and Project
Section, Arizona Department of Transportation (05/1994-09/1995)
Transportation Engineering Supervisor--Special Programs
Section, Arizona Department of Transportation (09/1992-05/1994)
Transportation Engineer Supervisor-Preconstruction Engineering,
Arizona Department of Transportation (05/1988-09/1992)
Transportation Engineer I, Arizona Department of Transportation
(10/1985-05/1988)
U.S. Forest Service
Civil Engineer, U.S. Forest Service, Flagstaff, AZ (10/1984-10/
1985)
Civil Engineer--Roadway Design and Facilities Engineering, U.S.
Forest Service, Prineville, OR (06/1980-10/1984)
9. Attach a copy of your resume. Please see attachment.
10. List any advisory, consultative, honorary, or other part-time
service or positions with Federal, State, or local governments, other
than those listed above, within the last five years: None.
11. List all positions held as an officer, director, trustee,
partner, proprietor, agent, representative, or consultant of any
corporation, company, firm, partnership, or other business, enterprise,
educational, or other institution within the last five years: None.
12. Please list each membership you have had during the past ten
years or currently hold with any civic, social, charitable,
educational, political, professional, fraternal, benevolent or
religious organization, private club, or other membership organization.
Include dates of membership and any positions you have held with any
organization. Please note whether any such club or organization
restricts membership on the basis of sex, race, color, religion,
national origin, age, or handicap.
American Association of State Highway and Transportation
Officials (AASHTO); President (2006-2007)
Western Association of State Highway and Transportation
Officials (WASHTO); President (2006-2007)
City of Glendale (AZ) Citizens Transportation Oversight
Commission; Member and Chair (2002-2006)
City of Glendale (AZ) Special Events Committee; Member
(2006-2008)
Valley of the Sun YMCA; Board of Directors; Member (2008-
2009)
13. Have you ever been a candidate for and/or held a public office
(elected, non-elected, or appointed)? If so, indicate whether any
campaign has any outstanding debt, the amount, and whether you are
personally liable for that debt.
Yes, I've held appointive office at the state and Federal levels.
Specifically:
In 2002, I was appointed by former Arizona Governor Jane Dee
Hull and confirmed by the Arizona State Senate to the position
of Director, Arizona Department of Transportation;
In 2003, I was re-appointed by former Arizona Governor Janet
Napolitano to the position of Director, Arizona Department of
Transportation.
In 2009, I was appointed by President Obama and confirmed by
the U.S Senate to the position of Administrator, Federal
Highway Administration.
14. Itemize all political contributions to any individual, campaign
organization, political party, political action committee, or similar
entity of $500 or more for the past ten years. Also list all offices
you have held with, and services rendered to, a state or national
political party or election committee during the same period.
------------------------------------------------------------------------
------------------------------------------------------------------------
Arizona State Democratic Central Executive 10/10/2006 $2,000.00
Committee
------------------------------------------------------------------------
Obama Victory Fund 03/05/2012 $500.00
07/05/2012 $2,000.00
10/05/2012 $2,000.00
------------------------------------------------------------------------
15. List all scholarships, fellowships, honorary degrees, honorary
society memberships, military medals, and any other special recognition
for outstanding service or achievements. None.
16. List each book, article, column, or publication you have
authored, individually or with others. Also list any speeches that you
have given on topics relevant to the position for which you have been
nominated. Do not attach copies of these publications unless otherwise
instructed.
I have done my best to identify books, articles, columns,
publications or relevant speeches, including a thorough review of
personal files and searches of publically available electronic
databases. Despite my searches, there may be other materials I have
been unable to identify, find, or remember. I have located the
following below:
Speeches
Speeches delivered in my capacity as DOT Acting Deputy Secretary:
January 10, 2014--National Association of Counties State
Associations Meeting
January 14, 2014--TRB Dwight Eisenhower Fellowship Program,
Washington D.C.
January 14, 2014--TRB Eisenhower Program Closing Reception,
Washington, D.C.
January 16, 2014--TRB Long-Term Bridge Performance program,
Washington, D.C.
January 22, 2014--Society of Automotive Engineers Government
Industry Meeting
January 24, 2014--Mayors Innovation Project Meeting
February 4, 2014--Bloomberg BGOV Infrastructure Conference
February 6, 2014--DOT Civil Rights Virtual Symposium [TAPED
Remarks]
February 7, 2014--Eisenhower School Visit
February 16, 2014--Transportation Trades Department
Executive Committee Meeting
March 2, 2014--National Association of Counties
Transportation Steering Committee Meeting
March 3, 2014--National Association of Counties Large Urban
County Caucus Steering Committee Meeting
March 5, 2014--OSDBU Women's History Month Event
March 6, 2014--Associated General Contractors of America
Convention
March 10, 2014--International Bridge, Tunnel, and Turnpike
Association Summit on Legislation, Policy, and Infrastructure
Finance
March 11, 2014--Purdue Road School [TAPED Remarks]
March 13, 2014--National Congress of American Indians
Executive Council Winter Session
March 19, 2014--Young Professionals in Transportation
Meeting
March 24, 2014--American Association of Port Authorities
Spring Conference
March 25, 2014--National Freight Advisory Committee Meeting
March 27, 2014--Garrett Morgan Sustainable Transportation
Competition
April3, 2014--Highway Safety Partners' Venture Meeting
April 22, 2014--Great Lakes Regional Small Business
Transportation Summit
April29, 2014--USMMA Board of Visitors Meeting
May 6, 2014--National Maritime Strategy Symposium
May 7, 2014--Construction Industry Ethics & Compliance
Initiative Spring Conference
May 7, 2014--National Bike to School Day Event
May 8, 2014--U.S. Army War College Visit
May 8, 2014--Representative Adam Smith's DC Day Meeting
May 12, 2014--International Association of Machinists and
Aerospace Workers Legislative Conference
May 13, 2014--Steel Manufacturers Association 2014 Annual
Member Conference
May 17, 2014--Manor Expressway Ribbon Cutting Ceremony
May 22, 2014--FTA GROW AMERICA Webcast
Speeches delivered in my capacity as FHWA Administrator can be
found on the following page of the FHWA website: http://www.fhwa
dot.gov/briefingroom/speeches/
17. Please identify each instance in which you have testified
orally or in writing before Congress in a governmental or non-
governmental capacity and specify the date and subject matter of each
testimony.
------------------------------------------------------------------------
Senate/
Date Topic Committee House
------------------------------------------------------------------------
June 2, 2009 Nomination Hearing Environment and Senate
Public Works
------------------------------------------------------------------------
March 17, 2010 Strengthening Committee on House
Intermodal Appropriations,
Connections and Subcommittee on
Improving Freight Transportation,
Mobility Housing and Urban
Development, and
Related Agencies
------------------------------------------------------------------------
February 15, Accelerating the Committee on House
2011 Project Delivery Transportation and
Process Infrastructure,
Subcommittee on
Highways and
Transit
------------------------------------------------------------------------
March 30, 2011 FHWA FY 2012 Budget Committee on House
Request Appropriations,
Subcommittee on
Transportation,
Housing and Urban
Development, and
Related Agencies
------------------------------------------------------------------------
March 22, 2012 President's FY 2013 Committee on House
Budget Appropriations,
Subcommittee on
Transportation,
Housing and Urban
Development, and
Related Agencies
------------------------------------------------------------------------
March 14, 2013 Implementing MAP-21: Committee on House
Progress Report Transportation and
from U.S. DOT Modal Infrastructure,
Administrators Subcommittee on
Highways and
Transit
------------------------------------------------------------------------
June 13, 2013 Crumbling Committee on Senate
Infrastructure: Appropriations,
Examining the Subcommittee on
Challenges of our Transportation,
Outdated and Housing and Urban
Overburdened Development, and
Highways and Related Agencies
Bridges
------------------------------------------------------------------------
November 14, Progress Report: Committee on House
2013 Hurricane Sandy Transportation and
Recovery--One Year Infrastructure
Later
------------------------------------------------------------------------
18. Given the current mission, major programs, and major
operational objectives of the department/agency to which you have been
nominated, what in your background or employment experience do you
believe affirmatively qualifies you for appointment to the position for
which you have been nominated, and why do you wish to serve in that
position?
It's an exciting and challenging time to be engaged in
transportation. The solutions for the future will require focus and a
willingness to consider new ways of doing business. I have the
experience, knowledge and competence to lead and assist during these
times, if confirmed.
During my career at FHWA and at the Arizona Department of
Transportation, I have been a leader on transportation issues for many
years. I know the issues and understand the needs of the various
stakeholders, such as local municipalities, metropolitan planning
organizations, tribes, elected officials, etc. Over the years, I have
developed strong business relationships and partnerships with various
levels of government and industry stakeholders.
I believe I am in a position to be highly effective in helping
shape transportation policy to meet the Nation's future needs. The
nation is on the threshold of redefining its future transportation
infrastructure and how it will pay for it and I would be privileged, if
confirmed, to be part of that process.
As Administrator of the Federal Highway Administration, I led an
organization of approximately 3,000 employees with offices in every
state and an annual operating budget of approximately $425 million.
FHWA promotes the development, operation, and management of an
intermodal transportation system that is economically efficient,
environmentally sound, provides a foundation for the Nation to compete
in the global economy, and moves people and goods safely.
Under my leadership FHWA successfully administered an average
annual $41 billion federal-aid transportation program to invest in our
Nation's highways and bridges. Additionally, FHWA successfully
implemented $26.6 billion from the American Recovery and Reinvestment
Act (ARRA). Through ARRA we invested in more than 12,000 road, highway
and bridge projects across the country. These projects put our fellow
citizens back to work and made our communities safer, greener, more
livable, less congested and economically stronger. During my tenure at
FHWA, I placed significant emphasis on innovation and best practices to
achieve our efficiency and project delivery objectives.
Additionally, prior to my job at FHWA, for approximately 8 years I
was the Director of the Arizona Department of Transportation. I led an
organization of approximately 4,600 employees with an annual operating
budget of approximately $430 million. The 5 year capital budget,
consisting primarily of freeways and highways, averaged approximately
$6 billion in state and Federal funds. At one point in time, the
Department had approximately $1.5 billion under contract. ADOT impacts
virtually every citizen of Arizona through its responsibility to
license drivers, register vehicles, in addition to planning, building
and operating the state's transportation infrastructure, as well as
addressing general aviation needs throughout the state.
19. What do you believe are your responsibilities, if confirmed, to
ensure that the department/agency has proper management and accounting
controls, and what experience do you have in managing a large
organization?
If confirmed for the position of Deputy Secretary, the chief
operating officer of the Department of Transportation, it will be
incumbent upon me to ensure that the Department is delivering the best
value for the available taxpayer resources. Through the appropriate
systems and controls, the Department must ensure that all financial
transactions meet and exceed established protocols to ensure that there
is no fraud, waste or abuse. In addition, as a manager, my philosophy
has always been to use audits as management tools for two primary
purposes: (1) to continuously improve the existing practices and
processes; and (2) to fix any deficiencies that the auditors may
identify. It will also be my responsibility to ensure that employees
are properly trained to perform their responsibilities.
To this role, I bring significant hands on experience managing
large complex organizations with annual operating budgets in excess
of$400 million and overseeing the expenditure of capital budgets that
totaled well into the billions of dollars in taxpayer funds. Moreover,
I have a proven track record of successfully leading large
organizations and working within bureaucracies to deliver tangible
benefits to the taxpayer.
20. What do you believe to be the top three challenges facing the
department/agency, and why?
Safety is our highest priority at USDOT. We will continue to search
for solutions that improve safety. Safety touches everyone in the
Nation in one way or another. Almost 33,000 people died on the Nation's
highways and we need to find strategies to reduce further loss of life.
We need to continue to remove unsafe motor coaches that operate and
imperil unsuspecting bus customers. We will continue to focus on
several new and emerging safety issues, such as the safe transport of
energy products and addressing auto industry vehicle defects in a more
timely manner. In the passenger rail sector we need to continue to
focus on safety culture and positive train control issues. In the
aviation sector, NextGen implementation is of high priority. It is also
my belief that we will have to rely on technology solutions to improve
safety on the Nation's transportation system.
Appropriate Federal funding for the necessary investments in
surface and aviation transportation is another challenge. The highway
account of the Highway Trust Fund will become insolvent in late August,
followed by insolvency of the transit account in early 2015. These
infrastructure investments are crucial for the future of the Nation's
economy and our citizens. Our transportation system which connects all
of us to jobs, education, healthcare, and many other needs must provide
for efficient trade and commerce; and allow all of our economic sectors
to be competitive in a global economy.
Finally, improving our efficiency is critically important. We must
strive to obtain the best value for the taxpayers with the available
resources. We will continue to pursue innovative solutions that will
cut project delivery time and work on an interagency basis to ensure
that the Federal Government is delivering infrastructure in the most
efficient manner possible.
b. potential conflicts of interest
1. Describe all financial arrangements, deferred compensation
agreements, and other continuing dealings with business associates,
clients, or customers. Please include information related to retirement
accounts.
I am a participant in the Arizona State Retirement System and
receive monthly retirement benefits.
2. Do you have any commitments or agreements, formal or informal,
to maintain employment, affiliation, or practice with any business,
association or other organization during your appointment? If so,
please explain: No.
3. Indicate any investments, obligations, liabilities, or other
relationships which could involve potential conflicts of interest in
the position to which you have been nominated.
In connection with the nomination process, I have consulted with
the Office of Government Ethics and the Department of Transportation's
designated agency ethics official to identify any potential conflicts
of interest. Any potential conflicts of interest will be resolved in
accordance with the terms of an ethics agreement that I have entered
into with the designated agency ethics official and that has been
provided to this Committee. I am not aware of any other potential
conflicts of interest.
4. Describe any business relationship, dealing, or financial
transaction which you have had during the last ten years, whether for
yourself, on behalf of a client, or acting as an agent, that could in
any way constitute or result in a possible conflict of interest in the
position to which you have been nominated.
In connection with the nomination process, I have consulted with
the Office of Government Ethics and the Department of Transportation's
designated agency ethics official to identify any potential conflicts
of interest. Any potential conflicts of interest will be resolved in
accordance with the terms of an ethics agreement that I have entered
into with the designated agency ethics official and that has been
provided to this Committee. I am not aware of any other potential
conflicts of interest.
5. Describe any activity during the past ten years in which you
have been engaged for the purpose of directly or indirectly influencing
the passage, defeat, or modification of any legislation or affecting
the administration and execution of law or public policy.
As mentioned in item A-17 above, I have testified before several
congressional committees since 2009. The nature of this testimony has
typically been to either advocate on behalf of the Administration's
annual Budget request to Congress or to provide the committees before
which I testified with an update on a specific policy issue under the
specific committee's jurisdiction. Additionally, in my role as the
Director of the Arizona Department of Transportation, I was responsible
for identifying beneficial transportation-related policies at the state
and Federal levels.
6. Explain how you will resolve any potential conflict of interest,
including any that may be disclosed by your responses to the above
items.
First, as I stated in item 4 above I do not reside in Arizona
anymore. I moved from Arizona approximately 5 years ago. Second, in my
previous 5 years as the Administrator of the Federal Highway
Administration a conflict of interest situation has never emerged due
to my awareness and careful consideration of the national issues that
we address. So, I will continue to focus on the national/federal nature
of the issues that we address in transportation.
In connection with the nomination process, I have consulted with
the Office of Government Ethics and the Department of Transportation's
designated agency ethics official to identify any potential conflicts
of interest. Any potential conflicts of interest will be resolved in
accordance with the terms of an ethics agreement that I have entered
into with the designated agency ethics official and that has been
provided to this Committee. I am not aware of any other potential
conflicts of interest.
c. 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 of any Federal,
State, county, or municipal entity, other than for a minor traffic
offense? If so, please explain.
Approximately 38 years ago I was charged with public nuisance--
drinking a beer in public. The legal drinking age was 18. I was 18
years of age and pled no contest. From memory, believe I paid a fine of
$30 or $40. However, I do not recall the exact amount.
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.
During my tenure as Administrator of the Federal Highway
Administration and as Director of the Arizona Department of
Transportation, I was named in my official capacity in numerous civil
claims. However, I was not directly involved in these legal proceedings
and no judgments were made against me personally.
4. Have you ever been convicted (including pleas of guilty or nolo
contendere) of any criminal violation other than a minor traffic
offense? If so, please explain: No.
5. Have you ever been accused, formally or informally, of sexual
harassment or discrimination on the basis of sex, race, religion, or
any other basis? If so, please explain.
Over the past 12 years, as Administrator of the Federal Highway
Administration and as Director of the Arizona Department of
Transportation, I have been listed in my official capacity as one of
the management officials in a few cases and claims, including EEO
complaints. However, I was not directly involved in these matters and
none resulted in any findings of wrongdoing against me personally.
6. Please advise the Committee of any additional information,
favorable or unfavorable, which you feel should be disclosed in
connection with your nomination.
None to my knowledge.
d. 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. 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.
______
Resumee of Victor M. Mendez
Executive profile
Victor Mendez is a high performing executive with a proven track
record of successfully leading large transportation agencies. He has
strong leadership and communication skills. Victor has worked with
elected officials from all levels of government and has the distinct
pleasure of having worked directly for 4 dynamic leaders who have held
Secretarial positions in the Executive Branch of the Federal
Government.
Victor currently serves as the Acting Deputy Secretary at the U.S.
Department of Transportation, while holding the position as the
Administrator of the Federal Highway Administration (FHWA). Victor was
nominated by President Obama and confirmed by the U.S. Senate in July
2009 to be the FHWA Administrator. Previously, he was a member of
former Arizona Governor Janet Napolitano's Cabinet as the Director of
the Arizona Department of Transportation (ADOD. He was ADOT Director
from 2001 through early 2009 and has been involved in national
transportation policy issues for many years. In 2008, he was selected
as Leader of the Year in Public Policy in Transportation by the Arizona
Capitol Times. During 2006 through 2007, he served as President of the
American Association of State Highway and Transportation Officials
(AASHTO) and the Western Association of State Highway and
Transportation Officials (WASHTO). Throughout 2008, he served on the
Council of State Governments (CSG) Transportation Advisory Group. In
past years, he served on several city commissions and committees as a
citizen of the City of Glendale, Arizona.
Throughout his career Victor has held various executive management
positions leading large transportation agencies with thousands of
employees. He has focused these leadership opportunities to promote:
(1) effective and efficient government, (2) safety, (3) environmental
protection and enhancement, (4) innovation, research and technology,
(5) partnership with transportation interest groups, and (6) smart
transportation investment that supports job creation. He understands
that fulfilling government statutory and regulatory responsibilities
involves resolving conflicts among competing objectives and interests,
such as preserving neighborhoods, protecting our quality of life, and
keeping the air clean while providing transportation infrastructure and
services that grow the economy and create jobs.
Victor earned a Masters of Business Administration degree from
Arizona State University and a Bachelors of Science in Civil
Engineering degree from the University of Texas at El Paso. He is a
registered professional engineer in the State of Arizona.
Career profile
In December 2013, President Obama appointed Victor to serve
as the Acting Deputy Secretary of the U.S. Department of
Transportation.
In 2009, President Obama nominated and the U.S. Senate
confirmed Victor as the Administrator of the Federal Highway
Administration.
In 2003, former Arizona Governor (and current U.S.
Department Homeland Security Secretary) Janet Napolitano
appointed Victor as Director of the Arizona Department of
Transportation.
In 2001, former Arizona Governor Jane Dee Hull appointed
Victor as the Department's Acting Director, and he was
subsequently confirmed as Director by the State Senate in 2002.
In 1999, former ADOT Director (and past U.S. Department of
Transportation Secretary) Mary E. Peters appointed Victor as
the department's Deputy Director.
In 1997, Victor was selected as the Deputy State Engineer to
lead the implementation of the Phoenix area's multi-billion
dollar freeway system.
Leadership and executive management experience
Federal experience
As the acting Deputy Secretary, Victor is the Department of
Transportation's chief operating officer. Victor has responsibility for
the day-to-day operations of 10 modal administrations and more than
55,000 DOT employees nationwide and overseas. Mendez is focused on
advancing the Secretary's key priorities and ensuring that the
transportation system remains the safest in the world and contributes
to the economic well-being of the Nation.
As Administrator of the Federal Highway Administration, Victor
leads an organization of approximately 3,000 employees with offices in
every state and an annual operating budget of approximately $425
million. FHWA promotes the development, operation, and management of an
intermodal transportation system that is economically efficient,
environmentally sound, provides a foundation for the Nation to compete
in the global economy, and moves people and goods safely.
Under Victor's leadership FHWA successfully administered an average
annual $41 billion Federal aid transportation program to invest in our
Nation's highways and bridges. Additionally, FHWA successfully
implemented $26.6 billion from the American Recovery and Reinvestment
Act (ARRA). Through ARRA we invested in more than 12.000 road, highway
and bridge projects across the country. These projects put our fellow
citizens back to work and made our communities safer, greener, more
livable, less congested and economically stronger.
In 2009, Victor launched a nationwide innovation initiative called
Every Day Counts (EDC) to reduce project delivery times and to
implement market ready technologies that will improve highway safety
and mobility. EDC has been embraced and implemented by all state
departments of transportation. Several strategies from EDC were
actually included in the new surface transportation bill (MAP-21) that
was signed by President Obama in 2012.
In 2012, FHWA was recognized as one of the best Federal agencies to
work, ranking #9 out of 292 sub-cabinet agencies and improving from
last year's ranking of #12 in the ``Best Places to Work'' survey,
conducted by the nonpartisan think tank Partnership for Public Service.
Since 2009, FHWA's overall ranking has improved to #9 from #27.
State experience
As Director of the Arizona Department of Transportation, Victor Jed
an organization of approximately 4,600 employees with an annual
operating budget of approximately $430 million. The 5 year capital
budget, consisting primarily of freeways and highways, averaged
approximately $6 billion in state and Federal funds. At one point in
time, the Department had approximately $1.5 billion under contract.
ADOT impacts virtually every citizen of Arizona through its
responsibility to license drivers, register vehicles, as well as to
plan, build and operate the state's transportation infrastructure, and
to address general aviation needs throughout the state.
Victor has a proven track record as a successful director of a
state transportation agency. Through his leadership ADOT successfully;
(1) built the Regional Freeway System in the Phoenix area six years
ahead of schedule, (2) delivered the statewide transportation
construction program on time for eight consecutive years, and (3)
continued to provide excellent customer service at all Motor Vehicle
Division (MVD) field offices throughout the state. This was
successfully accomplished through innovative management strategies and
solutions during a time of hyper-growth in Arizona, when demand for MVD
services increased dramatically and the highway construction program
doubled.
During Victor's tenure as ADOT Director, the Department implemented
many innovations in the areas of funding and financing, technology,
infrastructure, research, planning and internal operations. These
innovations resulted in improved agency operations and program
delivery.
Vlctor built an organization that was sensitive and responsive to
the citizens of Arizona while ensuring compliance with statutory and
regulatory requirements and being mindful of its fiduciary
responsibilities to the taxpayers. He enhanced the agency's ability to
communicate with the public and stakeholders through direct contact,
partnerships, improved media communications and public involvement.
International experience
Victor has also been actively engaged in international
transportation issues. During my tenure at the Arizona Department of
Transportation, he co-chaired the Transportation, Infrastructure and
Ports Committee of the Arizona Mexico Commission. Additionally, he co-
chaired the Border Crossings and Logistics Worktable of the Border
Governors Conference. In 2007, he participated and presented at the
World Road Congress in Paris, France as a member of the AASHTO
delegation. He is fluent in conversational Spanish. Comprehensive
``Work History'' is attached
______
Victor M. Mendez--Work History through January 2009
From (Month/Year): 01/2003 to (Month/Year): 01/2009
Employer Name: Arizona Department of Transportation
Position Title: Director
City: Phoenix state: AZ country: Zip Code: 85007
Supervisor's Name: Former Arizona Governor Janet Napolitano
From (Month/Year): 07/2001 to (Month/Year): 01/2003
Employer Name: Arizona Department of Transportation
Position Title: Director
City: Phoenix state: AZ country: Zip Code: 85007
Supervisor's Name: Former Arizona Governor Jane Dee Hull
From (Month/Year): 09/1999 to (Month/Year): 07/2001
Employer Name: Arizona Department of Transportation
Position Title: Deputy Director
City: Phoenix state: AZ country: Zip Code: 85007
Supervisor's Name: Former ADOT Director Mary Peters
From (Month/Year): 02/1997 to (Month/Year): 09/1999
Employer Name: Arizona Department of Transportation
Position Title: Deputy State Engineer--Valley Transportation Group
City: Phoenix state: AZ country: Zip Code: 85007
Supervisor: Tom Schmitt
From (Month/Year): 09/1995 to (Month/Year): 02/1997
Employer Name: Arizona Department of Transportation
Position Title: Assistant State Engineer--Statewide Project Management
City: Phoenix state: AZ country: Zip Code: 85007
Supervisor: Wayne Collins
From (Month/Year): 05/1994 to (Month/Year): 09/1995
Employer Name: Arizona Department of Transportation
Position Title: Transportation Engineering Supervisor, Program and
Project Section
City: Phoenix state: AZ country: Zip Code: 85007
Supervisor: Dean Lindsey
From (Month/Year): 09/1992 to (Month/Year): 05/1994
Employer Name: Arizona Department of Transportation
Position title: Transportation Engineering Supervisor, Special Programs
Section
City: Phoenix state: AZ country: Zip Code: 85007
Supervisor: Bob Mickelson
From (Month/Year): 05/1988 To (Month/Year): 09/1992
Employer Name: Arizona Department of Transportation
Position Title: Transportation Engineering Supervisor, Preconstruction
Engineering
City: Phoenix state: AZ counlry: Zip Code: 85007
Supervisor: Bob Mickelson
From (Month/Year): 10/1985 to (Month/Year): 05/1988
Employer Name: Arizona Department of Transportation
Position Title: Transportation Engineer I
City: Phoenix state: AZ country: Zip Code: 85007
Supervisor: Jamal Sarsam
From (Month/Year): 10/1984 to (Month/Year): 10/1985
Employer Name: U.S. Forest Service
Position Title: Civil Engineer
City: Flagstaff state: AZ country: Zip Code: 86001
Supervisor's Name: Bob Macdonald
From (Month/Year): 06/1980 to (Month/Year): 10/1984
Employer Name: U.S. Forest Service
Position Title: Civil Engineer, Roadway Design and Facilities
Engineering
City: Prineville state: OR country: Zip Code: 97754
Supervisor's Name: Jim Saurbier
The Chairman. Thank you very much, Mr. Mendez.
Mr. Rogoff?
STATEMENT OF PETER M. ROGOFF, UNDER SECRETARY FOR POLICY-
DESIGNATE, U.S. DEPARTMENT OF TRANSPORTATION
Mr. Rogoff. Well, thank you, Chairman Rockefeller, Ranking
Member Thune, and members of the Committee.
It is an honor for me to appear before you today as
President Obama's nominee for Under Secretary of Transportation
for Policy. Having served on the staff of a Senate Committee
for 22 years, I know that the confirmation process is one of
the most important constitutional responsibilities of the
Senate. So I come to this hearing with great humility and a
respect for the process.
I would like also to introduce my family, Ms. Dina Morris,
my wife; my daughter, Lucy Rogoff; our great friend and the
greatest nanny on the planet, Marlene Dowling-Leech. And my
teenage son is unfortunately charged with teaching a class to
his peers in high school but he could not be here today but is
with us in spirit.
As you pointed out, Mr. Chairman, I did considerable work
with a number of Senators on the Appropriations Committee. My
first Chairman was actually Senator John Stennis of
Mississippi. But shortly after he left the Committee and left
the Senate, I was given the opportunity to move to the
Transportation Subcommittee. I then served 19 years on the
staff of the Transportation Subcommittee, including 14 years as
its Democratic Staff Director.
I am deeply proud of my contributions during that time,
assisting the Senate in advancing improvements and new
initiatives to make our transportation system across all modes
safer and more efficient.
My work included serving as a principal staff adviser for
numerous policy initiatives, including the .08 drunk driving
law, new maritime screening efforts to ban substandard ships
and polluters from U.S. ports, new inspection regimes to ensure
the safety of cross-border truck movements, new training and
recruitment mechanisms for air traffic controllers, new drug
and alcohol testing requirements for transportation industry
employees, new Federal assistance measures for accident
victims, and the development of new aviation user fees to
finance security requirements in the wake of 9/11.
Many of those initiatives were careful acts of coordination
between the Appropriations Committee and the Commerce
Committee. So I have had a great deal of work with this
committee as well.
In April 2009, the President nominated me to serve as his
Federal Transit Administrator, and the Senate confirmed me to
that position of May of that year. And then, this past January,
the President directed me to serve as the Under Secretary of
Transportation for Policy on an acting basis. My nomination to
serve in that position is now before you.
As Administrator of the FTA, I presided over the
significant modernization of an $11 billion agency with more
than 500 employees and 200 contractors across the Nation, as
well as hundreds of grantees that ranged from our largest and
most complex transit systems to small vanpools providing
critical medical transportation in sparse, rural communities
and on tribal lands.
While Administrator, I developed and transmitted new safety
legislation to Congress, which is now part of MAP-21, granting
FTA new authority for the first time in its 50-year history to
establish and enforce minimum transit safety standards on all
federally funded rail transit systems.
I am particularly proud of my effort to streamline the
FTA's processes, including the New Starts program. We
substantially transformed the approach away from a ``Washington
knows best'' attitude, to one where the FTA works to help State
and local leaders deploy their own vision for improved mobility
in their community.
We also made substantial improvements in the FTA's
triennial audit and review process, moving away from a ``one
size fits all'' enforcement exercise to one focused on each
transit agency's unique characteristics, while ensuring
continued Federal compliance.
Currently, as Acting Under Secretary of Policy, I have had
the pleasure of assisting Secretary Foxx and our modal
administrators in developing, finalizing, and formally
transmitting to Congress a comprehensive multi-modal surface
transportation reauthorization act, or the GROW AMERICA Act. It
is a $302 billion, 4-year proposal, all built around the
imperative presented by the fact that our Nation will see 100
million citizens in growth by the year 2050. That is 100
million additional citizens who will put dramatically increased
demands on our surface transportation system, both in moving
people and freight.
The year 2050 may seem very far away to some of us, but as
the parents of two teenagers, my wife and I have to reflect on
the fact that in the year 2050, our kids will be roughly the
ages that we are now. And they will either be working in an
economy that continues to grow and supports a rising quality of
life, or they will be struggling in an economy whose potential
has been choked off by punishing congestion and deteriorated
infrastructure.
These are the competing visions for the future that all of
us transportation policymakers face today, as you, Mr.
Chairman, and you, Senator Thune, expressed cogently in your
opening statement. So I very much appreciate the opportunity to
continue with this committee on these issues going forward.
Thanks very much.
[The prepared statement and biographical information of Mr.
Rogoff follow:]
Prepared Statement of Peter M. Rogoff, Under Secretary for Policy-
Designate, U.S. Department of Transportation
Chairman Rockefeller, Ranking Member Thune, Members of the
Committee, it is an honor for me to appear before you today as
President Obama's nominee for Under Secretary of Transportation for
Policy.
Having served on the staff of a Senate Committee for 22 years, I
know that the confirmation process is one of the most important
constitutional responsibilities of the Senate. So I come to this
hearing with great humility and respect for the process.
My experience in transportation policy began roughly 25 years ago
when, in 1989, Appropriations Committee Chairman Robert C. Byrd gave me
the opportunity to move from the staff of the subcommittee on Labor,
HHS and Education to the Transportation subcommittee. I then served for
19 years on the staff of the Transportation Subcommittee, including 14
years as the Democratic Staff Director of the Subcommittee.
I am deeply proud of my contributions during that time assisting
the Senate in advancing improvements and new initiatives to make our
transportation system across all modes safer and more efficient. My
work included serving as a principal staff advisor for numerous
groundbreaking transportation policy initiatives, including the .08 BAC
drunk driving law, new maritime screening efforts to ban substandard
ships and polluters from U.S. ports, new inspection regimes to ensure
the safety of cross-border truck movements, new training and
recruitment mechanisms for air traffic controllers, new drug and
alcohol testing requirement for transportation industry employees, new
Federal assistance measures for accident victims, and the development
of new aviation user fees to finance security requirements and targeted
unemployment benefits for aviation workers in the wake of 9/11. I was
also heavily involved in efforts to strengthen safety inspections of
substandard trucks, cargo vessels, and pipelines. Together, these laws
and regulations are credited with saving tens of thousands of lives.
In April 2009, the President nominated me to serve as his Federal
Transit Administrator, and the Senate confirmed me to that position in
May of that year. This past January, the President directed me to serve
as the Undersecretary of Transportation for Policy on an acting basis.
My nomination to serve in that position is now before you.
As Administrator of the Federal Transit Administration (FTA), I
presided over the significant modernization of an $11 billion agency
with more than 500 employees and 200 contractors here in Washington and
ten Regional offices. Throughout my tenure as the agency's
Administrator, the FTA never failed to obtain a clean audit opinion
while administering billions of dollars in grant funds to literally
hundreds of grantees. These grantees ranged from our largest and most
complex urban systems to small van pools providing critical medical
transportation in sparse rural communities and tribal lands.
While Administrator, I presided over the transition from SAFETEA-LU
to a new, two-year surface transportation authorization, MAP-21. The
new law reflects many of FTA's and the U.S. Department of
Transportation's highest policy priorities to strengthen public
transportation. In particular, the Administration developed and
transmitted new safety legislation to Congress which is now part of
MAP-21, granting FTA new authority for the first time in its 50-year
history to establish and enforce minimum transit safety standards on
all federally funded rail transit systems.
I am particularly proud of my effort to streamline the FTA's
processes, including the New Starts program--the agency's major capital
public transportation program for expanding transit systems. We have
substantially transformed the approach away from a ``Washington knows
best'' attitude to one where the FTA works to help state and local
leaders deploy their own vision for improved mobility in their
community. We also made substantial improvements in the FTA's triennial
audit and review process--moving away from a ``one size fits all''
enforcement exercise to one focused on each transit agency's unique
characteristics while ensuring continued Federal compliance as they
take on new challenges. I also initiated important revisions and
clarifications to FTA's policies to better guarantee that all funding
recipients comply fully with Federal civil rights laws including the
Americans with Disabilities Act.
Currently, as Acting Under Secretary of Transportation for Policy,
I have had the pleasure of assisting Secretary Foxx and our modal
administrators in developing, finalizing, and formally transmitting to
Congress a comprehensive multimodal surface transportation
reauthorization act--the GROW AMERICA Act. The GROW AMERICA Act is a
$302 billion, four-year transportation reauthorization proposal built
around the policy imperatives presented by the fact that our Nation
will see an additional 100 million citizens by the year 2050--100
million citizens that will put dramatically increased demands on our
surface transportation system, both in moving people and freight.
The year 2050 may seem far away to some of us. But as the parents
of two teenagers, my wife and I often reflect on the fact that, in the
year 2050, our kids will be roughly the ages that we are now. And they
will either be working in an economy that continues to grow and
supports a rising quality of life, or they will be struggling in an
economy whose potential has been choked off by punishing congestion and
deteriorated infrastructure.
Those are the competing visions for the future that all of us as
transportation policymakers face today, including the Members of this
Committee. I would very much appreciate the opportunity to continue to
work with this Committee and the rest of Congress as we tackle these
challenges together in the years ahead.
Thank you for the opportunity to present my testimony this
afternoon. I would be happy to answer any questions you may have.
______
a. biographical information
1. Name (Include any former names or nicknames used): Peter Matthew
Rogoff.
2. Position to which nominated: Under Secretary of Transportation
for Policy, U.S. Department of Transportation (USDOT).
3. Date of Nomination: May 15, 2014.
4. Address (List current place of residence and office addresses):
Residence: Information not released to the public.
Office: U.S. Department of Transportation, 1200 New Jersey
Ave., SE, Washington, D.C. 20590
5. Date and Place of Birth: March 9, 1960; New York, NY.
6. Provide the name, position, and place of employment for your
spouse (if married) and the names and ages of your children (including
stepchildren and children by a previous marriage).
Spouse: Ms. Dena Morris, Legislative Director, Office of U.S.
Senator Richard Durbin (D-IL); children: Niles H. M. Rogoff,
Age 16; Lucille H.M. Rogoff, Age 14.
7. List all college and graduate degrees. Provide year and school
attended.
Amherst College
Amherst, MA
Bachelor of Arts, 1983
Georgetown University
Washington, D.C.
Masters in Business Administration, 2001
8. List all post-undergraduate employment, and highlight all
management level jobs held and any non-managerial jobs that relate to
the position for which you are nominated.
(Management-level experience denoted in italics)
U.S. Department of Transportation
Washington, D.C.
Acting Under Secretary of Transportation for Policy (January
2014-Present)
Federal Transit Administrator (May 2009-Present)
U.S. Senate Committee on Appropriations
Washington, D.C.
Subcommittee on Transportation, Housing and Urban Development, and
Related Agencies
Democratic Staff Director (January 1995-May 2009)
Professional Staff Member (January 1990-December 1994)
Subcommittee on Labor, Health and Human Services, Education, and
Related Agencies
Professional Staff Member (January 1987-December 1989)
National Association of Independent Colleges and Universities
(NAICU) Washington, D.C.
Legislative Associate (est. April 1984-January 1987)
Coalition of Private University Students (COPUS)
Washington, D.C.
Legislative Director (Est. November 1983-April 1984)
9. Attach a copy of your resume. Attached.
10. List any advisory, consultative, honorary, or other part-time
service or positions with Federal, State, or local govemments, other
than those listed above, within the last five years: None.
11. List all positions held as an officer, director, trustee,
partner, proprietor, agent, representative, or consultant of any
corporation, company, firm, partnership, or other business, enterprise,
educational, or other institution within the last five years: None.
12. Please list each membership you have had during the past ten
years or currently hold with any civic, social, charitable,
educational, political, professional, fraternal, benevolent or
religious organization, private club, or other membership organization.
Include dates of membership and any positions you have held with any
organization. Please note whether any such club or organization
restricts membership on the basis of sex, race, color, religion,
national origin, age, or handicap. None.
13. Have you ever been a candidate for and/or held a public office
(elected, non-elected, or appointed)? If so, indicate whether any
campaign has any outstanding debt, the amount, and whether you are
personally liable for that debt.
In 2009, I was appointed by President Barack Obama and confirmed by
the U.S. Senate to the position of Administrator of the Federal Transit
Administration (FTA).
14. Itemize all political contributions to any individual, campaign
organization, political party, political action committee, or similar
entity of $500 or more for the past ten years. Also list all offices
you have held with, and services rendered to, a state or national
political party or election committee during the same period.
------------------------------------------------------------------------
------------------------------------------------------------------------
Contributions over the last ten years:
------------------------------------------------------------------------
People for Patty Murray 09/20/2010 $500.00
------------------------------------------------------------------------
Pennsylvania Democratic Party 10/18/2004 $500.00
------------------------------------------------------------------------
Obama for America 07/27/2012 $2500.00
10/24/2008 $1,100.00
09/15/2008 $1,000.00
------------------------------------------------------------------------
Obama Victory Fund 10/22/2008 $1,300.00
------------------------------------------------------------------------
Services:
GOTV Volunteer, Presidential Campaign of Barack Obama (2008)
GOTV Volunteer, Patty Murray for U.S. Senate (2004; 2010)
15. List all scholarships, fellowships, honorary degrees, honorary
society memberships, military medals, and any other special recognition
for outstanding service or achievements.
Community Transportation Association of America's Dr. and
Mrs. William and Budd Bell Award (2012)
Conference of Minority Transportation Officials (COMTO)
National Chair's Award (2010)
Transportation Equity Network's Rosa Parks Award (2010)
Lester P. Lamm Memorial Award (2008)
United States Coast Guard Commandant's Distinguished Public
Service Award (2003)
Beta Gamma Sigma Honor Society for Business Education (2001)
16. Please list each book, article, column, or publication you have
authored, individually or with others. Also list any speeches that you
have given on topics relevant to the position for which you have been
nominated. Do not attach copies of these publications unless otherwise
instructed.
I have done my best to identify books, articles, columns,
publications or relevant speeches, including a thorough review of
personal files and searches of publically available electronic
databases. Despite my searches, there may be other materials I have
been unable to identify, find, or remember. I have located the
following below:
Publications:
``Cost is still a factor. Just not the only one.'' St. Paul
Pioneer Press; January 20, 2010.
Letter to the Editor responding to ``Off the San Francisco
Rails.'' Wall Street Journal; September 3, 2011.
Speeches:
Speeches delivered in my capacity as USDOT Acting Under Secretary
of Transportation for Policy:
04/14/2014--National Shippers Strategic Transportation
Council Annual Conference and Transportation Expo; Orlando, FL
03/13/2014--Road Gang Annual Conference; Washington, D.C.
03/13/2014--Mileage-Based User Free Alliance Conference;
Washington, D.C.
03/06/2014--East Coast P3 Infrastructure Conference;
Charlotte, NC
01/24/2014--New York Metropolitan Transportation Authority
Sandy Grants; New York, NY
01/06/2014--Metro 7000 Series Rail Car Intro; Greenbelt, MD
Speeches delivered in my capacity as FTA Administrator can be found
on the following page of the FTA website: http://www.fta.dot.gov/
newsroom/12290.html
17. Please identify each instance in which you have testified
orally or in writing before Congress in a governmental or non-
governmental capacity and specify the date and subject matter of each
testimony.
------------------------------------------------------------------------
Date Committee Topic
------------------------------------------------------------------------
01/16/2014 U.S. Senate Committee on ``Progress Report on Public
Banking, Housing, and Urban Transportation Under MAP-
Affairs 21''
------------------------------------------------------------------------
12/11/2013 U.S. House Transportation ``Examining the Current and
and Infrastructure Future Demands on FTA's
Committee--Highways & Capital Investment Grants''
Transit Subcommittee
------------------------------------------------------------------------
11/14/2013 U.S. House Transportation ``Progress Report: Hurricane
and Infrastructure Sandy Recovery--One Year
Committee Later''
------------------------------------------------------------------------
09/18/2013 U.S. Senate Committee on ``Recovering from Superstorm
Banking, Housing, and Urban Sandy: Assessing the
Affairs--Housing, Progress, Continuing Needs,
Transportation, and and Rebuilding Strategy''
Community Development
Subcommittee
------------------------------------------------------------------------
03/28/2013 U.S. Senate Committee on ``Improving Transportation
Banking, Housing, and Urban Options in Rural States and
Affairs--Field Hearing in Tribal Areas Under MAP-21''
Sioux Falls, SD
------------------------------------------------------------------------
03/14/2013 U.S. House Transportation ``Implementing MAP-21:
and Infrastructure Progress Report from U.S.
Committee--Highways & DOT Modal Administrators''
Transit Subcommittee
------------------------------------------------------------------------
12/20/2012 U.S. Senate Committee on ``Recovering from Superstorm
Banking, Housing, and Urban Sandy: Rebuilding Our
Affairs--Housing, Infrastructure''
Transportation, and
Community Development
Subcommittee
------------------------------------------------------------------------
05/19/2011 U.S. Senate Committee on ``Public Transportation:
Banking, Housing, and Urban Priorities and Callenges
Affairs for Reauthorization''
------------------------------------------------------------------------
04/21/2010 U.S. House Committee on ``Audit of the Tri-State
Oversight and Government Oversight Committee and the
Reform Washington Metropolitan
Area Transportation
Authority''
------------------------------------------------------------------------
03/23/2010 U.S. House Committee on ``Federal Transit
Appropriations--Subcommitte Administration's FY2011
e on Transportation, Budget Request''
Housing and Urban
Development, and Related
Agencies
------------------------------------------------------------------------
12/08/2009 U.S. House Transportation ``Public Transit Safety:
and Infrastructure Examining the Federal
Committee--Highways & Role'' Note: DOT Secretary
Transit Subcommittee Ray LaHood with the primary
witness for this hearing
and was accompanied by FTA
Administrator Rogoff
------------------------------------------------------------------------
08/04/2009 U.S. Senate Committee on ``Rail Modernization:
Banking, Housing, and Urban Getting Transit Funding
Affairs--Housing, Back on Track``
Transportation, and
Community Development
Subcommittee
------------------------------------------------------------------------
07/14/2009 U.S. House Committee on ``Back on Track: WMATA Red
Oversight and Government Line Metrorail Accident and
Reform--Federal Workforce, Continual Funding
Postal Service, and the Challenges``
District of Columbia
Subcommittee
------------------------------------------------------------------------
05/13/2009 U.S. Senate Committee on Confirmation hearing as the
Banking, Housing, and Urban Administrator-Nominee for
Affairs the Federal Transit
Administration
------------------------------------------------------------------------
18. Given the current mission, major programs, and major
operational objectives of the department/agency to which you have been
nominated, what in your background or employment experience do you
believe affirmatively qualifies you for appointment to the position for
which you have been nominated, and why do you wish to serve in that
position?
My professional career for the last 24 years has been focused
almost exclusively on transportation policy. Of my 22 years serving on
the staff of the U.S. Senate Appropriations Committee, I spent 19
serving on the Transportation Subcommittee, including 14 years as the
Democratic Staff Director of the Subcommittee. Throughout that period,
I developed both budget and policy expertise regarding all modes to
transportation and had the opportunity to contribute to numerous
landmark legislative accomplishments, including both authorization and
appropriations bills.
In serving as the Federal Transit Administrator for the last four
and half years, I have gained a full appreciation of how policy
direction can best be applied in the administration of Federal programs
to maximize efficiency and effectiveness for the benefit of
transportation stakeholders and taxpayers.
I desire to serve as the Under Secretary of Transportation for
Policy, if confirmed, so that I can apply these experiences to
improving the cost effectiveness and performance of Federal
transportation programs across all modes.
19. What do you believe are your responsibilities, if confirmed, to
ensure that the department/agency has proper management and accounting
controls, and what experience do you have in managing a large
organization?
The importance of proper management controls and financial
accountability cannot be overstated when developing and applying
Federal policy for transportation programs. All funds expended at USDOT
are derived from taxpayers and system users, and we have the highest
obligation to see to it that their funds are spent wisely and without
waste.
As Federal Transit Administrator, I headed an agency of more than
500 employees and some 200 contractors with an annual budget of more
than $11 billion. The FTA has literally hundreds of grantees and any
one of those grant relationships have the potential for waste or abuse.
Even so, the FTA received a clean audit opinion throughout my tenure
with zero known Anti Deficiency Act violations. Throughout that time, I
have had a productive relationship with the DOT Office of Inspector
General, and I have not hesitated to personally refer cases to that
office when I have had suspicions or concerns.
20. What do you believe to be the top three challenges facing the
department/agency, and why?
Safety has been, and must continue to be, the highest priority for
senior officials at the Department of Transportation. Rapid changes in
technology represent both a threat to safety and a huge opportunity to
strengthen safety across all transportation modes. USDOT will face a
considerable challenge in addressing those threats, like distracted
driving, while maximizing the benefits new technology can provide, like
guaranteeing vehicle separation on highways, railways, and runways.
The most recent census indicates that, as a nation, we will have
more than 100 million additional citizens by the year 2050. And many of
the areas that will see the most rapid population growth are already
struggling to accommodate the population growth they have already
experienced over the last decade. Working together with state and
localities, the Department of Transportation must start planning for
that population growth now so that growing congestion does not hinder
the movement of people and freight to the point that it threatens the
ability of the economy to grow. At the same time, DOT must work
aggressively to ensure that economic changes do not result in
communities that are not growing from being cut off from our national
transportation network, especially our aviation and rail networks, but
also our highway and marine networks.
Most immediately, the USDOT is facing the imminent insolvency of
both the highway and transit accounts of the Highway Trust Fund.
Working with Congress, the Department must ensure that sufficient
revenues are deposited in both accounts to ensure that our highway and
transit construction and maintenance efforts are not reduced to
crippling levels by the end of this commg summer.
b. potential conflicts of interest
1. Describe all financial arrangements, deferred compensation
agreements, and other continuing dealings with business associates,
clients, or customers. Please include information related to retirement
accounts.
I continue to have a Mass Mutual retirement account with the
National Association of Independent Colleges and Universities. No
contributions have been made to the account since I left their employ
in 1987.
2. Do you have any commitments or agreements, formal or informal,
to maintain employment, affiliation, or practice with any business,
association or other organization during your appointment? If so,
please explain: No.
3. Indicate any investments, obligations, liabilities, or other
relationships which could involve potential conflicts of interest in
the position to which you have been nominated.
In connection with the nomination process, I have consulted with
the Office of Government Ethics and the Department of Transportation's
designated agency ethics official to identify any potential conflicts
of interest. Any potential conflicts of interest will be resolved in
accordance with the terms of an ethics agreement that I have entered
into with the designated agency ethics official and that has been
provided to this Committee. I am not aware of any other potential
conflicts of interest.
4. Describe any business relationship, dealing, or financial
transaction which you have had during the last ten years, whether for
yourself, on behalf of a client, or acting as an agent, that could in
any way constitute or result in a possible conflict of interest in the
position to which you have been nominated.
In connection with the nomination process, I have consulted with
the Office of Government Ethics and the Department of Transportation's
designated agency ethics official to identify any potential conflicts
of interest. Any potential conflicts of interest will be resolved in
accordance with the terms of an ethics agreement that I have entered
into with the designated agency ethics official and that has been
provided to this Committee. I am not aware of any other potential
conflicts of interest.
5. Describe any activity during the past ten years in which you
have been engaged for the purpose of directly or indirectly influencing
the passage, defeat, or modification of any legislation or affecting
the administration and execution of law or public policy.
During my period as FTA Administrator, I advocated for the
President's program in advancing annual budget requests and the
enactment of comprehensive transit safety legislation that was
transmitted by the Administration to Congress in December of 2009.
In my previous role as Staff Director of the U.S. Senate
Appropriations Subcommittee on Transportation, Housing and Urban
Development, I advocated for the passage of, or modification to,
appropriations and authorization legislation consistent with the
direction provided by the Subcommittee and Full Committee Chairman.
6. Explain how you will resolve any potential conflict of interest,
including any that may be disclosed by your responses to the above
items.
In connection with the nomination process, I have consulted with
the Office of Government Ethics and the Department of Transportation's
designated agency ethics official to identify any potential conflicts
of interest. Any potential conflicts of interest will be resolved in
accordance with the terms of an ethics agreement that I have entered
into with the designated agency ethics official and that has been
provided to this Committee. I am not aware of any other potential
conflicts of interest.
c. 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 of any Federal,
State, county, or municipal entity, other than for a minor traffic
offense? If so, please explain: No.
3. Have you or any business 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.
During my tenure as Administrator of the Federal Transit
Administration, I was named in my official capacity in numerous civil
claims. However, I was not directly involved in these legal proceedings
and no judgments were
made against me personally.
4. Have you ever been convicted (including pleas of guilty or nolo
contendere) of any criminal violation other tl1an a minor traffic
offense? If so, please explain: No.
5. Have you ever been accused, formally or informally, of sexual
harassment or discrimination on the basis of sex, race, religion, or
any other basis? If so, please explain.
During my tenure as Administrator of the Federal Transit
Administration, I was named in my official capacity in a few cases and
claims, including EEO complaints. I was not directly involved in these
matters and none resulted in any findings of wrongdoing against me
personally or in my official capacity as the principal of the agency.
6. Please advise the Committee of any additional information,
favorable or unfavorable, which you feel should be disclosed in
connection with your nomination.
None to my knowledge.
d. 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
frrsthand knowledge of matters of interest to the Committee? Yes.
4. Are you willing to appear and testif'y before any duly
constituted committee of the Congress on such occasions as you may be
reasonably requested to do so? Yes.
______
Resumee of Peter M. Rogoff
Acting Under Secretary of Transportation for Policy
U.S. Department of Transportation; January 2014 to Present
On January 25, 2014, President Barack Obama directed Peter
M. Rogoff to perform the duties of the Office of Under
Secretary of Transportation for Policy.
In this role, he serves as the principal advisor to the
Secretary, while providing leadership in the development of
policies for the Department, generating proposals and providing
advice regarding legislative and regulatory initiatives across
all modes of transportation. His office oversees the Office of
Transportation Policy and the Office of Aviation and
International Affairs.
Federal Transit Administrator
U.S. Department of Transportation; May 2009 to Present
Successfully lead an agency of more than 500 staff through a
period of historic change and reform, redirecting an annual
budget of more than $10.9 billion to investments that focus on
key Obama Administration priorities, including reducing
consumption of foreign oil, improving mobility for working
families, reducing emissions of Greenhouse Gases, creating
thousands of family wage jobs, developing and deploying cutting
edge technologies, and streamlining and eliminating
bureaucratic processes to put taxpayer funds to work rapidly
and effectively.
Successfully administer a single year 80-percent surge in
funding as a result of the Recovery Act, meeting all statutory
deadlines while ensuring compliance with all Federal rules.
Successfully develop and advocate for a historic expansion
of FTA's mission to include critical safety responsibilities in
the wake of a spate of rail transit accidents across the
Nation.
Reinvigorate and strengthen the FTA's Civil Rights
enforcement functions to ensure full application of Title VI of
the Civil Rights Act, Environmental Justice requirements, and
the American with Disabilities Act.
Dramatically increase public transit's participation in the
DOT's credit assistance programs to foster public-private
partnerships that expedite investment in new transit capacity.
Revolutionize the FTA's application of the Buy America Act
to re-create U.S. manufacturing jobs, reducing the number of
Buy America ``waivers'' by more than 90 percent.
Use broad-based experience with other Transportation issues
to advise the Secretary on policy and budget matters in other
DOT Modal Administrations.
Democratic Staff Director; January, 1995 to May, 2009
Professional Staff Member; January 1990 to December 1994
Subcommittee on Transportation, Housing and Urban Development, and
Related Agencies
U.S. Senate Committee on Appropriations
Ably advised Subcommittee and Full Committee Chairman on all
areas of Federal transportation policy. Managed and mentored a
staff of policy professionals. Liaised regularly with senior
DOT, OMB, and other WH officials as well as State
Transportation Commissioners, Port Authorities, trade unions,
advocacy groups, and transit, railroad, airport, airline,
shipping, trucking and pipeline executives.
Served as principal staff advisor for numerous
groundbreaking transportation policy initiatives including the
.08 BAC drunk driving law, new aviation user fees to finance
security requirements, new maritime screening efforts to ban
substandard ships and polluters from U.S. ports, new inspection
regimes to ensure the safety of cross-border truck movements,
new training and recruitment mechanisms for the air traffic
controller workforce, new drug and alcohol testing requirement
for transportation industry employees, new Federal assistance
measures for accident victims, and targeted unemployment
benefits for aviation workers in the wake of the industry
upheaval following 9/11.
Developed extensive expertise in Federal transportation
budgeting and infrastructure investment mechanisms. Served as
principal staff advisor on several successful bipartisan
efforts to sure up the balance of the Highway Trust Fund.
Routinely reviewed agency budgets with a focus on eliminating
wasteful and unnecessary spending.
Prior Professional Positions
Professional Staff Member, Senate Appropriations
Subcommittee on Labor, Health and Human Services, Education,
and Related Agencies; January 1987 to December 1989.
Legislative Associate, National Association of Independent
Colleges and Universities; Est. April 1984 to January 1987.
Legislative Director, Coalition of Private University
Students (COPUS); Est. November 1983 to April 1984.
Education
Masters in Business Administration (MBA), with honors, 2001. Georgetown
University. Achieved degree while working full time. Inducted into Beta
Gamma Sigma Honors Society.
Bachelor of Arts, Amherst College, 1983. Majored in American Studies.
Awards and Citations
Dr. and Mrs. William and Budd Bell Award, 2012. Awarded for ``tireless
advocacy for seniors and people with disabilities.'' Community
Transportation Association of America.
National Chair's Award, 2010. Conference of Minority Transportation
Officials (COMTO).
Rosa Parks Award, 2010. Transportation Equity Network, awarded for
``overturn(ing) restrictive Bush-era transit funding guidelines to
allow livability, equity and sustainability to become criteria in
funding major transit projects.''
Lester P. Lamm Memorial Award, 2008. Awarded for outstanding leadership
and dedication to U.S. highway transportation programs.
Distinguished Public Service Award, 2003. The highest public service
award granted by the Commandant, United States Coast Guard, for
outstanding efforts in advancing Coast Guard missions.
Personal
Age 53. Married with two teenage children.
Security Clearance: TS--1990 to present. SCI--2003 to present.
Mr. Chairman. Thank you very much, sir.
And now, Mr. Marcus Jadotte. And you can reintroduce.
[Laughter.]
STATEMENT OF MARCUS D. JADOTTE, NOMINEE TO BE
ASSISTANT SECRETARY FOR INDUSTRY AND ANALYSIS,
INTERNATIONAL TRADE ADMINISTRATION,
U.S. DEPARTMENT OF COMMERCE
Mr. Jadotte. I will. I am afraid that my son may run out if
we did.
Thank you very much, Mr. Chairman, Ranking Member Thune,
and members of the Committee. I am honored by and grateful for
your consideration to serve as Assistant Secretary of Commerce
for Industry and Analysis.
I know that Senator Nelson had to leave, but I want to
acknowledge his warm introduction of myself and my family
earlier, especially grateful for his friendship over the years
and his leadership in our home state.
I also again want to acknowledge Jennifer and our children.
We are very proud to be here.
The opportunity to speak with you today on this panel of
nominees is truly humbling. I am honored that President Obama
and Commerce Secretary Pritzker believe that I can make a
contribution to the work the United States Department of
Commerce is doing to support American business, economic
growth, and jobs.
The Industry and Analysis team is perhaps the best-kept
secret in the Federal Government, and I look forward to working
with each and every member of that team, if I am confirmed. I
strongly believe in the value of public service. If confirmed,
I would welcome the opportunity to combine my private sector
and public sector experiences to make a meaningful contribution
to the Department's work.
As an executive at NASCAR, I managed staff with a broad
range of expertise and oversaw complex budgets and high-profile
projects. The skills I developed in that role are skills that
are applicable to the role of Assistant Secretary for Industry
and Analysis.
Additionally, at NASCAR, I was responsible for fostering
relationships with key business partners, organizing community
outreach, and developing and implementing strategic plans to
achieve results, all important experiences that have helped me
prepare for a leadership role at the International Trade
Administration, should I be confirmed.
If confirmed to this position, I will oversee programs
focused on strengthening the U.S. economy and helping more
companies export and create jobs. The I&A staff have an array
of skills and are specifically focused on helping U.S.
manufacturing, services, tourism, and textile companies, and
other industries, increase exports. I look forward to working
with this experienced staff to help advance its goals and
mission.
As I mentioned, I&A is comprised of offices that are
focused on various sectors of the economy. During my career, I
have worked extensively with two I&A critical sectors--tourism
and travel, and automotive. I have a strong understanding of
these industries and a history of working collaboratively with
industry stakeholders and would welcome an opportunity to bring
that knowledge to the industry team at ITA.
In my roles as Chief of Staff for two members of Congress,
and as a special assistant at the Labor Department, I gained
valuable insight into the legislative process and the
operations of the Federal Government, all of which I believe
would be called upon in the role to which I have been
nominated.
Last, an effective leader must communicate a vision that
colleagues understand and support. A leader must also be
accountable for results. This approach is important to the
success of any organization, and I will work hard every day to
meet this standard, if I have an opportunity to serve in the
position.
If confirmed, I will apply the experience that I have
gained as an executive and as an administrator to ensure that
I&A does an even better job of helping U.S. business contribute
to the growth of the economy, improving customer service, and
educating American business on the important services available
at the Department of Commerce to help them grow at home and
abroad.
Thank you for your time and consideration. I look forward
to answering any questions you may have.
[The prepared statement and biographical information of Mr.
Jadotte follow:]
Prepared Statement of Marcus D. Jadotte, Nominee--Assistant Secretary
of Commerce for Industry and Analysis, International Trade
Administration, U.S. Department of Commerce
Chairman Rockefeller, Ranking Member Thune, and members of the
Committee, I am honored by and grateful for your consideration to serve
as Assistant Secretary of Commerce for Industry and Analysis.
I would especially like to thank Senator Nelson for his leadership,
his friendship over the years--and for the warm introduction today.
I also want to acknowledge my wife Jennifer and our children Ashton
and Sofia, who are with me here today. Jennifer and I both arrived in
our country as children. She arrived from Seoul as a newborn and I
arrived from Nassau as a fourth grader. We met as grad students at
Florida State University and are both grateful for the opportunity to
build our lives and family in this great country.
The opportunity to speak with you today on this panel of nominees
is truly humbling. I am honored that President Obama and Commerce
Secretary Pritzker believe that I can make a contribution to the work
the United State Department of Commerce is doing to support American
business, economic growth, and jobs. The Industry and Analysis team is
perhaps the best kept secret in the Federal Government and I look
forward to working with each and every member of that team, if I am
confirmed.
I strongly believe in the value of public service, and if
confirmed, I welcome the opportunity to combine my private and public
sector experience to make a meaningful contribution to the Commerce
Department's work.
As an executive at NASCAR, I managed a diverse staff, and oversaw a
complex budget and high-profile projects. The skills I developed to be
successful in that role are skills which are applicable to the role of
Assistant Secretary for Industry and Analysis.
Additionally, at NASCAR, I was responsible for fostering
relationships with key business partners, organizing community
outreach--and developing and implementing strategic plans to achieve
results--all important experiences that have helped prepare me for a
leadership role at the International Trade Administration, should I be
confirmed.
If confirmed for this position, I will oversee staff and
initiatives that focus on strengthening the U.S. economy and helping
more companies export and create jobs. The staff at I&A have an array
of skills and are specifically focused on helping U.S. manufacturing,
services, tourism, textile, and consumer goods companies--and most
other industries increase their exports. I look forward to working with
this experienced staff to help advance its goals and mission.
As I mentioned, I&A is comprised of offices focused on various
sectors of our economy. These offices review, quantify, and develop
strategies to strengthen the global competitiveness of American
industries. During my career, I worked extensively with two of I&A's
critical sectors: travel and tourism and automotive. I have a strong
understanding of these industries and a history of working
collaboratively with stakeholders in those fields, and I welcome the
opportunity to bring that knowledge to the industry teams at ITA.
In my roles as Chief of Staff for two members of Congress and as a
Special Assistant at the Labor Department, I gained valuable insight
into the legislative process and the operations of the Federal
Government, all of which I believe will be helpful and called upon for
the role to which I have been nominated.
Lastly, an effective leader must communicate a vision that
colleagues and co-workers can understand and support--to enable the
organization to succeed--and hold those responsible accountable for
results. I believe that this approach is important to the success of an
organization and I will work hard to meet this standard every day if I
have the opportunity to serve in this position.
If confirmed, I will apply the experience I have gained as an
executive and an administrator to ensure that I&A takes steps necessary
to help our businesses contribute to the growth of the U.S. economy;
remain focused on improving customer service; and, educating American
businesses on all of the important services available to at the
Department of Commerce.
Thank you for your time and consideration. I look forward to taking
your questions.
______
a. biographical information
1. Name (Include any former names or nicknames used): Marcus
Jadotte.
2. Position to which nominated: Assistant Secretary for Industry
and Analysis.
3. Date of Nomination: May 22, 2014.
4. Address (List current place of residence and office addresses):
Residence: Information not released to the public.
Office: Ormond Beach, Florida.
5. Date and Place of Birth: October 18, 1971; Nassau, Bahamas.
6. Provide the name, position, and place of employment for your
spouse (if married) and the names and ages of your children (including
stepchildren and children by a previous marriage).
Spouse: Jennifer Park-Jadotte Ph.D.-homemaker; children: Marcus
Ashton Park Jadotte--11 years old; Sofia Pearl Park Jadotte--8
years old.
7. List all college and graduate degrees. Provide year and school
attended.
AA, Miami-Dade Community College (1989-1992)
BS, Florida State University (1992-1994)
8. List all post-undergraduate employment, and highlight all
management level jobs held and any non-managerial jobs that relate to
the position for which you are nominated.
Jadotte Consulting--Public Affairs and Business Development
Consultant (April 2014 to Present)
NASCAR (March 2005-April 2014)
Vice President, Public Affairs and Multicultural
Development
Managing Director, Public Affairs
Senior Manager, Public Affairs
U.S. House of Representatives, Office of Congresswomen Debbie
Wasserman Schultz--Chief of Staff (December 2004-March 2005)
John Kerry for President--Deputy Campaign Manager (March 2003-
December 2005)
U.S. House of Representatives, Office of Congressman Peter
Deutsch--Chief of Staff (January 2001-March 2003)
Al Gore for President--Florida State Director (July 2000-
December 2000)
United States Department of Labor--Intergovernmental Officer/
Special Assistant to the Deputy Secretary (April 1999-July
2000)
Florida AFL-CIO--Consultant/Communications Director (February
1999-Apri/1999)
MacKay for Governor--Political Director (July 1998-November
1998)
Executive Office of the Governor (Tallahassee, FL)--Special
Assistant to the Governor (February 1997-February 1999)*
*All positions are management-level except where noted.
9. Attach a copy of your resume. A copy is attached.
10. List any advisory, consultative, honorary, or other part-time
service or positions with Federal, State, or local governments, other
than those listed above, within the last five years: None.
11. List all positions held as an officer, director, trustee,
partner, proprietor, agent, representative, or consultant of any
corporation, company, firm, partnership, or other business, enterprise,
educational, or other institution within the last five years.
NASCAR Inc.--Vice President Public Affairs and Multicultural
Development (March 2005-April 2014)
TEAM Volusia--Economic Board Member (2011 to Present)
Ben Gamla Charter School--Board Member (2007 to Present)
Potomac Waves--Partner (2008 to Present)
Florida Democratic Party--Board Member (2013 to Present)
12. Please list each membership you have had during the past ten
years or currently hold with any civic, social, charitable,
educational, political, professional, fraternal, benevolent or
religious organization, private club, or other membership organization.
Include dates of membership and any positions you have held with any
organization. Please note whether any such club or organization
restricts membership on the basis of sex, race, color, religion,
national origin, age, or handicap.
Florida Democratic Party--Board Member (February 2013 to Present)
13. Have you ever been a candidate for and/or held a public office
(elected, non-elected, or appointed)? If so, indicate whether any
campaign has any outstanding debt, the amount, and whether you are
personally liable for that debt.
Schedule C Appointments during the Clinton Administration:
Special Assistant to the Deputy Secretary
United States Department of Labor, Washington, D.C.
February 2000-July 2000
Intergovernmental Officer
United States Department of Labor, Washington, D.C.
April 1999-January 2000
14. Itemize all political contributions to any individual, campaign
organization, political party, political action committee, or similar
entity of $500 or more for the past ten years. Also list all offices
you have held with, and services rendered to, a state or national
political party or election committee during the same period.
Contributions:
------------------------------------------------------------------------
Name Amount Date
------------------------------------------------------------------------
Kosmas for Congress $500 12-21-2007
Kosmas for Congress $500 06-30-2008
Kendrick Meek for Florida $500 02-13-2010
Bill Nelson for U.S. Senate $500 08-30-2010
Friends of Harry Reid $500 10-04-2010
Kosmas for Congress $1,000 10-20-2010
Obama Victory Fund 2012 $1,000 06-09-2011
Obama for America $1,000 06-09-2011
Debbie Wasserman Schultz for Congress $500 06-25-2012
Mike Thompson for Congress $500 03-29-2013
America's Leadership PAC $500 06-17-2013
Friends of Jeanne Shaheen $1,000 09-23-2013
Democratic Executive Committee of $500 09-25-2013
Florida
Lori Edwards for Congress $500 06-30-2009
Darrell Thompson for DC City Council $500 03-07-2014
Judithanne McLauchlan for FL State Rep $500 11-30-2014
Jeff Yarbro for TN State Senate $500 03-01-2010
------------------------------------------------------------------------
The above list represents my best effort to recall/research all covered
political contributions.
All offices and Services for the past ten years:
John Kerry for President, Deputy Campaign Manager, (March 2003-
December 2004)
Acted as an outside consultant with the following groups via
Potomac Waves, LLC:
Florida Democratic Party/OFA Florida (2012)
DCCC IE (2008)
DSCC IE (2008)
Friends United PAC (2012)
Terry McAuliffe for Governor (2009)
15. List all scholarships, fellowships, honorary degrees, honorary
society memberships, military medals, and any other special recognition
for outstandiog service or achievements.
Merit-based scholarship from Florida State University, 1992-
1994
16. Please list each book, article, column, or publication you have
authored, individually or with others. Also list any speeches that you
have given on topics relevant to the position for which you have been
nominated. Do not attach copies of these publications unless otherwise
instructed: None.
17. Please identify each instance in which you have testified
orally or in writing before Congress in a governmental or non-
governmental capacity and specify the date and subject matter of each
testimony: None.
18. Given the current mission, major programs, and major
operational objectives of the department/agency to which you have been
nominated, what in your background or employment experience do you
believe affirmatively qualifies you for appointment to the position for
which you have been nominated, and why do you wish to serve in that
position?
I strongly believe in the value of public service. The role that I
have been nominated to fill is a humbling opportunity to give back to
our great country. If confirmed, I would welcome the opportunity to
combine my private and public sector experience to make a meaningful
contribution to the Commerce Department's work to help businesses and
workers achieve success.
Specifically, as a senior manager with NASCAR, I gained experience
managing staff, a budget and high-profile projects, skills which are
applicable to the role of Assistant Secretary for Industry and
Analysis. At NASCAR, I was responsible for fostering relationships with
key business partners, organizing community outreach and developing and
implementing strategic plans to achieve results.
In addition, in my roles as chief of staff for Representatives
Debbie Wasserman Schultz and Peter Deutsch and as a special assistant
at the Department of Labor, I gained valuable insight into the
legislative process and the operations of the Federal Government, which
I believe have prepared me for a leadership role in the International
Trade Administration, if I am confirmed.
19. What do you believe are your responsibilities, if confirmed, to
ensure that the department/agency has proper management and accounting
controls, and what experience do you have in managing a large
organization?
If confirmed as the Assistant Secretary for the Industry and
Analysis (I&A) unit, I will oversee staff and initiatives that focused
on strengthening the U.S. economy, helping more companies export and
creating jobs. The staff in I&A have an array of skills and are
specifically focused on helping our manufacturing, services, textile,
consumer goods companies, and every other industry increase U.S.
exports. Knowing that I would be joining a team with such a diverse set
of skills is exciting, but more importantly it is important that
benchmarks and metrics are part of the overall strategy.
As an executive at NASCAR, I understood the value of implementing
management controls with benchmarks to track the progress of key goals
and objectives. If confirmed, I will work closely with the staff and my
colleagues within the International Trade Administration to ensure that
I&A is properly managed, focused and is accountable to our industry
stakeholders.
During my time at NASCAR, I oversaw projects that crossed local,
state and government offices, which I believe will be advantageous to
the agency-as international trade and export promotion are no longer
occurring just at the Federal level. Local and State offices are
working hard to get their companies abroad, I&A has the ability to help
with these endeavors. In addition, I was the chief of staff to two
Members of Congress, which afforded me the unique opportunity of
developing and implementing administrative policies and procedures to
manage staff in two distinctively different environments. If confirmed,
I will use my experiences gained by working with these partners and in
the Congressional offices to improve the agency's communication with
these groups and further strengthen the partnerships that I&A has
already cultivated.
Additionally, I believe an effective leader of an organization must
communicate a vision for the organization that co-workers can
understand, provide support to enable the organization to succeed,
recognize success and hold those responsible accountable for results.
This approach is important to the success of an organization and I will
work hard to meet this standard every day if I have the opportunity to
serve in this position. If confirmed, I will apply the experience I
have learned as an administrator to ensure that proper management and
accounting controls are employed in all areas that are entrusted to my
oversight.
20. What do you believe to be the top three challenges facing the
department/agency, and why?
1. Contributing to the growth of the U.S. economy via encouraging
increased exports.
2. Remaining focused on ever improving customer service to the
public and American business.
3. Unlocking and promoting the value of assets and services
available to American business via the Department of Commerce.
All three challenges are core to the department's mission and
the priorities outlined by Secretary Pritzker.
(1) Contributing to the Growth of the U.S. economy:
With less than 1 percent of companies exporting and over 95 percent
of the world's consumers living outside of the United Stated, we need
to get U.S. companies exporting. People from all around the world want
to buy U.S. goods--we make high valued products--we have a great brand
name. There are small and medium-sized companies, minority and women
owned business that should be growing faster, paying higher wages and
hiring more workers, this can all happen if we get companies to look
beyond our borders.
(2) Remaining Focused on Improving Customer Service to the Public
and to America Businesses:
As I mentioned above, there is so much opportunity, but with
opportunity there is also risk and companies that are new to exporting
have services and people here that are positioned to help. You hear
time and time again of companies that encounter problems when
attempting to export their goods--sometimes the fix might be simple and
sometimes it is a much bigger policy issue. American companies deserve
to have assistance from the U.S. Government and I believe that I&A has
the right skills to help companies succeed.
(3) Unlocking and promoting services available to American
Businesses:
As I have been meeting with Commerce staff and doing my research on
what it means to be successful in international trade, I am struck by
how this agency and the I&A unit might be the best kept secret. I&A
oversees the Advisory Committees, which is the venue for U.S. companies
to weigh in on trade policy issues, to raise problems that they are
facing and to advise the U.S. Government on upcoming policy decisions.
In addition, I&A helps local and State leaders plan their trade
missions-as I noted previously, more and more local and State offices
are taking their businesses abroad to find customers and business
partners; but not all 50 states are using these services.
I believe that my experience in NASCAR in the Public Affairs office
will allow me to get the message out on all of the services that I&A,
ITA and the Department of Commerce have to offer U.S. companies. If
confirmed, I plan to aggressively promote the services, remain focused
on improving the services and get more companies exporting.
b. potential conflicts of interest
1. Describe all financial arrangements, deferred compensation
agreements, and other continuing dealings with business associates,
clients, or customers. Please include information related to retirement
accounts.
I received a severance payment from my former employer when I ended
my employment with the company. This payment is based upon a pre
existing employment arrangement and is not contingent on my decision to
accept a nomination or government position if confirmed. I also
participate in an employer sponsored 401(k) program at NASCAR; the
underlying holdings are all diversified, widely traded funds.
2. Do you have any commitments or agreements, formal or informal,
to maintain employment, affiliation, or practice with any business,
association or other organization during your appointment? If so,
please explain: No.
3. Indicate any investments, obligations, liabilities, or other
relationships which could involve potential conflicts of interest in
the position to which you have been nominated.
In connection with the nomination process, the Department of
Commerce's designated Agency Ethics Official has worked to identify
potential conflicts of interest. Any potential conflicts of interest
will be resolved in accordance with the terms of an ethics agreement
that I have entered into with the Department of Commerce's designated
Agency Ethics Official and that has been provided to this Committee. I
am not aware of any other potential conflicts of interest.
4. Describe any business relationship, dealing, or financial
transaction which you have had during the last ten years, whether for
yourself, on behalf of a client, or acting as an agent, that could in
any way constitute or result in a possible conflict of interest in the
position to which you have been nominated.
In connection with the nomination process, the Department of
Commerce's designated Agency Ethics Official has worked to identify
potential conflicts of interest. Any potential conflicts of interest
will be resolved in accordance with the terms of an ethics agreement
that I have entered into with the Department of Commerce's designated
Agency Ethics Official and that has been provided to this Committee. I
am not aware of any other potential conflicts of interest.
5. Describe any activity during the past ten years in which you
have been engaged for the purpose of directly or indirectly influencing
the passage, defeat, or modification of any legislation or affecting
the administration and execution of law or public policy.
I have supported NASCAR 's public policy agenda during my
employment with the company. Details are available on the company's LD-
2 filings and the quarterly filings of Purple Strategies (NASCAR 's
public affairs and government affairs consultant).
6. Explain how you will resolve any potential conflict of interest,
including any that may be disclosed by your responses to the above
items.
In connection with the nomination process, the Department of
Commerce's designated Agency Ethics Official has worked to identify
potential conflicts of interest. Any potential conflicts of interest
will be resolved in accordance with the terms of an ethics agreement
that I have entered into with the Department of Commerce's designated
Agency Ethics Official and that has been provided to this Committee. I
am not aware of any other potential conflicts of interest.
c. 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 of any Federal,
State, county, or municipal entity, other than for a minor traffic
offense? If so, please explain: No.
3. Have you or any business 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.
NASCAR was involved in a number of civil cases during my tenure
with the company. I have not been named or accused of wrongdoing
individually in any of these proceedings.
4. Have you ever been convicted (including pleas of guilty or nolo
contendere) of any criminal violation other than a minor traffic
offense? If so, please explain: No.
5. Have you ever been accused, formally or informally, of sexual
harassment or discrimination on the basis of sex, race, religion, or
any other basis? If so, please explain: No.
6. Please advise the Committee of any additional information,
favorable or unfavorable, which you feel should be disclosed in
connection with your nomination.
None to my knowledge.
d. 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. 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
______
Resumee of Marcus D. Jadotte
Professional Experience
Jadotte Consulting, Daytona Beach, FL
Public Affairs and Business Development Consultant
April 2014-Present
Issues and Reputation Management
Policy Risk Analysis
Sports Marketing Business Development
NASCAR, Daytona Beach, FL
Vice President of Public Affairs and Multicultural Development
March 2011-Present
Managing Director of Public Affairs
September 2006-February 2011
Senior Manager of Public Relations
March 2005-August 2006
Managed NASCAR Public Affairs and Diversity Affairs
departments. Oversaw all staff and programs.
Managed a $7 million annual budget
Established and maintained effective working relationships
with local, state, and federal government officials across
NASCAR's 26-state corporate footprint.
Served as principle spokesperson for all topics related to
NASCAR public affairs.
Led NASCAR's efforts to expand media coverage of the sport
in the top 20 media markets.
Obama for America (OFA) Florida, Tampa, FL
Senior Advisor
June 2012-November 2012
Served on the Florida leadership team for Obama for America.
Developed and executed Florida's communication programs.
Oversaw political, digital, op-vote and scheduling
departments in Florida.
United States House of Representatives, Washington, D.C.
Chief of Staff, Office of Congresswoman Debbie Wasserman-Schultz
December 2004-March 2005
Served as principle policy and political aide to then, newly
elected Congresswoman Wasserman-Schultz of Florida.
Organized the Congresswoman's office including the
development and implementation of administrative policies and
procedures,hired staff, and managed Capitol Hill and district
offices.
Developed and coordinated legislative strategies; planned
and implemented targeted mailings, maintained relationships
with Federal agencies, iHill staff, and representatives of
interest groups.
Kerry/Edwards 2004 Presidential Campaign, Washington, D.C.
Deputy Campaign Manager
March 2003-December 2004
Oversaw the day-to-day management of Senator John Kerry's
bid for the Democratic Nomination,including political
operations,fundraising,scheduling and advance, and budget
through the Iowa Caucus and New Hampshire Primary.
Served in senior advisory role through the balance of the
pre-convention period and oversaw running-mate Senator John
Edwards' campaign team on behalf of Senator Kerry during the
general election phase of the campaign.
United States House of Representatives, Washington, D.C.
Chief of Staff Office of Congressman Peter Deutsch
January 2001-March 2003
Served as principle policy and political aide to Congressman
Deutsch of Florida.
Re-organized the Congressman's office including the
development and implementation of administrative policies and
procedures,hired staff, and managed Capitol Hill and district
offices.
Managed all aspects of the Congressman's political operation
including re-election and PAC efforts.
Gore/Lieberman 2000 Presidential Campaign, Tallahassee, FL
Florida State Director
July 2000-December 2000
Developed the campaign's Florida strategy, including
regional and county chairs and the steering committees in each
of the 67 counties.
Managed all campaign staff deployed in Florida.
Developed earned media strategies for each of Florida's
media markets.
United States Department of Labor, Washington, D.C.
Special Assistant to the Deputy Secretary
February 2000-July 2000
Intergovernmental Officer
April 1999-January 2000
Assisted the Deputy Secretary in managing a portfolio of
issues and agencies within the Labor Department that included:
The Employment and Training Administration, The Office of
Congressional Intergovernmental Affairs, Welfare-to-Work, and
Rapid Response.
Carried out a variety of sensitive and highly complex
projects involving workforce and policymaking. Participated in
intra- and inter-agency committees established to review and
recommend administrative initiatives.
Provided technical advice and assistance to The White House,
The Secretary of Labor, and representatives of National, State
and local officials regarding the implications of analytical
findings.
Other Positions Held
Florida AFL-CIO, Tallahassee, FL
Consultant/Communications Director
February 1999-April 1999
Executive Office of the Governor, Tallahassee, FL
Special Assistant to Governor Lawton Chiles
February 1997-February 1999
1996 Florida Coordinated Campaign, Volusia County, FL
Regional Coordinator and Earned Media Director
July 1996-November 1996
Florida House of Representatives, Tallahassee, FL
Research Assistant III, Committee on Finance and Taxation
January 1995-December 1996
Florida Agency for Health Care Administration, Tallahassee, FL
Assistant to the Chief of Health Policy
March 1994-January 1995
Education
Florida State University, Economics,Bachelor of Science, 1994
Florida State University, 30 graduate level course credits in Economics
and Statistical Analysis, 1994-1996
The Chairman. Thank you very much, Mr. Jadotte. What comes
through in your testimony is your sense of humbleness and pride
in being in public service. And all of you have done that all
of your life.
And now Mr. Adler is here to be renominated. We don't get
that choice often enough. So we welcome you, sir.
STATEMENT OF HON. ROBERT S. ADLER, NOMINEE TO BE A
COMMISSIONER, CONSUMER PRODUCT SAFETY COMMISSION
Mr. Adler. Thank you so much, and good afternoon, Chairman
Rockefeller and Ranking Member Thune and other members of the
panel.
I thank you for the opportunity to appear before you
regarding my nomination to serve a second term as a
Commissioner at the Consumer Product Safety Commission. As I
approach my fifth year on the Commission, I am deeply honored
to be considered for reappointment.
As a starting point, I would like to introduce my wonderful
wife, Terrie Gale, to whom I have been married for the past 39
years and who daily inspires me. She is teaching criminal law
at George Washington University, after serving 18 years as
legal counsel to the Police Department in Chapel Hill.
Also, I want to introduce my extraordinary son, Paul, who
is completing his Ph.D. in History at Georgetown University,
and who is heading off this fall in the History and Literature
Program at Harvard University.
And because I consider my staff to be family, I would beg
your indulgence--I will stay within the time--I would like to
introduce my staff.
First, I would like to introduce Ophelia McCardell, my
terrific executive assistant. Ophelia and I have worked on and
off together for almost 40 years. Four years ago, I pulled her
from her second retirement to work with me, and I am afraid the
next time she says she is retiring she is really going to mean
it.
And I wanted to introduce my special assistant, Jason
Levine, who has been serving as the agency's Chief of Staff
since I became Acting Chair last December. Jason's brilliance
is matched only by his dedication and commitment to the mission
of the CPSC.
And finally, although she left my office to take a new job,
I want to thank Jana Fong Swamidoss, my special assistant for
the past 4 years, who always given me straight, blunt feedback
that, while not necessarily pleasant, constantly steered me in
the right direction.
Mr. Chairman, when I appeared before this committee for my
first confirmation hearing, I was asked what I thought the
biggest challenge before the CPSC was, and I answered that we
needed to restore some lost luster to the agency by
implementing the many mandates contained in a recently enacted
omnibus piece of legislation known as the Consumer Product
Safety Improvement Act. Included in the Act were a host of new
requirements, which I believe we have acted on with
effectiveness and dispatch.
Among the tasks we have addressed are the following: we
have enforced stringent limits on lead and phthalates in
children's products; we have promulgated the strongest safety
standard for cribs in the world; and we have made mandatory a
comprehensive voluntary toy standard, ASTM F963.
We have written, and continue to write, a series of
standards for durable infant products like play yards and
strollers. We have developed new approaches to catching
dangerous imported products. And despite occasional glitches, I
think we have made tremendous progress in meeting these
statutory requirements.
Notwithstanding our considerable progress, we still have
work to do to protect American lives from unreasonably
dangerous products, and we should not lose sight of the fact
that in order to do so, we must work cooperatively with our
friends in the business community to figure out ways to meet
our safety mission with them as our partners, not our
adversaries.
And on this point, I want to pause to note the tremendous
progress I have seen in the voluntary standards community over
the past 40 years. Groups such as ASTM, ANSI, and UL have
dramatically improved their technical skills, their efficiency
in drafting standards, their openness and transparency in their
outreach to all stakeholders, especially consumers affected by
their work. I am pleased to see my agency work so closely with
these groups, and I look forward to the partnership deepening
in the years to come.
I have similar high hopes for collaborating with my fellow
Commissioners, because I am on a Commission. It has been an
absolute delight to work with Commissioners Marti Robinson and
Ann Marie Buerkle this past year. And actually, one of the
reasons I hope to be confirmed is the opportunity to continue
working with them.
Similarly, I have worked closely with and have gotten to
know Elliot Kaye, current nominee to be the CPSC Chair. If
Elliot is confirmed, I believe his experience, dedication, and
temperament will make him a truly outstanding chairman. And
although I have not yet gotten to know our other nominee, Joe
Mohorovic, as well, I hope and believe he will round out a
group of talented and gracious Commissioners.
In closing, I would like to mention one critical
demographic that I believe has not received enough attention
over the past number of years--senior citizens, a group of
which I am a proud member. Our data show that the second most
vulnerable population after kids is adults over age 65, and I
note this is a rapidly growing group, due to the aging of the
baby boomers and the greater longevity of our citizens.
In fact, seniors, while comprising only 13 percent of the
U.S. population, account for 65 percent of our consumer
product-related deaths. And by 2020, they--we--will be 20
percent of the U.S. population. I recently created a Senior
Safety Initiative at CPSC, and if confirmed, I will continue my
advocacy on behalf of this group's safety needs.
Thank you for your time, and I look forward to your
questions.
[The prepared statement and biographical information of Mr.
Adler follow:]
Prepared Statement of Hon. Robert S. Adler, Acting Chairman of the
Consumer Product Safety Commission, Nominee for Commissioner,
Consumer Product Safety Commission (Reappointment)
Good afternoon, Chairman Rockefeller and Ranking Member Thune. I
thank you for the opportunity to appear before you regarding my
nomination to serve a second term as a Commissioner at the U.S.
Consumer Product Safety Commission. As I approach my fifth year on the
Commission, I am deeply honored to be considered for reappointment.
As a starting point, I would like to introduce my wonderful wife,
Terrie Gale, to whom I have been married for the past thirty-nine
years--and who daily inspires me. Terrie is now teaching criminal law
at The George Washington University after serving 18 years as legal
counsel to the Police Department in Chapel Hill, North Carolina.
I would also like to introduce my extraordinary son, Paul Adler,
who is completing his Ph.D. in History at Georgetown University--and
who is heading off this Fall to teach in the History and Literature
Program at Harvard University.
If I may, I would also like to introduce my staff to you. First, I
would like to introduce Ophelia McCardell, my terrific Executive
Assistant. Ophelia and I have worked on and off together for almost 40
years. Four years ago, I pulled her from her second retirement to work
with me, and I'm afraid the next time she says she's retiring, she's
really going to mean it.
And, I would like to introduce my Special Assistant, Jason Levine,
who has been serving as the agency's Chief of Staff since I became
Acting Chairman last December. Jason's brilliance is matched only by
his dedication and commitment to the mission of the CPSC.
Finally, although she recently left my office to take a wonderful
new job, I want to thank Jana Fong Swamidoss, my Special Assistant for
the past four years, who always gave me straight, blunt feedback that,
while not necessarily pleasant, constantly steered me in the right
direction.
Mr. Chairman, when I appeared before this Committee for my first
confirmation hearing, I was asked what I thought the biggest challenge
before the CPSC was, and I answered that we needed to restore some lost
luster to the agency by implementing the many mandates contained in a
recently-enacted omnibus piece of legislation known as the Consumer
Product Safety Improvement Act (CPSIA). Included in the Act were a host
of new requirements, which I believe we have acted on with
effectiveness and dispatch. Among the tasks that we have addressed are
the following.
We have:
Enforced stringent limits on lead and phthalates in
children's products,
Promulgated the strongest safety standard for cribs in the
world,
Developed implementing rules for the new CPSIA requirement
that firms have independent laboratories do third-party testing
of children's products before introducing them into the U.S.
market,
Made mandatory a comprehensive voluntary toy standard, ASTM
F963,
Written, and continue to write, a series of standards for
durable infant products like play yards and strollers,
Drafted and enforced new guidelines on civil penalties and
set broader limits on consumer product recalls, and
Developed new approaches to catching dangerous imported
products.
And, despite occasional glitches, I believe that we have made
tremendous progress in meeting these statutory mandates.
Notwithstanding our considerable progress in implementing the
CPSIA, we still have work to do to protect American lives from
unreasonably dangerous products. And, we should not lose sight of the
fact that, in order to do so, we must work cooperatively with our
friends in the business community to figure out ways to meet our safety
mission with them as our partners, not our adversaries.
On this point, I pause to note the tremendous progress I have seen
in the voluntary standards community over the past forty years. Groups
such as ASTM, ANSI, and UL have dramatically improved their technical
skills, their efficiency in drafting standards, their openness and
transparency, and their outreach to all stakeholders--especially
consumers--affected by their work. I'm pleased to see CPSC work so
closely with these groups, and I have little doubt that our partnership
with them will only grow and deepen in the years to come.
I have similar high hopes for collaborating with my fellow
Commissioners, both current and future. It has been an absolute delight
to work with Commissioners Marti Robinson and Ann Marie Buerkle this
past year, and one of the reasons I hope to be confirmed is the
opportunity to continue working with them.
Similarly, I have worked closely with and have gotten to know
Elliot Kaye, current nominee to be CPSC Chair, over the past three
years. If Elliot is confirmed, I believe his experience, dedication,
and temperament will make him a truly outstanding Chairman. And,
although I have not yet gotten to know our other nominee, Joe
Mohorovic, as well, I hope and believe he will round out a group of
talented and gracious Commissioners.
In closing, I would like to mention one critical demographic that I
believe has not received enough attention over the past number of
years: senior citizens --a group of which I am a proud member. Our data
show that the second most vulnerable population after kids is adults
over age 65. And, I note that this is a rapidly growing group due to
the aging of the baby boomers and the greater longevity of our
citizens. In fact, seniors, while comprising only 13 percent of the
U.S. population, account for 65 percent of our consumer product-related
deaths. And, by 2020, they--we--will be 20 percent of the U.S.
population. I recently created a Senior Safety Initiative at CPSC and,
if confirmed, I will continue my advocacy on behalf of this group's
safety needs.
Thank you for your time, and I look forward to your questions.
______
a. biographical information
1. Name (Include any former names or nicknames used):
Robert Sanford Adler
Nickname: Bob
2. Position to which nominated: Commissioner, U.S. Consumer Product
Safety Commission.
3. Date of Nomination: May 14, 2014.
4. Address (List current place of residence and office addresses):
Residence: Information not released to the public.
Office: U.S. Consumer Product Safety Commission, 4330 East West
Highway, Bethesda, MD 20814.
5. Date and Place of Birth: September 27, 1944; Reno, Nevada
(Washoe County).
6. Provide the name, position, and place of employment for your
spouse (if married) and the names and ages of your children (including
stepchildren and children by a previous marriage).
Terrie Jean Gale (wife), Professorial Lecturer in Sociology
Sociology Department, George Washington University, 801 22nd
St. NW, Phillips 409, Washington, D.C. 20052; Paul Kogan Adler
(son) Age 31.
7. List all college and graduate degrees. Provide year and school
attended.
J.D., 1969
University of Michigan Law School
A.B., 1966
University of Pennsylvania
8. List all post-undergraduate employment, and highlight all
management-level jobs held and any non-managerial jobs that relate to
the position for which you are nominated.
2009-present: Commissioner
U.S. Consumer Product Safety Commission
Acting Chair, 12/13 to present
Vice-Chair, 2010-present
2003-2009: Luther Hodges, Jr. Scholar in Law & Ethics (2006-
2009)
Professor of Legal Studies
Kenan-Flagler Business School
2002-2003: Associate Dean
MBA Program, Kenan-Flagler Business School
1995-2002: Professor of Legal Studies
Kenan-Flagler Business School
1994-1998: Associate Dean
Undergraduate (BSBA) Program
Ken an-Flagler Business School
University of North Carolina
1987-1995: Associate Professor of Legal Studies
Kenan-Flagler Business School
University of North Carolina (received tenure,
1990)
1985-1987: Counsel to the Subcommittee on Health and the
Environment
Committee on Energy and Commerce
U.S. House of Representatives
Washington, D.C.
1984-1985: Of Counsel
Schmeltzer, Aptaker and Sheppard
Washington, D.C.
1983-1985: Adjunct Professor
Washington College of Law
American University
Washington, D.C.
1982-1984: Attorney-advisor to Commissioner Sam Zagoria
U.S. Consumer Product Safety Commission
Washington, D.C.
1973-1982: Attorney-advisor to Commissioner R. David Pittle
U.S. Consumer Product Safety Commission
Washington, D.C.
1971-1973: Deputy Attorney General
Director, Southwestern Regional Office
Pennsylvania Bureau of Consumer Protection
Pennsylvania Justice Department
Pittsburgh, PA.
1969-1971: Director, Consumer Division
Neighborhood Legal Services Association
Pittsburgh, PA
I have highlighted above the jobs in which I have had management/
supervisory responsibility (as opposed to strictly academic or
professional responsibility). Most of the jobs I have held since 1973
have related in some fashion, either by employment or my scholarship,
to consumer issues, and specifically to consumer product safety issues.
9. Attach a copy of your resume. A copy is attached.
10. List any advisory, consultative, honorary, or other part-time
service or positions with Federal, State, or local governments, other
than those listed above, within the last five years.
Member, Obama Transition Team and co-author of Report on U.S.
Consumer Product Safety Commission, 2008-2009.
11. List all positions held as an officer, director, trustee,
partner, proprietor, agent, representative, or consultant of any
corporation, company, firm, partnership, or other business, enterprise,
educational, or other institution within the last five years.
------------------------------------------------------------------------
Name/Location Position/Nature of Affiliation Dates
------------------------------------------------------------------------
Consumers Union Member, Board of Directors. CU is 1989 to 2009
Yonkers, NY the publisher of Consumer Reports (resigned, 5/
2009)
------------------------------------------------------------------------
12. Please list each membership you have had during the past ten
years or currently hold with any civic, social, charitable,
educational, political, professional, fraternal, benevolent or
religious organization, private club, or other membership organization.
Include dates of membership and any positions you have held with any
organization. Please note whether any such club or organization
restricts membership on the basis of sex, race, color, religion,
national origin, age, or handicap.
Member, Board of Directors of Consumers Union, publisher of
Consumer Reports magazine, 1989-05/2009. No membership
restrictions.
Member, North Carolina Bar, (inactive) 1989-present. No
membership restrictions.
Member, District of Columbia Bar (inactive), 1976-present. No
membership restrictions.
Member, Pennsylvania Bar (inactive), 1969-present. No
membership restrictions.
13. Have you ever been a candidate for and/or held a public office
(elected, non-elected, or appointed)? If so, indicate whether any
campaign has any outstanding debt, the amount, and whether you are
personally liable for that debt: No.
14. Itemize all political contributions to any individual, campaign
organization, political party, political action committee, or similar
entity of $500 or more for the past ten years. Also list all offices
you have held with, and services rendered to, a state or national
political party or election committee during the same period.
Barack Obama, 2012 = $450.00
Barack Obama, 2008 = $825.00
John Edwards, 2007-2008 = $595.00
15. List all scholarships, fellowships, honorary degrees, honorary
society memberships, military medals, and any other special recognition
for outstanding service or achievements.
``Tar Heel of the Week,'' selected by Raleigh News & Observer,
December 2009
Faculty Appreciation Award for Distinguished MBA Teaching,
2005-2009
Recipient of Dean's Teaching Bonus, 2005-2006; 2006-2007
Gerald Barrett Faculty Award (excellence in teaching and
service in the UNC Kenan Flagler MBA Program), 2004
Best Article Award, CPR Institute for Dispute Resolution, for
article in Harvard Negotiation Law Review [``When David Meets
Goliath: Dealing With Power Differentials in Negotiations,'' 5
Harv. Neg. L. Rev. (Summer 2000) pp. 1-112 (co-authored with
Elliot Silverstein)]
President, The University of North Carolina at Chapel Hill,
Academy of Distinguished Teaching Scholars, 2003-2007
(association of faculty who have won university-wide teaching
awards)
Order of the Grail-Valkyries, 1999 (UNC Student and Faculty
Honorary Society)
Order of the Golden Fleece, 1997 (UNC Student and Faculty
Honorary Society)
Tanner Award for Excellence in Undergraduate Teaching
(university-wide teaching award), 1996
O'Herron Scholar, (excellence in teaching and research) 1996
Elected to Board of Directors, Consumers Union, publishers of
Consumer Reports (1989-2009) (resigned 5/2009)
McColl Award for Teaching, Research and Service Excellence,
1994. (UNC Business school award)
UNC Business School Undergraduate Program Distinguished
Teaching Award, 1990
Federal Executive Board, Outstanding Achievement, 1973
Reginald Heber Smith Fellow, 1969-1971
16. Please list each book, article, column, or publication you have
authored, individually or with others. Also list any speeches that you
have given on topics relevant to the position for which you have been
nominated. Do not attach copies of these publications unless otherwise
instructed.
I have done my best to identify books, articles, columns,
publications or relevant speeches, including a thorough review of
personal files and searches of publicly available electronic databases.
Despite my searches, there may be other materials I have been unable to
identify, find, or remember. I have located the following:
(a) Refereed Articles:
``Mastering the Art of Negotiating With Liars,'' Sloan
Management Review, Vol. 48, No. 4 (Summer 2007) pp. 69-74.
``Flawed Thinking: Addressing Decision Biases in Negotiation,''
Ohio State Journal on Dispute Resolution, Vol. 20, No. 3 (2005)
pp. 683-774.
``When David Meets Goliath: Dealing With Power Differentials in
Negotiations,'' Harvard Negotiation Law Review, (co-authored
with Elliot Silverstein) Vol. 5 (Summer 2000) pp. 1-112.
``Here's Smoking At You, Kid: Has Tobacco Product Placement in
the Movies Really Stopped?'' University of Montana Law Review,
Vol. 60 (2) (Summer 1999) pp. 243-284.
``Emotions in Negotiation: How to Handle Fear and Anger,'' (co-
authored with Ben Rosen and Elliot Silverstein) The Negotiation
Journal Vol. 14 (2) (April1998) pp. 161-179.
``The Preemption Pentad: Federal Preemption of Products
Liability Claims After Medtronic v. Lohr,'' (co-authored with
Rob Leflar) University of Tennessee Law Review Vol. 64 (Spring
1997) pp. 691-748.
``Encouraging Employers To Abandon Their ``No Comment''
Policies Regarding Job References: A Reform Proposal,'' (co-
authored with Ellen Peirce) Washington & Lee Law Review, Vol.
50, No. 4 (1996) pp. 1381-1469.
``Addressing Product Misuse at the Consumer Product Safety
Commission: Redesigning People Versus Redesigning Products,''
University of Virginia Journal of Law & Politics Vol. XI, No. 1
(Winter 1995) pp. 79-127, reprinted in Charles H. Koch, Jr.,
Fundamentals of Administrative Practice and Procedure (3rd
ed.).
``Preemption and Medical Devices: The Courts Run Amok,'' (co-
authored with Richard Mann) University of Missouri Law Review
Vol. 59 (Fall 1994) pp. 895-945.
``Good Faith: A New Look At An Old Doctrine,'' (co-authored
with Richard A. Mann) Akron Law Review Vol. 28 (Summer 1994)
pp. 31-52.
``The Last Best Argument for Eliminating Reliance From Express
Warranties: `Real World' Consumers Don't Read Warranties,'' U.
of So. Carolina Law Review, Vol. 45 (Spring 1994) pp. 429-475.
``Avoiding Misuse of New Information Technologies,'' (co-
authored with Paul Bloom and George Milne) Journal of
Marketing, Vol. 58 (January 1994) pp. 98-110.
``The Legal, Ethical and Social Implications of the `Reasonable
Woman' Standard in Sexual Harassment Cases,'' (co-authored with
Ellen Peirce) Fordham Law Review, Vol. 361, No. 4 (March 1993)
pp. 773-827, reprinted in Ethics in the Workplace, E.
Ottensmeyer and G. McCarthy (1996) pp. 211-235.
``Contemporary Ethical Issues in Labor-Management Relations,''
Journal of Business Ethics (co-authored with William Bigoness),
Vol. 11 (1992) pp. 351-360.
``Cooperative Learning Groups in Undergraduate and Graduate
Contexts: Different Strokes for Different Folks,'' Journal of
Legal Studies Education (co-authored with Ed Neal), Vol. 9, No.
3, (Fall l991) pp. 427-435.
``Stalking the Rogue Physician: An Analysis of the Health Care
Quality Improvement Act,'' American Business Law Journal, Vol.
28, No. 4, (1991) pp. 683-741.
``Shaping Up Federal Agencies: A Basic Training Program for
Regulators,'' The University of Virginia Journal of Law &
Politics, Vol. VI, No. 2 (co-authored with Stephen Klitzman &
Richard Mann) (1990) pp. 343-371.
``From `Model Agency' to Basket Case: Can the Consumer Product
Safety Commission Be Redeemed?'' Administrative Law Review,
Vol. 41, (1989) pp. 61-129.
``The 1976 Medical Device Amendments: A Step in the Right
Direction Needs Another Step in the Right Direction,'' Food
Drug Cosmetic Law Journal, Vol. 43, No. 3. pages 511-532
(1988). Revised and updated as ``Legislation Needed to Improve
the Medical Devices Law'' in The Medical Device Industry:
Science. Technology, and Regulation in a Competitive
Environment, pp. 531-549 (1990).
``Product Recalls: A Remedy in Need of Repair,'' Case Western
Law Review, Vol. 34, No. 4 (co-authored with Teresa M.
Schwartz) (1983-84) pp. 401-464.
``Cajolery or Command: Are Education Campaigns an Adequate
Substitute for Regulation?'' Yale Journal on Regulation, Vol.
1, No. 2 (1984) (co-authored with R. David Pittle) pp. 159-193.
``Commentary on Product Liability: An Interaction of Law and
Technology,'' Duquesne Law Review, Vol. 12 (1974) (co-authored
with R. David Pittle) pp. 487-495.
(b) Chapters in Books:
``Product Safety: The Consumer Product Safety Commission,, in
Changing America: Blueprints for the New Administration (co-
authored with R. David Pittle) pp. 540-553 (1993).
``A Framework for Identifying the Legal and Political Risks of
Using New Information Technologies to Support Marketing
Programs,'' (co-authored with Paul N. Bloom & George Milne),
Monograph for Marketing Science Institute, Report No. 92-102,
February 1992, reprinted as ``Identifying the Legal and Ethical
Risks and Costs of Using New Information Technologies To
Support Marketing Programs,'' in The Marketing Information
Revolution, Harvard Business School Press, 1994, pp. 289-305
(1994).
``Psycholegal Aspects of Organizational Behavior: Assessing and
Controlling Risk'' in Handbook of Psychology and Law, eds.
Dorothy K. Kagehiro & William S. Laufer, pp. 523-541 (co-
authored with Alan J. Tomkins & Bart Victor) (1992).
``Product Safety: the Consumer Product Safety Commission'' in
America's Transition: Blueprints for the 1990s, (co-authored
with R. David Pittle) 268-86 (1989).
(c) Editorials and Professional Publications:
``Vigilance is Best Answer to Safety in Pools,'' (co-authored
with Congresswoman Debbie Wasserman Schultz) South Florida Sun
Sentinel, May 11, 2014.
``Safety Regulators Don't Add Costs. They Decide Who Pays
Them,'' New York Times (on-line), October 16, 2011.
``Moving Forward on Product Safety,'' Politico (on-line).
August 14, 2011.
``Thrust and Parry: The Art of Tough Negotiating,'' (co-
authored with Ben Rosen and Elliot Silverstein) Training &
Development, Vol. 50, No. 3 (March 1996) 42-48.
``New Leadership at the Consumer Product Safety Commission:
Will It Make A Difference?'' TRIAL, Vol. 30, No. 11 (November
1994) 63-67.
``The CPSC at 20 Is Still Immature,'' TRIAL, Vol. 28, No. 11
(November 1992) pp. 30-34.
``New CPSC Act: A Disappointment,'' TRIAL, Vol. 27, No. 11
(November, 1991) pp. 18-25.
``Manufacturers Blind CPSC to Product Hazards,'' TRIAL, Vol.
26, No. 10 (October, 1990) pp. 20-24.
``Toy Safety: No Kidding Around,'' TRIAL, Vol. 25, No. 11,
pages 44-47 (1 989).
``0f Ketchup, Ozone, and Airline Delays: A Regulatory Legacy,''
Legal Times (April 11, 1988) pp. 18-20; reprinted as
``Rethinking Reagan's Deregulation Drive,'' Miami Legal Review
(May 2, 1988) pp. 9-10; and reprinted as ``Reagan's
Deregulation Efforts Have Done More Harm Than Good,'' Manhattan
Lawyer, (April 19-25, I 988) pp. 30-31.
``Will CPSC Halt U.S. Export of Hazardous Items? Legal Times
(April 16, 1984) pp. 113.
``Does CPSC's Past Bode Ill for Future of Regulatory
Negotiations?'' Legal Times (June 20, 1983) (co-authored with
R. David Pittle) pp. 10-11.
(d) Book Reviews:
``Innovation, Safety, and Costs: A Delicate Balance,'' Review
of Managing the Medical Arms Race: Innovation and Public Policy
in the Medical Device Industry, (University of California
Press) in Health Affairs, Vol. 12, No. 3 (Fall l993) pp. 271-
273.
Review of The Product Liability Handbook: Prevention, Risk,
Consequence and Forensics of Product Failure, ed. Sam Brown
(Van Nostrand Reinhold 1991), Products Liability Law Journal,
Volume 3, No. 3 (May 1992) pp. 212-218.
Review of R. Mayer, The Consumer Movement: Guardians of the
Marketplace (Twayne 1989) and D. Vogel, Fluctuating Fortunes:
The Political Power of Business (Basic Books 1989), Journal of
Consumer Policy, Volume 14 (1991) pp. 243-248.
(e) Other Publications:
``Time to Strengthen Consumer Protection,'' Christian Science
Monitor (May 8, 1989) (co-authored with R. David Pittle) p. 18.
Lawsuits Without Lawyers, monograph on lawsuits in small claims
courts (1973) (co-authored with Carol Knutson, Larry Slesinger,
and David Worstell) pp. 1-49.
(f) Speeches and Presentations:
``Recent Developments at the Consumer Product Safety
Commission,'' to Walmart Compliance and Enforcement Officials,
video broadcast from Washington, D.C. to Walmart Officials,
Bentonville, Arkansas (May 12, 2014).
``Recent Developments at the Consumer Product Safety
Commission,'' to various consumer groups, in Washington, D.C.
(April 10, 2014).
``Non-traditional Careers in Law,'' at Career Day, Washington
College of Law, American University, (April 1, 2014).
``Pool Safely,'' to National Drowning Prevention Alliance, in
Orlando, Florida (April 1, 2014).
``Recent Developments at the Consumer Product Safety
Commission, to Toy Industry Association, in New York, NY
(February 18, 2014).
Recent Developments at the Consumer Product Safety
Commission,'' to Juvenile Product Manufacturers Association, in
Washington, D.C. (February 5, 2014).
``CPSC Challenge to Safety App Manufacturers,'' at White House
Datapalooza Conference, in Washington, D.C. (January 14, 2014).
``Carbon Monoxide Safety,'' to Chicago Firefighters and Members
of Media, Chicago, Illinois (December 19, 2013).
``From Professor to Regulator: Trials and Tribulations of a
CPSC Commissioner,'' DePauw University, Greencastle, IN
(November 5, 2013).
``Product Safety Versus Product Liability,'' to American
Conference Institute Seminar, Chicago, Illinois (June 26,
2013).
``Recent Developments at the Consumer Product Safety
Commission,'' to International Council of Toy Industries,
Washington, D.C. (June 3, 2013).
``Product Liability and its Interaction with Product Safety at
the Consumer Product Safety Commission,'' Louis Brandeis School
of Law, University of Louisville, Louisville, KY (April 15,
2013).
``Recent Developments at the Consumer Product Safety
Commission,'' to Society of Glass and Ceramic decorated
Products,'' Louisville, KY (April 14, 2013).
``How Standards Work at the U.S. Consumer Product Safety
Commission,'' to Workshop on Standards Policy and Practices for
Federal Agencies, sponsored by National Institute of Standards
and Technology, Washington, D.C. (November 8, 2012).
``Voluntary Standards at the U.S. Consumer Product Safety
Commission,'' to the ANSI Caucus of the American National
Standards Institute, Washington, D.C. (October 3, 2012).
``Recent Developments at the U.S. Consumer Product Safety
Commission,'' to Midwest Product Safety Workshop of the
International Consumer Product Safety and Health Organization
(ICPHSO), at the Cook School of Business, St. Louis University,
St. Louis, MO. (August 13, 2012).
``Recent Developments at the U.S. Consumer Product Safety
Commission,'' to the American Apparel and Footwear Association,
New York, NY (July 31, 2012).
``In Commemoration of President Kennedy's Statement of Consumer
Rights,'' to Consumers, International, Washington, D.C. (June
20, 2012).
``Product Liability and Product Safety Issues at the U.S.
Consumer Product Safety Commission,'' to the American
Legislative Exchange Council (ALEC), Charlotte, NC (May 11,
2012).
``Recent Developments at the U.S. Consumer Product Safety
Commission,'' to National Association of Manufacturers,
Washington, D.C. (March, 2012).
``The New CPSC Database,'' to Consumer Advocates Web
Conference, Washington, D.C. (January 11, 2012).
``Product Safety and Older Americans,'' to Association of
Retired Americans, Washington, D.C. (September 7, 2011).
``Polyurethane Foam and Upholstered Furniture Flammability,''
to Polyurethane Foam Manufacturers Association, Baltimore, MD
(May 19, 2011).
``Recent Developments at the U.S. Consumer Product Safety
Commission,'' to Consumer Specialty Products Association,
Washington, D.C. (May 6, 2011).
``Recent Developments at U.S. Consumer Product Safety
Commission,'' to Consumer Federation of America (CFA), (March
18, 2011).
``Recent Developments at U.S. Consumer Product Safety
Commission,'' at Toy Fair, New York, NY (February 15, 2011).
``Meet the U.S. Consumer Product Safety Commission,'' to
general audience, St. Louis University, St. Louis, MO (December
2, 2010).
``The Hard Work of Being a Product Safety Compliance
Official,'' to graduating class receiving Certificate in
Product Safety, Cook School of Business, St. Louis University,
St. Louis, MO. (December 2, 2010).
``The CPSC and Retailers,'' to Retail Law Conference,
Washington, D.C. (November 9, 2010).
``How the Consumer Product Safety Commission Operates,'' to
Consumers Union Activist Summit, Washington, D.C. (June 11,
2010).
``Recent Developments at the U.S. Consumer Product Safety
Commission,'' to the American Apparel and Footwear Association,
New York, NY (June 16, 2010).
``Recent Developments at the U.S. Consumer Product Safety
Commission,'' to the Toy Industry of America, Washington, D.C.
(May 2010).
``How the CPSC Works with State and Local Officials,'' to State
Designees Liaison with CPSC (February 17, 2010).
``Recent Developments at the U.S. Consumer Product Safety
Commission,'' to the American Apparel and Footwear Association,
New York, NY (October 29, 2009).
``Consumer Product Safety Commission: Reflections from the
Obama Transition Team'' to Conference of International Consumer
Product Health and Safety Officials (ICPHSO), Orlando, Florida
(February 25, 2009).
``One Million ATV Injuries Later . . . Will the End of the
Consent Decree Bring More Consumer Litigation? The Government
Perspective'' Nationwide Teleconference by Telephone, (December
2 and December 4, 1998).
``A Strategic Plan for ICPHSO,'' at conference of International
Consumer Product Health and Safety Officials, Orlando, Florida
(February 26-27, 1998).
``The Future of Product Safety and Product Liability,'' at
conference of International Consumer Product Health and Safety
Officials, Key West, Florida (February 28, 1997).
``Product Safety versus Product Liability,'' at conference of
International Consumer of Consumer Product Health and Safety
Officials (February 29, 1996).
``Remarks on CPSC Long-Range Plan,'' testimony before Chairman
and Commissioners of the U.S. Consumer Product Safety
Commission, Washington, D.C. (June 18, 1992).
``Regulation, Deregulation, and Reregulation,'' presented at
American Business Law Association Conference, Toronto, Canada
(jointly presented with Richard A. Mann), (August 17, 1990).
``The Role of Federal Safety Standards in Product Liability
Litigation,'' presented at Conference on ``Avoiding Product
Liability Suits,'' Union College (July 12, 1990).
``Needed: A College for Regulators,'' presented at Southeastern
Regional Business Law Association Conference (Fall, 1988).
``Federal Deregulation and State Reregulation,'' presented to
the American Bar Association Committees on Consumer Product
Regulation and State Administrative Law of the Administrative
Law Section and the Section of Urban, State and Local
Government Law (August 11, 1987).
17. Please identify each instance in which you have testified
orally or in writing before Congress in a governmental or non-
governmental capacity and specify the date and subject matter of each
testimony.
August 5, 2009: Testimony before Senate Committee on Commerce,
Science, and Transportation regarding my nomination to be a
Commissioner at the U.S. Consumer Product Safety Commission
July 7, 2011: Testimony before Subcommittee on Oversight and
Investigation of the House Energy & Commerce Committee on
``Views of the Independent Agencies on Regulatory Reform''
August 2, 2012: Testimony before the Subcommittee on Commerce,
Manufacturing, and Trade of the House Committee on Energy and
Commerce on ``Oversight of the U.S. Consumer Product Safety
Commission''
18. Given the current mission, major programs, and major
operational objectives of the department/agency to which you have been
nominated, what in your background or employment experience do you
believe affirmatively qualities you for appointment to the position for
which you have been nominated, and why do you wish to serve in that
position?
I have served as a Commissioner at the U.S. Consumer Product Safety
Commission for the past four and a half years. During that time, I have
been deeply involved in the critical issues that have come before the
CPSC, including the promulgation of a number of rules regarding
children's safety: cribs, play yards, bassinets, cradles, bedside
sleepers, handheld infant carriers baby walkers, children's portable
bed rails, and baby bath seats. In addition, I have worked to encourage
the Commission and our various stakeholders to become aware of and work
to address the problems of the elderly who constitute 13 percent of the
population, but account for 65 percent of consumer product-related
fatalities.
Further, I wish to continue to serve as a Commissioner, if
confirmed, because of my long professional and personal commitment to
consumer issues and to the CPSC specifically. I can think of few more
critical causes than reducing consumer-related injuries, illness, and
death.
I believe that my background demonstrates an ongoing commitment to
consumer product safety issues and to consumer protection generally.
After law school, I worked as the Chief of the Consumer Division of a
legal services program in Allegheny County, PA. Thereafter, I served as
a Deputy Attorney General in charge of a regional office of the Bureau
of Consumer Protection for the Pennsylvania Justice Department.
Subsequent to this consumer protection experience, I have spent the
better part of the past 36 years involved in the CPSC in one form or
another. I served as an attorney-adviser to two CPSC Commissioners (R.
David Pittle, from 1973-1982 and Sam Zagoria from 1982-1984). I
subsequently served as Counsel to the Subcommittee on Health and the
Environment of the House Energy & Commerce Committee performing
oversight of the CPSC. After that, I became a professor at the
University of North Carolina where I wrote numerous articles on
consumer product safety issues. And, from October 2008-January 2009, I
served as a member of the Obama Transition Team on which I co-authored
the Transition Team Report on the Consumer Product Safety Commission.
19. What do you believe are your responsibilities, if confirmed, to
ensure that the department/agency has proper management and accounting
controls, and what experience do you have in managing a large
organization?
At the moment, I serve as the Acting Chairman of the CPSC. In that
capacity, Ihave done my best to direct the agency to follow proper
management and accounting rules, including meeting on an ongoing basis
with administrative and financial staff to be certain that the rules,
in fact, are being followed.
Under the governing act of the agency, the Consumer Product Safety
Act, the Chair has the primary responsibility for managing the agency.
Commissioners, however, share equally in setting agency policies and
have a broad right to monitor the implementation of those policies.
Given this shared responsibility, Icommit myself to monitoring the
management and administrative activities of the CPSC in a conscientious
manner to the extent that the governing statute of the agency gives me
the authority and responsibility to do so.
My management experience began when I ran a regional office of the
Pennsylvania Justice Department in Pittsburgh where I had a staff of
roughly 7 investigators and administrative personnel. At the Kenan-
Flagler Business School, as an Associate Dean for the BSBA Program, I
ran the undergraduate business program which included 4 professional
staff and roughly 600 undergraduate students. Later, as Associate Dean
of the MBA Program, l ran the school's MBA Program, which included
roughly 10 professional staff and 600-plus MBA students.
20. What do you believe to be the top three challenges facing the
department/agency, and why?
The Commission's first challenge is to continue to implement the
mandates contained in the Consumer Product Safety Improvement Act
(CPSIA), as amended by P.L. 112-28. The agency is well along the way in
doing so, and continues to provide a balanced, effective approach to
America's consumers and the agency's various stakeholders.
A second challenge is to raise awareness both within the CPSC and
the Product Safety Community generally about the growing need for the
agency to focus on the problems of older Americans. Seniors, those over
age 65, currently constitute 13 percent of the population, but will
make up 20 percent by the year 2030. Moreover, as I have previously
noted, even though seniors constitute only 13 percent of the
population, they constitute 65 percent of consumer product-related
fatalities.
Finally, I would like to help make the CPSC, a very small agency,
as effective as it can be in protecting consumers. Being small is not
always a disadvantage if the agency can demonstrate a truly nimble and
thoughtful approach to product safety. J hope to continue to work to
expand the agency's approach to the digital revolution to expand the
agency's outreach and effectiveness both with consumers and industry.
b. potential conflicts of interest
1. Describe all financial arrangements, deferred compensation
agreements, and other continuing dealings with business associates,
clients, or customers. Please include information related to retirement
accounts.
Retirement Accounts: Virtually all of my retirement accounts are in
broad based mutual funds with no individual company holdings.
Please see section E of this form for a complete listing of my
retirement account information.
Ongoing Business Dealings: I have no other ongoing business
dealings. My wife and I own a one-bedroom apartment next to our
condominium, which we may rent in the future, but have not done so yet.
2. Do you have any commitments or agreements, formal or informal,
to maintain employment, affiliation, or practice with any business,
association or other organization during your appointment? If so,
please explain: No.
3. Indicate any investments, obligations, liabilities, or other
relationships which could involve potential conflicts of interest in
the position to which you have been nominated.
In connection with the nomination process, I have consulted with
the Office of Government Ethics and the CPSC's designated agency ethics
official to identify potential conflicts of interest. Any potential
conflicts of interest will be resolved in accordance with the terms of
an ethics agreement that I have entered into with the Commission's
designated agency ethics official and that has been provided to this
Committee. I am not aware of any other potential conflicts of interest.
4. Describe any business relationship, dealing, or financial
transaction which you have had during the last ten years, whether for
yourself, on behalf of a client, or acting as an agent, that could in
any way constitute or result in a possible conflict of interest in the
position to which you have been nominated.
In connection with the nomination process, I have consulted with
the Office of Government Ethics and the CPSC's designated agency ethics
official to identify potential conflicts of interest. Any potential
conflicts of interest will be resolved in accordance with the terms of
an ethics agreement that I have entered into with the Commission's
designated agency ethics official and that has been provided to this
Committee. I am not aware of any other potential conflicts of interest.
5. Describe any activity during the past ten years in which you
have been engaged for the purpose of directly or indirectly influencing
the passage, defeat, or modification of any legislation or affecting
the administration and execution of law or public policy.
I have done no advocacy on issues of public policy beyond my
regular research and teaching activities as a professor with the
exception that I served on the Obama Transition Team from October 2008-
January 2009, co-authoring the report on the Consumer Product Safety
Commission.
6. Explain how you will resolve any potential conflict of interest,
including any that may be disclosed by your responses to the above
items.
In connection with the nomination process, I have consulted with
the Office of Government Ethics and the CPSC's designated agency ethics
official to identify potential conflicts of interest. Any potential
conflicts of interest will be resolved in accordance with the terms of
an ethics agreement that I have entered into with the Commission's
designated agency ethics official and that has been provided to this
Committee.
c. 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.
When I served as a Deputy Attorney General in the Bureau of
Consumer Protection in the Pennsylvania Justice Department, I
investigated an individual for fraud in 1972 or 1973. At one point, he
wrote a letter to the Bar Association that accused me of trying to
intimidate him during a negotiation for a consent decree (which he
never signed). As I recall, I disputed this complaint, pointing out
that the individual's attorney sat through the entire negotiation and
disagreed with his client's characterization of events. The Bar
Association dismissed the charge against me. Whether this was
considered a formal complaint, I cannot recall. When I last checked
with the Bar Association many years ago, Iwas told that they have no
record of any complaint listed against me. I cannot recall the name of
the complainant.
2. Have you ever been investigated, arrested, charged, or held by
any Federal, State, or other law enforcement authority of any Federal,
State, county, or municipal entity, other than for a minor traffic
offense? If so, please explain: No.
3. Have you or any business 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.
Yes. I filed a lawsuit in 1973 or 1974 in Allegheny County, PA (or
in the district court for the western district of Pa.) as the plaintiff
in a case under the Fair Credit Reporting Act against a company that
had illegally run a credit check on me while Iwas investigating them
for possible consumer fraud violations as part of my job with the
Pennsylvania Justice Department. We settled the case before trial, with
the company paying me roughly $3,000. Despite my best efforts, I cannot
find my records of the case. Irecently spoke to the attorney who
handled my case. He has changed law firms several times over the years,
and he cannot recall any of the details of the case either.
4. Have you ever been convicted (including pleas of guilty or nolo
contendere) of any criminal violation other than a minor traffic
offense? If so, please explain: No.
5. Have you ever been accused, formally or informally, of sexual
harassment or discrimination on the basis of sex, race, religion, or
any other basis? If so, please explain: No.
6. Please advise the Committee of any additional information,
favorable or unfavorable, which you feel should be disclosed in
connection with your nomination.
None to my knowledge.
d. 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. 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.
______
Resumee of Robert Sanford Adler
Education: J.D., University of Michigan Law School, 1969
A.B., University of Pennsylvania, 1966, cum laude
Honors, Awards, Member, Obama Transition Team, 2009
Special Recognition: ``Tar Heel of the Week,'' selected by Raleigh News
& Observer,
December 2009
Faculty Appreciation Award for Distinguished MBA
Teaching, 2005-2006; 2006-2007; 2008-2009
Recipient of Dean's Teaching Bonus, 2005-2006;
2006-2007
Gerald Barrett Faculty Award (excellence in
teaching and service in the Kenan-Flagler MBA
Program), 2004
Best Article Award, CPR Institute for Dispute
Resolution, for article in Harvard Negotiation
Law Review, 2001
President, The University of North Carolina at
Chapel Hill Academy of Distinguished Teaching
Scholars, 2003-2007
Order of the Grail-Valkyries, 1999 (campus-wide
honor society)
Order of the Golden Fleece, 1997 (campus-wide
honor society)
Tanner Award for Excellence in Undergraduate
Teaching (university-wide teaching award), 1996
O'Herron Scholar, (excellence in teaching and
research), 1996
Elected to Board of Directors, Consumers Union,
publishers of Consumer Reports (6 terms; first
elected, 1989)
McColl Award for Teaching, Research and Service
Excellence, 1994
Undergraduate Program Distinguished Teaching
Award, 1990
Federal Executive Board, Outstanding Achievement,
1973
Reginald Heber Smith Fellow, 1969-1971
Employment:
2009-present: Commissioner, U.S. Consumer Product Safety
Commission
Vice-Chair, 2010-2014; Acting Chairman, Dec. 2013-
present
2003-2009: Luther Hodges, Jr., Scholar in Law & Ethics
Kenan-Flagler Business School
2002-2003: Associate Dean
MBA Program, Kenan-Flagler Business School
1995-2002: Professor of Legal Studies
Kenan-Flagler Business School
1994-1998: Associate Dean
Undergraduate (BSBA) Program
Kenan-Flagler Business School
University of North Carolina
Chapel Hill, North Carolina
1987-1995: Associate Professor of Legal Studies
Kenan-Flagler Business School
University of North Carolina
Chapel Hill, North Carolina (received tenure,
1990)
1985-1987: Counsel to the Subcommittee on Health and the
Environment
Committee on Energy and Commerce
U.S. House of Representatives
Washington, D.C.
1984-1985: Of Counsel
Schmeltzer, Aptaker and Sheppard
Washington, D.C.
1983-1985: Adjunct Professor
Washington College of Law
American University
Washington, D.C.
1982-1984: Attorney-advisor to Commissioner Sam Zagoria
U.S. Consumer Product Safety Commission
Washington, D.C.
1973-1982: Attorney-advisor to Commissioner R. David Pittle
U.S. Consumer Product Safety Commission
Washington, D.C.
1971-1973: Deputy Attorney General
Director, Southwestern Regional Office
Pennsylvania Bureau of Consumer Protection
Pennsylvania Justice Department
Pittsburgh, PA.
1969-1971: Director, Consumer Division
Neighborhood Legal Services Association
Pittsburgh, PA.
Publications:
(a) Refereed Articles:
``Mastering the Art of Negotiating With Liars,'' Sloan
Management Review, Vol. 48, No. 4 (Summer 2007) pp. 69-74.
``Flawed Thinking: Addressing Decision Biases in Negotiation,''
Ohio State Journal on Dispute Resolution, Vol. 20, No. 3 (2005)
pp. 683-774.
``When David Meets Goliath: Dealing With Power Differentials in
Negotiations,'' Harvard Negotiation Law Review, (co-authored
with Elliot Silverstein) Vol. 5 (Summer 2000) pp. 1-112.
``Here's Smoking at You, Kid: Has Tobacco Product Placement in
the Movies Really Stopped?'' University of Montana Law Review,
Vol. 60 (2) (Summer 1999) pp. 243-284.
``Emotions in Negotiation: How to Handle Fear and Anger,'' (co-
authored with Ben Rosen and Elliot Silverstein) The Negotiation
Journal Vol. 14 (2) (April 1998) pp. 161-179.
``The Preemption Pentad: Federal Preemption of Products
Liability Claims After Medtronic v. Lohr,'' (co-authored with
Rob Leflar) University of Tennessee Law Review Vol. 64 (Spring
1997) pp. 691-748.
``Encouraging Employers To Abandon Their ``No Comment''
Policies Regarding Job References; A Reform Proposal,'' (co-
authored with Ellen Peirce) Washington & Lee Law Review, Vol.
50, No.4 (!996) pp. 1381-1469.
``Addressing Product Misuse at the Consumer Product Safety
Commission: Redesigning People Versus Redesigning Products,''
University of Virginia Journal of Law & Politics Vol. XI, No. 1
(Winter 1995) pp. 79-127, reprinted in Charles H. Koch, Jr.,
Fundamentals of Administrative Practice and Procedure (3rd ed.)
``Preemption and Medical Devices: The Courts Run Amok,'' (co-
authored with Richard Mann) University of Missouri Law Review
Vol. 59 (Fall 1994) pp. 895-945.
``Good Faith: A New Look At An Old Doctrine,'' (co-authored
with Richard A. Mann) Akron Law Review Vol. 28 (Summer 1994)
pp. 31-52.
``The Last Best Argument for Eliminating Reliance From Express
Warranties: `Real World' Consumers Don't Read Warranties,'' U.
of So. Carolina Law Review, Vol. 45 (Spring 1994) pp. 429-475.
``Avoiding Misuse of New Information Technologies,'' (co-
authored with Paul Bloom and George Milne) Journal of
Marketing, Vol. 58 (January 1994) pp. 98-110.
``The Legal, Ethical and Social Implications of the `Reasonable
Woman' Standard in Sexual Harassment Cases,'' (co-authored with
Ellen Peirce) Fordham Law Review, Vol. 361, No.4 (March 1993)
pp. 773-827, reprinted in Ethics in the Workplace, E.
Ottensmeyer and G. McCarthy (1996) pp. 211-235.
``Contemporary Ethical Issues in Labor-Management Relations,''
Journal of Business Ethics (co-authored with William Bigoness),
Vol. 11 (1992) pp. 351-360.
``Cooperative Learning Groups in Undergraduate and Graduate
Contexts: Different Strokes for Different Folks,'' Journal of
Legal Studies Education (co-authored with Ed Neal), Vol. 9, No.
3, (Fall l991) pp. 427-435.
``Stalking the Rogue Physician: An Analysis of the Health Care
Quality Improvement Act,'' American Business Law Journal, Vol.
28, No. 4, (1991) pp. 683-741.
``Shaping Up Federal Agencies: A Basic Training Program for
Regulators,'' The University of Virginia Journal of Law &
Politics, Vol. VI, No. 2 (co-authored with Stephen Klitzman &
Richard Mann) (1990) pp. 343-371.
``From `Model Agency' to Basket Case: Can the Consumer Product
Safety Commission Be Redeemed?'' Administrative Law Review,
Vol. 41, (1989) pp. 61-129.
``The 1976 Medical Device Amendments: A Step in the Right
Direction Needs Another Step in the Right Direction,'' Food
Drug Cosmetic Law Journal, Vol. 43, No.3. pages 511-532 (1988).
Revised and updated as ``Legislation Needed to Improve the
Medical Devices Law'' in The Medical Device Industry: Science.
Technology, and Regulation in a Competitive Environment, pp.
531-549 (1990).
``Product Recalls: A Remedy in Need of Repair,'' Case Western
Law Review, Vol. 34, No.4 (co-authored with Teresa M. Schwartz)
(1983-84) pp. 401-464.
``Cajolery or Command: Are Education Campaigns an Adequate
Substitute for Regulation?'' Yale Journal on Regulation, Vol.
1, No. 2 (1984) (co-authored with R. David Pittle) pp. 159-193.
``Commentary on Product Liability: An Interaction of Law and
Technology,'' Duquesne Law Review, Vol. 12 (1974) (co-authored
with R. David Pittle) pp. 487-495.
(b) Professional Publications/Op-Ed Articles:
``Vigilance is Best Answer to Safety in Pools,'' (co-authored
with Congresswoman Debbie Wasserman Schultz) South Florida Sun
Sentinel, May 11, 2014.
``Safety Regulators Don't Add Costs. They Decide Who Pays
Them,'' New York Times (on-line), October 16, 2011.
``Moving Forward on Product Safety,'' Politico (on-line).
August 14, 2011.
``Thrust and Parry: The Art of Tough Negotiating,'' (co-
authored with Ben Rosen and Elliot Silverstein) Training &
Development, Vol. 50, No. 3 (March 1996) 42-48.
``New Leadership at the Consumer Product Safety Commission:
Will It Make A Difference?'' TRIAL, Vol. 30, No. 11 (November
1994) 63-67.
``The CPSC at 20 Is Still Immature,'' TRIAL, Vol. 28, No. 11
(November 1992) pp. 30-34.
``New CPSC Act: A Disappointment,'' TRIAL, Vol. 27, No. 11
(November, 1991) pp. 18-25.
``Manufacturers Blind CPSC to Product Hazards,'' TRIAL, Vol.
26, No. 10 (October, 1990) pp. 20-24.
``Toy Safety: No Kidding Around,'' TRIAL, Vol. 25, No. 11,
pages 44-47 (1989).
``Of Ketchup, Ozone, and Airline Delays: A Regulatory Legacy,''
Legal Times (April 11, 1988) pp. 18-20; reprinted as
``Rethinking Reagan's Deregulation Drive,'' Miami Legal Review
(May 2, 1988) pp. 9-1 0; and reprinted as ``Reagan's
Deregulation Efforts Have Done More Harm Than Good,'' Manhattan
Lawyer, (April 19-25, 1988) pp. 30-31.
``Will CPSC Halt U.S. Export of Hazardous Items? Legal Times
(April16, 1984) pp. 11-13.
``Does CPSC's Past Bode Ill for Future of Regulatory
Negotiations?'' Legal Times (June 20, 1983) (co-authored with
R. David Pittle) pp. 10-11.
(c) Chapters in Books:
``Product Safety: The Consumer Product Safety Commission,'' in
Changing America: Blueprints for the New Administration (co-
authored with R. David Pittle) pp. 540-553 (1993).
``A Framework for Identifying the Legal and Political Risks of
Using New Information Technologies to Support Marketing
Programs,'' (co-authored with Paul N. Bloom & George Milne),
Monograph for Marketing Science Institute, Report No. 92-102,
February 1992, reprinted as ``Identifying the Legal and Ethical
Risks and Costs of Using New Information Technologies To
Support Marketing Programs,'' in The Marketing Information
Revolution, Harvard Business School Press, 1994, pp. 289-305
(1994).
``Psycholegal Aspects of Organizational Behavior: Assessing and
Controlling Risk'' in Handbook of Psychology and Law, eds.
Dorothy K. Kagehiro & William S. Laufer, pp. 523-541 (co-
authored with Alan J. Tomkins & Bart Victor) (l992).
``Product Safety: the Consumer Product Safety Commission'' in
America's Transition: Blueprints for the 1990s, (co-authored
with R. David Pittle) 268-86 (1989).
(d) Book Reviews:
``Innovation, Safety, and Costs: A Delicate Balance,'' Review
of Managing the Medical Arms Race: Innovation and Public Policy
in the Medical Device Industry, (University of California
Press) in Health Affairs, Vol. 12, No. 3 (Fall l993) pp. 271-
273.
Review of The Product Liability Handbook: Prevention, Risk,
Consequence and Forensics of Product Failure, ed. Sam Brown
(Van Nostrand Reinhold 1991), Products Liability Law Journal,
Volume 3, No. 3 (May 1992) pp. 212-218.
Review of R. Mayer, The Consumer Movement: Guardians of the
Marketplace (Twayne 1989) and D. Vogel, Fluctuating Fortunes:
The Political Power of Business (Basic Books 1989), Journal of
Consumer Policy, Volume 14 (1991) pp. 243-248.
(e) Other Publications:
``Time to Strengthen Consumer Protection,'' Christian Science
Monitor (May 8, 1989) (co-authored with R. David Pittle) p. 18.
Lawsuits Without Lawyers, monograph on lawsuits in small claims
courts (1973) (co-authored with Carol Knutson, Larry Slesinger,
and David Worstell) pp. 1-49.
Speeches:
``Recent Developments at the Consumer Product Safety
Commission,'' to Walmart Compliance and Enforcement Officials,
video broadcast from Washington, D.C. to Walmart Officials,
Bentonville, Arkansas (May 12, 2014).
``Recent Developments at the Consumer Product Safety
Commission,'' to various consumer groups, in Washington, D.C.
(April 10, 2014)
``Non-traditional Careers in Law,'' at Career Day, Washington
College of Law, American University, Washington, D.C. (April 1,
2014).
``Pool Safely,'' to National Drowning Prevention Alliance, in
Orlando, Florida (April 1, 2014).
``Recent Developments at the Consumer Product Safety
Commission,'' to Toy Industry Association, in New York, NY
(February 18, 2014).
Recent Developments at the Consumer Product Safety
Commission,'' to Juvenile Product Manufacturers Association, in
Washington, D.C. (February 5, 2014).
``CPSC Challenge to Safety App Manufacturers,'' at White House
Datapalooza Conference, in Washington, D.C. (January 14, 2014).
``Carbon Monoxide Safety,'' to Chicago Firefighters and Members
of Media, Chicago, Illinois (December 19, 2013).
``From Professor to Regulator: Trials and Tribulations of a
CPSC Commissioner,'' DePauw University, Greencastle, IN
(November 5, 2013).
``Product Safety Versus Product Liability,'' to American
Conference Institute Seminar, Chicago, Illinois (June 26,
2013).
``Recent Developments at the Consumer Product Safety
Commission,'' to International Council of Toy Industries,
Washington, D.C. (June 3, 2013).
``Product Liability and its Interaction with Product Safety at
the Consumer Product Safety Commission,'' Louis Brandeis School
of Law, University of Louisville, Louisville, KY (April l5,
2013).
``Recent Developments at the Consumer Product Safety
Commission,'' to Society of Glass and Ceramic decorated
Products,'' Louisville, KY (April 14, 2013).
``How Standards Work at the U.S. Consumer Product Safety
Commission,'' to Workshop on Standards Policy and Practices for
Federal Agencies, sponsored by National Institute ofStru1dards
and Technology, Washington, D.C. (November 8, 2012).
``Voluntary Standards at the U.S. Consumer Product Safety
Commission,'' to the ANSI Caucus of the American National
Standards Institute, Washington, D.C. (October 3, 2012).
``Recent Developments at the U.S. Consumer Product Safety
Commission,'' to Midwest Product Safety Workshop of the
International Consumer Product Safety and Health Organization
(ICPHSO), at the Cook School of Business, St. Louis University,
St. Louis, MO. (August 13, 2012).
``Recent Developments at the U.S. Consumer Product Safety
Commission,'' to the American Apparel and Footwear Association,
New York, NY (July 31, 2012).
``In Commemoration of President Kennedy's Statement of Consumer
Rights,'' to Consumers, International, Washington, D.C. (June
20, 2012).
``Product Liability and Product Safety Issues at the U.S.
Consumer Product Safety Commission,'' to the American
Legislative Exchange Council (ALEC), Charlotte, NC (May 11,
2012).
``Recent Developments at the U.S. Consumer Product Safety
Commission,'' to National Association of Manufacturers,
Washington, D.C. (March, 2012).
``The New CPSC Database,'' to Consumer Advocates Web
Conference, Washington, D.C. (January 11, 2012).
``Product Safety and Older Americans,'' to Association of
Retired Americans, Washington, D.C. (September 7, 2011).
``Polyurethane Foam and Upholstered Furniture Flammability,''
to Polyurethane Foam Manufacturers Association, Baltimore, MD
(May 19, 2011),
``Recent Developments at the U.S. Consumer Product Safety
Commission,'' to Consumer Specialty Products Association,
Washington, D.C. (May 6, 2011).
``Recent Developments at U.S. Consumer Product Safety
Commission,'' to Consumer Federation of America (CFA), (March
18, 2011).
``Recent Developments at U.S. Consumer Product Safety
Commission,'' at Toy Fair, New York, NY (February 15, 2011).
``Meet the U.S. Consumer Product Safety Commission,'' to
general audience, St. Louis University, St. Louis, MO (December
2, 2010).
``The Hard Work of Being a Product Safety Compliance
Official,'' to graduating class receiving Certificate in
Product Safety, Cook School of Business, St. Louis University,
St. Louis, MO. (December 2, 2010).
``The CPSC and Retailers,'' to Retail Law Conference,
Washington, DC (November 9, 2010).
``How the Consumer Product Safety Commission Operates,'' to
Consumers Union Activist Summit, Washington, D.C. (June 11,
2010).
``Recent Developments at the U.S. Consumer Product Safety
Commission,'' to the American Apparel and Footwear Association,
New York, NY (June 16, 2010).
``Recent Developments at the U.S. Consumer Product Safety
Commission,'' to the Toy Industry of America, Washington, D.C.
(May 2010).
``How the CPSC Works with State and Local Officials,'' to State
Designees Liaison with CPSC (February 17, 2010).
``Recent Developments at the U.S. Consumer Product Safety
Commission,'' to the American Apparel and Footwear Association,
New York, NY (October 29, 2009).
Presentations:
``Business Ethics and Product Safety,'' to International
Consumer Product Safety and Health Organization (ICPHSO) (March
2, 2012).
``Consumer Product Safety Commission: Reflections from the
Obama Transition Team'' to conference of International Consumer
Product Health and Safety Officials, Orlando, Florida (February
25, 2009).
``How the Consumer Product Safety Commission Works with
Underwriters Laboratories,'' to Executive Education Class, Yale
School of Business (November 12, 2011).
``Protecting Consumers and Business in a Politicized World,''
to UNC Kenan-Flagler DC Alumni Club (November 3, 2011).
``The Great Debt Ceiling Debate: Lessons for Negotiators,'' to
faculty and students, Wharton Business School, University of
Pennsylvania (November 1, 2011).
``Saving Our Seniors: An Urgent Product Safety Message,'' to
Alliance for Retired Americans (September 7, 2011).
``Update on the Consumer Product Safety Commission,'' to the
Polyurethane Foam Association Semi-Annual Meeting (May 19,
2011).
``What the Consumer Product Safety Commission Does and How it
Does it,'' to Business and Government Relations Class, UNC
Kenan-Flagler Business School, March 24, 2011).
``A Progress Report on the Consumer Product Safety
Commission,'' to the Consumer Assembly of the Consumer
Federation of America (March 18, 2011).
``How to Negotiate with the Consumer Product Safety
Commission,'' to International Consumer Product Health and
Safety Organization (ICPHSO) (February 24, 2011).
``Remarks to Graduates'' to Certificate in Product Safety
Management Program, St. Louis University (December 2, 2010).
``Regulating Product Safety: Future Challenges,'' to
university-wide audience at Cook School of Business, St. Louis
University (December 2, 2010).
``Implementing the Consumer Product Safety Improvement Act,''
to American Apparel and Footwear Association (June 16, 2010).
``Consumer Activism and Product Safety,'' to Consumers Union
Activist Summit (June 11, 2010).
``CPSC, the Consumer Product Safety Improvement Act and Toy
Safety,'' to board of directors, Toy Industry of America (May
4, 2010).
``How CPSC is Implementing the Consumer Product Safety
Improvement Act,'' to Annual Meeting, Association of Home
Appliance Manufacturers (April 26, 2010).
``Current Developments Regarding Toy Safety,'' Keynote Address
at International Toy Fair, New York, NY (February 15, 2011).
``Professor Adler Becomes Commissioner Adler,'' given as the
Donald F. Clifford, Jr. Distinguished Lecture to Law School,
University of North Carolina (February 5, 2010).
``The Ethics of Wal-Mart,'' to UNC Humanities Program (June 15,
2006).
``A Critical Look at The Corporation,'' by Joel Bakan, to Parr
Center for Ethics (April 26, 2006).
``Negotiation Issues and Gender,'' to Carolina Women In
Business (CWIB) (February 22, 2006).
``Ethical Issues of States Offering Tax and Other Incentives to
Attract Business,'' to North Carolina Institute for
Constitutional Law (December 8, 2005).
``Negotiation in the U.S. and Internationally,'' to Humphrey
Fellows (November 16, 2006) ``Enron and Ethics,'' to Kenan-
Flagler faculty, staff and students (February 20, 2002).
``Business Ethics for Lawyers, at Annual Legal Learning
Festival sponsored by UNC Law School, Friday Center (February
9, 2002).
``Pedagogical Skills in Business Ethics,'' to ITESM Faculty,
Monterrey, Mexico (October 27, 2000)
``Negotiation Skills,'' to North Carolina Association of Black
Lawyers, Wilmington, N.C. (June 23, 2000)
``Ethics and Leadership,'' to UNC-CH Graduate Student
Leadership Course (March 28, 2000).
``Ethics and Leadership,'' to North Carolina Leadership Forum
(February 3, 2000). ``Business Ethics for Lawyers,'' at Annual
Learning Festival sponsored by UNC Law School, Friday Center
(February 12, 1999).
``One Million ATV Injuries Later . . . Will the End of the
Consent Decree Bring More Consumer Litigation? The Government
Perspective'' Nationwide Teleconference by Telephone, December
2 and December 4, 1998.
``A Strategic Plan for ICPHSO,'' at conference of International
Consumer Product Health and Safety Officials, Orlando, Florida
(February 26-27, 1998).
``The Future of Product Safety and Product Liability'', at
conference of International Consumer Product Health and Safety
Officials, Key West, Florida (February 28, 1997).
``Product Safety Versus Product Liability'' at conference of
International Consumer of Consumer Product Health and Safety
Officials (February 29, 1996).
``Business Ethics,'' at Festifall Conference by UNC Law School
(February 2, 1996).
``Medical Devices and Preemption: The Courts Run Amok,'' at
Academy of Legal Studies in Business, Dallas Texas (August 12,
1994) (co-authored with Richard Mann).
``Good Faith: Let's Be Objective About It,'' presented at
Academy of Legal Studies in Business, Boulder, CO. (August 23,
1993) (jointly presented with Richard Mann).
``Forum on the `Litigation Explosion,' '' presented at joint
session of Wake Forest Law School and Business School, Winston-
Salem, N.C. (September 16, 1992).
``The Legal, Ethical and Social Implications of 'The Reasonable
Woman' Standard in Sexual Harassment Cases,'' presented at
Academy of Legal Studies in Business, Charleston, S.C. (August
21, 1992) (jointly presented with Ellen Peirce).
``Remarks on CPSC Long-Range Plan,'' testimony before Chairman
and Commissioners of the U.S. Consumer Product Safety
Commission, Washington, D.C. (June 18, 1992).
``Regulation, Deregulation, and Reregulation,'' presented at
American Business Law Association Conference (August 17, 1990),
Toronto, Canada (jointly presented with Richard A. Mann).
``The Role of Federal Safety Standards in Product Liability
Litigation,'' presented at Conference on ``Avoiding Product
Liability Suits,'' Union College (July 12, 1990).
``Stalking the Rogue Physician: An Analysis of the Health Care
Quality Improvement Act of 1986 and its Implementation,''
presented at American Business Law Association Conference
(Summer, 1989).
``Challenges in Teaching Business Ethics to First Year MBA
candidates,'' presented at American Business Law Association
Conference (Summer, 1989)
``Needed: A College for Regulators,'' presented at Southeastern
Regional Business Law Association Conference (Fall, 1988)
``Federal Deregulation and State Reregulation,'' presented to
the American Bar Association Committees on Consumer Product
Regulation and State Administrative Law of the Administrative
Law Section and the Section of Urban, State and Local
Government Law (August 11, 1987).
``Medical Malpractice: Current Developments,'' presented to the
Graduate School of Business Administration, Boston University
(November, 1987)
``Congressional Perspectives on Pending Medical Device
Legislation,'' presented to the National Electrical
Manufacturers Association (September 19, 1987).
Editor or Reviewer
Elected to Editorial Board, Food and Drug Law Journal, 1999
Staff Editor, A merican Business Law Journal, 1990-1993
Reviewer, American Business Law Journal, 1989-90
Teaching
Undergraduate: Introduction to Business Law, BA 140; Commercial Paper
and Sales, BA 141
MBA: Negotiation, BA 253; Ethical Aspects of Management, BA 293;
Business-Government Relations, BA 299; Strategy Course, BA 295
Management Education: Taught numerous Executive Education courses with
evaluations that generally range above 4.70 out of 5.0; Co-developed
and ran Leadership Program for Water Industry
Course Development
Developed Negotiation Course, 1995
Coordinator, MBA Business Ethics Course, 1991-2000
Helped design and develop Business Ethics course for MBA and Executive
MBA Programs, 1988-90
Designed and taught Business-Government Relations MBA course, 1990-2004
Developed regulatory materials for Strategy Course, 1994
Professional Activities
Member of North Carolina Bar, 1989-present
Member of Washington, D.C. Bar, 1976-present (inactive)
Member of Pennsylvania Bar, 1969-present (inactive)
Academy of Legal Studies in Business, 1987-2009
Member, Business Ethics Section of ALSB, 1989-2009
University and Business School Service
President, Academy of Distinguished Teaching Scholars, 2003-2009
Chair, Committee on Student Conduct, 2006-2009
Chair, Faculty Advisory Committee, 2007-2009
Member, Board of Advisors, Parr Ethics Center, 2006-2009
Member, Chancellor's Committee on Reaccreditation for SACS, 2004-2006
Chair, KFBS Faculty Advisory Committee (FAC), 2006
Member, Faculty Advisory Committee, 2004
Member, Promotion and Tenure Committee, 2004-2009
Member, MAC Advisory Committee, 2002-2005
Chair, Committee to Review Gene Nichols for Reappointment as Dean, UNC
Law School, 2003
Chair, Committee on Student Conduct, 2000-2001
Member, Committee to Review Risa Palm for reappointment as Dean,
College of Arts and Science, 2001
Member, Facilities Use Review Group, 2000
Member, Executive Committee of faculty Council, 1999
Member, UNC Task force on Student Evaluation of Teaching, 1999
Associate Dean, Undergraduate Program, 1994-1998
Chair, Kenan-Flagler Committee on Diversity, 1993, 1994, 1995 and 1997
Chair, UNC Committee on Student Conduct, 1993-94
Member, Dean Search Committee, 1997
Member, Tanner Teaching Awards, Committee, 1997
Member, Chancellor's Task Force on Intellectual Climate at UNC, 1996-
1997
Member, Kenan-Flagler Distance Learning Committee, 1996
Member, Kenan-Flagler Reorganization Task Force, 1994
Member and Chair of numerous UNC University Hearings Boards, 1987-
present
Member, Board of Directors of Student Legal Services, 1990-2008
Coordinator, Diversity Sessions, Orientation Week for Incoming MBA
Students, 1989-1993
National and Community Service
Member, Board of Directors, Consumers Union, 1989-2009.
Member, NC Chief Justice's Commission on Professionalism, 2007-2008
Board of Directors, International Consumer Product Health and Safety
Organization, 1997
Evaluator, BBA Program, University of Iowa, 1995
Member, Committee of the Institute of Medicine, National Academy of
Science to Study FDA Advisory Committees, 1991-93
Member, Committee of the Institute of Medicine, National Academy of
Science to Study the Operations of the Nuclear Regulatory Commission,
1994-1995
Chair, Committee to Review the Operations of the North Carolina
Wildlife Federation, I 992-93
Personal
Born September 27, 1944
Married, one child
The Chairman. Thank you, Mr. Adler, very much.
A very, very good group.
Senator Blumenthal, do you want to make a little comment?
STATEMENT OF HON. RICHARD BLUMENTHAL,
U.S. SENATOR FROM CONNECTICUT
Senator Blumenthal. A very little comment, just to thank
each of you for your willingness to serve, your public service
in the past, and I look forward to working with you.
These positions are critically important to the actual nuts
and bolts of what your agencies do. We often see the heads of
agencies, but the health and safety of our people is dependent
on the work that you and your staffs do every day. So thank you
for your service, and I look forward to working with you on the
very timely issues that I am sure will be presented.
Thank you, Mr. Chairman. Thank you for holding this hearing
and to our excellent staff for once again preparing us so well.
Thank you.
The Chairman. Yes. That is right. It was terrific that you
talked about your staff, Mr. Adler, and I don't do that enough.
We don't do that. I can't see them. They are behind me.
[Laughter.]
The Chairman. Anyway, let us get to Mr. Mendez and Mr.
Rogoff. You know this is a very high-stakes game we are
entering into now. This question, are we going to patch it over
for a year on the Highway Trust Fund, or are we going to patch
it over for a longer period of time?
I have a couple of questions on that, but the first thing I
would like to get from each of you is what actually happens
that is concerning as we approach a closedown reality?
Mr. Mendez. Let me begin with what I see, and as I
mentioned in my opening remarks, I actually used to run a State
DOT. So we can have a Federal perspective and maybe a State
perspective as well.
I think our bigger concern, of course, is that as we are
approaching in the next couple of months, the Highway Trust
Fund is going to become insolvent. We have heard many times
Secretary Foxx mention that we will be bouncing checks.
What is, in fact, occurring--what occurs that the way we
make our payments to the states and the recipients, we would
then have to go into a different cash management approach that
we are working on internally. Not ready yet to share that with
people so we can kind of work our way through the details. But
we, in essence, would slow down our payments to the recipients
of Federal funds.
That, of course, will have ripple effect on various
businesses. As you mentioned in your opening comments, impacts
contractors, impacts to the recipients, of course, and State
DOTs as well.
Mr. Rogoff. I think what I would add to that, Mr. Chairman,
and this is a source of great concern to us, is when you get
into this period of uncertainty, especially if you get into a
period of recurring uncertainty, local planners, local elected
officials lose their vision, their willingness to tackle the
big projects because they don't know that the cash is going to
be there at the end.
So you actually potentially see a change in the mix of
projects. They take on smaller repaving projects, and the
bridge replacement that has been deferred time and time again
gets deferred again, to the detriment of the system.
The Chairman. But the--for example, if the Panama Canal is
now widened by 100 percent, and the effect to inland and
coastal ports, therefore, is absolutely phenomenally important.
So what you are talking about is whether people have--they are
faced with a short-term fix, pothole mentality, or a large
picture mentality. And that is where you run into the problem,
which is very difficult in this Congress, because people want
to see progress on infrastructure.
Of course, when I think about infrastructure, I just don't
think about cement and steel. I think about the National
Institutes of Health and the National Science Foundation and
all the rest of it. But for this, we are concentrating on one
part.
That, on the one hand, people who are contractors, that is
the work that they do. So that you could say, well, the people
at the State level may have narrower visions.
But if you have, as Senator Klobuchar experienced, an
enormous bridge collapse, and if you have as we have in West
Virginia, where 96 percent of the land is not flat, and we are
having this oil--I mean, this natural gas boom, and 200,000-
pound trucks are just absolutely streaming all day long, every
day, across bridges that have maximum weight limits of 75,000
pounds. And natural gas doesn't necessarily locate in highly
populated, well-serviced areas. A lot of it is very rural.
And so, this is the conflict. I mean, are we going to--are
we going to do a patch, which is, after all, something, right?
It is something. Fixing a pothole is something.
I remember when that was my biggest worry about when I was
Governor, whether you were a pothole Governor or you weren't
made the difference about whether you could get reelected or
not, rather than building eight bridges across the Ohio River,
which I did. Unfortunately, I had to pay 80 percent of it, and
Ohio only had to pay 20 percent of that. You--Mr. Andrews, that
may be something you want to fix, even out just a bit.
But that tension about not wanting to raise the revenues,
and yet if you don't raise the revenues, you condemn yourself
to a minimal future. Please, both of you talk about that.
Mr. Mendez. Yes. Mr. Chairman, I think you are absolutely
right.
By not being able to plan and look toward the future, you,
in fact, limit your options, your ability to actually improve
the economy and create jobs. But in addition to that, I think
what we need to be thinking about is that people on the ground,
you know, the planners and those of us who have to actually run
programs, our ability gets very limited to look beyond, you
know, the limited amount of time that potentially you are
looking for. So, as my colleague was mentioning, our long-term
planning capability gets limited by that.
And so, you are stuck in an area where the industry itself,
I know from my experience, where contractors cannot invest in
equipment. They will slow down their hiring. They have to be
making payroll and making long-term investment decisions in
their businesses, and they are limited by that.
The Chairman. Thank you.
Mr. Rogoff?
Mr. Rogoff. I would just add Victor was correct to point
out that this isn't just about the immediate contractors. This
has a trickle-down effect on suppliers throughout the country,
down to every sand and gravel pit that we have in the United
States.
Importantly, I was concerned, frankly, sir, by your opening
statement in which you said we hope we will have some kind of
fix by the August recess. We must have a fix by the August
recess, at least a short-term one, because the cash management
procedures will have to go into effect in August, based on our
current projections, and these projections are volatile.
Importantly, I think on the revenue side, it is hard not to
notice the remarkable overlap between some of the senior
members on this committee and on the Finance Committee. So the
fact that we are discussing it here we hope will trickle over
to your finance discussions.
I think the time has largely passed where we can patch this
thing together through a variety of small and disparate tax
measures. In order to just maintain current funding on a multi-
year basis, we are going to have to raise real revenue.
The President has a proposal to find $150 billion in
additional revenue to add to the revenues that the Trust Fund
will get on a 4-year basis. There are other proposals out
there. But clearly, new revenue from some source is in order to
get a multi-year bill. A multi-year bill is what we need for
the certainty that the system needs.
And here again, if we are going to go the effort to raise
real revenue, we feel strongly within the administration that
we should get a growth pattern built into that, so we can
really actually improve the condition of the infrastructure and
not tread water for the long term.
The Chairman. My time is up.
It is the juxtaposition of we are certainly going to have a
short-term patch to get us through the August crisis. But then
the question is, are we going to go for a bigger, post
election, lame duck solution? And we can do that. We can do
that. The election will be over.
Elections are all-consuming right now. So I hope we could
do that.
Senator Thune?
Senator Thune. Well, thank you, Mr. Chairman.
I would like to, Mr. Andrews, just ask you about the NTIA's
proposed transition of the IANA functions to the multi-
stakeholder community. And I think that is something that your
department has testified about before the House of
Representatives, and I am wondering if you could discuss
specifically what some of the valid concerns are that have been
raised regarding the proposed transition, and if confirmed,
what role you would have in overseeing that transition?
Mr. Andrews. Sure. So, Senator, you raise an issue that we
see as very important, and I think starting from the premise of
what are we trying to do here. I think we all agree on the
importance of protecting a secure--keeping the Internet open
and secure as an engine for growth and innovation. I think we
also share the same concern about Internet governance in the
multi-stakeholder process being very important.
The third concern I think we all share is keeping the
Internet--there are a number of authoritarian governments that
would like to change the Internet governance model. And so, one
of the reasons we have sought--the privatization tool of the
IANA function was first proposed actually in 1998, and it has
been the policy of the United States Government over the course
of time to have a multi-stakeholder run process.
So, if confirmed, I will definitely be involved in this and
definitely want to make sure that certain protections are met
in order that if we do go through with this transition and as
we move it forward, that we keep the open and secure nature of
the Internet, that we protect the domain name system. We make
sure the stakeholders are protected.
And I think one of the things that is important to note in
this, when NTIA made this proposal, groups as diverse as the
Chamber of Commerce and the Internet users, the companies like
Google, Microsoft, Facebook, all came out in support of this
because I think they recognize this is important to be able to
protect the multi-stakeholder model, and particularly from the
countries that would like to gain greater control or move
control of Internet governance to intergovernmental agencies
like the U.N. or the ITU.
And so, it is important for we as a country to make sure
that the misimpression that is out there that the U.S. controls
the Internet is not the case. So we take the concerns of
Congress very seriously, and we will continue to keep those in
mind as we move this discussion forward.
Senator Thune. And I think that the main concern is that
there is some structure that would lead to an outcome that
would not entail the U.N. or the ITU or some government that
would want to coopt this thing. And so, it is kind of a--it is
very--I guess I would say sort of murky out there in terms of
how this might end, and I think that is the concern that has
been raised.
And so, I hope you will stay in close contact with us as
that process moves forward, and I think there have even been
some attempts on the House side to prevent that from moving
forward. So you can understand and realize there are some very
valid concerns out there.
Let me follow up on with Mr. Mendez and Mr. Rogoff
something that the Chairman talked about, and that is the
highway bill reauthorization. There is some, I think,
resistance on both sides to the mechanism that has been
proposed by the administration for funding. There are other
ideas that are out there. What we end up doing in the near term
probably, regrettably, will be a piecemeal, cobbled together
some things that will help pay for a short-term extension, but
it doesn't solve the long-term problem.
I have asked this question of your boss in the past, about
what other types of things that you might support in terms of
financing mechanisms to reauthorize the Highway Trust Fund, and
so I would pose that question to you as well. You have told us
we need to fix it. How willing is the Administration to engage
in getting out behind the types of solutions that it would take
to get that done?
Mr. Rogoff. I will start off, sir.
Secretary Foxx, in a number of his public statements, has
made very clear that while the Administration stands firmly
behind our proposal--and we have identified three potential
offsets as part of pro-growth business tax reform to make it
happen--that we are open to discussing and hearing and
conversing on alternatives that Congress may want to put
forward. I believe it was just yesterday that he made clear
that nothing is off the table, and that is our position going
forward. We stand behind our proposal, but our ears are open.
Senator Thune. OK. Well, that is exactly what I was hoping
to hear. It would be nice to have the Administration weigh in,
too. I mean, I understand the idea of working with the
Congress. We certainly welcome that.
My experience around here is that in order for big things
to happen, you have got to have not only the legislative
branch, where you have got 435 House members and 100 Senators
who all have different ideas about how to resolve these things,
or on the Finance Committee, 21 or 22 of us, that Presidential
leadership is really essential to do big things. And so, I know
you have got the one proposal out there. We appreciate you are
at least leading forward with that.
But like I said, my impression is from some of the
discussions that we have had, that there are--there is that
there is resistance to that, objections that are not just
confined to the Republican side of the aisle. And so, to the
degree that the Administration would like to engage further and
weigh in behind specific proposals, I think we would certainly
welcome and appreciate that kind of leadership.
I have got a question, Mr. Chairman, I can submit for the
record, for Mr. Adler.
The Chairman. Go ahead.
Senator Thune. Well, I don't want to get other people who
want to ask questions, but let me just quickly, if I might? Mr.
Adler, we all want to make our products on the market safe,
want to ensure that we do that in a way that doesn't impose an
undue regulatory burden on businesses that are trying to
recover in this economy.
When Congress passed Public Law 112-28, we were especially
concerned about the significant costs of third-party testing,
and Congress, therefore, directed the agency to look for and to
implement ways to reduce those costs and to report back to
Congress if it needed additional authorities. And I am
concerned the agency's efforts to date have been minimal in
that regard and treated as a lower priority, I think, as was
evidenced by the vote last month not to devote additional staff
resources to that effort, even when those resources were
apparently available.
So I guess my question is understanding that the agency's
staff and outside stakeholders have identified opportunities to
reduce those testing burdens, but none of those have been
implemented, how do you see this playing out? Do you hold the
view that the agency shouldn't act to reduce some of those
burdens?
Mr. Adler. Senator, thank you so much for the question, and
also thank you for signaling that you were going to ask me the
question. It allowed me to think through the answer, and I also
want to thank you for the opportunity to sit down with your
staff.
And you are quite correct in describing what happened in
112-28. 112-28 didn't just direct us to do burden reduction.
That would have been a much simpler mandate. It said burden
reduction with respect to third-party testing, consistent with
ensuring compliance with existing CPSC rules and regulations.
And that is a very challenging task ahead for the Commission.
I honestly believe we have dedicated the necessary
resources. It is not an easy matter to come up with ways to
reduce third-party testing, which have lots and lots of fixed
costs.
We have had a lot of dialogue with our stakeholders, our
industry stakeholders, especially small business, and they have
expressed consistently the desire that we expand on one
particular approach to addressing the burdens, and that is
through a process that we call determinations. And the delight
of the determination is if you can make a determination that a
product or a product component will never flunk any of the CPSC
rules and regulations, you can exempt them completely from
third-party testing.
We did that back in August 2009, and we had a forum this
past April, April 3, in which we had a lot of industry
stakeholders present arguments and data in support of our
expanding our determinations, and I would love to say that it
was an easy scientific judgment.
In point of fact, one of the most exciting suggestions that
was made was to address phthalates in consumer products,
children's products, by looking to see which were the most
rigid products because phthalates are plasticizers. So we took
that suggestion, our staff tested it, and unfortunately, the
suggestion that was made to us turned out not to exclude
phthalates.
So it is a very, very challenging scientific inquiry, but I
just want to assure you that I view it as extremely important,
that we are working on it as hard as we can. In fact, I put in
an amendment during the discussion that you referenced to add
as a project addressing whether untreated wood has heavy metals
that are banned in ASTM F963.
So let me just assure you that it is a project that I think
is very, very important.
Senator Thune. Thank you.
Thank you, Mr. Chairman.
The Chairman. Thank you, Senator Thune.
Senator Klobuchar?
Senator Klobuchar. Well, thank you very much, Mr. Chairman.
I was thinking as you talked about potholes that my dad is
retired, but he--done a bunch of books, and one of his books
was entitled, a collection of his columns, ``Eight Miles
Without A Pothole Is the Closest Thing to Heaven I've Ever
Seen.'' So there you go.
I wanted to start out with some road questions. Actually, I
was just last week on Highway 14 in southern Minnesota. There
has been some Federal money that has gone into that, but we
literally have seen 125 people die in the last 20 years on this
road, and I just wanted to call it to your attention as we seek
further funding to expand that to four lanes. We are nearly--I
think nearly half done with it, but there is a lot of work to
be done there.
Highway 169 in northern Minnesota, the state is working
with FHWA to prepare a draft EIS statement with different
alternatives, and Mr. Mendez, I am hoping that you are aware of
that and that we can get that moving and get through the red
tape on that project.
Mr. Mendez. Yes, Senator.
We have an update on that. We are working on an
environmental assessment, and we do plan--I believe the target
is January, February of next year. So----
Senator Klobuchar. OK.
Mr. Mendez.--it is moving as fast as we can.
Senator Klobuchar. All right. Thank you very much.
And you and I discussed, Mr. Rogoff, Highway 10 in Anoka,
Minnesota, sort of near where Lake Wobegon is, or may be. And
unlike Lake Wobegon, this corridor of this highway has major
safety congestion and commuter mobility issues.
If I could still do earmarks, I would put money in a number
of these projects I have just mentioned. I can't. So I am
asking for your help in trying to focus some resources on these
very difficult projects.
I wanted to move on to the Norwegian Airlines issue. In
March--either of you can answer this--38 Senators, including
myself, signed a letter, it was bipartisan, to the Department
of Transportation regarding Norwegian Air International's
pending application for an exemption and foreign air carrier
permit. There have been a number of very serious concerns
raised about this, with where this airline--what this airline
really is, about labor practices, and about really
competitiveness for our U.S.-based carriers.
Are you aware of the letter and the concerns raised in it,
and to your knowledge, has DOT done a U.S. jobs impact analysis
on NAI's business model?
Mr. Mendez. Senator, certainly we are aware of all the
issues related to the Norwegian Airline application. Right now,
it is currently under review within the U.S. DOT.
It is going through this administrative process, and so we
are limited in what we can say publicly. But we certainly are
very aware of--it is a very complex issue, as you might
imagine, and a lot of interest, but we are on top of that.
Senator Klobuchar. OK. It is just that it looked really bad
to me.
Last, Mr. Mendez--this is kind of a rapid round--I worked
hard with several of my colleagues, again bipartisan, to ensure
the Recreational Trails Program was preserved in MAP-21. And
this time I believe it is in the original bill so we won't have
to do it as an amendment, and I hope you understand the
importance of this trail program.
Mr. Mendez. Yes, we do, and it is still as a set-aside,
with the option for states to opt out.
Senator Klobuchar. Exactly. I understand that.
OK. Mr. Andrews, I, first of all, want to make sure you
understand the priority of the Patent Office--of PTO, that it
has the resources. And given all the great work that the
Chairman mentioned that Secretary Pritzker is doing with
business, which I have just always believed this office could
not only do the tasks that it has, but also that it could
become an advocate for business, and I hope you will join us in
advocating for resources.
But I also wanted to focus on one issue that I have talked
to the Secretary about, and that is export control reform. I
just wanted an update on the progress. I know that you are
working hard to streamline the process with other agencies,
with only a few more lists left to review.
I applaud your diligence. We have been trying to get this
done for a while, and do you have any updated timelines on the
reforms for the export control list? So those of us that work
in this area, and as a member of the President's Export
Council, we know that with some cutbacks in spending in defense
that this is really important to companies involved in this
area to be able to export goods that are not truly a security
risk.
Mr. Andrews. Yes, and this is a high priority for the
Secretary and the Department, and our goal is to have by the
end of the year, working with the State Department, have
reviewed all of the categories and be through all of the lists.
Senator Klobuchar. Very good.
Mr. Jadotte? Say your name for me again.
Mr. Jadotte. Jadotte.
Senator Klobuchar. Jadotte. OK, I got it. Jadotte. I have a
harder name, so there you go.
I know you are collecting a lot of information, and I just
wanted to make you aware I do a lot in the tourism area, that
making sure that we keep the resources of the Survey of
International Aviation Travelers, as we are looking to bring
more and more foreign tourism business in. We have seen a big
increase, and it is just huge for our economy. Every foreign
tourist spends an average of $5,000, and we are really excited.
Senator Blunt and I have done a lot of work in this area. I
just wanted to make sure you keep up those resources and
studies.
Mr. Jadotte. Absolutely, Senator.
Senator Klobuchar. OK, very good.
And last, Mr. Adler, thank you for bringing up the lead in
toys and that work. I think it has been really important, and
we have made some headway.
Just two quick questions. One, you talked about industries
and the work, that there always has to be some distance, but
the really positive work going on with industry standards. And
I hope you will consider that with the recreational off highway
vehicle group that has been working cooperatively with the
agency on some of their standards.
Mr. Adler. I will, indeed. And we have been working
cooperatively with them, and we very much look forward to
continuing that.
Senator Klobuchar. Yes, as you know, we have two of the
only American manufacturers in Minnesota, with Polaris and
Arctic Cat.
Mr. Adler. I am well aware.
Senator Klobuchar. OK, good.
The last thing, carbon monoxide. This is a bill that I have
introduced and has been kicking around for a while that
protects against carbon monoxide poisoning by helping states
and local governments implement programs to raise awareness of
proper CO alarm installation. And I have been slightly
frustrated about getting it through the Senate, and I was just
wondering if you are committed to work with me on this issue.
Mr. Adler. We are, indeed----
Senator Klobuchar. We have seen several deaths over the
winter, as you know. Many deaths across the country.
Mr. Adler. Yes, and we are aware that CO remains a very
serious problem to the American public. Something on the order
of 160 CO deaths every year just from the products under our
jurisdiction, mainly portable gas generators and heating
systems.
Senator Klobuchar. Thank you very much, Mr. Adler, and
thank you to all of you.
And one last thank you to Mr. Rogoff. When that bridge
collapsed that you brought up, Mr. Chairman, the next day, Mr.
Rogoff was on a plane with me and Senator Coleman and others,
flying out there, and that bridge got built within a year.
A huge eight-lane highway fell down in the middle of a
summer day, and we said that day that just shouldn't happen in
the middle of America, and it did. And it got replaced, thanks
to your work and many others.
So, thank you.
Mr. Chairman. They are probably just scared of you.
[Laughter.]
Senator Klobuchar. I have like 20 more rapid round
questions I could do, Mr. Chairman, if you like. I won't do
that, though. All right.
Mr. Chairman. Mr. Andrews, one of the things, obviously, I
feel best about coming out of the Commerce Committee is
FirstNet, and it is an amazing process because there probably
aren't more than 0.25 percent of Americans who have any idea
what it is, what it will do, why it is necessary. But we
understand it very thoroughly.
And I remember at its inception, when it was first
introduced, there was kind of a waggle of groups here and
there, and then all of a sudden, everybody joined together. And
then we had the huge thing, and the Vice President presided
over. I have never seen so many firefighters and police and
EMTs and so many colorful uniforms packed in one room.
And then things began, you know, as the excitement got
over, then you wondered, well, is NTIA cooperating fully in
this? Who wants to be in charge? We are an independent group,
FirstNet. The NTIA isn't. And so, is there a potential for any
conflict on the course?
I stipulate that only because it is probably a $15 billion
to $20 billion project, maybe more than $20 billion to do the
entire country. We were able to plan for $7 billion, and I
think we are going to be able to get that $7 billion through
wireless and others.
But that is all built on the perception that as we do it
for certain parts of the country, that other parts that are not
seeing it happen in their part will get very mad, and their
first responders will get very mad, and so it will continue to
go up. That is not a certain prospect, but it is the one that
we choose, and I think it is one that will work.
If confirmed, which you will be, I just want you to work to
give FirstNet the total flexibility that it needs, run by a
very efficient man, Sam Ginn, to carry out this mission and
design and deploy a nationwide network. It is an easy
statement. It is a big task.
Mr. Andrews. Absolutely, Senator.
I will commit to you we will work very closely with
FirstNet to help make them successful.
The Chairman. I now apologize to Senator Blumenthal, who
has the floor.
Senator Blumenthal. Thank you, Mr. Chairman.
The Chairman. And you can use all of my next three
questions' time.
Senator Blumenthal. Thank you, Mr. Chairman.
I have a few questions of Mr. Rogoff and Mr. Mendez. The
Chairman and others here have very aptly and powerfully
described the aging infrastructure, the decaying roads,
bridges, railroad tracks, and other features of our rail
transportation system that we face. The electrical systems
alone are outdated and have caused very significant service
disruptions on the railroads in the Northeast Corridor, which
is the busiest in the Nation, and have stranded commuters and
snarled traffic most recently last Friday on Metro-North and
Amtrak.
The bridge that caused, on two occasions within the last 2
weeks, that traffic to be snarled and commuters to be stranded
is the Norwalk Walk River Bridge, which literally was built in
the second term of President Grover Cleveland's administration.
It is 118 years old, and its age is not atypical of bridges and
other structures in that Northeast Corridor.
I have asked, along with our entire delegation, for
disaster relief funds appropriated under Sandy, as a result of
Sandy, to be allocated to that bridge, to the State of
Connecticut, our Connecticut Department of Transportation. I
know, Mr. Rogoff, you are very familiar with it because you
served as Administrator of the Federal Transit Administration
before becoming the designated Under Secretary of Policy.
The Connecticut Department of Transportation recently
submitted a $603 million request for Sandy funds, including
$349 million in Federal funds, to cover 75 percent of the cost.
Will you commit that you will expedite that application so that
the state can replace that bridge as soon as possible?
Which is to the benefit not only of Connecticut and the
Northeast, but the entire national economy because it is the
busiest railroad. It carries freight, as well as passengers,
and this funding is vital to replace that bridge.
Mr. Rogoff. Senator Blumenthal, as you have pointed out, it
has been a horrendous year for Metro-North passengers, and we
are working diligently with Metro-North, not only to improve
its safety, but taking a hard look at these infrastructure
issues.
You are very right that the Walk Bridge, which is so
critical to literally hundreds of thousands of passengers on a
daily basis, it is just actually one of eight such bridges up
and down the Northeast Corridor of similar age. The youngest
one is 95 years old.
So, yes, you have our commitment to give the application
every consideration. FTA is currently evaluating all of the
Sandy relief grants as we speak. We are in touch with ConnDOT
as well as Metro-North about their priorities.
I think importantly, forgive me for making a pitch for our
legislation, but one of the biggest areas of growth in the GROW
AMERICA Act is, in fact, in this area of passenger rail
investment. Not just for new higher-speed passenger rail across
the country, but for the necessary reinvestment in the
Northeast Corridor, which is an extremely highly successful and
absolutely elemental corridor that we have in the Northeast.
Senator Blumenthal. And I support the $9.5 billion request
made for the passenger rail service program. You have rightly
pointed out that the President would rebrand or rename the
Highway Trust Fund as the Transportation Trust Fund. I strongly
endorse that idea.
I am going to take your response as a yes, that you will
expedite consideration.
Mr. Rogoff. I don't want to--I don't want to put out vague
answers here, sir.
We are moving aggressively on all of the applications. I
don't know that we can move the Walk Bridge ahead of all the
others for consideration, but I am happy to converse with you
on maybe we can do tranches at one time. There are competitive
issues because this is an open, competitive discretionary grant
program.
Senator Blumenthal. Well, I am still going to take that as
a yes.
[Laughter.]
Mr. Rogoff. Take't as thou list, sir.
Senator Blumenthal. Let me ask again, Mr. Mendez--and Mr.
Rogoff, you are free to respond as well.
Mr. Rogoff very correctly stated that it has been a
horrendous year for Metro-North travelers. The problems that
are reflected in the service disruptions, as well as the
tragedies that have resulted from lack of safety and
reliability, have built over a period of many years. In those
years, there were violations of safety regulations and rules
bound by the FRA, and yet the penalties were miniscule, in
fact, barely a slap on the wrist.
I have proposed increasing the penalties or in some way
restructuring them, but also stronger oversight and scrutiny
generally by the FRA, Federal Railway Administration, to assure
that the rules are more vigorously enforced and that penalties
are a significant deterrent to railroads--not just Metro-North,
but all of them--in complying with those safety and reliability
regulations.
Can we have your commitment that you will support that
effort?
Mr. Mendez. Absolutely. I think what you mentioned on
Metro-North, I believe in the last year and a half, we have had
about four very serious incidents, and that is why FRA, under
Administrator Szabo, they implemented their deep dive to look
and see what is really happening. And that is really the kind
of thing that we need to be doing as regulators, going in and
taking a look and understanding what is happening, either
within one certain operator, if you will, or maybe it is on a
national basis if there are national issues.
But certainly, you have our support to continue improving
on safety. Safety is our highest priority.
Mr. Blumenthal. My time has expired, but I thank all of you
for your willingness to serve, again. And thank you for your
answers.
Mr. Mendez. Thank you.
Mr. Blumenthal. Mr. Chairman, thank you.
The Chairman. Thank you, Senator Blumenthal.
We have a vote starting at 4 p.m. I just want to do one
final question to you, Mr. Mendez.
It is mandated by MAP-21, but DOT is currently conducting a
comprehensive truck size survey, and trucks are very heavy--
trucks are very much in my mind in rural places like West
Virginia, especially hilly ones where they are dangerous.
Now that study that you are doing is due out later this
year, but the National Academy of Sciences has already raised
questions as to the methodology. I can't get into that because
I can't analyze either one. But what I want to be sure is that
you are not working just to get it done by a certain date, but
that you are trying to put out a product which listens to
everything and learns everything. You are not date mesmerized?
Mr. Mendez. Well, sir, I totally agree with you.
Our focus is on getting this right. I know there are
deadlines. We will deal with that. What we want to bring to
you, and it is a congressional mandate, is to bring to you the
most objective, data-driven approach that we can define.
And we are addressing some of the TRB, Transportation
Research Board suggestions, but we are going to get it right,
and we will deal with time issues as we need to. So that is my
commitment to you.
On this one, it is very important to the industry, to a lot
of stakeholders out there, and like I said earlier, we are very
focused on safety. So we are going to get it right for you, and
that is my commitment.
The Chairman. Yes. So the answer is that you are not star
struck by a date. You are star struck by getting it done as
fastly and accurately as possible.
Mr. Mendez. Absolutely. Yes, sir.
The Chairman. Great.
Senator Ayotte has come in, and you are now the Chairman of
the Commerce Committee. So you can do many things by unanimous
consent for New Hampshire, or anybody that you wish.
Senator Ayotte. At last.
[Laughter.]
Senator Ayotte. Just kidding. No, this is great.
The Chairman. And you also have to close the hearing.
Senator Ayotte. I can do that, Mr. Chairman. Thank you.
The Chairman. And thank you all very, very, very much.
Please.
STATEMENT OF HON. KELLY AYOTTE,
U.S. SENATOR FROM NEW HAMPSHIRE
Senator Ayotte [presiding]. Well, I want to thank all of
you for being here, and we know this will be short questioning
because we have a vote in progress.
So I wanted to ask Mr. Andrews about the Permanent Internet
Tax Freedom Act which I know Senator Thune touched upon
earlier. I have introduced legislation, which he mentioned in
the opening statement, that would permanently extend the
current ban on Internet access taxes. This Act would prevent
State and local governments from imposing new taxes on Internet
access and prohibit any multiple or discriminatory taxes on E-
commerce. As you know, Senator Thune and Senator Wyden have a
similar bill.
And the Internet Tax Freedom Act, or ITFA, which was
originally enacted in 1998, was designed to prevent state
taxes, a sort of patchwork of taxes, and to ensure that
multiple jurisdictions could not tax the same electronic
commerce transaction, ensuring that the commerce over the
Internet would not be singled out for discriminatory tax
increases.
It expires in November, and unless addressed soon, I think
many of us share the concerns that customers are going to
receive notices of the looming tax that they could receive.
This will probably impact millions and millions of people
across this country. If they get a tax increase notice, I am
sure that will have them prompting to talk to us pretty
quickly. And E-commerce is incredibly important.
Wwhat I hear a lot about in New Hampshire is that both
consumers and businesses would like certainty on this issue.
So if we are thinking again of rather than a permanent
moratorium, which is what I would support, or the fact that
some have talked about a really short-term fix, I am worried
about what message that will send, and we will be sort of back
at Groundhog Day again.
I want to ask you very straightforwardly, our half of the
Senate is cosponsoring one or the other pieces of legislation.
What is your position on the permanent moratorium, and what do
you think about it in terms of the position that you are being
considered for?
Mr. Andrews. Sure. Well, as a frequent Internet shopping
family, I understand the concern that you raise. To my
knowledge, we have not taken a position yet, but what I would
like to do is go back and get a little better educated on the
issue and come back to you with a better answer on that.
Senator Ayotte. Could you submit that answer for the
record----
Mr. Andrews. Absolutely.
Senator Ayotte.--for this hearing? I think it would be
really helpful. Like I said, this is a strong bipartisan
issue----
Mr. Andrews. Sure.
Senator Ayotte.--and one that we are facing very shortly
here, and so I think it will be important in the position that
you are going to serve in. So I appreciate that very much.
And I also wanted to follow up on another issue that is
very important to me, which is our small fishermen in New
Hampshire who have been devastated by the cod quotas and by the
catch share regulations coming out of NOAA and Commerce. I am
really concerned that our small fishermen are going to cease to
exist if we don't come to some more reasonable accommodation of
what is also their goal, which is to sustain the fishery
because that is how they make their living.
So I wanted to ask you about this issue, and I have asked
many, many people in NOAA about this issue. What is your view
is in terms of how we can really look at these regulations
again, in light of sustaining our small fishermen and women who
just want to make a living off the waters? For many of them, of
course, it is a family tradition, and we are very proud of
them.
Mr. Andrews. Right. And I understand the importance of the
industry not only economically but, as you point out,
historically and the tradition of these families. NOAA is well
aware, we are well aware of the impact that the current
situation is having and the disaster it has had on New England
ground fishermen, and we are very focused.
I know John Bullard, who is our regional administrator, has
been tasked by the Secretary personally to work with the
communities, work with the States, and work with the fishermen
to try to work through this issue and provide relief as much as
we can.
Senator Ayotte. Well, I am appreciative that NOAA has
worked with the fishermen in the Northeast to distribute the
disaster funds promptly, so I thank you for that.
My overall concern has been from the beginning is just how
do we help the fishermen in a disaster sense? How do we put
them in a position where they can continue their livelihood of
making a living on the waters? This is, as you rightly
described, a noble tradition in New England.
I want to just say that upfront that I am appreciative that
your agency has acted quickly. I just think there is more work
to do.
The other issue I wanted to ask you about because this is
what I hear from New Hampshire fishermen, is their concern
regarding the funds actually being more focused on a buyout or
buyback program. All our fishermen want is to get back out on
the water and fish, and not relinquish their boats and
livelihoods because of these regulations. One of the big
concerns I have about viewing it only in terms of a buyout or
buyback program, is that we are going to increase consolidation
in the fleet, resulting in some of these small fishermen to get
bought up, and then we will just have the large fleets.
Nothing against the large fleets, but I think part of these
small business owners who are working hard at something they
love to do, it is important to them, and I think that we should
stand up for them as well.
So, if you are confirmed, will you work with me, as well as
other members of our delegation to ensure that New Hampshire's
small boat fleet is not harmed by any buyback or buyout program
that might be pursued by NOAA? And that one of the issues you
really focus on is that we don't want to eliminate all the
small fishermen in the policies that may be promoted by NOAA?
Mr. Andrews. And Senator, we are working very hard to
tailor the solutions to the local communities and the needs of
the communities. And if I am confirmed, I would absolutely look
forward to working with you.
I need to learn more about the specifics of the buyback
program. I can't make a commitment, not--I don't have the depth
of understanding. But I would love to work with you, if
confirmed, and work with NOAA on this.
Senator Ayotte. Well, great, and what would be helpful,
too, is I hope that you would talk to some of our fishermen in
New Hampshire and hear directly from them so that you can
understand their perspective. I think that is really helpful as
you are making these decisions. I hope that you would do that.
Thank you. I take that to be yes.
Mr. Andrews. I would be happy to talk to you further about
hearing more about it. Absolutely.
Senator Ayotte. I am not a fisherman, but I really want you
to talk to my fishermen. Will you do that?
Mr. Andrews. I would be happy to talk to your fishermen.
Senator Ayotte. Thank you. I appreciate it.
The rest of you are off the hook today, but I thank you. I
thank you all for being here, and I appreciate your willingness
to serve in important positions.
And I would recommend, Mr. Andrews, you talk to our
fishermen in the beautiful summer, too, in places like
Portsmouth that are quite pretty. So I hope you will come to
New Hampshire.
Mr. Andrews. I appreciate the invitation.
Senator Ayotte. Thanks. Nice to see all of you.
And the hearing is adjourned.
[Whereupon, at 4:11 p.m., the hearing was adjourned.]
A P P E N D I X
United States Senate
Committee on Commerce, Science, and Transportation
Washington, DC, June 25, 2014
Hon. Robert Adler,
Acting Chairman,
U.S. Consumer Product Safety Commission,
Bethesda, MD.
Dear Acting Chairman Adler:
Thank you for your responses to my questions for the record (QFR)
following the hearing held to consider your reappointment to the
Consumer Product Safety Commission (CPSC, or the Commission) on June
11, 2014. I also would like to take this opportunity to thank you for
your willingness to serve as Acting Chairman of the CPSC since the
expiration of the term of Chairman Inez Tenenbaum on November 30, 2013.
You have served with dedication as Acting Chairman for the past six
months, and circumstances may well necessitate that you continue to
serve in that role for some time.
Given your years of experience on the Commission and the fact that
you may need to remain as Acting Chairman for an indefinite time, as
well as your ongoing working relationship with Elliot Kaye, the current
Executive Director of the CPSC and the President's nominee to be the
next Chairman, I believe it is important to solidify the ground work
for specific actions the CPSC can take in the near future to ensure the
Commission aggressively implements burden reduction opportunities for
American businesses.
As you know, Public Law 112-28 (enacted in August 2011) directed
the CPSC to solicit public comments on opportunities to reduce the cost
of third-party testing within 60 days of enactment. The law further
required the CPSC, within one year of enactment, to review such
opportunities and report back to Congress on any gaps in its authority
to implement them consistent with the CPSC's safety mission. After
nearly three years, and notwithstanding the CPSC staffs identification
of potential opportunities to reduce third-party testing in 2012, the
CPSC has neither reduced the burden of third-party testing nor
submitted a report to Congress on barriers to doing so.
That is why I was disappointed that you voted on May 6, 2014
against an amendment during consideration of the CPSC's 2014 Mid-Year
Review and Proposed Operating Plan Adjustments that would have required
senior CPSC staff to develop a plan regarding burden reduction
opportunities for third-party testing requirements, which failed 2-1. I
was also disappointed that you declined to provide such a plan to this
Committee when I formally requested that you do so through the written
QFR process.
Particularly, in your response to my request that you ``provide a
plan to this Committee within 60 days outlining specific actions you
plan to take to ensure that the CPSC aggressively implements burden
reduction opportunities and a timetable for when those actions will
occur,'' you unfortunately appear to have misunderstood my request. I
did not ask that you provide a plan regarding what steps you would take
upon re confirmation as a Commissioner. Given your lengthy service on,
and current leadership of, the CPSC, I simply asked that you provide a
plan ``within 60 days'' of my formal QFR request, dated June 18, 201 4.
I believe that, as a re-nominated Commissioner, you have the
institutional experience to inform such a plan, even if a new chairman
is confirmed. This request is still pending.
You also indicated in your response that you will work with
Chairman-nominee Elliot Kaye, who agreed to provide a burden reduction
plan to me within 60 days of his confirmation during his nomination
hearing on April 8, 2014. I welcome your pledge; however, my request
for your plan is independent from my request to Mr. Kaye for his plan--
notwithstanding the fact that there may be some need to reconcile your
plans in the future, as the CPSC takes concrete action to reduce these
burdens as intended by Congress. Therefore, in your capacity as Acting
Chairman, I renew my request to you to provide a plan to the Committee
within 60 days from June 18, 2014, outlining specific actions you plan
to take to ensure that the CPSC aggressively implements burden
reduction opportunities and a timetable for when those actions will
occur.
Please be advised that I intend to cooperate with the Chairman to
report your nomination out of Committee, but that I expect you to
respond fully to my request before your reappointment is considered by
the full Senate.
Respectfully,
John Thune,
Ranking Member.
cc: Chairman John D. Rockefeller IV
______
U.S. Consumer Product Safety Commission
Bethesda, MD, July 17, 2014
Hon. John Thune,
Ranking Member,
Committee on Commerce, Science, and Transportation,
United States Senate,
Washington, DC.
Dear Ranking Member Thune:
Thank you for your letter of June 25, 2014, requesting that I
provide a plan to the Senate Committee on Commerce, Science, and
Transportation outlining specific actions that I plan to take to ensure
that the U.S. Consumer Product Safety Commission (CPSC) implements
burden reduction opportunities and a timetable for when those actions
will occur.
As an intial matter, please accept my apology for any
misunderstanding concerning your original request. Through this
response I hope to provide a bit more background on the Commission's
many substantive efforts to date regarding burden reduction activities,
as well as my personal plan going forward. I hope that this letter
addresses your concerns.
PL 112-28 Mandate on Burden Reduction
In your letter, you correctly point out that Public Law 112-28
(enacted August 2011) directed the CPSC to solicit public comments on
opportunities to reduce the cost of third-party testing. I would note,
however, the full statutory mandate was not just to seek comments on
reducing third-party testing costs, but also to do so ``consistent with
assuring compliance with any applicable consumer product safety rule,
ban, standard or regulation.'' In other words, PL 112-28 maintained the
safety protections of third-party testing for children's products
mandated in 2008 in the Consumer Product Safety Improvement Act
(CPSIA). I mention this additional language in PL 112-28 because
assuring compliance with the Commission's safety rules while retaining
CPSIA's third-party testing requirements remains an essential mandate
for the agency--and presents a significantly greater challenge than
addressing burden reduction alone.
Burden Reduction Actions to Date
Although PL 112-28 directed the Commission to seek comments on
burden reduction approaches, the Commission had already taken some
significant steps to address third-party testing concerns before
passage of this law. For example:
Determinations Regarding Lead in Children's Products: The
Commission, in 2009, determined that ten product categories,
including precious gemstones, semiprecious gemstones, natural
or cultured pearls, wood, paper, CMYK process printing inks,
textiles, natural fibers, manufactured fibers, surgical steel,
and various precious metals would never violate our lead rules,
thereby obviating the need for third-party testing. (16 CFR
Sec. 1500.91).
Component Part Testing: The Commission published a rule
permitting finished parts product certifiers to rely on
component part testing or voluntary certification by another
party to meet the requirements of third-party testing and
certification. (16 CFR Sec. 1109).
Retesting Not Required for Minor Changes in ASTM Standards:
The Commission determined that manufacturers of children's
products otherwise obligated to re-test their products whenever
the voluntary standard on which they are promulgated changes
would not have to re-test their products if they have current
test results showing compliance with the previous version of
the standard, and the relevant tests in the two versions of the
standard are unchanged or functionally equivalent.
Use of ASTM F963 Screening Test to Assess Lead Content: CPSC
staff allowed the ASTM screening test for heavy metals as an
option for lead testing rather than requiring a specific lead
test.
Expanded Use of XRF Technology: CPSC staff significantly
increased the number of materials for which XRF technology, a
simpler and quicker test than the wet chemistry test, could be
used for determining lead content. For example, glass
materials, unglazed ceramics and some metals can now be tested
with XRF technology. In addition, the agency approved one
specific XRF technology for use in determining lead content in
paints and surface coatings.
Expanded Education Outreach Regarding Third Party Testing:
CPSC staff, in particular the Small Business Ombudsman,
conducted a series of seminars and webinars on the
implementation of third-party testing requirements, providing
significant advice on reduced cost approaches.
In addition, CPSC staff moved quickly to implement specific
provisions in PL 112-28, some of which had been sought by CPSC to
provide third-party testing relief. For example:
Random Sample Test Requirement Changed to Representative
Sample: Prior to passage of PL 112-28, the CPSlA directed the
CPSC to require samples selected for periodic testing to be
chosen using random sampling techniques. A number of companies
found using random sampling techniques to be excessively
burdensome. In response, Congress amended section
114(i)(2)(B)(ii) of the Act to permit the testing of
representative samples. The Commission, accordingly, modified
its rule on third-party testing. (16 CFR Sec. 1107(f)).
Small Batch Manufacturers Not Required to Conduct Some Third
Party Tests: PL 112-28 gives the Commission the flexibility to
exempt small batch manufacturers from third-party tests for
some covered products. Accordingly, the Commission established
the Small Batch Manufacturers Registry, which is an online
mechanism by which Small Batch Manufacturers can identify
themselves to obtain third-party testing relief.\1\
---------------------------------------------------------------------------
\1\ See http://www.cpsc.gov/en/Business--Manufacturing/Srnall-
Business-Resources/Small-Batch-Manufacturers-and-Third-Party-/.
Third Party Testing for Lead in ATVs. Bicycles. and Books
Limited: PL 112-28 exempted ATVs from meeting the lead
requirements imposed by CPSlA. It also exempted the metal
component parts of bicycles and ordinary books from the
---------------------------------------------------------------------------
requirement for third-party testing for lead content.
Only Accessible Component Parts Required to be Tested for
Phthalates: PL 112-28 limited third-party testing for
phthalates to plastic parts accessible to a child through
normal or reasonably foreseeable use and abuse. Accordingly,
the Commission modified its rule to make this change. (16
CPRSec. 1199).
Functional Purpose Exemption Established: PL 112-28
established a protocol by which petitioners may request a
functional purpose exception for a product, class of product,
material, or component part because it is not practicable or
not technologically feasible to meet the 100 ppm lead content
limit. Accordingly, the Commission modified its rule to make
this change. (16 CPRSec. 1500.90).
I mention the above steps to point out that both the CPSC and the
Congress have been active over the years in addressing the burdens of
third-party testing, especially on small manufacturers. I also note
that most of the above listed actions occurred with minimal scientific
investigation. Unfortunately, most further burden reduction actions, to
be useful, seem to require significant research at substantial cost.
Given the technical challenges regarding the development of additional
options, it is not surprising that further burden reduction actions
have not yet occurred. But I assure you that the Commission is working
diligently on all possible burden reduction solutions that are
consistent with the statute.
CPSC's Investigation of Potential Further Burden Reduction Actions:
Technical and Resource Challenges
On November 8, 2011, pursuant to PL 112-28, the Commission
published a Request for Comments (RFC) in the Federal Register (76 Fed.
Reg. 69596) soliciting input from the public regarding opportunities to
reduce the cost of third-party testing requirements consistent with
assuring compliance with any applicable consumer product safety rule,
ban, standard, or regulation. In addition, CPSC staff reviewed the
Commission's rules on third-party testing to see whether any
modifications of the rules might provide regulatory relief, met
separately with each Commissioner's office, and solicited input from
all CPSC staff to make sure that helpful ideas from any source would be
considered. The result of this intensive months-long inquiry was a 117-
page report titled ``Staff Briefing Package on Consideration of
Opportunities to Reduce Third Party Testing Costs Consistent with
Assuring the Compliance of Children's Products,'' submitted for
Commission review on August 29, 2012.\2\ Having explored numerous
possible approaches, the staff noted the substantial technical and
resource challenges surrounding most of the proposals they considered
worthy of further consideration:
---------------------------------------------------------------------------
\2\ https://www.cpsc.gov/PageFiles/129398/reduce3pt.pdf
The recommendations require additional consideration and the
devotion of Commission resources to implement. Some
recommendations, if implemented, likely would affect only a few
children's product certifiers, while others potentially would
have a broader effect. Some recommendations may, upon further
study, be ineffective in reducing manufacturers' third-party
costs. Other recommendations may be impracticable. Staff's
approach in its review of the ideas was to provide enough
information to assist the Commission in the determination of
whether to approve the resource allocation necessary to pursue
these recommendations further.\3\
---------------------------------------------------------------------------
\3\ Id., at 3.
---------------------------------------------------------------------------
In other words, staff's comprehensive review of possible third-
party burden reduction measures produced almost no candidates for
immediate implementation. Moreover, most, if not all, of the proposals
require further investigation and resource expenditures, some
potentially quite expensive--with no guarantee that they would bring
significant (or any) burden reduction benefit. I mention resources
because CPSC is one of the most resource-constrained of the Federal
health and safety agencies. And, I note that however important burden
reduction projects are to the CPSC--and they are quite important--their
placement in the agency's regulatory priorities must be balanced
against our safety mission and available resources. They must compete
for staff time and resources with projects carrying congressionally
mandated deadlines such as the development of standards for durable
infant products under the ``Danny Keysar Child Product Safety
Notification Act'' \4\ and the amendment of the Commission's All-
Terrain Vehicle Standard.\5\ They must also compete with critical
ongoing safety projects, such as recreational off-highway vehicles
(ROVs), upholstered furniture flammability, television/furniture tip-
overs, portable generator asphyxiations, and drowning prevention--a
number of which involve gruesome fatalities (often to young children)
and horrific, life-altering injuries.
---------------------------------------------------------------------------
\4\ Section 104 of the Consumer Product Safety Improvement Act.
Under this Act, the CPSC must adopt two mandatory rules on durable
infant goods every six months.
\5\ Section 42 of Consumer Product Safety Act. See 15 U.S.C.
Sec. 2089.
---------------------------------------------------------------------------
CPSC's Ongoing Burden Reduction Activities
Given the technical challenges and the resource constraints
associated with burden reduction, I believe the Commission has made
good progress on the issue. As a starting point, I note that the
Commission, on October 12, 2012, having carefully reviewed the various
proposals proffered by staff, voted to approve work by staff, resources
permitting, on the following nine projects:
International Standards Equivalency to Children's Product
Safety Rules: Draft a Request for Information (RFI) for
publication in the Federal Register to determine which, if any,
tests in international standards were equivalent to tests in
comparable CPSC-administered Children's Product Safety Rules.
Determinations Regarding Heavy Metals: Draft a Request for
Information (RFI) for publication in the Federal Register
regarding whether there are materials that qualify for a
determination, under the Commission's existing determinations
process, that do not, and will not, contain higher-than-allowed
concentrations of any of the eight heavy metals specified in
Section 4.3.5 of ASTM F963-11 (The elements are antimony,
arsenic, barium, cadmium, chromium, lead, mercury, and
selenium).
Determinations Regarding Phthalates: Draft a Request for
Information (RFI) for publication in the Federal Register
regarding whether there are materials that qualify for a
determination, under the Commission's existing determinations
process, that do not, and will not, contain prohibited
phthalates, and thus are not subject to third-party testing.
Fourier Transform Infrared Spectroscopy (FTIR): Investigate
whether Fourier Transform Infrared Spectroscopy (FTIR) can be
effective as a screening technology for determining that a
plastic component part contains no phthalates.
Determinations Regarding Adhesives in Manufactured Woods:
Draft a Request for Information (RFI) for publication in the
Federal Register regarding whether there are any adhesives used
in manufactured woods that can be determined not to contain
lead in amounts above 100 ppm, and thus are not subject to
third-party testing.
Determinations Regarding Synthetic Food Additives: Draft a
Request for Information (RFI) for publication in the Federal
Register regarding whether the process by which materials are
determined not to contain lead in amounts above 100 ppm can be
expanded to include synthetic food additives.
Guidance Regarding Periodic Testing and Periodic Testing
Plans: Draft guidance in the form of a Frequently Asked
Question or similar format to clarify that manufacturers who do
not engage in ongoing or continued production of a previously
third-party certified product--such as an importer or a
manufacturer with short production runs--are not required to
conduct periodic testing as defined in 16 CFR Sec. 1107. The
Commission further directed staff to clarify that those
manufacturers who do not engage in periodic testing for the
reasons previously stated are not required to create a periodic
testing plan.
Accreditation of Certain Certification Bodies: Develop a
staff technical report for Commission consideration on the
feasibility of CPSC-acceptance of certification bodies to
perform third-party testing of children's products as a basis
for issuing Children's Product Certificates (CPC), and to
undertake activities to ensure that continuing production
maintains compliance with certification requirements as a basis
for increasing the maximum periodic testing interval from one
to two years.
Staff Findings Regarding Production Volume and Periodic
Testing: Report to the Commission whether, and if so, on what
basis, staff would be able to make findings whether including a
``low-volume'' exemption would be consistent with assuring
compliance with all children's product safety rules,
regulations, standards or bans.
In addition to these nine burden reduction projects, the
Commission, on May 9, 2014, as part of its mid-year budget review,
approved an amendment that I authored that added a further
Determinations project:
Determinations Regarding Unfinished Wood and Other Natural
Materials: Investigate whether unfinished wood or other natural
materials do not, and will not, contain any of the specified
heavy metals in levels that exceed allowable limits in ASTM
F963.
I note that five of the approved actions involve investigating
whether the Commission can make determinations regarding certain
products or product components. There is good reason for this. Along
with CPSC staff, I have endeavored to meet with and listen to a great
number of manufacturers, especially those who run small, even tiny,
businesses. Overwhelmingly, they have told us that most proposals that
retain third-party testing will not provide significant regulatory
relief. Instead, they point to the August 2009 action taken by the
Commission in which we determined that certain products did not require
third-party testing for lead because they would never contain violative
amounts of this heavy metal. This, they claim, is the most desirable
path to take. They ask that the Commission expand the determinations
list of products exempt from lead testing and that we expand our
determinations list to include products found never to violate our
phthalates rule or our heavy metal requirements in ASTM F963.
The Commission's Plan
Set forth below is the Commission's plan--which I support--for
implementing our burden reduction projects. Not all of the projects
have due dates because there first must be a reasoned decision based on
adequate evidence that they hold sufficient technical promise to be
placed in the Commission's Operating Plan. For the most part, the
projects that will lead to Commission determinations have received the
greatest attention, but progress even on these has often encountered
unexpected technical challenges. For example, during the Commission's
all-day forum on burden reduction on April3, 2014, several industry
stakeholders advocated that the Commission exempt rigid plastics with a
Shore Hardness of 90 or greater from third-party testing requirements
for phthalates. Unfortunately, Commission staff has discovered that a
number of products with this hardness factor contain statutorily
prohibited phthalates at concentrations above the allowed limit.
Given existing technical challenges and limited Commission
resources, I am comfortable with the Commission's work plan. I note
that the vote on May 6, 2014 to which you refer in your letter did not
reject the idea of a plan. As set forth below, we have a plan. What I
opposed in that vote was a proposal for a plan that I felt would
elevate burden reduction projects above a number of higher priority
safety projects that either have already been included in our Operating
Plan or that await placement depending on available resources. Having
said that, let me be clear: where burden reduction projects have shown
technical promise, they have been approved with reasonable dispatch.
Under either my leadership as Acting Chairman or as a Commissioner, I
expect this to continue.
------------------------------------------------------------------------
Project Description Status
------------------------------------------------------------------------
International Standards Draft policy on Draft policy due 4th
Equivalency to determination of Quarter, FY 2014.
Children's Product which, if any, tests
Safety Rules in international
standards are
equivalent to CPSC
children's product
rules to permit rules
harmonization.
------------------------------------------------------------------------
Determinations Investigate whether Comments from public
Regarding Heavy Metals heavy metals specified on CPSC Workshop due
in ASTM F963 by July 16, 2014.
(antimony, arsenic, Staff review of
barium, cadmium, comments to follow.
chromium, lead Depending on comments
mercury, and selenium) received, and
in certain products or resources allocated,
product components can staff could develop a
be determined never to Briefing Package in
violate applicable FY 2015.
CPSC standards.
------------------------------------------------------------------------
Determinations Investigate whether Comments from public
Regarding Phthalates certain products or due by July 16, 2014.
product components can Staff review of
be determined never to comments to follow.
contain violative Depending on comments
levels of prohibited received, staff could
phthalates. develop a Briefing
Package in FY 2015.
------------------------------------------------------------------------
Fourier Transform Investigate whether Staff continues to
Infrared Spectroscopy FTIR can be effective monitor technology
(FTIR) as a screening developments and will
technology for provide status
determining that a reports on activities
plastic component part as significant new
contains no developments occur.
phthalates.
------------------------------------------------------------------------
Determinations Staff directed to Staff review pending,
Regarding Adhesives in investigate whether as resources permit.
Manufactured Woods any adhesives in The CPSC Workshop on
manufactured woods can Burden Reduction
be determined not to included lead content
contain lead in as an item.
amounts above 100 ppm.
------------------------------------------------------------------------
Determinations Investigate whether the Staff review pending,
Regarding Synthetic process by which as resources permit.
Food Additives materials are The CPSC Workshop on
determined not to Burden Reduction
contain lead in included lead content
amounts above 100 ppm as an item.
can be expanded to
include synthetic food
additives.
------------------------------------------------------------------------
Guidance Regarding Staff directed to draft Draft guidance policy
Periodic Testing and guidance to clarify developed and
Periodic Testing Plans that manufacturers who submitted for 6(b)(6)
do not engage in clearance. Due to
ongoing or continued Commission by 4th
production of a Quarter, FY 2014.
previously certified
product are not
required to conduct
periodic testing as
defined in section
1107. Moreover,
manufacturers who do
not have to do
periodic testing need
not create a periodic
testing plan.
------------------------------------------------------------------------
Accreditation of Develop a staff Staff review pending,
Certain Certification technical report for as resources permit.
Bodies Commission
consideration of
feasibility of CPSC-
acceptance of
certification bodies
to perform third-party
testing as a basis for
issuing Children's
Product Certificates,
and to undertake
activities to ensure
that continuing
production maintains
compliance with
certification
requirements as a
basis for increasing
the maximum periodic
testing interval from
1 to 2 years.
------------------------------------------------------------------------
Staff Findings Investigate whether to Staff review pending,
Regarding Production include a ``low- as resources permit.
Volume and Periodic volume'' exemption
Testing from periodic testing
requirements for a
maximum of three years
consistent with
assuring compliance
with all applicable
children's product
safety rules,
regulations,
standards, or bans.
------------------------------------------------------------------------
Determinations Staff directed to A contract task order
Regarding Unfinished investigate whether has been issued to
Wood and Other Natural unfinished wood or contractor for cost
Materials other natural proposal. Staff
materials do not and report anticipated in
will not contain any FY 2015, depending on
of the specified heavy the completion of the
metals in levels that contract task and
exceed allowable resource allocation.
limits in ASTM F963.
------------------------------------------------------------------------
Possible Legislation
You point out in your letter that Congress, in Section 2(a)(3)(C)
of PL 112-28, stated that if the Commission determined that it lacked
the authority to implement an opportunity for reducing the costs of
third-party testing consistent with assuring compliance with the
applicable consumer product safety rules, bans standards, and
regulations, it should transmit a report to Congress reviewing those
opportunities, along with any recommendations for any legislation to
permit such implementation. To date, I have seen no legislative
opportunities for burden reduction that would continue third-party
testing consistent with assuring compliance with the applicable
consumer product safety rules, bans standards, and regulations.
Recently, however, I learned of one possible approach regarding
determinations for phthalates that might require legislative action.
The concept is simple: when the Commission made its determinations
regarding lead in 2009, the agency listed those products and product
components that its technical staff had concluded would not ever
contain prohibited amounts of lead. This was a list of exceptions from
a general standard because lead, as a naturally occurring element, had
to be ruled out as a component of products on an ongoing basis.
Phthalates, by contrast, are a man-made material not occurring
naturally in the environment and intentionally used in products. So, a
possibly preferable approach would be to list those products that might
contain phthalates or are most likely to be contaminated by phthalates
in the production process and exempt all others. This would provide
much broader relief than exhaustively listing the thousands of products
that will never contain phthalates.
Let me mention a few caveats. As with other burden reduction ideas,
significantly more research and resources would be required for the
agency to undertake such an action if the idea were to prove useful. In
addition, statutory flexibility would be needed to allow CPSC to place
a product on the list if it was later determined to contain prohibited
phthalates even if it was not on the initial list. Also, as the
Commission has not received the final Chronic Hazards Advisory Panel
report on phthalates, I do not know how that might affect this concept.
All of this said, I do find the proposal worthy of additional thought.
Should I decide, in consultation with the agency's career
scientific staff that this suggestion is a good one and that we require
Congressional assistance, I shall seek my colleagues' support for
making an official request to Congress.
Thank you again for your letter on this important issue. Please
forward my appreciation to your staff for their courtesy to me. Should
you or your staff have any questions, please do not hesitate to contact
me or Jenilee Keefe Singer, Acting Director of Legislative Affairs, by
telephone at (301) 504-7488 or by e-mail at [email protected].
Sincerely,
Robert S. Adler,
Acting Chairman.
cc: Chairman John D. Rockefeller IV
______
Prepared Statement of Rep. Henry A. Waxman, Ranking Member,
Committee on Energy and Commerce
Thank you for the opportunity to address the Committee as it
considers the nomination of Robert S. Adler for a second term as
Commissioner of the Consumer Product Safety Commission (CPSC). Bob has
been an advocate for consumers throughout his career. His expertise,
experience, and dedication will continue to benefit the agency and
consumers in a second term.
Bob's history with CPSC goes back to 1973, when the agency opened
its doors. He spent nine years as an attorney-advisor to two
Commissioners, including for Commissioner David Pittle, one of the
original five Commissioners.
I've known Bob since 1985, when he joined my staff on the Health
and Environment Subcommittee. He worked on important consumer
protection issues like a no-fault compensation program for the rare
instances of children injured by a vaccine, and he led congressional
oversight into the Consumer Product Safety Commission. I remember him
especially for the bipartisan approach he helped forge on consumer
issues, including with former House member and Senator Jim Broyhill of
North Carolina.
He left the Committee for academia at the University of North
Carolina, where he had an important appointment at the business school.
His academic career was a distinguished one in the areas of product
safety, product and medical liability, government regulation,
commercial law, and negotiation.
During his time at UNC, Bob stayed involved in many consumer
protection and education activities. He was elected six times--for a
term spanning 22 years--to the board of directors of Consumers Union,
publisher of Consumer Reports magazine.
Bob returned to public service in 2009, when he served on President
Obama's Transition Team for the Consumer Product Safety Commission. He
was appointed a Commissioner in August 2009. Bob has been serving as
the Acting Chairman of the CPSC since December.
Bob has been an exceptional Commissioner at CPSC. He is a strong
advocate for consumer protection. He is highly regarded for his fact-
based and consensus-oriented approach. All sides have come to know him
as someone who listens well, who gives everyone a fair hearing, and who
does what is right for our Nation.
Consumers and our country have been well served by Bob. I hope you
will give his renomination the favorable and speedy consideration it
deserves.
______
Response to Written Questions Submitted by Hon. Mark Pryor to
Bruce H. Andrews
Question 1. Trade Laws--Many in Arkansas rely on the international
trade laws to preserve their jobs from unfairly traded imports.
Mississippi County, for example, is home to a number of steel
producers--in fact, it is the second largest steel producing county in
the United States. These workers are facing a massive surge of dumped
and subsidized steel imports from a number of countries and across
various product lines. They are using the trade laws to fight back, and
they are counting on the Department of Commerce to fully enforce the
rules of free and fair trade. These are efficient, low-cost, and
environmentally responsible producers who can out-compete anyone in the
world if there is a level playing field. They are only asking that our
government enforce the rules on the books and ensure a level playing
field. Can you assure this Committee that the Commerce Department will
vigorously apply and enforce the U.S. trade remedy laws?
Answer. Vigorous enforcement of our countervailing duty and anti-
dumping trade remedy laws is a top priority for the Commerce
Department. It is a priority I have worked on regularly as Chief of
Staff for the Commerce Department and I will continue to make
enforcement of our trade laws a priority if I am confirmed as Deputy
Secretary of the Department.
Like you, I believe wholeheartedly that U.S. firms and workers can
compete successfully in the global marketplace if they are able to
compete on a level playing field. Also, I understand the importance of
the steel industry to Arkansas and the Nation. The domestic steel
industry supports hundreds of thousands of jobs in the U.S. and it is
an essential sector of our domestic manufacturing base. The Department
has acted in numerous trade remedy cases in the past to provide a
remedy to domestic producers harmed by unfair imports. Steel related
products account for 118 of the antidumping and countervailing duty
orders currently in place, which is approximately 41 percent of all
current orders. With regard to pending investigations, I can assure you
the Department is aware of the concerns of domestic steel producers in
these cases and will carefully conduct on-going investigations to make
a determination in each case based on a complete record and the law.
Question 2. How can we assure my constituents of the importance you
place on the antidumping and countervailing duty laws and their
enforcement?
Answer. Vigorous enforcement of our countervailing duty and
antidumping trade remedy laws is a key element of the Department's
``Open for Business'' Strategic Plan that Secretary Pritzker unveiled
last fall. As Chief of Staff, I was very involved in the development of
the Department's Strategic Plan under Secretary Pritzker's leadership,
including the importance the plan places on the effective enforcement
of our Nation's trade laws to enable domestic firms to compete fairly
in the global marketplace. If I am confirmed as Deputy Secretary, one
of my primary objectives will be to oversee the successful
implementation of the Department's Strategic Plan to ensure we are
holding our trading partners accountable and protecting domestic firms
from unfairly traded imports.
______
Response to Written Questions Submitted by Hon. Mark Begich to
Bruce H. Andrews
Question 1. Denali Commission--Thanks to Commerce for helping get
Denali Commission back on its feet after term of Federal co-chair, Joel
Neimeyer, expired earlier this year. Joel has been reappointed and is
bringing new energy and focus to the commission. However, the
Commission need to legal assistance. In the past, the Commission has
benefitted from shared legal advice from the Anchorage-based FAA
attorney, especially on ethics matters. However that attorney will soon
no longer be available so the commission is required to have legal
counsel.
We believe the Department of Commerce is best positioned to provide
that through the Secretary's office. The commission only has seven
commissioners, all appointed by the Secretary, and is in the process of
getting reauthorized, so the burden for ethics advice should be
relatively minor. Will the department commit to providing Alaska's
Denali Commission these ethics legal services?
Answer. The Department greatly values our collaborative working
relationship with the Denali Commission, which has played a significant
role in addressing the economic development and infrastructure needs of
Alaska's rural and distressed communities. The legal team of the
Economic Development Administration (EDA) has served as an invaluable
sounding board for the Commission's Federal Co-Chair and Counsel on key
issues, especially during this past year when the Commission was
confronted with a number of management and operational challenges with
legal implications.
It is important to note that although the Department has certain
discrete, statutory responsibilities with respect to the Commission, it
does not provide the Commission with formal legal advice and guidance
out of respect for the Commission's status as an independent entity.
However, in the spirit of cooperation with a Federal partner, we have
in the past through an MOU provided the Commission with legal services
on a reimbursable basis when a specific, compelling need arises. No
such agreement between the Department and the Commission currently
exists. Nevertheless, we will certainly consider any request from the
Commission for the Department to provide ethics legal services and
evaluate whether such an arrangement would be feasible and cost-
effective. As with all matters regarding the Commission, we will keep
you fully apprised of the progress and outcome of any discussions with
the Commission.
______
Response to Written Questions Submitted by Hon. John Thune to
Bruce H. Andrews
NTIA IANA Functions
Question 1. Mr. Andrews, a number of this Committee's members have
called for the Committee to hold a hearing on NTIA's proposed
transition of the IANA functions to the multi-stakeholder community. I
think this topic is important, and would support such a hearing. Would
the Department be willing to testify as it did in the House to discuss
specifically some of the valid concerns that exist regarding the
proposed transition? If confirmed, what role--if any--do you expect to
play in overseeing the proposed transition?
Answer. The Department is committed to a transparent and open
process for a successful transition, including active engagement with
Congress. We work closely with the Committee and the Department would
be responsive to an invitation from the Committee to provide a witness
at a hearing who can best respond to questions the Committee may have.
Assistant Secretary Strickling has to date testified on this topic
twice, conducted two briefings for the Committee, and provided detailed
answers to written questions. In all of those instances, NTIA has laid
out a clear framework to ensure a successful transition, including that
it will not accept a proposal that replaces the NTIA role with a
government-led alternative, as well as agreeing to provide regular
updates to Members on this important topic. If confirmed, I will be
working closely with NTIA to ensure that the open Internet remains an
engine for economic and social opportunity at home and abroad.
FirstNet--Independent Authority
Question 2. Mr. Andrews, the Spectrum Act establishes FirstNet as
an ``independent authority within NTIA.'' What is the Department of
Commerce's interpretation of what it means for FirstNet to be an
``independent authority'' within NTIA?
Answer. The Middle Class Tax Relief and Job Creation Act of 2012
(Act) establishes FirstNet as an independent authority within NTIA, and
thus FirstNet is both part of NTIA and independent of it with respect
to program-related decisions not expressly assigned to NTIA under the
Act. Both the Department of Commerce and NTIA have their own express
substantive roles under the Act, and the Act's placement of FirstNet
within NTIA will continue to result in a close, but independent,
working relationship with NTIA, as well as the Department, to jointly
achieve the critical goals of FirstNet's mission.
First Net--Management
Question 3. Building a network is incredibly complicated, and will
require empowering FirstNet's experts to do what they do best. What
assurances can you give those concerned about the potential for
bureaucratic micromanagement by the Department that FirstNet is being
given sufficient latitude to operate effectively?
Answer. FirstNet is one of the most unique and high-profile
initiatives in the Department's portfolio. The Department is fully
committed to leveraging its resources to ensure FirstNet can achieve
its vital mission for public safety. The Department has provided
assistance to FirstNet to help it navigate the complexities of Federal
procurement and hiring requirements and taken steps to streamline these
processes for FirstNet whenever possible to enable it to acquire the
services and staff it needs to successfully fulfill its challenging
task to build a nationwide broadband network for public safety. If
confirmed, I will work closely within the Department to ensure that we
provide FirstNet the tools it needs to successfully do its job.
NOAA Satellites
Question 4. Mr. Andrews, you note in your response to the Committee
Questionnaire that the Department has a number of very important, but
also operationally challenging programs, and you listed NOAA satellites
as one of these programs. If confirmed, what will you do to ensure that
the NOAA satellite programs are meeting established milestones and
making efficient use of taxpayer dollars?
Answer. If confirmed, I will work with the NOAA Administrator to
provide oversight of the NOAA satellite programs to help ensure they
continue to meet their milestones and make efficient use of taxpayer
dollars. The NOAA satellite programs are on schedule and within budget,
and we remain committed to strengthening and increasing robustness of
these programs.
NOAA is the program lead for these programs and works very closely
with NASA to implement the necessary requirements for weather
forecasting. The NASA--NOAA partnership is strong and provides
government oversight to the contractors. DOC provides programmatic and
budgetary, as well as management, oversight. Frequent reviews of the
satellite programs are conducted by government entities, such as the
Government Accountability Office and the Department of Commerce
Inspector General, and independent groups comprised of aerospace
experts, which provide guidance and help ensure that these programs
remain on track and within budget. We will continue to work with, and
welcome, reviews by these groups.
Use of Commercial Satellite Data
Question 5. Given the impending gap in weather satellite coverage
by U.S. polar orbiting satellites, POES and JPSS, as well as the coming
gap in COSMIC constellation for Radio Occultation (RO) data, do you see
any legal barriers or other impediments for the Department of Commerce
and NOAA to acquiring commercial satellite data that can be provided in
time to fill these gaps and meet all technical standards and specs of
NOAA and possibly save taxpayer dollars?
Answer. No, we do not see any legal barriers to the Department of
Commerce and NOAA acquiring commercial satellite data to help fill data
needs, as long as funding is provided and the data meet the key
requirements for cost, data policy, and reliability, and are compliant
with the Federal Acquisition Regulations.
NOAA already engages in commercial data buys, such as for Synthetic
Aperture Radar (SAR) imagery from commercial sources in Canada and
Europe to support ice detection and monitoring for the National Ice
Center. Ocean color data was purchased from a hosted U.S. Government
sensor called SeaWiFS (Sea-Viewing Wide Field-of-view Sensor) aboard
the Orbview II satellite, which was operated by GeoEye Inc. This data
was used operationally to monitor harmful algal blooms in U.S. coastal
waters. In addition, NOAA purchases the U.S. National Lightning Data
Network from Vaisala. National Weather Service offices use this data to
support severe weather warnings. Furthermore, NOAA partners with
private industry to design, build, and operate its space and ground
systems.
Commercial Satellite Data--FY 2015
Question 6. Are you aware of the FY 2015 CJS bill report language
that requires Commerce and NOAA within 120 days of enactment to provide
a plan to procure commercial satellite data to the Appropriations
Committee? Do you see any significant barriers to achieving that
deadline?
Answer. Yes, I am aware of the FY 2015 CJS bill report language
that requires the Department of Commerce and NOAA within 120 days of
enactment to provide a plan to procure commercial satellite data to the
Appropriations Committee. We are actively working on such a plan and
will engage the Office of Management and Budget to achieve this
deadline.
Commercial Space Environmental Data Service Companies
Question 7. Are you aware of the efforts of a number of commercial
space environmental data service companies to develop, launch and
operate commercial weather satellites for providing weather data as a
service--similar to your monthly cell-phone service--to both government
and commercial entities worldwide? What would be your plan to take
advantage of these commercial services--that will also create U.S. jobs
and economic development--in accordance with the requirements of the
National Space Policy?
Answer. Yes, I am aware of the efforts of commercial space
environmental data service companies to develop, launch, and operate
commercial weather satellites. We will seriously analyze these upcoming
commercial services to see if they could possibly help fill any data
needs.
As the primary customer for these data purchases, the National
Weather Service has 16 long-standing criteria for data quality. The
National Weather Service purchases instrumentation and data from
vendors that can demonstrate that they can meet those criteria.
However, there are currently no viable, proven commercial entities
which can provide the mission-critical data that is required to ensure
that lives and property of the American public are not put at risk from
severe weather.
The downstream economic benefits garnered off the foundational data
of the United States commercial weather enterprise are very real and
quite considerable. There are over 300 private weather companies today
that use those data as feedstock. There is no other weather enterprise
that takes that model of a private innovation platform in the data as a
public good and produces the private sector value-added economic
activity downstream. We need to carefully evaluate the intended and
unintended consequences that might come from monetizing the data
stream.
Sources of Satellite Data
Question 8. If you knew that there are technically viable,
economically attractive and timely solutions available to close and
mitigate vital weather satellite data gaps--that would readily meet the
rigorous technical standards and specifications of the U.S. Government
through NOAA--would you seek out those solutions whether they came from
commercial, academic or public/private partnership sources?
Answer. As stated above, yes, we would seriously analyze any
technically viable solutions to help mitigate weather satellite data
gaps, provided they would meet the requirements set by the National
Weather Service.
Office of Inspector General Recommendations
Question 9. The U.S. Department of Commerce Office of Inspector
General (OIG) is tasked with seeking to improve the efficiency and
effectiveness of the Department's programs and operations. In your
current role, how do you implement recommendations or address any
issues identified by the OIG?
Answer. Every day the Department's bureaus work with American
businesses, communities, and private citizens to spur innovation,
promote trade and investment, foster use of data, and ensure production
of critical environmental products and services--and we are committed
to do so in the most effective and efficient way possible.
The Department's senior leaders work closely with the Office of
Inspector (OIG) to understand the challenges they have identified, and
how to address the issues they have raised. For example, the Chief
Financial Officer and Assistant Secretary for Administration (CFO/ASA)
are working on improving our oversight process and internal controls at
both the bureau and Department levels.
The Deputy Secretary plays a key role as the Chief Operating
Officer of the Department in overseeing the operations of the
Department. If confirmed, making sure the Department has the proper
controls in place to support effective and efficient operations will be
a top priority for me.
Office of the Inspector General--Contracts and Funds
Question 10. Recently, the OIG issued a report (OIG-14-001-A)
following a review of 43 time-and-materials and labor-hour contracts,
which found that contracting and program officials did not properly
award and administer contracts and task orders for work permitted. The
OIG also found that potential monetary benefits to the Department, in
the form of potential savings from eliminating unsupported costs and
from funds put to better use, totaled $170 million. We are in
challenging financial times and we need to ensure taxpayer funds are
being used efficiently and judiciously. In your current position
within the Office of the Secretary (where the review was located), how
do you work to ensure contracts are properly awarded and administered?
Answer. The Department has built acquisition metrics that are used
for data centric decision making and oversight. The metrics are
calculated daily and reviewed on a monthly basis at our acquisition
council chaired by the CFO/ASA, Senior Procurement Executive and
attended by the Bureau Procurement Officials (BPsO). The CFO/ASA is
working on improving our oversight process and internal controls at
both the bureau and Department levels through an acquisition review
board for acquisitions over $75 million. If confirmed, I will work with
the CFO/ASA and others when appropriate to ensure the Department's
senior management is appropriately responding to management issues
raised by the Department's Office of Inspector General.
Question 10a. If confirmed, how would you work address generally
unsupported costs and funds put to better use identified by the OIG or
by the Department?
Answer. As Chief Operating Officer, I would work with the
Department's senior managers to consider OIG reports and findings
throughout the year as we build budgets and execute programs. If the
OIG identifies unsupported costs and funds put to better use, we will
consider those findings at each opportunity.
______
Response to Written Question Submitted by Hon. Kelly Ayotte to
Bruce H. Andrews
Internet Tax Moratorium
Question. Do you support legislation that would make the Internet
tax moratorium permanent?
Answer. I appreciate Congressional efforts to support broadband
access and adoption in order to improve social and economic development
for Americans. This is a goal we share at the Department of Commerce,
and one we are working to advance by regularly tracking broadband
adoption, making additional spectrum available for wireless broadband,
overseeing Recovery Act broadband investments, and promoting policies
that maintain the open Internet as an engine for economic growth.
The Administration is studying the legislation in question, and has
not taken a formal position at this time.
______
Response to Written Questions Submitted by Hon. John D. Rockefeller IV
to Victor M. Mendez and Peter M. Rogoff
Transportation Funding
Question 1. We're in the midst of a terrible problem--the Highway
Trust Fund is about to run out of money. States, communities, workers
and businesses who are relying on that funding will be out of luck, if
we don't act quickly. Having served as DOT Administrators, you know
firsthand the impact of the trust fund on communities and states. Can
you please explain what it will mean if we let the trust fund run dry?
Answer. The impending Highway Trust Fund cash shortfall will have
an impact on construction projects in the U.S. potentially putting
hundreds of projects and thousands of jobs at risk. Some states have
indicated they plan to slow down or put construction projects on hold
due to uncertainty about Federal highway funding. Several other states
have publicly announced that they are evaluating the situation and
considering various options, but have not yet announced that they are
delaying/suspending projects.
States that have already taken action:
Georgia--has announced they will be suspending monthly
lettings of highway construction projects beginning in July.
Ohio--has decided to delay their Statewide Transportation
Improvement Plan (STIP) by one year.
Rhode Island--has halted advertising of all new, non-
emergency highway projects.
Tennessee--has announced the delay of certain construction
projects pending a fix to the HTF shortfall.
Vermont--has announced that they will delay awarding
projects this summer until the HTF shortfall is resolved.
Safety of Crude Oil Trains
Question 2. With major derailments and fiery explosions of trains
carrying crude oil in Canada, North Dakota, and most recently in
Virginia--many states and cities have raised concerns about what's
moving on the rails in their communities. DOT has asked the oil
industry to provide additional data on crude. Have you received the
data or do you still need additional data?
Answer. In response to Secretary Foxx's Call to Action, the oil
industry has provided to DOT limited data regarding the hazardous
characteristics of petroleum crude oil originating from the Bakken
region of North Dakota. In addition, the Pipeline and Hazardous
Materials Safety Administration (PHMSA) also has gathered and continues
to gather its own data to independently assess the hazardous
characteristics of Bakken crude. The quality and reliability of the
data gathered to date vary. However, both the data provided by the oil
industry and the data gathered by PHMSA confirm that Bakken crude oil
is highly flammable. More data and analyses are needed to better
understand the specific hazardous characteristics of Bakken crude oil
(including, for example, geographic and seasonal variation in hazardous
characteristics) and evaluate additional measures for ensuring that
Bakken crude oil can be transported safely by rail.
Question 3. The oil industry has released reports over the last few
weeks suggesting that Bakken crude is safe. Do you agree with those
assessments? Do you have any concerns about the data that was included
in those reports?
Answer. The quality and reliability of the data gathered by PHMSA
to date varies. Nonetheless, PHMSA's evaluation of the data available
to date confirms that that crude oil from the Bakken region is highly
flammable and must be properly classified, packaged, marked and labeled
to ensure the safe shipment by rail or any other mode of
transportation.
Question 4. DOT has been working with the railroads on voluntary
commitments to increase safety standards for the transport of crude
oil. Are voluntary agreements sufficient to address the issues raised
by crude train derailments?
Answer. DOT is taking a comprehensive approach to enhancing the
safe transportation of crude oil by rail. Transportation safety is a
shared responsibility. For that reason, DOT's comprehensive approach
includes the issuance of emergency orders and safety advisories,
rulemaking, voluntary commitments from industry, data gathering and
analysis and education and outreach. In DOT's experience, voluntary
measures can be an effective and efficient tool to enhancing rail. With
respect to raising the safety bar for the shipment of crude oil by
train, DOT believes that the rail industry's voluntary commitments are
already delivering safety benefits in terms of preventing, mitigating
and responding to incidents involving trains shipping crude oil.
However, DOT will not rely solely on these voluntary agreements to
improve the safe transportation of crude oil by train. Among other
efforts, the Department will issue a comprehensive notice of proposed
rulemaking this summer to solicit public comment on additional safety
measures that should be adopted.
Increased Funding for Freight and Rail
Question 5. It's important to pay our bills, but we need to do a
lot more than that to modernize our transportation system. The
Administration recently proposed a bill that proposes large funding
increases for passenger rail and freight programs. Why has the
Administration focused increased resources on rail and freight programs
specifically?
Answer. The importance of transportation infrastructure to global
economic competitiveness is indisputable. In order for the Unites
States to maintain and improve its economic competitiveness into the
future, it must address a number of challenges that directly influence
the mobility of people and goods across the country, including:
Predicted population growth of 100 million additional people
over the next 35 years;
Highway and aviation congestion that continues to rise,
where the ability to expand capacity is severely constrained in
many areas with the worst congestion;
Rising energy costs and greenhouse gas emissions; and
Changing demographics and travel habits that demonstrate
that younger generations of American are choosing to drive both
less often and for fewer miles than previous generations, while
at the same time a large number of Americans are entering their
retirement years and also choosing to drive less often
(particularly over longer distances).
Rail is uniquely well-suited to meeting these challenges and has
demonstrated strong public benefits both in the United States and
internationally. To accommodate population growth, rail provides very
high capacity within a relatively limited geographic footprint. Rail is
among the most energy-efficient ways to travel and ship freight, and
also exhibits lower pollution emission rates than other modes. As
highway and airport congestion increases, rail can provide a more
reliable and efficient travel options for many markets.
In terms of freight rail, intermodal freight shipments exceeded
record volumes in 2013, with 12.8 million containers and trailers
shipped (AAR, Weekly Rail Traffic Summary). This growth demonstrates
the demand for intermodal rail transportation as more shippers decide
to take advantage of the mode's inherent economic advantages.
Additionally, freight rail systems consist primarily of privately-owned
infrastructure and are maintained out of railroad revenues; whereas
heavy intercity trucks pay only 80 percent of the costs they impose on
Federal highways through wear-and-tear (FHWA, Addendum to the 1997
Federal Highway Cost Allocation Study).
Demand for passenger rail is surging across the United States, as
ridership levels have set new records in ten of the past eleven years.
In FY 2013, Amtrak carried a record 31.6 million passengers, including
15.4 million passengers on its State-supported routes (another record).
Additionally, nearly every region in the United States has demonstrated
demand for investments in passenger rail services to relieve
congestion, to provide alternative transportation options, and to
complement our world class highway and aviation systems.
Question 6. Why is it important that these programs have dedicated
trust fund money rather than annual appropriations?
Answer. Congress has for decades funded highway infrastructure and
safety, transit, and aviation programs through multi-year
authorizations that provide guaranteed funding; this enables States,
local governments, private industry, and other stakeholders to plan and
make large-scale infrastructure investments on a year-to-year basis.
This type of predicable, dedicated funding is critical to providing
rail stakeholders with the certainty they have long required to
effectively plan and execute projects that will improve transportation
infrastructure, allow regions and States to achieve their long-term
visions for rail transportation, and to support economic growth across
the country.
In the last five years, DOT and its State and private partners have
invested over $70 million in planning studies to establish a pipeline
of future rail projects. These studies and independent planning efforts
led by the States have resulted in a pipeline of more than $20 billion
worth of projects that are already underway or ready for construction.
Predictable and dedicated funding for rail will allow DOT and its
stakeholder to make the market-based investments necessary to turn
these studies into improved and new services.
Truck Safety Issues (Hours of Service)
Question 7. The Federal Motor Carrier Safety Administration (FMCSA)
uses Hours of Service regulations to help prevent fatigue-related
accidents in the trucking industry. After years of working on hours of
service regulations, some in Congress want to stop enforcement of
important provisions. I'm concerned this could have unintended
consequences on safety. What are the real world impacts of rolling back
these provisions?
Answer. Rolling back the once-a-week limit on use of the 34-hour
restart that FMCSA adopted in its December 2011 final rule would allow
employers to require their commercial truck drivers to work an average
of more than 80 hours per week and remain behind the wheel on our
Nation's highways. This would significantly increase the risk of a
fatigue-related crash. No other mode of transportation allows employers
to demand that safety-sensitive employees work such grueling schedules.
The current 34-hour provision that has been in effect since July 1,
2013, limits truck drivers to an average of 70 hours on duty per week.
FMCSA estimates that limitation on the use of the 34-hour restart will
save 19 lives per year, prevent hundreds of injuries, and improve
driver health. Were the proposed legislation suspending enforcement of
the rule enacted, these safety benefits would be lost.
Truck Safety Issues (Truck Size and Weight)
Question 8. As mandated by MAP-21, DOT is currently conducting a
comprehensive truck size and weight study to evaluate large trucks and
their impacts on safety and infrastructure. That study is due out later
this year, but the National Academy of Sciences is conducting a peer
review and has already found significant issues with DOT's work. How do
you plan to specifically address the criticisms of the study--such as
weaknesses in data and methodology--identified by the National Academy
of Sciences?
Answer. The NAS Committee's recommendations to DOT focused on ways
to accurately demonstrate trend lines given the inherit limitations and
uncertainties of the available data. The NAS Peer Review Panel also
recommended a consistent organization of the elements within each of
five desk scans, a clear linkage between material in each desk scan and
its corresponding project plan, and a synthesis of methods and results
from prior studies to the results of this Study. We agree with these
recommendations and are incorporating these changes in the final desk
scans and related documents. The Department will also provide a full
accounting of the assumptions and limitations for each study area. Many
of the limitations in existing data sets and models will impact the
ability of the Study to support national-level conclusions. The
Department will identify areas for improving the measuring and
collecting of data and for future analysis in areas of critical
importance and relevance to the Study topics.
Question 9. Others have raised concerns that DOT is working to meet
a deadline rather than make sure the study is accurate. Would
additional time help DOT address these concerns and improve the
accuracy of the study?
Answer. We are focused on producing a Study that is objective,
data-driven, uses appropriate methods and is responsive to the
requirements set forth in MAP-21. The Department takes congressional
deadlines seriously, but if it takes longer than the Congressional
deadline to produce a satisfactory Study, then we will take that
additional time. Currently, technical staff is reviewing the initial
draft results of the analysis to determine what, if any, additional
work needs to be completed to clarify the results before presenting the
analysis to the public.
______
Response to Written Questions Submitted by Hon. Maria Cantwell to
Victor M. Mendez
Question 1. As you know, freight projects are always fighting for
attention in our existing grant programs, like TIGER. They are up
against very worthy transit, highway, and bike/ped projects. Do you
believe a new freight-specific discretionary grant program would help
meet the nationwide need for investing in job-creating freight mobility
projects?
Answer. Yes. The U.S. transportation system moves more than 52
million tons of goods worth nearly $46 billion each day, or almost 40
tons of freight per person per year. By 2040, freight tonnage is
expected to increase by 62 percent, requiring additional capacity to
our highways, railroads, ports, and pipelines and improvements to
multi-modal connections that move freight efficiently and safely, and
keep our economy growing.
While TIGER has been able to fund a number of a number of
meritorious freight projects, we are not able to award every worthwhile
project because of insufficient funds. In the GROW AMERICA Act, the
Department proposes to create a Multimodal Freight Investment Program
that would include an incentive grant program and a discretionary grant
program. The discretionary program would award up to $5 billion in
grants over four years to the projects that would have the greatest
impact on the safety, efficiency, and state of good repair of the
freight transportation system. The incentive grant program would make
$5 billion available over four years by formula to states that have
engaged multimodal stakeholders in a comprehensive freight planning
process. The multimodal freight investments that these programs would
fund are critical to improving the economics competitiveness of
American industry.
Question 2. As you know, we are reaching a decision point on the
Highway Trust Fund and needing to fill the coming shortfall. As we do
that, there will be an opportunity to discuss how transportation
programs are funded more broadly. Do you believe that we need a
dedicated source of funding for multimodal projects, like those at
ports? And if so, how would you envision this dedicated source being
capitalized?
Answer. Funding sources that are not tied narrowly to any one mode
of transportation allow for funding of multimodal projects without
being concerned that funds are being diverted from one mode to another.
We have seen the benefits of this approach with the TIGER Discretionary
Grant Program, which has been funded with general funds, initially via
the Recovery Act and later through the annual appropriations process.
TIGER has presented the Department with an opportunity to fund a number
of innovative, multimodal freight projects across the Nation. Many of
these projects leveraged significant private and other public co-
investment. Similarly, looking forward and more broadly, the Department
has proposed the multimodal GROW AMERICA Act, which would be paid for
in part through a pro-growth business tax reform without adding to the
deficit. This $150 billion in revenue through the general fund would
allow investments in a wide range of modes, including ports, rail,
highways, and intermodal freight facilities.
Question 3. What sort of funding level do you think would be
appropriate to dedicate to multimodal freight funding every year?
Obviously GROW AMERICA contains $10 billion over four years--do you
really think that is enough to meet the need? There are probably $10
billion in important freight projects just in Washington state that are
needed to efficiently move agricultural products and containers to and
from our ports.
Answer. There are many meritorious and significant freight projects
across the country that would benefit from funding assistance. The GROW
AMERICA Act includes $10 billion for multimodal freight funding over 4
years, and would give the Department a chance to make targeted
investments in freight projects that would have the biggest impact on
the safety, efficiency, and state of good repair of the freight
transportation system. While we recognize that $10 billion is not
nearly enough to meet the entire nation's freight investment needs, it
is a significant down payment and we hope will serve as a catalyst for
additional freight funding in the future. Initial funding of such a
freight program would help us to assess the level of need for projects
like this and inform the Department and the Congress about what levels
of funding would be appropriate in the future.
Question 4. How did the National Freight Advisory Committee (NFAC)
draft recommendations play into the GROW AMERICA proposal?
Answer. The National Freight Advisory Committee's (NFAC) recent
work has been focused on helping the Department develop the National
Freight Strategic Plan. On June 12, 2014, the NFAC submitted 90
recommendations to the Secretary for this effort.
While these recommendations focused specifically on the National
Freight Strategic Plan, many of them spoke to underlying themes and
issues that the Department attempted to address in the GROW AMERICA
Act. For example, nine recommendations focus on the need for
consistent, increased, or smarter funding of freight projects. Some of
these recommendations correlate with the multimodal freight incentive
grant program and national freight infrastructure program in the GROW
AMERICA Act. Similarly, many recommendations focus on streamlined and
more efficient environmental permitting, which is also a major area of
focus for the Administration and is reflected in the GROW AMERICA Act.
Question 5. Do you know how soon you expect those recommendations
to be finalized?
Answer. The NFAC finalized and submitted these 90 recommendations
to the Department on June 12, 2014. These recommendations may be viewed
on the NFAC's website, http://www.dot.gov/nfac.
Question 6. You have obviously worked on freight issues for a long
time in your career. Are there things that the NFAC recommended that
you think got left out of the GROW AMERICA proposal?
Answer. The NFAC proposed developing additional recommendations for
the DOT regarding streamlining efforts for state, local, MPO, and
private planning, developing goals related to freight safety, and
workforce development in the freight sector. The Department is
currently establishing NFAC workgroups on each of these topics and
expects additional recommendations by the end of the year.
Additionally, the NFAC is scheduled to meeting on July 15 and 16 to
evaluate and discuss elements of a freight program in the next
reauthorization bill. We expect to receive additional input from the
NFAC on what should be incorporated into a freight program and we would
be happy to share those comments when they are completed.
______
Response to Written Questions Submitted by Hon. John Thune to
Victor M. Mendez
Question 1. Mr. Mendez, the Administration's proposed GROW America
bill includes a proposal to give the National Highway Traffic Safety
Administration (NHTSA) the authority to regulate navigation apps on
smartphones and other electronic devices and products that can be
brought into vehicles. How would NHTSA enforce such restrictions in
practice?
Answer. It is my understanding that NHTSA does not have any plans
to propose regulations to restrict navigation apps on smartphones or
other electronic devices and products that can be brought into
vehicles.
Question 1a. Does NHTSA have the structure to oversee an
innovative, dynamic and rapidly changing industry as navigation apps
proliferate and grow in sophistication?
Answer. NHTSA has sufficient structure today to perform its
longstanding mission of identifying and analyzing safety risks that
potentially could be introduced by new items of automotive equipment,
including navigation apps, that may be introduced into the American
market. As it always has, NHTSA will respond appropriately if it
identifies any unreasonable risks to safety introduced by such
automotive equipment.
Question 1b. How do you respond to the concern that restrictions
and excessive regulation will stunt innovation in a space where
innovation has flourished?
Answer. NHTSA has no plans to propose regulations over navigation
apps and our overall efforts will continue to support innovation in the
auto industry. Safety will always be our top priority in determining
whether or not to establish new regulations and regulations we propose
in other areas are designed to maintain and even encourage innovation
while making progress on safety.
Question 2. Mr. Mendez, according to news reports, even if NHTSA
obtains the authority from Congress, the agency has no immediate plans
to issue rules to regulate navigation apps on smartphones and other
devices, which begs the question of why such authority is needed in the
first place. How do you respond to the concern that this effort to
establish authority over navigations apps is just another regulatory
power grab by another Federal agency?
Answer. NHTSA is not seeking authority to regulate navigation apps
or any other apps on handheld devices. NHTSA's existing authority
covers these apps, but, as you indicated in your question, NHTSA
doesn't have any plans to issue regulations for apps. The proposed
provision in the GROW AMERICA Act addresses a different issue
altogether--NHTSA's ability to rely upon industry-consensus process
standards, such as ISO standards, when it regulates on-board
electronics and software in vehicles.
Question 3. Mr. Mendez, one of the recurring themes we seem to
discuss on the Committee for every mode of transportation is fatigue--
from hour of service requirements to the impact of sleep apnea. While
every mode of transportation is unique, it does seem that some basic
issues overlap, including the correlation between tired operators and
increased safety risks. Do you know if the DOT has considered tackling
the issue of fatigue in a more global manner, especially with respect
to research? If so, how? If not, is that something you would commit to
considering?
Answer. Fatigue safety risks are a life-threatening concern for the
Department. Every year, an estimated one million roadway crashes and
near-misses are likely fatigue-related, with thousands of people losing
their lives and being injured. Fatigue-related tragedies are played out
across every hour of the day throughout our Nation's transportation
system. We have worked to tackle fatigue across the Department. The
Federal Aviation Administration (FAA) for example, issued new hours of
service rules for pilots and the Federal Motor Carrier Safety
Administration (FMCSA) issued new rules for commercial truck drivers.
While representing the most significant changes in over 70 years, and
incorporating many science-based elements, the aviation rules do not
yet cover all pilots, and the truck rules are facing challenges. These
are important developments that represent real progress, and need to be
embraced and applauded. But so much more needs to be done. Reducing
fatigue risks in transportation is everyone's ongoing responsibility:
companies, the government, individual operators, and travel consumers.
And when you are behind the wheel, every moment requires you to be
wide-awake and alert.
Question 4. Mr. Mendez, one concern that we often hear about is how
each mode can sometimes be stove-piped within DOT, and how
communication between the modes can be difficult. Is this something
that you have experienced as modal administrators? If so, what steps
would you take to prevent this in the future should you be confirmed?
Answer. An appropriate management structure can help avoid
stovepiping, although no one model is appropriate in every case. One
approach, having a single manager, can assure that one person has
overall responsibility for the entire project and can help ensure that
the interests and goals of the project are kept in mind at all times.
Subproject or functional-unit managers exercise control over the
various phases, but the overall manager can see that the phases are
coordinated and that the project stays on track and on budget. With the
Transportation Investment Generating Economic Recovery (TIGER)
discretionary grant program, we established TIGER teams. The advantage
of teams for avoiding stovepiping is that they can cut across
functional boundaries in any organization, helping to manage the phases
of the project delivery cycle in a seamless way and encouraging
positive handoffs during the transition to different phases. In other
words, project management teams can help shepherd a project through the
organizational structures that are already in place while assuring that
the project-level commitments made at each stage are kept. The TIGER
team approach has been so successful we have mirrored the formula for a
number of other Department-wide multimodal efforts.
Question 5. I am concerned about reports regarding the National
Roadside Survey of Alcohol and Drugged Driving that revealed motorists
complaints of being forced off the road and asked to provide breath,
blood and saliva samples. While combating impaired driving is a
priority, and while survey data provide important insights to
policymakers regarding the scope of this problem, it is important that
the methods employed by NHTSA and its contractors respect the civil
liberties of our Nation's motorists. Survey participation should be
voluntary and not feel coerced as some have claimed. Can you explain
how the survey was conducted and what procedures, if any, NHTSA employs
to ensure that its testing activities--both those conducted by the
agency itself and those conducted through third-party contractors--are
constitutional and as unobtrusive as possible?
Answer. In conducting the National Roadside Survey of Alcohol and
Drugged Driving, NHTSA took great care to protect the rights of
motorists and coordinated closely with State highway safety officials
well in advance of setting up a survey site. An experienced non-profit
research organization under contract to NHTSA conducted the survey.
Trained researchers collected the data from volunteer participants, but
only after specifically informing each participant that the survey was
voluntary and anonymous, and that the participant was free to
discontinue participation at any time. The survey followed a strict
protocol that was reviewed and approved by an Institutional Review
Board (IRB) for the Protection of Human Subjects. IRB review is
designed to ensure that subjects of federally-funded research are
treated with dignity, respect, and courtesy, that their participation
is voluntary, that there is no coercion, and that volunteers give
informed consent to participate.
Even before entering the survey site, motorists were faced with
large signs in the roadway alerting them to the ``Paid Voluntary
Survey'' ahead. The survey protocol makes sure that participants were
informed in multiple ways of the voluntary and anonymous nature of the
survey. The survey has been conducted by NHTSA on a periodic basis for
several decades. It is a vital source of data on the presence and
prevalence of alcohol and drug use by drivers on the road, and critical
to the Department's efforts to reduce impaired driving.
______
Response to Written Questions Submitted by Hon. Maria Cantwell to
Peter M. Rogoff
Question 1. As you know, freight projects are always fighting for
attention in our existing grant programs, like TIGER. They are up
against very worthy transit, highway, and bike/ped projects. Do you
believe a new freight-specific discretionary grant program would help
meet the nationwide need for investing in job-creating freight mobility
projects?
Answer. Yes, I certainly do. Over the next few decades, freight
traffic is expected to grow dramatically. In fact, by 2040, freight
tonnage is expected to increase by 62 percent, requiring additional
capacity to our highways, railroads, ports, and pipelines and
improvements to multi-modal connections that move freight efficiently
and keep our economy growing.
Despite its importance to the economy, freight investments can be
disadvantaged in the current transportation planning process. These
projects face competition from non-freight projects for public funds
and community support, a lack of coordination among various government
entities and private sector stakeholders, and limited availability of
public funds to address the key freight chokepoints. In my view, Port
connections in particular--be they rail or road connections--have not
gotten appropriate attention. This has not only undermined our
competitiveness as an importer and exporter but has in many communities
undermined the air quality of neighboring residential areas.
In the GROW AMERICA Act, the Department proposes to create a
Multimodal Freight Investment Program that would include an incentive
grant program and a discretionary grant program. Importantly, this
program would give freight stakeholders such as shippers, railroads,
and trucking firms a meaningful seat at the table in making project
selections. The discretionary program would award not less than $5
billion in grants over four years to the projects that would have the
greatest impact on the safety, efficiency, and state of good repair of
the freight transportation system. The incentive grant program would
make up to $5 billion available over four years by formula to states
that have engaged multimodal stakeholders in a comprehensive freight
planning process. Any funds not required to fulfill formula
apportionments would be available for additional discretionary grants.
I was pleased to work carefully with Secretary Foxx in developing these
proposed programmatic details.
Question 2. As you know, we are reaching a decision point on the
Highway Trust Fund and needing to fill the coming shortfall. As we do
that, there will be an opportunity to discuss how transportation
programs are funded more broadly. Do you believe that we need a
dedicated source of funding for multimodal projects, like those at
ports? And if so, how would you envision this dedicated source being
capitalized?
Answer. I believe that having a robustly funded program truly
dedicated to multimodal freight investments is more important than
having a dedicated funding source for those investments. The entire
national economy is highly dependent on the efficiency and productivity
of our freight networks and we mustn't shrink from funding them simply
because there is not a dedicated funding source. The TIGER
Discretionary Grant Program has presented the Department with an
opportunity to fund a number of innovative, multimodal freight projects
across the Nation using annual general fund appropriations. Many of
these projects leveraged significant private co-investment. The
Department has now proposed the multimodal GROW AMERICA Act, which
would be paid for in part through a pro-growth business tax reform
without adding to the deficit. This $150 billion in revenue through the
general fund would allow investments in a wide range of modes,
including ports, rail, highways, and intermodal freight facilities.
Question 3. What sort of funding level do you think would be
appropriate to dedicate to multimodal freight funding every year?
Obviously GROW AMERICA contains $10 billion over four years--do you
really think that is enough to meet the need? There are probably $10
billion in important freight projects just in Washington state that are
needed to efficiently move agricultural products and containers to and
from our ports.
Answer. The GROW AMERICA Act includes $10 billion for multimodal
freight funding over 4 years, and would give the Department a chance to
make targeted investments in freight projects that would have the
biggest impact on the safety, efficiency, and state of good repair of
the freight transportation system. While I recognize that $10 billion
is not nearly enough to meet the entire nation's freight investment
needs, I am hopeful that the cooperative processes that would be
strengthened through our new GROW AMERICA program--including the full
engagement of freight stakeholders in project selection decisions--will
result in states and communities boosting their own investment in
critical freight projects utilizing the increased formula resources
that the GROW AMERICA Act would provide. The GROW AMERICA Act seeks to
build on the excellent freight measures that you included in MAP-21 and
will, we hope, initiate an unprecedented level of cooperation and
dialogue in the planning, development, and funding of critical freight
projects from many different funding sources.
Question 4. How did the National Freight Advisory Committee (NFAC)
draft recommendations play into the GROW AMERICA proposal?
Answer. The National Freight Advisory Committee's (NFAC) recent
work has been focused on helping the Department develop the National
Freight Strategic Plan. On June 12, 2014, the NFAC submitted 90
recommendations to the Secretary for this effort.
While these recommendations focused specifically on the National
Freight Strategic Plan, many of them spoke to underlying themes and
issues that the Department attempted to address in the GROW AMERICA
Act. For example, nine recommendations focus on the need for
consistent, increased, or smarter funding of freight projects. Some of
these recommendations correlate with the multimodal freight incentive
grant program and national freight infrastructure program in the GROW
AMERICA Act. Similarly, many recommendations focus on streamlined and
more efficient environmental permitting, which is also a major area of
focus in the GROW AMERICA Act.
Question 5. Do you know how soon you expect those recommendations
to be finalized?
Answer. The NFAC finalized and submitted these 90 recommendations
to the Department on June 12, 2014. These recommendations may be viewed
on the NFAC's website, http://www.dot.gov/nfac.
Question 6. You have obviously worked on freight issues for a long
time in your career. Are there things that the NFAC recommended that
you think got left out of the GROW AMERICA proposal?
Answer. The NFAC proposed developing additional recommendations for
the DOT regarding streamlining efforts for state, local, MPO, and
private planning, developing goals related to freight safety, and
workforce development in the freight sector. The Department is
currently establishing NFAC workgroups on each of these topics and
expects additional recommendations by the end of the year.
Additionally, the NFAC is scheduled to meet on July 15 and 16 to
evaluate and discuss elements of a freight program in the next
reauthorization bill. We expect to receive additional input from the
NFAC on what should be incorporated into a freight program and we would
be happy to share those comments when they are completed.
Importantly, given your own role as a leader on freight mobility
issues in the Senate, we would welcome the opportunity to sit down and
hear your views on any critical elements that should be augmented to
our proposal as part of the legislative process.
______
Response to Written Questions Submitted by Hon. John Thune to
Peter M. Rogoff
Question 1. Mr. Rogoff, the Administration's proposed GROW America
bill includes a proposal to give the National Highway Traffic Safety
Administration (NHTSA) the authority to regulate navigation apps on
smartphones and other electronic devices and products that can be
brought into vehicles. How would NHTSA enforce such restrictions in
practice?
Answer. The GROW AMERICA Act has many important provisions intended
to enhance safety across our national transportation network. However,
it does not include a provision to restrict electronic devices and
products that can be brought into vehicles. As I understand it, the Act
seeks to address a different issue, namely NHTSA's authority to rely
upon industry consensus process standards in regulating vehicle
electronics.
Question 1a. Does NHTSA have the structure to oversee an
innovative, dynamic and rapidly changing industry as navigation apps
proliferate and grow in sophistication?
Answer. While these technologies are expanding widely and quickly,
NHTSA must continue its longstanding efforts to identify and analyze
the safety risks associated with these and other new types of
automotive equipment that could be brought to the market. Where
unreasonable risks are identified, NHTSA will engage the manufacturers
and consumers as it always has to ensure safety.
Question 1b. How do you respond to the concern that restrictions
and excessive regulation will stunt innovation in a space where
innovation has flourished?
Answer. NHTSA and the rest of DOT have no interest in engaging in
excessive regulation or stunting innovation. This area of innovation
has been met with strong consumer approval and has provided consumers
with many new opportunities. NHTSA will always be focused on
maintaining safety, first and foremost, and any regulations in this
area will seek to capture the appropriate balance to provide consumers
with the products they desire while maintain safety on our highways.
Question 2. Mr. Rogoff, according to news reports, even if NHTSA
obtains the authority from Congress, the agency has no immediate plans
to issue rules to regulate navigation apps on smartphones and other
devices, which begs the question of why such authority is needed in the
first place. How do you respond to the concern that this effort to
establish authority over navigations apps is just another regulatory
power grab by another Federal agency?
Answer. NHTSA and the rest of DOT have no interest in seeking
unnecessary authority. As I understand it, NHTSA's existing authority
covers these devices. And, in fact, there are no agency plans to issue
regulations for apps. The proposed provision in the GROW AMERICA Act
seeks to address a different issue--NHTSA's ability to rely upon
industry-consensus process standards when it regulates on-board
electronics and software in vehicles. I'm sure NHTSA would welcome the
opportunity to brief the Committee in greater detail on this issue if
that would be helpful.
Question 3. Mr. Rogoff, one of the recurring themes we seem to
discuss on the Committee for every mode of transportation is fatigue--
from hour of service requirements to the impact of sleep apnea. While
every mode of transportation is unique, it does seem that some basic
issues overlap, including the correlation between tired operators and
increased safety risks. Do you know if the DOT has considered tackling
the issue of fatigue in a more global manner, especially with respect
to research? If so, how? If not, is that something you would commit to
considering?
Answer. You are quite correct that the fatigue issue cut across all
parts of the DOT. And the Department should be using the best science
available on fatigue when issuing any regulations or safety advisories
across the Department. The Department must continue to stay up to date
in this area because the stakes are so high. Every year, an estimated
one million roadway crashes and near-misses are likely fatigue-related,
with thousands of people losing their lives and being injured. These
tragedies impact families all across the Nation every day. As such, the
DOT has worked to tackle fatigue across the Department. New rules have
been issued both by the Federal Aviation Administration (FAA) and the
Federal Motor Carrier Safety Administration (FMCSA). These are
important areas of progress. DOT will continue to monitor the impact of
these rules both on the impacted industries and on safety to ensure
that we are capturing the right balance. And we will continue to bring
the best science to bear upon these efforts.
Question 4. Mr. Rogoff, one concern that we often hear about is how
each mode can sometimes be stove-piped within DOT, and how
communication between the modes can be difficult. Is this something
that you have experienced as modal administrators? If so, what steps
would you take to prevent this in the future should you be confirmed?
Answer. Yes. I certainly experienced the issue of stovepiping
within the Department when I served as a modal administrator. I believe
one of the critical roles of the Under Secretary position is to
eliminate or minimize that tendency wherever and whenever it appears.
Regular communication between modes at all levels of the organization
can and has helped address this issue. It can also help avoid
duplication and help achieve efficiencies to benefit the taxpayer. Your
questions regarding fatigue above cites an important example where
individual modes should be able to benefit from the work done in other
modes when confronting the safety challenge within their own mode. If
confirmed to the Under Secretary position, I will work diligently to
push each of the modes to share their experience and expertise in the
many cross-cutting areas that impact the Department so that the
Department can speak with one voice and avoid unnecessary expense.
Question 5. I am concerned about reports regarding the National
Roadside Survey of Alcohol and Drugged Driving that revealed motorists
complaints of being forced off the road and asked to provide breath,
blood and saliva samples. While combating impaired driving is a
priority, and while survey data provide important insights to
policymakers regarding the scope of this problem, it is important that
the methods employed by NHTSA and its contractors respect the civil
liberties of our Nation's motorists. Survey participation should be
voluntary and not feel coerced as some have claimed.
Can you explain how the survey was conducted and what procedures,
if any, NHTSA employs to ensure that its testing activities--both those
conducted by the agency itself and those conducted through third-party
contractors--are constitutional and as unobtrusive as possible?
Answer. Whenever the DOT engages the public for information
gathering purposes, it is essential that the public be treated with
dignity and that privacy rights are fully respected and protected. My
understanding it that NHTSA worked closely with State highway safety
officials when developing the methodology the National Roadside Survey
of Alcohol and Drugged Driving in order to ensure that the survey be
conducted in such a way. The survey was conducted by an experienced
non-profit research organization under contract to NHTSA. Trained
researchers collected the data from volunteer participants, but only
after specifically informing each participant that the survey was
voluntary and anonymous, and that the participant was free to
discontinue participation at any time. The survey followed a strict
protocol that was reviewed and approved by an Institutional Review
Board (IRB) for the Protection of Human Subjects. IRB review is
designed to ensure that subjects of federally-funded research are
treated with dignity, respect, and courtesy, that their participation
is voluntary, that there is no coercion, and that volunteers give
informed consent to participate.
Even before entering the survey site, motorists were faced with
large signs in the roadway alerting them to the ``Paid Voluntary
Survey'' ahead. The survey protocol makes sure that participants were
informed in multiple ways of the voluntary and anonymous nature of the
survey. The survey has been conducted by NHTSA on a periodic basis for
several decades. It is a vital source of data on the presence and
prevalence of alcohol and drug use by drivers on the road, and critical
to the Department's efforts to reduce impaired driving.
______
Response to Written Question Submitted by Hon. John Thune to
Marcus D. Jadotte
Question. Mr. Jadotte, I note that your biography includes several
instances of political consulting via your consulting company, Potomac
Wave LLC, representing the Florida Democratic Party in 2012, the DCCC
in 2008, the Friends United PAC in 2012, and Terry McAuliffe for
Governor in 2009. You also served as a senior advisor to Obama for
America (OFA) in 2012. In the position to which you have been nominated
at the Department of Commerce, there could be opportunities to favor
certain businesses--or at least certain sectors--over others.
In light of your past political activity, will you commit to
approach efforts to help U.S. business in a scrupulously nonpartisan
way?
Answer. I am committed to helping American businesses succeed. If
confirmed, I will approach all of my work at the United States
Department of Commerce in a nonpartisan fashion.
______
Response to Written Questions Submitted by Hon. John Thune to
Hon. Robert S. Adler
Question 1. In January and July 2011, President Obama issued
Executive Orders 13563 and 13579 calling on regulatory agencies to
``afford the public a meaningful opportunity to comment'' during the
rule-making process, ``use the best, most innovative, and least
burdensome tools for achieving regulatory ends'' and to ``take into
account benefits and costs [of regulation], both quantitative and
qualitative.'' The President also asked independent regulatory agencies
to formulate plans for the retrospective review of existing regulations
in order to ``determine whether any such regulations should be
modified, streamlined, expanded, or repealed so as to make the agency's
regulatory program more effective or less burdensome in achieving
regulatory objectives.''
Please provide a detailed explanation of what steps the CPSC has
taken to comply with these Executive Orders.
Answer. Although as an independent agency, the Consumer Product
Safety Commission is not legally obligated to comply with Executive
Orders, we always strive within the framework of our governing statutes
to follow the spirit of Presidential Executive Orders. With respect to
Executive Orders 13563 and 13579, in order for me to respond
adequately, I need to briefly review the history of the CPSC's
rulemaking. I do so to make the point that we have undertaken both the
promulgation of regulations and their retrospective review in the full
spirit of the policies incorporated in the Executive Orders. So, I
begin with several observations:
1. Since 1981, the CPSC has been required under amendments to the
Consumer Product Safety Act (and the other acts it enforces) to
conduct an extensive cost-benefit analysis when we promulgate
safety rules. Under these amendments, our cost-benefit approach
is as comprehensive, if not more so, as that set forth in any
Executive Order issued by the Office of the President.
2. Over the years, the CPSC has promulgated extremely few mandatory
safety rules requiring cost-benefit analyses, a grand total of
nine in thirty three years--or about one every 3.5 years--
opting instead to work with the voluntary standards sector and
to negotiate individual Corrective Action Plans for the recall
of specific hazardous products.
3. Under the Regulatory Flexibility Act of 1980, the CPSC chose to
undertake a retrospective review of every safety rule under its
jurisdiction from its beginning, not just those identified as
having a ``substantial impact on a number of small entities''
(and, therefore, requiring a mandatory review).
4. In addition to the retrospective review of agency regulations
mandated by the Regulatory Flexibility Act, the CPSC has
voluntarily undertaken a comprehensive review of its
regulations in recent years in a spirit consistent with
Executive Order 13563 and anticipates continuing to do so in
the future.
Least Burdensome Tools: With respect to our utilization of the
least burdensome tools for achieving our regulatory ends, in 1981,
Congress added a broad and comprehensive set of cost-benefit
requirements to the Consumer Product Safety Act (and the other acts
enforced by the CPSC) for consumer product safety rules promulgated by
the CPSC. These provisions, contained in section 9 of the CPSA, easily
match, if not surpass, in their stringency and scope the cost-benefit
provisions of the various Executive Orders on cost-benefit analysis
recommended by the Office of Management and Budget. Among other things,
they require the CPSC, prior to promulgating almost every safety rule,
to:
Make findings with respect to the degree and nature of the
risk of injury the rule is designed to eliminate or reduce; the
approximate number of consumer products, or types or classes
thereof, subject to such rule; the need of the public for the
consumer products subject to such rule, and the probable effect
of such rule on the utility, cost, or availability of such
products to meet such need; and any means of achieving the
objective of the order while minimizing adverse effects on
competition or disruption or dislocation of manufacturing and
other commercial practices consistent with the public health
and safety.
Prepare a final regulatory analysis of the rule containing
the following information: a description of the potential
benefits and potential costs of the rule, including costs and
benefits that cannot be quantified in monetary terms, and the
identification of those likely to receive the benefits and bear
the costs; a description of any alternatives to the final rule
which were considered by the Commission, together with a
summary description of their potential benefits and costs and a
brief explanation of the reasons why these alternatives were
not chosen; a summary of any significant issues raised by the
comments submitted during the public comment period in response
to the preliminary regulatory analysis, and a summary of the
assessment by the Commission of such issues.
Find that the rule (including its effective date) is
reasonably necessary to eliminate or reduce an unreasonable
risk of injury associated with the product; that the
promulgation of the rule is in the public interest; in the case
of a rule declaring the product a banned hazardous product,
that no feasible consumer product safety standard under the
CPSA would adequately protect the public from the unreasonable
risk of injury associated with the product; in the case of a
rule which relates to a risk of injury with respect to which
persons who would be subject to such rule have adopted and
implemented a voluntary consumer product safety standard that
compliance with such voluntary consumer product safety standard
is not likely to result in the elimination or adequate
reduction of such risk of injury; or it is unlikely that there
will be substantial compliance with such voluntary consumer
product safety standard.
Find that the benefits expected from the rule bear a
reasonable relation to its costs and that rule imposes the
least burdensome requirement, which prevents or adequately
reduces the risk of injury for which the rule is being
promulgated.
Give interested persons an opportunity for the oral
presentation of data, views, or arguments, in addition to an
opportunity to make written submissions.
Speaking from personal experience, I note that the analysis and
findings contained in section 9 of the CPSA (and similar provisions in
other acts the agency enforces) have resulted in rulemaking proceedings
that span years of effort and cost the agency millions of dollars. I do
not believe that one could reasonably expect any more analysis by a
regulatory agency, especially one with such limited resources that is
directed to save the lives of young children.
Making The Agency's Regulatory Program More Effective or Less
Burdensome in Achieving Regulatory Objectives: Both in response to the
extremely detailed, time-consuming requirements in section 9 of the
CPSA and because of its success in working with the voluntary standards
sector, the CPSC has opted, wherever possible, to look to the
promulgation and strengthening of voluntary standards as an alternative
to developing mandatory standards. The Commission, of course, has
always retained the option to undertake mandatory rulemaking where
voluntary standards have proven to be inadequate. As I noted, the
burdens of mandatory rulemaking have resulted in the Commission's
promulgation of only nine standards in the 33 years since the 1981
amendments. In sharp contrast, the Commission has actively participated
in the development or enhancement of hundreds of voluntary standards in
that same time period. As I shall mention, the Commission's infrequent
promulgation of mandatory rules and reliance on voluntary standards has
not gone without criticism in Congress, especially when it comes to
protecting the lives and safety of young children.
There are limits on the use of voluntary standards in protecting
American consumers, but they have, of necessity, become important tools
in CPSC's approach to product safety.
CPSC and the Regulatory Flexibility Act (RFA): Section 610 of the
RFA requires agencies to periodically review rules that have a
significant impact on a substantial number of small entities. Each
agency is required to publish a plan demonstrating its approach to its
review. Accordingly, as far back as September 1981, the CPSC published
its plan for reviewing existing rules under the RFA, as well as
subsequent rules within 10 years of their publication.
The CPSC has gone far beyond the requirements of the RFA in its
plan. In fact, the agency not only has solicited and reviewed comments
for rules that we have determined would have a significant economic
impact on a substantial number of small entities, we have actually
conducted a review of every safety rule under our jurisdiction. In
addition to soliciting comments from the general public in the Federal
Register, we have directly contacted affected parties and their trade
associations through appropriate trade publications. Moreover, the
Commission has made an effort personally to contact those persons who
submitted comments during the earlier rulemaking proceedings. Based on
the information received in the comments, as well as other information
available to the Commission, CPSC staff has then conducted an
assessment of the degree of economic impact on small entities and
sought to identify appropriate actions required to minimize the impact
on those entities consistent with the objective of the statute under
which the regulations were issued.
Under section 610(b) of the RFA, the Commission has sought comments
on, and reviewed its rules according to, the following factors: (1) the
continued need for the rule; (2) the nature of complaints or comments
received concerning the rule from the public; (3) the complexity of the
rule; (4) the extent to which the rule overlapped, duplicated, or
conflicted with other Federal rules (and the Commission also
considered, to the extent feasible, the extent to which the rule
overlapped, duplicated, or conflicted with state and local government
rules); and (5) the length of time since the rule had been evaluated or
the degree to which technology, economic conditions, or other factors
had changed in the area affected by the rule.
Since 1981 and the passage of the RFA, our agency has carefully
reviewed its regulations. This effort has continued over the last 30-
plus years. On the whole, I believe these reviews have been good both
for consumers and the regulated community. Under the RFA (and other
provisions of the CPSA requiring rule reviews), the Commission has
issued reports involving 17 rules under the CPSA, as well as nine rules
promulgated under the Federal Hazardous Substances Act (FHSA), eight
rules under the Flammable Fabrics Act (FFA), and four rules under the
Poison Prevention Packaging Act (PPPA).
Voluntary Regulatory Review Efforts: In addition to the rule
reviews required by the RFA, the Commission also has recently
voluntarily undertaken efforts to review its regulations in a manner
consistent with the spirit of Executive Order 13563 and similar
Executive Orders. Specifically, almost ten years ago, the Commission
published a notice in the Federal Register announcing a pilot rule
review program. In the notice, the agency committed itself to using
OMB's Program Assessment Rating Tool (PART) to help provide a
consistent approach to rating programs across the Federal Government.
In the notice, the Commission listed four rules for review, and
asked for public comment on each regulation. Specifically, the notice
asked: (1) whether the regulation is consistent with CPSC program
goals, (2) whether the regulation is consistent with other CPSC
regulations, (3) whether the regulation is current with respect to
technology, economic or market conditions, and other mandatory or
voluntary standards, and (4) whether the regulation could be
streamlined to minimize regulatory burdens, particularly those
affecting small businesses.
Out of this pilot program, the Commission then conducted annual
reviews that looked at four to six rules per year in 2005, 2006, and
2007. From this review, the CPSC clarified its rules regarding
standards for carpets, rugs and bicycles. In addition, the Commission
also recently established projects to examine amendments to the
electrical toy and cigarette and multi-purpose lighter rules.
We continue the review process today. In the coming years, staff
will be looking at ways to maximize openness and public participation,
as well as ways to most effectively target rules that may require
revision, repeal, or strengthening to protect the public against the
risk of unreasonable danger from consumer products. If re-confirmed, I
assure you that I will follow this process closely.
In addition, specifically please:
Question 2. Identify existing CPSC regulations that you believe to
be outmoded, ineffective, or excessively burdensome.
Answer. As I have noted above, CPSC staff is currently engaged in a
comprehensive review of all existing agency rules pursuant to the
mandate in the Regulatory Flexibility Act. I am comfortable with the
staff approach, which is a methodical and thorough review of agency
rules.
Question 2a. List all of what you believe to be outdated or
obsolete reporting requirements for the CPSC.
Answer. Like all other Federal agencies and departments, the CPSC
faces a multitude of requirements for filing reports with the Congress
and OMB. I believe that most of these reporting requirements provide
those who oversee us with the necessary information to maintain
accountability over the agency. To the extent that our reports are
carefully scrutinized, I believe that they serve a useful purpose.
I support periodic review of required reports to identify outdated,
obsolete, or duplicative reporting requirements. I know the Government
Performance and Results Modernization Act directed the Office of
Management and Budget to provide to Congress a list of Congressionally-
mandated reports that agencies believe require Congressional
modification. In compiling a list of reports, OMB sought the advice of
agencies and departments including the CPSC. CPSC staff identified two
reports. Specifically, the CPSC Inspector General recommended the
consolidation of two duplicative annual reports regarding Inspector
General reviews of improvements and employee complaints concerning the
CPSC. This recommendation was also included in S. 2109, the Government
Reports Elimination Act of 2014, introduced on March 11, 2014 by
Senator Mark Warner, and cosponsored by Senators Claire McCaskill and
Kelly Ayotte.
Question 2b. Provide a plan to this Committee within 60 days
outlining specific actions you plan to take to ensure that the CPSC
aggressively implements burden reduction opportunities and a timetable
for when those actions will occur.
Answer. During my time as Acting Chairman I have taken specific
actions to attempt to reduce the cost of third-party testing
requirements consistent with assuring compliance with any applicable
consumer product safety rule, ban, standard, or regulation. These
actions have included holding an all-day forum, on April 3, 2014, on
burden reduction open to all stakeholders. At this forum, we heard
numerous thoughtful nominations of ideas from our stakeholders for
product determinations. Unfortunately, because of the highly technical
nature of many of these suggestions, CPSC scientific staff must
carefully test the claims made by the participants. As I mentioned at
my re-nomination hearing, one of the most promising suggestions for
exempting phthalate testing based on the hardness of plastics has been
shown not to be accurate. Following the forum, several stakeholders
asked the Commission to reopen the record so they could submit more
information to our staff for consideration in making the scientific
case for determinations. The record will remain open until July 16,
2014, and I look forward to reviewing the comments and ideas we
receive.
In addition, last month, I introduced an amendment to the
Commission's 2014 Mid-Year Review and Proposed Operating Plan
Adjustments to examine potential ways to reduce third-party testing
costs through determinations consistent with assuring compliance with
underlying requirements. The amendment was adopted. It provides funds
for a study to assist the Commission in determining whether untreated
wood or other natural materials are materials that do not, and will
not, contain any of the eight specific heavy metals in levels that
exceed allowable limits listed in the mandatory Toy Standard, ASTM F-
963. Because wood was on the list of determinations for lead first
published in August 2009 in the Federal Register, and currently found
at 16 CFR Sec. 1500.91, that identify those products or product
components that will never contain violative amounts of lead, I am
hopeful that this study will find similar results for the eight heavy
metals listed in ASTM F-963.
In terms of steps I would take upon re-confirmation as a
Commissioner, I look forward to working with my colleagues,
particularly Chairman-nominee, Elliot Kaye, to continue to seek ways to
reduce third-party testing requirements consistent with assuring
compliance with any applicable consumer product safety rule, ban,
standard, or regulation. During his nomination hearing, he agreed to
provide such a plan 60 days from his confirmation as Chairman on this
topic, and I assure the Committee I will work closely with Mr. Kaye on
this plan.
Question 2c. Provide detailed recommendations on how you would
propose to increase public participation in CPSC's rulemaking process,
and how you would propose to reduce uncertainty in the CPSC's
rulemaking process.
Answer. I believe that the CPSC's approach to public participation
is among the most comprehensive in the Federal Government. Since the
agency was first established, we have stressed the importance of
promoting public participation. Here are some examples of the ways that
the agency has addressed this important issue:
Open Meetings Policy: Unlike most other agencies, whenever
CPSC employees meet with outside parties on matters of
substantial interest, we require that the meetings be announced
in advance in our public calendar and provide that any member
of the public, including the press, who wishes to can attend
the meeting. See 16 CFR Sec. 1012, et seq.
Freedom of Information Act: CPSC has one of the most liberal
FOIA policies in the Federal Government. As part of that
policy, the agency states that even records that may be
exempted from disclosure will be made available as a matter of
discretion when disclosure is not prohibited by law or is not
against the public interest. See 16 CFR Sec. 1015, et seq.
Oral Presentations in Regulatory Proceedings: Unlike most
other regulatory agencies, rulemaking under Section 9 of the
Consumer Product Safety Act (15 U.S.C. 2058(d)(2)) and Section
4 of the Flammable Fabrics Act (15 U.S.C. 1193(d)) require the
agency to provide interested persons an opportunity for the
oral presentation of data, views, or arguments in addition to
the opportunity to make written submissions. See 16 CFR
Sec. 1052.
Publicly Available Database: Pursuant to section 6A of the
Consumer Product Safety Improvement Act of 2008, the
Commission, in March 2011, established a user-friendly product
safety database in which members of the public can report and
read about risks of harm associated with consumer products. See
16 CFR Sec. 1102, et seq.
Annual Priorities Public Hearing: Section 4(j) of the
Consumer Product Safety Act (CPSA) (15 U.S.C. 2053(j)) requires
the Commission to establish an agenda for action under the laws
it administers and, to the extent feasible, to select
priorities for action at least 30 days before the beginning of
each Fiscal Year. Section 4(j) of the CPSA provides further
that before establishing its agenda and priorities, the
Commission must conduct a public hearing and provide an
opportunity for the submission of comments.
Contributions to Costs of Participants in Development of
Consumer Product Safety Rules: In appropriate cases, the
Commission will contribute to the costs of those who
participate in its rulemaking proceedings, particularly where
consumer participants need to acquire technical expertise. See
16 CFR Sec. 1105.
With respect to reducing uncertainty, I believe that the agency
maintains an effective, open line of communication to the regulated
community, both in communicating its intentions and in listening to
feedback from this community. I do not see that our approach to the
regulatory process promotes substantial uncertainty. One specific
approach that I believe Congress could take to reduce uncertainty in
our processes would be to provide greater flexibility for CPSC
rulemaking. At the moment, whenever we follow the burdensome procedures
in the various acts we enforce, years may pass before we enact a rule,
and that, no doubt, leaves many stakeholders in a state of uncertainty.
Question 2d. Provide detailed recommendations on how you would
propose to improve coordination with other Federal agencies to
eliminate redundant, inconsistent, and overlapping regulations.
Answer. The CPSC on a regular basis enters into Memoranda of
Understanding (MOUs) with fellow agencies such as the Environmental
Protection Agency, the Food and Drug Administration, the Occupational
Safety and Health Administration, and Customs and Border Protection, to
coordinate our regulatory approaches to the extent permitted by our
respective laws. On the whole, I think these agreements have been quite
successful in eliminating redundant, inconsistent, and overlapping
regulations.
Question 3. Through passage of H.R. 2715 in August 2011, Congress
mandated that the CPSC issue regulations to reduce third-party testing
costs consistent with assuring compliance with rules, bans, standards
and regulations. The deadline for issuing those Congressionally-
mandated regulations was August 2012. H.R. 2715 clearly directs the
agency to reduce unnecessary testing burdens that are killing small
businesses and have prevented small businesses from entering into the
children's product market. This should be an agency priority.
At a recent hearing on the CPSC midyear review of the budget, your
colleague Commissioner Buerkle proposed an amendment to develop a plan
to reduce third-party testing burdens. Each of these proposed rules
would amend well-functioning regulations that have been in place for
years and would advance safety. She stated that she was extremely
disappointed in the agency's progress to fulfill H.R. 2715's mandate to
provide meaningful relief to reduce third-party testing burdens. You
have stated time and again that the Commission does not have the
resources to reduce testing burdens, and yet the Commission has
recently proposed three regulations that are not congressionally
mandated.
Why has the Commission failed to responsibly respond to a
Congressional mandate that it reduce the third-party testing burden?
Answer. To the best of my knowledge, I have never stated that the
Commission does not have the resources to reduce testing burdens. I
have also stated that burden reduction is and remains a high priority
item for me. Further, I have said that we are a very small agency with
limited resources for the many worthy projects, including burden
reduction, before us.
As I stated before the Committee during my June 11 re-nomination
hearing, Congress, in section 2(a)(3) of P.L. 112-28, did not simply
direct CPSC to address third-party testing burden reduction. Instead,
the mandate in that law was, within a year, to seek public comment on
opportunities ``to reduce the cost of third-party testing requirements
consistent with assuring compliance with any applicable consumer
product safety rule, ban, standard, or regulation.'' We have done that
and have dedicated many staff months to assessing the various
approaches suggested in the law and in the many comments we received in
response to our Requests for Information (RFI) published in the Federal
Register.
A solid consensus has emerged from the many commenters who have
responded to our requests for information. Most see little potential
burden reduction in Commission initiatives that retain third-party
testing costs. Instead, they seek to have the Commission expand on a
list of determinations for lead first published in August 2009 in the
Federal Register and currently found at 16 CFR Sec. 1500.91. This list
identifies those products or product components that will never contain
violative amounts of lead. Once a determination is made, such products
or product components need not be subject to third-party testing.
Ideally, based on technical and scientific data, we will be able to
expand this list both to include more materials and to also find
materials that are used in the manufacture of children's products that
will never contain violative amounts of phthalates or the eight heavy
metals found in ASTM F-963.
The Commission, on April 3, 2014, held an all-day forum on burden
reduction and heard numerous thoughtful nominations from our
stakeholders for product determinations. Unfortunately, because of the
highly technical nature of many of these suggestions, CPSC scientific
staff must carefully test the claims made by the participants. As I
mentioned at my re-nomination hearing, one of the most promising
suggestions for exempting phthalate testing based on the hardness of
plastics has been shown not to be accurate. Nevertheless, the
Commission and its staff are proceeding with our work and we hope to
provide testing relief as we confirm the scientific validity of the
various suggestions.
In addition, last month, I introduced an amendment to the
Commission's 2014 Mid-Year Review and Proposed Operating Plan
Adjustments to examine potential ways to reduce third-party testing
costs through determinations consistent with assuring compliance with
underlying requirements. The amendment was adopted. It provides funds
for a study to assist the Commission in determining whether untreated
wood or other natural materials are materials that do not, and will
not, contain any of the eight specific heavy metals in levels that
exceed allowable limits listed in the mandatory Toy Standard, ASTM F-
963. Because wood was on the list of determinations for lead first
published in August 2009 in the Federal Register, and currently found
at 16 CFR Sec. 1500.91, that identify those products or product
components that will never contain violative amounts of lead, I am
hopeful that this study will find similar results for the eight heavy
metals listed in ASTM F-963.
Question 4. In 2010 the agency issued an interpretation of
unblockable drain (in the VGB Pool & Spa Safety Act) which was revoked
17 months later because you decided to change your vote on that matter.
The change in interpretation was counter to the advice of the agency
technical and legal staff and was done without notifying the public or
seeking input from those who had relied on and expended resources
complying with the earlier interpretation. I am deeply troubled that
this shows disregard for process and does not allow those impacted by a
decision to have a chance to weigh in. Pool owners spent their limited,
and in many cases public funds, complying with the Federal mandate only
to have their efforts negated by the reversal and without explanation
or process. Are there other examples that you can give me where one
commissioner can effect so drastic a reversal in policy?
Answer. On December 19, 2007, Congress enacted the Virginia Graeme
Baker Pool and Spa Safety Act (VGBA'' or ``the Act''). The purpose of
the Act was to prevent child drowning and entrapment in swimming pools
and spas. Among other things, the Act imposed requirements for
secondary anti-entrapment devices on most public pools and spas. On
April 2, 2010, I cast a vote interpreting the term ``unblockable
drain'' as permitting public pools and spas with an ``unblockable drain
cover'' to comply with the Act without the necessity of installing a
secondary anti-entrapment device. After long and painful
consideration--and after many meetings with numerous stakeholders,
including trade associations, pool manufacturers, pool installers,
drain cover manufacturers, and Safety Vacuum Release System (SVRS)
manufacturers--I decided to join my colleagues in withdrawing the
previous interpretation and establishing a new interpretation of the
term ``unblockable drain.'' Under this new interpretation, the
Commission would not allow a removable unblockable drain cover to
render a drain unblockable.
Under the VGBA, an ``unblockable drain'' is defined as a ``drain of
any size and shape that a human body cannot sufficiently block to
create a suction entrapment hazard.'' However, in preparation for the
vote on April 2, 2010, I could not find additional guidance in the VGBA
or its legislative history indicating whether Congress intended that
that drains with unblockable drain covers could be considered
``unblockable drains.'' So, when I attempted to interpret the term, I
found myself drawn to the definition that made the most sense to me at
the time--a definition that allowed the use of an unblockable drain
cover to render a drain unblockable.
After the April 2010 vote, however, I received over 140 letters
from citizens and members of Congress, including those who were
intimately involved in drafting the statute, who disagreed with my
interpretation of the statute. The members of Congress insisted that
they did not intend that drains with unblockable drain covers be
considered unblockable drains. In addition, I met twice with
Representative Debbie Wassermann Schultz, unquestionably one of the
members of Congress most involved in writing VGBA, who reiterated this
position.
I understand that consumers and industry alike need stability in
the marketplace. They look to the decisions of regulators and rely on
those decisions when purchasing, using, and manufacturing consumer
products. Although I was hesitant at first to reexamine my previous
vote, as a policy maker, I believe it is my duty to listen to all
points of view, analyze all relevant data, and, if appropriate,
reconsider my vote. So I took it upon myself to reexamine both the
safety considerations associated with unblockable drain covers and the
legislative history of the VGBA.
I spent considerable amount of time comparing the safety of large
unblockable drain covers to the safety of smaller, perhaps less sturdy,
drain covers with a secondary anti-entrapment device. When I cast my
vote in April 2010, I believed that large unblockable drain covers
seemed to provide a greater measure of safety than smaller drain covers
with secondary anti-entrapment systems. I reached that conclusion based
on my understanding that a properly installed unblockable drain cover
protects swimmers from a wide variety of entrapment hazards.
In addition, I believed, if required to install a secondary system,
the vast majority of public pools would opt for an anti-entrapment
device called a Safety Vacuum Release System, or SVRS, and a small
drain cover. The reason was simple: an SVRS, at the time, seemed the
cheapest secondary anti-entrapment system on the market. I had safety
concerns regarding the use of an SVRS. Unfortunately, an SVRS will not
engage if a swimmer's hair becomes entangled in a drain nor will it
trigger quickly enough in some instances to prevent a swimmer having
his or her organs eviscerated from sitting on a drain. In other words,
the usefulness of an SVRS is essentially limited to those instances in
which a swimmer's body fully blocks a drain. By contrast, an
unblockable drain cover carefully and properly installed would prevent
any form of entrapment that a drain might cause.
What made the policy call so difficult, however, was the fact that
an unblockable drain cover can operate only if it is properly installed
and stays on the drain. In other words, if a drain cover is removed and
there is no secondary system like an SVRS then swimmers would be at
risk of entrapment in the drain below. Unfortunately, we did not have
any significant data regarding the likelihood of drain covers coming
off or staying on. But, as critics of my previous vote stated, all
drain covers come off from time to time for seasonal maintenance--a
point I freely concede.
Based on the communications I received and the discussions I had
with many stakeholders, I became persuaded that my interpretation was
not what many Members intended when they wrote the law. Given the close
call between the safety implications and/or benefits of the two
interpretations and my belief that my previous interpretation was
contrary to Congressional intent, I cast my vote to reinterpret the
term ``unblockable drain.''
I am aware that some pool owners purchased and installed
unblockable drain covers in reliance on the Commission's previous
interpretation. It is my understanding, however, that the number who
did so was quite limited because compliant unblockable drain covers
turned out to be as expensive--or more expensive--as the SVRS systems.
I should add, that in order to give these individuals sufficient time
to come into compliance with our new interpretation, I recommended, and
the Commission agreed, to stay enforcement of our new interpretation
until the start of the pool season the following year.
Question 4a. Are you concerned by the precedent you have set that
allows for one commissioner moving from minority to majority to change
the outcome of a statutory interpretation months or even years after
the issue has been decided, and do it without public notice and
comment?
Answer. Although interpretive rules, under the Administrative
Procedure Act, do not require notice-and-comment procedures, I believe
that my many open meetings over the course of months leading up to the
vote provided most stakeholders with ample notice that I was re-
considering my vote. The prospect of a Commissioner changing his or her
mind during the course of service on the Commission is a real one. For
example, at about the same time I changed my vote on unblockable drain
covers, Chairman Tenenbaum changed her vote on whether vacation rental
homes with pools could fall within VGBA's jurisdiction. Obviously, such
changes should be approached with great care and thought. I regret any
disruption my changed vote caused in the market and repeat my apology
to anyone adversely affected.
Question 5. Did you speak with one or more members of Congress on
the issue of unblockable drains, as defined by the VGB Pool & Spa
Safety Act, before you decided to reverse your decision? If so, please
describe such conversations.
Answer. As stated in my answer above, I received many letters from
members of Congress urging me to re-consider my vote on unblockable
drain covers. In addition, as described above, I met twice with
Congresswoman Debbie Wasserman Schultz, one of the primary authors of
the Virginia Graeme Baker Pool and Spa Safety Act. Congresswoman
Wasserman Schultz provided me with an extensive narrative about events
leading up to passage of the VGBA. As one of the original co-sponsors
of the law and a member from Florida with deep concerns about drownings
in her district, she had a clear understanding about the legislative
intent behind the law.
Question 6. There is a perception by many that CPSC has become too
political in its approach to product issues. How will you ensure that
the CPSC appropriately considers science-based information in the
Commission's decision-making process?
Answer. One of best features about the CPSC is its outstanding
staff of technical experts, including engineers, epidemiologists,
chemists, physicists, communications experts and attorneys. This
enables the agency to maintain a scientific and data-based approach to
addressing product safety issues. I do not believe product safety
should ever be based on partisan politics. In fact, most of the
decisions at the agency--roughly 85 percent--are unanimous votes in
accordance with staff recommendations. Of course, reasonable minds can
disagree regarding policy options for regulation. Different policy
makers can look at the same injury and fatality data and reach opposite
conclusions about whether those data demonstrate that an unreasonable
risk of injury exists. That is a normal aspect of how collegial bodies
with Commissioners having different policy perspectives operate.
Question 7. Mr. Adler, as I noted at the hearing, we all want to
ensure the safety of products in the marketplace. Still, the Consumer
Product Safety Act is a carefully crafted statute that balances public
safety and the rights of individuals engaged in lawful commerce. In the
Buckyballs case, when the company did not agree to a voluntary recall,
the agency sued to mandate a recall. Yet, rather than going to court to
seek an injunction against the sale of the product during the
litigation, as the law allows, the agency contacted retailers and asked
them to remove the product from shelves, thereby nearly guaranteeing
the bankruptcy of the company. If the CPSC was concerned about the
dangers of the product during the litigation, why did the agency not
follow the law and go to court to seek a court approved injunction?
Answer. The law allows the Commission a variety of regulatory
options that we weigh whenever we discover serious hazards in the
marketplace. As alleged by CPSC staff, Buckyballs present an extremely
serious hazard when someone, often a young child, ingests two or more
magnets. The magnets attract each other through the walls of the
intestines resulting in progressive tissue injury, beginning with local
inflammation and ulceration, progressing to tissue death, then
perforation or fistula formation. Such conditions can lead to
infection, sepsis, and death. At the time of filing an administrative
complaint, CPSC staff had learned of more than two dozen high-power
magnet ingestion incidents, with at least one dozen involving
Buckyballs. Surgery was required in many of the incidents and ingestion
of high-power magnets is alleged to have resulted in at least one
death.
What made these incidents so compelling, aside from the
destructiveness of the ingestions, is the fact that the magnets, by
themselves, look benign and the harm from ingesting them does not occur
immediately or obviously. In fact, as alleged in the Commission's
complaint, doctors examining patients with ingested magnets could find
it difficult to give an immediate or accurate diagnosis because the
symptoms mimic other less serious digestive disorders, which could lead
to the erroneous belief that no treatment was necessary or a delay in a
surgical intervention that could exacerbate life-threatening internal
injuries.
All of these high-risk elements led staff to consider a variety of
options, including going to various retailers to ask them voluntarily
to remove these dangerous products. Section 15 (c) and (d) of the
Consumer Product Safety Act [15 U.S.C. Sec. 2064(c) and (d)] authorize
the Commission to seek remedial action not only from manufacturers, but
also from distributors and retailers. Accordingly, in weighing options,
CPSC Compliance staff concluded that one effective and expeditious step
would be to work with the retailer community in addressing the hazard.
I note that, in addition, to working with retailers, staff also took
the rare step of filing an administrative complaint against the
respondents, signaling their strong concerns about the hazard.
Question 8. In the Buckyballs case, CPSC then sought to extend the
``responsible corporate officer'' doctrine to establish personal
liability for the costs of the recall on Craig Zucker, one of the
principals of the bankrupt company that sold Buckyballs. Did the
Commission vote to amend its complaint to seek personal liability in
this case? If not, why not?
Answer. On July 25, 2012, as authorized by the Commission, CPSC
staff filed an Administrative Complaint against Maxfield and Oberton
seeking a recall of the magnet products sold by the company.
Subsequently, staff filed an amended complaint seeking to add Craig
Zucker, individually and as an officer of Maxfield and Oberton, after
he dissolved Maxfield and Oberton Holdings as an additional respondent.
The Administrative Law Judge preliminarily granted CPSC staff's request
to add Mr. Zucker individually as a respondent. Because the Commission
negotiated a Consent Agreement with Mr. Zucker that supersedes the
judge's ruling, the Commission did not rule on this issue. My own view
is that, in an appropriate case, the Commission has the authority to
include individuals as respondents, but I have made no determination
whether this was such a case.
Question 8a. With regard to the Buckyballs case, if the decision to
name the former president of the company as an individual respondent in
an administrative complaint was done without the approval of the
commissioners, why did Commission staff claim in a pleading that the
Commission approved the decision?
Answer. The staff decision to name Mr. Zucker as an individual
respondent was done with the broad authority granted to staff to file
an administrative case pursuant to section 15 of the Consumer Product
Safety Act. Because the Administrative Procedure Act (APA) requires
that members of the Commission hear appeals from decisions by
administrative law judges once we have authorized the filing of a case,
we take great precautions to avoid involvement in administrative trial
strategy because of our need to avoid even the appearance of bias that
might affect our ability to serve as an appellate body. I believe that
staff's decision to name Mr. Zucker as an individual respondent was
well within the authority granted them to pursue the case. Whether the
Commission, as a matter of policy, should be involved in such a
decision is something that I am currently contemplating.
Question 8b. Do you believe the CPSC's Rules of Practice for
Adjudications require a vote of the Commission to amend a complaint
previously authorized by the Commission to add a new party or to add a
different legal theory of liability?
Answer. In this case, no. In other cases, depending on what the new
legal theory of liability or who the new party is, my answer might
differ. The Rules of Practice are designed to empower the Presiding
Officer with broad discretion in hearing cases. In this case, I note
the Presiding Officer did issue a preliminary ruling permitting the
addition of Mr. Zucker as a respondent.
Question 8c. Were you involved in the decision to amend CPSC's
complaint against Maxfield and Oberton to name Craig Zucker in his
individual capacity?
Answer. As I have noted, the decision to amend the complaint was
made by CPSC staff pursuant to authority granted them by the Commission
to file an administrative case in accordance with section 15 of the
CPSA.
Question 8d. Should commission staff, without the approval of the
Commission, proceed with such a significant move as naming an
individual as a respondent?
Answer. The decision to name Mr. Zucker was made by CPSC staff
pursuant to the broad authority granted by the Commission to file the
administrative case. I believe that staff's decision to name Mr. Zucker
as an individual respondent was well within the authority granted them
to pursue the case. Whether the Commission, as a matter of policy,
should be involved in such decisions is something that I am currently
contemplating.
Question 9. Do you believe that companies, and individuals managing
those companies, have a legal right to challenge a CPSC determination
that a product recall is warranted based on legitimate, but different,
interpretations of applicable statutes as applied to specific facts?
Answer. Yes.
Question 10. There have been suggestions that the CPSC pursued Mr.
Zucker personally in response to his aggressive response in fighting
the CPSC. Did that happen?
Answer. No. As someone who has worked in two branches of
government, I know we are constantly subject to criticism, sometimes in
very harsh terms. I believe that one of the greatest freedoms that
American citizens have is the right to criticize their government. As
far as I can tell, CPSC staff also believes that and does not take such
criticism personally.
Question 11. When, and under what circumstances do you believe it
is appropriate to pierce the corporate veil and hold a principal of a
company personally liable for a product recall? Wouldn't you agree that
this step is ordinarily only used when there is criminal conduct
alleged? Yet the commission took this extraordinary step in the
Buckeyballs case by adding Mr. Zucker individually, why?
Answer. This is not an area of law that I have researched
thoroughly. According to various authorities, the law varies from state
to state and from jurisdiction to jurisdiction. Because I continue to
research the issue, I cannot provide a definitive answer regarding when
such an action is warranted. I note that adding an individual like Mr.
Zucker in an administrative case is rare.
Question 12. Section 6(b) of the Consumer Product Safety Act
requires the CPSC to ``take reasonable steps to assure'' that any
disclosure of information relating to a consumer product safety
incident is accurate and fair. You have not been shy about expressing
your opinion about section 6(b). Congress, however, has had several
opportunities--including passage of the Consumer Product Safety
Improvement Act--to amend the statute, but chose to preserve the
regulatory authority and protections of section 6b.
Under your leadership, the Commission recently proposed an
interpretative rule that would, among other things, significantly
narrow the information subject to section 6(b) protections, exempt
information that is ``publicly available,'' permits commission staff to
not notify firms when it releases information ``substantially the same
as'' information previously disclosed and especially troubling,
eliminates protections from disclosure of information subject to
attorney-client privilege.
What is your definition of ``publicly available'' because, based on
the proposed rule, information posted on a blog would be ``publicly
available?'' How will the Commission substantiate its reliability and
factual accuracy before inclusion in communications or investigations
of the CPSC? If information about an investigation, whether or not it
is accurate, somehow is posted on the Internet, will that information
then be exempt from section 6(b)?
Answer. As a starting point, I note that the proposed revisions to
section 6(b) of the CPSA are still under review, so I am keeping an
open mind regarding the comments filed in response to the Commission's
Federal Register Notice of Proposed Rulemaking.
It is no secret that I have a general dislike for some of the
provisions of 6(b), especially when they impose substantial costs in
time and money on the Commission's Freedom of Information Act staff. I
see no useful purpose in compelling the Commission to follow these
cumbersome procedures--which apply only to CPSC and no other health and
safety agency--when we are acting as a repository of information in
similar fashion to a public library. Further, in some instances, safety
information delayed is consumer safety denied. However, it is my duty
to uphold all of CPSC's statutes as written and, if re-confirmed, I
pledge to continue do so.
With respect to the language regarding ``publicly available''
information in the NPR, in my judgment, this is clarifying what has
generally been the practice of the Commission over the years more than
anything new. As noted in the Commission's Notice of Proposed
Rulemaking, 79 Fed. Reg. 10712, 10714 (February 26, 2014), neither the
statute nor the CPSA's legislative history suggest that information
that is readily available to the public is, or should be, subject to
section 6(b). I believe that the NPR gives a good description regarding
what ``publicly available'' information is, namely, information that
has been disseminated in a manner intended to reach the public in
general, such as news reports; articles in academic and scientific
journals; press releases distributed through news of wire services; or
information that is available on the Internet.
I cannot speak generally regarding information posted on the
Internet about a company under investigation because the statute treats
such information in different ways depending on its status. Information
submitted to the Commission pursuant to section 15(b) reports that
might trigger an investigation must be treated as confidential by the
agency unless the Commission has reasonable cause to believe a product
is in violation of a safety rule or other provision of the law, or the
product is the subject of a legal proceeding or the manufacturer has
consented to its release. Nothing in the proposed modification to the
agency's 6(b) rule will change that.
Question 13. What problem is the Commission looking to fix with the
proposed rule on information disclosures under section 6(b)? What kind
of data was used by the Commission in determining that a change was
needed?
Answer. The proposed rule is intended to update the Commission's
6(b) rule, which has not been revised since its promulgation in 1983--a
time when the Internet did not exist. The proposed rule is intended to
modernize and streamline the Commission's processing of information
disclosure under section 6(b). Among the pieces of information that the
Commission relied on in proposing the changes were its assessments of
the ongoing 6(b) costs and time delays in processing FOIA requests,
which total in the hundreds of thousands of dollars and in days,
sometimes months, in releasing information to the public.
Question 14. Congress recognizes the importance of ensuring the
accuracy and fairness of information disclosed by the Commission. What
responsibility does the Commission have to prevent release of
unreasonable and unsubstantiated information that could cause harm to
businesses or brands as well as ill-serve the public we seek to
protect?
Answer. The Commission has the same responsibility that any Federal
health and safety agency has to ensure accuracy and fairness of
information that it discloses. It is a critical responsibility that the
CPSC takes very serious. Why the extra restrictions in 6(b) that extend
to no other health and safety agency need to apply to a resource-
limited agency like CPSC remains unclear to me. However, it is my duty
to uphold all of CPSC's statutes as written and, if re-confirmed, I
pledge to continue do so.
Question 15. Mr. Adler, will you commit to me that, if reconfirmed,
you will follow not only the letter of the law when it comes to
disclosure laws applicable to the Commission, but also the spirit of
these rules, which are designed to prevent inaccurate, misleading and
incomplete information that could hurt both consumers and
manufacturers?
Answer. Yes.
Question 16. The CPSC has, in recent years, been increasingly
looking to retailers and manufacturers to undertake voluntary product
safety recalls and other corrective actions, as well as holding them
accountable for failure to report and other penalty investigations.
However, there has been more than a 20 percent decline in voluntary
recalls between 2010 and 2013, and it appears this decline will
continue through the current year. What do you think of this recent
trend, and do you think it is something that should be publicly
explored by the Commission? If reconfirmed, will you in fact explore
this issue?
Answer. I read no particular message in the decline in voluntary
recalls because it could be the result of any number of factors,
including safer products in the marketplace, more targeted CPSC actions
against repeat offenders, CPSC's increased work with Customs and Border
Protection at our Nation's ports, or a more diffuse marketplace because
of the Internet. If re-confirmed, I will look into the issue, and work
on this issue with my fellow Commissioners, particularly the Chairman,
who is the individual responsible for the administrative and management
direction of the agency.
______
Response to Written Questions Submitted by Hon. Roy Blunt to
Hon. Robert S. Adler
Harmonization of Standards
Question 1. The public identified the need to comply with different
standards all addressing the same type of hazard as a problem and
Congress asked the agency to address this as a potential burden
reduction opportunity in PL 112-28. The agency has done little to
investigate whether compliance with a standard in another jurisdiction
would provide an equivalent level of safety or try to harmonize safety
standards with those in other jurisdictions. Does the agency need new
authorities to accomplish this effort? If not, why has more not been
done to address this problem?
Answer. Although no other international standard is identical to a
CPSC-administered children's product safety rule, there are many tests
within certain other international standards that are the same, or more
stringent than, their equivalent test within the CPSC-administered
children's product safety rule. For example, the toy abuse tests in the
European standard EN71, part 1,1 and the International Standard ISO
8124-12 are the same, or more stringent than, their corresponding tests
in ASTM F963-11.3.
Although CPSC could explore harmonization more, this would not
change the statutory requirement for third-party testing of children's
products. What we have been told by members of the regulated community
is that they would prefer the agency focus its attention on ways to
reduce burdens that would release them from testing entirely. As I
stated before the Committee during my June 11 re-nomination hearing,
Congress, in section 2(a)(3) of P.L. 112-28, did not simply direct CPSC
to address third-party testing burden reduction. Instead, the mandate
in that law was, within a year, to seek public comment on opportunities
``to reduce the cost of third-party testing requirements consistent
with assuring compliance with any applicable consumer product safety
rule, ban, standard, or regulation.'' We have done that and have
dedicated many staff months to assessing the various approaches
suggested in the law and in the many comments we received in response
to our Requests for Information (RFI) published in the Federal
Register.
A solid consensus has emerged from the many commenters that have
responded to our requests for information. Most see little burden
reduction potential in Commission initiatives that retain third-party
testing costs. Instead, they seek to have the Commission expand on a
list of determinations for lead first published in August 2009 in the
Federal Register and currently found at 16 CFR Sec. 1500.91. This list
identifies those products or product components that will never contain
violative amounts of lead. Once such a determination is made, such
products or product components need not be subject to third-party
testing. Ideally, based on technical and scientific data, we will be
able to expand this list both to include more materials and to find
materials that are used in the manufacture of children's products that
will never contain violative amounts of phthalates or the eight heavy
metals found in ASTM F-963. Once such a determination is made, such
products or product components need not be subject to third-party
testing.
The Commission, on April 3, 2014, held an all-day forum on burden
reduction and heard numerous thoughtful nominations from our
stakeholders for product determinations. Unfortunately, because of the
highly technical nature of many of these suggestions, CPSC scientific
staff must carefully test the claims made by the participants. As I
mentioned at my re-nomination hearing one of the most promising
suggestions for exempting phthalate testing based on the hardness of
plastics has been shown not to be accurate. Nevertheless, the
Commission and its staff are proceeding with our work and we hope to
provide testing relief as we confirm the scientific validity of the
various suggestions.
In addition, last month, I introduced an amendment to the
Commission's 2014 Mid-Year Review and Proposed Operating Plan
Adjustments to examine potential ways to reduce third-party testing
costs through determinations consistent with assuring compliance with
underlying requirements. The amendment was adopted. It provides funds
for a study to assist the Commission in determining whether untreated
wood or other natural materials are materials that do not, and will
not, contain any of the eight specific heavy metals in levels that
exceed allowable limits listed in the Toy Standard, ASTM F-963. Because
wood was on the list of determinations for lead first published in
August 2009 in the Federal Register, and currently found at 16 CFR
Sec. 1500.91, that identify those products or product components that
will never contain violative amounts of lead, I am hopeful that this
study will find similar results where the eight heavy metals listed in
ASTM F-963 are concerned.
Partisanship at CPSC
Question 2. I hope you will agree that the Commission should hold
its safety mission above partisan politics. Many are concerned that
partisanship at the Commission has increased, as demonstrated by the
many party-line votes the Commission has taken since 2008, when the
Consumer Product Safety Improvement Act was passed. While the
Commissioners have been able to find consensus on routine business
items before the Commission, on more substantive matters such as
rulemakings and establishing budget and enforcement priorities, a
partisan division is all too often evident. Why do you think the
atmosphere at CPSC has become so partisan?
Answer. I do not consider consumer product safety to be a partisan
issue. I believe people serve as CPSC Commissioners with the same goal-
to fulfill the mission of the CPSC and reduce the risk of injury or
death to consumers from hazardous consumer products. Sometimes we may
disagree on the path we should take to achieve this goal, but that does
make the Commission a partisan body.
I have always worked to establish a good relationship--both
personal and professional--with my fellow Commissioners, particularly
with the current Commissioners. I greatly value these relationships. I
believe we have worked tirelessly and respectfully to achieve common
ground. If re-confirmed, I would continue these efforts.
Question 2a. Mr. Adler, if you're reconfirmed to the CPSC, you will
become the most senior Commissioner, and will continue to occupy a role
with significant influence on the culture of the Commission. Will you
commit to me today to work to bring about a culture change at the
agency, for instance, by working with the minority Commissioners to
achieve consensus--including working with Commissioner Buerkle and Mr.
Mohorovic, if he is also confirmed?
Answer. Yes. If re-confirmed, I assure you that I will continue to
work with all of my fellow Commissioners to achieve consensus.
Independence of CPSC General Counsel
Question 3. As you know, the position of General Counsel at the
CPSC had been a non-political career position designed to ensure a
mechanism of checks and balances. Though this has not always been the
case, it seems to me that the General Counsel's office should provide
independent and credible opinions to the Commissioners and be free from
political influences. After all, each Commissioner is not short of
staff to provide political counsel. What is your opinion? Do you think
that the General Counsel's office should provide independent and
objective views of matters considered by the Commission?
Answer. I believe a General Counsel, regardless of his or her
employment status, should provide independent, objective advice.
Federal employees, career and non-career, are bound by a code of
ethics, requiring them to be loyal to the law and ethical principles,
and attorneys are further bound by their own code of ethics. Further,
the position of General Counsel is one that is filled by a member of
the Senior Executive Service. Based on my years of working at and
monitoring the Commission, I have no reason to believe that a non-
career General Counsel would act any differently than a career General
Counsel in terms of the advice he or she gives to the Commission.
Working with Stakeholders
Question 4. The Commission issued several proposed rules that could
fundamentally change the process for how the Commission works with
regulated entities. For the most controversial proposals, many comments
have urged the CPSC to work with stakeholders to help the agency in
meeting its policy objectives. The first of the most controversial
proposals was a potential change to the 1110 Rule on certificates of
compliance, and the CPSC wisely took a step back and announced its
intent to hold a meeting with stakeholders to rethink the proposal. Did
the CPSC learn that it is more effective to engage with the broad range
of stakeholders before issuing a proposed rule, perhaps in the form of
holding a public meeting with stakeholders, an Advance Notice of
Proposed Rulemaking (ANPR) or both?
Answer. I believe that stakeholder input plays an integral role in
the rulemaking process. With respect to the 1110 Rule on Certificates
of Compliance, I carefully reviewed the issues raised by commenters
during the comment period, as well as requests from stakeholders. Many
commenters had very detailed, practical implementation concerns that
deserved further exploration that I had not seen during the
Commission's briefing and subsequent public meeting. This is why I
voted to reopen the comment period and conduct a public workshop with
stakeholders to gain a better understanding of how to more effectively
enhance the 1110 Rule.
Question 4a. Would you support greater use of stakeholder working
groups and requests for information as the CPSC examines ways to
improve the effectiveness of its programs?
Answer. Yes. I always welcome the input of stakeholders. If re-
confirmed, I promise to carefully consider the views of all interested
parties.
Public Outreach
Question 5. The digital age provides new opportunities for more
direct contact to consumers for distributing important information and
education. How important are public/private partnerships in the
strategies for outreach to consumers and please explain how the agency
can engage and utilize the private sector in furthering its mission,
one that is shared by manufacturers.
Answer. Very important. The CPSC is a small agency with a very
large safety mandate. In order to inform and educate the public, the
CPSC often relies on our non-governmental partners in the private
sector and the not-for-profit sector to help us amplify our outreach.
Whether through the use of social media, media interviews, or in-store
messaging, CPSC has a rich history of collaborating with associations
and companies on campaigns such as safe sleep for babies, drowning
prevention, poison prevention, and window blind safety, to name only a
few. A number of companies and organizations have effectively used
social media platforms to inform their customers and constituents of
product hazards. Because of the significant positive results for
consumers that often come from these relationships, it is my hope that
CPSC will continue to explore opportunities to work with industry and
other groups on information and education campaigns.
Question 5a. How would you handle situations when consumers are
being injured by using products incorrectly or contrary to label
instructions?
Answer. At the outset, let me say that every accident involves
three factors: the product, the consumer, and the surrounding
environment. Depending on the circumstances, it is often hard to pin
down precisely what role each factor plays in an accident. That is why
the Commission employs an extensive epidemiological and human factors
staff to assist us in our approach to protecting consumers. I find it
hard to generalize about the cause of some injuries by pointing to
consumers' ignoring label instructions if the labels warn of hazards
that consumers should not expect to exist. For example, the Commission
entered into a civil penalty agreement with a manufacturer of infant
flotation seats that failed without warning, plunging young children
into water over their heads. The manufacturer had a warning label that
parents should not leave children unattended in pools with the
flotation device. That, however, did not address the fact that the
seats were defective and failed without warning, placing infants in
life-threatening situations.
That said, the Commission has a group of talented technical experts
who often provide advice and guidance to outside groups regarding the
efficacy of their warning labels. I believe that the market is a better
informed, safer arena because of CPSC staff's technical input, and, if
re-confirmed, I will continue to support their efforts.
Question 5b. What role would the CPSC play in such situations?
Answer. CPSC's response would be dependent upon the product, the
hazard, the pattern of injury, and whether the risk is foreseeable.
Question 5c. Do you believe that warnings are an effective tool in
communicating hazards to the public?
Answer. I think the best way to answer this question would be to
put it into the larger context of how CPSC staff works to address and
mitigate hazards. CPSC staff follows the standard ``safety hierarchy''
method when trying to reduce the risk of injury: (1) eliminate the
hazard, (2) guard against the hazard, and (3) warn of the hazard.
In certain situations, a warning can be an effective tool. We have
seen this in the case of button cell batteries and strollers. But,
warnings are sometimes less effective in reducing risk than either
eliminating or guarding against the hazard. There are lots of details
that can make a warning effective: large font, bright colors, simple
language, multiple languages, prominent placement, or conspicuous
graphics. But, warnings cannot be relied upon in all situations to
reduce unreasonable risks of death and injuries. In some cases, a
warning may not adequately express the severity of the risk of harm
presented to the consumer. In other cases, a warning may not be
effective because the product presents a poor medium for written
information. For example, the product may be too small. Also, warnings
are not very effective on products where the consumer at risk cannot
understand the warning, for example, with infants--which explains why
Congress enacted the Poison Prevention Packaging Act authorizing the
agency to issue rules that require child-resistant closures on
dangerous household chemicals.
Question 5d. Do you believe there are certain hazards that cannot,
under any circumstance, be warned or educated against?
Answer. Yes. Some hazards are so hidden or occur so unexpectedly
that warnings could not avoid serious injuries or fatalities.
Question 5e. Procedurally, how do you believe those hazards, which
cannot be warned or educated against, should be determined by the
agency?
Answer. As stated above, CPSC staff follows the standard ``safety
hierarchy'' method when trying to reduce the risk of injury: (1)
eliminate the hazard, (2) guard against the hazard, and (3) warn of the
hazard.
In determining the effectiveness of product and/or public warnings,
CPSC staff analyzes the use and utility of the product, the hazard, the
pattern of injury, changes in reported injuries following design or
labeling adjustments, and whether the risk is foreseeable.
______
Response to Written Questions Submitted by Hon. Dean Heller to
Hon. Robert S. Adler
Question 1. The CPSC's voluntary recall system--especially the
agency's ``fast-track'' recall system--provides a quick and effective
means of getting potentially dangerous products off the market and out
of consumers' hands. However, the agency has come under growing
criticism for a slowdown in the pace that recalls are being negotiated,
as such delays could ultimately harm consumers. In the past four years,
the agency has had three directors of compliance and I understand the
position is now empty again. This raises concerns about the effect of
such turnover on management of the agency. Please provide the Committee
with information detailing how long it generally takes the Commission
to negotiate fast track recalls, and whether that time has increased
over the past several years?
Answer. I strongly support the agency's Fast Track Program and, as
Acting Chairman, have taken steps to ensure that it continues to be
effective. I have requested that CPSC staff undertake a review of the
program that I have dubbed ``Fast Track 2.0.'' Among other things, I
have asked for a review of the types of hazards that should be included
in the program and which should not. I have also asked for a review of
the types of information that companies should provide when they seek
Fast Track status and a review of how these recalls generally should
proceed.
Under the guidelines for Fast Track, a product recall must begin
within twenty days of a report to the Commission. In practice,
according to staff, it currently takes roughly 60 days from the moment
that a firm notifies the Commission of a problem until its Corrective
Action Plan is agreed upon. The discrepancy in time frames, according
to staff, is that firms often report a potential issue prior to
presenting all of the required information to begin an official ``fast
track'' recall. This first contact with the Commission is included in
that 60-day figure. Further, according to staff, ``fast track'' recall
negotiations do not begin in earnest until the firm presents the
Commission with:
a full report as defined by 16 C.F.R. Sec. 1115.13(d) (which
includes 15 detailed items of information, including when and
where a product was manufactured, how many items need to be
recalled, the nature of defect, and other important pieces of
information),
a fully developed action plan for recall, including types of
media to be used, and
a fully drafted press release explaining the nature and
details of recall.
Over the past three fiscal years, the average time from the moment
that a firm notifies the Commission of a potential problem until the
completion of that firm's Corrective Action Plan has ranged between 55
and 60 days. Encouragingly, the time it takes for negotiating and
issuing press releases (a significant portion of the time that it takes
to conduct voluntary recalls) has shown a steady decrease in Fiscal
2014, including an almost 10 percent decrease to just over 20 days.
All of this said, I continue to believe that Fast Track is a worthy
program that needs to be improved.
Question 2. Can you assure the Committee that you will work to make
sure the fast track system continues to be as effective as it has been
in the past?
Answer. Yes.
Question 3. Are you aware of the letter dated May 30, 2014, that
former CPSC Chairman Ann Brown sent to Representatives Fred Upton and
Henry Waxman expressing concerns with the proposed voluntary recall
rule?
Answer. Yes.
Question 3a. Are you aware of the comments to the docket submitted
by Senators Casey and Toomey and a separate letter by Senator King
expressing similar concerns with the proposed rule?
Answer. Yes.
Question 3b. Do you agree with former Chairman Brown and the
Senators that the proposed Voluntary Recall Rule could threaten the
history of collaboration that the CPSC has with its stakeholders?
Answer. I have read former Chairman Brown's letter, and the
Senators' letter. I have also reviewed many of the stakeholder comments
we have received about our proposed rule. I continue to review those
comments and to pay special attention to those that raise concerns
about the impact of the proposed rule on the Fast Track program.
Needless to say, I greatly respect and admire Ms. Brown, and I agree
with her that Fast Track is an excellent program.
The CPSC has always and should always continue to work
collaboratively with its stakeholders on behalf of the American public.
I see nothing in the proposed rule that would threaten that
relationship. That said, the Voluntary Recall Notice Rule is only a
proposed rule, and, in light of its controversial nature, I am
carefully reviewing the comments from all stakeholders. I retain an
open mind as to what the final version of the rule might look like.
Question 4. Regarding the CPSC's recently proposed rule that would
expand staff's role on voluntary standards setting bodies, are you
concerned that an individual at the CPSC--whether that person is a
Commissioner or a staff member who is not the voting member--could
influence the standards development process?
Answer. The rule to which you refer grew out of a report from May
2012 by the U.S. Government Accounting Office (GAO), ``Consumer Product
Safety Commission: A More Active Role in Voluntary Standards
Development Should be Considered.'' (See http://www.gao.gov/assets/600/
590990.pdf.)
The GAO Report recommended that the Commission review its policy
for staff participation in voluntary standards development activities
and determine the feasibility of the agency's staff assuming a more
active role in developing voluntary standards. Specifically, the GAO
Report recommended that CPSC staff be allowed--not required--in
appropriate cases to vote on balloted provisions of voluntary
standards. The Report also suggested that staff be allowed to hold
leadership positions at various levels of standards development
organizations, including task groups, subcommittees, or committees. GAO
concluded that changing the CPSC's regulations to allow staff to
participate more actively in voluntary standards activities could
result in stronger voluntary standards without compromising the CPSC's
or the voluntary standards groups' independence.
As a result of this GAO Report, Commission staff proposed
conforming amendments to 16 CFR 1031, the Commission's regulation on
participation in voluntary standards activities. These amendments
followed GAO's recommendations to allow staff, on an optional basis, to
vote on voluntary standards or take a leadership role on voluntary
standards group committees.
The proposed rule noted that such activity might result in a more
effective voluntary standards process and accelerate standards
development and implementation. Further, such participation could gain
CPSC staff greater access to and familiarity with the latest
technologies, and would provide an opportunity for staff to help
establish standards to advance CPSC's safety goals. In addition,
``full'' Federal Government participation in standards development
increases the likelihood that the standards can meet both public and
private sector needs. 141 Cong. Rec. H14334 (daily ed. December 12,
1995) (Statement of Rep. Morella). A single standard that satisfies
both industry and the CPSC would benefit both by simplifying applicable
requirements--only a single set of standards would apply.
Finally, optional staff participation in voluntary standards
development groups by voting and taking leadership roles would be
consistent with the guidance reflected in OMB Circular A-119 Revised,
``Federal Participation in the Development and Use of Voluntary
Consensus Standards and in Conformity Assessment Activities'' (February
10, 1998). Among other things, OMB Circular A-119 encourages agency
representatives serving as members of voluntary consensus standards
bodies to ``participate actively and on an equal basis with other
members,'' and to ``vote . . . at each stage of the standards
development process unless prohibited from doing so by law of their
agencies.''
The role voluntary standards play in the safety of American
consumers and the ability of the CPSC to do its job cannot be
overemphasized. I have long believed that we must work in concert with
voluntary standards organizations to help those organizations create
the best standards they can. This is why I am so delighted by the
progress I have seen in the voluntary standards community over the past
forty years. Groups such as ASTM, ANSI, and UL have dramatically
improved their technical skills, their efficiency in drafting
standards, their openness and transparency, and their outreach to all
stakeholders--especially consumers--affected by their work. I am
pleased to see CPSC work so closely with these groups, and I have
little doubt that our partnership with them will only grow and deepen
in the years to come in the interest of better standards for consumers
and product manufacturers alike. That said, it is only a proposed rule
and I am still reviewing all comments from all stakeholders and retain
an open mind as to what the final version of the rule might look like.
Question 5. Given your understanding of the voluntary standards
process, how can staff's role help benefit or potentially hurt the
process?
Answer. Because of the disclaimers required of Commission staff in
the proposed rule, I see no indication that the proposed rule's
approach to staff involvement would suggest the Commission will play
other than a constructive role. The law is fairly clear regarding
CPSC's approach to voluntary standards. If the Commission, in the
course developing a mandatory standard, determines that an existing
voluntary standard adequately addresses a risk of injury and is
substantially complied with, the Commission must stop its work and
defer to the voluntary standard. Nothing in this proposed rule changes
that.
I appreciate your concern and will be sure to pay particular
attention to this issue when the final rule is presented to the
Commission. I continue to review all the comments from all stakeholders
of the proposed rule and retain an open mind as to what the final
version of the rule might look like.
Question 6. Many are concerned that partisanship at the Commission
has increased, as demonstrated by the many party-line votes the
Commission has taken since 2008, when the Consumer Product Safety
Improvement Act was enacted. While the Commissioners have been able to
find consensus on routine business items before the Commission, on more
substantive matters such as rulemakings and establishing budget and
enforcement priorities, a partisan division is all too often evident.
Why do you think the atmosphere at CPSC has become so partisan?
Answer. I do not consider consumer product safety to be a partisan
issue. I believe people serve as CPSC Commissioners with the same goal-
to fulfill the mission of the CPSC and reduce the risk of injury or
death to consumers from hazardous consumer products. Sometimes we may
disagree on the path we should take to achieve this goal, but that does
make the Commission a partisan body.
I have always worked to establish a good relationship--both
personal and professional--with my fellow Commissioners, particularly
with the current Commissioners. I greatly value these relationships. I
believe we have worked tirelessly and respectfully to achieve common
ground. If re-confirmed, I would continue these efforts.
Question 7. Mr. Adler, if you're reconfirmed to the CPSC, you will
become the most senior Commissioner, and will continue to occupy a role
with significant influence on the culture of the Commission. Will you
commit to work to bring about a culture change at the agency, for
instance, by working with the minority Commissioners to achieve
consensus--including working with Commissioner Buerkle and Mr.
Mohorovic, should he be confirmed?
Answer. Yes. If re-confirmed, I assure you that I will continue to
work with all of my fellow Commissioners to achieve consensus.
Question 8. As you know, the position of General Counsel at the
CPSC had been a non-political career position designed to ensure a
mechanism of checks and balances. Though this has not always been the
case, it seems to me that the General Counsel's office should provide
independent and credible opinions to the Commissioners and be free from
political influences. After all, each Commissioner is not short of
staff to provide political counsel. Please explain whether or not you
believe that the General Counsel's office should provide independent
and objective views of matters considered by the Commission?
Answer. I believe a General Counsel, regardless of his or her
employment status, should provide independent, objective advice.
Federal employees, career and non-career, are bound by a code of
ethics, requiring them to be loyal to the law and ethical principles,
and attorneys are further bound by their own code of ethics. Further,
the position of General Counsel is one that is filled by a member of
the Senior Executive Service. Based on my years of working at and
monitoring the Commission, I have no reason to believe that a non-
career General Counsel would act any differently than a career General
Counsel in terms of the advice he or she gives to the Commission.
Question 9. In 2008, by approving the Consumer Product Safety
Improvement Act, Congress mandated under Section 108 that the CPSC
establish a Chronic Hazard Advisory Panel (CHAP) to review specific
phthalates used in children's toys and childcare articles. I am
concerned that Section 108 of the CPSIA is not being carried out in a
transparent manner. During the CHAP's review process, the Commission
decided to conduct a peer review of the CHAP's draft report on
phthalates and phthalate alternatives completely behind closed doors.
There have been no public meetings or conference calls over the past
two years, which is rare for a process under the guidance of the CPSC.
Because the report is over 24 months late and the process has not been
transparent to the public--with no public meetings since February
2012--I want to know what the Commission will do to ensure a full and
transparent implementation of this Congressional mandate. Will you
implement an open and transparent process that allows for public input
on the Panel's report prior to the start of the CPSC's rulemaking
process?
Answer. Not later than 180 days after the Commission's receipt of
the final CHAP report, as mandated by the statute, ``the Commission
shall, pursuant to section 553 of title 5, United States Code,
promulgate a final rule [related to the findings of the CHAP].'' This
includes an open and transparent process that allows for public input
during the course of promulgating the mandated rule. The rulemaking
process under section 553 of the APA will give stakeholders and the
public generally the opportunity to submit information and comments,
all of which will be publicly available.
In addition, as former Chairman Inez Tenenbaum previously
announced, upon receipt of the final CHAP report, the Commission
intends to publicly release the following additional documents:
CHAP draft Final Report;
Peer reviewers' Report which includes comments on the draft
final report submitted to the CHAP, and charge questions
submitted to the peer reviewers;
Identities and affiliations of the peer reviewers;
Any other data acquired by the CHAP that has not been
previously cleared for public release by the CHAP.
Also, currently on the CPSC's CHAP web page is every meeting, phone
call, piece of correspondence, and all data submitted by the public
since the CHAP was convened, with certain exceptions. For copyrighted
material, such as journal articles, CPSC staff generally post the
transmittal letter and the journal citation only. If the article is
open access, CPSC staff has included a link to the article. For
government reports available online, the staff has posted the
transmittal letter, citation, and Web link. All of this information is
publicly available at: http://www.cpsc.gov/about/cpsia/chapmain.html.
Question 10. With regard to the Chronic Hazard Advisory Panel, how
should the CPSC ensure that all alternatives are subjected to the same
level of scrutiny as the chemicals in question, in order to clearly
justify which chemical is safer, before issuing a final decision?
Answer. It is difficult to answer this question without having
received the CHAP report at this time. However, I am committed to
following both the letter and the spirit of the direction given to the
Commission in Section 108 of the CPSIA. I look forward to receiving the
report and having the Commission commence the rulemaking contemplated
in the law.
Question 11. With regard to the Chronic Hazard Advisory Panel, how
will you ensure that thoroughly tested chemicals in the market place
today will not be penalized when compared against a less tested
alternative?
Answer. It is difficult to answer this question without having
received the CHAP report at this time. However, I am committed to
following both the letter and the spirit of the direction given to the
Commission in Section 108 of the CPSIA. I look forward to receiving the
report and having the Commission commence the rulemaking contemplated
in the law.
Question 12. Please provide the Committee with the full list of
scientific studies that were evaluated by the Chronic Hazard Advisory
Panel and then made available to the peer reviewers. Please also submit
to the Committee a timeline for the release of the report and the
issuance of a draft rule.
Answer. Because of the statutory mandate that the CHAP operate as
an independent panel, and in the interest of scientific integrity, the
submission to the Commission of the final CHAP report is not in the
control of the Commission, nor does the Commission have knowledge of
the scientific studies that the CHAP may have chosen to evaluate. All
studies submitted by the public for consideration by the CHAP have been
conveyed to the CHAP.
Not later than 180 days after the Commission's receipt of the final
CHAP report, as mandated by the statute, ``the Commission shall,
pursuant to section 553 of title 5, United States Code, promulgate a
final rule [related to the findings of the CHAP].'' This rulemaking
procedure, as contemplated by the Administrative Procedure Act (APA),
includes an open and transparent process that allows for public input
during the course of promulgating the mandated rule. The rulemaking
process under section 553 of the APA will give stakeholders and the
public generally the opportunity to submit information and comments,
all of which will be publicly available.
In addition, as former Chairman Inez Tenenbaum previously
announced, upon receipt of the final CHAP report, the Commission
intends to publicly release the following additional documents:
CHAP draft Final Report;
Peer reviewers' Report which includes comments on the draft
final report submitted to the CHAP, and charge questions
submitted to the peer reviewers;
Identities and affiliations of the peer reviewers;
Any other data acquired by the CHAP that has not been
previously cleared for public release by the CHAP.
Also, currently on the CPSC's CHAP web page is every meeting, phone
call, piece of correspondence, and all data submitted by the public
since the CHAP was convened, with certain exceptions. For copyrighted
material, such as journal articles, CPSC staff generally post the
transmittal letter and the journal citation only. If the article is
open access, CPSC staff has included a link to the article. For
government reports available online, the staff has posted the
transmittal letter, citation, and Web link. All of this information is
publicly available at: http://www.cpsc.gov/about/cpsia/chapmain.html.
Question 13. Given that the CHAP report meets a number of the
requirements for a ``highly influential'' assessment, and that the
Commission must comply with the standards established by the Office of
Management and Budget's Final Information Quality Bulletin (OMB
Bulletin) for Peer Review, can you assure the Committee that the CHAP
report peer review will be completed in full conformance with the
Bulletin?
Answer. It is my understanding that OMB was consulted with respect
to its Peer Review Bulletin. Further, CPSC understands the scientific
importance of the CHAP report and will comply with the requirements
regarding the report and the ensuing rulemaking set forth in section
108 of the CPSIA.
Question 14. With regard to the Chronic Hazards Advisory Panel,
Chairman Tenenbaum assured Congress that the CPSC was fully committed
to an open and transparent process. The OMB Guidelines, on page 40,
outline public participation in line with a transparent process by
stating: ``the agency shall make the draft scientific assessment
available to the public for comment at the same time it is submitted
for peer review (or during the peer review process) and sponsor a
public meeting where oral presentations on scientific issues can be
made to the peer reviewers by interested members of the public.'' When
will the draft assessment be made available for public comment, and
when will the public meeting take place to allow for oral presentations
on scientific issues?
Answer. Not later than 180 days after the Commission's receipt of
the final CHAP report, as mandated by the statute, ``the Commission
shall, pursuant to section 553 of title 5, United States Code,
promulgate a final rule [related to the findings of the CHAP].'' This
rulemaking procedure, as contemplated by the Administrative Procedure
Act (APA), includes an open and transparent process that allows for
public input during the course of promulgating the mandated rule. The
rulemaking process under section 553 of the APA will give stakeholders
and the public generally the opportunity to submit information and
comments, all of which will be publicly available.
In addition, as former Chairman Inez Tenenbaum previously
announced, upon receipt of the final CHAP report, the Commission
intends to publicly release the following additional documents:
CHAP draft Final Report;
Peer reviewers' Report which includes comments on the draft
final report submitted to the CHAP, and charge questions
submitted to the peer reviewers;
Identities and affiliations of the peer reviewers;
Any other data acquired by the CHAP that has not been
previously cleared for public release by the CHAP.
Also, currently on the CPSC's CHAP web page is every meeting, phone
call, piece of correspondence, and all data submitted by the public
since the CHAP was convened, with certain exceptions. For copyrighted
material, such as journal articles, CPSC staff generally post the
transmittal letter and the journal citation only. If the article is
open access, CPSC staff has included a link to the article. For
government reports available online, the staff has posted the
transmittal letter, citation, and Web link. All of this information is
publicly available at: http://www.cpsc.gov/about/cpsia/chapmain.html.
Question 15. The CPSC issued several proposed rules that could
fundamentally change the process for how the Commission works with
regulated entities. For the most controversial proposals, many comments
have urged the CPSC to work with stakeholders to help the agency in
meeting its policy objectives. The first of the most controversial
proposals was a potential change to the 1110 Rule on certificates of
compliance, and the CPSC wisely took a step back and announced its
intent to hold a meeting with stakeholders to rethink the proposal. Did
the CPSC learn that it is more effective to engage with the broad range
of stakeholders before issuing a proposed rule, perhaps in the form of
holding a public meeting with stakeholders, an Advance Notice of
Proposed Rulemaking (ANPR) or both?
Answer. I believe that stakeholder input plays an integral role in
the rulemaking process. With respect to the 1110 Rule on Certificates
of Compliance, I carefully reviewed the issues raised by commenters
during the comment period, as well as requests from stakeholders. Many
commenters had very detailed, practical implementation concerns that
deserved further exploration that I had not seen during the
Commission's briefing and subsequent public meeting. This is why I
voted to reopen the comment period and conduct a public workshop with
stakeholders to gain a better understanding of how to more effectively
enhance the 1110 Rule.
Question 16. Do you believe that warnings are an effective tool in
communicating hazards to the public?
Answer. I think the best way to answer this question would be to
put it into the larger context of how CPSC staff works to address and
mitigate hazards. CPSC staff follows the standard ``safety hierarchy''
method when trying to reduce the risk of injury: (1) eliminate the
hazard, (2) guard against the hazard, and (3) warn of the hazard.
In certain situations, a warning can be an effective tool. We have
seen this in the case of button cell batteries and strollers. But,
warnings are sometimes less effective in reducing risk than either
eliminating or guarding against the hazard. There are lots of details
that can make a warning effective: large font, bright colors, simple
language, multiple languages, prominent placement, or conspicuous
graphics. But, warnings cannot be relied upon in all situations to
reduce unreasonable risks of death and injuries. In some cases, a
warning may not adequately express the severity of the risk of harm
presented to the consumer. In other cases, a warning may not be
effective because the product presents a poor medium for written
information. For example, the product may be too small. Also, warnings
are not very effective on products where the consumer at risk cannot
understand the warning, for example with infants--which explains why
Congress enacted the Poison Prevention Packaging Act authorizing the
agency to issue rules that require child-resistant closures on
dangerous household chemicals.
Question 17. Do you believe there are certain hazards that cannot,
under any circumstance, be warned or educated against?
Answer. Yes. Some hazards are so hidden or occur so unexpectedly
that warnings cannot prevent serious injuries or fatalities.
Question 18. Procedurally, how do you believe those hazards, which
cannot be warned or educated against, should be determined by the
agency?
Answer. As stated above, CPSC staff follows the standard ``safety
hierarchy'' method when trying to reduce the risk of injury: (1)
eliminate the hazard, (2) guard against the hazard, and (3) warn of the
hazard.
In determining the effectiveness of product and/or public warnings,
CPSC staff analyzes the use and utility of the product, the hazard, the
pattern of injury, changes in reported injuries following design or
labeling adjustments, and whether the risk is foreseeable.
Question 19. Section 104 of the Consumer Product Safety Improvement
Act mandated that the CPSC adopt two mandatory rules on durable infant
goods rules every 6 months. Given the nature and diversity of durable
infant products, do you feel as though this mandate by Congress is too
much? If so, how do you propose working with staff to ensure that
industry leaders have the resources and time necessary to thoroughly
vet their concerns through the ASTM process?
Answer. Section 104 of the CPSIA, is also known as the ``Danny
Keysar Child Product Safety Notification Act.'' The Act was named after
Danny because he was entrapped and died in a twice-recalled portable
crib. I have gotten to know Danny's parents, Linda Ginzel and Boaz
Keysar, very well and their efforts to keep other infants from
suffering the same tragedy that happened to Danny make them true
American heroes in my book.
It is true that Section 104 mandates a significant amount of work
to the Commission in the area of durable infant and toddler products.
However, I believe the work has allowed the Commission to promulgate
some of the most stringent safety standards in the world for our most
vulnerable and involuntary risk takers--small children. And while the
statutorily mandated time frames are short, I believe that the
Commission has successfully worked with ASTM and the durable infant
products industry to make sure that all voices can be appropriately
heard when promulgating these standards. Given the proper resources, I
believe the ``104 model'' of rulemaking could serve as a template for
all Commission rulemakings.
______
Response to Written Questions Submitted by Hon. Ron Johnson to
Hon. Robert S. Adler
Question 1. Mr. Adler, if you are re-nominated, when you are
considering a mandatory standard, are you willing to take into account
not only consumer safety but also: A consumer's right to afford
products, access products, and assume a reasonable amount of risk?
Answer. Yes. Our statutes and regulations require that the
Commission focus its efforts on unreasonable risks of serious injuries
or death associated with consumer products when undertaking mandatory
rulemaking, not all risks. We are required by our statutes and
regulations to factor the effect on a product's cost, availability and
utility that would result from a mandatory rulemaking.
Question 1a. A company's ability to survive and the number of jobs
that will be lost if your standard is put in place?
Answer. Yes.
Question 2. A number of questions have been raised about the CPSC's
proposed rulemaking to revise the voluntary recall rule. There is
concern that the revised rule, if finalized, may actually delay recalls
and make the process more adversarial and legalistic. Such a result
would be unfortunate and not in consumers' best interests, and so I
wanted to make you aware of my concerns about what has been proposed.
Recalls are most effectively and efficiently done when they are
voluntary. Do you agree that changing the rules in a way that is likely
to make negotiations more adversarial and legalistic could result in
significant delays, which are ultimately not in the best interest of
consumers?
Answer. I am in full agreement that effective recalls are in the
best interest of consumers. It is for this reason that I voted to
publish a Notice of Proposed Rulemaking for a proposed Voluntary Recall
Notice Rule last year. The intent of the proposed rule, as I read it,
is to improve the quality of recalls to protect consumers.
While I recognize that some have suggested that the changes
proposed in the rule may, in some instances, slow the process of
voluntary recall negotiations, I do not at this point have any evidence
to that effect. Nothing proposed in our rule will require firms to take
any actions beyond those they currently do. They will still have to
provide the same information, propose the same recall plans and the
same methods of publicizing them--and no more. For example, the current
Voluntary Recall rule requires that recalling firms sign their
Corrective Action Plans. See 115.20(a)(1)(ix). The proposed rule
contemplates only that recalling firms actually uphold the agreement
they have voluntarily entered into. That said, it is only a proposed
rule and I am still reviewing all comments from all stakeholders and
retain an open mind as to what the final version of the rule might look
like.
Question 3. The Commission's proposed rulemaking has been justified
by advocates on grounds that legally binding corrective action plans
(CAPs) will ensure parties adhere to the terms of the plan. Others have
described this proposal as ``a rule in search of a problem,'' arguing
that parties usually adhere to the terms of their agreements. Please
provide a detailed accounting of instances where parties have violated
the agreed-upon terms of a CAP.
Answer. Although it is true that the overwhelming majority of firms
that conduct voluntary recalls in cooperation with the CPSC do so in
good faith and live up to the terms of their Corrective Action Plans,
from time to time some firms fail to do so. In that respect, one may
liken it to firms insisting on entering into binding contracts even
with companies they trust and have done business with for years.
Notwithstanding the small number of non-cooperators, prudence still
dictates that one take protective measures--especially where the lives
and limbs of American consumers are involved. In the product safety
context, even a small number of non-cooperators may still leave
consumers exposed to millions of individual hazardous product units.
The changes in the proposed rule are designed to help address the
small number of recalcitrant firms that ``slow walk'' their agreed upon
activities, whether they be with respect to setting up a consumer
recall hotline, undertaking education efforts, or fulfilling a repair
remedy. Unfortunately, the Commission staff does not maintain a
database of ``slow walkers.'' Moreover, due to the restrictions of
confidentiality associated with enforcement activities as well as the
information disclosure restrictions of 15 U.S.C. Sec. 2055(b), I would
be unable to name these firms even if CPSC staff maintained such a
list.
I believe that the proposed rule will change very little, if
anything, for the vast majority of firms that engage in voluntary
recalls with the Commission. Most firms take their responsibilities
very seriously and should generally be unaffected by the rule change.
Finally, it is important to note that this is a proposed rule. In
view of the controversial nature of the proposal, I am carefully
reviewing all comments from our stakeholders with particular care, and
I retain an open mind as to what the final version of the rule might
look like.
Question 4. If a party were to violate the terms of a corrective
action plan, what recourses are currently available to the Commission
to affect a recall?
Answer. Under existing CPSC rules, voluntary recall plans cannot be
legally binding. See 16 CFR Sec. 1115.20(a) (``A corrective action plan
is a document signed by a subject firm. . .which has no legally binding
effect.'') Accordingly, the options available to the Commission where a
firm fails to live up the terms of a Corrective Action Plan are
somewhat limited. Aside from criticism and cajolery, the primary legal
alternative for the CPSC would be to file a lawsuit, either in Federal
district court for injunctive relief or with an administrative law
judge seeking to have a product declared a substantial product hazard.
These are resource-intensive, time-consuming actions that do not speed
safety for consumers.
Perhaps the most significant remedy available to the Commission
would arise if the non-cooperating firm were to engage in the sale,
resale, or attempted sale of a product subject to a voluntary recall.
In such a case, section 19 of the CPSA, 15 U.S.C. Sec. 2068(a)(2)(B),
would permit the agency to seek civil penalties for these acts.
However, any other violative activity by a firm, including its failing
to repair a product for consumers or fulfilling its commitment to
remove a product from the stream of commerce is not a term of an
agreement that the Commission can currently enforce as part of a
voluntary recall action plan.
Question 5. Serious concerns have been raised about the legal basis
for the Voluntary Recall Rule, with two important substantive changes
being a requirement that voluntary recalls be made legally binding and
empowering staff to require compliance program elements within a
corrective action plan. What legal authority has Congress given the
CPSC to make voluntary recalls legally binding? I am not aware of any.
Answer. If a firm chooses to enter into a binding Corrective Action
Plan with the Commission, the decision to do so is a voluntary act.
This is no different from any other contract that millions of parties
voluntarily enter into. Section 27(g) of the CPSA, 15 U.S.C.
Sec. 2076(g), specifically authorizes the Commission ``to enter into
contracts with governmental entities, private organizations, or
individuals for the conduct of activities authorized by this Act.''
That said, I again note that this is a proposed rule. I am
carefully reviewing all comments from all stakeholders and retain an
open mind as to what the final version of the rule might look like.
Question 6. What legal authority has Congress given the CPSC to
impose and regulate internal compliance programs in voluntary recall
agreements?
Answer. If a firm chooses to enter into a binding agreement with
the Commission, the decision to do so is a voluntary act.
Question 7. I understand that a recent revision to the monthly
report that companies undertaking voluntary recalls file with the CPSC
added without notice or explanation a new requirement for such
companies to monitor resale or auction sites. As Acting Chairman, were
you aware of the new requirements as they were being developed?
Answer. Since becoming Acting Chairman on December 1, 2013, I have
received regular briefings from our Compliance staff. Shortly before a
public announcement regarding the new form, I learned of the desire by
CPSC staff to update our online ``CPSC Monthly Progress Report for
Recalls'' to include the existence of, and importance of, electronic
media and retailers.
Question 8. What authority does the commission have to require
companies to monitor sites where products they no longer own or control
are being resold?
Answer. As I understand it, when a firm enters into a voluntary
agreement to conduct a recall in cooperation with the CPSC, the agency
has always requested that firms work with the third-party sellers of
their product to ensure that the recall is effective. This could
include both ``brick and mortar'' retailers as well as online sellers
of products. Regardless of whether an individual Corrective Action Plan
includes an agreement for a recalling firm to monitor sites where their
product is sold, the CPSC has always encouraged recalling firms to do
so. The updated ``CPSC Monthly Progress Report for Recalls'' simply
provides an easier way for firms to document what they have found, if
they have found anything.
Question 9. Will companies be required to monitor third-party
websites where products they no longer own or control are being resold
even if such activity is not included in a corrective action plan?
Answer. As I understand it, the Commission has always encouraged
firms to monitor the sales of their products wherever they are sold.
Question 10. Isn't the commission responsible for ensuring that
resale and auctions sites are not selling the affected product?
Answer. Once a voluntary recall has been conducted with a firm,
CPSC staff will monitor the marketplace for the sale, or resale, of any
recalled product--acts that constitute a violation of the Consumer
Product Safety Act. When we find such sales, or resales, we work to
address the issue. Currently CPSC is monitoring more than 400 previous
recalls. With jurisdiction over as many as 15,000 different product
categories, in the interest of consumer safety, the Commission has also
looked to its partners in the consumer product community, particularly
industry, to assist in monitoring the sale, or resale, of products they
have voluntarily recalled.
Question 11. How practically are thousands of companies,
particularly smaller businesses, to undertake monitoring of third-party
websites where products such companies no longer own or control are
being resold and what are such companies supposed to do if they find a
product that has been recalled is being resold?
Answer. Given the Commission's extremely limited resources, we
certainly understand the challenges facing small businesses in
monitoring the marketplace. Businesses often do so for reasons of
competitiveness, patent protection, and brand loyalty. I hope that a
company discovering the sale of its recalled products would notify both
those engaged in such illegal and dangerous behavior and the staff of
the Consumer Product Safety Commission.
Question 12. Will companies engaged in voluntary recall be liable
for the actions of third-party websites?
Answer. It is difficult to answer categorically questions that may
be very fact specific and involve issues of contract agreements, legal
interpretation, and enforcement discretion, but, generally speaking,
recalling firms are not likely to be held liable for the actions of
third-party websites over whom they have no legal or other
relationship. That said, in the interest of consumer safety, the
Commission has always looked to its partners in the consumer product
community to assist in monitoring the sale, or resale, of products they
have voluntarily recalled.
Question 13. Is it your view that a recalling company is legally
responsible for the actions of third parties?
Answer. It is difficult to answer categorically questions that may
be very fact specific and involve issues of contract agreements, legal
interpretation, and enforcement discretion, but, generally speaking,
recalling firms are not likely to be held legally responsible for the
actions of third parties over whom they have no legal or other
relationship. That said, in the interest of consumer safety, the
Commission has always looked to its partners in the consumer product
community to assist in monitoring the sale, or resale, of products they
have voluntarily recalled.
Question 14. Is it the intent of the CPSC to require companies
engaged in a voluntary recall to monitor third-party websites?
Answer. It is my understanding that the CPSC, in the interest of
consumer safety, has always encouraged recalling firms to monitor the
potential sales, or resale, of products they have voluntarily recalled,
regardless of where the sale, or resale, may occur. In 2014, a large
percentage of consumer sales of all products, including many non-
consumer products, take place online. The Commission has always looked
to its partners in the consumer product community to assist in
monitoring the sale, or resale, of products they have voluntarily
recalled, and is likely to continue to do so.
Question 15. Why was this new requirement for companies undertaking
voluntary recalls to monitor resale or auction sites not part of your
proposed voluntary corrective action rule?
Answer. The Commission's request, in the interest of consumer
safety, for recalling firms to monitor the sale, or resale, of its
products wherever that sale, or resale, may take place is not new and
is not a requirement for all firms. When a firm enters into a voluntary
agreement to conduct a recall in cooperation with the CPSC, the agency
has always requested that firms work with all third-party sellers of
their product to ensure that the recall is effective. This could
include both ``brick and mortar'' retailers as well as online sellers
of products. Regardless of whether an individual Corrective Action Plan
includes an agreement for a recalling firm to monitor sites where their
product is sold, the CPSC has always encouraged recalling firms to do
so. The updated ``CPSC Monthly Progress Report for Recalls'' simply
provides an easier way for firms to document what they have found, if
they have found anything.
That said, I again note that this is a proposed rule. I am
carefully reviewing all comments from all stakeholders and retain an
open mind as to what the final version of the rule might look like.
Question 16. The CPSC recently proposed a rule that would expand
staff's role on voluntary standards setting bodies. Among the proposed
changes, CPSC staff could participate as voting members of a voluntary
standard development group. As a commissioner, how do you view the
agency's role in the voluntary standards setting process?
Answer. The rule to which you refer grew out of a report from May
2012 by the U.S. Government Accounting Office (GAO), ``Consumer Product
Safety Commission: A More Active Role in Voluntary Standards
Development Should be Considered.'' (See http://www.gao.gov/assets/600/
590990.pdf.)
The GAO Report recommended that the Commission review its policy
for staff participation in voluntary standards development activities
and determine the feasibility of the agency's staff assuming a more
active role in developing voluntary standards. Specifically, the GAO
Report recommended that CPSC staff be allowed--not required--in
appropriate cases to vote on balloted provisions of voluntary
standards. The Report also suggested that staff be allowed to hold
leadership positions at various levels of standards development
organizations, including task groups, subcommittees, or committees. GAO
concluded that changing the CPSC's regulations to allow staff to
participate more actively in voluntary standards activities could
result in stronger voluntary standards without compromising the CPSC's
or the voluntary standards groups' independence.
As a result of this GAO Report, Commission staff proposed
conforming amendments to 16 CFR 1031, the Commission's regulation on
participation in voluntary standards activities. These amendments
followed GAO's recommendations to allow staff, on an optional basis, to
vote on voluntary standard's or take a leadership role on voluntary
standards group committees.
The proposed rule noted that such activity might result in a more
effective voluntary standards process and accelerate standards
development and implementation. Further, such participation could gain
CPSC staff greater access to and familiarity with the latest
technologies, and would provide an opportunity for staff to help
establish standards to advance CPSC's safety goals. In addition,
``full'' Federal Government participation in standards development
increases the likelihood that the standards can meet both public and
private sector needs. 141 Cong. Rec. H14334 (daily ed. December 12,
1995) (Statement of Rep. Morella). A single standard that satisfies
both industry and the CPSC would benefit both by simplifying applicable
requirements--only a single set of standards would apply.
Finally, optional staff participation in voluntary standards
development groups by voting and taking leadership roles would be
consistent with the guidance reflected in OMB Circular A-119 Revised,
``Federal Participation in the Development and Use of Voluntary
Consensus Standards and in Conformity Assessment Activities'' (February
10, 1998). Among other things, OMB Circular A-119 encourages agency
representatives serving as members of voluntary consensus standards
bodies to ``participate actively and on an equal basis with other
members,'' and to ``vote . . . at each stage of the standards
development process unless prohibited from doing so by law of their
agencies.''
The role voluntary standards play in the safety of American
consumers, and the ability of the CPSC to do its job cannot be
overemphasized. I have long believed that we must work in concert with
the voluntary standards organizations to help those organizations
create the best standards they can. This is why I am so delighted by
the progress I have seen in the voluntary standards community over the
past forty years. Groups such as ASTM, ANSI, and UL have dramatically
improved their technical skills, their efficiency in drafting
standards, their openness and transparency, and their outreach to all
stakeholders. I'm pleased to see CPSC work so closely with these
groups, and I have little doubt that our partnership with them will
only grow and deepen in the years to come in the interest of better
standards for consumers and product manufacturers alike. That said, it
is only a proposed rule and I am still reviewing all comments from all
stakeholders and retain an open mind as to what the final version of
the rule might look like.
Question 17. The statute is very clear in stressing the importance
of relying on industry-developed voluntary standards. How do we ensure
that the Commission would not turn the standards development process
into a de facto mandatory rulemaking by demanding standards that might
not be fully supported by the industry?
Answer. I see no indication that the proposed rule would turn the
voluntary standards development process into de facto mandatory
rulemaking. I believe that CPSC involvement, especially by highly
skilled and knowledgeable technical staff, often helps improve the
quality of voluntary standards. Additionally, CPSC staff participation
in the standards process does not automatically mean that the standards
body will adopt CPSC staff's view or that the Commission will adopt the
resulting voluntary standard. I appreciate your concern and will be
sure to pay particular attention to this issue when the final rule is
presented to the Commission. I continue to review all the comments from
all stakeholders of the proposed rule and retain an open mind as to
what the final version of the rule might look like.
Question 18. If CPSC staff takes a leadership role, or even simply
votes in support of a voluntary standards, isn't that an endorsement
standard?
Answer. Because of the disclaimers required of Commission staff in
the proposed rule, including that CPSC staff participation in the
standards process does not automatically mean that the Commission will
adopt the resulting voluntary standard, I see no indication that the
proposed rule's approach to staff involvement would suggest the
Commission has officially endorsed a particular standard. The law is
fairly clear regarding CPSC's approach to voluntary standards. If the
Commission, in the course developing a mandatory standard determines
that an existing voluntary standard adequately addresses a risk of
injury and is substantially complied with, the Commission must stop its
work and defer to the voluntary standard. Nothing in this proposed rule
changes that.
I appreciate your concern and will be sure to pay particular
attention to this issue when the final rule is presented to the
Commission. I continue to review all the comments from all stakeholders
of the proposed rule and retain an open mind as to what the final
version of the rule might look like.
Question 19. The Consumer Product Safety Commission sits at the
intersection of science and consumer protection. It has come to the
Committee's attention that there is an important distinction between
scientific reviews conducted in other countries, such as the E.U.,
versus the scientific standards that we apply in the United States. As
you know, U.S. agencies apply the ``reasonable risk'' assessment that
the CPSC must apply based on the legal standards, criteria and
guidelines under the Federal Hazardous Advisory Act (FHSA) for
conducting risk assessments and determining what factors to consider in
those evaluations.
Specifically, the FHSA identifies safety factors, and mandates
their application, in order to meet the `banned hazardous substance'
criteria. This is done by calculating the ``acceptable daily intake''
from the No Observed Adverse Effect Level (NOAEL) and the Low Observed
Adverse Effect Level (LOAEL) to determine acceptable risk for
developmental/reproductive toxicants. The U.S. standard provides a
higher degree of safety than the current European regulatory system,
which is skewed to implement a precautionary approach towards
regulation that focuses primarily on a potential hazard and does not
apply the same degree of risk assessment criteria in considering the
actual use of the chemical.
How will you ensure that the CPSC strictly follows U.S. safety
standards as defined by the FHSA and is not influenced by standards,
such as the precautionary approach, outside the jurisdiction of the
CPSC and the U.S. regulatory system?
Answer. My duty is to uphold and enforce the laws and regulations
that apply to the CPSC, and if re-confirmed, I look forward to doing
so.
Question 20. Would you support greater use of stakeholder working
groups and requests for information as the CPSC examines ways to
improve the effectiveness of its programs?
Answer. Yes, with a caveat. One must keep in mind that stakeholder
groups can easily fall within the provisions of the Federal Advisory
Committee Act, 5 U.S.C. App. 2, Sec. Sec. 1-16, which brings an array
of procedural requirements and high costs for agencies. Many years ago,
Congress abolished the three advisory committees administered by the
CPSC because of the enormous costs they imposed on our resource-
strapped agency.
That said, I have always been a strong advocate for the involvement
of all CPSC stakeholders from large manufacturers and retailers to
small businesses and inventors, to consumer advocates and individual
members of the public. Since becoming a Commissioner, I have had an
open door policy to all stakeholders and have sought to honor every
request to meet with me. Further, I have always believed in reading
every comment that is submitted to the agency on an issue that will
come before me as a Commissioner. If re-confirmed, I look forward to
finding more ways to improve the effectiveness of our feedback
mechanisms with all of our stakeholder groups.
Question 21. The digital age provides new opportunities for more
direct contact to consumers for distributing important information and
education. How important are public/private partnerships in the
strategies for outreach to consumers?
Answer. Very important. The CPSC is a small agency with a very
large safety mandate. In order to inform and educate the public, the
CPSC often relies on our non-governmental partners in the private
sector and the not-for-profit sector to help us amplify our outreach.
Whether through the use of social media, media interviews, or in-store
messaging, CPSC has a rich history of collaborating with associations
and companies on campaigns such as safe sleep for babies, drowning
prevention, poison prevention, and window blind safety, to name only a
few. A number of companies and organizations have effectively used
social media platforms to inform their customers and constituents of
product hazards. Because of the significant positive results for
consumers that often come from these relationships, it is my hope that
CPSC will continue to explore opportunities to work with industry and
other groups on information and education campaigns.
Question 22. How can the CPSC engage and utilize the private sector
in furthering its mission?
Answer. It is my hope that CPSC can continue to explore
opportunities to conduct social media dialogues such as Twitter chats,
participate in webinars, speak and exhibit at industry conferences,
produce videos, and use the Neighborhood Safety Network to build on our
progress in collaborating with the private sector to save lives,
prevent injuries, and advance the cause of product safety.
In addition, almost every voluntary standards committee in which
the Commission participates is made up, in part, of members from the
private sector. The role voluntary standards play in the safety of
American consumers, and the ability of the CPSC to do its job cannot be
emphasized enough. I have long believed that we must work in concert
with the voluntary standards organizations to help those organizations
create the best standards they can. This is why I am so delighted by
the tremendous progress I have seen in the voluntary standards
community over the past forty years. Groups such as ASTM, ANSI, and UL
have dramatically improved their technical skills, their efficiency in
drafting standards, their openness and transparency, and their outreach
to all stakeholders--especially consumers--affected by their work. I'm
pleased to see CPSC work so closely with these groups, and I have
little doubt that our partnership with them will only grow and deepen
in the years to come in the interest of better standards for consumers
and product manufacturers alike.
Question 23. How would you handle situations when consumers are
being injured by using products incorrectly or contrary to label
instructions, and what role would the CPSC play in such situations?
Answer. At the outset, let me say that every accident involves
three factors: the product, the consumer, and the surrounding
environment. Depending on the circumstances, it is often hard to pin
down precisely what role each factor plays in an accident. That is why
the Commission employs an extensive epidemiological and human factors
staff to assist us in our approach to protecting consumers. I find it
hard to generalize about the cause of some injuries by pointing to
consumers' ignoring label instructions if the labels warn of hazards
that consumers should not expect to exist. For example, the Commission
entered into a civil penalty agreement with a manufacturer of infant
flotation seats that failed without warning, plunging young children
into water over their heads. The manufacturer had a warning label that
parents should not leave children unattended in pools with the
flotation device. That, however, did not address the fact that the
seats were defective and failed without warning, placing infants in
life-threatening situations.
That said, the Commission has a group of talented technical experts
who often provide advice and guidance to outside groups regarding the
efficacy of their warning labels. I believe that the market is a better
informed, safer arena because of CPSC staff's technical input, and, if
reconfirmed, I will continue to support their efforts.
[all]