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92–510 PDF 2014

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 

( 

(II) 

SENATE COMMITTEE ON COMMERCE, SCIENCE, AND TRANSPORTATION 

ONE HUNDRED THIRTEENTH CONGRESS 

SECOND SESSION 

JOHN D. ROCKEFELLER IV, West Virginia, Chairman 

BARBARA BOXER, California 

BILL NELSON, Florida 

MARIA CANTWELL, Washington 

MARK PRYOR, Arkansas 

CLAIRE MCCASKILL, Missouri 

AMY KLOBUCHAR, Minnesota 

MARK BEGICH, Alaska 

RICHARD BLUMENTHAL, Connecticut 

BRIAN SCHATZ, Hawaii 

EDWARD MARKEY, Massachusetts 

CORY BOOKER, New Jersey 

JOHN E. WALSH, Montana 

JOHN THUNE, South Dakota, Ranking 

ROGER F. WICKER, Mississippi 

ROY BLUNT, Missouri 

MARCO RUBIO, Florida 

KELLY AYOTTE, New Hampshire 

DEAN HELLER, Nevada 

DAN COATS, Indiana 

TIM SCOTT, South Carolina 

TED CRUZ, Texas 

DEB FISCHER, Nebraska 

RON JOHNSON, Wisconsin 

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 

(III) 

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 

Page

IV 

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 

(1) 

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.] 

2 

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 

3 

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 

4 

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 

5 

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 

6 

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 

7 

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. 

8 

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 

9 

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). 

10 

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, nonelected, 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. 

11 

Political Contributions 

Recipient Date Amount 

Democratic Senatorial Campaign Commitiee 10/8/2008 $500 

Dingell, John D. Mr. via John D. Dingell for Congress 7/28/2008 $1,000 

Childers, Travis W. via Childers for Congress 7/21/2008 $500 

Kratovil, Frank M. Mr. Jr. via Frank Kratovil for Congress 6/24/2008 $500 

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 Maffei 3/31/2008 $500 

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 President 9/29/2007 $1,000 

Klein, Ron via Klein for Congress 6/30/2007 $500 

Rodriguez, Ciro D. via Ciro D. Rodriguez for Congress 6/30/2007 $500 

Pryor, Mark Lunsford via Mark Pryor for U.S. Senate 6/29/2007 $500 

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 President 6/26/2007 $1,000 

Pelosi, Nancy via Nancy Pelosi for Congress 6/21/2007 $1,000 

Murphy, Patrick J. via Patrick Murphy for Congress 6/21/2007 $500 

America’s Leadership Pac 5/22/2007 $500 

Rockefeller, John Davison IV via Friends of Jay Rockefeller 3/28/2007 $500 

Democratic Senatorial Campaign Commitiee 3/20/2007 $500 

Landrieu, Mary L. via Friends of Mary Landrieu, Inc. 1/31/2007 $1,000 

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 Tennessee 6/15/2006 $1,000 

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 Pennsylvania Commitiee 3/31/2006 $1,000 

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 

12 

Political Contributions—Continued 

Recipient Date Amount 

Bingaman, Jeff via A Lot of People Who Support Jeff Bingaman (2000) 6/30/2005 $500 

Casey, Robert P, Jr, via Bob Casey for Pennsylvania Commitiee 6/29/2005 $1,000 

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 Congress 9/30/2004 $500 

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. 

13 

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 

14 

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. 

15 

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. 

RESUME ́ 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. 

16 

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? 

17 

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 multimodal 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 

18 

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 hypergrowth 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 

19 

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 ‘‘Slidein’’ 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) 

20 

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, nonelected, 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 Committee 10/10/2006 $2,000.00 

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 

21 

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/ 

22 

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 Topic Committee Senate/House 

June 2, 2009 Nomination Hearing Environment and Public Works Senate 

March 17, 2010 Strengthening Intermodal Connections and Improving Freight 

Mobility 

Committee on Appropriations, 

Subcommittee on Transportation, 

Housing and Urban Development, 

and Related Agencies 

House 

February 15, 2011 Accelerating the Project Delivery 

Process 

Committee on Transportation and 

Infrastructure, Subcommittee on 

Highways and Transit 

House 

March 30, 2011 FHWA FY 2012 Budget Request Committee on Appropriations, 

Subcommittee on Transportation, 

Housing and Urban Development, 

and Related Agencies 

House 

March 22, 2012 President’s FY 2013 Budget Committee on Appropriations, 

Subcommittee on Transportation, 

Housing and Urban Development, 

and Related Agencies 

House 

March 14, 2013 Implementing MAP–21: Progress 

Report from U.S. DOT Modal Administrators 

Committee on Transportation and 

Infrastructure, Subcommittee on 

Highways and Transit 

House 

June 13, 2013 Crumbling Infrastructure: Examining the Challenges of our Outdated and Overburdened Highways and Bridges 

Committee on Appropriations, 

Subcommittee on Transportation, 

Housing and Urban Development, 

and Related Agencies 

Senate 

November 14, 2013 Progress Report: Hurricane 

Sandy Recovery—One Year Later 

Committee on Transportation and 

Infrastructure 

House 

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 

23 

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. 

24 

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. 

25 

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. 

RESUME ́ 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. 

26 

• 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, reVerDate Nov 24 2008 13:59 Jan 15, 2015 Jkt 075679 PO 00000 Frm 00030 Fmt 6633 Sfmt 6621 S:\GPO\DOCS\92510.TXT JACKIE
27 

search, 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 

28 

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 

29 

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:] 

30 

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 

31 

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) 

32 

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, nonelected, 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: 

33 

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 Banking, Housing, 

and Urban Affairs 

‘‘Progress Report on Public Transportation 

Under MAP–21’’ 

12/11/2013 U.S. House Transportation and Infrastructure 

Committee—Highways & Transit Subcommittee 

‘‘Examining the Current and Future Demands 

on FTA’s Capital Investment Grants’’ 

11/14/2013 U.S. House Transportation and Infrastructure 

Committee 

‘‘Progress Report: Hurricane Sandy Recovery— 

One Year Later’’ 

09/18/2013 U.S. Senate Committee on Banking, Housing, 

and Urban Affairs—Housing, Transportation, 

and Community Development Subcommittee 

‘‘Recovering from Superstorm Sandy: Assessing 

the Progress, Continuing Needs, and Rebuilding Strategy’’ 

03/28/2013 U.S. Senate Committee on Banking, Housing, 

and Urban Affairs—Field Hearing in Sioux 

Falls, SD 

‘‘Improving Transportation Options in Rural 

States and Tribal Areas Under MAP–21’’ 

03/14/2013 U.S. House Transportation and Infrastructure 

Committee—Highways & Transit Subcommittee 

‘‘Implementing MAP–21: Progress Report from 

U.S. DOT Modal Administrators’’ 

12/20/2012 U.S. Senate Committee on Banking, Housing, 

and Urban Affairs—Housing, Transportation, 

and Community Development Subcommittee 

‘‘Recovering from Superstorm Sandy: Rebuilding Our Infrastructure’’ 

05/19/2011 U.S. Senate Committee on Banking, Housing, 

and Urban Affairs 

‘‘Public Transportation: Priorities and 

Callenges for Reauthorization’’ 

04/21/2010 U.S. House Committee on Oversight and Government Reform ‘‘Audit of the Tri-State Oversight Committee 

and the Washington Metropolitan Area Transportation Authority’’ 

03/23/2010 U.S. House Committee on Appropriations— 

Subcommittee on Transportation, Housing and 

Urban Development, and Related Agencies 

‘‘Federal Transit Administration’s FY2011 

Budget Request’’ 

12/08/2009 U.S. House Transportation and Infrastructure 

Committee—Highways & Transit Subcommittee 

‘‘Public Transit Safety: Examining the Federal 

Role’’ Note: DOT Secretary Ray LaHood with 

the primary witness for this hearing and was 

accompanied by FTA Administrator Rogoff 

08/04/2009 U.S. Senate Committee on Banking, Housing, 

and Urban Affairs—Housing, Transportation, 

and Community Development Subcommittee 

‘‘Rail Modernization: Getting Transit Funding 

Back on Track‘‘ 

34 

Date Committee Topic 

07/14/2009 U.S. House Committee on Oversight and Government Reform—Federal Workforce, Postal 

Service, and the District of Columbia Subcommittee 

‘‘Back on Track: WMATA Red Line Metrorail 

Accident and Continual Funding Challenges‘‘ 

05/13/2009 U.S. Senate Committee on Banking, Housing, 

and Urban Affairs 

Confirmation hearing as the AdministratorNominee for 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 

35 

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 

36 

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. 

RESUME ́ 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. 

37 

• 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. 

38 

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 

39 

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. 

40 

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 coworkers 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) 

41 

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, nonelected, 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 Florida $500 09–25–2013 

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) 

42 

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. 

43 

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 mediumsized 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. 

44 

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 

45 

4. Are you willing to appear and testify before any duly constituted committee of 

the Congress on such occasions as you may be reasonably requested to do so? Yes 

RESUME ́ OF 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. 

46 

• 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-toWork, 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. 

47 

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. 

48 

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 

49 

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 popVerDate Nov 24 2008 13:59 Jan 15, 2015 Jkt 075679 PO 00000 Frm 00053 Fmt 6633 Sfmt 6621 S:\GPO\DOCS\92510.TXT JACKIE
50 

ulation 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. 

51 

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 

Yonkers, NY 

Member, Board of Directors. CU is 

the publisher of Consumer Reports 

1989 to 2009 

(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, nonelected, 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. 

52 

‘‘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 (coauthored 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. 

53 

‘‘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. 

54 

‘‘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 Busi- ness (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). 

55 

‘‘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). 

56 

‘‘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. 

57 

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. 

58 

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. 

59 

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. 

RESUME ́ OF ROBERT SANFORD ADLER

Education: J.D., University of Michigan Law School, 1969 

A.B., University of Pennsylvania, 1966, cum laude 

Honors, Awards, 

Special Recognition: 

Member, Obama Transition Team, 2009 

‘‘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 

60 

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. 

61 

‘‘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. 

62 

(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). 

63 

‘‘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). 

64 

‘‘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 KenanFlagler 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). 

65 

‘‘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 

66 

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 

67 

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. 

68 

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 

69 

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 trickledown 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 shortterm 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. 

70 

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 multistakeholder 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 reauVerDate Nov 24 2008 13:59 Jan 15, 2015 Jkt 075679 PO 00000 Frm 00074 Fmt 6633 Sfmt 6601 S:\GPO\DOCS\92510.TXT JACKIE
71 

thorization. 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 

72 

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. 

73 

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 

74 

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. 

75 

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? 

76 

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 MetroNorth 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. 

77 

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? 

78 

Mr. MENDEZ. Absolutely. I think what you mentioned on MetroNorth, 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. 

79 

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. 

80 

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? 

81 

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.] 

(83) 

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 

84 

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 § 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 § 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, 

85 

1See http://www.cpsc.gov/en/Business—Manufacturing/Srnall-Business-Resources/SmallBatch-Manufacturers-and-Third-Party-/. 

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 § 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

• 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 CPR§ 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 CPR§ 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 

86 

2https://www.cpsc.gov/PageFiles/129398/reduce3pt.pdf 

3 Id., at 3. 4Section 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. 5Section 42 of Consumer Product Safety Act. See 15 U.S.C. § 2089. 

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: 

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

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. 

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. 

87 

• 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 § 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 thirdparty testing requirements for phthalates. Unfortunately, Commission staff has disVerDate Nov 24 2008 13:59 Jan 15, 2015 Jkt 075679 PO 00000 Frm 00091 Fmt 6601 Sfmt 6621 S:\GPO\DOCS\92510.TXT JACKIE
88 

covered 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 

Equivalency to Children’s Product 

Safety Rules 

Draft policy on determination of 

which, if any, tests in international standards are equivalent 

to CPSC children’s product rules 

to permit rules harmonization. 

Draft policy due 4th Quarter, FY 

2014. 

Determinations Regarding Heavy 

Metals 

Investigate whether heavy metals 

specified in ASTM F963 (antimony, arsenic, barium, cadmium, 

chromium, lead mercury, and selenium) in certain products or product components can be determined 

never to violate applicable CPSC 

standards. 

Comments from public on CPSC 

Workshop due by July 16, 2014. 

Staff review of comments to follow. 

Depending on comments received, 

and resources allocated, staff could 

develop a Briefing Package in FY 

2015. 

Determinations Regarding 

Phthalates 

Investigate whether certain products or product components can be 

determined never to contain violative levels of prohibited 

phthalates. 

Comments from public due by July 

16, 2014. Staff review of comments 

to follow. Depending on comments 

received, staff could develop a 

Briefing Package in FY 2015. 

Fourier Transform Infrared 

Spectroscopy (FTIR) 

Investigate whether FTIR can be 

effective as a screening technology 

for determining that a plastic component part contains no 

phthalates. 

Staff continues to monitor technology developments and will provide status reports on activities as 

significant new developments 

occur. 

Determinations Regarding 

Adhesives in Manufactured Woods 

Staff directed to investigate 

whether any adhesives in manufactured woods can be determined 

not to contain lead in amounts 

above 100 ppm. 

Staff review pending, as resources 

permit. The CPSC Workshop on 

Burden Reduction included lead 

content as an item. 

Determinations Regarding 

Synthetic Food Additives 

Investigate 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. 

Staff review pending, as resources 

permit. The CPSC Workshop on 

Burden Reduction included lead 

content as an item. 

Guidance Regarding Periodic 

Testing and Periodic Testing Plans 

Staff directed to draft guidance to 

clarify that manufacturers who do 

not engage in ongoing or continued production of a 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. 

Draft guidance policy developed 

and submitted for 6(b)(6) clearance. Due to Commission by 4th 

Quarter, FY 2014. 

89 

Project Description Status 

Accreditation of Certain 

Certification Bodies 

Develop a staff technical report for 

Commission consideration of feasibility of CPSC-acceptance of certification bodies to perform thirdparty 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 review pending, as resources 

permit. 

Staff Findings Regarding 

Production Volume and Periodic 

Testing 

Investigate whether to include a 

‘‘low-volume’’ exemption 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. 

Staff review pending, as resources 

permit. 

Determinations Regarding 

Unfinished Wood and Other 

Natural Materials 

Staff directed to 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. 

A contract task order has been 

issued to contractor for cost proposal. Staff report anticipated in 

FY 2015, depending on the completion of the contract task and resource allocation. 

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. 

90 

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 

jksinger@cpsc.gov. 

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 nofault 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. 

91 

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. 

92 

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 

93 

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 cellphone 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 valueadded 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 

94 

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. 

95 

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 gathVerDate Nov 24 2008 13:59 Jan 15, 2015 Jkt 075679 PO 00000 Frm 00099 Fmt 6601 Sfmt 6621 S:\GPO\DOCS\92510.TXT JACKIE
96 

ering 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-toyear 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. 

97 

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? 

98 

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 progrowth 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 

99 

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 tackVerDate Nov 24 2008 13:59 Jan 15, 2015 Jkt 075679 PO 00000 Frm 00103 Fmt 6601 Sfmt 6621 S:\GPO\DOCS\92510.TXT JACKIE
100 

ling 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 

101 

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 inVerDate Nov 24 2008 13:59 Jan 15, 2015 Jkt 075679 PO 00000 Frm 00105 Fmt 6601 Sfmt 6621 S:\GPO\DOCS\92510.TXT JACKIE
102 

vestment 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 

103 

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 

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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 

105 

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 costbenefit 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. 

106 

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, timeconsuming 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. 

107 

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 reconfirmed, 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, conVerDate Nov 24 2008 13:59 Jan 15, 2015 Jkt 075679 PO 00000 Frm 00111 Fmt 6601 Sfmt 6621 S:\GPO\DOCS\92510.TXT JACKIE
108 

tain 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 § 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 § 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 § 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 § 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 § 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 § 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. 

109 

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 thirdparty 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 thirdparty 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 § 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 

110 

determinations for lead first published in August 2009 in the Federal Register, and 

currently found at 16 CFR § 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 antientrapment 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 

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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 databased 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 

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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 highpower 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. § 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. 

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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 comVerDate Nov 24 2008 13:59 Jan 15, 2015 Jkt 075679 PO 00000 Frm 00117 Fmt 6601 Sfmt 6621 S:\GPO\DOCS\92510.TXT JACKIE
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ments 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? 

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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 thirdparty 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 § 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 

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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 § 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? 

117 

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, 

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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 ‘‘fasttrack’’ 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. § 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. 

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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 

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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-caVerDate Nov 24 2008 13:59 Jan 15, 2015 Jkt 075679 PO 00000 Frm 00124 Fmt 6601 Sfmt 6621 S:\GPO\DOCS\92510.TXT JACKIE
121 

reer, 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 

122 

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: 

123 

• 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. 

124 

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 

125 

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. § 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 § 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. § 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. § 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. 

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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? 

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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 . . . 

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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. 

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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, §§ 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 

130 

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. 

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