[Senate Hearing 115-217]
[From the U.S. Government Publishing Office]
S. Hrg. 115-217
NOMINATION OF JEFFREY A. ROSEN,
TO BE DEPUTY SECRETARY,
U.S. DEPARTMENT OF TRANSPORTATION
=======================================================================
HEARING
before the
COMMITTEE ON COMMERCE,
SCIENCE, AND TRANSPORTATION
UNITED STATES SENATE
ONE HUNDRED FIFTEENTH CONGRESS
FIRST SESSION
__________
MARCH 29, 2017
__________
Printed for the use of the Committee on Commerce, Science, and
Transportation
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Available online: http://www.govinfo.gov
______
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SENATE COMMITTEE ON COMMERCE, SCIENCE, AND TRANSPORTATION
ONE HUNDRED FIFTEENTH CONGRESS
FIRST SESSION
JOHN THUNE, South Dakota, Chairman
ROGER F. WICKER, Mississippi BILL NELSON, Florida, Ranking
ROY BLUNT, Missouri MARIA CANTWELL, Washington
TED CRUZ, Texas AMY KLOBUCHAR, Minnesota
DEB FISCHER, Nebraska RICHARD BLUMENTHAL, Connecticut
JERRY MORAN, Kansas BRIAN SCHATZ, Hawaii
DAN SULLIVAN, Alaska EDWARD MARKEY, Massachusetts
DEAN HELLER, Nevada CORY BOOKER, New Jersey
JAMES INHOFE, Oklahoma TOM UDALL, New Mexico
MIKE LEE, Utah GARY PETERS, Michigan
RON JOHNSON, Wisconsin TAMMY BALDWIN, Wisconsin
SHELLEY MOORE CAPITO, West Virginia TAMMY DUCKWORTH, Illinois
CORY GARDNER, Colorado MAGGIE HASSAN, New Hampshire
TODD YOUNG, Indiana CATHERINE CORTEZ MASTO, Nevada
Nick Rossi, Staff Director
Adrian Arnakis, Deputy Staff Director
Jason Van Beek, General Counsel
Kim Lipsky, Democratic Staff Director
Chris Day, Democratic Deputy Staff Director
Renae Black, Senior Counsel
C O N T E N T S
----------
Page
Hearing held on March 29, 2017................................... 1
Statement of Senator Wicker...................................... 1
Statement of Senator Booker...................................... 2
Article dated August 10, 2010 from The Baltimore Sun entitled
``Major Rules Deserve a Vote: Regulations Costing Millions
of Dollars are Created Without Congressional Approval'' by
Jeff Rosen and Susan Dudley................................ 50
Statement of Senator Nelson...................................... 20
Statement of Senator Klobuchar................................... 23
Statement of Senator Fischer..................................... 25
Statement of Senator Hassan...................................... 27
Statement of Senator Blumenthal.................................. 29
Opposition letter dated March 29, 2017....................... 31
Statement of Senator Sullivan.................................... 33
Letter dated March 23, 2017 to Michael Huerta, FAA
Administrator from Matt Akinson, Board Chair, Alaska Air
Carriers Association and Jane Dale, Director, Alaska Air
Carriers Association....................................... 35
Letter dated March 10, 2017 to Representative Bishop from
Zachary M. Adams, Director of Operations, Everts Air Cargo. 38
Letter dated March 28, 2017 to Senator Dan Sullivan from
Zachary Adams, Director of Operations, Everts Air Cargo.... 41
Statement of Senator Cortez Masto................................ 43
Statement of Senator Cantwell.................................... 45
Statement of Senator Markey...................................... 47
Statement of Senator Duckworth................................... 55
Witnesses
Hon. Rob Portman, U.S. Senator from Ohio......................... 3
Jeffrey A. Rosen, Nominee to be Deputy Secretary, U.S. Department
Transportation................................................. 5
Prepared statement........................................... 6
Biographical information..................................... 7
Appendix
Response to written questions submitted to Jeffrey A. Rosen by:
Hon. Dan Sullivan............................................ 61
Hon. Bill Nelson............................................. 61
Hon. Amy Klobuchar........................................... 65
Hon. Richard Blumenthal...................................... 66
Hon. Brian Schatz............................................ 79
Hon. Edward Markey........................................... 84
Hon. Cory Booker............................................. 85
Hon. Tom Udall............................................... 86
Hon. Catherine Cortez Masto.................................. 94
Hon. Maggie Hassan........................................... 95
Response to pre-hearing questions submitted to Jeffrey A. Rosen
by:
Hon. Bill Nelson............................................. 94
Hon. Amy Klobuchar........................................... 98
Hon. Richard Blumenthal...................................... 100
Hon. Brian Schatz............................................ 101
Hon. Cory Booker............................................. 101
NOMINATION OF JEFFREY A. ROSEN,
TO BE DEPUTY SECRETARY,
U.S. DEPARTMENT OF TRANSPORTATION
----------
WEDNESDAY, MARCH 29, 2017
U.S. Senate,
Committee on Commerce, Science, and Transportation,
Washington, DC.
The Committee met, pursuant to notice, at 2:30 p.m. in room
SD-G50, Dirksen Senate Office Building, Hon. Roger Wicker,
presiding.
Present: Senators Wicker [presiding], Thune, Booker,
Nelson, Hassan, Blumenthal, Klobuchar, Young, Fischer,
Sullivan, Cortez Masto, Cantwell, Markey, and Duckworth.
OPENING STATEMENT OF HON. ROGER F. WICKER,
U.S. SENATOR FROM MISSISSIPPI
Senator Wicker. Good afternoon. Today we will consider the
nomination of Jeffrey A. Rosen to be Deputy Secretary of
Transportation. Without objection, I will place my full
statement in the record and simply summarize.
The Department of Transportation contains 10 components
agencies, employs approximately 57,000 people, and has an
operating budget of more than $75 billion. As second in charge
of the Department, Mr. Rosen will work hand-in-hand with the
capable Secretary Elaine Chao to lead our Nation in the day-to-
day operation of its various modes of transportation.
Today marks the 50th anniversary of the Department of
Transportation, and its mission remains the same today as it
was 50 years ago, to serve the United States by ensuring a
vast, safe, efficient, accessible, and convenient
transportation system that meets our vital national interests
and enhances the quality of life of the American people today
and into the future.
President Trump announced during his joint address to
Congress last month to launch our national rebuilding, I will
be asking Congress to approve legislation that produces a $1
trillion investment in the infrastructure of the United States,
financed through both public and private capital, creating
millions of new jobs. We'll certainly be interested in talking
to our nominee about this goal today.
Mr. Rosen is not a stranger to government service, having
served in the Department of Transportation as General Counsel
from 2003 to 2006. In this capacity, he oversaw a number of
important transportation bills, including SAFETEA and its
implementation, as well as the FAA reauthorization bill Vision
100 in the year 2003.
Mr. Rosen then went on to serve as General Counsel under
Senator Portman in the Office of Management and Budget from
2006 to 2009.
Mr. Rosen, I would like to thank you for testifying today
and for your willingness to continue your record of service to
our country.
I will now turn to Ranking Member Booker for any opening
remarks he may have.
Senator Booker.
STATEMENT OF HON. CORY BOOKER,
U.S. SENATOR FROM NEW JERSEY
Senator Booker. Chairman Wicker, I'm grateful for that, and
thank you for holding this hearing.
More importantly, Mr. Rosen, thank you very much. It's a
solemn and sacred commitment you make when you step forward to
serve your country, and I'm grateful for your willingness to do
so.
We are in this committee--I've actually been really
grateful, and it's good that I'm sitting next to Senator Wicker
because we've found a lot of bipartisan space to work together.
Infrastructure, as a whole, traditionally in our country
has been a very bipartisan area. The challenge we have right
now is, we in America, are woefully underinvesting in our
infrastructure, especially in comparison to our peers in China
or in Western Europe. Those folks who we're competing against
economically are prioritizing infrastructure is a significant
way.
And the American Society of Civil Engineers, who released
their report this year, gave the United States infrastructure a
D-plus. We are not a D-plus nation, we're an A-plus nation, and
we should have an infrastructure that reflects that.
Our investments in infrastructure are at a 22-year low. At
a time that we see, again, Europe investing to 5 percent of
their GDP in infrastructure; China, 9 percent of their economy
in infrastructure; we're just at 3 percent.
I believe that if we fail to make infrastructure
investments, we're going to run into catastrophes as well in
terms of the infrastructure and the potential for bad things to
happen. When we're talking about our economy and getting people
to work, helping productivity, helping businesses to thrive,
infrastructure is essential.
Just take, for example, the rail tunnel, the busiest rail
tunnel in our entire country is that between New Jersey and New
York. It's over 100 years old. It's the busiest river crossing
in all of North America. Twenty-five percent of our bridges are
structurally deficient, but this one crossing in and of itself
portends of a tremendous opportunity to expand our economy to
increase efficiencies, to help businesses grow, and, in fact,
dollars invested in projects like that create multiples of
return for our economy.
But as we delay this work, delay making adequate
investments in our aging infrastructure, it actually costs more
and more and more money. In 2014, the cost of Americans stuck
in traffic alone was $160 billion. On the other hand, a dollar
invested, as I said, brings back at least $2.00 in return in
economic growth.
So we have work to do, and I believe, as we see according
to the National Safety Council, that the preliminary 2016 data
shows that it's not just an economic issue, it's because of the
tens of thousands of people that are dying in motor vehicle
crashes and other challenges due to things that could be done
to make our infrastructure, our transportation modes, a lot
more safe.
And so we have a lot of work to do, but I believe we are
moving in the wrong direction. I believe, in fact, we've taken
some of the greatest inheritances that my generation has, me
being an X Generation, my colleague here being a Millennial----
[Laughter.]
Senator Booker.--we have inherited from our ancestors this
incredible top-of-the-line infrastructure, we've trashed it,
and are about to hand over to our children one of the more
substandard infrastructures in the developed world. This has to
be a Republican and Democratic bipartisan effort. We cannot be
about simply regulations or no regulations. We have to have
smart government doing what is best for our common goals.
Now, I'm pleased that President Trump has promised a $1
trillion investment in infrastructure, but so far, we have seen
no details. It's critical here that in the leadership of this
Department that we begin to flesh out a plan for getting there.
I know the Democrats have released a blueprint that
outlines a $1 trillion investment that I believe we need to
make. It's an opening bid into what should be a larger and
urgent, not just conversation, but ultimately action plan in
getting this done.
There are a number of critical issues that this committee
deals with in regards to the Department of Transportation that
must be addressed. It is a partnership between the Department
of Transportation and this committee, as well as those in the
House, that I believe can make for positive change for our
country.
So, Mr. Rosen, I look forward to this conversation we're
about to have, and I look forward to hearing from you about
your plans to drive forward improvements in our infrastructure
and assurances for safety. And, again, I conclude that I am
grateful for the young man to my right, Senator Wicker, for his
leadership during this hearing.
Senator Wicker. Thank you, Senator Booker, for that fine
compliment. I don't really know what a Millennial is, but I
know I don't fit into that definition. As a matter of fact, I'm
old enough to remember discussions about what to do about these
young whippersnappers, the Baby Boomers.
[Laughter.]
Senator Wicker. So that's how far back I go. We are now
joined by our distinguished colleague, Senator Portman, who has
the honor of introducing Mr. Rosen to the panel.
Senator Portman, you are recognized.
STATEMENT OF HON. ROB PORTMAN,
U.S. SENATOR FROM OHIO
Senator Portman. Great. Thank you, Chairman Wicker, Ranking
Member Booker, and to my other colleagues, Senators Klobuchar,
Hassan, Blumenthal, Young, and Hassan, who are here. Listen, I
am just honored to have been asked to introduce Jeffrey Rosen.
He is a class act, and I'm really glad he is willing to step up
to serve as Deputy Secretary of Transportation.
President Trump has sent a number of impressive candidates
our way: among those have been Elaine Chao, who happens to be
related to one of our colleagues, and also Jeffrey Rosen. He's
a graduate of Northwestern University and Harvard Law School,
magna cum laude. Don't hold that against him. He's also one of
the most respected lawyers in town. He has litigated a lot of
high-stakes, high-complexity cases in more than 20 different
states during his 30 years of experience. He has been in jury
trials, bench trials, contracts cases, securities cases, class
actions, you name it. And he has got great experience and lots
of respect as a lawyer.
In 2003, he was unanimously confirmed by the Senate to
serve as Chief Legal Officer to the Department of
Transportation. He supervised, he told me today, 425 lawyers
over at DOT. And when he was there, he rolled up his sleeves,
and he got involved in the details of how the Department works.
He gained experience that I think will make him very well
qualified to serve as Deputy Secretary.
In 2006, he did leave the Department of Transportation, and
he left because I asked him to come over to the Office of
Management and Budget to lead. Instead of 425 lawyers, I think
we had five. But I wanted the best people around me, I really
did, and in the case of Jeff, I was able to get the best
because he was awesome. He was General Counsel at OMB. He was
also a senior policy advisor. He was, of course, always
vigilant about the use of taxpayer dollars.
And more importantly to me, he was always really well
prepared and insightful and a straight shooter; he never
hesitated to tell me what I needed to know even when I didn't
want to hear it. I respected that about him and I've stayed in
touch with him since as a result. He went on to become a
Governor of the Postal Service. That's a tough lift, it's a
heavy lift, and he served his country well there.
If you really want to get a good sense of his judgment,
though, you have to look no further than his wife, Kathy, who
is an Ohioan and has many other things about her that make her
a great person, a great mom. They have three great kids: Anne,
Sally, and James. And for all the professional accomplishments
he has had, he loves to talk about his kids. He's prouder of
them than anything in life, and that's another reason that I
think he is the kind of person we would want in public service.
He's got his values in the right place.
He has got a passion for this business, and thank goodness
he does. Not everybody does. He is willing, once again, to suit
up and to help serve us and to serve his country, and he
certainly has the experience and skills and the aptitude we
would want in a Deputy Secretary of Transportation. Considering
all the issues that Senator Booker and Senator Wicker talked
about, it's going to be a challenging task, and I know he's up
to it. I strongly urge you to confirm him in the Committee and
across the floor so that he can get back to public service.
Thank you both.
Senator Wicker. Thank you very much, Senator Portman.
And now, Mr. Rosen, you are invited to come forward and
provide an opening statement. Thank you very much for your
service.
STATEMENT OF JEFFREY A. ROSEN, NOMINEE TO BE DEPUTY SECRETARY,
U.S. DEPARTMENT OF TRANSPORTATION
Mr. Rosen. Mr. Chairman, Senator Booker, and all the
members of the Committee, thank you for the opportunity to
appear here today. If I'm confirmed, I would very much look
forward to working with all of you to advance the important
work of the Department of Transportation.
I also want to thank Senator Portman for his very kind
introduction. I was honored to serve with him at OMB when he
was the Director there, and I sincerely appreciate his taking
the time to be here today.
Although Senator Portman already did it, I would like to
introduce my wife, Dr. Kathleen Rosen, who is here with me
today. And unfortunately, our three adult children, who live in
Colorado and New York, are unable to be here to cheer on their
old dad.
So let me begin by saying I'm also grateful to President
Trump and to Secretary Chao for showing their confidence in my
ability to serve in this key position, particularly at a time
when transportation and infrastructure are so vital to our
country.
During the 35 years of my career to date, I have had a
number of experiences which, if I am confirmed, I hope would
prove useful to the role that I would play at DOT. As you
heard, one is that I previously served as the General Counsel
at that Department, and I was very fortunate to work there with
Secretary Norman Mineta, who I think some of you know, and
worked on a wide range of transportation issues. And, of
course, I also served at OMB with Senator Portman.
As you heard, I've also spent 30 years in the private
sector at the law firm of Kirkland & Ellis, but I wanted to
mention that in addition to my work as a litigator there, I
served in a variety of management roles, including several
years on the firm's management committee and as co-head of its
Washington, D.C., office. I also would like to just note that
last year I served as the elected Chair of the American Bar
Association's Section of Administrative Law, which has
thousands of members nationwide. And for several years, I've
been a member of the Administrative Conference of the United
States.
Now, as members of this Committee well know, transportation
is a very broad subject, and in the time I have available, I
would just like to touch briefly on two points. The first is
that DOT is a regulatory agency, and the safety of our
traveling public must continue to be its primary regulatory
objective. At DOT, the General Counsel has long been the Chief
Regulatory Policy Officer. And when I served in that role, the
Department issued a number of important safety regulations. But
things change. We're now a decade later, and we are seeing
major technology innovations in transportation, largely driven
by the private sector.
Now, for example, I drive a hybrid vehicle, which was an
innovative technology when I bought it 8 years ago, but it now
seems ancient by comparison to the self-driving cars and trucks
being developed today. So determining the role of governments
with regard to new technologies like automated vehicles and
drones will be complex, but it's vital if Congress and the
Executive Branch are to position the Federal Government as
enabling innovation while also protecting the public safety.
A second topic, a second important topic, I wanted to
allude to is, as some of you have referenced, the urgent focus
on infrastructure, where we know the aging of our highways, our
bridges, our airports, and our air traffic control system have
become all too plain, but for which the solutions will require
both creativity and flexibility.
I'm not yet at DOT, but in thinking about this topic, one
of the things I came to appreciate from my prior public service
is the importance of DOT officials having good communication
and working relationships with the Members of Congress, and I
would certainly regard that as an important part of my job if
I'm confirmed to serve again at DOT.
I would like to end on something on a personal note if I
may. I come before this Committee as someone acutely aware of
how fortunate I've been to this point in my life. My parents
were not college graduates, but they were smart and caring
people who made sure I had the education and the opportunity to
become a lawyer. My wife had a similar experience, as her
parents were not college graduates, but they are bright and
wonderful people who helped her on her chosen path to becoming
an emergency room physician.
So having traveled this road heightens how much I
appreciate our unique country, and it makes me care deeply
about our future, and that's why I want to do this. If I'm
confirmed, I see this nomination as an opportunity to make a
meaningful contribution to something that impacts the daily
lives of every single American. And, indeed, if I am confirmed,
I would welcome the chance to work with all of you to help
rebuild, refurbish, and revitalize America's transportation
system to enable the mobility and the connectivity that
Americans need so that our economy can continue to grow and
enhance the quality of life for all Americans.
So thank you again for the opportunity to be here today.
[The prepared statement and biographical information of Mr.
Rosen follow:]
Prepared Statement of Jeffrey A. Rosen, Nominee for Deputy Secretary,
U.S. Department of Transportation
Chairman Thune, Ranking Member Nelson, and members of the
Committee:
Thank you for the opportunity to appear before you today. If I am
confirmed, I will look forward to working with all of you to advance
the important work of the Department of Transportation.
I also want to thank Senator Portman for his very kind
introduction. I was honored to serve with him at OMB when he was the
Director there. I sincerely appreciate his taking time to be here
today.
I am also pleased to introduce my wife, Dr. Kathleen Rosen, who is
here with me today. Unfortunately, our three adult children, who live
in Colorado and New York, are not able to be here to cheer on their old
dad.
Let me begin by saying that I am grateful to President Trump and
Secretary Chao for showing their confidence in my ability to serve in
this key position, particularly at a time when transportation and
infrastructure are so vital to our country. During the 35 years of my
career to date, I have had a number of experiences which, if I am
confirmed, may prove useful to the role I would play at DOT. One is
that I previously served as General Counsel at DOT, where I was
fortunate to work with Secretary Norman Mineta on a wide range of
transportation issues, and I also served as General Counsel and Senior
Policy Advisor at OMB, as you heard from Senator Portman. Additionally,
I have spent 30 years in the private sector at the law firm of Kirkland
& Ellis LLP, during which, in addition to my work as a litigator, I
served in a variety of management roles, including several years on the
firm's global management committee and as co-head of its Washington,
D.C. office. Finally, I will note that last year I served as the
elected Chair of the American Bar Association's Section of
Administrative Law, which has thousands of members nationwide, and for
several years I have been a member of the Administrative Conference of
the United States.
Now, as members of this Committee well know, transportation is a
very broad subject. Today, I'd like to briefly touch on two points.
First, DOT is a regulatory agency, and the safety of our traveling
public must continue to be its primary regulatory objective. At DOT the
General Counsel has long been the chief regulatory policy officer, and
when I served in that role, the Department issued a number of important
safety regulations. Now--a decade later--we are seeing major technology
innovations in transportation, driven by the private sector. For
example, I drive a hybrid vehicle, which was an innovative technology
when I bought it eight years ago, but it now seems ancient by
comparison to the self-driving cars and trucks being developed today.
Determining the role of governments with regard to new technologies
like automated vehicles and drones will be complex but vital if
Congress and the Executive Branch are to position the Federal
Government as enabling innovation while also protecting the public's
safety.
A second important topic I want to mention is the urgent focus on
infrastructure, where the aging of our highways, bridges, airports, and
air traffic control has become all too plain, but for which the
solutions will require both creativity and flexibility. I am not yet at
DOT, but in thinking about this topic, one of the things I came to
appreciate from my prior public service was the importance of DOT
officials having good communication and working relationships with the
members of Congress, and I would certainly regard that as an important
part of my job if I am confirmed to serve again at DOT.
I would like to end on something of a personal note, if I may: I
come before this Committee as someone acutely aware of how fortunate I
have been to this point in life. My parents were not college graduates,
but they were smart and caring people who made sure I had the education
and opportunity to become a lawyer. My wife had a similar experience,
as her parents were not college graduates, but they are bright and
wonderful people who helped her on her chosen path to becoming an
emergency room physician. Having traveled this road heightened how much
I appreciate our unique country, and makes me care deeply about its
future. If I am confirmed, I see this nomination as an opportunity to
make a meaningful contribution to something that impacts the daily
lives of all Americans.
Indeed, if I am confirmed, I would welcome the chance to work with
all of you to help rebuild, refurbish and revitalize America's
transportation system, to enable the mobility Americans need, so that
our economy can continue to grow, and enhance the quality of life for
all Americans. Thank you again for the opportunity to appear here
today.
______
a. biographical information
1. Name (Include any former names or nicknames used): Jeffrey Adam
Rosen.
2. Position to which nominated: Deputy Secretary of the U.S.
Department of Transportation.
3. Date of Nomination: March 21, 2017.
4. Address (List current place of residence and office addresses):
Home: Information not released to the public.
5. Date and Place of Birth: April 2, 1958; Boston, Massachusetts.
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 marriages).
Married for 34 years to Kathleen Nichols Rosen, M.D. (retired)
Children: Anne Rebecca Rosen, age 26 (New York, NY); Sally
Amanda Rosen, age 24 (Lafayette, CO); James Kenneth Rosen, age
23 (Boulder, CO).
7. List all college and graduate degrees. Provide year and school
attended.
Northwestern University, Evanston, IL; attended 9/76-6/79; B.A.
with Highest Distinction (Economics), June 1979
Harvard Law School, Cambridge, MA; attended 9/79-6/82; J.D.
Magna Cum Laude, June 1982
8. List all post-undergraduate employment, and highlight all
management-level jobs held and any non-managerial jobs that relate to
the position for which you are nominated.
(a) Kirkland & Ellis LLP (and Kirkland & Ellis Int'l),
Washington, D.C.: Partner May 2009 to March 2017
(b) Executive Office of the President/White House Office of
Management and Budget, Washington, D.C.: General Counsel and
Senior Policy Advisor, July 2006 to January 2009
(c) U.S. Department of Transportation, Washington, D.C.:
General Counsel, December 2003 to June 2006, and Senior
Advisor, October 2003 to December 2003. Also served as DOT
designee for Amtrak Board 2005-2006.
(d) Kirkland & Ellis LLP, Washington, D.C.: 1982-2003--Began as
an associate in 1982, became a partner in 1988, and eventually
co-head of D.C. office and a member of the firm's executive
management committee in 1999.
(e) Georgetown University Law Center, Washington, D.C.: Adjunct
Professor--taught course in Professional Responsibility/Legal
Ethics. 1996-2003.
(f) Summer positions after college: Dewey Ballantine LLP, New
York, N.Y. (1981), Summer associate; Lord Bissell & Brook,
Chicago, IL (1980), Summer associate; Apparel Buying Co.,
Braintree, MA (1979), Summer warehouse employee.
9. Attach a copy of your resume.
A copy of my most recent professional biography is attached as
Attachment A, although it has not been updated to reflect my recent
resignation from the law firm of Kirkland & Ellis LLP and other
organizations.
10. List any advisory, consultative, honorary, or other part-time
service or positions with Federal, State, or local governments, other
than those listed above, within the last ten years.
I am currently an appointed Public Member of the Administrative
Conference of the United States, and have been since 2013.
11. List all positions held as an officer, director, trustee,
partner, proprietor, agent, representative, or consultant of any
corporation, company, firm, partnership, or other business, enterprise,
educational, or other institution within the last ten years.
Partner, Kirkland & Ellis LLP and Kirkland & Ellis
International, 2009-2017
Chair of the ABA Section of Administrative Law and Regulatory
Practice (2015-2016); also served as Vice-Chair (2013-2014),
Chair-Elect (2014-2015), and Last Retiring Chair (2016-2017)
Member of the Board of Visitors, Northwestern University's
College of Arts & Sciences (2009 to present)
Member of the Board of Directors, Free State Foundation (2011-
2016)
Member of the U.S. Chamber of Commerce Government Operations,
Oversight & Consumer Affairs Committee (2012-2017)
Member of the Advisory Board of the National Federation of
Independent Business Small Business Legal Center (2011-2017)
Trustee of Jeffrey Adam Rosen Revocable Living Trust (1996 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.
To the best of my recollection and available records, in addition
to the organizations listed in response to question 11 above, other
organizations of which I have been a member during the last ten years
are listed below. I am not aware of any organization to which I have
belonged having had a discriminatory restricted membership policy.
------------------------------------------------------------------------
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American Law Institute 1996 to present Member
------------------------------------------------------------------------
U.S. Supreme Court Historical 1990 to present Member
Society
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D.C. Circuit Historical Society 2009 to present Member
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Virginia Historical Society 1991 to present Member
------------------------------------------------------------------------
Fairfax County Historical 1997 to present Member
Society
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Northern Neck of Virginia 2014 to present Member
Historical Society
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Fairfax Genealogical Society 2015 to present Member
------------------------------------------------------------------------
Northwestern University Alumni 1983 to present Member
Club of
Washington, D.C.
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Phi Beta Kappa 1978 to present Member
------------------------------------------------------------------------
National Association of 2012 to present Member
Scholars
------------------------------------------------------------------------
Association for the Advancement 1990 to present Member
of Automotive Medicine
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Society of Automotive Engineers 1990-2009 Member
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Chesterbrook Woods Citizens 1993 to present Member
Association
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McLean Racquet Club 2008 to present Member
------------------------------------------------------------------------
Chesterbrook Swim & Tennis Club 1994-2015 Member
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White Point Yacht Club 2014 to present Member
------------------------------------------------------------------------
Ashburn Xtreme Youth Hockey 2007-2011 Asst Coach,
Club Club Member
------------------------------------------------------------------------
13. Have you ever been a candidate for and/or held a public office
(elected, non-elected, or appointed)? If so, indicate whether any
campaign has any outstanding debt, the amount, and whether you are
personally liable for that debt.
I have not been a candidate for a public office, and I do not have
any outstanding campaign debt.
I have held a number of appointed governmental positions, as
General Counsel of the U.S. Department of Transportation (2003-2006);
General Counsel and Senior Policy Advisor at the White House Office of
Management and Budget (2006-2009); as a Public Member of the
Administrative Conference of the United States (2013 to present); and
as a Member of the Arlington County (VA) Historical Affairs and
Landmark Review Board (1991-1993).
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.
Please see Attachment B.
15. List all scholarships, fellowships, honorary degrees, honorary
society memberships, military medals, and any other special recognition
for outstanding service or achievements.
Received various academic honors (e.g., Phi Beta Kappa, Deru
Honorary, Departmental Honors in Economics).
Received various professional recognitions (e.g., ``Washington,
D.C. Super Lawyer'' (2012, 2013, 2014, 2015, 2016); Washington, D.C.
``Top Lawyers'' (2012, 2013, 2014 and 2015); top-rated ``AV''
Preeminent in Martindale-Hubbell for more than 15 years; Listed in
Who's Who in American Law and Who's Who in America). Member of American
Law Institute.
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.
To the best of my recollection and available records, my
publications and public remarks are listed below.
Publications
``Putting Regulators on a Budget,'' 27 National Affairs 42
(Spring 2016)
``The Regulatory Budget Revisited,'' 66 Admin.L.Rev. 835 (Fall
2014).
``Fishing for a Reason to Regulate,'' The Hill online (April
10, 2013)
``President Needs to Get Serious About Spending Cuts;'' The
Hill (December 20, 2012)
``2008 Obama Would Like Ryan Budget,'' Des Moines Register
p.13A (August 30, 2012)
``The 2012 Budget Surplus That Disappeared,'' National Review
Online (December 14, 2011)
``Rein on Federal Regulations Will Only Benefit Economy,''
Cincinnati Enquirer (November 9, 2011)
``Obama's Spending Ideas Unbalanced,'' The Hill Op-Ed p. 20
(September 28, 2011)''
``Who Checks the Fact Checker?'' National Review Online
(September 16, 2011)
``Costly Federal Regulations Escape Congressional Approval,''
Atlanta Journal Constitution (September 1, 2010)
``Major Rules Deserve a Vote,'' Baltimore Sun Op-Ed, p. 13
(August 10, 2010)
``Government Incentives For Businesses,'' 19 Business Law Today
51-55 (May/June 2010)
``A Chance for a second Look: Judicial Review of Rulemaking
Petition Denials,'' 35 Admin. & Regulatory Law News 7-9 (Fall
2009)
``Obama vs. the Regulators,'' The Washington Post Op-Ed (August
6, 2009)
``Watch for Hidden Taxes,'' Boston Globe Op-Ed (June 12, 2009)
``Obama Regulations are Taxing Consumers,'' Washington Business
Journal (June 12, 2009)
``Court Acceptance of `In-Kind' Settlements in Consumer Class
Actions,'' 9 Class Actions & Derivative Suits 20 (Summer 1999)
In addition, during 2009-2010, I was a contributor to National
Journal's online experts' blog series for transportation topics, with
eight postings.
Speeches/Remarks
Speaker on ``Repairing Regulation'' at University of Virginia
Journal of Law & Politics program ``Reining In the
Administrative State'' (October 21, 2016)
Program Co-Chair and Speaker at Joint ABA, SBCA. and GW
Regulatory Studies program on ``Benefit-Cost Analysis and the
Courts'' (October 11, 2016)
Speaker at ABA Section of Administrative Law teleforum on ``New
Life for the Congressional Review Act?'' (May 26, 2016)
Speaker at Kirby Center for Constitutional Studies and
Citizenship Program on ``Leashing Leviathan: The Case for a
Congressional Regulatory Budget'' (May 25, 2016)
Speaker at Federalist Society's Annual Executive Branch Review
Program's Plenary Panel on ``Congressional Regulatory Reform
Proposals'' (May 17, 2016)
Speaker/moderator on ``Current Debates on Regulatory Reform''
at joint ABA and Hoover Institution program ``The Second Hoover
Commission's 60th Anniversary: Lessons for Regulatory Reform''
(March 16, 2016)
Moderator for ``The Role of OIRA in the Regulatory Process: A
Discussion with OIRA Administrator Howard Shelanski'' at ABA's
12th Annual Administrative Law Institute (March 15, 2016)
Speaker at U.S. Chamber of Commerce's Joint Fall Committee
Meeting on ``Regulation: Who Decides?'' (December 9, 2015)
Speaker/moderator at ABA's Fall Administrative Law Conference
on ``The Regulatory Budget Revisited'' (October 30, 2015)
Speaker at George Mason University program ``Regulatory Boot
Camp for Policy Advisors'' on ``Reform--The Path Forward''
(April 1, 2015)
Speaker at the University of Pennsylvania Program on Regulation
workshop on ``Agenda-Setting and the Regulatory State''
(November 7, 2014)
Speaker at the Washington Legal Foundation Media Briefing
Series, U.S. Supreme Court: Reviewing The October 2013 Term
(June 25, 2014)
Program Chairman, 10th Annual ABA Administrative Law Institute
(April 3-4, 2014)
Speaker at U.S. Chamber of Commerce's Center for Capital
Markets Competitiveness on ``The Role of Cost-Benefit Analysis
in Regulatory Rulemakings'' (March 12, 2013).
Speaker/moderator at ABA Administrative Law Section program on
``Proposals and Prospects for Regulatory Reform'' (October 3,
2012)
Speaker at ABA's 8th annual Administrative Law Institute on
``Current Proposals for Regulatory Reform'' (May 10, 2012)
Speaker at House Energy and Commerce Committee's Roundtable on
``Improving the Economy Through Better Federal Science'' (March
22, 2012)
Speaker at ABA's Fall Administrative Law Conference on
``Administrative Law: Time to REIN it in, CURB it, or Reform
It'' (November 17, 2011)
Speaker/moderator at ABA's annual Rulemaking Institute on
``Regulatory Reform--Current Legislative Proposals and Obama
Administration Initiatives'' (May 3, 2011)
Speaker at U.S. Chamber of Commerce program on ``Restoring
Balance to the Regulatory Process'' (March 22, 2011)
Speaker at Homeland Security Law Institute on ``Transportation
and Supply Chain Security'' (March 2, 2011)
Speaker at Conference of Chief Justices Mid-Year Meeting on
``When Is Federal Preemption Appropriate?'' (January 25, 2011)
Speaker at American Enterprise Institute for Public Policy
Research's program on ``Who Is Accountable for Federal
Regulations?'' (December 2, 2010)
Speaker at ABA's Annual Meeting program on ``Are Chevron,
Vermont Yankee, and State Farm in Need of New Thinking''
(August 6, 2010)
Speaker at ABA's annual Rulemaking Institute on ``Formal and
Hybrid Rulemaking: Time for a Revival'' (June 1, 2010)
Speaker at U.S. Department of Transportation's ``One DOT Legal
Day'' on ``Former General Counsels' Lessons Learned'' (May 11,
2010)
Speaker at NYU Law School Symposium on ``Changes to the
Regulatory State: President Obama's Approach to Regulation''
(March 12, 2010)
Speaker at ABA Administrative Law Section's Fall Conference on
``Scrutinizing Regulatory Reversals'' (October 22, 2009)
Speaker/moderator at ABA Rulemaking Committee program on
``Reflections on Rulemaking'' (October 8, 2009)
Speaker at Meeting of ABA Task Force on Federal Preemption of
State Tort Laws (October 1, 2009)
Speaker at AAAE webinar on EPA's Proposed Airport De-Icing Rule
(September 2, 2009)
Speaker at Heritage Foundation Program ``Hurting or Helping
Consumers? Destroying Federal Preemption One Industry At a
Time'' (August 5, 2009)
Speaker at Civil Justice Reform Group's General Counsels
Program, on ``Preemption of State Tort Law By Federal Agency
Regulation of Interstate Commerce'' (June 19, 2009)
Speaker at ABA Administrative Law Section's Regulatory Practice
Institute, ``New Directions in Agency Rulemaking'' (June 10,
2009)
Speaker at Kirkland & Ellis Conference ``Managing the
Enforcement Response to the Financial Crisis,'' addressing
``Pulling the tarp off the TARP: Navigating the Perils of the
Bailout'' (April 2, 2009)
Speaker at President's Council on Integrity and Efficiency on
``Earmarks and Executive Order 13457'' (March 12, 2008)
Speaker at Homeland Security Law Institute on ``Regulatory
Developments for 2008'' (January 17, 2008)
Speaker at AEI-Brookings Joint Center for Regulatory Analysis
Program on ``The Role of Competition Analysis in Regulatory
Decisions'' (May 15, 2007)
Speaker at Washington International Business Council Meeting on
``OMB Priorities Affecting International Trade and Business''
(April 26, 2007)
Speaker at Heritage Foundation's Regulatory Working Group on
``OMB's Regulatory Review Process'' (April 19, 2007)
Speaker at Homeland Security Law Institute on ``Regulatory
Developments for 2007'' (January 17, 2007)
Speaker at U.S. Conference of Mayors Annual Meeting on ``Amtrak
Reform'' (May 11, 2005)
Speaker at National Conference of State Legislators Annual
Spring Forum on ``Amtrak Update'' (April 15, 2005)
Speaker at Federal Highway Administration's Annual Legal
Workshop on ``Who Owns Transportation Infrastructure'' (March
2, 2005)
Speaker at DOT Aviation Enforcement Office's Disability Rights
Forum (November 9, 2004)
Speaker at ABA Administrative Law Section's Transportation
Subcommittee on ``Statutory Mandates of Rulemakings''
(September 30, 2004)
Speaker at National Air Carriers Association Board Meeting on
``Aviation War Risk Insurance and other current issues''
(August 8, 2004)
Speaker at Regional Airlines Association General Counsel
Program, on ``Current Legal and Regulatory Issues'' (June 22,
2004)
Speaker at Price Waterhouse General Counsel Forum on ``Taming
the Class Action Tiger: Surviving Settlement Challenges''
(December 16, 1999)
Speaker at Kirkland & Ellis Litigation Conference on ``The
Future of Class Action Litigation: Dealing with the Ripple
Effects of the Supreme Court Decisions in Amchem and Ortiz''
(September 16, 1999).
Speaker at ALI-ABA Securities Law Seminar on ``New Dimensions
In Securities Litigation'' (March 22, 1990)
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.
``Hearing on Nominations for the Department of Commerce,
Corporation for Public Broadcasting, and Department of
Transportation,'' testimony before the Senate Committee on
Commerce, Science, and Transportation. November 4, 2003.
``Implementation of the Small Business Paperwork Relief Act
of 2002,'' testimony before a joint hearing of the House
Government Reform Committee's Subcommittee on Energy Policy,
Natural Resources and Regulatory Affairs, and of the House
Small Business Committee's Subcommittee on Regulatory Reform
and Oversight. January 28, 2004.
``Ratification of the 2001 Cape Town Convention on
International Interests in Mobile Equipment,'' testimony before
the Senate Foreign Relations Committee. April 1, 2004.
``Government Policies Regarding the Ability of an Airline to
Deny Transport to an Individual Found Unsafe or Dangerous,''
testimony before the Senate Appropriations Committee's
Subcommittee on Transportation, Treasury, and General
Government. June 24, 2004.
``Amtrak's Budget,'' testimony before the House
Appropriations Committee's Subcommittee on Transportation,
Treasury, HUD, Judiciary and District of Columbia. April 27,
2005.
``Amtrak's Budget,'' testimony before the Senate
Appropriations Committee's Subcommittee on Transportation,
Treasury, and General Government. May 12, 2005.
``The Impact of Regulation on U.S. Manufacturing,''
testimony before the House Committee on Government Reform's
Subcommittee on Regulatory Affairs. June 28, 2005.
``Amtrak Reform,'' testimony before the Senate Commerce,
Science, and Transportation Committee's Subcommittee on Surface
Transportation and Merchant Marine. April 21, 2005.
``Amtrak Reform Proposals,'' testimony before the House
Transportation and Infrastructure Committee's Subcommittee on
Railroads. September 21, 2005.
``Current Governance Issues at Amtrak,'' testimony before
the House Transportation and Infrastructure Committee's
Subcommittee on Railroads. November 15, 2005.
``The Administrative Procedure Act at 65--Is Reform Needed
to Create Jobs, Promote Economic Growth and Reduce Costs?,''
testimony before the House Judiciary Committee's Subcommittee
on Courts, Commercial and Administrative Law. February 28,
2011.
``The Regulatory Accountability Act of 2013'', testimony
before the House Judiciary Committee's Subcommittee on
Regulatory Reform, Commercial and Antitrust Law. July 9, 2013.
``Nomination of the Honorable Jeffrey A. Rosen to be a
Governor, U.S. Postal Service'', U.S. Senate Committee on
Homeland Security & Governmental Affairs, Apri1 21, 2016.
I also appeared at the following hearings along with DOT Secretary
Mineta:
``CAFE Standards for Passenger Cars,'' Senate Commerce,
Science, and Transportation Committee. May 9, 2006.
``Fiscal Year 2006 DOT Budget Request,'' House Appropriation
Committee's Subcommittee on Transportation, Treasury, HUD,
Judiciary, and District Columbia. March 18, 2005.
``Fiscal Year 2006 DOT Budget Request,'' Senate
Appropriations Committee's Subcommittee on Transportation,
Treasury, and General Government. March 15, 2005.
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 am interested in serving because I believe I can make a positive
contribution. Several aspects of my background may prove helpful to
this position, including my prior service at both the U.S. Department
of Transportation and at the Office of Management and Budget. The full
span of my career includes experiences useful to the leadership of
organizations, such as management, economics and policy, legal
requirements, regulation, and budgets, as well as other skills useful
to the position. In addition to my previous public service, I have
served in leadership roles in a large national law firm and for a
nationwide bar association, for example.
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?
Being a good steward of the public's resources is an essential
responsibility of DOT leaders. My prior experience at OMB of course
included a strong focus on fiscal and management oversight, and my
prior service at DOT included a strong role in ensuring adherence to
legal requirements and fiscal integrity measures there as well. At my
law firm, I was for several years a member of the Finance Committee, in
addition to other roles in management in the past.
20. What do you believe to be the top three challenges facing the
department/agency, and why?
In significant part, the Department's major responsibilities
involve safety and safety regulation, infrastructure programs and
funding, and operation of the air traffic control system (and some
other operational activities). As the Department enters its fiftieth
year, there are policy and fiscal challenges related to all of these.
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 have no such arrangements except the retirement benefits that are
identified on my financial disclosure report. In particular, my law
firm has a longstanding defined benefit pension plan, and, because of
the length of my service (1982-2003 and 2009-2017), I am entitled to
receive a pension.
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 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 DOT's Designated Agency Ethics Official and that has been
provided to this Committee. I am not aware of any other potential
conflicts of interest.
4. Describe any business relationship, dealing, or financial
transaction which you have had during the last ten years, whether for
yourself, on behalf of a client, or acting as an agent, that could in
any way constitute or result in a possible conflict of interest in the
position to which you have been nominated.
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 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 DOT's Designated Agency Ethics Official and that has been
provided to this Committee. I am not aware of any other potential
conflicts of interest.
5. 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 not been paid to lobby on behalf of any organization or
individual. I have occasionally testified or provided advice without
compensation in my personal capacity.
As a practicing lawyer in private practice--primarily as a
litigator--I have advised clients about a wide variety of legal and
policy issues.
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 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 DOT's Designated Agency Ethics Official and that has been
provided to this Committee. I am not aware of any other potential
conflicts of interest.
c. legal matters
1. Have you ever been disciplined or cited for a breach of ethics,
professional misconduct, or retaliation by, or been the subject of a
complaint to, any court, administrative agency, the Office of Special
Counsel, professional association, disciplinary committee, or other
professional group? If yes:
a) Provide the name of agency, association, committee, or group;
b) Provide the date the citation, disciplinary action, complaint, or
personnel action was issued or initiated;
c) Describe the citation, disciplinary action, complaint, or
personnel action;
d) Provide the results of the citation, disciplinary action,
complaint, or personnel action.
No.
2. Have you ever been investigated, arrested, charged, or held by
any Federal, State, or other law enforcement authority of any Federal,
State, county, or municipal entity, other than for a minor traffic
offense? If so, please explain. No.
3. Have you or any business or nonprofit of which you are or were
an officer ever been involved as a party in an administrative agency
proceeding, criminal proceeding, or civil litigation? If so. please
explain.
I have never been involved as a party to any civil litigation,
administrative agency proceeding, or criminal proceeding. Kirkland &
Ellis LLP has on occasion been a party in some civil litigation, but
none of those concerned any activities involving me personally, and I
am not personally familiar with the details of any of those.
4. Have you ever been convicted (including pleas of guilty or nolo
contendere) of any criminal violation other than a minor traffic
offense? If so, please explain. No.
5. Have you ever been accused, formally or informally, of sexual
harassment or discrimination on the basis of sex, race, religion, or
any other basis? If so, please explain. No.
6. Please advise the Committee of any additional information,
favorable or unfavorable, which you feel should be disclosed in
connection with your nomination. None.
d. relationship with committee
1. Will you ensure that your department/agency complies with
deadlines for information set by congressional committees?
Yes, to the extent reasonable and feasible.
2. Will you ensure that your department/agency does whatever it can
to protect congressional witnesses and whistleblowers from reprisal for
their testimony and disclosures? Yes.
3. Will you cooperate in providing the Committee with requested
witnesses, including technical experts and career employees, with
firsthand knowledge of matters of interest to the Committee?
Yes, to the extent consistent with legal and customary
requirements.
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.
______
Attachment A
Resume of Jeffrey A. Rosen, P.C.
Partner, Washington, D.C.
Practice Areas
Litigation
Energy
Regulatory
Class Action, Mass Tort & Toxic Tort Litigation
Antitrust & Competition
Admissions
1982, District of Columbia
Education
Harvard Law School, J.D., 1982 magna cum laude
Northwestern University, BA, Economics, 1979 with Highest
Distinction
Departmental Honors in Economics
President of Student Government
Professional Profile
During his nearly thirty years at Kirkland, Jeff Rosen has handled a
wide variety of complex legal problems for major companies and
organizations. In 2009, Jeff rejoined the Firm as a senior partner in
the Washington, D.C. office, following more than five years of public
service. In recent years, Jeff's practice has focused on both
regulatory and litigation matters. During his previous 21 years at
Kirkland from 1982 to 2003, Jeff's practice principally involved
complex business litigation matters involving antitrust, securities,
contracts, RICO, business torts, government enforcement actions and
product liability, including class actions. He has handled litigation
before Federal and state courts in more than 20 states. including jury
trials. bench evidentiary hearings, arbitrations and appellate
arguments. He also served on Kirkland's Firmwide Management Committee
and as Co-Head of the Washington, D.C. office.
From 2003 to 2006, Jeff served as the General Counsel of the U.S.
Department of Transportation, after having been unanimously confirmed
by the U.S. Senate. As that Department's Chief Legal Officer, he had
final authority within the DOT to resolve all legal questions arising
within or referred to the Department. As General Counsel, he oversaw
the activities of more than 400 lawyers in the Transportation
Department and its operating administrations. Jeff also had
responsibility for DOT's regulatory program, enforcement and litigation
activities, legal issues relating to international activities involving
transportation, legislative proposals, and he acted as counsel to
Secretary Norman Mineta. At DOT, Jeff testified on behalf of the
Administration before various committees of Congress on ten occasions.
He served on DOT's Credit Council, which was responsible for four
Federal loan programs. In addition, he served as the Government's
representative on the Amtrak Board of Directors, which was responsible
for overseeing the company's management, personnel, operations, and
finances.
From 2006 to 2009, Jeff served as General Counsel and Senior Policy
Advisor for the White House Office of Management and Budget, which made
him the Administration's lead lawyer for regulatory and fiscal issues,
as well as for executive orders. Jeff's legal responsibilities included
giving analysis and advice to the OMB Director and the President with
regard to Federal laws related to a wide array of government agencies
and programs, as well as administrative law, Constitutional law, ethics
Jaws, Federal credit and insurance laws, litigation against the United
States, and Federal budget and appropriations laws. He also handled
responses to Congressional oversight and investigations.
Representative Matters
During his years of practice at Kirkland, Jeff has represented leading
companies in a range of industries, including transportation, energy,
technology and software, communications, chemicals, hotels, shopping
malls, and financial services, among others. Some illustrative clients
for whom he has handled significant matters during his years as a
partner include Raytheon, Yamaha, PG&E Generating, AOL, General Motors,
Hyundai, Qwest, Marriott, CF Industries, and the U.S. Chamber of
Commerce.
Memberships & Affiliations
Chair of the ABA Section of Administrative Law and Regulatory Practice
(2015-2016); previously Member of the Governing Council (2008-2012),
and co-chair of the Section's Committee on Rulemaking (2009-2014)
Member of the Administrative Conference of the United States (2013 to
present)
Member of the U.S. Chamber of Commerce Government Operations, Oversight
& Consumer Affairs Committee (2012 to present)
Member of the Advisory Board of the National Federation of Independent
Business Small Business Legal Center (2011 to present)
Member of National Journal's Panel of Transportation Experts and
contributor to the online experts blog (2009-2012)
Counsel to the RNC Platform Committee (2012)
Member of the Board of Visitors, Northwestern University's College of
Arts & Sciences (1998-2003, 2009 to present)
Adjunct Professor of Law, Georgetown University Law Center, Washington,
D.C. (1996-2003)
Other Distinctions
Nominated by President Bush to be a Federal District Judge; Received
highest rating from American Bar Association's Standing Committee on
the Judiciary (2008)
Member of the American Law Institute (1996 to present)
Recognized as a ``Washington, D.C. Super lawyer'' (2012, 2013, 2014,
2015 and 2016) by Super Lawyers magazine for Business Litigation/
Administrative Law/Transportation
Recognized in Washington, D.C. ``Top Lawyers'' (2012, 2013, 2014 and
2015) by ALM Media for Business Litigation
Recognized in Corporate Responsibility Magazine's ``Legal Who's Who''
(2014) for Environmental Litigation
Recognized in The Legal 500 US. (2012) for Trade Secrets Litigation
Listed in Who's Who in American Law and Who's Who in America; top-rated
``AV'' Preeminent in Martindale-Hubbell for more than 15 years
Publications
``Putting Regulators on a Budget,'' 27 National Affairs 42 (Spring
2016) ``The Regulatory Budget Revisited,'' 66 Admin.L.Rev. 835 (Fall
2014).
``Fishing for a Reason to Regulate,'' The Hill online (April 10, 2013)
``President Needs to Get Serious About Spending Cuts,'' The Hill
(December 20, 2012)
``2008 Obama Would Like Ryan Budget,'' Des Moines Register p.13A
(August 30, 2012)
``The 2012 Budget Surplus That Disappeared,'' National Review Online
(December 14, 2011)
``Rein on Federal Regulations Will Only Benefit Economy,'' Cincinnati
Enquirer (November 9, 2011)
``Who Checks the Fact Checker?'' National Review Online (September 16,
2011)
``Costly Federal Regulations Escape Congressional Approval,'' Atlanta
Journal Constitution (September 1, 2010)
``Major Rules Deserve a Vote,'' Baltimore Sun Op-Ed, p.13 (August 10,
2010)
``Government Incentives For Businesses,'' 19 Business Law Today 51-55
(May/June 2010)
``A Chance for a Second Look: Judicial Review of Rulemaking Petition
Denials,'' 35 Admin. & Regulatory Law News 7-9 (Fall 2009)
``Obama vs. the Regulators,'' The Washington Post Op-Ed (August 6,
2009)
``Watch for Hidden Taxes,'' Boston Globe Op-Ed (June 12, 2009)
``Obama Regulations are Taxing Consumers,'' Washington Business Journal
(June 12, 2009)
``Court Acceptance of `In-Kind' Settlements in Consumer Class
Actions,'' 9 Class Actions & Derivative Suits 20 (Summer 1999)
Seminars
Some of Jeff's recent seminar appearances include:
Speaker on ``Repairing Regulation'' at University of Virginia Journal
of Law & Politics program ``Reining In the Administrative State''
(October 21, 2016)
Program Co-Chair and Speaker at Joint ABA, SBCA, and GW Regulatory
Studies program on ``Benefit-Cost Analysis and the Courts'' (October
11, 2016)
Speaker at ABA Section of Administrative Law teleforum on ``New Life
for the Congressional Review Act?'' (May 26, 2016)
Speaker at Kirby Center for Constitutional Studies and Citizenship
Program on ``Leashing Leviathan: The Case for a Congressional
Regulatory Budget'' (May 25, 2016)
Speaker at Federalist Society's Annual Executive Branch Review
Program's Plenary Panel on ``Congressional Regulatory Reform
Proposals'' (May 17, 2016)
Speaker/moderator on ``Current Debates on Regulatory Reform'' at joint
ABA and Hoover Institution program ``The Second Hoover Commission's
60th Anniversary: Lessons for Regulatory Reform'' (March 16, 2016)
Moderator for ``The Role of OIRA in the Regulatory Process: A
Discussion with OIRA Administrator Howard Shelanski'' at ABA's 12th
Annual Administrative Law Institute (March 15, 2016)
Speaker at U.S. Chamber of Commerce's Joint Fall Committee Meeting on
``Regulation: Who Decides?'' (December 9, 2015)
Speaker/moderator at ABA's Fall Administrative Law Conference on ``The
Regulatory Budget Revisited'' (October 30, 2015)
Speaker at George Mason University program ``Regulatory Boot Camp for
Polley Advisors'' on ``Reform--The Path Forward'' (April 1, 2015)
Speaker at the University of Pennsylvania Program on Regulation
workshop on ``Agenda-Setting and the Regulatory State'' (November 7,
2014)
Speaker at the Washington Legal Foundation Media Briefing Series, U.S.
Supreme Court: Reviewing The October 2013 Term (June 25, 2014)
Program Chairman, 10th Annual ABA Administrative Law Institute (April
3-4, 2014)
Speaker at hearing of House Judiciary Committee's Subcommittee on
Regulatory Reform, Commercial and Antitrust Law on ``The Regulatory
Accountability Act of 2013'' (July 9, 2013)
Speaker at U.S. Chamber of Commerce's Center for Capital Markets
Competitiveness on ``The Role of Cost-Benefit Analysis in Regulatory
Rulemakings'' (March 12, 2013)
Speaker/moderator at ABA Administrative Law Section program on
``Proposals and Prospects for Regulatory Reform'' (October 3, 2012)
Speaker at ABA's 8th annual Administrative Law Institute on ``Current
Proposals for Regulatory Reform'' (May 10, 2012)
Speaker at House Energy and Commerce Committee's ``Roundtable on
Improving the Economy Through Better Federal Science'' (March 22, 2012)
Speaker at ABA's Fall Administrative Law Conference on ``Administrative
Law: Time to REIN it in, CURB it, or Reform It?'' (November 17, 2011)
Speaker/moderator at ABA's annual Rulemaking Institute on ``Regulatory
Reform-Current Legislative Proposals and Obama Administration
Initiatives'' (May 3, 2011)
Speaker at U.S. Chamber of Commerce program on ``Restoring Balance to
the Regulatory Process'' (March 22, 2011)
Speaker at Homeland Security Law Institute on ``Transportation and
Supply Chain Security'' (March 2, 2011)
Speaker at hearing of House Judiciary Committee Subcommittee on Courts,
Commercial and Administrative Law on ``The APA at 65'' (February 28,
2011)
Speaker at Conference of Chief Justices Mid-Year Meeting on ``When Is
Federal Preemption Appropriate?'' (January 25, 2011)
Speaker at American Enterprise Institute for Public Policy Research's
program on ``Who Is Accountable for Federal Regulations?'' (December 2,
2010)
Speaker at ABA's Annual Meeting program on ``Are Chevron, Vermont
Yankee, and State Farm in Need of New Thinking'' (August 6, 2010)
Speaker at ABA's annual Rulemaking Institute on ``Formal and Hybrid
Rulemaking: Time for a Revival'' (June 1, 2010)
Speaker at U.S. Department of Transportation's ``One DOT Legal Day'' on
``Former General Counsels' Lessons Learned'' (May 11, 2010)
Speaker at NYU Law School Symposium on ``Changes to the Regulatory
State: President Obama's Approach to Regulation'' (March 12, 2010)
Speaker at ABA's Fall Administrative Law Conference on ``Scrutinizing
Regulatory Policy Reversals'' (October 22, 2009)
Speaker/moderator at ABA Rulemaking Committee program on ``Reflections
on Rulemaking'' (October 8, 2009)
Speaker at meeting of ABA Task Force on Federal Preemption of State
Tort Laws (October 1, 2009)
Speaker at AAAE webinar on EPA's Proposed Airport De-Icing Rule
(September 2, 2009)
Speaker at Heritage Foundation Program on ``Hurting or Helping
Consumers? Destroying Federal Preemption One Industry at a Time''
(August 5, 2009)
Speaker at ABA Administrative Law Section's Regulatory Practice
Institute, ``New Directions In Agency Rulemaking'' (June 10, 2009)
Speaker at Kirkland & Ellis Conference ``Managing the Enforcement
Response to the Financial Crisis'', addressing ``Pulling the tarp off
the TARP: Navigating the Perils of the Bailout'' (April 2, 2009)
Speaker at President's Council on Integrity and Efficiency on
``Earmarks and Executive Order 13457'' (March 12, 2008)
Speaker at Homeland Security Law Institute on ``Regulatory Developments
for 2008'' (January 17, 2008)
Speaker at AEI-Brookings Joint Center for Regulatory Analysis Program
on ``The Role of Competition Analysis in Regulatory Decisions'' (May
15, 2007)
Illustrative Media Quotes and Coverage
Cheryl Bolen, ``Rosen Revitalizing ABA Section With More Debate,
Programs,'' Bloomberg BNA (July 6, 2016)
Cheryl Bolen, ``Resolutions to Disapprove Rules on the Rise,''
Bloomberg BNA (May 27, 2016)
Hugh Kaplan, ``Justices Halt DOJ's Broad Application of Criminal
Provision of Sarbanes-Oxley Act'' Bloomberg BNA (February 25, 2015)
Sara Murray, ``Romney Taps Bush Hands to Shape Economic Policies,'' The
Wall Street Journal (February 24, 2012)
Kathryn Wolfe, ``Mitt Romney taps Bushies for transportation advice,''
Politico (Oct. 10, 2012)
Cheryl Bolen, ``Romney Proposals to Cut Back Regulations,'' BNA Daily
Report (August 31, 2012)
Mark Drajem and Catherine Dodge, ``Obama Wrote Fewer Rules Than Bush,
But Cost More,'' Bloomberg News (Oct. 26, 2011)
Catherine Dunn, ``Cutting Red Tape to Reduce Regulatory Costs of
Government Rules,'' Corporate Counsel/Law.com (August 24, 2011)
David Ingram, ``GOP Starts Race for Top Attorneys,'' The National Law
Journal, p. 1 (July 25, 2011)
Susan Crabtree, ``Airline Lawsuit Threatens Delays for FAA,'' The Hill,
January 24, 2011
Tony Mauro, ``Inadmissible,'' Legal Times, p. 16 (November 29, 2010)
Carrie Levine, ``For Chamber, Legal, Lobbying Fights Multiply,'' The
National Law Journal, p. 6 (August 9, 2010)
Sue Reisinger, ``Reunited We Stand,'' Corporate Counsel, p.17 (August
2010)
David Ingram, ``Homecoming,'' The National Law Journal, p. 13 (June 7,
2010)
Ralph Lindeman, ``Government Operations,'' Daily Report for
Executives--BNA (May 3, 2010)
Melanie Trottman and Josh Mitchell, ``New Transit-Funding Rules Make
Streetcars More Desirable,'' The Wall Street Journal (January 15, 2010)
Jim McTague, ``Congress Goes Head-Hunting,'' Barron's (July 20, 2009)
Robert Pear. ``Bush Directive Increases Sway on Regulation,'' New York
Times, p.1 (January 30, 2007)
Cindy Skryzycki, ``Bush Order Limits Agencies' `Guidance,' ''
Washington Post p. D1 (January 30, 2007)
Amir Efrati, ``U.S. Policy on Attorney Fees Sparks Debate at State
Level,'' Wall Street Journal p.A12 (May 17, 2007)
Cindy Skrzycki, ``Agencies' Rules Quietly Enable Tort Reform,''
Washington Post, p. D1 (September 27, 2005)
Daniel Machalaba, ``Senator Questions Firing of Amtrak President,''
Wall Street Journal (November 15, 2005)
Alexandra Marks, ``Brake Trouble Fuels Larger Debate Over Amtrak,''
Christian Science Monitor (April 22, 2005)
``Big Suits--AOL v Microsoft,'' in The American Lawyer, p. 42 (April
2002)
Courts
In addition to the D.C. Bar (1982) and the U.S. Supreme Court (1986),
Jeff is a member of the bars of six Federal appeals courts and three
district courts. He has appeared pro hac vice in numerous state and
Federal courts throughout the country.
______
Attachment B
------------------------------------------------------------------------
Year of
Name of Recipient Amount Contribution
------------------------------------------------------------------------
Rob Portman (Senate) $1,000 5/4/2009
------------------------------------------------------------------------
Rob Portman (Senate) $1,200 11/9/2009
------------------------------------------------------------------------
Kelly Ayotte (Senate) $500 3/22/2010
------------------------------------------------------------------------
Robert Dold (House) $500 6/1/2010
------------------------------------------------------------------------
National Republican Congressional $1,000 7/7/2010
Committee
------------------------------------------------------------------------
National Republican Senatorial Committee $1,000 5/20/2011
------------------------------------------------------------------------
Romney for President $2,455 6/7/2011
------------------------------------------------------------------------
Rob Portman (Senate) $1,000 6/30/2011
------------------------------------------------------------------------
Ted Cruz (Senate) $1,000 9/12/2011
------------------------------------------------------------------------
Republican Jewish Coalition $500 10/20/2011
------------------------------------------------------------------------
Boehner for Speaker $1,500 2/16/2012
------------------------------------------------------------------------
Rob Portman (Senate) $2,000 7/19/2012
------------------------------------------------------------------------
Nan Hayworth (House) $500 7/16/2012
------------------------------------------------------------------------
Romney-Ryan $2,500 9/8/2012
------------------------------------------------------------------------
Republican National Committee $750 10/31/2012
------------------------------------------------------------------------
Rob Portman (Senate) $1,000 8/2/2013
------------------------------------------------------------------------
Ryan-NRCC $1,000 8/30/2013
------------------------------------------------------------------------
NRSC/NRCC Victory Committee $500 11/21/2013
------------------------------------------------------------------------
Liz Chey (Senate) $500 12/3/2013
------------------------------------------------------------------------
Tom Cotton (Senate) $1,000 6/30/2014
------------------------------------------------------------------------
Rob Portman (Senate) $1,200 8/2/2014
------------------------------------------------------------------------
James Lankford $1,000 9/23/2014
------------------------------------------------------------------------
Barbara Comstock (House) $750 10/14/2014
------------------------------------------------------------------------
John Boozman (Senate) $500 11/11/2014
------------------------------------------------------------------------
Right to Rise PAC $1,000 2/5/2015
------------------------------------------------------------------------
Ed Gillespie (Senate) $500 3/26/2015
------------------------------------------------------------------------
Ron Johnson (Senate) $500 5/19/2015
------------------------------------------------------------------------
Boehner for Speaker $2,700 8/1/2015
------------------------------------------------------------------------
Rubio for President $500 1/12/2016
------------------------------------------------------------------------
Mike Gallagher (House) $1,000 2/6/2016
------------------------------------------------------------------------
Mike Gallagher (House) $500 3/31/2016
------------------------------------------------------------------------
Liz Cheney $1,000 3/23/2016
------------------------------------------------------------------------
Jason Chaffetz (House) $500 3/16/2016
------------------------------------------------------------------------
James Lankford (Senate) $500 5/14/2016
------------------------------------------------------------------------
Elise Stefanik (House) $500 9/15/2016
------------------------------------------------------------------------
In the summer of 2012, I served as counsel to the Platform
Committee for the RNC Convention.
Senator Wicker. Thank you, Mr. Rosen.
We are joined by the Ranking Member of the Full Committee,
Senator Nelson, of Florida, and he would like to make an
opening statement. So, Senator Nelson, you are recognized.
STATEMENT OF HON. BILL NELSON,
U.S. SENATOR FROM FLORIDA
Senator Nelson. Speaking of roads and bridges, Mr. Rosen,
we are literally at a crossroads on transportation because our
infrastructure is crumbling, it's declining. Some multiples of
tens of thousands of bridges in this country are deemed
structurally unsound. The railways. You get into a growth state
like mine, a thousand people a day net, it's already straining.
You can't toll your way out of the situation even if you try.
So basically, we've got to commit to do the infrastructure for
the next generation.
Last night, the Senate was invited to the White House, and
I took the occasion during the reception before the concert--
and it was a wonderful concert, the Army Chorus and the Marine
Quartet. It was enjoyed by all. There was a time for some
talking, and I took that occasion to talk to the Vice President
and said, ``I think the time might be right for us to consider
a bipartisan infrastructure bill.''
And you, of all people, ought to understand that we just
can't keep having our commuters spend twice the time that
otherwise they would take in order to get to work. So what
we've got to do, and the leadership at the top, you and
Secretary Chao, are going to have to reach out in a bipartisan
way to start bringing people together and start doing some of
the heavy lifting that has to be done. Now, we can all agree on
infrastructure, but the question is, How are you going to pay
for it? It's going to take folks like you that are going to
have to offer that leadership. And, it's going to take that
commitment.
Yet you look at the President's ``skinny budget,'' and it
doesn't tell us that. What it says is in order to build a wall
on the Mexican border, we're going to eviscerate the maritime
wall, the U.S. Coast Guard, 14 percent cut. That's also going
to be an issue that we'll have to take.
What about Amtrak? What about all the people up and down
from New Orleans to Jacksonville that want a return of the
Amtrak train? They've got it ready to go, but there's not going
to be any money for it.
So, Mr. Rosen, whether it's on infrastructure or a whole
host of other issues, I hope that we'll have your commitment
that you will reach out and work with Members of both parties,
not one, in order to accomplish what all of us know have to be
done.
Thank you, Mr. Chairman.
Senator Wicker. And thank you, Mr. Ranking Member.
Mr. Rosen, do you have any response to the issue that our
Ranking Member just raised?
Mr. Rosen. Well, with regard to the suggestion that it
would be important to have a bipartisan solution and to
communicate on both sides of the aisle, I completely agree with
that, and I think that I have a track record that would support
that that is a concern, and it's something I can do. I did when
I was at Transportation previously, worked for the Democratic
Member of the Cabinet when Secretary Mineta was the
Transportation Secretary.
I've participated in organizations that have people of
widely differing views. One reason I mentioned my role in the
ABA Section of Administrative Law is that's a group of people
that have wide-ranging views. They don't all agree with my
views, but I think I was successful at persuading people to try
to work together on coming up with ideas and suggestions and
programs and the like.
So I'm in complete agreement with Senator Nelson, that one
of the roles that I see for this position is to communicate
with the Congress and to work with the Congress, and that's on
both sides of the aisle.
Senator Wicker. Well, thank you very much. And I'm
horrified that the timekeeper started my time running when I
was asking if you would respond to Senator Nelson's question.
Mr. Rosen. It has been reset.
[Laughter.]
Senator Wicker. I want to start off by discussing the
Merchant Marine Academy. It's part of the Maritime
Administration, which, of course, will come under your
jurisdiction. You mentioned your parents not having the
opportunity that you had for a collegiate education. For
decades, the Merchant Marine Academy has been one of the finest
4-year undergraduate degrees that a young American could have.
Mr. Rosen. Right.
Senator Wicker. And I'm determined that, as a Member of the
Board of Governors at the Academy, that that continue. I was
encouraged to hear that Secretary Chao has reinstated the Sea
Year Program aboard commercial vessels for midshipmen at the
Academy; however, today the Sea Year is operating only at 64
percent of its original capacity while several shipping
companies are still awaiting MARAD approval to host midshipmen.
The first thing I want to ask is, do you have any ideas how
MARAD can work with the shipping companies to ensure this
vitally important training program comes back into full force?
Mr. Rosen. Well, thank you, Senator. That was an issue that
you were kind enough to bring to my attention, and so I asked
some questions about that yesterday and was told that the
process of beginning to have applicants who could help
reinstate that program is underway and that the first group had
been approved, which is why there are a number of members of
the class who can resume Sea Year, and that there is another
group of applicants who are being reviewed, and that there is a
process to ensure that they meet the certification requirements
so that the students who participate in the program are getting
out of the program what they're supposed to and in an
acceptable environment. And I think that's underway. I think if
I was confirmed, one of the things I would, of course, want to
do is continue to monitor that and look for ways we could
expedite it to get it back to the situation that I know you
would want, and I would look forward to staying in touch with
you about that.
Senator Wicker. Were you given any idea about the timeline?
Mr. Rosen. No, but I'll be happy to follow up on that.
Senator Wicker. OK. Well, it does need to be expedited
because this needs to be back at 100 percent.
In addition, the Merchant Marine Academy received a warning
in its accreditation review last spring. Now, I find that
completely unacceptable and surprising. The Academy has until
April 2018 to come into compliance with accreditation
standards. A loss of accreditation would have devastating
effects on the integrity of what has been a valuable and
prestigious institution. It cannot be allowed to happen.
What steps should the Department take to ensure that the
Academy stays on track to meet accreditation deadlines?
Mr. Rosen. Well, as you know, I'm not yet at the
Department, so I think that's an issue that if I'm confirmed, I
would need to get better educated on. I know the Secretary is
attuned to that issue. And I don't think there is any
difference of opinion about the importance of getting it done.
The steps to get there I need to get better educated about and
again would look forward to doing that if I'm confirmed.
Senator Wicker. Well, will you agree to make it a priority?
Mr. Rosen. Yes.
Senator Wicker. OK. Well, thank you very much.
Senator Booker, you are recognized.
Senator Booker. Mr. Chairman, with your permission, I would
like to defer my time toward the end and let Senator Klobuchar
go in my stead.
Senator Wicker. Without objection, Senator Klobuchar, you
are recognized.
STATEMENT OF HON. AMY KLOBUCHAR,
U.S. SENATOR FROM MINNESOTA
Senator Klobuchar. Thank you very much, Senator Booker.
And thank you very much, Mr. Chair.
Mr. Rosen, thank you for being here. I really want to ask
you what Rob Portman was like as a client, but I'm not going to
do that.
[Laughter.]
Senator Klobuchar. You clearly have some deep experience
here. We also, of course, are dealing with a really difficult
time with the proposed budget that you and I talked about in my
office. Coming from Minnesota, whenever I think about the
reason we need transportation funding, I think of the I-35W
bridge that crashed in the middle of the Mississippi River on
this beautiful summer day, killing over 12 people, 55 cars in
the water. It was something we will never forget. And after
that, we went in and we fixed all our bridges and spent a lot
of money on it actually. So it is about the issues that Senator
Booker was talking about with what we are leaving as a legacy.
It's the effect it has on the economy, but it's also a safety
issue.
You and I talked about this in the office, but I'm very
concerned about the cuts with EAS, that's Air Service, of
course, the capital improvement grants, which are really
important in our light rail in Minnesota, TIGER grants, and I
would like to see if you will advocate to reverse course. I
know you were not consulted on this budget proposal, but at
least make developing a comprehensive infrastructure proposal a
priority if you're confirmed.
Mr. Rosen. Well, thank you for those observations. And I
think what I can say is sometimes we have to separate ends from
means. I think on the ends, there is a lot of consensus that we
want to rebuild our infrastructure and that there are important
objectives we have to achieve, for example, in the connectivity
we want with rural America and the coasts and Alaska and other
places. And so with regard to the ends, I like to think there
is a lot of agreement. It's part of why transportation lends
itself to some opportunity for consensus.
The means and how we get there is often more challenging,
and I think the budget presents those challenges, but isn't
necessarily an objection to the goal. And so part of what I see
as unfolding, if I'm confirmed in the Senate, is a chance to
have further conversation and ultimately proposals in the
President's infrastructure plan to achieve these goals, whether
they are expansions of existing programs or whether they're all
new programs to substitute or other ways to look at that.
And I think we have to be flexible, but I think we're
looking at the same goals. I think there is opportunity to get
people together on that.
Senator Klobuchar. I was really heartened when the
President listed infrastructure as the first thing he wanted to
work on, on election night, and used the figure trillion
dollars. We've put out a proposal on that, and we got the FAST
Act done here, but it's just the issue that right now it's
looking at cuts. We don't have a proposal actually to add to
infrastructure, we have to take away, and I understand you
weren't involved in that, I wanted to make the point.
Broadband, I'm going to just submit a question on the
record on that. I'm one of the co-chairs of that caucus. I've
got the Dig Once policy that we're pushing, and obviously
that's a part of infrastructure as well. I know you see it as
part of infrastructure, but I want to ask you about Open Skies.
Both Democratic and Republican administrations have pursued an
expanded Open Skies at a global level, which provides U.S.
consumers and airports with more choice access to new
international destinations.
Last week I lead a letter with Senators Isakson, Durbin,
Inhofe, Baldwin, and Tillis raising concerns about the billions
of dollars in subsidies countries like UAE and Qatar provide
their state-owned airlines. These subsidies, we believe,
completely undermine the Open Skies agreements, hurt American
workers. What can we do to ensure American airline workers are
not harmed by unfair competition from abroad?
Mr. Rosen. Well, I can't comment on any individual
proceeding, partly because I'm not well-informed about the
facts, but also would want the Department to look at things in
a fair-minded and neutral way. But as a general principle, I
think we've all heard the President emphasize the importance of
trade deals generally that are good for Americans and that are
enforced so that Americans get the benefits that are promised
in the deals that are done. So I think in the big picture what
I would say is I think we should enforce the agreements we
have.
Senator Klobuchar. Well, that means that we should be doing
something about it then, so I appreciate that.
Last, air traffic control. During her confirmation hearing,
Secretary Chao said that any changes to the current air traffic
control system should be part of a greater national discussion
and involve a national consensus.
As we discussed, Senator Moran and I sent out a follow-up
letter to the Secretary outlining concerns that we've heard
from rural airports and leaders in general in business aviation
about this issue of air traffic control privatization.
Will you commit to achieving a consensus among users who
would be impacted before moving forward with any changes to the
air traffic control system?
Mr. Rosen. So I think, you know, we're obviously talking
about a very complex subject where the ultimate goal is to
modernize the technology that we use for air traffic control to
restore the kind of leadership we've historically had and want
to continue to have. There's a lot of discussion about how to
get there, and I think you raised the important point about,
what about general aviation, for example? And I think all of
that has to be taken into account in how we get there.
One thing that a couple of folks have mentioned to me,
actually after we last spoke, was that some of the proposals,
although they moved to user fee kind of systems, would
basically exempt general aviation by retaining for general
aviation the existing gas tax type arrangement. And so I think
there has to be some sensitivity to that issue if we're going
to be successful in getting to the ultimate goal. What the
exact pieces are to make the puzzle all come together, a lot of
work to be done on that, it's very clear.
But, again, I think in my conversations what I take away is
there is a large amount of agreement on the desire to get the
Next Gen technologies in place and the kind of air traffic
control system we all should want.
Senator Klobuchar. OK, well, thank you. And I'll ask
questions about the Safe Skies Act, distracted driving,
contract towers, recreational trails, things we talked about,
on the record, so I appreciate your time.
Thank you.
Mr. Rosen. Thank you.
Senator Wicker. Thank you, Senator Klobuchar.
Senator Fischer.
STATEMENT OF HON. DEB FISCHER,
U.S. SENATOR FROM NEBRASKA
Senator Fischer. Thank you, Mr. Chairman.
Hello, Mr. Rosen.
Mr. Rosen. Good morning, or good afternoon. Sorry.
Senator Fischer. Good afternoon. Recent news reports have
suggested that the administration will seek to address tax
reform and infrastructure at the same time. I welcome this
approach and have advocated that as part of any major
infrastructure initiative. At least some portion of those
revenues should be used to expand the successful formula
freight program that we established in the FAST Act, and this
program provides each state guaranteed funding for a wide array
of both urban and rural corridor highway freight projects.
I think the beauty of this freight program is that, for
example, Nebraska has the flexibility to invest in rail grade
crossings or truck parking facilities along rural roads and
highways, while, for example, California could choose to invest
in on-dock rail at our Nation's largest port complex. These are
all projects that would enhance the flow of freight in our
country and also advance our economy.
Do you believe that the freight program can represent an
equitable way to strengthen our infrastructure for both our
rural and our urban communities?
Mr. Rosen. Well, I think it's an important topic, and in
some ways, I have a simplistic view, that Congress enacted that
in the FAST Act, and so it's less important whether I believe
that or not, it would be helpful, but it's the law, and I think
the Department should implement the law.
Senator Fischer. Thank you. I know you've worked with my
office in the past on many issues, and especially regulatory
reform legislation for various agencies at the Department of
Transportation, and that includes the FMCSA. You have a strong
background, I believe, in regulatory matters both at DOT and in
the Office of Management and Budget.
As it relates to developing any future regulations, how do
you foresee the DOT and modal administrations proceeding?
Mr. Rosen. Well, obviously that's a broad topic. What I
would like----
Senator Fischer. I'll give you a lot of leeway to answer it
any way you want.
Mr. Rosen. Yes. I think that there's a real opportunity to
use a regulatory process that takes advantage of the
stakeholder participation, and I mean stakeholders of all
types, by providing, and I think this was something you wound
up being a strong supporter of in the FAST Act, of more
advanced notice of what's coming, and, therefore, more
opportunity to bring data to the table, more opportunity for
creative ideas to come, to say maybe the objective is right,
but the means is more costly than necessary.
And so I see a process that allows earlier opportunity to
know what's coming, stronger use of the regulatory agenda, both
for transparency, so our citizens know what's coming from
government, but also as a management tool, so that the
Department is implementing things in an orderly way and not
inadvertently unfocused, piling on one industry all at once and
then another industry all at once rather than taking the
opportunity to spread out where there are necessary costs to be
incurred for safety and other reasons, and so therefore have a
management approach out of the unified regulatory agenda or
equivalence.
And then, of course, I'm a big believer, it's of public
record, in the strong use of empirical data and science as the
basis for regulation and that the benefits justify the costs,
and I would like to see that done. But I would also like to see
prioritization of things that work best be built upon, and
things that haven't worked well or are unnecessary are
opportunities to lower the cost so that we achieve good
outcomes in an efficient way.
Senator Fischer. Thank you. You have experience at the DOT.
And are there any organizational reforms or changes that you
would consider at this point from past experience, not to pin
you down on anything, but just in a general view? I mean, we're
all looking at ways that we can streamline government, get
answers faster, better responses, better transparencies. Is
there anything out there that comes to mind that you would look
at?
Mr. Rosen. You know, I've just started thinking about that
question because one of my observations from the past is the
Department of Transportation, although I think it's an
excellent agency of government, is a little bit of people
functioning in silos, and there's always a need for more
coordination and collaboration across some of our modal
administrations.
Particularly, there are a number of agencies that are
devoted to surface transportation, and there are different
parts of the Department that have aviation responsibility,
sometimes not obvious, like the HazMat part of FMCSA has
aviation. And so there's a need to get this more coordinated.
Some of that's management, and I think if I'm confirmed, some
of it would fall to me as well as the Secretary to try to
enable the kind of coordination that's needed.
But I'm just starting to think about the question that you
raise, which is, are there organizational ways to enhance that?
And I would look forward to talking to you further about that.
Senator Fischer. Thank you, sir.
Thank you, Mr. Chairman.
Senator Wicker. Thank you, Senator Fischer.
Senator Hassan.
STATEMENT OF HON. MAGGIE HASSAN,
U.S. SENATOR FROM NEW HAMPSHIRE
Senator Hassan. Thank you, Mr. Chair, and Ranking Member.
And good afternoon, Mr. Rosen. It's very nice to have you
here.
As you may know, the TIGER grants that have traditionally
been issued through the Department of Transportation have had a
really major positive impact on the Granite State. In recent
years, TIGER funds have been used to support our Memorial
Bridge as well as our Sarah Mildred Long Bridge, both of which
play a really important role in keeping our state's economy
going around our port.
In January, now Secretary Chao testified before this
committee for her nomination hearing, and I asked her about
these grants, which have been so critical to my home state as
well as to many other states across the country. The Secretary
acknowledged the importance of the grants, and she even said
that the utility of the program is, and this is a quote, ``one
area of great agreement in Congress.''
So the first question to you is, do you agree with
Secretary Chao, that TIGER is a really important program?
Mr. Rosen. Well, there are multiple ways that we fund
infrastructure, especially projects. There are projects that
come out of the various programs at the Federal Highway
Administration. Now in the FAST Act, we have the Nationally
Significant Freight and Highway Projects program that are
labeled FASTLANE grants.
And so this goes back to something I was saying earlier.
The means and the ends, there can be sometimes a disconnect
because the ends, as in some of the projects you were
identifying, are things that are important, and they are part
of trying to help people with their daily lives, to get to
work, to get their kids where they need to get them, travel on
vacation, and whatever else it is.
And I think it's less consequential as to whether it's
TIGER grants or FASTLANE grants or coming out of other programs
than it is to think about, what's the best and most efficient
way we can get this done? And I think that's part of what the
infrastructure proposal that I understand is in the works--I'm
not yet at the Department, as you know----
Senator Hassan. Right.
Mr. Rosen.--but from what I've read and heard loosely, I
think we will focus on that.
And so I think, again, the end of getting support for
projects is one that looks to me at least to have widespread
support.
Senator Hassan. Well, I thank you for that. One of the
reasons I ask the question, though, is that earlier in the
month in the President's draft budget, TIGER grants were
completely eviscerated, and that's in the absence of anything
coming forward from the White House to help us see what an
alternative vision might be.
And the other thing is that these are programs that are
critical to our economy. I mean, when you're talking about two
bridges that cross a critical port in the Northeast, if you
don't have those bridges, if you don't have a drawbridge that
works, oil doesn't come into our port, right?
So a lot of these programs exist because they're tailored
to particular needs, and in the case of TIGER grants, often are
initiated from the states after the state has done the homework
about what particular need is there.
So I'm grateful that you acknowledge the need. I am very
concerned that when we see a budget that eviscerates something
that most people in Congress agree has been important for
critical projects that keep our economy going, that we don't
throw one thing out before we have a good idea of how we're
going to address the need. Does that seem reasonable to you?
Mr. Rosen. Well, I understand your point. I'm not sure if I
have a helpful answer, in that I think you have an observation
that's useful, which is that there are needs, and I think part
of the challenge going forward will be for us collectively to
talk about how to meet those.
Senator Hassan. Well, they're needs, but they're
investments, and I think what's really--you know, our economy
doesn't move if we don't have a strong transportation
infrastructure. We can't lead the world without it.
Let me move on to another area of proposed cuts, or at
least as far as we understand them from the draft budget that
we've seen that impact states like mine and many other states,
and you've probably heard about it from a couple of the other
Senators.
The President's proposed budget eliminated the Essential
Air Service program, and this program was designed to ensure
rural communities receive commercial air service even in areas
that would otherwise not be profitable for the airlines because
of their geographic location. The Lebanon Airport is one of
those EAS airports, and it serves ten to eleven thousand
Granite Staters each year. Elimination of this program would
have a devastating economic impact on rural communities that
these airports serve.
So what is your plan to keep rural communities connected to
transportation services if the President's budget proposal
eliminating EAS service becomes a reality?
Mr. Rosen. So this is one of those questions that I have to
point out, and I don't mean this defensively, that I'm not
currently yet in the administration or a participant in that,
but as a nominee for President Trump's administration, I'm of
course obligated to support the President's budget, and I do.
The administration campaigned on a reordering of priorities,
and at least the way I perceive it, the so-called ``skinny
budget'' that was released is sending the message about some
reordered priorities.
But having said that, I guess there are maybe three things
I want to share that I think are responsive to your question.
The first is that I wholeheartedly share, and I know that
Secretary Chao shares as well, the concern that many people
have about access to transportation in rural areas of our
country. Transportation is one of the key ways in which we are
connected as a nation, and if anything, I think too little
attention has been paid to this. If people can't fly to Nome,
Alaska, or Meridian, Mississippi, or New York State, it's just
that much harder to keep our country knit together. And I think
we need that more than ever. It's a national value.
The second observation I wanted to make is rural areas must
have access that the whole country should have to the economic
benefits that derive from both travel and the movements of
cargo, and I think that's good for the rural areas, and I think
that's good for the urban areas, as anyone who ever visits a
grocery store should know.
So the third thing I want to say, it is my hope that if I'm
confirmed, I would want to help the Department to more
effectively achieve these objectives, partly by implementing
the laws enacted by Congress and in part by looking for ways to
make programs work better, work safer, and focus on specifics
and how to meet this need for connectivity.
And how to do that? I think that this is where having
55,000 people in the Department is more valuable than one
fellow at a table here. And I need, if I'm confirmed, to get
people together to discuss some specifics because I think there
might be some regulatory changes that could lower the cost, for
example, and make rural aviation more viable.
I think there may be other ways to address these needs that
haven't been fully considered and fleshed out, and that the
best way to do that is, if I'm confirmed, to both draw on the
expertise of the Department and talk to the stakeholders.
Senator Hassan. Well, thank you very much. I thank the
Chair for your indulgence. And I'll just encourage you to be an
advocate for strong transportation within the administration.
Senator Wicker. Thank you. Senator Blumenthal.
STATEMENT OF HON. RICHARD BLUMENTHAL,
U.S. SENATOR FROM CONNECTICUT
Senator Blumenthal. Thanks, Mr. Chairman.
Good afternoon, Mr. Rosen.
Mr. Rosen. Good afternoon.
Senator Blumenthal. I've been asking for your FBI
background check. I understand it hasn't been completed?
Mr. Rosen. That's not my understanding, but I don't--I
don't know--I didn't know you were asking for it.
Senator Blumenthal. Your understanding is that it has been
completed.
Mr. Rosen. That is my understanding, yes, sir.
Senator Blumenthal. OK. If it hasn't been, or at least
hasn't been submitted to the Committee, would you agree that
the vote should be postponed until we have it?
Mr. Rosen. My understanding is it has been made available
to the Committee.
Senator Blumenthal. OK. Thank you. Let me ask you, you have
a long and distinguished career in private practice, you've had
a number of very eminent clients, including General Motors and
other automobile manufacturers, the United States Chamber of
Commerce, and the association that represents automobile
manufacturers, if I'm correct, along with various airlines. In
private practice, you represented the United States Chamber of
Commerce, perhaps among others, in challenging the tailpipe
pollution rules that were written by the EPA. Am I correct?
Mr. Rosen. I think you're factually mistaken in the
specifics of what you just said, but----
Senator Blumenthal. Why don't you correct me?
Mr. Rosen. I don't think I represented them with regard to
the tailpipe rule, but I did represent the U.S. Chamber of
Commerce, which was one of I think 80 parties----
Senator Blumenthal. In the fuel economy rules?
Mr. Rosen. No.
Senator Blumenthal. The finding that greenhouse gases from
motor vehicles?
Mr. Rosen. The rules regarding the greenhouse gases and
with respect to the PSD permitting that would have been
triggered by the greenhouse gas transportation. I think other
counsel actually represented them with regard to the tailpipe
rule, but----
Senator Blumenthal. I stand corrected. My question really
is, would you recuse yourself with respect to those parties or
clients whom you represented in accordance with the rules, but
also with respect to any environmental issues that were raised
in your representation of them?
Mr. Rosen. Well, as I think you're probably aware, Senator,
in the process of going through the review to be a nominee, the
Office of Government Ethics reviews, as this Committee of
course can, the financial report that I provided, which
includes both financial holdings, but also clients that I had
in the reporting period----
Senator Blumenthal. Well, I don't--I don't--I apologize for
interrupting you, but my time is limited. I'm not asking what
the recusal rules are or what the review process is, I'm asking
what you would do voluntarily? Would you recuse yourself from
those issues relating to environmental standards concerning air
pollution, emissions, because you've been active in the
courtroom and also in a number of writings in stating your
position?
Mr. Rosen. So I think there are two things I'll say about
that. One is with regard to the ethics agreement that I entered
into after the review by the Office of Government Ethics. I
will adhere to what's agreed to in that. And with regard to
your other question, I hope I'm not misunderstanding you
because I think you're talking about things that are at EPA
rather than things that are at DOT.
Senator Blumenthal. Well, there are issues that involve
both agencies and advice that you may be called upon to give to
the President or to other agencies.
Mr. Rosen. And if it's covered by my ethics agreement, then
I will adhere to what's required in the ethics agreement.
Senator Blumenthal. Well, my hope is that you will
voluntarily agree to go beyond the ethics agreement, do more
than just the letter of the agreement, that you will commit to
doing it. I'm going to be submitting some questions in
writing----
Mr. Rosen. Sure.
Senator Blumenthal.--because you've written extensively on
the need for less regulation, for, in effect, lower standards,
and that may have been part of your job, so to speak, when you
were in private practice, but it should not be part of your job
when you're in the position of Deputy Secretary of the
Department of Transportation if you are confirmed.
Mr. Rosen. So, Senator, with all respect, I hope we aren't
having a misunderstanding, because I don't know that I have
written about the fuel economy standards. And so I'm not sure
if we're miscommunicating or if I'm missing something there.
But I will tell you, if it would give you some insight, for a
number of years I taught professional responsibility and legal
ethics as an adjunct professor at Georgetown University Law
Center, and I would like to think that I will bring to this
position and any position the highest levels of integrity and
honesty, and I will approach the concern that you're raising
with as fair-minded an approach as I can do.
Senator Blumenthal. Thank you very much. Thank you. I may
be wrong about your writings, so I'm going to go back and check
on my own. So thank you for clarifying.
Senator Wicker. And thank you very much, Senator
Blumenthal.
For the record, I'm told by staff that the FBI report has
been completed as a matter of course and is available according
to the standard procedure to be brought by any Senator's office
and shown to the Member. So I hope that answers that question.
Senator Blumenthal. It does, Mr. Chairman. Could I also
enter in the record a letter written by various groups on this
topic that we've been discussing? It's a letter dated March 29
from groups including the National Resource Defense Council,
Friends of the Earth, the Center for Energy Efficiency and
Renewable Technology, et cetera.
Senator Wicker. Without objection.
[The information referred to follows:]
March 29, 2017
Dear Senator,
We write on behalf of millions of members and supporters to urge
you to oppose the nomination of Jeffrey A. Rosen for Deputy Secretary
of the Department of Transportation. Rosen has a long record of
opposing critical protections for Americans' health, safety, and
finances, and particularly safeguards within the jurisdiction of the
Department of Transportation.
Rosen and his firm have represented companies and industry groups
that have strong anti-regulatory agendas before the Department of
Transportation, including the Alliance of Automobile Manufacturers,\1\
the U.S. Chamber of Commerce,\2\ and Airlines for America, a group that
has worked to privatize air traffic control.\3\ His record shows that
his views are closely aligned with theirs, and against the interests of
American families.
---------------------------------------------------------------------------
\1\ Myron Levin & Alan C. Miller, Industries Get Quiet Protection
from Lawsuits, L.A. Times, Feb. 19, 2006, http://articles.latimes.com/
2006/feb/19/nation/na-preempt19.
\2\ See Coalition for Responsible Regulation, Inc. v. E.P.A., 684
F.3d 102, 107 (2012).
\3\ Alex Daugherty, Trump's Pick for Deputy Transportation
Secretary Did Legal Work for Airline Lobbyists, McClatchy, Mar. 14,
2017, http://www.mcclatchydc.com/news/politics-government/white-house/
article138459268.html.
---------------------------------------------------------------------------
In 2005 testimony, Rosen explained that he had ``overall
supervision of the entire regulatory process'' as general counsel to
the Department of Transportation,\4\ and he boasted that he helped
terminate or withdraw 180 potential rulemakings in that role.\5\ When
the agency produced rules during his tenure, they often benefited
industry rather than consumers. For example, one rule by the National
Highway Traffic Safety Administration (NHTSA) immunized automobile
manufacturers from liability for deaths and injuries caused by weak
vehicle roofs while doing little to improve safety.\6\
---------------------------------------------------------------------------
\4\ Hearing on the Impact of Regulation on U.S. Manufacturing:
Spotlight on Department of Labor and Department of Transportation
Before the Subcomm. on Regulatory Affairs of the H. Comm. On Govt.
Reform, 109th Cong. 46-47 (2005) (testimony of Jeffrey A. Rosen)
https://www.gpo.gov/fdsys/pkg/CHRG-109hhrg23627/pdf/CHRG-
109hhrg23627.pdf.
\5\ Id.
\6\ Cindy Skrzycki, Agencies' Rules Quietly Enable Tort Reform,
Wash. Post, Sept. 27, 2005, http://www.washingtonpost.com/wp-dyn/
content/article/2005/09/26/AR2005092602022.html.
---------------------------------------------------------------------------
In private practice, Rosen represented the U.S. Chamber of Commerce
in challenging tailpipe pollution rules written by the Environmental
Protection Agency (EPA), which are closely related to NTHSA's fuel
economy rules, and challenging EPA's finding that greenhouse gases from
motor vehicles endanger human health and welfare by contributing to
climate change.\7\ In essence, Rosen and other industry lawyers
attempted to put the EPA's analysis of climate science on trial. They
were roundly rejected.\8\
---------------------------------------------------------------------------
\7\ Coalition for Responsible Regulation, Inc. v. E.P.A., 684 F.3d
102, 107 (2012).
\8\ Id. at 120-23.
---------------------------------------------------------------------------
Rosen also engaged in science-defying foot-dragging over greenhouse
gas pollution while serving as general counsel to the Office of
Management and Budget. In one episode, he asked three times for
memoranda explaining why carbon dioxide molecules emitted from motor
vehicles are different from those emitted from power plants. There is
no difference, but Rosen sought to find one in order to limit Federal
agencies' responsibility to write rules curbing carbon pollution in the
wake of the Supreme Court's ruling that carbon dioxide is a pollutant
under the Clean Air Act.\9\
---------------------------------------------------------------------------
\9\ Juliet Eilperin & R. Jeffrey Smith, EPA Won't Act on Emissions
This Year, WASH. POST, July 11, 2008, http://www.washingtonpost.com/wp-
dyn/content/article/2008/07/10/AR2008
071003087_pf.html; Felicity Barringer, A New (and Unlikely) Tell-All,
N.Y. Times, July 22, 2008, http://www.nytimes.com/2008/07/22/us/
22enviro.html; An Update on the Science of Global Warming and Its
Implications, Hearing Before the S. Comm. on Envtl. & Pub. Works, 110th
Cong. (2008) (testimony of former EPA Associate Deputy Administrator
Jason Burnett), https://www.gpo.gov/fdsys/pkg/CHRG-110shrg88902/html/
CHRG-110shrg88902.htm.
---------------------------------------------------------------------------
In addition to siding with industry on countless specific matters
within the Department of Transportation's jurisdiction, Rosen projects
a general hostility to public safeguards. He has repeated outlandish,
debunked industry talking points on the purported cost of safeguards,
including the self-refuting claim that Federal rules cost Americans
$1.75 trillion each year, or $15,000 per family.\10\ In truth, Federal
regulations are extraordinarily beneficial, providing net benefits of
billions of dollars annually.\11\
---------------------------------------------------------------------------
\10\ Hearing on H.R. 2122, the Regulatory Accountability Act of
2013 Before the Subcomm. On Regulatory Reform, Commercial & Antitrust
Law of the H. Comm. on the Judiciary, 113th Cong. (2013) (testimony of
Jeffery A. Rosen), https://judiciary.house.gov/wp-content/uploads/2016/
02/Rosen-Testimony.pdf.
\11\ See, e.g., Office of Information and Regulatory Affairs, 2015
Report to Congress on the Benefits and Costs of Federal Regulations and
Unfunded Mandates on State, Local, and Tribal Entities (Mar. 10, 2016),
https://obamawhitehouse.archives.gov/sites/default/files/omb/inforeg/
2015_cb/2015-cost-benefit-report.pdf.
---------------------------------------------------------------------------
At the Office of Management and Budget, Rosen advocated a George W.
Bush executive order that placed a political appointee in each agency
to serve as a gatekeeper for new rules and guidance documents.\12\ And
he has publicly supported two pieces of legislation, the Regulations
from the Executive in Need of Scrutiny (REINS) Act and the Regulatory
Accountability Act,\13\ which would virtually shut down the regulatory
process.
---------------------------------------------------------------------------
\12\ Robert Pear, Bush Directive Increases Sway on Regulation, N.Y.
Times, Jan. 30, 2007, http://www.nytimes.com/2007/01/30/washington/
30rules.html.
\13\ Jeff Rosen & Susan Dudley, Let Congress Vote on Major Rules,
Baltimore Sun, Aug. 9, 2010, http://articles.baltimoresun.com/2010-08-
09/news/bs-ed-congress-rules-20100809_1_regu
lations-rules-federal-agencies; Hearing on H.R. 2122, the Regulatory
Accountability Act of 2013 Before the Subcomm. On Regulatory Reform,
Commercial & Antitrust Law of the H. Comm. on the Judiciary, 113th
Cong. (2013) (testimony of Jeffery A. Rosen), https://
judiciary.house.gov/wp-content/uploads/2016/02/Rosen-Testimony.pdf.
---------------------------------------------------------------------------
Placing Jeffrey A. Rosen in charge of day-to-day operations at the
Department of Transportation would be disastrous for American families,
who under his regime would face higher risks on the road and in the
air, more limits on their access to the courts, and irrevocable harm to
their natural environment.
We urge you to oppose his nomination vigorously.
Sincerely,
Alaska Wilderness League
Americans for Transit
Center for Auto Safety
Center for Progressive Reform
Citizens for Reliable and Safe Highways (CRASH)
Coalition for Clean Air
Consumer Action
Consumer Watchdog
Consumers for Auto Reliability and Safety
Earth Action, Inc.
Ecology Center
Essential Information
Food & Water Watch
Friends of the Earth
Iowa Environmental Council
League of Conservation Voters
Mile High Connects
National Center for Lesbian Rights
Natural Resources Defense Council
Nuclear Information and Resource Service
PolicyLink
Public Advocates Inc.
Public Citizen
Renew Missouri
Safe Climate Campaign
Sierra Club
Southern Oregon Climate Action Now
The Center for Energy Efficiency and Renewable Technologies
The Clean Power Campaign
Trauma Foundation
Union of Concerned Scientists
Voces Verdes
Cosa Bullock
Lori Cameron
Lisa Daniel
Susan Nedell
Senator Blumenthal. Thank you, Mr. Chairman.
Senator Wicker. Thank you, Senator Blumenthal.
Senator Sullivan.
STATEMENT OF HON. DAN SULLIVAN,
U.S. SENATOR FROM ALASKA
Senator Sullivan. Thank you, Mr. Chairman.
And, Mr. Rosen, good to see you again. Thanks for your time
yesterday. I think you have a very strong background for this
position.
So the first commitment I want to get from you is, you
know, we all represent different states, that's one of the
great things about our amazing great country, is that all the
states are very different. My state of Alaska has significant
challenges with infrastructure. We're an infrastructure-poor
state in many ways. Dozens and dozens of communities in my
state have no roads whatsoever. Most states can't even imagine
that. We're a big state, very big actually, 551 times the size
of Rhode Island, but Rhode Island has about 6,000 miles of
roads, and we have 10,000, so not very comparable--right?--
given the size.
So I would like to get a commitment to you to come to
Alaska, if confirmed, to actually see firsthand some of the
significant challenges when you represent a state with American
citizens in it who occupy a land mass that's one-third the size
of the continental United States. Can I get that commitment
from you?
Mr. Rosen. So one of the things that my wife and I enjoy
doing for vacations is to go to national parks and see
different parts of the country. And you're now asking me to
make the painful commitment to visit a place we've always
wanted to go.
Senator Sullivan. Trust me, this won't be a vacation, but--
--
Mr. Rosen. I know, I know, I----
Senator Sullivan.--if you can make that commitment, that
would be great.
Mr. Rosen. Yes, I was making light of it, Senator, but the
reality is I think the points you make are significant, and
it's not--I was being light. But it's not for vacation, it
would be to understand the transportation challenges of your
state, which I did understand both from our conversation and
from other background that I have, that Alaska presents some
very unique transportation challenges, and I would welcome the
chance to get a firsthand opportunity to see that in person.
Senator Sullivan. Great. Thank you.
Senator Wicker. I'm sure we can all agree, though, that it
would be an altogether pleasant experience.
Senator Sullivan. Of course.
[Laughter.]
Senator Sullivan. I've got to get Senator Booker up there
again on a more appropriate mission this time.
Let me ask, related to that, Senator Hassan, I think you've
heard about it from a number of Senators, have talked about the
Essential Air Service. And I think the title of that,
particularly for my state, is very accurate, meaning it is
essential, particularly, as I mentioned, in places where dozens
of communities have no roads, literally no roads to them.
So you were asked a question by Senator Hassan recently.
I'm not going to ask a follow-up question. I'm going to give
you what I think would be a very definitive answer to that
question for the record. So it is an essential service for many
states. There is strong bipartisan support for that program, as
I'm sure you saw in this hearing. And if confirmed, we look
forward to working with you and the Department of
Transportation to do what Secretary Chao committed to in her
confirmation hearing, which was, quote, continuing the EAS
program and finding ways in which to improve it. So that's not
a question, that's a statement, and I think it might help
answer the question you got there previously.
Let me turn to another issue. We talked about this
yesterday, and I just want to get on the record a commitment
from you. As I mentioned, Alaska doesn't have adequate aviation
monitoring and weather reporting capabilities due to a lack of
infrastructure at a number of our airports. The FAA has not
funded a new automated weather observing system location
program in Alaska since the 1990s. This lack of data had
previously justified the local FAA to allow carriers to use a
combination of inputs to satisfy the requirements, which
allowed communities to be served.
As we talked about yesterday, the FAA is now changing that
standard, enforcing a national standard for weather reporting
and weather forecasting, which is having a dramatic impact on
aviation operations in my state. Mr. Chairman, I would like to
submit for the record some letters from the Alaskan Carriers
Association, Everts Air Cargo, that lay this problem out in
detail.
Senator Wicker. Without objection.
[The information referred to follows:]
Alaska Air Carriers Association
Anchorage, AK, March 23, 2017
Michael Huerta, FAA Administrator,
FAA National Headquarters,
Washington DC.
RE: Alaska's Need for Aviation Weather
Sent via e-mail: [email protected]; Leathard, Scott (Sullivan)
;
Milotte, Paul ;
[email protected]; Fleagle, Mike (Sullivan)
;
Padgett, Chad
Dear Administrator Huerta:
The Alaska Air Carriers Association (AACA) is a membership
organization whose mission is to support and advocate for the
commercial aviation community. Our members include Part 121, 135, 125,
and commercial Part 91 Alaskan air carrier operators and associate
members that support them.
The most current economic data representing the Alaskan aviation
industry estimates there is about $3.5B worth of economic activity,
generated through 47,000 jobs and comprising 8 percent of Alaska's
gross state product. 82 percent of the communities in Alaska are
dependent on commercial air carrier transportation for routine
transportation.
AACA is writing to you today regarding a serious situation that
impacts the people of the State of Alaska, their safety and associated
commerce. It regards certified weather availability and public law that
allows the Administrator to take into account the unique needs of
Alaska.
Aviation weather information is limited in Alaska! It's been
estimated (by others) that over 200 new Automated Weather Observation
Stations (AWOS) are needed in Alaska to meet the density of aviation
weather currently available in the contiguous 48 states where alternate
means of access via roads is readily available. In Alaska, 82 percent
of the communities are not accessible by roads.
In locations where weather is available and despite consistent
attention from FAA Tech Ops and NWS staff, AWOS, and ASOS outages in
Alaska are frequent (See attached Examples of weather issues). Outages
are often attributed to ``telco'' or old and unreliable
telecommunication line infrastructure, normal wear and tear or issues
related to the recent ``tech refresh''.
FAA regulations currently prohibit Part 121 air carriers from
operations without an approved weather report at the destination and
alternate airport. In general, to release a flight under part 121, the
operator must have a forecast, terminal area forecast (TAF), and a
METAR certified weather report. At issue is the recent enforcement
application of required certified weather when visual conditions (VFR)
prevail.
In Alaska more than any other area in the national air space (NAS),
there are vast areas where the only approved source of weather is a
EWINS TAF purchased from a private vendor based in Florida. To use
EWINS TAF data, a modification to the carrier's Operation Specification
must be issued by the FAA. However, this only speaks to the forecast
requirement and not the weather report at the destination or alternate
airport.
Additionally, there are destination airports where a TAF is not
available, but there is an approved local METAR certified weather
report. Thus, the Part 121 air carrier cannot release the flight to the
airport unless they are authorized to use and willing to purchase the
EWINS weather product.
Going a step beyond, there are destination airports where an
approved forecast is available or EWINS forecast is available, but
lacking a local approved weather report or when a component of the
report is missing or NOTAMd as unreliable, the part 121 air carrier
cannot land, even when VFR (visual flight rules) conditions exist.
The net result is that a 121 air carrier, complying with the
regulations (see attached Guidelines), recently became excluded from
landing at many airports in rural Alaska. Part 121 air carriers are
mandated to operate at the highest possible level of safety and year
over year they prove to be achieving that mark.
Prior to FAA's latest enforcement philosophy change affecting Part
121 air carriers on the need for VFR certified weather, Alaskan air
carriers used alternate sources of weather to establish VFR conditions,
planned and filed for an alternate landing location and carried
additional fuel for the alternate destination. AACA requests you
consider exercising your authority to take into account unique
conditions in Alaska and exempt Alaskan Part 121 air carriers from the
requirement for certified weather at VFR destinations until such time
certified and back up weather is available to support the requirement.
AACA also asks FAA to fully support and fund additional certified
and backup weather systems in Alaska. AACA has participated in the
Weather Work Group where aviation weather needs are being prioritized.
AACA would welcome the opportunity to manage grant funds made available
through the FAA to expedite site selection and installation of new
certified and back up weather systems in Alaska.
Since the 1990s when Alaska served as the test site for FAA's
Capstone Project, FAA has not funded any new AWOS locations in Alaska
despite approving a business case for 13 new AWOS in 2010. NWS has
installed three Modular Automated Weather Systems (MAWS) in Alaska and
proposes to install 2-3 new weather stations this summer but MAWS is
not certified weather. These additional weather units offer additional
weather data that would help to improve NWS forecasting in Alaska but
MAWS cannot support Part 121 or 135 IFR or Part 121 VFR flights.
Ultimately, additional AWOS and additional back up certified
weather facilities are needed to ensure public forecasts are reliable
and air carrier transportation in rural Alaska under Visual and
Instrument Flight Rules (VFR and IFR) is available.
AACA appreciates FAA's continued support on this issue. However,
without adding new certified and back up weather facilities to the
Alaskan aviation system, exempting Part 121 operators from VFR
certified weather requirements is necessary.
Alaskan air carriers would welcome any new weather available to
support all aviators operating VFR or IFR in Alaska. To facilitate
construction of new weather facilities in Alaska, AACA urges FAA to
consider offering AACA an annual grant for certified and backup weather
site selection and construction. AACA expects an annual grant would
expedite new weather development in Alaska. AACA would be unable to
offer payment for ongoing maintenance and testing requirements of new
weather systems unless the costs were made grant eligible.
Thank you again for your attention to this matter.
Best regards,
Matt Atkinson, Board Chair
Alaska Air Carriers Association
Jane Dale, Director
Alaska Air Carriers Association
Cc: Congressman Don Young
Senator Dan Sullivan
Senator Lisa Murkowski
Alaskan FAA Administrator Kerry Long
Alaska Legislature
______
Guidance
The FAA does not allow the use of the EWINS at any airport in the
United States for the purpose of the weather report. This becomes most
significant under the guidance of:
Order 8900.1, Volume 3, Chapter 24, Section 4
3-2116 GENERAL. Title 14 of the Code of Federal Regulations (14
CFR) parts 91, 121, and 135 require certificate holders to use weather
reports and forecasts from specified sources. Pilots and other persons
responsible for operational control must have enough weather
information to determine whether a flight can be accomplished in
compliance with 14 CFR. Weather information systems must provide all
weather information required by 14 CFR.
3-2117 REGULATORY REQUIREMENTS REGARDING SOURCES OF WEATHER REPORTS.
A. Weather Reports. For all operations conducted under parts 121 and
135, weather reports either must be prepared by the National
Weather Service (NWS) or by sources approved by the NWS or
Federal Aviation Administration (FAA). The term ``weather
report'' is as used in 14 CFR and as described in Advisory
Circular (AC) 00-45, Aviation Weather Services, section 3.1,
Aviation Routine Weather Reports (METAR) and Selected Special
Weather Reports (SPECI) (current edition). Forecasters use
surface aviation weather observations as the basis for
predicting future weather conditions. Any forecast used to
control flight movement must be prepared from (based on)
weather reports prepared by the NWS or other approved sources.
Previously, the guidance read as follows. There has been a change
eliminating language which may have been beneficial to Alaska's
part 121 air carriers.
C. Part 121. Part 121 requires operators conducting operations within
the 48 contiguous States to use weather reports prepared by the
U.S. NWS or sources approved by the NWS. Although part 121 does
not specify that weather reports prepared or approved by the
NWS must be used in Alaska, Hawaii, and U.S. territories, it is
FAA policy that weather reports prepared or approved by the NWS
must be used by all part 121 operators in areas where NWS
services are available. When operating outside the 48
contiguous States where NWS services are not available, part
121 domestic and flag operations must use weather reports
prepared by sources approved by the FAA. Additionally, under
part 121, Sec. 121.101(c), certificate holders are permitted to
use forecasts prepared from weather reports made by any source
approved under an Adverse Weather Phenomena Reporting and
Forecasting Subsystem established in compliance with part 121,
Sec. 121.101(d). Supplemental operations outside the United
States require the use of weather reports produced by sources
found satisfactory by the FAA in accordance with Sec. 121.119.
Any part 121 visual flight rules (VFR) operation must be based
on weather reports prepared by the NWS, sources approved by the
NWS, or sources approved by the FAA.
Order 8900.1 Volume 3, Chapter 26, Section 4
3-2120
C. EWINS for Certificate Holders Conducting Part 121 Supplemental
Operations. POIs of certificate holders who conduct part 121
supplemental operations may grant approval to use an EWINS to satisfy
specific requirements as follows:
1) Operations Inside the United States--Weather Forecasts. In
accordance with Sec. Sec. 121.119(a) and 121.119(b), a POI may approve
a certificate holder conducting operations inside the United States to
use a forecast prepared by an EWINS if that forecast is prepared from
weather reports issued by the NWS or a source approved by the Weather
Bureau. (The Weather Bureau is the NWS. See Volume 3, Chapter 26,
Section 1, paragraph 3-2048.)
2) Operations Outside the United States and at U.S. Military
Airports Where No NWS Reports are Available.
a) Weather Reports. In accordance with Sec. 121.119(a), A POI may
approve a certificate holder conducting operations outside the United
States or at U.S. Military airports to use a weather report prepared by
an EWINS under the following circumstances:
Where no NWS weather report is available;
Where no U.S. and NATO Military observing sources are
available;
When no weather report issued by an ICAO Member State-
authorized weather source is available;
When no weather report issued by an ICAO Member State,
authorized meteorological station, or automated observation is
available; and
When no weather report issued by a member of the WMO is
available.
b) Weather Forecasts. In accordance with Sec. 121.119(b), a POI may
approve a certificate holder conducting operations outside the United
States and at U.S. Military airports to use a weather forecast prepared
by an EWINS if that forecast is prepared from weather reports issued by
a source approved by the Administrator. See Volume 3, Chapter 26,
Section 2, for approved sources of weather reports.
Note: that there is NO provision for weather reports that are not
available. Weather reports are unavailable either when the airport is
not staffed with qualified personnel to make weather observations,
equipped with robots for this purpose, or when the equipment fails (not
uncommon).
* as defined in 14 CFR part 1, the United States includes Alaska,
Hawaii and Territories.
Examples of weather issues:
Golovin. An Alaskan air carrier was recently contracted to fly
groceries and other supplies to a small village in northwest Alaska,
Golovin. Goods and services are typically transported to Golovin by
air, especially during winter months when barge service is unavailable.
On March 12, the Airport automated observation weather system (AWOS)
wasn't reporting altimeter and even though the weather was clear with
10 miles visibility, the Part 121 air carrier was unable to dispatch
the VFR flight.
Emmonak. AWOS facilities at both Emmonak and Unalakleet were part
of the recent FAA technical refresh project and are often inoperable.
The Emmonak AWOS was abruptly NOTAMd out of service on Monday, 3/12/
2017 with a projected repair on 3/17/2017. On Monday, weather was clear
with 10 miles visibility and the Part 121 operator was unable to depart
for this destination.
Parts needed for repairs were ordered by Tech Ops staff however,
the parts warehouse is located in Oklahoma City which serves parts
needs nationwide. Delays related to parts availability is common. When
AACA members inquired about the status of the Emmonak AWOS or the
availability of parts, FAA Tech Ops staff offered that `knowledge
related to the repair status is a security issue and that the only
source of status information is thru the FSS NOTAM system'.
Drift River. The Drift River Terminal Facility, also known as the
Drift River Oil Terminal, is a tank farm which holds crude oil before
it is loaded onto oil tankers and transported to refineries. It is
located in Alaska along Cook Inlet, at the terminus of the Drift River.
Recently, a Part 121 Alaskan air carrier was asked to transport
materials from the facility to Anchorage. While on a clear day you can
see Drift River from Kenai and perhaps from Anchorage, the Part 121 air
carrier remains unable to offer transportation services because
certified weather is not available at the Driver River Terminal
Facility.
______
Everts Air Cargo
March 10, 2017
Dear Representative Bishop,
The Federal Aviation Administration has recently reiterated the
``national requirement'' for weather forecasting and reporting during
operations by 14 CFR part 121 air carriers. As I am certain you know,
there are not many part 121 air carriers headquartered in the State of
Alaska. In fact, only two of these operate large cargo airplanes and
provide unique services to the outlying communities and villages in the
state. Several weeks ago, representatives of several carriers met in
Anchorage with the FAA. The carriers left the meeting with the belief
that we had participated in a productive discourse with FAA personnel
including John Duncan, FAA's Director of Flight Standards Services.
I am not alone in my belief that Mr. Duncan asserted that there
would be a non-enforcement stance from the Administrator until a
solution could be found. The issue is complex, or at least as complex
as they wish it to be. At the root is the infrastructure in Alaska.
There are literally dozens of airports without National Weather Service
approved data collection devices from which approved (appropriate in
the parlance of certain rules) can be derived. In other cases, the
equipment exists but due to equipment failures, equipment age and
'copper wire' communications failures, reports meeting the standard are
not available.
As of two weeks ago, I believe that John Duncan has back pedaled on
his commitment of ``non enforcement'' as he did not specifically
exclude reported weather and now, claims it applied only to forecasts.
We (the air carriers) who know and are impacted by this issue
understand that this modified position is rather meaningless as we can
replace forecasts with a EWINS product (we pay a fee to a vendor to
repackage NWS weather and derive a forecast). The greater problem is
the large number of Alaskan airports with no weather reporting (or
failed weather reporting systems). On this issue, he is now asserting
that he gave no such non enforcement assurances. Recently, it was made
quite clear that if we operate where there is no report, we will be
considered in willful violation. Clearly Mr. Duncan is disputing not
only my recollection of his statements during the meeting, but Mr.
Fleagle's (Senator Sullivan's office) and Ms. Dale's (Alaska Air
Carrier's Association) as well.
We (Robert Everts, EAC CEO; Sammy Wiglesworth, EAC Director of
Safety and I) met with the FAA in Fairbanks this past week to seek
clarification and work toward finding an amicable solution. They
remained, despite focused discussion on their rule and guidance, firm
in their position that the requirement for the report had no leeway. We
discussed the language of the rule for operations in Visual
Metrological Conditions (VMC) under Visual Flight Rules (VFR) with
reference to 14 CFR 121.611.
Sec. 121.611 Dispatch or flight release under VFR.
No person may dispatch or release an aircraft for VFR operation
unless the ceiling and visibility en route, as indicated by
available weather reports or forecasts, or any combination
thereof, are and will remain at or above applicable VFR
minimums until the aircraft arrives at the airport or airports
specified in the dispatch or flight release.
I have used bold type for emphasis on the word ``or'' in the
regulation.
The FAA also have elected to eschew the intent of the related
language in the Order 8900.1 Guidance. This 8,000 page document is used
selectively by the FAA. By that I mean, they will direct us to use this
guidance for clarification and meaning on one day, but when we
reference it for discussion, we are told this is their guidance.
VOLUME 3 General Technical Administration
CHAPTER 26 AVIATION WEATHER INFORMATION SYSTEMS for air
carriers
Section 4 Sources of Weather Information
Paragraph 2117 C.
C. Part 121. Part 121 requires operators conducting operations
within the 48 contiguous States to use weather reports prepared
by the US. NWS or sources approved by the NWS. Although part
121 does not specify that weather reports prepared or approved
by the NWS must be used in Alaska, Hawaii, and US. territories,
it is FAA policy that weather reports prepared or approved by
the NWS must be used by all part 121 operators in areas where
NWS services are available. When operating outside the 48
contiguous States where NWS services are not available, part
121 domestic and .flag operations must use weather reports
prepared by sources approved by the FAA. Additionally, under
part 121, Sec. 121.101(c), certificate holders are permitted to
use forecasts prepared from weather reports made by any source
approved under an Adverse Weather Phenomena Reporting and
Forecasting Subsystem established in compliance with part 121,
Sec. 121.101(d). Supplemental operations outside the United
States require the use of weather reports produced by sources
found satisfactory by the FAA in accordance withSec. 121.119.
Any part 121 visual flight rules (VFR) operation must be based
on weather reports prepared by the NWS, sources approved by the
NWS, or sources approved by the FAA.
The applicable statement for operations in Alaska is highlighted.
We have recently sought an exemption from certain requirements for
reported weather, but thus far have no response from FAA Headquarters
in Washington, D.C. on this matter. Typically, this is a lengthy
process. More interestingly, the FAA has indicated familiarity with
this request, and cited this application as a basis to infer that we
know what the rule requires, therefore any infringement would be seen
as willful. It was suggested by the FAA, in our meeting, that we seek
an exemption. We reiterated that we have, and after the better part of
the month, have not received a response. It is not likely that any
productive result will be seen in the near term. In fact, the last
operational exemption we were granted took well in excess of a year. It
was also suggested that we seek legal interpretation from FAA legal.
This is also a lengthy process and we have one request out that has
lingered for months.
It is worth mentioning that there are distinctly different
standards of safety in aviation. The most basic and least regulated is
14 CFR part 91. This level of ``general aviation'' is also the most
prone to accidents and incidents due to minimal training and
airworthiness requirements. Somewhat more regulated is 14 CFR part 135,
which allows the operator to hold out to the public offering air
transportation. This part restricts the size and seating capacity and
while mandated to maintain a higher standard than part 91, the
standards, in particular, operational control, flight crew member
training and maintenance, are still not those of 14 CFR part 121.
Please understand that, when a part 121 air carrier is restricted
from offering/providing service with the highest possible degree of
safety (14 CFR part 121), the customer is forced to seek services at a
lesser standard. While at first look this would seem to be primarily an
economic concern for the part 121 airline, it is inherently
discriminatory to the customer, now denied access to the service at the
highest possible degree of safety. There is also an element of
discrimination against the outlying communities and villages. When the
day comes that a village needs a generator in the midst of a flood, or
construction materials to build a school or homes for families, or even
to carry quantities sufficient to stock the local markets, they must
rely on air transport. Operators of small (non 121) aircraft may be
challenged by weather conditions or elements of flight which should
restrict them from flying the mission. Occasionally they try, and the
results are tragic.
The attached is a listing of destinations in Alaska with no weather
reporting available as of 2/28/2017. This could become more critical in
some areas with the recent avalanche at Atigun Pass closing the Dalton.
Communities north of that closure are effectively isolated from
delivery of food, some fuels, and any other essential life sustaining
supplies reliant on large aircraft.
I believe it would be appropriate for the Senators' offices to work
closely with Congressman Young's office and demand the FAA act
expeditiously to draft an exemption, applicable only to Alaska's air
carriers operating under 14 CFR part 121 enabling operations where
reports are not available.
Most of the regulatory language addresses ``reports or forecasts or
any combination thereof.'' Several high ranking individuals in the FAA,
apparently including Mr. Duncan, do not wish to differentiate between
the word ``or'' and the word ``and''.
There are only two operators using large cargo aircraft serving the
airports with limited capability. Neither has any history of weather
related events prior to this new enforcement initiative. Bottom Line,
after the February 22 meeting which was attended by operators as well
as staff representatives of our U.S. House and Senate, Mr. Duncan has
not addressed the industry concern, and the unintended consequences of
the actions by the FAA. Communities will suffer, commerce will suffer,
safety will suffer and Air Transport in Alaska will suffer. The FAA and
NWS have failed to work together to provide forecasts (TAFs) and
reports (METARS). The operators obtain EWINS weather products,
essentially paying for repackaged NWS data. This only addresses the
lack of forecasts. The relief that was implied, and the relief needed
relates to the weather reporting at the airport. Earlier last week FAA
reaffirmed their stance that if we operate without approved reports,
they will take the position that we are intentionally non compliant and
in violation.
Thank you for your consideration of this critical issue. Obviously
it is complicated and has ramifications that cannot be overstated. We
are available to assist with any questions and invite you to contact us
at the numbers noted below.
Best regards,
Zachary M. Adams,
Directory of Operations,
Everts Air Cargo.
Enclosure
Cc: Robert Everts
Sammy Wiglesworth
______
List of Alaska airports without weather reporting
Akulik
Alakanuk
Allakaket
Anvik
Arctic Village
Atmautluak
Beaver
Beluga
Big Mountain
Birch Creek
Buckland
Bullen Point
Candle
Chalkyitsik
Chandalar Lake
Chenega Bay
Chisana
Chuathbaluk
Coal Creek
Colorado Creek
Dahl Creek
Donlin Creek
Drift River
Dune Lake
Eek
Ekwok
Farewell
Flat
Galbraith Lake
Gane Creek
Gold King Creek Mine
Golden Creek Mine
Goodnews Bay
Granite Creek
Grayling
Hughes
Illinois Creek
Independence Creek
Inigok
Ivotuk
Kasigluk
Katmai Lodge
Kavik
Keyes Point
Kobuk
Kokhanok
Kongiganak
Kotlik
Koyukuk
As of 2/28/2017
Levelock
Little Squaw Lake
Medfra
Moses Point
Napaskiak
Nightmute
Nikolai Creek [Tyonek]
Nikolski
Nixon Fark Mine
Nondalton
Noorvik
Nulato
Nyak
Oliktok
Osprey Lodge
Point Lonely
Poorman
Port Clarence
Prospect Creek
Ptarmigan Lake
Quinhagak
Rampart
Red Devil
Sheldon Point
Selby Lake
Skwentna
Stebbins
Stevens Village
Tanacross
Telaquana
Trading Bay
Tuluksuk
Tuntutuliak
Twin Lakes [East and West]
Tyonek
Ugashik
Umiat
Umnak Island
Venetie
WienLake
______
Everts Air Cargo
Fairbanks, AK, March 28, 2017
Senator Dan Sullivan,
Washington, DC.
Dear Senator Sullivan,
I understand that you may have recently received correspondence
from Jane Dale, the Executive Director of the Alaska Air Carrier's
Association, regarding the numerous weather issues affecting 121 Air
Carriers in the state of Alaska. I am requesting your immediate
attention to a specific issue, which is the new interpretation of
``national requirement'' for weather reporting at all 121 Air Carrier
destination airports (including remote strips used for mining and
oilfield development, and other special strips such as ice runways).
121 Air Carriers MUST have certified weather provided by the National
Weather Service AT THE DESTINATION. This is a significant change from
how 121 Air Carriers in Alaska have been operating (for over 30 years).
Unfortunately, there are numerous locations (runways) in Alaska
where there is no National Weather Service reporting. Under the new
interpretation, Everts Air Cargo cannot fly into these destinations. An
example is Drift River, located just across the inlet from Anchorage.
Two weeks ago, Hilcorp Energy requested that Everts Air Cargo transport
an ``oil pig'' to assist with their operation (as has been done many
times before). However, because of the new interpretation and the fact
that there is no certified weather provided by the National Weather
Service at Drift River, we had to decline the business. The weather was
VFR, not a cloud in the sky.
In addition to there being locations without weather reporting,
there are numerous occasions where the AWOS (Automated Weather
Observation Station) reporting systems fail. That is what we are
currently experiencing with the village of Emmonak, one of Alaska's
mainline hubs. The weather robot went down in Emmonak on March 24 and
is scheduled to be out of service until April 7.
Below is a picture of what the weather is in Emmonak today, but
even though it's 10 and clear, because of the new interpretation, we
are prohibited from flying there. Currently, we have over 50,000 lbs of
mail and freight for Emmonak, but these food items and basic goods will
not be flown until the weather robot is repaired by the FAA.
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
I have included a copy of a letter recently sent to Alaska Senate
Representative, ``Click'' Bishop to request the State's support. It
provides further information regarding the critical weather issues
facing 121 Air Carriers in the State, but specifically focuses on the
recent initiative by the FAA to enforce certain elements of the
regulations. The decisions and actions of the FAA in this area are
misguided. Clearly, there are unintended consequences that will
continue to negatively impact the flow of U.S. Mail and other essential
commodities regularly transported to the villages by 121 Air Carriers.
Your support and intervention is respectfully requested.
Please feel free to contact me via e-mail or at the number listed
below.
Thanking you in advance for your assistance,
Zachary Adams,
Director of Operations,
Everts Air Cargo.
Cc: Robert Everts
Senator Sullivan. And, Mr. Rosen, if confirmed, I would
like to get your commitment to work with me and my staff to
address this problem, which is a significant one, and we talked
about it in my office yesterday. Can I just get that
commitment?
Mr. Rosen. Yes, Senator, I would be happy to work with you
and your staff to at least get the right people in the room
talking about what the issues are and whether there is a
satisfactory solution.
Senator Sullivan. Great. And this just goes to the broader
issue, which I think many states view, certainly my state, that
the one-size-fits-all approach on policy emanating from
Washington almost never works in certain states. It certainly
doesn't work in my state, and this is one example.
Let me, if I may, Mr. Chairman, one final question. I know
I'm short of time, but there has been a lot of talk on an
infrastructure initiative, a package, coming from the
administration. I think you're starting to see a lot of broad
bipartisan support for this idea. But as we talked about
yesterday, and I've talked to Secretary Chao and even the
President about this, an infrastructure initiative without
corresponding permitting reform at the Federal level in many
ways is going to be a lot of money wasted.
Right now, you know the stories. There are examples where
Federal permitting takes years and years and years to build a
road or to build a bridge. We had the head of the Seattle-
Tacoma Airport in front of this committee last year. Fifteen
years to get the permits to build a new runway. Fifteen years.
So we're going to be introducing a bill, the Rebuild
America Now Act soon. I'm going to try and get a lot of
bipartisan support for this, but it looks at major permitting
reform to build infrastructure projects, not cut corners, but
to actually be able to deploy the money. I've already gotten a
commitment from Secretary Chao to work with us on that.
Can I get your commitment to work with us on the details of
that so if there is an infrastructure package through the
Congress, we can make sure that the Federal monies actually get
deployed and don't get caught up in years and years of
litigation and red tape? Can we get your commitment on that?
Mr. Rosen. I think you've raised a very important issue. I
think this committee has actually had some leadership and shown
leadership in trying to find ways to improve the permitting
process initially in MAP-21 and the FAST Act, but there is more
to be done.
Senator Sullivan. Much more to be done.
Mr. Rosen. And so I think you raise a very important issue
and one that is personally interesting to me as something that
could improve our infrastructure needs in that some of the
information I've seen suggested that the single largest time
component of infrastructure projects is actually the permitting
phase. And----
Senator Sullivan. Not the design phase, not the building
phase, the permitting phase.
Mr. Rosen. So if we can improve that, we make a lot of
progress. And so I would welcome the chance to work with you on
that if I'm confirmed.
Senator Sullivan. Thank you.
Thank you, Mr. Chairman. And we'll have additional records
that we're going to submit for the record.
Thank you, Mr. Rosen.
Senator Wicker. Thank you, Senator Sullivan. And I would
only observe that Senator Ted Stevens would have been very
pleased with that exchange with regard to the permitting
process.
Senator Cortez Masto.
STATEMENT OF HON. CATHERINE CORTEZ MASTO,
U.S. SENATOR FROM NEVADA
Senator Cortez Masto. Thank you, Mr. Chair.
Welcome, Mr. Rosen. It's good to see you again. Thank you
so much for taking the time to visit with me. And I will be in
and out. I'm juggling two meetings at a time, so I apologize
for the tardiness.
Mr. Rosen. No problem.
Senator Cortez Masto. But let me start with the
conversation that we had in my office. As you know, Nevada has
a number of emerging and exciting innovative sectors happening
right now. Two of them include unmanned aerial systems and the
next generation of vehicle technologies. To better understand
how you will approach the regulatory and future funding
decisions, could you share with me and all of us your
perspective on innovation and transportation?
Mr. Rosen. Sure. Thank you for that question, Senator. I
think we're in one of the most interesting phases in a long,
long time. There was this wonderful burst of transportation
innovation 100 years ago with the Wright brothers and the
automobile and so forth, and then, while there have been
incremental improvements, we're suddenly seeing the application
of digital technologies to the transportation sector, as you
alluded to, with the unmanned aerial vehicles and automated
vehicles, and both cars and trucks.
And so we have to start thinking very creatively about how
we accomplish some of the fantastic opportunities that exist
for serving all Americans, but some obvious ones with regard to
automated vehicles, for example, are people with disabilities
or elderly or children who need to get places. And yet we know
that there are a number of challenges involved with that, of
which the first and foremost is safety, because you're not
going to have consumer acceptance of these technologies without
safety, but all these things that people have to think hard
about, the privacy concerns, cybersecurity concerns.
And I think the challenge for governments generally is to
both--how to foster the innovation of the private sector, how
to enable that, while ensuring that the public is protected on
these other concerns, especially first and foremost safety,
which I see as job one for the Department of Transportation.
Senator Cortez Masto. I appreciate that. And I don't
disagree that when we're looking at moving in the path of
innovation, we always want to have guardrails and protections
in place for consumer safety.
But that brings me to my next question, which my colleague,
Senator Blumenthal, I think was also talking to you a little
bit about, is that cost-benefit analysis that goes into the
regulations that you will be looking at when it comes to the
safety of consumers and the riding public. And I'm curious how
you weigh that. When you're making that cost-benefit analysis,
in your perspective, how is that undertaken, and how much
weight does that carry when we are looking at this type of
analysis?
Mr. Rosen. So I'll offer two thoughts about that. One is
it's really important in the regulatory process to have the
best available data and to be using the best information you
have. And one of the great things about the Department of
Transportation actually is that among government agencies, it
has access to some really excellent data.
Some members of this Committee are undoubtedly familiar
with NHTSA and auto safety. It has these tremendous databases
of all the unfortunate tragic fatalities we have in auto
accidents. It has databases from police reports. We have
wonderful data on aviation in the Bureau of Transportation
Statistics. And part of what we have to do is use the data to
ensure we have accurate outcomes.
But I will say, as much as I am a supporter of cost-benefit
analysis, I don't think it's an algorithm. I don't think you
just plug it in, and if it's positive, you're done, and if it's
negative, you're not.
I do think that as much as we strive for the use of good
data, there is a need for some judgment and discretion. There
are things that can't always be perfectly quantified. And so
there is a need for judgment, and part of that is judgment of
where things fit in the larger scheme of priorities because
unfortunately it's a real fact of life in all realms that we
don't have infinite resources, so the resources we have, we
have to use wisely.
Senator Cortez Masto. Thank you. I appreciate those
comments. And then, finally, we had talked about this. As you
well know, I-11, we are looking to have an Interstate 11
through Arizona into Nevada, and it's an important project for
the state of Nevada to open doors and improve our economy on
commerce.
And I've heard the current administration talk about
investing in our infrastructure needs. But the comment that I
heard from the President was that we need to fix it first. And
as you well know, investing in Interstate 11 is not fixing it
first, it is investing in new projects that we need in
infrastructure across the country.
So I'm just curious, your thoughts on fix it first. Is that
how you feel about that? Is that the mandate that you're
hearing? Or is it more of a broader infrastructure plan that
includes new projects?
Mr. Rosen. So I'm not yet a member of the administration,
so I haven't been privy to conversations that would flesh out
that. My own sense of that is, while the President is defining
his priorities, I did not interpret that, unless I hear
otherwise, as being a preclusion of taking into account the
realities that there are parts of the country where growth is
the driving consideration in infrastructure, and there are
other parts of the country where refurbishment is the priority.
In the big picture, there certainly is a lot of repair
that's needed, but I don't construe that as a citizen who is
listening to the conversation, let's say, as saying that we're
going to ignore the needs of places that are growing.
Senator Cortez Masto. Thank you. And I see my time is up. I
appreciate the comments today. And as I said in the office when
we spoke, you're welcome to Nevada. We look forward to having
you come out there as well. Thank you.
Mr. Rosen. Thank you, Senator.
The Chairman [presiding]. Thank you, Senator Cortez Masto.
Senator Cantwell.
STATEMENT OF HON. MARIA CANTWELL,
U.S. SENATOR FROM WASHINGTON
Senator Cantwell. Thank you, Mr. Chairman. And
congratulations to the nominee.
Mr. Rosen, I wanted to ask you about oil train volatility.
In the last administration, we worked very hard to try to
address both through the Department of Transportation and FMCSA
the necessary safety in making sure our communities don't have
a Lac-Megantic type situation. One of the issues is making sure
that we understand the volatility of the product being shipped
on our rail lines, and the Department of Energy and Highway
Safety Administration is investigating the properties of crude
oil that affect combustion, including volatility. We expect
this study to be completed later this year. So we want to know
how you will work with that information and protect our
communities on a transportation issue?
Mr. Rosen. Well, I think you raise an important question,
that we all want to have safety in the transport of materials
that are potentially hazardous. I am aware there were some
regulations issued in recent years on tank car safety and the
like, and I know that there are studies out there.
As I've mentioned, I'm not yet at the Department, so I'm
not yet as current as I need to be, and I think the issue you
raise suggests to me that that's another item that if I'm
confirmed, would be something I would want to get with the
Federal Rail Administration and have myself brought current on
the issues so that I could participate in helping to assess,
what are the next steps that are needed?
I assume that that's an ongoing issue that they're working
in light of the report and the analysis, and I would need to,
as I've said to some of the other Senators, take advantage of
the fact that there are a large number of experts at the
Department that are more knowledgeable on the specifics of that
than I am and try to get in a position to help things move
forward.
Senator Cantwell. Well, I appreciate that. I hope you will.
Our frustration has been both the DOT and FMCSA thought they
didn't have the ability to regulate this product, so one of the
reasons why we're doing the analysis is to show this level of
volatility and its combustion does need to be regulated, but I
would believe the DOT could do a more aggressive job today even
without the study. But that aside, you should look it up and
get more up to speed on that. I'm going to look forward to
hearing more from you on that.
My colleague from Nebraska mentioned freight, and the
investment that freight delivers to our economy. What are your
views in continuing to make investments in this area of
transportation and evaluating projects under the Nationally
Significant Freight and Highway grant program?
Mr. Rosen. So I really have, I guess, two sets of thoughts.
Some are that we should implement the statute, that there are
criteria and there are things in the statute, and we should
follow them, but at a more general policy level, I think we're
very fortunate in this country that some of our freight
infrastructure is really privately held, and we see investment,
and we have to try to facilitate it, and I'm thinking
particularly of rail and pipelines as examples of that.
But then, of course, trucking is a huge part of freight
movement, as is aviation, and so on, and I think that's part of
the bigger picture we're talking about, of, what does an
overall infrastructure proposal look like? And while I think I
look forward to getting into that conversation if I'm
confirmed, I don't yet know where that stands, and I would look
forward to receiving input and trying to be a good contributor
to the process, including taking that concern into account.
Senator Cantwell. Well, I hope you would work to ensure
that new infrastructure packages kept with that robust
investment in freight infrastructure. It's really where a lot
of congestion is. And I think the study and analysis was that
you could have freight travel all the way from the West Coast
to Chicago, but it would take the same or more amount of time
to just travel through Chicago. So clearly freight can't wait
when it comes to the competitiveness of, say, our Canadian
ports, so----
Mr. Rosen. Right. Right. We know there are bottlenecks that
occur. We've had the experience of that at ports on occasion.
And I think you raise an important issue to be taken into
account.
Senator Cantwell. Thank you.
Thank you, Mr. Chairman.
The Chairman. Thank you, Senator Cantwell.
Senator Markey.
STATEMENT OF HON. EDWARD MARKEY,
U.S. SENATOR FROM MASSACHUSETTS
Senator Markey. Thank you, Mr. Chairman.
Mr. Rosen, you have a long history both in government and
on the private sector of defending private industry against
regulations designed to protect consumers. In fact, when you
first worked for the Department of Transportation, you touted
the fact that you were involved in ending or withdrawing 180
potential DOT rulemakings.
And you've also demonstrated hostility to environmental
regulations design to protect our air, our water, opposing
greenhouse gas emissions regulations in your role at OMB, and
representing the U.S. Chamber of Commerce in attempting to
undermine climate change science in order to fend off potential
regulations.
I know that Senator Blumenthal asked you to voluntarily
recuse yourself from matters involving former clients and
issues you worked on. I understand you would not agree to that.
Is that true?
Mr. Rosen. I think what I told Senator Blumenthal was that
I would adhere to the ethics agreement that I had entered into
that identifies where I have former clients, and that I would
be recused, and that I would intend to bring, as I try to do in
everything I do, the highest standards of integrity and
professional responsibility, and I stand by that.
Senator Markey. OK. I guess my recommendation to you, sir,
would be that you should recuse yourself in all cases where
your independence is in question, which it is on matters where
you've had prior clients and matters that you have previously
worked on.
Let me now turn to climate science if I may. According to
media reports, during the Monday evening briefing on the
President's dirty energy executive order, the White House
briefer said he was not familiar with the economic consequences
of climate change impacts like rising sea levels and extreme
storms.
Those impacts pose numerous risks to America's
infrastructure in Massachusetts and throughout the country. For
instance, roads, rail lines, and ports can be shut due to
flooding. Extreme heat can degrade asphalt and weaken metal
rail lines and bridges.
Mr. Rosen, are you familiar with the risk climate change
poses to transportation infrastructure?
Mr. Rosen. Well, Senator, I think what I would say is, much
like many of the transportation issues that we've talked about
at this hearing, I think that I'm in favor of protecting the
environment, and I think that that's a common sentiment that
many people have. I have shared in the opening statement, as an
example, that I do drive a hybrid vehicle and have for many
years.
So when you get into the specifics of the lists you were
giving, I was trying to think the connections to transportation
because my mind is a little bit fixed on that today, and I
think you and I had some conversation about fuel economy as
being the key area in which DOT has some responsibilities on
that. And I think I mentioned to you that when I was General
Counsel, DOT issued three cafe fuel economy rules back at that
time.
Senator Markey. Well, let me just go back. Let me go back
to Massachusetts v. EPA. That was the decision at the Supreme
Court in 2007 where the Supreme Court ruled that the EPA had to
make a determination as to whether or not there was an
endangerment to Massachusetts, to our coastline, to our
infrastructure, that was posed by CO2 going up into
the atmosphere. So that decision came down 5 to 4 saying that
they had to make that determination.
So if that's the law, which it is, and EPA then made that
endangerment finding, then the question becomes, should the
Department of Transportation build climate change into
decisions made at the Department of Transportation in terms of
the impact on infrastructure? We can begin with Massachusetts,
but it was a ruling for the whole country.
Mr. Rosen. Well, I'm familiar with the case you're
referencing, and my recollection is the Supreme Court expressly
talked about the fact that there would need, in light of the
decision, to be coordination between NHTSA and the fuel economy
rules and EPA and the greenhouse gas rules. And the Court
contemplated that there would be coordination. And my
understanding is that that has been part of the process in the
years subsequent to that.
Senator Markey. Well, back in 2008 in March while you were
still at OMB, the Department of Transportation released a
report entitled, ``Impacts of Climate Variability and Change on
Transportation Systems and Infrastructure Gulf Coast Study.''
The report found that the expected impacts of climate change on
transportation in just this one region of the country are
striking.
The significant position of the Gulf Coast region's road,
rail, and port network is at risk of permanent flooding if sea
levels rise by 4 feet, and that includes more than 2,400 miles
of major roads and 9 percent of rail lines.
So nine years after that, my hope is that the Department of
Transportation leadership, no matter what their party
affiliation, would recognize the importance of taking the
consequences of climate change into account when making
decisions about transportation policies and infrastructure. And
I'm referring back to a Bush era study of what the impacts
could be.
Mr. Rosen. I'm not familiar with the actual study you're
referencing, but I would, if I'm confirmed, look forward to
looking into that and be happy to have further conversation
with you.
Senator Markey. From my perspective, this is--you know,
Hurricane Sandy is a good example of where if it was just off
by a couple of degrees and hit Boston, hit Cape Cod, we would
still be digging out. The costs were massive. The
infrastructure damage was massive. And, again, that was at the
heart of Massachusetts v. EPA, what would be the impact on our
state? And we lose hundreds of miles of beach, you know, on an
ongoing basis, and that's pretty much the challenge that we're
going to have going forward.
The Department of Transportation understands that,
especially when it comes to the issue of the fuel economy
standards. You know, the less CO2 that goes up into
the atmosphere is the less danger there is going to be to any
of this infrastructure. My fear is that the auto industry,
notwithstanding having 700,000 new jobs since we bailed them
out in 2010, and having a much higher fuel economy standard,
it's just going to try to walk away from that commitment.
But it's not just a commitment to the jobs that were
created, it's also going to be the commitment that they were
making to making sure we protect all of this infrastructure in
our country, and I'm just really afraid that that's going to be
a consequence unless the Department of Transportation is able
to make that determination that the auto industry can meet
these standards. It's just a National Academy of Sciences study
that makes it quite clear that they can do so. So I just throw
that out. I think it's critical. I think it's central to the
long-term responsibility the Department of Transportation is
going to have to our country.
Thank you, Mr. Chairman.
The Chairman. Thank you, Senator Markey.
Senator Booker.
Senator Booker. I'm grateful, Senator Markey.
And, again, thank you very much for being here. It means a
lot that you would be willing to serve your country. It's so
wonderful to see Dr. Rosen here. This goes to what I always
say, behind--in front of every accomplished man is a more
accomplished woman looking over her shoulder saying, ``Keep up,
please.''
You said during your opening remarks, which was music to my
ears, that you think good communications between the Committee
and the Department of Transportation is--I don't remember the
exact superlative you used, but something you thought was
important.
Mr. Rosen. Absolutely.
Senator Booker. Well, I say that is music to my ears is
because since the administration came into the office, a number
of committee members have sent letters to the Department of
Transportation on a variety of issues, some of them not
seemingly controversial, but have yet to receive a response.
And this is very problematic to me. This Committee I think
functions well when we have a direct line of communications.
Would you commit to me right now on the record that you
will be communicative and responsive to this committee and our
letters?
Mr. Rosen. Yes.
Senator Booker. Thank you. Positive Train Control,
something that I think is really urgent, as someone who rides
Amtrak myself, but also understands how critical it is up and
down the Northeast Corridor. You have probably witnessed
through the news some of the crashes we've had, some of them
that might have been affected by Positive Train Control. It is
important that the DOT continue to push this?
Mr. Rosen. I think it's an important issue, that, like you,
I have ridden Amtrak many, many times to New York and other
places actually. And I have a daughter who lives in New York,
so that's a train I like to take from time to time, even for
pleasure.
But the short answer is Positive Train Control, you know,
has been in the works for at least a decade. I think when I was
at the Department as General Counsel, I went to a demonstration
of the technology. My recollection is it was in Illinois. And,
you know, I hate to think about how many years that's been. So
I think it's an important issue. I would be very interested, if
I'm confirmed, in working on the observation monitoring of
where that stands, and would be interested in your input. If
you think there are issues or concerns, I would look forward to
working with you on that.
Senator Booker. Mr. Rosen, I bring it up for two reasons.
One, because of the urgency I feel on this, and also because--
and I'll submit this for the record if the Chairman is OK--is
something you wrote about sort of the cost of regulations and
that they shouldn't be articulated by agencies, they should be
articulated by Congress. In this case--and you mentioned
Positive Train Control as an example of that and the cost of
the regulation, but the reality is, is that Congress requires
the Department of Transportation, we have spoken on this issue,
to move forward with Positive Train Control.
[The information referred to follows:]
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
Mr. Rosen. Right.
Senator Booker. This is to me a life-or-death issue that
I'm hoping that your commitment--and I ask it given the letter
you wrote--is this is not an agency-driven initiative, this is
something Congress has told the Department of Transportation to
do, and something that this Congress, in a bipartisan fashion,
has allocated resources to get done. I'm hoping that I can get
your commitment that the Department of Transportation will do
what Congress has indicated it should do.
Mr. Rosen. I have said many times I have a somewhat simple
view that if Congress has written a law, then administrative
agencies should implement the law.
Senator Booker. All right. Can I just talk to you really
quickly about the Gateway Program? This is something that is,
as I said in my introductory remarks, profoundly important. The
tunnels going between the Hudson River and through the Portal
Bridge, we've got 107-year-old tunnels across the busiest river
crossing in all of North America. It's not just important to
New Jersey commuters, it's important to the region. The
infrastructure is severely damaged.
And this is the challenge, is we have about three quarters
of a million people that go across those tunnels or that river
crossing every day. It moves a workforce that contributes $50
billion to the gross domestic product.
But this is the critical issue, is that if we don't replace
those tunnels before the end of their lifespan--which some
folks are thinking about 15 years because of the damage that
Superstorm Sandy was, and I've gone through those tunnels and
reviewed them--if we don't do it proactively and end up doing
it reactively, in other words, we have to shut down a tunnel to
repair it, it will cause a traffic ``Armageddon'' in the region
and hurt the American economy to the tune of about $100 million
a day in lost productivity.
Do you understand the urgency of a project like this?
Mr. Rosen. With regard to the need and the problem center,
yes. I think that we're talking about a crucial part of our
overall mobility in this country. And so the need to do
something I think is clear. I'm very interested, and I'm glad
you raised it, I've only recently started to learn more about
the proposals itself for how the project would be done, and I'm
very interested to learn more about what the ideas are. I know
it's multimodal. I'm not as well-versed as I need to be to
understand what the proposed fix is. But on the question of, is
there a need? You're talking about, as you said, 100-year-old
tunnels.
Senator Booker. So I would love to have the opportunity to
sit with you, Mr. Rosen, and talk to you about this project----
Mr. Rosen. Agreed.
Senator Booker. That's all I need. And now I am treading in
very--basically treading upon the Chairman over here's good
graces to ask one more line of questioning. He is perhaps the
fittest Senator in all of Washington, and so he intimidates me
in multiple factors, not just his seniority, but also the fact
that he might be able to take--a former tight end like myself.
So if that's OK with you, can I go to one----
The Chairman. Absolutely.
Senator Booker. Thank you, sir.
The Chairman. With that introduction.
Senator Booker. Yes. So truck safety is a serious concern
of mine because of what's happening right now on our highways,
which we're seeing actually, especially with the technology we
have at our behest, especially with the ways we have to control
it. Unfortunately, we're seeing about a 57 percent increase in
people injured by crashes since 2009. This problem is growing
worse and worse and worse. And I've met with a lot of these
families. I met with one person just yesterday who have seen
sort of the devastating impact of what a truck crash on our
highways can mean. We're talking to the tune of thousands of
people.
In 2015 alone, 4,067 people were killed in crashes
involving large trucks. Again, I'm not pointing blame to the
truckers, to the cars, it's just happening on our highways.
It's a problem that's getting worse. Do you have in your mind a
plan to try to address this serious issue of mass carnage in
the United States of America happening on our highways
involving trucks?
Mr. Rosen. Well, I appreciate your concern, and I think
it's a valid one. I've wondered myself. In addition to trucks,
we've just seen an upturn in the last 2 years of auto
fatalities generally, of motor vehicle fatalities, and I've
wondered after, you know, we had about a decade of continuous
decline. And I think it's a great concern why that has turned
in the other direction, that we're having an increase, and
trucks are a part of it. I know you are right.
So I think, if I'm confirmed, one of the things I would
like to do is take advantage of the tremendous data resources
that DOT has and begin some exploration as to, what are the
reasons? Because if we're going to solve the problem, we have
to understand what's causing the increases, and I think that
needs some very timely exploration because, you're right, we
don't want that trend line to continue.
Senator Booker. So four yes-or-no questions, and I'm done.
And, again, perhaps when we meet and talk about Gateway, you
and I can have a conversation a little bit more on this.
Mr. Rosen. Sure.
Senator Booker. Just yes-or-no questions. Do you support
efforts to target enforcement at the high-risk companies; in
other words, those companies that are showing demonstratably
that they're involved in significantly more crashes, and some
of the great companies we've had testify before us? Do you
support efforts to target enforcement on those higher risk
companies with existing congressionally mandated rules?
Mr. Rosen. So what I would say about that, Senator, is I
think enforcement can be an important tool in trying to address
these issues. What's the right tool, I need to get better
educated, and, as I've said in response to some other
questions, take advantage of the Department's expertise because
right now I'm not there. And so I wouldn't want to pretend that
I have all the answers without having the benefit of the
expertise of people at the Department.
Senator Booker. I appreciate that.
Mr. Rosen. But I think as a philosophical matter, let's
say, what I know from experience is that enforcement can be an
important piece of the puzzle.
Senator Booker. I appreciate that. And, again, your value
of congressionally mandated rules and the importance of the
intention of Congress in your deference in your testimony and
words to me earlier, I hope that that would spill over to the
rules.
Do you support the entry-level driver training rule for new
drivers that exists right now?
Mr. Rosen. I have to say something of the same thing, in
that I'm aware that there was a rule finalized late at the last
administration, but it's a pretty lengthy rule. And although
it's on my to-do list, I have not read it. So I think it would
be premature for me to offer a bottom-line view, but I think
it's another one of these issues that's important, and if I'm
confirmed, I would intend to get in a position to know what I
think of it.
Senator Booker. So I think you've taken away my ability to
ask these last two questions, but things you might want to
familiarize yourself with. But I'll say them both at once and
then run quickly just in case Senator Thune is not indulging
me.
Do you support the electronic logging devices rule, which
switches from paper logs to electronic logs, something I know
you have managed, I've managed, seeing you've managed multiple
organizations? Having access to data, objective data, that's
not kept on paper logs, you've got to believe that that's
important.
Mr. Rosen. I do have to give sort of the same answer with
the one additional thing, in that trying to get better educated
on that issue, I did see that one of the courts, I think the
Seventh Circuit, recently affirmed a challenge to that rule. So
I'm interested in the topic, but I am not well briefed enough
yet to give you a bottom-line set of observations.
Senator Booker. And the last is, do you support moving
forward with congressionally mandated rules in general, or is
the position you're presenting to me that you want to read the
rules and evaluate them to see if they should be enforced or
not?
Mr. Rosen. No, I wouldn't put it that way. I think that if
Congress has said to do something, it should be done. I think
the part I was reserving judgment on, let's say, is, is it the
most effective and efficient way to do what Congress said to
do? If you can achieve your objective in a better, more
effective, quicker, less costly way than what's done, then you
should try to do that. And I'm saying I don't have my arms
around, what do I think about have they implemented what
Congress said to do in the best way? But on the question you
asked, which is, ``If Congress says to do something, should you
do it?'' the answer is yes.
Senator Booker. Sir, just in closing, you are a wise man. I
say that simply because of who you married. I suspect you will
be confirmed. And the best thing I've heard right now is should
you be confirmed, you and I will sit down and have two
reasonable men having a conversation about how to best move
this country forward.
Mr. Rosen. I would very much look forward to that, Senator.
Senator Booker. Thank you very much.
And I want to say for the record how grateful I am to
Senator Thune.
[Laughter.]
The Chairman. Thank you, Senator Booker. You are eminently
reasonable.
[Laughter.]
The Chairman. So thank you.
Next up is Senator Duckworth.
STATEMENT OF HON. TAMMY DUCKWORTH,
U.S. SENATOR FROM ILLINOIS
Senator Duckworth. Thank you, Mr. Chairman.
Mr. Rosen, as you know, Illinois is one of the most
important states in the Nation when it comes to transportation
infrastructure. We have one of the world's busiest airports, we
are at the center of the Nation's freight rail network, and we
also are home to one of the country's most important transit
systems. That's why I was very alarmed by the President's
budget blueprint for 2018, where he seeks to cut the Department
of Transportation's budget by about 13 percent.
My Illinois stakeholders are deeply concerned with the
administration's proposal, and they are very concerned with the
plans to eliminate critical DOT programs. What they want to
know, and as their Senator, I need to know, whether, if
confirmed, you will make a strong commitment to stopping these
harmful cuts that threaten job creation and urgently needed
infrastructure projects?
Mr. Rosen. So, Senator, I'm going to maybe elaborate on
something I've said earlier, which is I think in these issues,
it's sometimes important to separate the ends and the means. I
think you've expressed, and I've heard other Senators express,
concern about there are important issues you care about,
freight mobility, or some of the other issues that are
addressed in the President's budget. And I think that I would
like to say that I would look forward to trying to work on ways
of addressing the policy outcomes we want, which is separate
than the means of whether the particular budget programs that
are addressed need to be changed, reformed, improved upon, and
so on.
And so as a nominee of President Trump, I support the
President's budget, but that's not to say that there aren't
other ways to address some of the concerns you and other
Senators may have. And, of course, all budgets, all
appropriations I should say, come before the Congress, and the
Congress has to approve them.
So I think it's inherently a collaborative process, and I
would hope we could work together, notwithstanding that you
differ with the President's budget, and I'm a nominee of
President Trump.
Senator Duckworth. So my understanding is you support the
13 percent cuts in the President's budget to DOT, but you think
that there are other ways to improve the transportation
infrastructure system in this country outside of the budget,
what's listed in the budget? Is that----
Mr. Rosen. Well, I should take a half step back because
I've said this before, and I may have said it earlier, I'm not
currently at DOT, so I wasn't a participant in the budget
process, but, of course, as the President's nominee, I am going
to support the President's budget. I think that's what you
would expect. And I'm saying I don't think that means, however,
that you should think that's closing the door on being able to
discuss how we achieve policy outcomes that we may all want in
a consensus way, or least in a majority way at least.
Senator Duckworth. Well, I find your support for this
budget with the significant cuts deeply concerning. And as
members have discussed all afternoon, we are very concerned
that creating new jobs, supporting small businesses, and
generating economic growth, if you support those things,
cutting the DOT budget is absolutely the last thing we should
do.
I am also concerned about the administration's proposal to
eliminate the successful TIGER grant program that has proven
incredibly popular with state and local governments across this
country and in Illinois. Every year, the demand for TIGER grant
funding greatly exceeds the amount of funding available.
In 2016 alone, DOT received 585 applications from all 50
states requesting $9.3 billion in total funding for the
program. This was almost 20 times more than the actual amount
of TIGER funding available that year, which was $500 million.
TIGER is a great deal for the American taxpayers. It's cost
effective and competitive. Projects are selected based on
performance, and TIGER promotes matching funds.
Mr. Rosen, yes or no, if confirmed, will you support the
administration's proposal to eliminate the TIGER grant program
in 2018?
Mr. Rosen. Well, Senator, as I've tried to say throughout
this hearing, I think, if I'm confirmed, I would look forward
to participating in the process of helping develop the
President's overall infrastructure proposal, and I see
infrastructure as an area both where there is wide agreement on
our national needs and an area that has an opportunity for
bipartisan joining together to get something done. So----
Senator Duckworth. Well, I don't want to go to that point.
Mr. Rosen. No, no, I--OK.
Senator Duckworth. Just answer yes or no, do you support
the proposal to cut, to basically eliminate the TIGER grant
program? You said you supported the 17 percent--the budget with
the 17 percent cut. So do you support the elimination of the
TIGER program because that's what the White House has put
forward?
Mr. Rosen. Well, perhaps I'm not communicating well because
what I'm trying to say to you is that I think in the
infrastructure proposal there can be multiple ways of
addressing the concerns you have, the policy outcomes you
have----
Senator Duckworth. I'm not asking about the policy
outcomes. I'm asking specifically about the President's
proposal to eliminate the TIGER grant program.
Mr. Rosen. OK. So let me address the TIGER grants. Those
are discretionary grants that DOT makes, but it's not----
Senator Duckworth. Do you support his proposal to eliminate
them, yes or no?
Mr. Rosen. No, no, but----
Senator Duckworth. It's simple. You're his nominee. You
just said that you're willing--that you support his 17 percent
cut to DOT in his budget. Do you support his proposal to
eliminate TIGER, yes or no? It's simple.
Mr. Rosen. Senator, what I----
Senator Duckworth. If you're going to put that money back
somewhere else, that's a different discussion, but do you
support his proposal to eliminate TIGER grants?
Mr. Rosen. What I'm trying to tell you, Senator, is that I
think that the discretionary grants to achieve the kinds of
projects that I think we're all interested in, there are
multiple ways to get at that. I mentioned earlier there is the
FASTLANE grants program that was authorized in the FAST Act a
year and a half ago. There are ongoing----
Senator Duckworth. His proposal cuts those as well.
Mr. Rosen. I'm sorry?
Senator Duckworth. His proposal cuts those as well.
Mr. Rosen. I would need to check that. I don't remember
that.
Senator Duckworth. OK. Well, I would recommend that you
take a look. But I'm deeply concerned that you have said that
you will--that you support the President's 17 percent cut to
DOT, and now you won't answer the question of whether or not
you support his proposal to eliminate the TIGER grant program.
I'm overtime.
Thank you, Mr. Chairman. I yield back.
The Chairman. Thank you, Senator Duckworth.
My understanding is the FASTLANE is not part of that. Yes.
Mr. Rosen, I want to thank you for being here.
And I want to thank Senator Wicker for serving as Chair.
I apologize for getting here late, but I was actually with
Secretary Chao, and the Department had their 50th anniversary
celebration today, so it was a great opportunity to reflect on
the DOT's accomplishment of the past 50 years, and some of
which you've had a role in and been a part of, and to look
toward the new challenges ahead, but the event also served as a
warm welcome back to the Department for Secretary Chao.
As was highlighted at the event, Mr. Rosen, if confirmed,
you're going to have the opportunity to help lead the
Department at a critical time as we continue to facilitate and
promote the safe and efficient movement of goods and people
throughout the country and around the world.
Decisions you make are going to help affect our Nation's
economy and the individual lives of Americans on an almost
daily basis, be it in the agricultural producers from my home
state of South Dakota, who need to move their products to the
marketplace, or the commuters, who count on a safe and reliable
passenger rail to get them to and from work each day, or
families who are taking yearly vacations who rely on affordable
and safe flight options. Those are all things that are under
the Department's very vast jurisdiction.
And in addition to tackling some of these more traditional
responsibilities at the Department, you're also going to be
faced with helping to usher in new ways to move goods and
people, like UAVs and autonomous vehicles, in a manner that is
not only safe, but also fosters innovation and economic
development.
So needless to say, the Deputy Secretary of Transportation
is going to be very busy. Mr. Rosen, are you ready for the
challenge?
Mr. Rosen. Yes, Senator. I would like to think I am. I
appreciate your comments, and I appreciate your multitasking to
be over at the Department and here on the same day.
I felt when I was asked if I would take on this challenge
that it was almost the opportunity of a lifetime in that it
brings together so much of what my experience and background
had been in. The Department is a regulatory agency, it's an
infrastructure agency, it runs the air traffic control, I've
worked there before, and I've worked at OMB before, and I see
it as a chance to just bring together a lot of things, and I
said in my opening remarks, for me a chance to try to
contribute back for something that I just think is hugely
important for every single American.
The Chairman. All right. Last month, I announced that
Senator Peters and I had been working together to promote
innovation, ensure safety, and identify ways to foster
regulatory flexibility for the testing and development of self-
driving vehicles. As the Department reviews the self-driving
vehicle guidance issued last year, what challenges do you
anticipate with this technology? And if confirmed, how would
you address them?
Mr. Rosen. So I think this technology presents just
tremendous opportunities, and if it's successful, would be a
hugely exciting development, at least in some circumstances
that ultimately the markets will decide which it's most
successful in.
But as you point out, there are several challenges to be
dealt with, and the biggest among them is safety because if
people have given up control of the wheel, consumer acceptance
is going to depend on people being satisfied that the vehicles
they're in are safe. And I think that there are other factors,
of course, that are important as well. Some of them are product
concerns and others are actually governance concerns.
But as you know, there was a NHTSA guidance published late
last year, and it's only a guidance, so it's not actually a
binding regulation, and it's certainly not a law. And I think
that one of the things we need to do is bring together some of
the expertise and make sure we're creating a regulatory
framework that facilitates innovation for the private sector to
sort out winners and losers as to which technologies prevail
and are the most successful, but in a way that ensures the
public is protected on both safety and other measures.
And so when I learned that you and Senator Peters were
working on that, I applaud that you're getting it underway, and
I would look forward to conferring with you about that.
The Chairman. During the previous administration, we've
seen the Department take some short cuts and use outdated,
incomplete, or inaccurate data to push forward seemingly
predetermined regulations. And I know the depth of your
regulatory background, you've responded to some questions
already about that, but could you elaborate on how you plan to
help manage the regulatory development process at the
Department to ensure it uses the best available data in robust
analysis to help inform the regulatory decisions that come out
of the Department?
Mr. Rosen. Yes. Thank you for that question. I've got to
think hard on how I keep that under 5 hours or so.
The Chairman. Yes.
[Laughter.]
Mr. Rosen. I think in a nutshell, you know, President Trump
has issued a couple of executive orders to set a framework that
will cause prioritization of what's important in regulation.
And then it's up to the agencies, including the one that, if I
am confirmed, I would go to, to in the process focus on where
the needs are, I mentioned this earlier, use the regulatory
agenda as a tool, not just for transparency of the public,
which I see is hugely important, but as a management tool so
that costs, if there need to be costs, they are prioritized,
they consider whether there are old rules that should be taken
out, and they are spread out so that a particular industry
doesn't get a large cost burden in a short amount of time.
And to do that, you need both management, but you then, as
I think you alluded to, Senator, you need really good data. And
the data comes from two places. The Department has its own
actually wonderful datasets that are available, and they have
to be used and accessed and used properly. But the other is
stakeholders bring tremendous amounts of knowledge from their
industries or sometimes as critics of the industries, but from
a variety of sources. And part of what has to happen in the
process there is a process that allows enough time and
engagement opportunity for people.
And when Senator Fischer was here, I was mentioning she was
a proponent of some provisions in legislation that provided
earlier opportunities, particularly I think it was in the truck
safety area, to participate in the rulemaking process so that
the best data is available, and I think that's how you get to
good outcomes and robust analysis and rules that are more
likely to command consensus.
The Chairman. I want to associate myself with some, I
think, questions and comments that have already been made by
some of my colleagues prior to my arrival here dealing with
connectivity for rural communities. And, of course, in a state
like South Dakota, it's vital for our economic well-being.
The President's budget did propose eliminating the
Essential Air Service program, just like it did when you were
at DOT and OMB the last time. And I agree that EAS could
benefit from reform, but it does make a huge difference in some
of our communities, including our state capitol of Pierre.
And so I want to put on your radar screen the interest,
high level of interest, and concern that many of us on this
committee and across the entire United States Senate have with
that proposal in particular, but others as well, which you've
heard discussed at some length I think during the course of
this hearing. But those are programs, and this Committee, in
terms of its representation, represents a lot of rural
communities, small areas that are connected and that do depend
heavily upon the EAS program. So I just want to make sure that
I echo what's already been said by some of my colleagues who
preceded me.
I want to just say that we want to, as quickly as we can,
get your nomination on our hearing--or on our markup next week,
and so I'm hoping that we can get responses, questions for the
record responded to as quickly as possible. Members of the
Committee, if they can, and I'll say this to the members of
their staffs who are here, that if we will keep the hearing
record open until March 31, which will be this Friday, and
encourage Senators to get their questions in, and then if you
could get the responses back as quickly as possible, we'll try
and proceed in a way that enables us to process your nomination
at our markup next week, and hopefully get you across the floor
and into that position as quickly as possible.
So thank you for being here. Thanks for your willingness to
serve. And we look forward to working with you on a whole range
of issues that are critical to not only public safety, but also
to the economy of this country and making sure that we have a
vibrant, robust economy that, of course, depends upon solid
infrastructure and good decisionmaking and policymaking by
people in your Department.
So thank you. And with that, this hearing is adjourned.
Mr. Rosen. Thank you very much, Senator. I look forward to
working with you if I am confirmed.
The Chairman. Thank you.
[Whereupon, at 4:22 p.m., the hearing was adjourned.]
A P P E N D I X
Response to Written Question Submitted by Hon. Dan Sullivan to
Jeffrey A. Rosen
Question. The public transportation needs of Alaska, like
everywhere else, far exceed resources. Federal Transit Administration
urbanized area formula funds for Anchorage for this year and last year
are held up, creating strains that increase by the day. The Alaska
Railroad has asked FTA for an administrative solution that will allow
these funds to flow again. Under this solution, the funds would flow to
Anchorage's two FTA recipients, the Alaska Railroad and the
Municipality of Anchorage, the way they always have, and this would
change only if the Alaska Railroad and the Municipality of Anchorage
agree to a change.
It is my understanding that FTA made a prior determination that it
lacked the authority to direct the allocation of the funds, absent
agreement of the two parties. I have written to the Secretary
requesting that DOT review the authority to allocate funds between the
parties. Otherwise, this may become a matter of who blinks first and
Congress certainly did not intend that brinksmanship would drive how
these funds are split. A fair default method may be exactly what is
needed for the parties to ultimately have a true meeting of the minds
over a better long-term approach.
If confirmed, will you please review the authority of FTA to
determine an allocation between the parties and consider the suggested
solution presented by the Railroad as a way to get FTA formula funds
flowing again for public transportation in Alaska?
Answer. Yes. I have been told that the suballocation of FTA
urbanized area formula funds between recipients that are within the
same urbanized area, such as Anchorage and the Alaska Railroad, is a
local decision based on a determination of local need. If I am
confirmed, I will review the Department's past activities related to
this issue and whether the Department has authority that may help
resolve the apparent impasse.
______
Response to Written Questions Submitted by Hon. Bill Nelson to
Jeffrey A. Rosen
Infrastructure Funding. President Trump has talked about investing
$1 trillion in our infrastructure. The President's recent budget
proposal, however, would slash infrastructure funding. These cuts will
hurt many projects in Florida.
Question 1. If confirmed, what would your recommendation be to the
President on how to invest in infrastructure?
Answer. In addition to my responses in the pre-hearing questions
and my remarks and responses at the nomination hearing last week, I
would add that I agree that the current state of transportation
infrastructure needs to be addressed to keep our Nation's economy
strong. If I am confirmed, I would expect to play a role in the
development of the Administrations's new infrastructure proposal that
would direct substantial amounts of money from several sources to
leverage public and private investment in infrastructure.
Question 2. Do you support funding for Amtrak and transit grants?
Answer. Intercity passenger rail has an important role to play in
our national transportation system, as do transit systems. As I have
previously stated in responses to the Committee, however, it would be
premature of me to respond to specific funding questions as a nominee
who is not fully current on recent developments at Amtrak and in the
transit sector. I do understand that both passenger rail and transit
systems are important issues, and I believe they deserve attention as
the Department shapes its transportation policies.
While the Administration's budget recommends cutting funds for
several programs, involving Amtrak long-distance routes and programs
within the Federal Transit Administration, the President will also be
proposing what I understand to be a comprehensive infrastructure
initiative. If confirmed, I would hope to be involved in the
development of the new initiative.
Question 3. At the hearing, in response to questions about the
President's budget cuts, you indicated that the upcoming infrastructure
proposal would address larger infrastructure funding issues. If
confirmed, will you provide details on how the infrastructure proposal
will address these programs?
Answer. If I am confirmed, I would expect that I would participate
in the development and implementation of the President's infrastructure
proposal. If confirmed, it would be my intention to work
collaboratively with Congress on this important initiative.
Safety. I appreciate your comments at the hearing about working in
a bipartisan manner. However, I am concerned that the Department has
slowed and in some cases rescinded important safety rules without first
having a discussion with the Committee of jurisdiction on these issues.
For example, the effective date of the Entry Level Driver Training rule
was recently delayed until March, despite this safety rule being a
product of an extended negotiation between the Department, industry,
safety, labor, and others. Additionally, the Department recently
rescinded the Safety Fitness Determination rule that would help the
Department focus enforcement on carriers with a higher crash risk.
Question 4. If confirmed, do you commit to brief the Committee in a
bipartisan manner in advance of delaying, rescinding, or repealing any
safety rule?
Answer. If I am confirmed, I would strive to work with the
Committee, as well as all stakeholders and the public, on safety
issues, including discussions about proposed regulatory actions.
Wildlife Crossings. In 2016, a record 32 panthers were killed by
cars in Florida. We are working very hard to bring this endangered
species back from the brink of extinction, but that could be wasted
effort if we are not able to protect panthers from being hit by
vehicles. That's why wildlife crossings are such an important
conservation tool for panthers, black bears, and other animals.
Question 5. Do you support funding or resources for wildlife
crossings, especially along roads like Alligator Alley (I-75) that
would otherwise create habitat fragmentation?
Answer. It is my understanding that State DOTs can use Federal
funds to implement measures (primarily driven by safety concerns) to
reduce wildlife collisions. However, this is an issue I would want to
learn more about before responding more fully to your question about
Federal funding for wildlife crossings that create habitat
fragmentation, and if I am confirmed, I will plan to do so.
Air Traffic Control. In its recent budget proposal, the
administration expressed support for shifting Air Traffic Control
services away from the Federal Aviation Administration. I have long
expressed my concerns with such proposals.
During last year's debate on this issue, the Department of Defense
also expressed concerns about how a private air traffic control entity
would ensure that national security remained a top priority.
Question 6. Despite the administration's proposal, do you share my
concerns about privatizing Air Traffic Control services?
Answer. As Secretary Chao indicated in her responses to Committee
members following her nomination hearing, there will be a thorough
Administration review of these issues, including any impact on the
Department of Defense. If confirmed, I would hope to assist the
Secretary in the extensive evaluation of the details any reform
proposal would entail. I share your view that national security will be
a critical consideration.
Aviation Consumer Protection. We have to protect the flying public,
particularly when it comes to requiring clear disclosure of ancillary
fees on activities like checking a bag or picking a seat. It is also
important that the Department complete its rules on refunds for delayed
baggage and family seating, which are required by the Federal Aviation
Administration extension.
Question 7. Do you believe airlines should do a better job of
disclosing fees? Do you believe current airline ancillary fees are fair
to consumers?
Question 8. If confirmed, will you ensure that DOT remains
committed to vigorously protecting consumers through enforcement and
regulatory action?
Question 9. In January 2017, the Department of Transportation
issued a Supplemental Notice of Proposed Rulemaking (SNPRM) that would
require airlines and ticket agents to disclose fees for a first checked
bag, a second checked bag, and a carry-on item when providing airfare
information. On March 2, 2017, the Department indefinitely suspended
the comment period in this proceeding. Do you believe that consumers
and other stakeholders should have an opportunity to comment on this
proposal?
Answer. If confirmed, I will work to ensure that DOT remains
committed to vigorously protecting consumers through enforcement and
regulatory action. I believe we had a strong record on this when I was
previously at DOT as General Counsel. My understanding with regard to
the suspension of the comment period on the Department's SNPRM on
``Transparency of Airline Ancillary Fees'' was that it was to allow the
new Administration the opportunity to review and consider this action.
I am not yet aware of what next steps are planned by DOT, but will look
into that if I am confirmed. If I am confirmed, I would look forward to
working with this Committee to ensure a healthy and competitive airline
industry where consumers have access to timely and accurate information
on which to base their purchasing decisions.
Takata. The National Highway Traffic Safety Administration (NHTSA)
has faced the challenging task of coordinating the Takata airbag
recalls.
Question 10. How will you prioritize the driving public's safety in
your handling of the Takata airbag recalls?
Answer. As I have said before, the public's safety is and ought to
be DOT's top priority. After my nomination hearing, I have been told
that NHTSA has set up a prioritization schedule for Takata, under a
consent order, to declare the inflators defective with respect to age
of the inflator and geographic location of the affected vehicles.
Likewise, that affected auto manufacturers must comply with an inflator
replacement schedule under a coordinated remedy plan that removes and
replaces the oldest and most dangerous inflators first and then
completes the entire recall in an accelerated fashion by 2019. If
confirmed, I would expect NHTSA to continue to address this issue with
a priority focus on safety.
Question 11. Do you think NHTSA needs more resources to effectively
carry out its statutory safety mission?
Answer. If confirmed, I intend to receive detailed briefings from
NHTSA regarding all aspects of its safety mission, and what resources
it has or needs. I can assure the Committee that safety is a top
priority.
Conflict of Interests. Mr. Rosen, you have had a long and
distinguished career. With that career comes certain conflicts that may
require recusal from some actions you may be asked to handle if
confirmed as Deputy Secretary, such as your past work challenging both
the chemistry and the law regarding greenhouse gas emissions from
vehicles. This is an issue that the Department will work on.
Question 12. Do you plan to recuse yourself from any direct
involvement in the NHTSA mid-term review process? If not, why?
Answer. Because I was not yet at DOT, I am not current on the
status of the NHTSA mid-term review process. Moreover, in my previous
professional work as a lawyer, no client had retained me to participate
in NHTSA's mid-term review process. If I am confirmed, I will comply
with my agency Ethics Agreement, which was submitted to the Committee,
along with other disclosure documents, and which addresses when I will
and will not be recused.
Federal Preemption. In 2005, you were quoted in The Washington Post
as supporting efforts to add preemption clauses to Department of
Transportation regulations that could stop states from enforcing their
own safety standards, as well as potentially overrule state tort laws
and remedies.
Question 13. What is your current position on the use of preemption
clauses in safety regulations promulgated by the Department?
Answer. Ultimately the courts make the determination of whether
Federal law preempts a particular State law. The goal is to have the
laws enacted by Congress properly interpreted and effectively
implemented. There are times national uniformity is important or
necessary, and other times when states play a vital role. There may be
instances in which statements by the agency about the preemptive effect
of a Federal regulation may aid the courts in making such
determinations. However, in my view, it is often most helpful to make a
case-by-case determination about this issue, or sometimes a category-
by-category determination.
Climate Change. Mr. Rosen, climate change is already having an
impact on a number of costal states, including Florida. In Miami Beach,
for example, we are seeing increased flooding due to sea level rise.
The vast majorities of scientists agree that man-made greenhouse
gas emissions from a variety of sources are causing climate change and
that emissions from motor vehicles represent nearly one fifth of all
U.S. emissions.
Question 14. What are your thoughts on this issue?
Answer. As I said at my nomination hearing, I believe that we
should try to be protective of our environment. Please refer to my
remarks and responses at the nomination hearing of March 29, 2017. I
would add that I think that this area should be informed by empirical
data and sound science.
Question 15. What role do you believe the Department of
Transportation should play in mitigating the threats posed by climate
change?
Answer. With regard to motor vehicles, Congress enacted the Energy
Security Act of 2007 and the Energy Policy Conservation Act of 1975
that established fuel economy rules. It is my view that DOT should
implement those laws (unless Congress changes them).
Responding to Senators' Requests. As referenced during your
confirmation hearing, there are a number of outstanding requests to the
Department of Transportation from members of the Commerce Committee,
including the following:
1/30/2017 Letter from Senator Nelson to Secretary Chao
2/15/2017 Letter from Senator Schatz to DOT's General Counsel
2/6/2017 Letter from Senators Baldwin et al., to Secretary Chao
2/14/2017 Letter from Senator Baldwin to Secretary Chao
2/27/2017 Letter from Senator Markey to Secretary Chao
3/30/2017 Letter from Senator Nelson to Secretary Chao
Question 16. Will you commit to promptly responding to all letters
from members of this Committee?
Answer. One of the things I came to appreciate from my prior public
service was the importance of DOT officials having good communication
and working relationships with the members of Congress, and I would
certainly regard that as an important part of my job if I am confirmed
to serve again at DOT.
GM Product Liability. In response to Question 8 of my prehearing
questions, you noted that you represented General Motors ``In numerous
cases, but not in recent years.'' One of these cases was Bishop v.
General Motors Corporation (E.D. Ok. 1994). In that case, it appears
that you argued for a protective order that would have enjoined the
taking of a videotaped deposition of a former GM employee, Ronald
Ewell, based on his employment agreement in a case involving the
failure of seatbelts and door latches used in GM vehicles.
Question 17. Do you believe that these types of employment
agreements should remain valid and enforceable in cases where
government regulators, such as NHTSA, are investigating defects and in
civil lawsuits alleging defects?
Answer. My recollection is that Mr. Elwell, a disgruntled former
employee of GM who had previously expressed support for GM's product
design, was permitted to testify in some cases, and his inconsistent
testimony was impeached. It is also my recollection that NHTSA had
previously had an opportunity to interview Mr. Elwell. I do not recall
all the specifics of the Bishop litigation, which was more than twenty
years ago. In terms of whose testimony should be permitted and under
what circumstances in legal proceedings, my view then and now has been
that judges should make those decisions in accordance with the
applicable law.
Question 18. In addition to that case, please list any other
product liability cases in which you have served as counsel to General
Motors (please include caption, venue, date, and summary of case and
disposition).
Answer. Please see my response to question 8 of Senator Nelson's
Pre-Hearing Questions. Because it has been more than a decade--before
2004--since I last appeared in court as counsel for General Motors, I
do not remember all such cases. One example would be: Khan v. General
Motors Corp., No. 30509 97 (Sup. Ct. N.Y. 1990), where the defendant GM
won a defense jury verdict against allegations of design defects in
seats and seat belts of all Oldsmobile Cutlass Cieras.
Congressional Review of High-Impact Regulations. In a September 2,
2010, opinion article in the Atlanta Journal-Constitution titled,
``Costly Federal Regulations Escape Congressional Review,'' you stated
that a ``procedural change where Congress would have to vote to approve
high-impact regulations could restore a system of checks and balances
to Federal regulation.''
Question 19. Is it your current position that the Department of
Transportation should not issue any ``high-impact'' safety regulations
without express Congressional approval?
Answer. No. My point in the article was that Congress should have a
role in major Federal regulation that impacts the economy, not that
Federal agencies should not regulate where needed.
Prepared Remarks. On your Commerce Committee Questionnaire, you
were asked to list speeches that you have given on topics relevant to
the position for which you have been nominated.
Question 20. Please provide a copy of prepared remarks or a
transcript, video, or audio of delivered remarks for the following
events:
a. Heritage Foundation's Regulatory Working Group on ``OMB's
Regulatory Review Process'' (April 19, 2007)
b. Heritage Foundation Program on ``Helping or Hurting Consumers?
Destroying Federal Preemption One Industry at a Time'' (Aug. 5,
2009)
c. U.S. Chamber of Commerce program on ``Restoring Balance to the
Regulatory Process'' (March 22, 2011)
d. George Mason University program ``Regulatory Boot Camp for Policy
Advisors'' on ``Reform--The Path Forward'' (April 1, 2015)
e. U.S. Chamber of Commerce's Joint Fall Meeting on ``Regulation:
Who Decides?'' (Dec. 9, 2015)
Answer. Some of these were informal remarks for which I have not
located a transcript or video, such as items a and e. The Heritage
Foundation program from August 5, 2009 was available online at http://
origin.heritage.org/multimedia/video/2009/08/hurting-or-helping-
consumers--destroying-federal-preemption; the George Mason program from
April 1, 2015 was available online at https://www.merca
tus.org/video/regulatory-bootcamp-panel-iii-reform-path-forward-1; and
my slides from the March 22, 2011 U.S. Chamber program will be
provided.
______
Response to Written Questions Submitted by Hon. Amy Klobuchar to
Jeffrey A. Rosen
Question 1. Aviation safety must remain a priority for the
Department. The first item on the National Transportation Safety
Board's list of ``most wanted'' safety improvements this year is
reducing fatigue related crashes. In the coming weeks I plan to
reintroduce the Safe Skies Act, which I worked on with Senator Boxer
for many years. This commonsense bill would take the rest requirements
put into place for passenger pilots after the tragic crash of Colgan
Flight 3407 and apply them to cargo pilots who--despite using the same
runways and airspace as passenger pilots--currently have looser rest
requirements. Do you believe that Department of Transportation
regulations can be an effective means of reducing fatigue-related
crashes?
Answer. Safety is and will remain a top priority for the Federal
Aviation Administration (FAA) and the Department. DOT has several
regulations in place that address the hours worked by pilots, truck
drivers, and locomotive engineers, for example. If I am confirmed, I
will look to receive updates from DOT's operating administrations about
the effectiveness of those rules.
Question 2. For the last five-decades, traffic fatalities on our
roads had been declining. However, data recently released by the
National Highway Traffic Safety Administration (NHTSA) show that from
2014 to 2015 there was a seven percent increase in traffic fatalities.
We know that distractions behind the wheel played a part in this rise.
I included a provision in the FAST Act to help more states qualify for
Federal grants to fight distracted driving. Do you agree that the
Department of Transportation has an important role in educating drivers
about the dangers of distracted driving?
Answer. Yes. My understanding is that driver distraction remains a
serious safety problem. I have seen some of the campaign materials
being used by NHTSA to educate drivers about the dangers of using
electronic devices while driving. If confirmed, I would support
dissemination of such materials and look for other opportunities to
raise awareness of the risks of distracted driving.
Question 3. One of FAA's most successful government-industry
partnership programs is the Contract Tower Program, which provides
proven, cost-effective and critical air traffic control safety benefits
to 253 smaller airports across the country, including two in Minnesota.
This program, is a good deal for taxpayers, helps rural communities and
supports military readiness and national security operations. Will you
work with me to support small airports through initiatives like the
Contract Tower Program?
Answer. I think that trying to ensure access to small airports in
rural communities and elsewhere is an important topic, and, if
confirmed, I would look forward to working with you in this regard.
Question 4. As I travel around my state, I hear concerns from
communities that say they do not have the capacity to prepare for and
respond to an event like a derailment and hazardous material spill. I
pushed to include provisions in the FAST Act to help local governments
plan for and respond to rail incidents. Are you committed to working
with state and local governments to help them prepare for derailments?
Answer. Yes. My understanding is that the Department works closely
with state and local governments on any major accident or train
derailment. The Pipeline and Hazardous Materials Safety Administration
(PHMSA) provides relevant training to local responders and grants to
state governments. If confirmed, I would look forward to working with
DOT's modal administrations and others with regard to these programs.
Question 5. Blocked rail crossings not only inconvenience drivers,
they delay emergency vehicles and threaten public safety. I have heard
firsthand from local leaders and emergency responders across Minnesota
about the inconvenience and dangerous delays blocked rail crossing can
cause. A provision I fought to include in the FAST Act helps improve
safety at rail-highway crossings by ensuring that states have access to
tools and best practices to mitigate the safety risks posed by blocked
rail crossings. Will you ensure the Department of Transportation
continues to assist states as they develop and update highway-rail
grade crossing action plans?
Answer. Yes, if confirmed I will ensure that DOT continues to
assist states as they develop and update their highway-rail grade
crossing action plans. I am told that DOT has already provided states
with guidance and models to assist them in this endeavor, and if
confirmed I would look forward to receiving further updates about this
topic.
______
Response to Written Questions Submitted by Hon. Richard Blumenthal to
Jeffrey A. Rosen
Question 1. The President has discussed a one-trillion dollar
infrastructure program to rebuild the country's roads and
transportation network. Details, however, are faint, with little more
offered so far but proposals for corporate tax breaks and giveaways
that somehow foster private-sector investment. Even these proposals,
however, would only focus on revenue-generating projects--not
necessarily ones that really need attention. Tax breaks are an
insufficient way to rebuild roads, highways, and rail.
Do you agree that tax breaks are an insufficient way to
rebuild our transportation network?
Can you provide more details on the President's plan?
When will it release more details?
Where will passenger rail fit among the administration's
priorities?
Answer. I believe that all modes of transportation will need to be
considered in the Administration's infrastructure program. I have not
yet been a participant in the Administration's discussions about
prospective infrastructure legislation. My understanding is that the
details of the Administration's infrastructure plan are still being
developed and that more details will emerge in the coming months. If I
am confirmed, I hope to participate in the development of the
President's proposal, and would look forward to working with the
Committee on the transportation elements of it.
Question 2. The Department of Transportation is involved in the
life of nearly every American, as we all depend on safe roads, rails,
pipelines and air--and the safe movement of goods. Do you agree the
Department of Transportation must be strong and proactive in putting
forward rules and regulations to protect us all?
Answer. I agree that the Department of Transportation plays an
essential role in ensuring the safety of our Nation's transportation
system. Indeed, as Secretary Chao has emphasized, safety is the number
one priority for the Department. If confirmed, I will work with
Secretary Chao to ensure that the Department uses sound, data-driven
approaches to developing and implementing regulations that protect our
people and support, rather than stifle, continuing technological
innovations that enhance transportation safety.
Question 3. Perhaps the biggest aviation issue that Congress will
address this year is whether to spin off our air-traffic control
services and transfer their control from the FAA to a private entity
that would have outsized influence from airlines. I have many concerns
about privatizing our country's air traffic control system, especially
the negative impact it could have on consumers. During your testimony,
you mentioned that you have yet to form a conclusion on this.
What is your time-frame for developing a position on this
issue?
To what extent will you value consumer protection in your
analysis?
Answer. As Secretary Chao indicated in her responses to Committee
members following her nomination hearing, there will be a thorough
Administration review of issues regarding air traffic control
modernization, including the impact on consumers. If confirmed, I would
hope to assist the Secretary in the extensive evaluation the details of
this proposal would entail, and I would ensure that the concerns you
raise are thoughtfully considered.
Question 4. We've seen many disasters on our rail network in recent
years. A significant number of these disasters have happened on Metro-
North Railroad, affecting my constituents.
What lessons have you learned from these disasters?
What's the first thing you'll do to improve rail safety?
Do you believe this is an example where the Federal
Government should require action?
Answer. First and foremost, safety is the highest priority. But
before coming to any conclusion about individual accidents, if I am
confirmed I would first request to be informed of the post-accident
findings of the NTSB or state accident investigations. Depending on the
results, I would consult with safety experts within DOT to determine if
Federal action was warranted and could be effective.
Question 5. There's one function that's uniquely housed within the
Secretary's office--the Office of Aviation Enforcement and Proceedings,
including its Aviation Consumer Protection Division, which focuses on
consumer issues. Under current law, consumers and states lack a private
right of action regarding unfair, deceptive, and anti-competitive
practices against airlines. Consumers' only recourse is to file a
complaint with DOT, hope DOT pursues the matter through administrative
remedies and civil fines. These remedies--like cease and desist
orders--can be weak, and fines (which are negotiated) can be weak as
well. For example, in 2015 DOT levied $2.7 million in fines against an
industry with nearly $169 billion in annual revenue. And that's just
for unfair consumer practices. The situation is worse for persons with
disabilities trying to assert their rights to be accommodated when
flying. Only DOT can assert their claims and receive damages.
In 2014, passengers filed 772 disability-related complaints with
DOT about airlines. But the U.S. Department of Transportation does
little with these individual complaints, taking real action only when
there are ``a number of complaints'' against one airline, as DOT wrote
one disabled passenger. Even then enforcement is rare. For example, in
2015, there were no enforcement orders against any airlines. In 2014,
there was just one.
Would you agree the current framework is a giveaway to the
airlines with a long-running, unintended effect that protects
airlines from regulation and vigorous oversight?
Wouldn't allowing a private right of action--in addition to
continuing to allow DOT enforcement efforts--make real,
structural changes to how airlines operate and interact with
the public?
Answer. I worked with this Office when I was General Counsel at
DOT, and I believe it had a strong and effective track record at that
time. I have been told that more recently, in 2016, this Office issued
29 consent orders assessing almost $6.4 million in civil penalties
against airlines and ticket agents for violations of Federal laws
protecting the economic and civil rights of air travelers. Five of
these orders, assessing approximately $2.8 million in penalties, were
for violations of the rule protecting the rights of passengers with a
disability. I recognize that this overall topic is an important issue
and would be pleased to work with the Committee on any proposal that
might better protect air travel consumers, particularly passengers with
disabilities.
Question 6. Nearly 4,000 people are killed in truck accidents each
year, and 97 percent of those are drivers or passengers in a passenger
car. What will be your approach toward ending the scourge of deaths
from trucks on our highways?
Answer. Every fatality on our Nation's roadways is a tragedy, and I
share your concern with recent increases in crashes of large trucks. As
Secretary Chao has emphasized, safety is the number one priority for
the Department of Transportation. If confirmed, I would expect to
coordinate with the Federal Motor Carrier Safety Administration (FMCSA)
and review our data resources to identify safety concerns, leverage
technology, advance programs that address non-compliant motor carriers
and drivers, and work towards reducing unsafe driving behaviors in all
driving populations. This would involve working closely with States and
other stakeholders to develop strategies to reduce crashes.
Question 7. Surveys of truck drivers show many are fatigued and
many often fall asleep at the wheel--endangering us all. They need
rest. How will you address fatigue?
Answer. As Secretary Chao has emphasized, safety is the number one
priority for the Department of Transportation. If confirmed, I would
work with the Federal Motor Carrier Safety Administration (FMCSA) and
the truck and bus industries to develop effective strategies to address
fatigue. As I understand it, FMCSA has regulations that address this
issue. But in addition to those, there may be strategies that would
involve a combination of using technology where it makes sense and
promoting best practices, such as working with the industry to
implement non-regulatory fatigue management programs.
Question 8. Will you fight to ensure that trucks are not allowed to
get longer and heavier?
Answer. My understanding is that Congressional action would be
required to change the Federal truck size and weight limits. Federal
weight limits currently apply only to the Interstate System, and size
limits apply to the National Network. There are States, however, that
legally permit higher vehicle weights off their Interstates. Given the
impact of higher weights on roadway infrastructure, this is an issue
that appears to have attracted the interest of several Members of the
Committee, and if confirmed, I will plan to receive additional
information about it. If confirmed, I will work to ensure that DOT
faithfully executes the law and works collaboratively with States with
the goal of having trucks operate legally and safely on the Nation's
highway system
Question 9. Ten years ago, national safety advocates first urged
DOT to mandate the installation of speed-limiting devices on large
truck to prevent them from traveling at dangerous speeds on U.S. roads
and highways. Trucking industry representatives joined this call,
recognizing the dramatic savings in lives and dollars that would come
from such a mandate. In August, after years of analysis, DOT put
forward a proposed rule that would carry out this vision, mandating
speed limiters on any vehicle heavier than 26,000 pounds, including
commercial trucks, intercity passenger buses, and school buses. The
faster large vehicles travel, the deadlier they can become. Large
vehicles already take longer to stop than smaller passenger vehicles.
And just a small increase in speed leads to an exponentially large
increase in kinetic energy, which can cause far greater damage and
destruction in a crash--especially to those traveling nearby in much
smaller, lighter passenger vehicles. Crashes involving large vehicles
kill around 4,000 people each year and injure more than 100,000.
Speeding has been identified as a possible factor in as many as 23
percent of these crashes. A vehicle with a functioning speed limiter is
only half as likely to be involved in a crash as a vehicle without an
operating device. DOT put forward a proposed rule in August will save
hundreds of lives and prevent thousands of injuries. A strong, sensible
rule will save millions of dollars and will respond to strong public
sentiment that wants speeding trucks to simply slow down. It will
ensure that no trucking company creates an uneven playing field,
tolerating speeding while competitors comply with the law. It will
ensure that large vehicles are going no faster than their tires and
other parts were designed to handle. Do I have your commitment to
completing this rule?
Answer. If confirmed, I will work with the FMCSA and others within
DOT to assess the status of the proposed rule and review the best
available data, including public comments and information, to inform
the appropriate next steps.
Question 10. Last month, Congress passed the Water Infrastructure
Improvements for the Nation (WIIN) Act, a $10 billion bill that makes
major investments in the country's water infrastructure. The bill
largely focused on the Army Corps of Engineers--outside the purview of
DOT. But DOT has tremendous oversight of our country's maritime
economy, freight, and ports and the WIIN Act shows that bipartisan
action and investment is possible. What is your plan to improve the
economic viability of our country's ports, especially the three ports
that we have in Connecticut?
Answer. If confirmed, I would expect to work with Secretary Chao to
ensure that our country's ports, inland, Great Lakes, and coastal, and
their unique concerns and capabilities, are considered in discussions
of infrastructure development, such as the National Multimodal Freight
Network. I also expect that, with Secretary's Chao's direction, the
Department would work with the Connecticut Port Authority to ensure
that the State's ports work together on issues like marketing and
economic development, and potential access to capital.
Question 11. In 2012, Congress passed the Motorcoach Enhanced
Safety Act of 2012 as part of MAP-21, a major surface transportation
reauthorization bill. The law requires a number of efforts to improve
motorcoach safety. These efforts were mandated in the aftermath of
several horrific incidents. One provision requires improvements in the
roof strength and crush resistance of large, intercity buses--aka
motorcoaches. Another requires improvements to prevent passengers from
being ejected through windows. These mandates were all due by October
2014, but they still remain unmet. Will you ensure that the basic
motorcoach safety regulations required by MAP-21 that are still
outstanding are issued promptly without any further delay?
Answer. If confirmed, I will work with others in the Department to
implement the requirements of MAP-21. If there are difficulties with
doing so, I would expect DOT to communicate with Congress about that,
if I am confirmed.
Question 12. The use of smart phones has proliferated in recent
years and led to an alarming increase in incidents of distracted
driving. What steps will you take to prevent distracted driving and the
dangers it can cause on our roads?
Answer. I am aware that NHTSA is pursuing educational, law
enforcement and technology-based strategies to address the problem of
distracted driving. If I am confirmed, I will work with NHTSA to ensure
that the agency is exploring all options to reduce this problem.
Question 13. Thousands of pedestrians are killed every year and
tens of thousands of pedestrians are injured.
What steps will you take to end pedestrian deaths and
injuries?
Will you support safety standards for the hood and bumper
areas of motor vehicles in order to reduce the severity of
injuries suffered by pedestrians and bicyclists that frequently
result in death and lifelong disabilities?
Answer. If confirmed, I will work with the DOT modal
administrations, stakeholders, and the public to explore options to
advance the safety of pedestrians and vulnerable road users.
Question 14. The North American Free Trade Agreement (NAFTA) opened
opportunities for trucking companies domiciled in Mexico to operate
within the United States. The Department of Transportation undertook a
pilot program allowing certain Mexico-domiciled carriers to operate in
the U.S. and concluded such carriers could operate safely in this
country. The DOT Inspector General, however, found that the pilot
program was flawed and produced unreliable results. How will you
address the concerns raised by the Inspector General?
Answer. If confirmed, I would work with FMCSA to ensure continued
monitoring of the safety of these carriers and ensure that appropriate
action is taken should safety concerns arise. If I am confirmed, I will
plan to review the IG Report and consult further as warranted.
Question 15. Will you oppose allowing Mexico-domiciled trucks to
operate in the U.S.?
Answer. The North American Free Trade Agreement (NAFTA) requires
that the U.S. allow the operation of Mexico-domiciled trucks into the
U.S. under some conditions, unless those provisions are changed during
future discussions about NAFTA. If confirmed, I would expect to work
with the Federal Motor Carrier Safety Administration to ensure
compliance with all applicable laws, and to avoid any transportation by
carriers not in compliance with U.S. safety requirements.
Question 16. Many states--including Connecticut--provide workers
with mandatory meal and rest breaks. These laws have existed for nearly
a century in some states and are critical for all kinds of workers,
protecting them from workplace fatigue and related accidents, injury
and death. These laws also apply to commercial truck drivers, with some
exemptions. Federal courts have ruled these laws are not pre-empted by
Federal law. Some seek to pre-empt these meal and rest break laws so as
to maximize the workday of truck drivers. If this happens, there would
be fewer opportunities and incentives for truck drivers to rest. Are
you concerned about these efforts?
Answer. I have been told that the preemptive effect of Federal law
in this area has been the subject of litigation in recent years. From
DOT's perspective, it has been important for commercial drivers to be
able to take appropriate breaks during the course of their work in the
interest of safety. I am sensitive to the concerns that have been
raised about the preemption of State law in this area and look forward
to engaging with the States, members of industry, and other
stakeholders to examine their viewpoints on this issue and work toward
a solution.
Question 17. Will you defend these important safety laws?
Answer. Although it is not the role of the Department of
Transportation to defend these State laws, if I am confirmed, I am
amenable to an open-minded review of the arguments for and against
them.
Question 18. About 10,000 people die each year because of alcohol-
impaired driving. This annual figure has remained steady for two
decades. As we consider ways to eliminate preventable deaths, we must
examine changes to the laws around alcohol impaired driving. Do you
support efforts to highlight the message that driving under the
influence of alcohol at any level is impairing?
Answer. Yes.
Question 19. Do you agree that all NHTSA recalls are safety
recalls, address an unreasonable risk to safety, and should be promptly
repaired?
Answer. My understanding is that NHTSA has recall authority over
safety-related defects and non-compliances with Federal safety
standards. The Motor Vehicle Safety Act of 1966, as amended, provides
specifics as to what is or is not required. It is important that any
safety issues are addressed.
Question 20. One pressing safety issue for children involved in
crashes is that even when properly secured in a child restraint,
failure of a front seatback in a crash may put back seat passengers--
especially infants and children--at serious risk of injury or even
death. According to a child rear impact study commissioned by the
Center for Auto Safety, approximately 50 children placed behind
occupied seats die annually in rear impact incidents. If confirmed,
will you upgrade the safety standard for seatback performance to better
protect back seat passengers?
Answer. If I am confirmed, I will work with NHTSA, stakeholders,
and the public to review current safety standards and assess their
effectiveness or suggested changes.
Question 21. Nearly 1 in 5 vehicles on our Nation's roads have
unrepaired safety defects. In 2015, nearly 900 million vehicle recalls
involving 51 million vehicles were issued, eclipsing the previous
record set in 2014. Accordingly, millions of vehicles on our Nation's
roads and highways have critical safety defects that have not been
repaired. If confirmed, what specific actions will you direct NHTSA to
take to increase the recall completion rate and reduce the number of
cars with open safety recalls from our Nation's roads?
Answer. Safety should be the top priority. If confirmed, I would
confer with NHTSA about ways to engage the automobile industry and the
public to find new ways to increase recall completion rates.
Question 22. While new car dealers are required to repair safety
recalls before selling vehicles with open recalls, there is no
requirement that used car dealers fix any outstanding safety defects
before selling a used car. Do you agree that used car dealers should
not be allowed to sell used vehicles with unrepaired safety defects?
Answer. If I am confirmed, I would expect to work with NHTSA to
help ensure the Department is doing those things within its authority
to ensure that recalls are addressed as required.
Question 23. The Department of Justice recently charged six VW
executives in its emissions-cheating scandal, and announced that the
company has pled guilty to three criminal felony counts and agreed to
pay a total of $4.3 billion in criminal and civil penalties. In
contrast, GM was not charged and was only ordered to pay a mere $900
million in penalties for an ignition switch defect that has been tied
to at least 124 deaths. Neither GM nor any of its executives faced any
criminal charges despite accusations of misleading safety regulators
and delaying potentially lifesaving decisions. Families who lost loved
ones as a result of the GM ignition switch defect deserve an explicit
acknowledgment of criminal wrongdoing, individual criminal
accountability, as well as a larger monetary penalty. Do you agree that
automakers and their executives that conceal a dangerous product for
over a decade and that kills 124 people should face criminal penalties?
Answer. GM was represented in that litigation by Kirkland & Ellis
LLP, my former employer. Paragraph 4 of my agency ethics agreement has
restrictions with regard to certain matters in which I know my former
employer represents a party. As a more general matter, the Department
of Justice ultimately makes the determination of whether to pursue
criminal penalties and when to settle a criminal case.
Question 24. I am concerned about the unnecessary use of hazardous
flame retardant chemicals, which have been linked to serious health
effects and environmental harms. Children are especially vulnerable to
the toxic effects of these chemicals since their brains and bodies are
still developing. Most children's car seats contain these dangerous
chemicals in order to comply with for flammability standards for
vehicles and children's car seats set by NHTSA. NHTSA recently
initiated a two-year research program on flammability standards,
including those for children's car seats. If confirmed, will you
support this research and work to update the Federal Motor Vehicle
Safety Standards to eliminate the unnecessary exposure to toxic flame
retardant chemicals from children's car seats?
Answer. I am supportive of DOT's two-year research efforts on this
topic. If confirmed, I would look to work with NHTSA, stakeholders, and
the public to review the safety standards and ensure any appropriate
amendments are supported by the latest data and research.
Question 25. In September 2016, NHTSA issued the Federal Automated
Vehicle Policy, updating its previously issued 2013 guidance on
autonomous vehicles (AV). These guidelines are not mandatory. In May of
2016, a Tesla Model S equipped with Tesla Autopilot crashed, raising
questions as to the performance of the vehicle's technology and whether
it caused or contributed to the crash.
It's been reported that several auto manufacturers including Tesla,
Ford, BMW, and Volvo are promising to have fully autonomous cars on the
roads within five years. The next Deputy Secretary of Transportation
will play a critical role as we enter a new period of advanced
automated technologies in transportation.
Do you have any concerns that voluntary guidelines may be
insufficient to protect the American public from unreasonable risk of
crashes involving AVs during the testing and deployment of this
technology?
Answer. Please see my remarks and responses at the nomination
hearing on March 29, 2017. I think this is an important subject, and if
confirmed, I will look forward to receiving briefings on this complex
subject, in order to help assess and determine where Federal policy
should go on this.
Question 26. Should DOT require manufacturers of AVs to perform a
minimum level of due diligence testing and analysis to ensure that AVs
work safely and properly before they are tested on public roads or sold
to consumers?
Answer. See response above.
Question 27. If confirmed, will you commit to instituting an
effective regulatory framework for automated vehicle technology,
including automatic emergency braking systems currently being sold
without any performance guarantee for consumers that provides a level
playing field for developers and manufacturers and insures public
safety?
Answer. See response above.
Question 28. It has been reported that Takata, the airbag supplier
responsible for the unprecedented recall affecting 42 million vehicles
in the United States, is actively soliciting new investors and
contemplating bankruptcy or similarly major restructuring in order to
keep factories running and manufacturing replacement airbag. Do you
agree that any restructuring of Takata should occur on terms that
accelerate the availability of replacement parts, end the dangerous use
of ammonium nitrate as an airbag propellant, and help the overall
recall effort?
Answer. Please see response to Nelson question 10 above.
Question 29. The Jones Act prohibits any foreign-built or foreign-
flagged vessel from engaging in trade between two U.S. ports. Only U.S.
ships can go from U.S. port to other U.S. ports. This law, which has
been around for decades, is a critical measure that protects the U.S.
domestic maritime industry. What can you say about the importance of
the Jones Act and the need to have a strong U.S.-flagged fleet?
Answer. The Jones Act is designed to provide our country with a
strong U.S. Flag fleet that engages in trade between our U.S. Ports and
is available to meet national security requirements. Like the
Secretary, I support a strong U.S.-flagged fleet. If confirmed, I will
look for ways to help increase opportunities to increase the number of
American merchant mariners and ships to serve our country's economic
needs and to meet our defense sealift requirements.
Question 30. Will you commit to supporting an American maritime
industry that provides American economic, military, and homeland
security?
Answer. If confirmed, I will look for ways to help strengthen the
maritime industry, including ports and intermodal connectors,
shipbuilding, and the number American merchant mariners and ships
needed to serve our country's economic, national and homeland security
needs.
Question 31. The Department's current occupant crash protection
standards require vehicles to include warning labels informing
consumers stating: ``The BACK SEAT is the SAFEST place for children.''
However, we understand that the seat back failure risk can be mitigated
by placing children behind unoccupied front seats, such as the empty
middle seat, for which there is no front seat, or behind the lighter
front seat occupant. Consumers are currently not advised that the
middle seat may be the safest. In the meantime, ensuring consumers have
this critical information could be a good and commonsense first step.
Do you believe consumers should have the most accurate and up-to-date
information regarding the safest seat and position for children?
Answer. Providing information to consumers can be an important aid
to safety. If I am confirmed, I would expect to work with NHTSA,
stakeholders, and the public to continue efforts to better inform
consumers regarding safety for children.
Question 32. Major airlines have taken actions to prohibit third-
party travel websites from accessing published fare, schedule, and seat
availability data. We believe consumers should be able to make apples-
to-apples comparisons among fares and flights and select the best price
and itinerary for themselves.
Promoting access to transparent pricing information is not only
good for consumers, it is also good for competition in the airline
industry.
Do you think it is important for airline consumers to have
access to information they need to make informed purchasing
decisions?
If confirmed, will you use take action to ensure that
airline consumers have access to comprehensive, transparent
flight information?
Answer. The issue of airline restrictions on the distribution or
display of airline flight information on third-party travel websites is
an important and complex issue with far-reaching implications for
consumers, airlines, ticket agents, and the various participants in the
distribution chain. I am aware of arguments that transparency is not
only good for consumers but also good for competition in the airline
industry, and I am aware of arguments that airlines should be able to
choose how and where they sell their products so long as they don't
engage in an unfair or deceptive practice. This is an area about which,
if confirmed, I would want the Department to consult with experts
within and outside of the DOT to ensure the appropriate balance of
conflicting interests in whatever decisions are made.
Question 33. NHTSA plays a critical role in overseeing recalls and
making sure they proceed expeditiously, and is responsible for
overseeing the largest and most complex safety recall in U.S. history--
the Takata airbag recall. The Takata airbag defect has resulted in 11
deaths and over 180 injuries in the United States, to date, and the
largest civil penalty in NHTSA's history. Test data released by NHTSA
reveal that certain vehicles with these defective Takata airbags show
rupture rates as high as 50 percent in a crash. If confirmed, what will
you do to accelerate the replacement of these dangerous defective
devices?
Answer. Please see response to Nelson question 10 above.
Question 34. In 2005, while you were serving as General Counsel for
the Department of Transportation, NHTSA proposed a rule aimed at
strengthening the agency's safety standard on roof crush resistance, to
better protect passengers in rollovers. Tucked in that proposal, as you
know, was language stating that the proposal ``would preempt all
conflicting State common law requirements, including rules of tort
law.'' As DOT's General Counsel, you defended this language.
Prior to becoming General Counsel, you were a senior partner at
Kirkland & Ellis, where you defended GM in numerous product liability
lawsuits and also represented the Alliance of Automobile Manufacturers.
Are you able to affirm unequivocally that you were not at all
influenced by your prior roles representing GM and the Alliance of
Automobile Manufacturers, in your defense of this state preemption
provision?
Answer. The factual premises of this question are mistaken. Among
other things, my recollection is that the determination to include the
preemption language in that rule was made by NHTSA, and not by me.
Question 35. More generally, while previously at DOT, my client was
the United States, and I implemented the law faithfully and brought my
entire energy and attention to serving what I regarded as the best
interests of the American people. What was the purpose of including
this language in a proposed update to the Federal Motor Vehicle Safety
Standards?
Answer. Please see response to previous question.
Question 36. Do you believe there are areas of transportation-
related law in which states currently have too much authority and in
which Federal law should preempt such state authority? If so, please
list these areas of law.
Answer. Federal preemption of state law is a complicated question,
premised on the Supremacy Clause of the U.S. Constitution, and it often
depends on the language used in Congressional enactments. Whole books
have been written on this topic. Some of my views on this topic are
included in an op-ed I published in the Washington Post in 2009, which
was identified in my response to question 16 of the Commerce Committee
questionnaire that I submitted on March 21, 2017.
Question 37. The pre-emption language in the 2005 proposed rule on
roof crush resistance greatly impinged on State court authority and
State's rights. Do you believe that this was an appropriate position
for a Federal agency to adopt and an appropriate legal action for
Federal regulators rather than Federal courts to decide?
Answer. The premises of the question appear to be mistaken. In all
events, the question of Federal preemption continues to be one for
courts to decide, as the Supreme Court has sometimes indicated that it
finds agency views helpful, but it remains for the courts to determine
what the law is and how it applies.
Question 38. Do you intend to pursue this line of pre-emption
analysis in future rules issued by NHTSA and other DOT modal
administrations if you are confirmed as Deputy DOT Secretary?
Answer. Please see response to Nelson question 13 above.
Question 39. The final rule for roof crush resistance, issued under
the Obama administration, stated: ``Implied Preemption. We have
reconsidered the tentative position presented in the NPRM. We do not
foresee any potential State tort requirements that might conflict with
today's final rule. Without any conflict, there could not be any
implied preemption.'' Do you agree with this reasoning presented in the
roof crush resistance final rule? Please answer Yes or No.
Answer. The language quoted in this question is conclusory, and
does not set out a factual analysis of the circumstances at issue, so a
yes or no response would be misleading and inappropriate. I am
confident that such a response is not intended by the question.
Question 40. In January, the President issued a government-wide
hiring freeze. This hiring freeze allows agencies to exempt from the
hiring freeze any positions that an agency deems necessary to meet
national security or public safety responsibilities. NHTSA's explicit,
core statutory mission is to ``reduce traffic accidents and deaths and
injuries resulting from traffic accidents.'' As such, the agency
clearly qualifies under the public safety exemption articulated in the
memorandum. In fact, Congress explicitly authorized increased funds for
NHTSA's public safety mission in the FAST Act. Do you agree? Please
answer Yes or No.
Answer. As I was not at DOT at that time and have not been involved
in applying the Presidential Memorandum Regarding the Hiring Civilian
Freeze, I am not able to speak directly to whether any particular DOT
positions meet the exemptions for national security or public safety
responsibilities. If confirmed, I will work with other DOT officials to
apply the Presidential Memorandum and supplemental OMB and OPM Guidance
to ensure that NHTSA and all of DOT is able to accomplish its vital
safety mission.
Question 41. Do you agree that it is critical that roles in this
office should be filled? Please answer Yes or No.
Answer. See response above.
Question 42. Mr. Rosen, you have written extensively on your
distaste for regulations. One article you wrote argued for a
``regulatory budget'' for Federal agencies and you have previously
testified in support of anti-regulatory legislation. NHTSA regulations,
including the Federal Motor Vehicle Safety Standards, provide enormous
lifesaving public benefits.
Please list all NHTSA regulations that you would rescind.
Answer. The premises of this question are mistaken. As I wrote in
an article published last year, most will agree that ``there is a need
for some regulation and that there can also be excessive regulation . .
.'' The concept of a regulatory budget is one with bipartisan origins,
and its earliest Senate sponsor was Senator Lloyd Bentsen, who became a
Democratic nominee for Vice-President (and later served in President
Clinton's Cabinet). With regard to recent legislation, I have testified
in support of the bipartisan Regulatory Accountability Act of 2013; in
the Senate, that was a bipartisan bill (S. 1029) sponsored by
Republican Senators Portman, Collins, Ayotte, Johanns, and Cornyn, and
Democratic Senators Nelson, Pryor, Manchin, and King. As General
Counsel, I facilitated key regulations, and I have favored improvements
to the process that will most effectively produce beneficial outcomes.
Question 43. In a letter dated March 16, 2017, from you to Judith
S. Kaleta at the U.S. Department of Transportation, you write the
following: ``I understand that the interests of the following persons
are imputed to me'' and you mention ``any spouse or minor child of
mine.'' Are the interests of your adult children imputed to you?
Answer. The letter referenced is my agency ethics agreement,
developed in consultation with the Office of Government Ethics, which
has been provided to the Committee. Its terms speak for themselves.
Question 44. Are the interests of Donald Trump's adult children
imputed to him?
Answer. That was not a topic of my consultations with the Office of
Government Ethics, and is not within the purview of the Department of
Transportation.
Question 45. The U.S. Department of Transportation disburses tens
of billions of dollars every year for transportation-related
construction and maintenance projects. Is it appropriate for President
Trump, his immediate family, or business interests controlled by him or
his immediate family to be the recipients of Federal funds?
Answer. This question seems to assume a hypothetical question for
which no actual facts or evidence have been presented, so there is no
basis for a response.
Question 46. What steps will you take to ensure that President
Trump, his immediate family, and business interests controlled by him
or his immediate family do not receive direct financial benefit from
decisions you would make at the Department of Transportation?
Answer. See response above.
Question 47. In a letter dated March 16, 2017, from you to Judith
S. Kaleta at the U.S. Department of Transportation, you write the
following: ``I will not participate personally and substantially in any
particular matter that to my knowledge has a direct and predictable
effect on the financial interest of the entity until I have divested
it'' unless given a waiver or you qualify for an exemption. Did you
agree to divest certain assets in order to be considered and confirmed
for the position for which you were nominated?
Answer. The letter referenced is my agency ethics agreement,
developed in consultation with the Office of Government Ethics, which
has been provided to the Committee. Its terms speak for themselves.
Question 48. Has President Trump made such a commitment in relation
to the office he holds?
Answer. This is not a question properly directed to the Department
of Transportation. Indeed, it is my understanding that the laws
applicable to agency officials are in many instances different than
those applicable to the President, who along with the Vice-President,
are the only members of the Executive Branch elected by the American
people.
Question 49. On March 17, 2017, President Trump released a document
entitled ``Budget Blueprint to Make America Great Again.'' Are you
familiar with this document?
Answer. I was not a public employee on March 17, 2017, but I have
become aware that the Office of Management and Budget has published
that document.
Question 50. Have you read it?
Answer. With regard to each of these questions, please refer to my
oral remarks and testimony at the Committee's hearing on March 29,
2017, which addressed these topics.
Question 51. In the document, President Trump writes the following:
``One of the most important ways the Federal Government sets priorities
is through the Budget of the United States.'' Do you agree with this
statement?
Answer. With regard to each of these questions, please refer to my
oral remarks and testimony at the Committee's hearing on March 29,
2017, which addressed these topics.
Question 52. The budget document further states: ``The Budget
request reflects a streamlined DOT that is focused on performing vital
Federal safety oversight functions and investing in nationally and
regionally significant transportation infrastructure projects.'' Do you
agree with this statement?
Answer. With regard to each of these questions, please refer to my
oral remarks and testimony at the Committee's hearing on March 29,
2017, which addressed these topics.
Question 53. The budget document proposes the elimination of
funding for the TIGER discretionary grant program, eliminating $499
million in resources to rebuild our Nation's infrastructure. If
confirmed, is this a priority you will support?
Answer. With regard to each of these questions, please refer to my
oral remarks and testimony at the Committee's hearing on March 29,
2017, which addressed these topics.
Question 54. If you oppose this priority, have you conveyed your
concerns to the administration? If so, how?
Answer. With regard to each of these questions, please refer to my
oral remarks and testimony at the Committee's hearing on March 29,
2017, which addressed these topics.
Question 55. Do you support construction of a wall along the
southern U.S. border with Mexico, as described by President Trump
throughout the campaign and in subsequent documents, including proposed
budget documents?
Answer. This question appears to relate to matters that would fall
within the responsibility of the Office of Management and Budget or the
Department of Homeland Security, and not the Department of
Transportation.
Question 56. How much will this wall cost?
Answer. This question appears to relate to matters that would fall
within the responsibility of the Office of Management and Budget or the
Department of Homeland Security, and not the Department of
Transportation.
Question 57. Which is more important, the construction of a border
wall or rebuilding our country's infrastructure?
Answer. This question appears to relate to matters that would fall
within the responsibility of the Office of Management and Budget or the
Department of Homeland Security. With regard to the President's
priorities, I know of no reason why the President cannot have multiple
priorities.
Question 58. President Trump spoke often on the campaign trail
regarding the need to upgrade America's transportation infrastructure,
but we have heard little from the President since he entered office
regarding his transportation priorities.
Have you had conversations with President Trump regarding
his transportation priorities?
Have you had conversations with any officials from the Trump
administration regarding President Trump's transportation
priorities?
Have you been asked directly by President Trump or any
member of the Trump administration about your level of support
for any policy matters? If so, what matters?
Have you been asked directly by President Trump or any
member of the Trump administration about your level of
opposition for any policy matters? If so, what matters?
Answer. During the process that preceded my nomination, I had
discussions with Administration officials about transportation and my
transportation experience and credentials, as I have now done with
several members of the Commerce Committee. When not yet in the
Administration, I was not a participant in OMB's release of the so-
called ``skinny budget'', though I would hope to participate in future
budget deliberations as they concern DOT.
Question 59. Do you consider yourself knowledgeable of the Federal
budget? Have you written articles on this subject in widely distributed
publications, like The Washington Post, The Baltimore Sun and The Hill?
In 2011, did you author an article in the newspaper The Hill entitled
``Obama's spending ideas unbalanced''? In that article, did you voice
support for the reduction in Federal spending by $6 trillion over a
decade? A reduction in Federal spending at that amount is equal to $600
billion per year over a decade. What programs do you believe should
receive a reduction in spending or elimination to achieve such cuts?
Answer. In the articles that you referenced, I set out my views on
several budget topics. The articles set out the analyses that I did at
the time, and I have not conducted additional analysis to augment them
at this time.
Question 60. In 2016, did you author an article in the publication
National Affairs entitled ``Putting Regulators on a Budget''?
In that article, did you write the following: ``There is now
an extraordinary number of regulations on the books. Today the
Code of Federal Regulations is 175,268 pages in 236 volumes, up
from approximately 141,000 pages in 206 volumes back in 2001.
(In 1975, it was 71,224 pages in 133 volumes, so it has roughly
doubled in the last 40 years.) According to estimates prepared
at the Mercatus Center at George Mason University, just to read
today's 236 volumes of the Code of Federal Regulations would
take an individual person nearly three full years, if that is
the only thing he did full-time.''?
If there is an ``extraordinary number of regulations on the
books,'' what would an ``ordinary number'' of regulations be?
What regulations do you propose eliminating to achieve such
number?
Is page length an appropriate method of judging the value of
administrative policy?
Do many of the pages you mention concern mundane matters?
In the article referenced above, did you write the
following: ``By now, it is almost cliche to mention how much
new red tape is being issued each year. Each new round of major
Federal legislation, such as the Affordable Care Act of 2010,
the Dodd-Frank Wall Street Reform and Consumer Protection Act
of 2010, and the Food Safety Modernization Act of 2011, provide
agency regulators with new authority to issue more new
regulations, and the current administration has discerned novel
ways to issue once-unthinkable new rules under old laws like
the Clean Air Act of 1970.''?
Please list the ``once-unthinkable new rules'' that were
issued under the last administration.
In the article referenced above, did you write the
following: ``With regard to the setting of budget allocations
and caps, it is important that the budget caps apply to costs--
not to benefits--just as with the fiscal budget. When Congress
appropriates fiscal expenditures, the budget puts a cap only on
the cost. One of the main considerations in budgeting is that
resources are finite and not unlimited, regardless of how many
good and legitimate potential uses might exist for the money.
Choices have to be made among them.''?
Does this quote concern the concept that regulations should
be prohibited if they impose a cost above a certain threshold--
or ``cap''?
What should the value of the ``cap'' be, in your opinion?
In 2005, did you state the following in Congressional
testimony: ``As General Counsel, I have overall supervision of
the entire regulatory process, including reviewing and making
recommendations to the Secretary on all significant rules. In
addition, we have weekly regulatory review meetings with the
Deputy Secretary and the Secretary's Chief of Staff. Each week,
we meet with a different operating administration usually
including the agency Administrator. At those meetings, we
discuss every rulemaking action on the operating
administration's agenda. The discussions generally cover the
need for the rulemaking, our priorities, and our progress in
meeting schedules for each project; these meetings often
involve discussions among the senior DOT officials present on
important substantive issues. These regulatory review meetings
played an important role in the Department's decisions during
the last five years to terminate or withdraw almost 180
potential rulemakings that were deemed unnecessary or
unproductive, and a similarly important role in ensuring that
useful and necessary rules were issued in a timely way.''?
Please list the ``180 potential rulemakings that were deemed
unnecessary or unproductive.''
Please list the ``useful and necessary rules'' that moved
forward.
Answer. In 2016, I authored an article in the publication National
Affairs entitled ``Putting Regulators on a Budget''. It is available
online at http://www.national
affairs.com/publications/detail/putting-regulators-on-a-budget, so its
contents are ready available for reading. With regard to a regulatory
cost ``cap'', it would function much like fiscal budget caps do. It
would not preclude any individual regulation or regulations, but would
require prioritization such that new costs fall within the ``cap'' or
that offsets are located to reduce costs elsewhere. The reasons for
doing that are set out in that article, and an earlier law review
article that I published entitled ``The Regulatory Budget Revisited'',
66 Admin.L.Rev. 835 (Fall 2014).
With regard to DOT in 2005, I do not have the list of potential
rulemakings that the Department deemed unproductive, though it may be
contained in my testimony from that time period. However, with regard
to rules that were deemed useful and necessary and were moved forward,
those can be located in the Federal Register between December 2003 and
June 2006. They include numerous significant safety rules, as well as
significant rules addressing other matters as well. As I said at the
nomination hearing on March 29, 2017, DOT issued numerous significant
safety rules when I was the General Counsel there.
Question 61. Is it appropriate for a senior administration official
to work on policy matters that directly impact the official's former
clients? Does it present an appearance of impropriety for a senior
administration official to work on policy matters that directly impact
the official's former clients? Do you agree to voluntarily recuse
yourself from any matters involving former clients, beyond those that
may be required by law, in order to avoid the appearance of
impropriety?
Please list all individuals, entities and concerns for whom you
have provided legal services since returning to private practice in
2009.
Answer. Federal rules determine what is and what is not appropriate
in this context. Please refer to my Commerce Committee questionnaire
responses, my responses to the 57 Pre-Hearing Questions for the Record,
and my remarks and responses at the nomination hearing on March 29,
2017, which address this topic--including my responses to Senator
Blumenthal at the hearing.
With regard to my clients from private practice, the information
required by the Office of Government Ethics is publicly available on my
OGE 278 Financial Disclosure Form, and supplemental information was
provided in my responses to the 57 Pre-Hearing Questions for the
Record. Beyond that, where I have handled litigation it is a matter of
public record, and other matters would involve client confidentiality.
The Office of Government Ethics has completed its review of my
nomination, along with DOT's Designated Agency Ethics Official. As I
have said repeatedly, I will adhere to the terms set forth in my agency
ethics agreement, which has been provided to the Committee, and which
represents a very high standard of integrity for public officials.
Question 62. In materials you provided to the Committee, a
biography of you says that ``[s]ome illustrative clients for whom'' you
``handled significant matters'' include General Motors, Hyundai and the
U.S. Chamber of Commerce.
Is this statement correct?
Please list and describe the matters you handled for each of
these clients.
Beyond the ``illustrative clients'' mentioned above, what
other clients have you ``handled matters'' for since your
return to private practice in 2009?
Answer. Please see my responses to questions 7-13 of the Pre-
Hearing Questions for the Record from Senator Nelson and my response to
question 1 of the Pre-Hearing Questions for the Record from Senator
Schatz.
Question 63. In a letter dated March 16, 2017, from you to Judith
S. Kaleta at the U.S. Department of Transportation, you write the
following: ``I will not participate personally and substantially in any
particular matter involving specific parties in which I know a former
client of mine is a party or represents a party, for a period of one
year after I last provided service to that client'' unless provided
appropriate waiver.
Please list each party covered under this prohibition.
Please list the date you last provided legal services to
each client.
Answer. This question refers to my agency ethics agreement, which
has been provided to the Committee. However, because the quoted
provision refers to future events that have not yet occurred, and
instead states a principle to be applied if such events occur, at this
point in time I have no idea whether such circumstances would ever
occur.
Question 64. In a letter dated March 16, 2017, from you to Judith
S. Kaleta at the U.S. Department of Transportation, you write the
following: ``I will not participate personally and substantially in any
particular matter involving specific parties in which I know Kirkland &
Ellis is a party or represents a party for a period of one year from
the date of my resignation'' unless provided appropriate waiver.
Please list each party covered under this prohibition.
Please provide the date this prohibition ends.
Answer. Please see previous response above.
Question 65. In a letter dated March 16, 2017, from you to Judith
S. Kaleta at the U.S. Department of Transportation, you write the
following: ``I understand that as an appointee I will be required to
sign the Ethics Pledge (Exec. Order no. 13770) and that I will be bound
by the requirements and restrictions therein in addition to the
commitments I have made in this ethics agreement.''
Please describe the obligation this executive order places
on any work you conduct as a department official.
Please list each party covered under the prohibitions in the
executive order pertinent to your service.
Please list each regulation and contract covered under this
prohibition, as mentioned in the executive order.
Answer. President Trump's Executive Order 13770 regarding ``Ethics
Commitments by Executive Branch Employees'' is available at 82 Fed.Reg.
9333 (Jan.28, 2017). Its provisions describe what will be required.
Question 66. Do you believe in climate change? Please answer yes or
no. Do you believe that human activity is driving that change? Please
answer yes or no.
Answer. Please see response to Nelson question 14 above.
Question 67. In your testimony before the Senate Commerce
Committee, you indicated that you would provide great deference to the
president's positions as a member of his administration. President
Trump has called climate change a ``hoax'' and has taken steps to
rollback climate change initiatives and slash funding for critical
research.
Do reject the notion that climate change is a ``hoax''?
Do you support the president's proposal to eliminate funding
for climate change initiatives?
Do you support the president's decision to weaken greenhouse
gas emissions and fuel efficiency standards for cars and
trucks?
In a 2013 piece for The Hill, did you write that ``at a
minimum'' senators should ask ``the EPA nominee to commit the
agency to using sound science''?
If confirmed, will you commit to using sound science on
climate change to guide the Department's efforts?
Answer. Please see response to Nelson question 14 above. As I have
noted in numerous contexts, I am in favor of using empirical data and
sound science.
Question 68. A New York Times piece in 2008 provides an account an
incident in which you, as General Counsel of the Office of Management
and Budget, ``asked three times for separate memorandums describing why
carbon dioxide molecules emitted from vehicles (already likely to be
subject to regulation) could not be distinguished from CO2
molecules emitted from power-plant smokestacks (whose regulation was
opposed by powerful segment of the industry and administration.''
Is this account correct?
Do you believe there is a difference between carbon dioxide
molecules emitted from vehicles and carbon dioxide molecules
emitted from smoke stacks?
Answer. Ordinarily, when I was General Counsel at OMB, much of the
work I did and the advice I gave was privileged, and I generally
refrain from discussing it in detail. Nor would I see it as
inappropriate for a lawyer to ask questions to obtain information
needed to advise policymakers about legal questions. However, with
regard to the account in the media report you reference, I will say the
following:
Any such account was inaccurate, and no journalist asked me
about it at the time. It was a very considerable time after its
publication that I even learned of such a report in the media.
(I am unaware of it appearing in the NY Times.) However, this
mistaken account was apparently included in the letter that
Senator Blumenthal entered in the record on March 29, 2017.
Carbon dioxide is a naturally occurring chemical compound made
up of a carbon atom covalently double bonded to two oxygen
atoms. I did not ask about such molecules being different nor
did I ask for three memoranda as to whether that is so.
Question 69. In 2010, did you author an article in the Atlanta
Journal-Constitution and The Baltimore Sun entitled, ``Costly Federal
regulations escape Congressional approval''?
In this article, did you attribute a cost of $10 billion to
rail safety technology known as positive train control?
What is the source of the $10 billion figure?
Does positive train control provide benefits?
Is it true that the National Transportation Safety Board has
said this technology could have saved over 300 lives?
Did you handle any matters related to positive train control
during your previous work in the Federal Government? If so,
please describe.
Do you believe there should be regulations from FRA
implementing the Congressional mandate governing PTC?
What is the current PTC deadline?
What railroads does it apply to?
Will you enforce the PTC deadline?
Will railroads be penalized for failure to meet the
deadline?
What will those penalties be?
Answer. My recollection is that DOT issued a rule on Positive Train
Control when I was General Counsel in 2005. My view on PTC is that the
law should be implemented, unless or until it is changed.
Question 70. In both Republican and Democratic administrations
we've seen the problem of ``regulatory capture.'' This happens when an
industry ``captures'' its regulator, exercising undue influence on the
regulator's efforts. It occurs when an agency becomes so familiar and
chummy with the industry that it regulates that it begins to advocate
for the industry's best interests and its bottom line--not the public's
interest. This phenomenon has been demonstrated in various agencies at
the U.S. Department of Transportation.
Have you represented auto manufacturers, railroads and
airlines?
Would your service present a problem of regulatory capture?
How can we be assured you're driven not by your past
clients' interests, but by the safety of the traveling public?
Answer. No, my service would not represent regulatory capture. As
Supreme Court Justice Rehnquist once wrote in another context about
judges, ``Proof that a Justice's mind at the time he joined the Court
was a complete tabula rasa in the area of constitutional adjudication
would be evidence of lack of qualification, not lack of bias.'' Laird
v. Tatum 409 U.S. 824 (1972) Having knowledge about the transportation
sector is a qualification, regardless of whether a lawyer has in the
past represented transportation companies or their critics. I have a
record of integrity and professionalism. Moreover, in terms of
regulatory expertise, I was elected the Chair of the American Bar
Association Section of Administrative Law, which is a group with a
strong interest in Federal agencies, and composed of lawyers from a
wide variety of perspectives including agency lawyers as well as
scholars, private practitioners, and judges, among others.
Question 71. In 2009, did you write in the Boston Globe the
following: ``Take, for example, the administration's recent actions to
impose Davis-Bacon wage requirements on a wide range of stimulus
projects, which will ensure higher-than-market wage rates for a few,
and increase costs for all taxpayers.''?
Do you support the law known commonly as Davis-Bacon?
Should Davis-Bacon apply to new Federal infrastructure
projects?
Answer. If confirmed, I expect to support the President's position
with respect to the Davis-Bacon law.
______
Response to Written Questions Submitted by Hon. Brian Schatz to
Jeffrey A. Rosen
Question 1. Your response to section B.6. of your Commerce
Committee Questionnaire does not provide any clarity into your activity
during the past 10 years in which you have engaged for the purpose of
directly or indirectly influencing the passage, defeat, or modification
of any legislation or regulation affecting the administration and
execution of law or public policy. This includes providing legal,
policy, or political services. Please provide a thorough answer. Please
provide a thorough response.
Answer. I am unclear in what sense my response to section B.6. does
not provide clarity. I am not a lobbyist. My career as a lawyer has
primarily been as a litigator, and also as a counselor.
My questionnaire responses also identify occasions when, as a
private citizen on my own behalf, I accepted Congressional requests to
testify before committees of Congress about legislation in 2011 and
2013.
I assume the request is not meant to address when I served
previously at DOT and OMB, during which time I of course worked in an
Administration that administered the law and public policy. Likewise,
as indicated in my questionnaire responses, in my personal capacity I
have served as a Public Member of the Administrative Conference of the
United States, where I have participated in plenary sessions devoted to
ACUS recommendations on the improvements in public administration. And
in my private capacity I have served as an officer of the American Bar
Association Section of Administrative Law, which is an organization
that sometimes suggests improvements to the law.
In the same way, my questionnaire responses also indicate that I
have provided advice or assistance to Congress on occasion in my
personal capacity, not for clients, but I have no inventory of such
occasions.
Question 2. During Senator Fischer's questioning, she indicated
that you have been in contact with her office on numerous regulatory
issues across DOT agencies, including FMCSA while working at Kirkland &
Ellis, LLP. What were you advising her on? Who was the client that you
were representing?
Answer. I was not representing any client. And I did not do so on
behalf of Kirkland & Ellis LLP. I was contacted by Senator Fischer's
staff as a well-known and recognized authority on regulatory topics, to
provide insights from my experiences in government.
Question 3. What is your relationship with the U.S. Chamber of
Commerce? Will you recuse yourself from U.S. DOT matters involving the
U.S. Chamber of Commerce?
Answer. I currently have no business relationship with the U.S.
Chamber of Commerce. My agency ethics agreement, which has been
provided to the Committee, addresses the circumstances in which I will
recuse myself.
Question 4. In 2009, the U.S. Chamber of Commerce called for a
trial on the science of climate change. What was your role in this
trial? What arguments was the Chamber attempting to make, and do you
believe they still stand today?
Answer. I cannot speak for the U.S. Chamber on this topic. Nor am I
aware of such a trial taking place.
Question 5. What is your relationship with the National Federation
of Independent Business? Will you recuse yourself from U.S. DOT matters
involving the National Federation of Independent Business?
Answer. I currently have no business relationship with the National
Federation of Independent Business. My agency ethics agreement, which
has been provided to the Committee, addresses the circumstances in
which I will recuse myself.
Question 6. In private practice, your clients have included
Airlines for America, General Motors, and Hyundai. Will you recuse
yourself from U.S. DOT matters involving Airlines for America, GM,
Hyundai, and other previous clients?
Answer. Please see my agency ethics agreement, which has been
provided to the Committee, and which addresses the circumstances in
which I will recuse myself. I have a consistent record of integrity and
professionalism, and will continue to conduct myself accordingly.
Please also see response to Blumenthal question 61 above. As indicated
previously, to the best of my recollection and available records, I
have not appeared as counsel for General Motors or Hyundai since before
2004, and have not appeared for counsel for Airlines for America since
2013.
Question 7. Have you engaged in conversations with private
companies about vehicle standards?
Answer. I am unclear about what is being asked, but will assume
that ``vehicle standards'' is meant to reference CAFE vehicle fuel
economy standards. When I was at DOT during 2003-2006, my recollection
is that DOT issued at least two CAFE regulations during that timeframe.
My recollection is that we received information from companies (and
others) about the CAFE fuel economy standards. I do not recall having
such discussions in recent years.
Question 8. Have you engaged in conversations with foreign
companies about vehicle standards?
Answer. Please see response above.
Question 9. How quickly should an automaker address safety or
emissions defects and what should the penalties be?
Answer. In my view, automakers (and others) should comply with the
law.
Question 10. Do you believe the U.S. auto industry is competitive
on an international scale?
Answer. I have seen media accounts from this year reporting on
automakers announcing plans to invest in the United States in the
coming years.
Question 11. How would you describe the health of the U.S.
automotive industry?
Answer. I understand that the industry has reported that U.S. auto
sales totaled nearly 17.5 million new vehicles in 2016. However, I am
not currently familiar with what the returns on investment have been
for U.S. manufacturers.
Question 12. Do you feel the government should regulate vehicle
emissions?
Answer. Yes.
Question 13. Transportation uses over 70 percent of the oil we
consume in the U.S. Therefore the key to reducing oil consumption is to
reduce the amount of oil needed to drive our vehicles. What are your
thoughts on the vehicle fuel efficiency standards that are currently in
place?
Answer. I am aware that Congress enacted the Energy Security Act in
2007 and the Energy Policy Conservations Act of 1975. It is my view
that unless Congress changes the law, it should be followed.
Question 14. How important is it that consumers save money at the
gas pump?
Answer. In a free market, that is for the consumer to decide. But
consumers often prefer to save money.
Question 15. Is it the responsibility of government to support
consumers' health or cost savings over the life of owning or leasing a
vehicle?
Answer. In developing public policy, government officials should
consider all relevant factors applicable to a particular issue or
problem.
Question 16. In your view, does the Clean Air Act allow for
regulation of greenhouse gases?
Answer. The U.S. Supreme Court decided this question in
Massachusetts v. EPA, 549 U.S. 497 (2007), and in UARG v. EPA, 573 U.S.
(2014).
Question 17. Does the U.S. DOT have the authority to regulate
greenhouse gases?
Answer. The U.S. DOT's statutory authority for regulating fuel
consumption in vehicles is set forth in the Energy Conservation Policy
Act of 1975 and the Energy Security Act of 2007, so DOT's authority is
defined in those statutes. However, there is a direct correlation
between fuel consumption and vehicle greenhouse gas emissions, and my
understanding is that manufacturers reduce emissions by reducing fuel
consumption. The U.S. Supreme Court has said: ``EPA has been charged
with protecting the public's ``health'' and ``welfare,'' 42 U.S. C.
Sec. 7521(a)(1), a statutory obligation wholly independent of DOT's
mandate to promote energy efficiency. See Energy Policy and
Conservation Act, Sec. 2(5), 89 Stat. 874, 42 U.S. C. Sec. 6201(5). The
two obligations may overlap, but there is no reason to think the two
agencies cannot both administer their obligations and yet avoid
inconsistency.'' Massachusetts v. EPA, 549 U.S. 497 (2007).
Question 18. Does FHWA have the authority to regulate greenhouse
gases under Title 23 of the U.S. Code?
Answer. Historically, the Federal Aid Highway Program has been a
grant program, not a regulatory program. Under MAP-21, Congress
directed FHWA to establish a performance management program to add that
to the Federal Aid Highway Program, and provide a means to the most
efficient investment of Federal transportation funds. I am not
currently aware of the full extent of FHWA's authority in this regard,
and if I am confirmed, will need to consult with FHWA and DOT's General
Counsel as to such authority.
Question 19. In your view, can the automotive industry self-
regulate in dealing with issues of consumer safety? Pollution?
Answer. There are times when industry participants can take steps
on their own to improve safety and/or reduce pollution. In other cases,
government action may be warranted.
Question 20. Do you support California's right to set emission
standards that exceed the Federal Government's standards?
Answer. That question is addressed in Federal statutes, and I am in
favor of adhering to the law.
Question 21. Do you think it is in the best interest of the
automakers or the U.S. economy to have higher standards in California
and a dozen other states, while having lower standards in the rest of
the country?
Answer. There would be obvious challenges and drawbacks to having
varied standards in different states, with Federal rules some places
and State rules others. But I would want to have more information
before rendering any opinion on this topic.
Question 22. Do you support EPA Administrator Pruitt's withdrawal
of the Final Determination of the Mid-Term Evaluation of Greenhouse Gas
Emissions Standards for Model Year 2022-2025 Light Duty Vehicles?
Answer. I have not read EPA's announcement. If I am confirmed, and
this were to fall within my responsibilities, I would plan to obtain
additional briefing from NHTSA or others.
Question 23. What would it take for you to agree to leave the
existing fuel efficiency standards in place for model years 2022 to
2025?
Answer. As a nominee, it would not be appropriate for me to
prejudge the Mid-Year Review. My general view is that the agencies
should adhere to the law (unless it is changed by Congress) and apply
it to the factual circumstances.
Question 24. In an op-ed published on March 20, EPA Administrator
Pruitt argued that fuel economy standards are pushing jobs out of the
country. Do you agree?
Answer. I have not read that op-ed, so have no comment on it.
Question 25. What types of investments, if any, do you feel the
U.S. DOT should be making to set and enforce vehicle emission
standards?
Answer. My understanding from my past service at DOT was that DOT,
at both NHTSA and the Volpe Center, has had a sizable and experienced
staff who have worked on CAFE fuel economy standards going as far back
to the 1970s. I am not currently familiar with how DOT and EPA have
coordinated in recent years, and if confirmed, would look to gain a
better understanding of that.
Question 26. More than 40,000 people died in car crashes last year.
Many of these deaths are preventable. What are your plans to reverse
the upward trend of roadway fatalities in the next two years?
Answer. The upward trend in fatalities is troubling. I would like
to see additional analysis of the available data from FARS and other
statistical databases. If confirmed, I will plan to receive a briefing
on this fundamental issue. Until I am fully briefed on the matter and
have access to the considerable expertise at NHTSA and other DOT
components, it would be premature to plan specific actions.
Question 27. How do you believe vehicle standards should protect
consumers?
Answer. In the Motor Vehicle Safety Act of 1966, as amended,
Congress has set forth statutory criteria for the protection of vehicle
occupants from unreasonable risk.
Question 28. The U.S. DOT has delayed the implementation of a
safety performance measure rule that would improve the state of good
repair for our roads and bridges (Pavement and Bridge Condition
Performance Measures Final Rule). Do you feel it is in the best
interest of the American public's safety and well-being for the Federal
Government to restrict information on how many roads and bridges are in
poor or even unsafe conditions? As a former general counsel for the
U.S. DOT, what do you believe is holding up the implementation of this
important performance measure rule?
Answer. I do not know the answer to this question, but if confirmed
would look to FHWA for information about it. I was recently told that
the rules are being reviewed, and that FHWA is continuing to work with
its partners to ensure that any bridges found to be unsafe are
immediately closed to traffic or repaired, and that information on
pavement and bridge conditions is not being restricted.
Question 29. What regulations at the U.S. DOT do you support
removing or amending?
Answer. I have not made any determinations one way or another as
this question. As you know, the Department has a large number of
regulations across all modes of transportation, in multiple volumes of
the Code of Federal Regulations. If confirmed, before removing or
amending any of them, I would anticipate that DOT and its operating
administration would work with interested stakeholders and the public,
as well as relying on the expertise of the professional staff at the
Department, to ensure that the consequences are understood and that it
is prudent and appropriate to do so.
Question 30. Do you believe any categories of regulations should be
exempt from regulatory budgeting practices, such as President Trump's
one-in-two-out executive order on rules?
Answer. Yes. FAA airworthiness directives and airspace actions
would be one such category.
Question 31. In your view, is the American public better off with
more or less government regulations? What kinds of regulations do you
think are important to put in place in the context of the DOT?
Answer. For DOT, safety is and ought to be the top priority. Some
regulation is necessary and beneficial. It is also possible to have
poor regulations or excessive levels of costs. These should be assessed
in a factual, data-driven way with the use of sound science. With
regard to DOT, it will be important to assess what regulatory framework
should apply to new technologies, such as automated vehicles and UAVs.
Question 32. Do you believe that President Trump's one-in-two-out
executive order is legal? How would the U.S. DOT, an agency tasked with
protecting safety, choose which regulations to eliminate?
Answer. With regard to Executive Order 13771, ``Reducing Regulation
and Controlling Regulatory Costs'', I am not aware of any legal reason
that it cannot be implemented appropriately. It is a managerial tool
for prioritizing new regulations, and it creates an incentive to
identify existing regulations that no longer serve well. For DOT,
safety will remain the top priority. In terms of regulations that are
outdated, there are multiple tools to identify those, and if confirmed,
I would look forward to trying to make that process successful at
enhancing safety while doing so in the most cost-effective way.
Question 33. As OMB General Counsel, you advocated for all agency
regulations to go through political appointees. Do you still hold this
view?
Answer. This question is based on a mistaken premise. Executive
Order 12866 as issued by President Clinton in 1993 had already provided
for Regulatory Policy Officers in each agency, and those were non-
career appointees. When President Bush issued Executive Order 13422 in
2007, the provision on Regulatory Policy Officers made more transparent
what had already been in place since 1993. At that time, OMB published
on its website a roster of who the Regulatory Policy Officers were, by
name and department. I was disappointed that this transparency was not
continued in the Obama Administration, even though the regulatory
process continued to have non-career appointees responsible for the
approval of regulations.
Question 34. Should agencies be required to promulgate rules based
on the idea of least costly rulemaking or should they focus on
maximizing public health, safety, and environmental benefits?
Answer. Agencies should promulgate rules based on the requirements
set in the laws that delegate the authority to establish the
regulations, using the criteria establish in the law, that takes
account of both cost-effectiveness and obtaining maximum public health,
safety, and environmental benefits.
Question 35. How will you ensure that the U.S. DOT adequately
considers the benefits of new regulations establishing science-based
public health and safety protections, and not solely the costs?
Answer. See response above.
Question 36. Will you respect and uphold scientific integrity
policies at the U.S. DOT?
Answer. I support scientific integrity as a general principle, and
I believe in intellectual honesty. I am told that DOT has posted
several current policies on its website: DOT Scientific Integrity
Policy, the DOT Public Access Plan for the Results of Federally Funded
Scientific Research, and the DOT Implementation Plan for OMB
Statistical Policy Directive No. 1 (the ``Trust Directive''). If I am
confirmed, I will plan to review those in greater detail.
Question 37. What will you do to increase transparency at the U.S.
DOT?
Answer. I am told that there are significant initiatives underway
to make the DOT's programs and data much more accessible to the public
than in the past. If confirmed, I would expect to learn more about
these initiatives, to enable increased public access.
Question 38. Should the Highway Trust Fund be eligible to reimburse
construction or maintenance projects that do not pay directly into the
fund (e.g., transit, biking or walking)?
Answer. The Highway Trust Fund plays a critical role in funding a
large portion of the Department's surface transportation programs.
States often makes the point that they prefer flexibility. If
confirmed, I would hope to work with Secretary Chao to examine all
aspects of the Department's budget, including the Highway Trust Fund
programs, to ensure that funding is appropriately allocated and
supports our Nation's most pressing transportation and transportation
safety needs. Please also see response to question 16 of Senator
Booker's Pre-Hearing Questions for the Record.
Question 39. TIGER and the FTA Capital Investment Grant (CIG)
programs are two of the most cost effective programs at the DOT. Do you
agree that these programs are effective? If so, should we be expanding
them?
Answer. If confirmed, I look forward to working on an
infrastructure initiative that incorporates the best aspects of our
current transportation programs, incorporates new and bold ideas, and
ensures the most effective investment in our Nation's transportation
systems. As a nominee, it is premature for me to say what the
President's infrastructure proposal will include or not include. Please
also see responses to Blumenthal question 53 and Booker question 8, and
response to question 2 of Senator Klobuchar's Pre-Hearing Questions for
the Record.
Question 40. Do you support the proposed cuts to TIGER and public
transit included in the FY 2018 budget blueprint?
Answer. Please see my remarks and responses at the nomination
hearing on March 29, 2017, and the response to the previous questions
above.
Question 41. In your opinion, taking into account your prior role
as a general counsel for U.S. DOT, if a transit project currently
receiving funding through the CIG program were to amend its FFGA with
FTA, would this remove the project from receiving funds under the FY
2018 budget blueprint's transit funding ban? In this instance, we are
assuming that FTA would approve the FFGA amendment.
Answer. If confirmed, I would ensure that any existing FFGA's are
managed consistent with current law and regulations. The President's
Budget Blueprint does propose not to execute new FFGA's during FY 2018,
and I would expect that FTA would examine the specific circumstances
regarding any proposed amendment for existing FFGAs.
Question 42. If the FY2018 budget blueprint were enacted, how do
you recommend that transit agencies cover the long-standing Federal
investment in capital projects?
Answer. Because I was not yet at DOT nor a participant in the OMB
budget process, I am not yet in a position to address this question. If
confirmed, I would hope to participate in the budget process going
forward. If confirmed, I would also hope to be involved in the
development of the President's new infrastructure proposal.
Question 43. What are your views on reforming the air traffic
control system?
Answer. There seems to be wide agreement on the need to modernize
the FAA's air traffic control technologies, often referenced as
NextGen. There is not always agreement on how to accomplish that goal.
As Secretary Chao indicated in her responses to Committee members
following her nomination hearing, there will be a thorough
Administration review of Federal Aviation Administration (FAA) reform
proposals. If confirmed, I would hope to assist the Secretary in the
extensive evaluation the details of any reform proposal.
Question 44. Did you support Chairman Shuster's air traffic control
proposal from the 114th Congress?
Answer. I did not have occasion to take a position one way or
another, and did not do so.
Question 45. If the air traffic control system is spun off to a
private organization, what stakeholders should be represented on the
board?
Answer. Your question addresses one of the significant issues
involved in this concept. As Secretary Chao indicated in her responses
to Committee members following her nomination hearing, there will be a
thorough Administration review of these issues, including the
composition of the board and mechanisms to ensure all stakeholders are
represented.
Question 46. In your view, how do you think the privatized air
traffic control system should be paid for?
Answer. This question also addresses one of the significant issues
involved in this concept. As Secretary Chao indicated in her responses
to Committee members following her nomination hearing, there will be a
thorough Administration review of these issues, including funding for
the new organization.
Question 47. Should the Federal Government require recipients of
U.S. DOT funding to coordinate local land use and transportation
planning and decision-making?
Answer. In general, authority to plan land use and zoning rests
firmly with local governments, and they are responsible for determining
how to efficiently coordinate transportation investments to serve
developed and rural areas. Federal law requires States and Metropolitan
Planning Organizations receiving Federal dollars to consider in their
planning the consistency between planned transportation improvements
and State and local planned growth and economic development. If
confirmed, I will work to identify ways in which DOT can most
effectively coordinate with local and State governments in the
provision of infrastructure. Please also see response to question 18 of
Senator Booker's Pre-Hearing Questions for the Record.
______
Response to Written Questions Submitted by Hon. Edward Markey to
Jeffrey A. Rosen
Fuel Economy Standards. The fuel economy emissions standards that
President Obama put in place, after reaching agreement with the auto
industry, and building upon the 2007 law that I helped author is the
single biggest step the United States has taken to reduce our carbon
pollution. But at a time when we still import more than three million
barrels a day from OPEC, these fuel economy emissions standards are
also critical to our national security. They will save consumers
billions of dollars at the pump. But now the Trump Administration has
decided to make a U-turn on these important standards by reopening the
mid-term review at the Environmental Protection Agency.
Question 1. You mentioned in our meeting that you want to rely on
the best available data. Well, the EPA, the Department of
Transportation and the California Air Resources Board worked together
to compile roughly 1,000 pages of technical analysis as part of the
Technical Assessment Report for the midterm review. Would you
characterize that technical assessment report as the best available
data?
Answer. I stand by my interest in government using the best
available data. In considering any decision, if I am confirmed, I would
want DOT to have the best and most recently available data reasonably
available. To date, I have not read the July 2016 Technical Assessment
Report, but I assume it would be a useful source of data.
Question 2. That technical report showed that the 2022-2025
standards are both technically feasible and cost-effective. The
scientific work that was done for this technical report was done by the
agencies, based on data from the National Academies of Science, the
auto industry, and technical NGOs. The technical work is the best
available science. Do you plan to uphold this analysis if you are
confirmed?
Answer. If I am confirmed, I would expect that NHTSA would
carefully review and consider the data included in the Technical
Assessment Report.
Question 3. Do you agree with the conclusion that was reached by
the national academies, the DOT and the EPA in the 2012 rulemaking that
tear down studies are the gold standard for evaluating the cost of
different technologies?
Answer. I am in favor of using the best available information and
methodologies to inform all rulemaking processes when feasible and
practical. Because I have not to date read the Technical Assessment
Report, I am not yet in a position to comment on its specific
conclusions.
______
Response to Written Questions Submitted by Hon. Cory Booker to
Jeffrey A. Rosen
Question 1. Do you believe that climate change is real and is not a
hoax?
Answer. Please see response to Nelson question 14 above.
Question 2. Do you believe that man-made impacts such as more cars
on the road contribute to climate change?
Answer. Please see response to Nelson question 14 above.
Question 3. Do you think successful Federal policies such as CAFE
standards have a role in addressing the impacts of climate change?
Answer. With regard to CAFE fuel economy standards, those have been
required by Energy Security Act of 2007, and by the Energy Policy
Conservation Act of 1975, and unless Congress changes the law, DOT is
responsible for implementing it.
Question 4. Media reports indicate that while you were serving as
General Counsel at Office of Management and Budget, you asked the
Environmental Protection Agency for memos detailing why carbon dioxide
emitted from motor vehicles could not be distinguished from carbon
dioxide emitted from power plants. Can you explain the circumstances
behind this and why you requested these memos?
Answer. Please see response to Blumenthal question 68 above.
Question 5. Mr. Rosen, in your opinion, what are the benefits of
transit and passenger rail projects?
Answer. Transit and passenger rail are sometimes important
transportation options for many citizens that rely on these services
for their daily commuting needs, especially in many of our urban
centers where highway and road capacity is inadequate to meet the
demands of transportation and for citizens that do not have other
transportation options.
Question 6. Do you believe there are benefits from the TIGER grant
program?
Answer. Please see responses to Blumenthal question 53 and Schatz
questions 39 and 40, and response to question 2 of Senator Klobuchar's
Pre-Hearing Questions for the Record. There are benefits to having some
discretionary grant programs, of which DOT currently has several. If
confirmed, I would hope to participate in the planning of the
President's infrastructure proposal.
Question 7. If confirmed as Deputy Secretary, what role will you
have in the President's infrastructure plan and the development of
future budgets?
Answer. If confirmed, I would hope to and expect to participate in
the process that will be shaping the DOT aspects of the infrastructure
plan, but that role is not yet defined at this time.
Question 8. Will you commit to advocating for funding for TIGER,
New Starts, and Amtrak?
Answer. Please refer to my oral remarks and testimony at the
Committee's hearing on March 29, 2017, which addressed these topics,
and my response to question 6 and 14 of Senator Booker's Pre-Hearing
Questions for the Record, and to Nelson question 13 above.
Question 9. Mr. Rosen, I know you served on the board of Amtrak.
What would the impacts be to our Nation's intercity passenger rail
system if President Trump's proposed cuts to long-distance train
services were realized? Will you support Amtrak's long-distance train
services?
Answer. Please see responses 22-26 to Senator Booker's Pre-Hearing
Questions for the Record, and the response to Nelson question 15 above.
Question 10. Mr. Rosen, FMCSA has promulgated a Final Rule on
Entry-Level Driver Training (ELDT) standards for commercial motor
vehicles published in the Federal Register on December 8, 2016, due to
begin implementation on February 6 of this year and has a compliance
date of February 7, 2020. The regulation was subject to a 60-day delay
by FMCSA subsequent to the President's January 20 Memorandum that
issued the regulatory freeze. While I understand it is not unusual for
an incoming administration to require time to review the pending
regulations, the Presidential Memo from January 20 explicitly stated
that any regulation required by statute or that is necessary for public
safety is exempted. Do you believe the Entry-Level Driver Training
Final Rule, which is both necessary for public safety and required by
law under MAP-21, should be exempted from the President's Memo?
Answer. As I was not at DOT at that time, I am not in a position to
address the specifics of this, but if I am confirmed, I will plan to
receive an update on its status, the requirements of MAP-21 regarding
this rule, and FMCSA's plans.
Question 11. The Obama Administration went to great lengths to
promote the use of technology in the transportation sector. From
working to remove regulatory barriers for UAS, to creating a Federal
automated vehicle policy, to implementing the Smart City Challenge,
technology and innovation were at the forefront of solving our most
pressing transportation and safety challenges. How do you plan to
harness new technologies at the DOT once you are confirmed?
Answer. Please see my response to question 11 of Senator Booker's
Pre-Hearing Questions for the Record.
Question 12. As you may know, the emergence of self-driving cars
holds great promise for many people who have traditionally been
disenfranchised. These autonomous vehicles can help provide greater
independence to older Americans and persons with disabilities,
providing them greater access to employment opportunities and health
care. Under your leadership, will DOT further explore the benefits of
autonomous cars for persons with disabilities?
Answer. In my view, autonomous vehicles have a tremendous potential
to provide benefits to a wide variety of Americans, including the
elderly and persons with disabilities. If the technologies are
successful, I would look forward, if confirmed, to working with
Secretary Chao and Congress to pursue these benefits and ways to safely
incorporate the technology into widespread use.
______
Response to Written Questions Submitted by Hon. Tom Udall to
Jeffrey A. Rosen
Question 1. More than 10,000 Americans are killed each year in
alcohol-impaired driving crashes. Drunk driving accounts for roughly a
third of all traffic fatalities. These deaths are preventable. That is
why I support high visibility law enforcement, ignition interlocks for
all offenders, and a promising R&D program to end drunk driving. The
Driver Alcohol Detection System for Safety (DADSS) is a public private
partnership that brings together automakers and the National Highway
Traffic Safety Administration (NHTSA) to develop lifesaving drunk-
driving prevention technology. As transportation secretary, will you
continue to support the DADSS initiative and other efforts to save
lives from drunk driving?
Answer. If confirmed, I would receive a full briefing from NHTSA
regarding the timing, technology, and funding of 'the Driver Alcohol
Detection System of Safety (DADSS). Any fatality or injury due to drunk
driving is tragic, and NHTSA must continue to work with the States to
educate drivers and enforce current laws.
Question 2. Given that the Highway Trust Fund has solvency issues,
what measures will this Administration take to ensure that adequate
funding is maintained in order for the Federal Government to meet the
continued need for infrastructure improvements?
Answer. Maintaining the solvency of the Highway Trust Fund is a
critical issue. If confirmed, I would expect to take a strong role in
examining future options for transportation investment as we develop
our Departmental budgets and the Administration's infrastructure
initiative. If confirmed, I look forward to working with Congress on
this issue.
Question 3. I am concerned your Administration's reported plans for
funding transportation infrastructure through tax credits for companies
and privatizing roads could result in American taxpayers paying twice.
Should states that turn existing public roads into private toll roads
be allowed to continue to receive Federal support for those roads, at
the expense of taxpayers in other states?
Answer. As Secretary Chao indicated in her response to the
Committee, tolling is but one tool in the toolbox for addressing
certain financing needs of various infrastructure projects. If I am
confirmed, I would intend to be briefed on all of the options available
for financing of infrastructure projects. What works for one State or
one project may not work for another, and so it would be inappropriate
to speculate or engage in broad generalizations.
Question 4. Under your Administration, will private companies be
allowed to charge tolls for a road that has already been paid for with
Federal money?
Answer. Congress has set explicit restrictions on the allowance of
tolling the existing federal-aid highway system. Should Congress decide
to pursue an expansion of tolling on existing roads already paid for
with Federal money, I would, if confirmed, look forward to
participating in those discussions.
Question 5. How will your Administration work to improve
infrastructure projects that private investors may be reluctant to
invest in, such as municipal water-systems or improvements to existing
bridges and roads where it may not be possible to charge tolls to
recover costs?
Answer. As I understand it, there are potential tools and
strategies that can encourage greater private sector investment in a
wide range of different infrastructure assets. Federal credit and
finance options can help make certain types of infrastructure
investment more attractive to the private sector. Leveraging other
sources of State and local funding, including the use of availability
payments, may also be a potential option for critical transportation
assets that do not generate direct revenue streams on their own. If
confirmed, I will work to identify the challenges to investment in
infrastructure and will seek effective options for advancing investment
opportunities.
Question 6. How will you approach the transportation needs for
those Americans living in rural areas?
Answer. Rural America is home to many of the Nation's most critical
infrastructure assets including 444,000 bridges, 2.98 million miles of
roadways, 30,500 miles of interstate highways. Local and regional
highway connections are vital to support the movement of energy and
agricultural products that rural economies depend upon. However, rural
local bridges continue to have the highest percentage of structural
deficiencies, 17.2 percent. Interstate bridges in rural areas had the
highest share of functionally obsolete bridges at 11.6 percent. If
confirmed, I will work with Secretary Chao to develop an approach that
will meet the needs of rural Americans both for personal transportation
and to bolster the rural economy.
Question 7. How should new Internet and communications technologies
be incorporated into our Nation's transportation infrastructure to
improve safety and performance?
Answer. Innovation holds much promise to improve the safety and
operational efficiency of our transportation infrastructure. Many of
these advances in intelligent transportation systems are the result of
efforts by the private sector and research communities. DOT has a long
history of partnering with these entities to explore how we can
maximize their effectiveness in the transportation sector. If
confirmed, I will work with Secretary Chao to promote an environment
that encourages technological innovations in transportation and the
ability to communicate operational conditions of our transportation
network in real time to save lives and make more efficient use of our
transportation infrastructure.
Question 8. What role do you envision railroads playing in
America's transportation infrastructure under your Administration?
Answer. Railroads play a critical role in our Nation's
transportation system and economy. If confirmed, I look forward to
working with Congress and the railroads to build on current investment
in rail infrastructure and identify options to most efficiently deliver
projects.
Question 9. Recent Federal and private investments at the Santa
Teresa, NM Port of Entry and surrounding areas have helped expand and
improve the efficiency of trade along the New Mexico-Chihuahua
international border. New Mexico has also led all U.S. states in goods
export percentage growth to Mexico. Will your Administration support
transportation policies to promote efficient trade along the border?
Answer. This is an important issue, and if I am confirmed, I would
look forward to working with you and the Committee to address it.
Question 10. President-elect Trump's infrastructure plan available
at https://www.donaldjtrump.com/policies/an-americas-infrastructure-
first-plan calls for ``reforms that streamline permitting and
approvals.'' What specific reforms will you pursue to the permitting
and approval process for transportation infrastructure such as bridges,
roads, pipelines, etc.?
Answer. My understanding is that the Department established its
Infrastructure Permitting Improvement Center (IPIC) as a central
resource for accelerating project delivery. IPIC oversees
implementation of permitting reforms including those from MAP-21 and
the FAST Act. These include synchronizing environmental reviews and
minimizing duplication, establishing programs to measure progress in
accelerating project delivery, and integrating geospatial and other
data tools with fiscal management systems to provide improved data and
greater transparency. IPIC coordinates with the Department's Operating
Administrations as well as with the Council on Environmental Quality,
the Federal Permitting Improvement Steering Council (established
through the FAST Act), and other Federal agencies through the
Transportation Rapid Response Team, in completing implementation of
many of these reform measures. The Department and Operating
Administration websites include more information on the results of
these actions. This is an ongoing effort, and if confirmed, I will look
forward to continuing to find ways to improve the efficiency of
permitting and approval processes in order to accelerate project
delivery while concurrently achieving good outcomes for communities and
the environment.
Question 11. What is your Administration's plan for improving the
aging and insufficient roads on tribal lands and how will DOT work with
these communities to see that their infrastructure needs are addressed?
Answer. As I understand it, the Administration is coordinating a
process to evaluate all of the various financing tools and
opportunities for a new infrastructure plan, including those projects
on tribal lands. As a nominee, I am not yet aware of where that stands,
but if I am confirmed I would hope to become a participant in the
process.
Question 12. President-elect Trump's infrastructure plan calls for
approving ``private sector energy infrastructure projects--including
pipelines and coal export facilities--to better connect American coal
and shale energy production with markets and consumers.'' In recent
years, a proposed coal export facility at Cherry Point, WA and pipeline
near the Standing Rock Indian Reservation faced opposition from local
Indian tribes. Will you assure me that the Department of Transportation
will consult with tribes on a government to government basis and uphold
the U.S. Government's treaty obligations?
Answer. As I understand it, section 106 of the National Historic
Preservation Act of 1966 (NHPA) generally requires that a Federal
agency should consult with any Indian tribe that attaches religious and
cultural significance to historic properties that may be affected by
the agency's undertakings. It is my understanding that DOT regularly
consults with American Indian tribes and incorporates their feedback in
both the Section 106 and NEPA documents.
Question 13. The DOT's Transportation and Climate Change
Clearinghouse (available at https://climate.dot.gov/about/index.html)
states that ``within the United States, transportation is the largest
source of greenhouse gas (GHG) emissions after electricity generation.
With scientific recognition that GHG emissions are contributing to a
long-term warming trend of the earth, there is an increasing
realization that transportation, as a significant contributor of GHGs,
plays an important role in climate change policy and program
decisions.'' How will DOT under your leadership work to address GHG
emissions and climate change issues?
Answer. Please see responses to Nelson question 15, Schatz question
25, and Booker question 3.
Question 14. Each major Federal agency has been graded at least
three times on their implementation of the Federal Information
Technology and Acquisition Reform Act of 2014 (FITARA, PL 113-291). The
House Oversight and Government Reform Committee with assistance from
the Government Accountability Office (GAO) issues a ``scorecard'' for
FITARA implementation. What grades has DOT received? How do you plan to
improve this grade?
Answer. I am told that DOT strongly supports the goals of FITARA
and has played a leading role among Government agencies in its
implementation. From what I was told, however, DOT has received two D
grades and an F+ on the FITARA scorecard. I am advised that the DOT CIO
Council is actively working to improve these grades. If I am confirmed,
it would be my intention to follow up on these activities to ensure
that DOT was making the necessary improvements.
Question 15. Describe the role of your department Chief Information
Officer (CIO) in the development and oversight of the IT budget for
your department. How is the CIO involved in the decision to make an IT
investment, determine its scope, oversee its contract, and oversee
continued operation and maintenance?
Answer. I am told that the CIO's oversight of the IT budget has
evolved and strengthened with the implementation of FITARA. In May
2016, the CIO signed the ``DOT IT Spend under FITARA'' memorandum with
the Assistant Secretary for Budget and Programs/Chief Financial Officer
(CFO) and the Assistant Secretary for Administration. If I am
confirmed, I would be pleased to arrange an update of this topic for
you.
Question 16. Describe the existing authorities, organizational
structure, and reporting relationship of the Chief Information Officer.
Note and explain any variance from that prescribed in the Federal
Information Technology and Acquisition Reform Act of 2014 (FITARA, PL
113-291) for the above.
Answer. Please see response above.
Question 17. What formal or informal mechanisms exist in your
department to ensure coordination and alignment within the CXO
community (i.e., the Chief Information Officer, the Chief Acquisition
Officer, the Chief Finance Officer, the Chief Human Capital Officer,
and so on)?
Answer. Please see response above.
Question 18. According to the Office of Personnel Management, 46
percent of the more than 80,000 Federal IT workers are 50 years of age
or older, and more than 10 percent are 60 or older. Just four percent
of the Federal IT workforce is under 30 years of age. Does your
department have such demographic imbalances? How is it addressing them?
Answer. I am told that the average age of the DOT IT workforce is
50.80 years. DOT's OCIO is working to develop OCIO IT professionals
through the Staff Training, Education, and Professional Development
(STEP) program. If I am confirmed, I would be pleased to arrange an
update on this topic for you.
Question 19. How much of the department's budget goes to
Demonstration, Modernization, and Enhancement of IT systems as opposed
to supporting existing and ongoing programs and infrastructure? How has
this changed in the last five years?
Answer. I have been told that over the past five years, DOT's
Development, Modernization, and Enhancement (DME) has made-up about 51
percent of the IT portfolio spending, or approximately $1.5B per year.
This represents modernization efforts across the Department, and FAA
projects make-up the largest percentage.
Question 20. What are the 10 highest priority IT investment
projects that are under development in your department? Of these, which
ones are being developed using an ``agile'' or incremental approach,
such as delivering working functionality in smaller increments and
completing initial deployment to end-users in short, six-month time
frames?
Answer. I am told that FAA investments accounted for 87 percent of
the DOT IT portfolio, and the requirements for developing and
maintaining 24/7 operational mission essential and safety critical
systems are very stringent and not necessarily candidates for agile
development. I am also aware that GAO also concurred on this assessment
as part of GAO 14-361 (3112890). As noted in the GAO Report, there are
high priority DOT investments that do not lend themselves to agile
development. Examples of safety critical investments, which require
reliability, availability and maintainability standards at or above
99.9999 percent, include:
FAAXX255: Alaskan Satellite Telecommunication Infrastructure
(ASTI)
FAAXX732: Common Support Services Weather (CSS-Wx)
FAAXX807: NextGen Weather (Wx) Processor (NWP)
FAAXX505: ERAM Enhancements & Tech Refresh
FAAXX711: Data Communications NextGen Support (DataComm)
FAAXX612: System Approach for Safety Oversight (SASO)
FAAXX808: NextGen R&D Portfolio
FMCSA100: Unified Registration System (URS)
FAAXX102: Terminal Flight Data Manager (TFDM)
FAAXX778: Next Generation Air/Ground Communications (NEXCOM)
Segment 2
While these systems may not follow strict ``agile development''
guidelines, they do follow waterfall national deployment schedules that
are built around minimizing deployment risks.
Question 21. To ensure that steady state investments continue to
meet agency needs, OMB has a longstanding policy for agencies to
annually review, evaluate, and report on their legacy IT infrastructure
through Operational Assessments. What Operational Assessments have you
conducted and what were the results?
Answer. Please see response to Udall question 15 above.
Question 22. What are the 10 oldest IT systems or infrastructures
in your department? How old are they? Would it be cost-effective to
replace them with newer IT investments?
Answer. Below is a summary that I was provided by the DOT CIO's
office as a courtesy to assist me in responding to this request. Until
I am confirmed and able to obtain more thorough briefing, I am unable
to judge the cost effectiveness of replacing these items.
i. As part of the Common Operating Environment
(COE), the DOT CIO's office currently provides
a telecommunication system for DOT employees.
The existing system was purchased in FY 2007
when DOT relocated into the Navy Yard
headquarters building. The legacy system does
not provide modern features and is not scalable
based on the changing telecommunications needs
of the DOT workforce. A COE Communications
Workgroup, consisting of representatives from
across the Department, has been formed to
examine current requirements and conduct market
research as part of a recommended approach to
modernize the legacy telephone system.
ii. The NHTSA Artemis system was in initiated in
2002 and consists of complaints from vehicle
owners, early warning reporting data submitted
by manufacturers, and recall and investigation
information. Modernization of this system is
necessary to adjust a high volume analysis of
data. It is slated to end in 2024.
iii. In the FAA National Airspace System (NAS), the
Airport Surveillance Radar-9 (ASR) in
Huntsville, AL is on track for approval by the
FAA's Final Investment Decision of funding in
Q4 CY2017.
iv. In the FAA National Airspace System (NAS), the
Flight Data Input Output Center (FDIOC) in
Miami FL will undergo a planned tech refresh as
part of a contract awarded in 2016.
v. In the FAA National Airspace System (NAS), the
Low Level Wind Shear Alert System (LLWAS) in
Dallas--Fort Worth TX is scheduled to be
modernized in the third quarter of calendar
year 2020.
vi. In FAA Mission support, Cisco ethernet switches
have been identified as End of Life (EOL).
These EOL switches do not house critical
systems or personal identifiable information.
The FAA has a network infrastructure of
approximately 3,000 switches. The FAA follows a
replacement cycle for switches of 5 percent per
year. A break/fix approach is applied to
switches that fail before the replacement
schedule.
vii. In FAA Mission support, Dell PowerEdge file and
print servers are EOL and out of warranty. Data
will be migrated and systems will be
decommissioned by July 2018. These EOL servers
do not house critical systems or personal
identifiable information.
viii. In FAA Mission support, Dell servers supporting
the CRU-ART System are EOL and out of warranty.
CRU-ART servers were upgraded to Microsoft
Windows 2008 operating system but were not
decommissioned. CRU-ART is a critical system
and does not house personally identifiable
information. CRU-ART is being replaced with Air
Traffic Operations Management System (ATOMS).
Servers will be either replaced as they break
or migrated to the FAA Cloud.
ix. In FAA Mission support, the AVS Flights
Standards, Registry Management System (RMS) for
Aircraft and Airman Infrastructure are EOL and
out of warranty. RMS is a critical system. A
project is underway to implement a technical
refresh strategy. The application
infrastructure and mainframe migration are a
part of that strategy.
x. In FAA Mission support, the National Offload
Program (NOP) is a system of hardware and
applications that work together to retrieve,
store, and distribute NAS data from all ARTCCs,
STARS, and ARTS 2eAir Traffic Control Radar
facilities. It is not a critical system and
does not contain personal identifiable
information. The effort to upgrade the network
infrastructure and operating systems is
currently at 55 percent completion and expected
to be complete by September 2017.
Question 23. How does your department's IT governance process allow
for your department to terminate or ``off ramp'' IT investments that
are critically over budget, over schedule, or failing to meet
performance goals? Similarly, how does your department's IT governance
process allow for your department to replace or ``on-ramp'' new
solutions after terminating a failing IT investment?
Answer. If I am confirmed, I would be please to arrange an update
on this topic for you.
Question 24. What IT projects has your department decommissioned in
the last year? What are your department's plans to decommission IT
projects this year?
Answer. Please see response above.
Question 25. The Federal Information Technology and Acquisition
Reform Act of 2014 (FITARA, PL 113-291) directs CIOs to conduct annual
reviews of their department/agency's IT portfolio. Please describe your
department's efforts to identify and reduce wasteful, low-value or
duplicative information technology (IT) investments as part of these
portfolio reviews.
Answer. Please see response to Udall question 15 above.
Question 26. In 2011, the Office of Management and Budget (OMB)
issued a ``Cloud First'' policy that required agency Chief Information
Officers to implement a cloud-based service whenever there was a
secure, reliable, and cost-effective option. How many of the
department's IT investments are cloud-based services (Infrastructure as
a Service, Platform as a Service, Software as a Service, etc.)? What
percentage of the department's overall IT investments are cloud-based
services? Does DOT have a Cloud strategy to encourage the use of Cloud
computing solutions? If not, by when do you plan to have such a
strategy in place?
Answer. Please see response to Udall question 15 above.
Question 27. Congress passed the MEGABYTE Act (PL 114-210) to
encourage agencies to achieve significant savings in managing IT assets
including software licenses. What policies or processes are in place at
DOT to improve management of software licenses? What savings do you
expect DOT to report by the end of FY 2017?
Answer. I am told that DOT's OCIO is currently in the inventory
stage of a software category management initiative. If I am confirmed,
I would be pleased to arrange an update for you.
Question 28. Provide short summaries of three recent IT program
successes--projects that were delivered on time, within budget, and
delivered the promised functionality and benefits to the end user. How
does your department/agency define ``success'' in IT program
management? What ``best practices'' have emerged and been adopted from
these recent IT program successes? What have proven to be the most
significant barriers encountered to more common or frequent IT program
successes?
Answer. These are important questions to ascertain the status of
DOT's IT capability. And I share the view that modern IT capability
increasingly affects how well an agency can perform it's mission. I
look forward to learning more about this if I am confirmed. I would
also offer to arrange an update for you and your staff.
Question 29. Are you the beneficiary or trustee of any
discretionary trust that has not been fully disclosed to the Committee
or the Office of Government Ethics? If so, please provide detailed
information about the trust(s).
Answer. Not to my knowledge.
Question 30. During a campaign speech in Ashburn, Virginia last
August, President-elect Trump reportedly said that he would ``at least
double'' Hillary Clinton's proposed $275 billion infrastructure plan.
Yet he did not provide many details where the money to do this will
come from. A campaign website describes ``leverag[ing] new revenues and
work with financing authorities, public private partnerships, and other
prudent funding opportunities.'' Can you shed more light on what the
Trump infrastructure plan really is and how it will be funded?
Answer. As I understand it, the Administration is currently
evaluating all the various tools and opportunities for a new
infrastructure plan. If confirmed, I would work within the
Administration to ensure that a variety of strategies and options for
all infrastructure investments are considered. Since I am not yet a
part of these discussions, it would be premature for me to speculate on
the details and effects of such a plan.
Question 31. Some of my Congressional colleagues have reportedly
expressed concerns about how to pay for a Trump infrastructure plan.
There are news reports that estimate that a tax reform package could
lead companies to repatriate up to $200 billion of overseas cash
holdings. Such tax measures could be part of a broader agreement to
help fund infrastructure upgrades with Federal investments. What level
of direct Federal investment will be necessary to support a Trump
infrastructure plan?
Answer. Please see responses to question 20 of Senator Booker's
Pre-Hearing Questions for the Record, and the response to Nelson
question 1 above.
Question 32. Would direct Federal investment to upgrade our
Nation's infrastructure create jobs and promote economic growth?
Answer. The Federal Government has invested hundreds of billions of
dollars to preserve and improve our Nation's transportation
infrastructure over the last several decades. However, the problems we
face today in rebuilding and revitalizing our decaying transportation
network are simply too great to rely on any one source alone.
Addressing this challenge will require investment and commitment from
all levels of government and the private sector to ensure that our
transportation networks continue to play their vital role in supporting
a thriving economy.
Question 33. Your written statement notes that you want to work
this committee on transportation needs in rural America. I am concerned
that it may be easier to ``unleash private investment'' for
transportation improvements in cities along the Interstate 95 corridor
from New York to Washington than in smaller towns along I-40 from
Gallup to Tucumcari. How will your Administration work to improve
infrastructure projects that private investors may be reluctant to
finance, especially where it may not be possible to recover costs
through tolls and other user fees?
Answer. As I understand it, there are a number of potential
financing and funding options for encouraging greater private sector
investment in infrastructure assets in a variety of geographic
contexts, including rural infrastructure. Although I have not been
employed at DOT during the last two months, I anticipate that the
Administration will work to identify the unique challenges to
attracting private investment in certain types of vital infrastructure
and to develop innovative strategies to create incentives for
investment.
Question 34. Vehicle fuel efficiency has been a success story
thanks to advances in technology that improve car mileage. Fuel
efficiency save drivers money at the pump. Do you agree with the
assessment of the Department of Transportation and the Environmental
Protection Agency that there are more technologies to increase fuel
efficiency available, and that they cost less than earlier projections
believed would be the case? Will you work to further improve vehicle
fleet fuel economy rather than rolling back standards?
Answer. Please see responses to Nelson question 15, Schatz question
25, and Booker question 3.
Question 35. Senator Feinstein and I have worked for several years
on the truck safety issue of so called ``twin 33s.'' Currently, thirty-
eight states including New Mexico do not allow these longer trucks to
operate within their jurisdictions. One study estimates that twin 33s
would put more wear and tear on our Nation's roads, adding $1.2 billion
to $1.8 billion in maintenance costs per year. DOT has previously
advised that there is currently not enough data to draw conclusions on
the safety implications of double 33-foot trailers. DOT recommended
that no changes to truck size be considered at this time. Given the
cost and potential safety hazards, would you as Secretary require DOT
to complete a comprehensive safety study before longer trucks are
permitted on highways?
Answer. Please see response to Blumenthal question 8.
Question 36. Pipelines are a key component of our Nation's
transportation infrastructure. Many Americans are probably not aware
that they live, work, or pursue recreational activities near pipelines.
Ensuring their safety is an issue I take very seriously. In 2000, a
quiet summer morning was shattered when a gas pipeline ruptured and
burst into flames near Carlsbad, New Mexico. The fireball could be seen
twenty miles away. Tragically, twelve people who were camping along the
Pecos River died. This was the worst pipeline accident in the
continental United States. I wish I could say that it was the last. Yet
tragedy struck again since then. I am concerned that PHMSA still has
not done enough to prevent further pipeline catastrophes. What are your
priorities for PHMSA's work related to pipeline safety?
Answer. If confirmed, I would expect to work with the Pipeline and
Hazardous Materials Safety Administration (PHMSA) to ensure that the
Department is taking appropriate steps to promote the safe
transportation of natural gas, petroleum, and other hazardous materials
by pipeline.
Question 37. Not far from the United State Senate, trains carry
hazardous materials through the heart of Washington, D.C. In fact, all
across the country, trucks and trains pass through communities carrying
hazardous cargoes such as ammonia, chlorine, and highly flammable
fuels. PHSMA has an important responsibility in ensuring the safe and
secure shipment of these dangerous materials. What efforts should PHMSA
undertake to improve safety and emergency preparedness? How can PHSMA
better help local governments and communities with pipeline and
hazardous materials safety and emergency preparedness?
Answer. Please see response to Klobuchar question 4.
Question 38. As in so many areas, U.S. military research helped
develop and accelerate autonomous vehicle technology. Defense Advanced
Research Projects Agency (DARPA), for example, successfully used
challenge prizes for autonomous vehicles to reach beyond traditional
partners and attract problem solvers from the wider research community.
Prizes can also be a cost-effective way to spur innovation since one
pays only for successful solutions rather than traditional research and
development costs. Legislation I sponsored last year, the Science Prize
Competitions Act (PL 114-329) encourages Federal agencies to use prize
competitions as incentives for innovation. The Challenge.gov website
notes that DOT has 13 active challenge prizes. Under your leadership,
will DOT continue to use challenge prizes as one tool to help drive
innovation?
Answer. Challenge prizes have sometimes been effective in spurring
innovation and addressing other technology problems, and in encouraging
original uses of government data. If confirmed, I will work with
Secretary Chao to consider all challenge prizes proposed by the
Department to ensure that they are truly innovative challenges that
will help address transportation needs.
Question 39. Last year marked the National Park Service centennial.
Will you commit to assisting the National Park Service in addressing
the transportation infrastructure needs of America's national parks?
Answer. If I am confirmed, I would anticipate that DOT would
continue to assist its Federal land management agency partners,
including the National Park Service, in the design and construction of
appropriate highway and bridge projects.
Question 40. As a member of the Senate Appropriations Committee, I
supported a transportation funding bill that included $241 million for
New Starts. Unfortunately, New Start projects cannot currently move
forward due to the continuing resolution. Will you work in the
Administration to support an appropriations bill for the remainder of
Fiscal Year 2017 that allows New Starts projects to move forward?
Answer. Please see responses to Nelson question 2, Schatz question
39, and Booker questions 5 and 8, as well as response to question 5
from Senator Nelson's Pre-Hearing Questions for the Record.
Question 41. NHTSA is set to require that all light vehicles use
dedicated short-range communications (DSRC) by 2023 but to date has not
fully addressed critical vehicle security vulnerabilities in those
vehicles. This could potentially result in NHTSA requiring drivers to
use connected cars that have unreasonable cybersecurity risks. How will
you ensure that NHTSA efforts to promote connected vehicle innovations
will also adequately address cybersecurity risks?
Answer. If confirmed, I would work to ensure that NHTSA is
considering these and other risks as it looks to work with all
stakeholders and the public to further improve the cybersecurity
posture of vehicles.
Question 42. My understanding is that NHTSA has not required
automotive OEMs to develop and comply with a set of industry vehicle
and DSRC security standards prior to selling those vehicles to the
public. Do you believe this poses any potential cybersecurity or safety
risk for consumers?
Answer. See response above.
Question 43. NHTSA's 5-Star Safety Ratings help consumers make
informed decisions about safety when purchasing a vehicle. Should any
compliance with industry vehicle and DSRC security standards be made
transparent to consumers using ``star ratings'' or other ways to help
consumers better understand the risks involved in their purchase?
Answer. Consumer understanding and awareness is certainly one
aspect of vehicle cybersecurity. Working with stakeholders and having a
robust vehicle design are others. If confirmed, I will plan to confer
with NHTSA about considering these and others as it looks to work with
all stakeholders and the public to further improve the cybersecurity
posture of vehicles.
Question 44. A WalletHub study recently ranked my home state No. 4
on a list of states that would be hardest-hit by a trade war with
Mexico. In 2016, New Mexico exported over $1.5 billion in goods across
our southern border. Significant transportation investments in Santa
Teresa, for example, have helped facilitate trade and increase economic
opportunity in southern New Mexico. But President Trump seems to be
leading us to a trade war with Mexico. He has proposed a 35 percent
tariff on goods coming from Mexico. Mexico's economy minister has
reportedly indicated that a border tax on Mexican goods would lead to
immediate retaliation by his country. Would a trade war with Mexico be
good for the American transportation industry?
Answer. Please see response to Udall question 9 above. If
confirmed, I would look forward to working with the transportation
community and the public to take all concerns and feedback into account
as we move forward on key policy and planning initiatives.
Question 45. The New Mexico Rail Runner Express is a state-owned
commuter rail service operating from Belen to Albuquerque to Santa Fe.
Rail Runner Commuter Service currently operates sixteen (16) on
weekdays. My understanding is that Rail Runner has operated for over a
decade with no PTC-preventable accidents. The state and the regional
transit district that operates the Rail Runner face difficulty funding
implementation and operations of PTC and will likely not meet the
federally mandated PTC implementation deadline of December 31, 2018.
Will you work with Rail Runner and the State of New Mexico to address
the important safety requirements approved by Congress without risking
a loss of service for the New Mexicans that depend on the Rail Runner?
Answer. If confirmed, I would look forward to conferring with FRA
to continue its efforts to provide necessary technical assistance and
guidance to the New Mexico Rail Runner Express operation to ensure that
it implements PTC in accordance with the existing Congressional
mandates and existing regulations.
Question 46. President Trump's budget proposal calls for
transferring air traffic control from the FAA and to a non-governmental
organization. My understanding is that the permissibility of Federal
delegations of authority to private entities is relatively unsettled.
However, delegations of regulatory and enforcement powers to private
entities generally raise constitutional concerns. Can you share more
specifics about President Trump's plan to shift the ATC function to a
private entity and whether his approach will raise any issues involving
an impermissible delegation of authority?
Answer. As Secretary Chao indicated in her responses to Committee
members following her nomination hearing, there will be a thorough
Administration review of these issues, including constitutional issues.
If confirmed, I would hope to assist the Secretary in the extensive
evaluation the details of this proposal would entail, and I would
ensure that the concerns you raise are thoughtfully considered.
Question 47. In hearing testimony on the Regulatory Accountability
Act of 2013 (available at http://judiciary.house.gov/_files/hearings/
113th/07092013/Rosen%
2007092013.pdf), you discussed regulation issues and ways to make the
rulemaking process more efficient and consistent, including through
greater use of cost-benefit analysis tools. When it comes to DOT
safety-related regulations, how should cost-benefit analyses be used
appropriately and how should DOT weigh the potential number of lives
saved against the potential compliance costs for companies?
Answer. Agencies should promulgate rules based on the requirements
set in the laws that delegate the authority to establish the
regulations, using the criteria establish in the law, that takes
account of both cost-effectiveness and obtaining maximum public health,
safety, and environmental benefits.
______
Response to Written Questions Submitted by Hon. Catherine Cortez Masto
to Jeffrey A. Rosen
Smart Cities. During 2015-2016, previous USDOT Secretary Anthony
Foxx, led an interesting Smart Cities challenge that incorporated
innovative transportation solutions for a single $40 million grant
award.
Question 1. Can you speak about your thoughts of that creative
challenge and whether you envision projects that were applied for under
that opportunity receiving Federal support under this administration?
Answer. As I understand it, the Smart Cities Challenge provided an
award to a single city, Columbus, Ohio, and also leveraged significant
private sector capital to help cities implement their visions for
innovation. It is my understanding that many of the cities that did not
win an award have continued to pursue the visions they developed as a
result of the Challenge. Secretary Chao has been clear that innovation
will be a top priority and, if confirmed, I would look forward to
working on new initiatives to spur innovation, both in the private
sector and in State and local government. As to Federal support for
other projects that submitted applications to the Smart Cities
challenge, it is premature for me to address that, but if confirmed, I
may plan to receive additional information about that award program.
DBE Program. A priority I raised in our individual meeting was
about having a strong Disadvantaged Business Enterprise (DBE) program.
Question 2. Can I get your opinion on the effectiveness of that
program at USDOT?
Answer. As indicated by Secretary Chao in her responses to the
Committee following her nomination hearing, current law provides the
DBE programmatic requirements. If confirmed, I would join her in
pursuing equal application of the law and fulfilling the Department's
legal obligations.
Question 3. And I get your commitment that during your time at the
department that you'll work diligently to ensure the properly managed
and administered program for contractors like those I have in Nevada?
Answer. If confirmed, I would work with DOT staff to try to ensure
that the DBE program is being properly and lawfully administered.
Hiring Freeze. The President has signed White House executive
orders to implement a hiring freeze for the majority of Federal
agencies--including many who handle vital aspects of our daily life,
such as cyber or IT security and public safety, like at USDOT As well
as many areas where the Nation's economy could be stymied, all of which
are places where the Federal Government's lack of staffing could be
detrimental.
Question 4. Do you have an understanding on how many vacancies you
have at USDOT that will be going unfilled?
Question 5. And how many are related to public safety, at FTA, FRA,
FMCSA, PHMSA, NHTSA, for example?
Question 6. I'm aware there is a waiver process for important
safety positions. Do you know how many waivers that USDOT Secretary
Chao has applied for so far to meet the need of staffing your vital
department?
Answer. I am told that Secretary Chao has exercised her authority
as the head of an agency to approve certain exceptions to the hiring
freeze because the positions approved were necessary to ensure the
safety of the traveling public. . If I am confirmed, I would be pleased
to request that additional information be provided to you and the
Committee.
Question 7. These are serious concerns that come from what I can
only imagine even an accomplished public servant like you, who have
handled countless Federal Government personal decisions, would consider
ill-advised or cumbersome to you effectively doing the job for which
you've been appointed. Would you agree?
Answer. While my years in public service at DOT and elsewhere have
shown me of the quality of various personnel and programs, more can
always be done to bring effectiveness to government. President Trump
has recently established an Office of American Innovation in the White
House to focus on this on behalf of the American public.
Regulatory EO. Another issue, that you as a former OMB staffer
might have insight on, is the regulatory ``2 for 1'' Executive Order.
Question 8. Can you please explain how you understand that action
will be enforced in your capacity at USDOT?
Answer. Executive Order 13771, ``Reducing Regulation and
Controlling Regulatory Costs'', is a managerial tool for prioritizing
new regulations, and it creates an incentive to identify existing
regulations that no longer serve well. For DOT, safety will remain the
top priority. In terms of regulations that are outdated, there are
multiple tools to identify those, and if confirmed, I would look
forward to trying to make that process successful at enhancing safety
while doing so in the most cost-effective way.
______
Response to Written Questions Submitted by Hon. Maggie Hassan to
Jeffrey A. Rosen
Question 1. Transportation Investment Generating Economic Recovery
Grants: In January of this year, Secretary Chao testified before our
Committee and discussed the TIGER Grant program. She noted that these
grants were ``one area of great agreement'' in Congress and also noted
that the funding levels for this program were a ``modest sum.'' Yet the
President's proposed budget eviscerates this program. Do you agree with
the proposed elimination of TIGER grants? If confirmed, how do you plan
to ensure critical projects like the Memorial Bridge and the Sarah
Mildred Long Bridge in New Hampshire receive the funding and support
they need?
Answer. Please see responses to Blumenthal question 53 and Booker
question 8, and response to question 2 of Senator Klobuchar's Pre-
Hearing Questions for the Record.
Question 2. Essential Air Service: The President's budget proposal
also eliminates the EAS program, which rural communities depend on for
commercial air service. Lebanon Airport in New Hampshire relies on the
EAS program as do rural communities across the country in states like
Texas, Nevada, Nebraska, Alaska, and so many others. If the President's
proposed budget becomes a reality, what is your plan to keep rural
communities connected to broader transportation services?
Answer. Please see response to Udall question 6, as well as my
remarks and responses at the nomination hearing on March 29, 2017. If
confirmed, I will work with the Committee and Congress to explore ways
to keep small or rural communities connected to the national
transportation system.
Question 3. Safety: The number one job of government is protecting
public safety, If confirmed, how will you prioritize safety across all
transportation modes?
Answer. As Secretary Chao has emphasized, safety is the number one
priority for the Department of Transportation. If confirmed, I would
expect to participate with her and the rest of the Departmental
leadership in ensuring that this priority is fulfilled across all
transportation modes.
Question 4. Commuter Rail: I have long supported efforts to bring
commuter rail up from Boston to New Hampshire, which would improve
access to jobs and economic opportunities for our entire region, and
would have the net benefit of reducing congestion on our roads. A
project of this magnitude will require Federal support to enhance our
state and local efforts. Are you committed to ensuring support for a
vibrant commuter rail system in this country?
Answer. Commuter rail services play an important role in our
Nation's transportation system. As a nominee, I am not familiar with
the specifics of proposals to establish commuter rail service between
Boston and New Hampshire. If I am confirmed, I would be interested to
learn more about this initiative.
Question 5. Automation. The trucking industry plays a critical role
in my state and around the country. The previous Administration
announced a working group on automation consisting of various public
and private sector stakeholders as well as innovators, labor, and
academia. Do you agree that there is value in a multi-stakeholder
process to prepare for future technologies? Do you support the
continuation of this working group under the current Administration?
Answer. While it would be premature for me as a nominee to address
the continuation of this particular working group, there is sometimes
value in the Department engaging in multi-stakeholder processes to
prepare for the safe and economic application of technologies.
Automation presents important challenges, as I noted at my nomination
hearing on March 29, 2017. If I am confirmed, I would look forward to
engaging with a wide range of stakeholders and the public to address
the important issues associated with this topic.
______
Response to Pre-hearing Questions Submitted by Hon. Bill Nelson to
Jeffrey A. Rosen
Question 1. What lessons did you learn in your previous experience
at the Department of Transportation and the Office of Management and
Budget that you would bring to your job as the Deputy Secretary of
Transportation?
Answer. One of the things I came to appreciate from my prior public
service was the importance of DOT officials having good communication
and working relationships with the members of Congress, and I would
certainly regard that as an important part of my job if I am confirmed
to serve again at DOT.
Question 2. Many transportation projects require Federal funding to
get them over the finish line. While financing can be a helpful tool,
what is your philosophy on Federal funding to support transportation
projects? Do you believe there is a need for increased funding for
infrastructure?
Answer. From what I have seen, the Administration has indicated
that diverse sources of funding to include state and local funds,
Federal support, Federal credit and finance, as well as private capital
can be better leveraged to address our national infrastructure needs.
Although I am not yet at DOT, I anticipate that the Administration's
future infrastructure proposal will contain new and innovative
approaches that will also be an important part of the overall strategy
to meet our national infrastructure needs.
Question 3. Ports, freight, and rail have traditionally received a
much smaller share of Federal transportation funding as compared to
highways, even though this infrastructure system must work together to
drive the economy and move goods. The President's budget proposal would
further cut these priorities by eliminating funding for the TIGER grant
program. Do you believe that current Federal funding is sufficient to
support the needs of our freight system?
Answer. There is no doubt that efficient freight movement is
critical to our national economy. I am not yet at DOT, but if I am
confirmed, I expect to be a participant in the budget process and
decision making and would look forward to obtaining the data to better
assess what is needed.
Question 4. Many small and rural towns rely on dependable Amtrak
service to support tourism and travel. Passenger rail service not only
supports infrastructure jobs in the region, but it also can help
support jobs at small businesses along Amtrak routes. Do you support
Federal funding for Amtrak? Do you support increased funding to help
communities establish and restore rail lines and stations? Do you
support long distance rail service?
Answer. I believe that intercity passenger rail is important and
necessary. In the past, I have held the view that Amtrak was in need of
reform. I am not current on the present status, but I have heard that
it has made some progress. I am in favor of some Federal funding for
intercity rail, and I think the needs of the communities are an
important issue that needs attention.
Question 5. Many transit systems are in need of increased Federal
funding to help with necessary expansion. Do you support increased
funding for transit systems, which are critical to moving the workforce
and supporting development?
Answer. My understanding is that, under the President's direction,
the White House is leading the effort to put together a package to
rebuild, refurbish and revitalize our country's critical
infrastructure.
Question 6. What are your views on the administration's intention
in its latest budget proposal to shift air traffic control services
from the Federal Aviation Administration (FAA) to an independent, non-
governmental organization? Do you share my concern that the transition
to such a system could be disruptive, potentially costly, and would
invoke significant questions of national security, given the complex
relationship between the FAA and the Department of Defense?
Answer. There seems to be wide agreement on the need to modernize
the FAA's air traffic control technologies, often referenced as
NextGen. There is not always agreement on how to accomplish that goal.
Your question addresses some of the significant issues involved in the
Administration's proposal to shift Federal Aviation Administration
(FAA) air traffic control functions out of the FAA to an independent
entity. As Secretary Chao indicated in her responses to Committee
members following her nomination hearing, there will be a thorough
Administration review of these issues, including costs, safety, the
effect on rural areas, and any impact on the Department of Defense. If
confirmed, I would hope to assist the Secretary in the extensive
evaluation the details of this proposal would entail, and I would
ensure that the concerns you raise are thoughtfully considered. Of
course, Congress would have to enact this significant reform.
Question 7. Please list all court cases and regulatory actions in
which you served as counsel for the Chamber of Commerce of the United
States of America from 2009 until the present. To the extent
applicable, please include, at a minimum, the case caption, venue, date
of filing, and a summary of the matters involved.
Answer. To the best of my recollection and available records:
a) Yates v. United States, No.13-7451 (U.S. Supreme Court, decided
2/25/2015) (holding that Sarbanes-Oxley Sec. 1519 does not
apply to commercial fishing vessel's disposition of fish).
b) UARG v EPA, Nos. Nos. 12-1272 (U.S. Supreme Court, decided 6/23/
2014) (rejecting erroneous EPA legal interpretations of statute
in promulgating regulations concerning PSD permits); and
earlier proceedings below regarding set of EPA rules.
Question 8. Please list all court cases and regulatory actions in
which you served as counsel for General Motors from 2009 until the
present. To the extent applicable, please include, at a minimum, the
case caption, venue, date of filing, and a summary of the matters
involved.
Answer. To the best of my recollection and available records, I did
not appear as counsel for General Motors in any cases during that
period of time. During my years at Kirkland & Ellis LLP from 1982-2003,
I had represented General Motors in numerous cases, but not in recent
years.
Question 9. Please list all court cases and regulatory actions in
which you served as counsel for Hyundai from 2009 until the present. To
the extent applicable, please include, at a minimum, the case caption,
venue, date of filing, and a summary of the matters involved.
Answer. To the best of my recollection and available records, I did
not appear as counsel for Hyundai during that period of time. During my
years at Kirkland & Ellis LLP from 1982-2003, I had represented Hyundai
Motor America, but not in recent years.
Question 10. Please detail the nature and extent of all work you
have performed for the Cargo Airline Association.
Answer. To the best of my recollection and available records, I
represented the Cargo Airline Association with regard to FAA's Flight
Crew Member Duty and Rest Requirements, 77 Fed. Reg. 330-01 (Jan. 4,
2012), in which the Cargo Airline Association ultimately intervened on
the side of FAA in litigation filed against the final rule by the
Independent Pilots Union in the U.S. Court of Appeals for the District
of Columbia. On March 24, 2016, the D.C. Circuit rejected the petition
and affirmed the rule in a per curiam opinion. IPA v FAA, No. 11-1483
(March 24, 2016).
Question 11. Please detail the nature and extent of all work you
have performed for BNSF Railway.
Answer. To the best of my recollection and available records, I
have represented BNSF in two significant but confidential commercial
arbitration matters involving disputes with a customer. In addition, I
have provided advice regarding compliance with Federal law on some
occasions.
Question 12. Please detail the nature and extent of all work you
have performed for Kapsch Trafficom North America.
Answer. To the best of my recollection and available records, I
have assisted KTNA in intellectual property litigation pending in
Federal court in Delaware, at the International Trade Commission, and
in certain proceedings before the Patent and Trademark Office. In
addition, I have provided KTNA with advice regarding a procurement-
related litigation that was pending in Florida.
Question 13. Please detail the nature and extent of all work you
have performed for the U.S. Chamber Institute for Legal Reform.
Answer. To the best of my recollection and available records, I
have advised ILR from time to time about various Federal statutes and
legal requirements, and of legal developments in the courts.
______
Response to Pre-hearing Questions Submitted by Hon. Amy Klobuchar to
Jeffrey A. Rosen
Question 1. One area where I believe there is room for bipartisan
cooperation with the Administration is investing in our Nation's
infrastructure. In Minnesota, we saw the cost of neglecting our
infrastructure on August 1, 2007, when the I-35W Bridge collapsed into
the Mississippi River, killing 13 people and injuring many more. Senate
leaders have released an infrastructure plan that would invest $1
trillion to modernize the Nation's infrastructure and increase our
economic competitiveness.
Can you elaborate on how you think the administration can work with
Congress to advance necessary infrastructure investments?
Answer. As I understand it, the Administration is currently
evaluating all the various tools and opportunities for a new
infrastructure plan. If confirmed, I will work within the
Administration to ensure that a variety of strategies and options for
all infrastructure investments are considered. Since I am not yet a
part of these discussions, it would be premature for me to speculate on
the details and effects of such a plan.
Question 2. The TIGER Discretionary Grant Program supports
innovative projects, including multi-modal and multi-jurisdictional
projects, which are difficult to fund through traditional Federal
programs. In Minnesota, a $17.7 million 2016 TIGER Grant is helping to
fund construction of a highway freight interchange in Scott County that
will improve the flow of freight through the area and increase safety
throughout the region. The President's proposed budget eliminates the
TIGER Discretionary Grant Program. Without TIGER Grant funding, many
communities will not be able to make necessary improvements to local
infrastructure.
Why has this program been eliminated?
Answer. As I am not yet at DOT, I am not able to speak directly to
such decisions. I am aware that the TIGER Program, first enacted as
part of the Recovery Act in 2008, has not been formally authorized as
part of a long-term surface transportation bill. Many projects funded
by TIGER are eligible under DOT's other mandatory highway and transit
formula programs. It is my understanding that the Nationally
Significant Highway and Freight Projects discretionary grant program
provides DOT the ability to award competitive grants to projects of
national or regional significance. Additionally, I anticipate that the
Administration's Infrastructure proposal will provide an important
capability for the Department to address our Nation's transportation
Infrastructure needs as well.
Question 3. As co-chair of the Senate Broadband Caucus, I led a
letter to President Trump in January signed by 48 Senators urging that
broadband be included in any infrastructure package. Expanding access
to broadband is the infrastructure challenge of our generation and
fast, affordable Internet is essential for consumers and businesses of
all sizes. Unfortunately, many areas of the country, particularly rural
and low-income communities, still do not have access to quality
broadband.
Do you believe that broadband infrastructure should be included in
infrastructure investment efforts?
Answer. Speaking only for myself at this point, the answer is yes.
Question 4. I have introduced legislation which would increase
coordination when federally-funded highways are being constructed so
that broadband infrastructure is installed at the same time . . . in
other words, to only ``dig once.''
Do you believe it is important for the Department of Transportation
to be preparing our Nation's infrastructure for the demands of the 21st
century economy through policies like dig-once?
Answer. Your question highlights the parallels between conventional
highway construction and the physical components of the broadband
digital network that underlies the internet. With regard to the
inclusion of broadband construction in the Administration's
infrastructure initiative, Secretary Chao indicated in her nominee
responses to the Committee that the Department will be reviewing and
considering all of the options available for the infrastructure plan.
As soon as that proposal has taken shape, she intends to share it with
Congress.
Additionally, I note that President Trump has just established the
White House Office of American Innovation. That Office will enlist the
expertise that the private sector has to offer and will be looking at
transformative projects.
Question 5. In the last Congress, I introduced the Stop Trafficking
on Planes Act to require training for flight attendants to recognize
and report suspected human trafficking. A provision based on my bill
became law as part of the FAA Extension, Safety, and Security Act of
2016. But human trafficking doesn't just happen on airplanes. Truck
drivers, like flight attendants, are also on the front lines of the
battle since one of the best times to identify human trafficking is
during travel. Many truckers want to be helpful in the fight and groups
like Truckers Against Trafficking are training truckers to identify and
report human trafficking. I am working on legislation to help ensure
they have the resources they need to be effective partners in combating
human trafficking.
Will you work with me to find ways the Department of Transportation
can support private sector initiatives to fight human trafficking
across all modes of transportation?
Answer. Yes, I will work with you to find ways the Department can
support private sector initiatives to fight human trafficking across
all modes of transportation. I am told that, since 2012, the Department
has worked closely with stakeholders on various human trafficking
initiatives under the Department's initiative, Transportation Leaders
Against Human Trafficking. The Department has also worked with the
Department of Homeland Security to ensure that 70,000 airline personnel
have been trained in how to recognize and report cases of Human
Trafficking. The Department has facilitated similar training to Amtrak
personnel, and has mandated Human Trafficking training for the
Department's 55,000 employees. If I am confirmed, I will look forward
to working with you to see how we can do more with the transportation
industry.
Question 6. Along with Senator Risch, I have been a leading
advocate for the Recreational Trails Program, which is extremely
important to my state. It's an issue that brings together cross-country
skiers, bicyclists and the motorized vehicle community. It funds off-
highway vehicle, snowmobile and non-motorized trail uses and derives
its funding from gas taxes paid by off-highway vehicle users when they
fill up their machines.
Are you committed to listening to all trail users for ideas on how
this program can be improved?
Answer. From my prior years at the Department of Transportation, I
am confident that the program offices across the Department are
receptive to public input and new ideas for program improvements,
including the Recreational Trails Program. If confirmed, I would expect
the various program offices to operate in a manner that is receptive to
recommendations for improvement from the public.
______
Response to Pre-hearing Questions Submitted by Hon. Richard Blumenthal
to Jeffrey A. Rosen
Question 1. Do you receive a financial benefit over any offshore
company or entity? If yes, please describe.
Answer. Not to my knowledge. The Public Financial Disclosure Report
(OGE 278e) that I submitted and that was transmitted to the Committee
lists the securities that I hold with values that exceed $1000 or that
produced more than $200 of income. To the extent that any security that
I hold may have been issued by a foreign entity, the financial benefit
that I receive from that security does not differ from the benefit to a
member of the general public who holds that same security.
Question 2. Do you exercise control over any offshore company or
entity? If yes, please describe
Answer. No.
Question 3. Do you have signature authority over any offshore
accounts? If yes, please describe.
Answer. No.
Question 4. Have you taken or given a loan to a foreign official or
a family member or individual business entity controlled by that
foreign office? If yes, please describe.
Answer. No.
Question 5. Are you subject to challenges or audits by any revenue
agency anywhere in the world? If yes, please describe.
Answer. Not to my knowledge.
Question 6. Do you have any investments in vehicles intended to
reduce tax liability? If yes, please describe.
Answer. I am not aware of holding any investments intended for that
purpose in the sense of tax-shelters, but like many Americans I have
retirement accounts (such as IRAs, 401k, TSP) that have tax advantages.
Question 7. Please list sources and amounts of all income received
during the calendar year preceding your nomination and for the current
calendar year, including all salaries, fees, dividends, interest,
gifts, rents, royalties, licensing fees, honoraria, and other items
exceeding $500 or more (if you prefer to do so, copies of the financial
disclosure report, required by the Ethics in Government Act of 1978,
may be substituted here).
Answer. Please refer to my responses to Part E (confidential) of my
Commerce Committee Questionnaire responses, and to my OGE 278 Financial
Disclosure Report.
Question 8. Please list the sources, amounts and dates of all
anticipated receipts from deferred income arrangements, stocks,
options, uncompleted contracts and other future benefits which you
expect to derive from previous business relationships, professional
services, firm memberships, former employers, clients or customers.
Please describe the arrangements you have made to be compensated in the
future for any financial or business interest.
Answer. Please refer to my responses to Part E (confidential) of my
Questionnaire responses, and to my OGE 278 Financial Disclosure Report.
Question 9. Potential Conflicts of Interest: a. Please identify the
family members or other persons, parties, affiliations, pending and
categories of litigation, financial arrangements or other factors that
are likely to present potential conflicts-of-interest when you first
assume the position to which you have been nominated. Please explain
how you would address any such conflict if it were to arise. b. Please
explain how you will resolve any potential conflict of interest,
including the procedure you will follow in determining these areas of
concern.
Answer. Please see Part B of my Questionnaire responses. As noted
there, 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 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 DOT's Designated Agency Ethics Official and that has been
provided to this Committee. I am not aware of any other potential
conflicts of interest.
______
Response to Pre-hearing Questions Submitted by Hon. Brian Schatz to
Jeffrey A. Rosen
Question 1. Please describe all business relationships which you
have had during the last 10 years where your past or former client may
reasonably have issues before the Department of Transportation and this
committee during your tenure in the position that you have been
nominated to hold. For each client, please detail your work and
specific issues where you consulted or provided legal advice.
Answer. Please see response nos. 10-12 to questions from Senator
Bill Nelson above. In addition, to the best of my available records and
recollection, the following two former clients might reasonably be
anticipated to have issues before DOT or the Committee at some time:
I represented the Airlines for America in a lawsuit against the
FAA, titled Airlines for America v. FAA, No. 13-1140 (D.C. Cir. April
19, 2013), which challenged the manner in which the FAA had implemented
the budget sequester as inconsistent with the statutory language.
Shortly thereafter, Congress itself clarified that FAA had the
authority to transfer funds and mitigate the problems about which A4A
had sought relief, in the Reducing Flight Delays Act of 2013, Public
Law 113-9 (May 1, 2013).
I represented Raytheon Technical Services Company in the defense of
a lawsuit brought by the Washington Consulting Group, WCG v Raytheon,
2010 CA 000296 B (D.C. Superior Court, filed in 2010, and summary
judgment granted in favor of defendant on March 7, 2013). The case
involved allegations that Raytheon had won an FAA contract to train air
traffic controllers by theft of plaintiff's trade secrets; the court
entered judgement against those claims and in favor of Raytheon.
Question 2. Describe any activity during the past 10 years in which
you have engaged for the purpose of directly or indirectly influencing
the passage, defeat, or modification of any legislation or affecting
the administration and execution of law or public policy. This includes
providing legal, policy, or political services.
Answer. Please refer to my response to sections B.6. of my Commerce
Committee Questionnaire responses.
Response to Pre-hearing Questions Submitted by Hon. Cory Booker to
Jeffrey A. Rosen
Gateway Program/Northeast Corridor Investment
Question 1. As you may know, a recent economic analysis of the
Gateway Program demonstrated that every dollar invested in the Program
returns $4 in economic benefits to the region. As the Northeast
Corridor contributes some 10 percent of the Nation's Gross Domestic
Product, how important do you believe this project is to the national
economy?
Answer. As a nominee, I am not yet familiar with the economics of
the Gateway Program, and I would like the opportunity to learn much
more about the project before commenting on its importance to the
national economy.
Question 2. The current Hudson River tunnels were built in 1910 and
suffered extreme damage during Superstorm Sandy. The 450 NJ Transit and
Amtrak trains that use the tunnels each day are at risk of a complete
disruption if new tunnels are not built. I have worked closely with
Senators Menendez, Schumer, and Gillibrand along with Secretary Foxx,
Governor Christie, and the Port Authority to advance the Gateway
Program. Can you commit to partner with New Jersey and New York to
prioritize investment and expedite the completion of the Gateway
Program?
Answer. It is my general understanding that the President's
Infrastructure Task Force will be evaluating projects of this nature
and importance to balance the complementary roles that localities and
the Federal Government should play in financing these large projects.
Question 3. What's your plan to streamline environmental reviews,
planning and construction of the full Gateway Program including a new
Hudson River Tunnel, an expanded Penn Station and other associated
infrastructure?
Answer. I understand that the current plan for efficiently
delivering the Gateway program would be a multipronged approach that
streamlines multiple environmental review processes, coordinates
planning activities among the Department's modes, and explores logical
phasing of and funding for construction activities. If confirmed, I
will receive a briefing on this project, but until I am fully briefed
on this matter, it would be premature to comment on its specific
aspects.
Question 4. I believe we must take a holistic approach to improving
our Nation's transportation network. Modes work together to provide a
network of mobility and sometimes investments in a single mode can
enhance the whole network by reducing demand or generating efficiency
in other modes as a secondary impact. When the Federal Government
invests in our intercity and commuter railroads on the Northeast
Corridor, we are also investing in our highway and aviation systems by
removing cars from roads and bridges and freeing up slots at congested
airports. Do you agree that it is essential to consider this when
looking at the overall transportation network in the U.S.?
Answer. Yes. Taking a holistic view of the entire transportation
system and recognizing the interdependence between different modes of
transportation is essential to ensuring that our transportation system
functions efficiently. While we have made great progress towards a more
fully integrated transportation system, there is still more work to be
done to ensure that different modes of transportation view each other
as complementary pieces of the Nation's transportation network.
Question 5. The Amfleet 1, single-level passenger cars dating from
the mid-1970s is the backbone of Amtrak's Northeast Corridor Regional
and eastern State-Supported passenger car fleet. It is approaching the
point where it will require complete rebuilding or replacement.
Purchasing new equipment will be more cost-effective and will improve
Amtrak's product, enhance customer experience, lower maintenance cost,
increase safety and accessibility and support domestic manufacturing.
Investment in this type of product will create a number of good jobs in
this industry. Would this type of job creating investment be a priority
for your department?
Answer. Even though I have not had briefings on Amtrak, it is clear
that there is a lot to consider regarding Amtrak. We need to look at
the whole concept of Amtrak--what service it is now providing, what
service we want it to provide in the future, what the costs are, and
what new technology or equipment may be needed. It would be premature
to speak to the replacement of Amtrak's Amfleet before going through
this process. If I am confirmed, I would expect to play a role in the
process of evaluating this and other matters involving passenger rail
service.
Budget Cuts
Question 6. President Trump has promised to invest one trillion
dollars in our Nation's infrastructure. However, in President Trump's
budget blueprint, the administration proposed a 13 percent cut to the
Department of Transportation including zeroing out the Federal Transit
Administration's New Starts program. As you know, New Starts is
critical to funding the Gateway Program, which includes construction on
the portal bridge scheduled to begin next year. Do you oppose the
proposed cuts to the New Starts program in order to make sure Federal
funds are available to begin construction on the Gateway Program?
Should you be confirmed, will you support increasing funding to New
Starts?
Answer. I am generally aware of the significance of the Gateway
Program to the people of New Jersey and surrounding jurisdictions, as
well as Northeast Corridor travelers. Also, I assume that the
Administration recognizes that strong transportation infrastructure
directly contributes to a secure nation and economic growth. In support
of these goals, I am told that the President has created an
Infrastructure working group led by the National Economic Council that
is reviewing all infrastructure needs to ensure that funding is
allocated efficiently and effectively to maximize returns on
infrastructure investments. While the outlined FY 2018 Budget Request
does not include new Full Funding Grant Agreements, I do not know what
the President's infrastructure proposal will be. I believe the
Infrastructure Task Force will be evaluating projects of this nature to
balance the complementary roles that localities and the Federal
Government should play in financing the projects.
Truck Safety
Question 7. Every year, over 4,000 people are killed and nearly
100,000 are injured in large truck crashes. In 2015, 4,067 people were
killed in crashes involving large trucks. This is an increase of more
than 4 percent from the previous year and a 20 percent increase from
2009. Further, this is the highest fatality number since 2008. Early
release data for 2015 shows that 116,000 people were injured in crashes
involving large trucks, which is an increase of 57 percent since 2009.
I am concerned that in recent years we have seen rollbacks in
common sense truck safety protections, and I want to make sure that we
can work together to reduce fatalities on our roads.
Can you please describe your plan to address the rising rate of
fatalities from large truck crashes?
Answer. Every fatality on our Nation's roadways is a tragedy, and I
share your concern with recent increases in crashes of large trucks. As
Secretary Chao has emphasized, safety is the number one priority for
the Department of Transportation. If confirmed, I would expect to
participate with the Federal Motor Carrier Safety Administration
(FMCSA) to leverage technology and advance programs that address non-
compliant motor carriers and drivers, and to reduce distracted driving
and other unsafe driving behaviors in all driving populations. This
would involve working closely with States and other stakeholders to
identify safety issues and develop strategies to reduce crashes.
Question 8. During your confirmation hearing, you noted that
workers cannot protect themselves and they need the protection of
Federal regulations. If confirmed, will you prioritize issuing
regulations that protect truck drivers, specifically the rule requiring
most commercial motor vehicles to install speed limiters?
Answer. If confirmed, I would expect to work with Secretary Chao to
ensure safety remains the top priority of the Department. Reducing
truck and bus crashes and the associated fatalities and injuries is
covered by the focus on safety. One element of this focus would be to
work with the new leadership of the National Highway Traffic Safety
Administration and the Federal Motor Carrier Safety Administration to
determine what actions should be taken to regarding speed limiters.
Question 9. Will you reject any weakening of rules that protect
truck drivers such as the Hours-of-Service and Electronic Logging
Device regulations?
Answer. If confirmed, I would fully support Secretary Chao's
commitment to improve truck and bus safety and to ensure the Department
has data-driven approaches to safety regulations and enforcement. I am
told that the statutorily-mandated Electronic Logging Device rule
published in 2015, was recently upheld by the 7th Circuit U.S. Court of
Appeals.
Question 10. Will you commit to ensuring that the Department will
not advance policies that can be used to justify requiring truck
drivers to operate larger and heavier trucks?
Answer. I recognize there is a lack of consensus on truck size and
weight. The Moving Ahead for Progress in the 21st Century Act (MAP-21)
required the Department to study the impacts of trucks operating at or
within Federal truck size and weight limits and trucks legally
operating in excess of Federal limits. The report that U.S. DOT
provided to Congress last summer suggested that there are significant
data gaps and insufficiencies in the models that limit the ability to
extrapolate the results across the national system. The study
recommended further research was necessary in order to fully understand
the impacts of any change in existing Federal truck size and weight
limits. If confirmed, I would ensure that DOT's relevant modal
administrations will continue to pursue opportunities to further
develop this body of research.
Technology and Innovation
Question 11. The previous administration went to great lengths to
promote the use of technology in the transportation sector. From
working to remove regulatory barriers for unmanned aerial systems
(UAS), to the creation of a Federal automated vehicle policy, to
implementing the Smart City Challenge, technology and innovation were
at the forefront of solving our most pressing transportation and safety
challenges.
How do you plan to harness new technologies at the Department of
Transportation (DOT)?
Answer. I echo Secretary Chao's view in her response to the
Committee following her hearing that the private sector is the best
source for ready-to-deploy technologies and innovations. A number of
nascent technologies, such as autonomous vehicles, and advanced
automation in all sectors, bear promise for advancing transportation
safety across all modes. If confirmed, I would hope to work with
Secretary Chao on a flexible regulatory environment that encourages
development and deployment of these innovations, addressing safety
challenges in close coordination with our partners in industry; state,
local and Tribal governments; and universities to apply appropriate
technology solutions to meet urgent local and regional needs.
Autonomous Cars/Persons with Disabilities
Question 12. As you may know, the emergence of self-driving cars
holds great promise for many people who have traditionally been
disenfranchised. These autonomous vehicles can help provide greater
independence to older Americans and persons with disabilities,
providing them greater access to employment opportunities and health
care.
Do you plan to explore the benefits of autonomous cars for persons
with disabilities?
Answer. In my view, autonomous vehicles have a tremendous potential
to provide benefits to a wide variety of Americans, including the
elderly and persons with disabilities. If the technologies are
successful, I would look forward, if confirmed, to working with
Secretary Chao and Congress to pursue these benefits and ways to safely
incorporate the technology into widespread use.
Rail Safety
Question 13. I am also deeply concerned about urgent passenger rail
safety issues. Last September, a New Jersey Transit commuter train
crashed into the station terminal in Hoboken, New Jersey killing one
person and injuring over 100. In 2015, an Amtrak derailment along the
Northeast Corridor outside Philadelphia killed eight people and injured
over 200. And again last week, a train derailed on the Long Island
Railroad, injuring over 100 people. While the National Transportation
Safety Board (NTSB) has yet to make a determination on whether the
absence of the safety system known as ``Positive Train Control'' was a
contributing factor in Hoboken or Long Island, we know it was in the
Amtrak incident. Positive Train Control is a critical system that
stands to prevent similar disasters in the future, but installation of
the system is moving slowly across the Nation's railroads.
Will you make Positive Train Control implementation a top priority
for DOT?
Answer. If confirmed, I look forward to working with Secretary Chao
and the Federal Railroad Administration to oversee the rail industry's
progress implementing PTC systems.
Key Transportation Programs
Question 14. USDOT's successful TIGER program has granted millions
of dollars for innovative port, roadway, transit and other multimodal
projects throughout the US. Additionally, the Federal Transit
Administration's New Starts, Small Starts, and Core Capacity programs
have helped to fund light rail, commuter rail, heavy rail, streetcar,
and bus rapid transit bus rapid transit projects. Given the vast demand
for these grants across the country, how do you plan to ensure adequate
funding levels for critical discretionary and competitive grant
programs that create jobs, spur economic development, and help to
rebuild our Nation's infrastructure?
The port of New York-New Jersey, the largest on the east coast,
expects increases in demand in the coming years while also continuing
to grapple with truck congestion and air quality issues. How do you
plan to ensure adequate investment in major seaports that are key
economic drivers for the entire nation?
Answer. While the Administration's budget recommends eliminating or
cutting funds for several programs, such as TIGER and several programs
within the Federal Transit Administration, the President will also be
proposing what I understand to be a comprehensive infrastructure
initiative. If confirmed, I would hope to be involved in the
development of the new initiative.
Question 15. The port of New York-New Jersey, the largest on the
east coast, expects increases in demand in the coming years while also
continuing to grapple with truck congestion and air quality issues. How
do you plan to ensure adequate investment in major seaports that are
key economic drivers for the entire nation?
Answer. The Port of New York and New Jersey is a good example of
the role ports have as a critical part of our overall transportation
system, and as the commercial hearts of a region. And I agree that
demand for goods moving through ports will increase as the growth of
our economy and populations rise.
I believe it is important to view investments in ports along with
improvements to the condition and capacity of its water, road and rail
connectors. The private sector and local communities are already
partnering with Federal and state governments to expand the capacity of
port and multi-modal infrastructure.
Bicycle and Pedestrian Issues
Question 16. Communities across the country are embracing bicycling
and pedestrian infrastructure as an integral part of their
transportation network for a number of reasons, including attracting
businesses, workers and younger Americans who are choosing to live
without a car. How will you support programs that will help expand this
type of important infrastructure to meet the growing demand?
Answer. I understand that non-motorized travel has been in DOT's
authorizing legislation since the 1991 ISTEA authorization expanded
local governments' ability to use Federal funds for pedestrian and
bicycle infrastructure. Most recently, I am told that the
Transportation Alternatives program was authorized at $835 million in
2016, and many State and local governments also chose to use some of
their other Federal funds, such as Surface Transportation Block Grant
funds, to support pedestrian and bicycle infrastructure. It is my
understanding that FHWA offers technical assistance to ensure that
infrastructure that is installed is safe and effective, and all of the
surface transportation agencies within DOT work together to improve the
safety of those traveling by foot and bicycle.
Question 17. Increasing bicycle and pedestrian safety is critically
important. In 2014, just over 700 cyclists were killed in a crash with
a vehicle. On average, nearly 4,500 pedestrians are killed and 68,000
are injured each year since the recent low point in pedestrian deaths
in 2009. In 2015, pedestrian deaths increased 10 percent to 5,376
deaths up from 4,884 in 2014. What is your plan to improve the safety
of bicyclists and pedestrians?
Answer. Safety is the Department's number one priority. Secretary
Chao has expressed her commitment to working with our State and local
partners to prevent all roadway deaths through better roadway design,
safer vehicles, and through educational and enforcement programs.
Local Control
Question 18. As a former Mayor I support providing additional
resources and decision-making authority to local officials including
increasing sub-allocation of Federal resources to the Metropolitan
Planning Organizations (MPOs). What is your plan to ensure that local
officials have a substantial role in transportation decisions, and do
you support additional sub-allocation of Federal resources to MPOs?
Answer. The nation's 409 Metropolitan Planning Organizations
(MPO's) play an important role in metropolitan transportation planning
in the United States. They develop fiscally responsible transportation
plans that reflect the transportation vision and priorities for their
regions, and they are taking on a new role in setting performance
targets, as required by MAP-21. I expect that DOT will continue to work
with MPOs on improving our transportation infrastructure. If confirmed,
I will obtain full briefings on the issues surrounding sub-allocating
Federal resources to MPOs and will seek to ensure that local officials
have a substantial role in local transportation issues.
Diversity in Transportation Sector
Question 19. Nearly one in ten jobs in the United States are in the
transportation and/or infrastructure sector. However, women, workers of
color, and workers with disabilities are significantly under-
represented in the sector compared to their overall participation in
the workforce. I am a strong supporter of the Disadvantaged Business
Enterprise (DBE) Program, which is designed to provide small businesses
owned by socially and economically disadvantaged individuals an equal
playing field to compete for federally funded transportation contracts.
Can you commit to supporting the DBE Program, and describe other steps
you plan to take to connect disadvantaged workers to employment in the
transportation field?
Answer. As indicated by Secretary Chao in her responses to the
Committee following her nomination hearing, current law provides for
specific Disadvantaged Business Enterprise (DBE) programmatic
requirements. If confirmed, I would join her in pursuing equal
application of the law and fulfilling the Department's legal
obligations.
Funding
Question 20. In your testimony, you agreed that an infrastructure
bill this Congress would include some direct Federal investment in
transportation, not solely private financing. Do you think an
infrastructure bill should provide supplemental dollars to existing
authorized programs that are underfunded thus far but offer big impacts
in terms of economic benefit, job creation and mobility benefits, like
intercity passenger rail grant programs? Or do you have ideas for new
DOT programs that would distribute Federal grant dollars via new
authorized programs?
Answer. While I am not yet involved in developing the President's
infrastructure proposal, if confirmed, I look forward to working with
you and other members of Congress to be sure we are good stewards of
all resources for the public good.
Question 21. Since Amtrak was first created more than 45 years ago,
there has been discussion of including it in a transportation trust
fund. However, this simply never came to fruition. Instead, Amtrak
relies on discretionary funding one Fiscal Year at a time, which is
unfortunate. This creates uncertainty and wreaks havoc on Amtrak's
ability to plan capital improvement projects. By comparison, highway
and transit programs' dedicated funding via multi-year contract
authority allows for better capital planning and creates efficiencies
and cost savings. It would also be beneficial for intercity passenger
rail to receive predictable and dedicated funding like almost all the
other transportation modes. Would you support including at least a
portion of Federal funding for intercity passenger rail in the trust
fund?
Question 22. While including intercity passenger rail in the trust
fund is by far the preferred method of Federal funding, have you given
thought to other options for multi-year predictable and dedicated
funding of intercity passenger rail? For example, providing Amtrak with
advance appropriations for several years instead of only funding it one
year at a time. Would you support Congress providing advance
appropriations or creating another trust fund-like mechanism dedicated
to passenger rail?
Answer to questions 21 and 22. As a nominee, it would be premature
for me to weigh in on alternative funding possibilities for Amtrak.
This is just one of the many significant issues facing Amtrak that we
should look at.
Question 23. Germany recently approved a transportation
infrastructure plan to spend $126 billion on rail projects through
2030. In the United States, which has four times Germany's population,
Federal funding for vital infrastructure investments in the Northeast
Corridor and elsewhere on the national passenger rail network amounts
to just a few hundred million dollars a year. With each new fiscal
year, there is no assurance that there will be any additional
predictable and dedicated Federal spending to leverage private and
state investment. How do we attract private investment in passenger
rail infrastructure projects, like Gateway, when the Federal Government
does not support a mechanism for substantial and reliable Federal
investment in passenger rail?
Answer. If confirmed, I look forward to working with you, the
Committee, and Congress, to look at best practices and all options to
incent private investment in passenger rail infrastructure. On the
general question of attracting private investment in passenger rail
infrastructure projects, my understanding is that the Build America
Bureau (Bureau) was established to work with the modal administrations,
eligible entities, and other public and private interests to develop
and promote best practices for innovative financing and public-private
partnerships, such as those that may be established for passenger rail
infrastructure projects. To fulfill this goal, the Bureau helps
streamline transportation finance and funding processes and provides
project sponsors with transparent and efficient access to DOT's credit
and grant programs.
National Passenger Rail System
Question 24. Can you discuss your vision for intercity passenger
rail in the U.S.?
Question 25. Do you agree that the Federal Government has an
important role to play to help ensure passenger rail remains a viable
option to connect rural communities to the rest of our transportation
network?
Question 26. What role do you envision the DOT has to make good on
this commitment to the various rural communities who rely on intercity
passenger rail?
Answer to questions 24, 25, and 26. Intercity passenger rail has an
important role to play in our national transportation system. As I have
previously stated, however, it would be premature of me to respond to
these questions as a nominee who is not fully current on recent
developments at Amtrak. I do understand that passenger rail involves
important issues, and I believe they deserve attention as the
Department shapes its transportation policies.
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