[Senate Hearing 110-66]
[From the U.S. Government Publishing Office]
S. Hrg. 110-66
NOMINATION OF DAVID JAMES GRIBBIN IV TO BE GENERAL COUNSEL OF THE U.S.
DEPARTMENT OF TRANSPORTATION
=======================================================================
HEARING
before the
COMMITTEE ON COMMERCE,
SCIENCE, AND TRANSPORTATION
UNITED STATES SENATE
ONE HUNDRED TENTH CONGRESS
FIRST SESSION
__________
MARCH 29, 2007
__________
Printed for the use of the Committee on Commerce, Science, and
Transportation
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SENATE COMMITTEE ON COMMERCE, SCIENCE, AND TRANSPORTATION
ONE HUNDRED TENTH CONGRESS
FIRST SESSION
DANIEL K. INOUYE, Hawaii, Chairman
JOHN D. ROCKEFELLER IV, West TED STEVENS, Alaska, Vice Chairman
Virginia JOHN McCAIN, Arizona
JOHN F. KERRY, Massachusetts TRENT LOTT, Mississippi
BYRON L. DORGAN, North Dakota KAY BAILEY HUTCHISON, Texas
BARBARA BOXER, California OLYMPIA J. SNOWE, Maine
BILL NELSON, Florida GORDON H. SMITH, Oregon
MARIA CANTWELL, Washington JOHN ENSIGN, Nevada
FRANK R. LAUTENBERG, New Jersey JOHN E. SUNUNU, New Hampshire
MARK PRYOR, Arkansas JIM DeMINT, South Carolina
THOMAS R. CARPER, Delaware DAVID VITTER, Louisiana
CLAIRE McCASKILL, Missouri JOHN THUNE, South Dakota
AMY KLOBUCHAR, Minnesota
Margaret L. Cummisky, Democratic Staff Director and Chief Counsel
Lila Harper Helms, Democratic Deputy Staff Director and Policy Director
Margaret Spring, Democratic General Counsel
Christine D. Kurth, Republican Staff Director and General Counsel
Kenneth R. Nahigian, Republican Deputy Staff Director and Chief Counsel
C O N T E N T S
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Page
Hearing held on March 29, 2007................................... 1
Statement of Senator Inouye...................................... 1
Statement of Senator Lautenberg.................................. 2
Witnesses
Gribbin IV, David James, Nominee to be General Counsel of the
U.S. Department of Transportation.............................. 1
Prepared statement........................................... 4
Biographical information..................................... 4
Appendix
Response to written questions submitted to David James Gribbin IV
by:
Hon. Daniel K. Inouye........................................ 19
Hon. Frank R. Lautenberg..................................... 22
Hon. Mark Pryor.............................................. 22
NOMINATION OF DAVID JAMES GRIBBIN IV TO BE GENERAL COUNSEL OF THE U.S.
DEPARTMENT OF TRANSPORTATION
----------
THURSDAY, MARCH 29, 2007
U.S. Senate,
Committee on Commerce, Science, and Transportation,
Washington, DC.
The Committee met, pursuant to notice, at 11:05 a.m. in
room SR-253, Russell Senate Office Building, Hon. Daniel K.
Inouye, Chairman of the Committee, presiding.
OPENING STATEMENT OF HON. DANIEL K. INOUYE,
U.S. SENATOR FROM HAWAII
The Chairman. Today the Committee will consider the
nomination of Mr. David J. Gribbin to the position of General
Counsel of the Department of Transportation.
If appointed, Mr. Gribbin will serve as the principal legal
officer and advisor to the Secretary of Transportation, the
Honorable Mary Peters.
Before I proceed, I'd like you to introduce your wife and
your seven children.
STATEMENT OF DAVID JAMES GRIBBIN IV, NOMINEE TO BE GENERAL
COUNSEL OF THE U.S. DEPARTMENT OF
TRANSPORTATION
Mr. Gribbin. Thank you, Mr. Chairman.
Behind me is my wife, Molly, and my children--I'll give
them in order of age--Quint, Emily, Abigail, Matthew, Benjamin,
Daniel and Nathaniel. Nathaniel is the one who keeps kicking
his shoes off, he's the little one.
The Chairman. You remembered their names.
Mr. Gribbin. Yes.
[Laughter.]
Senator Lautenberg. I thought I saw him looking at that
piece of paper, Mr. Chair.
[Laughter.]
The Chairman. The General Counsel of the Department will
play a key role of guiding the agency through the many
challenges ahead. Our Nation's transportation system is slowly
collapsing under the tremendous stress of increased congestion
caused by growing passenger and freight demand, and years of
underinvestment.
All modes of transportation are plagued by stubborn safety
problems. Our highways alone lose 43,000 human lives per year.
Tackling these problems will force us to face complex
fiscal, environmental safety and security issues requiring
extraordinary leadership. America's economic vitality, global
competitiveness, and most importantly, our quality of life,
depend on our creating a safe and efficient transportation
system.
Today we'll hear about Mr. Gribbin's qualifications to
serve in this important position, and his general outlook with
regard to transportation policy, as well as his views on the
privatization of public transportation infrastructure.
I have many technical questions, Mr. Gribbin. In order to
expedite the proceedings, I'd like to submit them to you for
your response.
Mr. Gribbin. Absolutely, sir.
The Chairman. May I now recognize Senator Lautenberg?
STATEMENT OF HON. FRANK R. LAUTENBERG,
U.S. SENATOR FROM NEW JERSEY
Senator Lautenberg. Thank you very much, Mr. Chairman. And
I don't want Mr. Gribbin or his family to think that because
the hall is not filled, that it's not a matter of great
interest. It really is very important, this assignment.
And, I look at this from several standpoints, and commend
you for wanting to take on this task. As you can imagine--and
as you'll find out if everything goes as you'd like it to--that
it is a tough job, but, a critically important one. And when
you think of our transportation network, I don't think there
has been enough made of the calculation concerning our national
security. Our transportation network, Mr. Chairman, is a
critical element in our country's security: we may call on it
for evacuation of people in an emergency, or to move goods and
materials that are critical to preventing any attacks. Heaven
forbid if one does occur, our transportation system is vital,
in terms of being able to respond positively.
Now, the Senate must perform its due diligence in assessing
and confirming nominees that are put forth by the Bush
Administration. And, once again, as I see your family,
obviously there's a lot of good characteristics in that group.
I have never seen such a well-behaved group of youngsters in my
life, and I'm an expert, because I've got 10 grandchildren and
4 kids of my own. So I know it's not easy, especially in
something as exciting as this must be to your littlest one.
[Laughter.]
Senator Lautenberg. Our country deserves nominees that are
qualified, who will carry out their duties provided by law, and
not simply blindly follow orders from the White House. And I
think, Mr. Gribbin, it's important--no matter what the job is--
to also include your conscience to make sure that the target is
a well-functioning transportation system. As Counsel, you have
an enormous amount of responsibility in that regard.
But, we have reasons to be skeptical. Recently, President
Bush had appointed a nominee to the Board of Amtrak who had
never ridden the train before. I asked him a question at his
Committee hearing about that, and he said he had just not done
it. And that, to me, raised a serious question of judgment--or
curiosity--about why the Bush Administration would propose such
a person for the job on the Board of Directors.
Now, we've not had a chance to meet, Mr. Gribbin, but I
look forward to doing so, so we can discuss things together.
But, I want to say to you at the outset--I'm concerned about
some of the things that you've advocated in the past,
especially with respect to privatizing assets owned by the
government.
Now, we've fought this battle before on Amtrak, and I
remind you that Amtrak was a composition of private passenger
railroad lines that had to be brought together under government
auspices. Our screeners at the airports were employed by
private companies--the airlines--and things did not get done
well. In both cases, we finally had to bring them into
government.
Now, I come out of the corporate world, Mr. Gribbin, and I
ran a large and successful company that I helped start. And, so
I know--having had experience in both areas, government and
business--that government employees are equally as committed--
maybe more so--than lots of people in the private sector.
Because it's not just for profit, it's for some element of
soul, some element of responsibility, love of country.
So, I would say that my view is that appointees,
significant office holders, have to express themselves in a way
that gets past pre-conceived ideas and looks at the situation
as it currently is.
So, I look forward to having some of my questions answered,
Mr. Chairman, and I thank you for moving this nomination
forward. Obviously, Mr. Gribbin is a man of some considerable
talent, but I want to discuss his views on privatization in
particular. Thanks, Mr. Chairman.
The Chairman. Thank you very much.
Congratulations, Mr. Gribbin, and now the show is yours.
Mr. Gribbin. Thank you, Mr. Chairman.
With your permission, I'll open with a brief statement, and
then will be glad to move into questions.
The Chairman. Your full statement will be made part of the
record.
Mr. Gribbin. OK, great, thank you very much.
Well, thank you, again, for providing this opportunity to
meet before this hearing. As, I think, my resume and my
statement indicates, I was the Chief Counsel of the Federal
Highway Administration, working for Secretary Peters, prior to
my current role at Macquarie. I spent 2 years at the Department
as her lawyer, and if confirmed, I greatly look forward to re-
joining her and some of my former colleagues over at the
Department, as this process moves forward.
Given the limited number of people here, and the relative
informality, since I'm the only witness, with your permission
I'll just submit my statement for the record, and we can
proceed directly to what you gentlemen are interested in, the
questions and answers.
[The prepared statement and biographical information of Mr.
Gribbin follow:]
Prepared Statement of David James Gribbin IV, Nominee To Be General
Counsel of the U.S. Department of Transportation
Thank you, Chairman Inouye, Vice Chairman Stevens, and Members of
the Committee. It is an honor for me to appear before you today as
President Bush's nominee to serve as General Counsel of the Department
of Transportation. I would like to introduce my wife Molly, who is here
with me today, and my children--Quint, Emily, Abigail, Matthew,
Benjamin, Daniel, and Nathaniel--who are all in attendance. I want to
express my gratitude to my family for their encouragement and support.
For the past decade, I have worked in the transportation area,
primarily focused on policy issues surrounding highway infrastructure.
As Chief Counsel for the Federal Highway Administration (FHWA), I
became very familiar with the Federal highway program, worked on a wide
variety of legal issues affecting the agency, and gained a solid
understanding of how the United States Department of Transportation
works. In addition, I had the opportunity to work with a number of
stakeholder groups including the environmental community, contractors,
and unions. If confirmed, I will enjoy having the opportunity to
reestablish ties with these leaders in transportation.
Making travel safer across all modes of transportation remains the
Department's top priority. As a father, I am very cognizant of the
importance of road and vehicle safety. My son has been driving for 2
years, and I take my daughter for her learner's permit this weekend.
Virginia has a program requiring parents to spend 20 hours in the car
with their child before granting a driver's license. While the rigors
of this program have probably taken a few years off my life, it is one
of many programs that have been created since I was licensed that
increase safety on our roads. We have made great strides in saving
lives and preventing injuries, but we can never become complacent about
protecting all Americans when they travel.
Secretary Peters has frequently said that transportation is
critical to the freedom we enjoy as Americans and to our Nation's
economic vitality. While our current transportation systems have served
us well, there are great challenges that lie ahead. If confirmed as
General Counsel of the Department of Transportation, I will assist the
Secretary in addressing these challenges as her chief legal advisor. I
had the privilege of working closely with the Secretary while she was
the FHWA Administrator and I was the FHWA Chief Counsel. If confirmed,
I look forward to serving under her again and working with her and with
each of you to address these challenges.
To that end, if I am confirmed as General Counsel, I will ensure
that the Department benefits from timely and accurate legal advice as
it carries out its mission to improve the transportation system for all
Americans. I also look forward to working cooperatively with the
Committee and its staff on transportation issues.
I am eager to use my legal training, my experience, and my
leadership and management skills to address the transportation
challenges we now face. I also look forward to working with you,
Secretary Peters, and my former colleagues to improve transportation
services in this country.
Thank you for considering my nomination. I would be pleased to
answer any questions you may have.
______
a. biographical information
1. Name (Include any former name or nicknames used):
David James Gribbin IV
Nickname: D.J.
2. Position to which nominated: General Counsel, United States
Department of Transportation.
3. Date of Nomination: January 11, 2007.
4. Address (List current place of residence and office addresses):
Residence: information not released to the public.
Office: Macquarie Holdings (USA), 125 West 55th Street, 22nd
Floor, New York, NY 10019.
5. Date and Place of Birth: August 21, 1963, Frankfurt, Germany.
6. Provide the name, position, and place of employment for your
spouse (if married) and the names and ages of your children (including
stepchildren and children by a previous marriage).
Mary Elizabeth Gribbin (spouse--not employed)
David James Gribbin V (18)
Emily Virginia Gribbin (15)
Abigail Elizabeth Gribbin (13)
Matthew Vernon Gribbin (11)
Benjamin Oswald Gribbin (8)
Daniel Loyd Gribbin (5)
Nathaniel Gene Gribbin (3)
7. List all college and graduate degrees. Provide year and school
attended.
Georgetown University, B.A., 1985.
Georgetown University Law Center, J.D., 1992.
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.
Runner, White and Steele.
Legislative Assistant, Congressman Larry Combest.
D.C. Committee Staff, Congressman Larry Combest.
Legislative Director, Congressman Larry Combest (management).
Legislative Representative, National Federation of Independent
Business.
National Field Director, Christian Coalition (management).
Director, Koch Industries (management).
Deputy Director Congressional Relations, Bush-Cheney Transition
(management).
Chief Counsel, Federal Highway Administration (management).
Division Director, Macquarie holdings (management).
9. Attach a copy of your resume. A copy is attached.
10. List any advisory, consultative, honorary, or other part-time
service or positions with Federal, state, or local governments, other
than those listed above, within the last 5 years: None.
11.List all positions held as an officer, director, trustee,
partner, proprietor, agent, representative, or consultant of any
corporation, company, firm, partnership, or other business, enterprise,
educational, or other institution within the last 5 years.
Board Member, Servants 4 Him (Guatemalan water ministry).
Board Member, Dominion Academy (Private elementary and middle
school).
12. Please list each membership you have had during the past 10
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.
Virginia Bar (1992-present), membership not restricted based on
any of the categories above.
National Rifle Association (circa 2003), membership not
restricted based on any based on any of the categories above.
Grace Bible Church (1996-2001), membership restricted on basis
of religion, but all are free to attend the services.
Potomac Hills Community Church (2001-2005), membership
restricted on basis of religion, but all are free to attend the
services.
Destiny Fellowship Church (2006-present), membership is
restricted on the basis of religion, but all are free to attend
the services.
13. Have you ever been a candidate for and/or held a public office
(elected, non-elected, or appointed)? No.
14.Itemize all political contributions to any individual, campaign
organization, political party, political action committee, or similar
entity of $500 or more for the past 10 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.
I do not keep copies of personal checks going back past 1999. The
list below is from personal records and on-line searches.
Contributions:
Bush for President, $1,000 (includes $500 contribution from
spouse), March 23, 2000.
RNC Victory 2000, $500, October 26, 2000.
RNC National State Elections Committee, $457, December 5, 2000.
Joe Finley for Congress, $500, September 23, 2002.
President's Club, $2,225, April 6, 2004.
Bush for President, $500, April 2004.
Services to a national party or election committee:
Alternate, Republican National Convention 1996.
Volunteer, Republican National Convention 2000.
Volunteer, Republican National Convention 2004.
15. List all scholarships, fellowships, honorary degrees, honorary
society memberships, military medals, and any other special recognition
for outstanding service or achievements.
American Road and Transportation Builders Association's
Entrepreneur of the Year for 2005.
16. Please list each book, article, column, or publication you have
authored, individually or with others. Also list any speeches that you
have given on topics relevant to the position for which you have been
nominated. Do not attach copies of these publications unless otherwise
instructed.
I authored, individually or with others the following articles and
publication:
The Current FTD System: Far From the Delivery of Roses, Tax
Notes, September 1992.
Get Involved in Your Government, Christian American, April
1994.
1994: The Year of the Believer, Christian American, May/June
1994.
Grassroots Effort Paid Off, Christian American, November/
December 1994.
Coalition Expands Operation for 1995, Christian American,
January 1995.
State Leaders Converge on Capitol, Christian American, February
1995.
Coalition Slates School Board Seminar, Christian American,
March 1995.
Coalition Set to Break Barriers, Christian American, April
1995.
State Leaders Advance Cause, Christian American, May/June 1995.
Participation Brings Change, Christian American, July/August
1995.
Bridge Building Across Racial Lines, Christian American,
September 1995.
Local Emphasis Ensures Victory, Christian American Magazine,
January/February 1996.
Christian Coalition Goes Global, Christian American Magazine,
May/June 1996.
Baby Steps for Democracy, Christian American Magazine, July/
August 1996.
Persistence Pays Off, Christian American Magazine, September/
October 1996.
Campaign to Derail Voter Guides Failed, Christian American
Magazine, November/December 1996.
Changed Lives Make the Best Public Policy, Christian American
Magazine, May/June 1997.
Training for the Future, Christian American Magazine, July/
August 1997.
Seeking God's Face, Christian American Magazine, November/
December 1997.
Report to Congress on Public-Private Partnerships, United
States Department of Transportation, December 2004.
Speeches on topics relevant to the position for which I have been
nominated include these speeches given when I was working for the
Federal Highway Administration:
November 17, 2003, presentation to Mobility 21 on the topic of
the highway bill.
December 2003, presentation to the National Council for Public
Private Partnerships on the topic of the highway bill.
February 11, 2004, presentation to the Jacksonville Florida
Chamber of Commerce on the topic of the highway bill.
February 11, 2004, presentation to the Road Gang on the topic
of the highway bill.
April 23, 2004, presentation to the Design Build Institute of
America on the topic of the highway bill.
May 5, 2004, presentation to the Rome Chamber of Commerce on
the topic of the highway bill.
June 22, 2004, presentation to the Wisconsin Transportation
Finance Summit on the topic of the highway bill.
July 21, 2004, presentation to the Transportation Research
Board Lawyers Division on the topic of the highway bill.
December 9, 2004, presentation to the American Road and
Transportation Builders Association on the topic of the highway
bill.
January 27, 2005, presentation to the Road Gang on the topic of
the highway bill.
March 9, 2005, presentation to the American Road and
Transportation Builders Association on the topic of the highway
bill.
April 19, 2005, presentation to State-Federal Transportation
Conference on the topic of the highway bill.
May 11, 2005, presentation to CH2MHill's board of directors on
the topic of the highway bill.
May 24, 2005, presentation to the National Council for Public
Private Partnerships on the topic of the highway bill.
I gave these speeches while I was at Macquarie Holdings (USA),
Inc.:
April 10, 2006, presentation to Macquarie business leaders on
state of the market.
August 4, 2006, presentation to the Design Professional
Coalition on the topic of concessions (a long-term lease of an
asset in which the concessionaire takes over responsibility for
operations and maintenance in exchange for the right to collect
revenue).
August 8, 2006, presentation to the Institute of Transportation
Engineers on the topic of concessions.
September 19, 2006, presentation to the American Council of
Consulting Engineers on the topic of concessions.
September 28, 2006, presentation in a forum for Street Smart, a
new book by Gabriel Roth.
October 5, 2006, presentation of the Kraft Lecture to the
National Association of Bond Lawyers on the topic of
concessions.
October 6, 2006, presentation to ASFE on road concessions.
October 27, 2006, presentation to Federal Highway
Administration on the topic of concessions.
November 14, 2006, presentation to the Indiana Transportation
Conference on the topic of concessions.
November 15, 2006, presentation to the National Partnership for
Highway Quality Conference on the topic of concessions.
November 16, 2006, presentation to the American Road and
Transportation Builders on the topic of concessions.
December 5, 2006, presentation to the Urban Land Institute on
the topic of concessions.
December 7, 2006, presentation to the Pennsylvania Highway
Information Association on the topic of concessions.
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.
March 22, 1991, testimony before House Ways and Means
Subcommittee on Human Resources on the topic of the
Unemployment Insurance Reform Act of 1991, representing the
National Federation of Independent Business.
May 13, 1993, testimony before the Senate Veterans Affairs
Committee on the topic of the Uniformed Services Employment and
Reemployment Rights Act of 1993, representing the National
Federation of Independent Business.
September 30, 2004, before the House Government Reform
Subcommittee on Energy Policy, Natural Resources, and
Regulatory Affairs on the topic of Maximizing Private
Participation in Public Transportation. I was not listed as a
participant in the hearing, rather accompanied then-FTA
Administrator Jenna Dorn to answer highways-related questions.
April 22, 2005, testimony before the House Government Reform
Committee on the topic of the Boston Central Artery/Tunnel.
May 22, 2006, testimony before the House Transportation and
Infrastructure Committee Subcommittee on Highways, Transit and
Pipelines on the topic of highway concessions, representing
Macquarie.
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?
For the past decade, I have worked in the transportation area,
primarily focused on policy issues surrounding highway procurement. As
Chief Counsel for the Federal Highway Administration (FHWA), I became
very familiar with the highway program, worked on a wide variety of
legal issues affecting the agency, and gained a solid understanding of
how the United States Department of Transportation works. In addition,
I had the opportunity to work with a number of stakeholder groups
including the environmental community, contractors, and unions. During
my tenure at FHWA, I served under Secretary Peters while she was FHWA
Administrator. I understand her priorities and appreciate her
management style because of this experience.
I would like to serve as the General Counsel for the Department
because I truly enjoy public service and believe Secretary Peters will
do an exceptional job serving the public during her tenure. I look
forward to working with her and my former colleagues to improve
transportation services in this country.
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?
I believe the Office of the General Counsel should work closely
with the Office of the Assistant Secretary for Budget and the Office of
the Inspector General to ensure management and accounting controls are
in place and being adhered to.
Management experience of large organizations includes my time as
the National Field Director of the Christian Coalition, during which I
managed a staff (paid and volunteer) of 50 that oversaw a network of
hundreds of volunteers, and my time as Chief Counsel for Federal
Highways, during which I managed a staff of 50 attorneys.
20. What do you believe to be the top three challenges facing the
department/agency, and why?
I believe the top three challenges facing the United States
Department of Transportation are:
(1) Making travel safer across all modes of transportation.
Great strides have been made in saving lives and preventing
injuries, but we can never become complacent about protecting
all Americans when they travel. The Department must work with
state and local partners to help build safety considerations
into every transportation decision.
(2) Improving the performance and reliability of our entire
transportation system. America's competitiveness, to a large
degree, rests on our ability to move people and products
quickly and inexpensively across the continent and world. This
capability is eroding, and our Nation faces serious congestion
on the highways, at our ports, at our airports, and on the
rails that threatens our economic vitality and our leadership
in the global marketplace.
(3) Finding 21st century solutions to 21st century
transportation challenges. Today, much of our vital
transportation infrastructure is showing its age. At the same
time, our growing economy is placing unprecedented demands on
all of our systems, while the funding sources we have relied on
are less able to keep pace with our needs. Because traditional
approaches to transportation planning and policies are becoming
less effective, the Department needs to help identify and
implement fresh approaches to transportation planning and
programs to help keep America moving in the 21st century.
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.
If confirmed and appointed, I will have no financial arrangements
with business associates, clients, or customers. Currently, I am an
employee of Macquarie Holdings, Inc. and am paid by them.
My retirement accounts are:
National Federation of Independent Business defined benefit
plan worth a few hundred dollars a month at retirement.
Koch Industries defined benefit plan worth about $800 a month
at retirement.
J.P. Morgan managed Koch 401(k) account with the following sub-
accounts--
Barclays Global Investment Life Path 2010.
American Funds Growth Fund of America.
SSgA S&P 500 Fund-C.
American Funds EuroPacific Growth R4.
Fidelity managed Macquarie 401(k) account with the following
sub-accounts--
Blue Chip Growth.
Pacific Basin.
Aggressive Growth.
Retirement Money Market.
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? 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: Please refer to the
Deputy General Counsel's opinion letter.
4. Describe any business relationship, dealing, or financial
transaction which you have had during the last 10 years, whether for
yourself, on behalf of a client, or acting as an agent, that could in
any way constitute or result in a possible conflict of interest in the
position to which you have been nominated: None.
5. Describe any activity during the past 10 years in which you have
been engaged for the purpose of direct or indirectly influencing the
passage, defeat, or modification of any legislation or affecting the
administration and execution of law or public policy.
My roles at Macquarie Holdings, Inc., the Federal Highway
Administration, and Koch Industries included supporting increased
involvement of the private sector in providing, operating, and
maintaining transportation infrastructure. I participated in meetings,
presentations, and testified in favor of policy changes that would
allow increased private-sector involvement in the transportation
sector.
6. Explain how you will resolve any potential conflict of interest,
including any that may be disclosed by your responses to the above
items: Please refer to the Deputy General Counsel's opinion letter.
c. legal matters
1. Have you ever been disciplined or cited for a breach of ethics
by, or been the subject of a complaint to any court, administrative
agency, professional association, disciplinary committee, or other
professional group? 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.
Investigated by the FBI and potentially by other agencies for
security clearance while at FHWA and for nomination to be General
Counsel for the United States Department of Transportation.
3. Have you or any business of which you are or were an officer
ever been involved as a party in an administrative agency proceeding or
civil litigation? No.
4. Have you ever been convicted (including pleas of guilty or nolo
contendere) of any criminal violation other than a minor traffic
offense? 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.
Yes. I was informally accused of race discrimination. While working
as Chief Counsel of FHWA, I hired an administrative assistant out of
the pool of administrative assistants already in the office. The hiring
decision was made in conjunction with two FHWA career staff, and the
successful applicant was supported unanimously. One of the unsuccessful
candidates complained that she was not chosen because of her race. She
threatened to file a formal complaint but never did, and the matter was
dropped.
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.
2. Will you ensure that your department/agency does whatever it can
to protect Congressional witnesses and whistle blowers from reprisal
for their testimony and disclosures? Yes.
3. Will you cooperate in providing the Committee with requested
witnesses, including technical experts and career employees, with
firsthand knowledge of matters of interest to the Committee? Yes.
4. Are you willing to appear and testify before any duly
constituted committee of the Congress on such occasions as you may be
reasonably requested to do so? Yes.
______
resume of david james gribbin iv
Experience
Division Director, Macquarie Holdings, Inc. (USA), January 2006 to
present.
Provide marketing strategy and business development for asset
acquisitions in the U.S.
Lead government relations at Federal, state, and local levels.
Sabbatical, July 2005 to December 2005.
Took family to Guatemala to experience life in a developing
country.
Created non-profit, tax-exempt corporation to serve needs of
impoverished Guatemalans.
Chief Counsel, Federal Highway Administration, July 2003 to July
2005.
Legal Counsel to Federal Highway Administrator, Deputy
Administrator and Executive Director.
Manage staff of 50 attorneys to provide agency with accurate
and timely legal advice on all matters affecting FHWA.
Director, Public Sector Business Development, Koch Industries, July
1999 to July 2003.
Develop and execute strategic plan for expanding Koch
businesses in 12 targeted states working with Governors,
legislators, and leaders in state highway authorities.
Manage public-sector capabilities, including media, government,
and community relations for Koch Materials using internal
resources and consultants.
Director, Government Affairs, Koch Industries, September 1997 to
July 1999.
Managed staff of seven to execute Federal legislative and
political efforts of company.
National Field Director, Christian Coalition, February 1994 to
September 1997.
Managed staff of 15 and over 50 volunteers to oversee
grassroots, political, fundraising, and media strategies of 48
state affiliates of the Coalition and 1,980 local chapters.
Edited and compiled the Coalition's grassroots training
program, which consisted of five different manuals and a number
of workshops. In 1996 alone, these materials were used to train
over 16,000 activists in 263 schools held across the country.
Served as Executive Producer for the Coalition's monthly
satellite television show, Christian Coalition Live.
Created organizations for outreach to African-American
community (The Samaritan Project) and to Catholic community
(The Catholic Alliance).
Legislative Representative, National Federation of Independent
Business (NFIB), April 1989 to February 1994.
Lobbied U.S. House of Representatives and Senate on behalf of
the Nation's largest organization representing small
businesses.
Testified before committees of both Houses of Congress.
Developed proposal for NFIB's Legal Foundation.
Legislative Director, U.S. Rep. Larry Combest (R-TX), July 1988 to
April 1989.
Managed the legislative program in the office to keep both the
Congressman and his constituents informed of legislation
pending before the House of Representatives.
Professional Staff, House Committee on the District of Columbia,
June 1988 to July 1989.
Drafted amendments to legislation pending before the Committee,
attended hearings with and on behalf of Congressman Combest,
and worked to defeat legislation providing for D.C. statehood.
Legislative Assistant, U.S. Rep. Larry Combest (R-TX), May 1986 to
July 1988.
Tracked legislation pending before the U.S. House of
Representatives in order to keep both the Congressman and his
constituents informed. Focused on legislation affecting foreign
affairs, trade, education, labor, and transportation issues.
Education
Georgetown University Law Center, Washington, D.C., 1992.
Graduated with a Juris Doctor, cum laude.
Georgetown University Washington, D.C., 1985.
Graduated with a Bachelor of Arts in Philosophy.
Mandarin Training Center, Taipei, Taiwan, 1983.
Other Activities
Help America Vote Act Volunteer, Cuyahoga County, Ohio, 2004.
Board Member, Dominion Academy, 2002 to 2004.
A private school in Leesburg, Virginia.
Deputy Director of Congressional Relations, Bush-Cheney Transition,
December 2000 to February 2001.
Assisted Director of Congressional Relations in managing
contacts with Members of Congress and coordinating strategy for
getting the President's Cabinet nominated.
Official Proceedings, Republican National Conventions, 2000 and
2004.
Assisted speech coaches train Convention speakers.
Lecturer, American University, 1996 and 1997.
Lectured graduate and undergraduate students on grassroots
organization and lobbying.
Lecturer, Kennedy School of Government, 1996.
Lectured graduate students on grassroots organization and
political mobilization.
Trainer, International Republican Institute, 1996.
Worked with over 100 local candidates in KwaZulu Natal, South
Africa to prepare them for the first democratically held
elections in the history of that province.
Virginia Alternate Delegate to Republican National Convention in
San Diego, 1996.
Senator Lautenberg. Thanks, Mr. Gribbin.
Mr. Gribbin. Yes, Senator.
Senator Lautenberg. OK, so that neither one of us is
particularly good at this audio technology.
I would ask, if it's all right with you, Mr. Chairman,
whether or not we can hear this statement as Mr. Gribbin has
prepared. It's not long at all, and so is that something you
have a copy of?
Mr. Gribbin. Absolutely, sir, absolutely.
Senator Lautenberg. Yes.
Mr. Gribbin. I was just trying to be sensitive to your
time. I know that you have votes.
Senator Lautenberg. Thank you for the consideration of the
time. But, I'd like to hear your statement.
Mr. Gribbin. Again, thank you very much for having me here
today, it's an honor for me to appear before you as President
Bush's nominee to serve as General Counsel at the Department of
Transportation. I've already introduced my family, but I want
to express my gratitude to them for their support and
encouragement through this process.
For the last decade, I've worked in the transportation
area, primarily focused on policy issues surrounding highway
infrastructure. As Chief Counsel of the Federal Highway
Administration, I became very familiar with the Federal Highway
program, and worked on a wide variety of legal issues affecting
the agency. I also gained a solid understanding of how the
United States Department of Transportation works.
In addition, I had the opportunity to work with a number of
stakeholder groups, including the environmental community,
contractors, and unions, and if confirmed, I will enjoy having
the opportunity to re-establish ties with these leaders in
transportation.
Making travel safer across all modes of transportation
remains the Department's top priority. As a father, I'm very
cognizant of the importance of road and vehicle safety. My son
has been driving for 2 years, and I take my daughter for her
learner's permit this weekend.
Virginia has a program requiring parents to spend 20 hours
in the car with their child as they're learning how to drive.
Now, while the rigors of this program have probably taken a few
years off of my life, it is one of the many programs that have
been created since I was licensed that increased safety on our
roads.
We have made great strides in saving lives and preventing
injuries, but we can never become complacent about protecting
all Americans when they travel.
Secretary Peters has frequently said that transportation is
critical to the freedom we enjoy as Americans, and to our
Nation's economic vitality. While our current transportation
systems have served us well, there are great challenges that
lie ahead. If confirmed as the General Counsel of the
Department of Transportation, I will assist the Secretary in
addressing these challenges as her chief legal advisor.
As I mentioned, I had the privilege of working closely with
the Secretary while she was the Federal Highway Administrator,
and I was the Federal Highway Chief Counsel. If confirmed, I
look forward to serving under her again, and working with her--
and with this Committee--to address these challenges.
To that end, if I'm confirmed as General Counsel I will
ensure that the Department benefits from timely and accurate
legal advice, as it carries out its mission to improve the
transportation system for all Americans. And, if confirmed, I
look forward to working cooperatively with the Committee and
its staff on transportation policy.
I'm eager to use my legal training, my experience, and my
leadership and management skills to address the transportation
challenges we face. I also look forward to working with you,
Secretary Peters, and my former colleagues to improve
transportation services in this country.
Again, thank you for considering my nomination. I'd be
pleased at this time to answer any questions you may have.
Senator Lautenberg. Thanks, Mr. Gribbin.
When it's not trying to shut down Amtrak altogether, the
Bush Administration has been advocating privatizing our
Nation's passenger railroad system. And, this ideology has been
largely rejected over the years. Now, how are you going to deal
with the movement within the Administration to privatize or
outsource Amtrak's functions? What's your view on that?
Mr. Gribbin. Well, let me start by saying that I have
ridden Amtrak, in fact I ride it repeatedly. In my current role
with Macquarie, I have an office in D.C. and in New York, and
Amtrak is the most reliable way to get from New York to D.C.
Senator Lautenberg. I agree.
Mr. Gribbin. Usually I try to fly, but if you've flown in
and out of LaGuardia, you'd understand that that's not a
particularly reliable option. So, I definitely appreciate the
services that Amtrak provides.
That said, I'm not--to be honest with you--very familiar
with the Administration's policy toward the privatization of
Amtrak. It is my understanding, that unlike my predecessor, I
will not be on the Amtrak Board and will not be in a kind of
policy position regarding the Amtrak. My role will be primarily
focused on supporting the Secretary and providing her with
legal advice regarding the Department's role vis-a-vis Amtrak.
Senator Lautenberg. But, she'll come to you for guidance,
you will also, not only be a policymaker, you'll also be a, an
auditor as--I'm not using the term in the formal sense--but
you'll also be looking at ways that you might think could
improve the operations of Amtrak. And, the Administration has
not been shy at all about suggesting, through funding, that
Amtrak could be shut down.
Now, in each case over the last couple years, it's been the
Congress--the Senate, and the House--restoring the funding for
Amtrak's operations. Even so, we've had a tough time. In the
preparation for the budget this year, the amounts allocated
through the Budget Committee and in the budget resolution are
substantially higher, maybe by twice, than that which comes
down from the Bush Administration.
So, one of the things that concerns me is the idealogy that
if we can shed ourselves of the ownership of Amtrak, we can
also shed ourselves of the responsibility of funding it. And,
that's not the full measure of the value of Amtrak now. You've
had this experience working in the private sector with a
company that is one of the largest operators of toll roads.
And, now, have they acquired those roads from government
ownership over the years?
Mr. Gribbin. Yes, Senator, actually to be clear, the
government continues to own the facility. The private sector
would come in and lease it to them for a fixed period of time.
But ownership remains with the state and with the public.
Senator Lautenberg. OK, so what's the advantage to having
these things become part of a private enterprise?
Mr. Gribbin. Advantages can be found on several different
levels. Talking particularly about toll roads--right now, the
public has invested heavily in these facilities and actually
the facilities are worth considerably more than can be realized
under a traditional tax-exempt borrowing mechanism. The primary
benefit that concessions bring, is the concessionaire is able
to tap a market for finance that's different than what the
public can tap.
You saw in Indiana, where they studied the tax-exempt value
of the toll road. Basically the state went out and said, ``What
would this asset be worth if we were to just bond against
future toll streams? '' And, the answer turned out to be about
half of what the concessionaire ended up paying at the end of
the day. There's no particular magic as part of that, it really
is a result of the fact that the private sector has access to
debt that the public sector does not.
Senator Lautenberg. Unless the borrowing is supported by
the full faith and credit of the entity, being the state or
county or the Federal Government.
Mr. Gribbin. That's absolutely true.
Senator Lautenberg. Right. And, are those conditions
particularly noted in the agreement with the private
contractors that the state--most of these are state-owned
roads, I assume--do they ask, or must they in order to borrow
in the marketplace at the best rates, do they ask for the
support of the state government, in terms of the issuance of
these bonds?
Mr. Gribbin. No, they do not. The bonds that are issued and
the debt that is issued in the private sector carries no
backing from the government at all. So, if the private sector
were to overpay, which has actually happened in several
instances in this country, those investors lose their money
with no recourse back to the state or back to taxpayers.
Senator Lautenberg. Why do we see the borrowing process
easier in the private sector than in the public sector?
Mr. Gribbin. The public sector has access to, essentially
what we're talking about, is the tax-exempt bond market.
Senator Lautenberg. Yes.
Mr. Gribbin. Which tends to be relatively conservative in
its lending practices. A borrower needs to get a rating, all of
that. Where, the private sector can tap into equity and then
debt beneath that equity. The equity is going to take a little
bit more of a risk, sees a brighter future, and therefore
lenders will lend more against a facility than you can get in
the tax-exempt market.
Senator Lautenberg. What happens to the--your experience
has been fairly limited to highway issues, but the future
transportation needs of our country can not be met by cars and
airplanes alone. Now, if confirmed, how would you ensure that
we have a balanced transportation system, with rail travel
options for both travelers and freight shippers? Or, do you
believe that a balanced transportation system is a necessary
composition?
Mr. Gribbin. Sir, yes, I think a balanced transportation
system is vital. Right now we have transportation systems
across a wide variety of modes and still have a significant
amount of congestion. So, clearly we need everything we have
currently, and more of it. I think having a balanced approach,
an inter-modal approach too, is very important.
Senator Lautenberg. Well, the experience that you described
about going up to New York is interesting, because I do it on a
regular basis. I go up to either Newark airport or LaGuardia
airport because I live in New Jersey, mid-way between the two
airports.
And, what I find is that I'll get on a flight, as I did
last Friday night--a week ago, Mr. Chairman--for a 5 o'clock
flight. We--the pilot always introduces the plan, and says that
this is a 36-minute flight. And, the 5 o'clock flight left the
ground at 7:15 p.m., and got to New York--after circling
awhile--at 8:15 p.m., and then we found that there were no
gates ready for us, so that took another 10 minutes. So, that 5
o'clock flight unloaded its passengers at--about 3 hours and 25
minutes later.
That train, as you noted, it's pretty comfortable. And I
think we need to continue to look at how to expedite things in
this country. As I'm sure you're aware, the skies are terribly
crowded now. And there's going to be a whole series of new
airplanes, they're being introduced, the very light jets. They
expect 5,000 of them to be in the sky in the next 10 years. And
so, we now see these late flights--one out of four flights
across America; even more out of Newark are delayed--but across
America, the delays are still enormous. And, so, and if we talk
about an alternative that suggests that maybe Amtrak could help
relieve the congestion, if we then want to put it in the
private marketplace where it, again, had its origination, I
think that leaves us in a difficult position.
Now, your employer, Macquarie, purchased the Virginia
Dulles Greenway from a Haliburton subsidiary that had defaulted
on its debt payments. Now it's clear that the Haliburton
subsidiary cashed out, now Macquarie is looking to raise tolls
on Northern Virginia drivers. Now, how does the traveling
public benefit from big investment firm deals, such as these?
Mr. Gribbin. Very good question, Senator. I actually take
the Greenway, I took it on my way here this morning, although
the accident on the Dulles Toll Road negated any savings I got
from the Greenway, but that's another story.
Senator Lautenberg. You were really preparing for this
hearing.
[Laughter.]
Mr. Gribbin. Exactly.
Senator Lautenberg. Tried them all.
Mr. Gribbin. Yes, I actually spent 2 hours in traffic with
seven kids in the car, and so I thought, ``The hearing will be
the easy part of the day.''
But, back to the Greenway. In essence, my family moved out
to Leesburg because of the Greenway. It gives us a relatively
quick way to get to and from Washington, D.C. And, while the
tolls are going up and--to be honest with you, I haven't shared
this with my employer yet--but I actually bypass the Greenway
when there's no congestion. It's a $3.00 toll. When I head home
this afternoon, since we'll probably get out before rush hour,
I won't take the Greenway. On the way in this morning I was in
a hurry, and I took it.
That facility would not have been built by the Commonwealth
of Virginia. It just wouldn't exist. So, the choice really came
down to, in that case--are taxpayers willing to pay a little
extra for facility, and have the option of using it, or not
have a facility at all?
Senator Lautenberg. Do you see a role for rail in dealing
with emergencies like 9/11 or natural disasters like
hurricanes? You know, Mr. Chairman, there were a couple of
major nuclear generating/energy generating plants that were
abandoned after the facility was built, and built meaning
having invested billions of dollars. They were abandoned
because there was no satisfactory evacuation process or design
to get people away if there was a problem in the nuclear plant.
So, do you see a role for dealing with emergencies like 9/11,
natural disasters like hurricanes, or those accidents? Or
breakdowns in the system, as a result of insufficient access to
modes of transportation, like rail?
Mr. Gribbin. Oh, absolutely. I think that in an emergency
you need to take advantage of every mode of transportation you
have. And, if you have access to good rail transportation, that
actually should be taken advantage of.
Senator Lautenberg. OK, so do you see any inconsistency
between your call, call for privatization and the reliability
of having facilities available for emergencies?
Mr. Gribbin. Not at all, because when you have concession
agreements, which are leases, the concessionaire has to abide
by the concession agreement. Which in the case of Indiana and
Chicago, are a couple-hundred page documents. These agreements
will include such things as, ``in case of emergencies the
concessionaire needs to do the following . . .'' And, again,
because the state is the owner, or the city is the owner, they
have the right to prescribe whatever type of emergency scenario
they want.
For example, the owner could say to the concessionaire,
``In case of emergencies all tolls need to be lifted.'' Or,
``In case of emergencies, traffic must be reversed on lanes so
that more people can head in a certain direction.'' So, the
fact that a facility is privately operated, shouldn't inhibit
at all what's able to be done in an emergency.
Senator Lautenberg. You look at the Chicago situation with
the elevated----
Mr. Gribbin. Yes, sir.
Senator Lautenberg. Is that portion of the system a
candidate for privatizing, with all of the infrastructure
improvement that has to be made there?
Mr. Gribbin. The Chicago Skyway has already been
privatized, or has been concessioned. If there are other
segments of highway in that area, I'm not familiar with them.
But, yes, and in that case----
Senator Lautenberg. Well, that's not a good argument for
privatization. I mean, that system has really broken down, Mr.
Chairman.
Well, thank you very much, Mr. Gribbin.
And, Mr. Chairman, the one thing that I think we have to
make certain of, is that, talks about privatization should take
place before there's any precipitous action--or any action--
because it's going to run afoul, many thoughts about
privatizing something as essential as rail systems, that have
their peculiarity of making money, or at least having decent
revenues when the work hours are there, but otherwise having to
make up for a lot of dead time and idle equipment.
Mr. Gribbin, thanks very much.
Mr. Chairman, I'll reserve the right to submit further
questions in writing.
Mr. Gribbin. Thank you, Senator.
The Chairman. I thank you very much. At the request of
Members of the Committee, I wish to assure them that the
hearing record will remain open for 2 weeks. This will just
cover the recess period, so that Members will have time to
submit any further questions for the record, like Senator
Lautenberg.
And I would urge all Members who would like to meet
personally with Mr. Gribbin to do so at their earliest
convenience. The Committee also expects the nominee to answer
these questions submitted for the record, fully and
expeditiously.
And, Mr. Gribbin, I thank you very much for your testimony
this morning and I thank your wife, Molly, and children for
being in attendance and well-behaved.
Mr. Gribbin. Thank you, Mr. Chairman.
The Chairman. The hearing is now adjourned.
[Whereupon, at 11:35 a.m., the hearing was adjourned.]
A P P E N D I X
Response to Written Questions Submitted by Hon. Daniel K. Inouye to
David James Gribbin IV
Question 1. Please describe your work with the private sector on
transportation infrastructure, particularly with respect to private
operations of roads and other infrastructure.
Answer. I have worked for both Koch Industries and Macquarie (my
current employer) encouraging the increased use of the private sector
in the provision of transportation infrastructure. At Koch, I worked
with a business called Koch Performance Roads, Inc. (KPRI). This
business offered to design, build and maintain an asphalt pavement for
a number of years. This approach freed states from concerns that a
contractor might provide them with sub-standard pavement, because all
the future liability was carried by the entity doing the design and
construction.
At Macquarie, I have been involved in helping state and local
governments understand when they might benefit from operating some of
their assets as a concession. While not appropriate for all
circumstances, concessions can be very helpful to meet capital needs of
a state or local government.
Question 2. What role should the government have in ensuring that
all citizens, regardless of income, have access to affordable, reliable
and efficient transportation options?
Answer. Transportation is key to enabling people to find productive
employment, which is the best way to eliminate poverty and the
suffering caused by poverty. Governments have historically worked to
ensure that low-income workers have access to affordable
transportation, and they should continue to do so.
Question 3. Do you believe government subsidies are a legitimate
tool to preserve access to transportation facilities for citizens who
are priced out of using a transportation facility, such as a toll road
that has been turned over to a private operator?
Answer. Yes.
Question 4. What role does the Federal Government have in
preserving efficient and equitable interstate mobility when a state or
other public entity turns a public transportation asset over to a
private company?
Answer. The Federal Government's role has traditionally been
focused on a number of areas, including ensuring that taxpayer dollars
are spent appropriately, establishing safety standards, and providing a
nationwide perspective on mobility. This role should be maintained even
on systems containing a privately leased facility.
Question 5. How does the Federal Government ensure that private
operators continue to invest in and upgrade the public infrastructure
that they operate on a long-term basis, especially toward the end of a
concession, when a private company might be reluctant to expend
capital?
Answer. Current concession agreements require concessionaires to
maintain and upgrade the highways they operate. At the end of the
concession term, concessionaires have less of an incentive to keep the
facility in excellent condition. To counter this lack of incentive,
concession agreements must require concessionaires to hand the facility
back in a defined condition and to make needed capital expenditures in
the waning years of the agreement.
Question 6. Mr. Gribbin, two significant truck safety rules
promulgated in the past several years by the Federal Motor Carrier
Safety Administration and approved by the DOT General Counsel were
ruled ``arbitrary and capricious'' and thrown out by the Federal
courts. In these cases, the court noted the poor quality of these rules
developed by the Department and the disregard of Congressional intent
demonstrated by the DOT in crafting them. What will you do as General
Counsel to ensure that the quality of the rules promulgated by the
Department improves and that Congressional intent is fully considered
when such rules are crafted?
Answer. If confirmed. I would commit all the time and attention it
takes to ensure that the regulations promulgated by the Department are
of the highest quality, and that they reflect the intent of Congress.
Question 7. As the DOT's head lawyer, you would review and approve
all of the regulations promulgated by the Department, including the
safety regulations that are so important to the transportation system
and the traveling public. While you have clearly had experience in the
transportation policy arena, can you tell the Committee what
significant regulatory work you have been involved in during your
career that qualifies you for this significant position?
Answer. I have worked on a wide variety of regulatory matters from
the early 1990s through my time as Chief Counsel for FHWA. During my
time at the National Federation of Independent Business (NFIB) in the
early 1990s, I helped re-shape the payroll deposit rules (which are
found in Internal Revenue Service regulations) for small businesses.
The changes made and the policy reasons behind them can be found in an
article I wrote for Tax Notes Magazine. Most of my regulatory
experience occurred during my time at FHWA, where I worked on
regulations across a wide variety of policy areas.
Question 8. Mr. Gribbin, your transportation experience has
primarily been in the highway sector. What experience do you have with
the other modes of transportation within the Department that will
prepare you for this position? As you know, ports and maritime vessels,
airlines, railroads, trucks, pipelines, and automobiles are all equally
important to this Committee.
Answer. I agree that transportation experience in government is a
plus in undertaking a job as significant as that of Department of
Transportation General Counsel, and my former position as Federal
Highway Administration Chief Counsel has exposed me to the fundamentals
faced in each mode, including drafting regulations and legislation,
managing litigation, enforcing personnel protections, and carrying out
the letter and spirit of numerous Federal laws, such as the National
Environmental Protection Act. While more experience in other modes of
transportation would be advantageous, my employment background in
transportation is comparable to or broader than that of the last
several DOT General Counsels at the time of their appointments.
Question 9. Under current law, there is a pilot program that would
allow tolling on existing interstates. Do you support requiring a state
that leases the existing interstate operations and tolling authority to
a private operator to share those proceeds with the Federal Government
to repay the Federal investment in that interstate segment?
Answer. Current law requires states participating in the lease of a
highway asset that has been partially financed with Federal funds to
use an amount equivalent to the Federal contribution for title 23
purposes. This balances the states' need for flexibility with the
Federal Government's stewardship responsibility and ensures that
highway fund receipts are used for their intended purpose.
Question 10. There seem to be significant problems with the public-
private partnerships and highway privatization schemes in the United
States and Canada that I have looked at to date. For example, State
Route 91 in California was eventually bought back by the state, at a
considerable cost to the government. In Canada, the Toronto community
has consistently complained about increased tolls after its local
government sold the 407 Expressway. The government sued to stop toll
increases but lost, and the community is now stuck with private
ownership for the next 90 years. What protective measures must the
public sector take to ensure future projects are successful and
primarily benefit the public, not private companies' shareholders?
Answer. Concession agreements, due to their long duration, have
provisions allowing the owner of the facility to terminate the lease
and take back operational control of the facility. In the case of SR
91, Orange County purchased the franchise rights and now operates it
itself. Interestingly, since the county took control, it has doubled
the toll rates, and the facility is worth far more than its purchase
price. Similarly, the government has the right to terminate the
concession on the 407 Expressway as long as it pays the concessionaire
for the value of the facility. From a policy standpoint, long-term
concessions pose a potential problem because political needs are likely
to change over the life of the concession. This problem, however, can
be addressed by including provisions in the lease agreement to protect
the public, such as allowing the government to terminate the concession
at any point by paying the fair market value of the remaining
concession rights.
Question 11. The FAA's greatest challenge is the successful
modernization of the National Airspace System. This complex multi-year
effort will require substantial resources. The FAA, however, has a
history of mismanagement--cost overruns and delays--in handling past
modernization programs. Do you have any recommendations on measures DOT
should be taking to ensure FAA modernization is accomplished in an
effective and timely manner?
Answer. While I served in the Department, the Inspector General's
office worked with the different modes on a ``mega projects'' oversight
process. This process was designed to help avoid problems with cost
overruns and delays. In addition, I understand Congress has funded a
Joint Planning and Development Office within the Federal Aviation
Administration to address just these sorts of challenges. Finally, it
has been my experience that significant cost overruns and delays, i.e.,
those not caused by changes in material costs or minor modifications to
scope, are caused by a failure to clearly define the nature of the
problem to be solved; the failure to build consensus around a preferred
solution; and/or the failure to plan the solution to an appropriate
level of detail.
Question 12. You have been a proponent of greater private sector
involvement in transportation through public-private partnerships. The
FAA's contract for Flight Service Stations can be viewed as a type of
public-private partnership, and it has generally been well received--it
is reported that this approach has both saved FAA money and improved
services. In FAA's modernization proposal, the Administration has asked
for specific authority for FAA to use lease arrangements, indicating it
may pursue additional modernization efforts in this manner. Your time
in the private sector, including your current position at Macquarie,
gives you unique experience and knowledge to comment on the pitfalls of
such arrangements. What caveats would you offer with regard to private
sector involvement in transportation infrastructure?
Answer. The private sector is incentivized to increase profits, and
as a result, it responds remarkably well to incentives that will
increase or decrease profits. This profit incentive drives innovation
and creativity, both of which can be harnessed by the public sector.
However, the public sector needs to carefully identify the goals and
policies it wants to accomplish in a public-private partnership and
ensure that the contract it has with the private sector carefully
aligns incentives to achieve its goals and policies.
Question 12a. What issues do you believe the FAA should be
particularly careful about if it attempts to pursue additional
modernization efforts through lease agreements?
Answer. Not being familiar with the details of the FAA's
modernization effort, I am hesitant to offer detailed advice. However,
public-private partnerships that work best are those that take the
various risks contained in any business transaction and apportion them
to the party best equipped to manage the risk. Typically, the risk of
cost overruns, delays, and quality is carried by the private sector,
with appropriate rewards/penalties built into the contract. But the
public sector must always maintain careful oversight of such
transactions to ensure that the taxpayer is protected.
Question 13. It is my understanding that the Federal Aviation
Administration (FAA) is planning to eliminate Central Weather Service
Units (CWSUs) from each of its 21 Air Route Traffic Control Centers
(ARTCC) and may contract these services with a private sector entity.
Since being established, the Weather Units have been considered a key
safety redundancy for the National Airspace System that ensured on-
site, accurate weather forecasts. I am concerned about the prospect of
ARTCC controllers not having an on-site meteorologist and face-to-face
interaction for their service delivery method, particularly during
periods of bad weather, where forecasts can change frequently. Can you
tell me the prospects for moving in this direction?
Answer. I am not familiar with the latest on FAA's plans regarding
Central Weather Service Units, but if confirmed. I would be pleased to
explore this question and provide a detailed answer to the Committee.
Question 13a. Would you support such an initiative despite the
potential safety impact?
Answer. The Secretary believes that the safety of the traveling
public must continue to be the Department's top priority, and I
strongly agree with her. Decisions regarding how the FAA best delivers
its service to the traveling public are primarily the responsibility of
the FAA Administrator. That said, if asked my opinion, I would
recommend that any changes in FAA practice fully weigh the impact those
changes would have on safety.
Question 13b. What will be the impact of not providing ARTCCs with
weather reports that include local knowledge of both the microclimates
the airports operate in and their traffic patterns which would likely
be lost if such services were centralized?
Answer. The professional staff of the FAA, who are intimately
familiar with the difference in information contained in the two
reports and how that may impact their services, would be better able to
address this question.
______
Response to Written Questions Submitted by Hon. Frank R. Lautenberg to
David James Gribbin IV
Question 1. Based on its 2006 Agreement with the FHWA, New Jersey
continues to use multi-year funding as a financing method for its
infrastructure projects. If confirmed, will you ensure that USDOT
continues to approve New Jersey's use of multi-year financing in its
Statewide Transportation Improvement Program (STIP) as they did for the
FY 2006-2008 STIP and FY 2007-2010 STIP?
Answer. If confirmed as General Counsel, I would support the
Administration's policies and the policy direction of Secretary Peters
on this or any other issue. I have been told that New Jersey has
reached an agreement with FHWA on the FY 2006-2008 and the FY 2007-2010
STIPs, which incorporate the use of multi-year financing. I have no
reason to believe the Department intends to revisit that agreement, and
I would not advise doing so should I be confirmed.
Question 2. If confirmed, will you ensure that the Department
continues in its efforts to develop a clarification document or
guidance on the issue of multi-year funding to FHWA and FTA field
offices?
Answer. Yes.
Question 3. You suggested during our meeting that you don't feel
your lack of experience in non-highway modes of transportation will be
a problem because you can essentially learn ``on the job.'' How do you
propose to do this?
Answer. I have more transportation experience than most recent DOT
General Counsels. In the areas in which I am less experienced, I would
do what I presume former General Counsels have done--namely, work
aggressively to learn the subjects at hand, rely on the Department's
talented professional career staff for advice, and seek the judgments
of experts in the field, including those in Congress.
Question 4. If confirmed, will you continue to push the Bush
Administration's agenda to privatize or outsource Amtrak functions?
Answer. If confirmed, I would expect to support and promote the
President's budget request for departmental programs, and also to
engage with Congress and stakeholders on the balancing of priorities
and opportunities for shaping a transportation budget as a whole each
fiscal year that best serves the American public. To be clear, however,
the Secretary has designated Federal Railroad Administrator Joe
Boardman to be her designee on the Amtrak Board and therefore, I expect
my role would be limited to providing support for the Secretary and the
Administrator with regard to Amtrak-related issues.
Question 5. You served as an official of the Christian Coalition,
an organization that has openly opposed the concept of affirmative
action. If confirmed as USDOT's top legal official, would you have any
reservations about defending legal challenges to Federal programs such
as the Disadvantaged Business Enterprise program, which promotes
Federal contracts for female-owned and minority-owned businesses?
Answer. If confirmed, I would work to ensure that the United States
Department of Transportation complies with the letter and spirit of the
law, and would carry out the traditional role of defending against
legal challenges to Federal programs, including the Disadvantaged
Business Enterprise program.
Question 6. The Christian Coalition also opposes gay rights. If
confirmed, would you be able to evaluate impartially a claim of sexual
orientation discrimination by a USDOT employee?
Answer. The role of the General Counsel is to provide impartial
legal advice to the Secretary and to ensure that the Department adheres
to the spirit and the letter of the law. If confirmed, I would work to
ensure that any claim of discrimination within the Department is
adjudicated fairly and in full accordance with the law.
______
Response to Written Questions Submitted by Hon. Mark Pryor to
David James Gribbin IV
Toll Roads
Question 1. As Division Director of Macquarie Holdings, one of your
responsibilities was to advocate the adoption of state legislation to
allow for concession agreements with private companies to lease and
toll highways. How will your role at USDOT differ from your previous
role at Macquarie Holdings since one of the agency's new initiatives is
to promote the same thing?
Answer. I view the role of General Counsel at the Department of
Transportation as fundamentally different from my current, private-
sector employment. I served formerly as Federal Highway Administration
(FHWA) Chief Counsel under the direction of then-Administrator Mary
Peters. In that role, I provided legal advice to the Administrator and
worked to advance the agency's policy priorities. If confirmed as
General Counsel of the Department of Transportation, I anticipate
performing similar activities--advising Secretary Peters and working to
implement the policies of the Department.
Question 2. What is your opinion of allowing foreign owned
investment firms in purchasing PPP lease agreements for long-term
tolling and having virtual ownership of Federal roads?
Answer. If confirmed as Department of Transportation General
Counsel, I would seek to advance the policy objectives of the Secretary
in this area as in any other. That said, I view the concept of
investment in transportation infrastructure by private enterprise as
one more option that a state or other public body should have available
to it when confronting the problem of growing congestion and limited
fiscal resources. States and localities faced with these challenges
need as many options as possible to deliver new and upgraded
facilities. While the merits of foreign participation in financing must
be judged on a case-by-case basis, the United States generally benefits
when foreign capital is attracted to help finance critically needed
infrastructure projects.
Question 3. Almost everything that gets to a consumer in this
country rolls off of a truck. Clearly, tolls will drive up the cost of
goods. Have you weighed the impact on the trucking industry and
consumers as you advocate for an increase in tolling and public-private
partnerships?
Answer. The trucking industry is a critically important element of
the United States economy. As noted in the question. increased costs to
the trucking industry are passed along to consumers in the form of
higher prices. and virtually every consumer item spends some time on a
truck. Pricing and public-private partnerships, however, offer states
the opportunity to improve the reliability of the highway network,
which can result in a reduction of costs for the trucking industry if
the benefit of the time savings exceeds the cost of the highway
pricing. That said, some states, like Indiana and Texas, have pursued
tolling that will result in higher costs to truckers in certain parts
of the state in order to provide infrastructure benefits in other
areas. In any scenario, the cost to the trucking industry, and to
consumers, should be considered whenever pricing or public-private
partnerships are being weighed as options.
Question 4. In Arkansas, we have many transportation infrastructure
needs across roads, rail, and rivers to meet current and future
demands. Included in that list of needs are high-priority corridors I-
69 and I-49. I was wondering if you were aware of these uncompleted
corridors and if you had put any thought into how we can complete these
projects in a timely and cost-effective manner?
Answer. Although I was the Federal Highway Administration Chief
Counsel for a period of time several years ago, I do not have
particular knowledge about the I-69 and I-49 corridors. I am told that
the I-69 Corridor (Arkansas, Michigan, Indiana, Kentucky, Tennessee,
Mississippi, Louisiana, and Texas) has been invited to participate in
Phase 2 of the Department's Corridors of the Future competition. The
Corridors of the Future competition is one element of the Department's
Congestion Initiative, and is intended to streamline the advancement of
three to five major growth corridors across the country. My view is
that innovative approaches, such as the Corridors of the Future
competition, are helpful to completing needed multi-state, multi-use
transportation corridors such as I-69 and I-49.
Question 5. In addition to surface transportation facilities, is
your current employer or any of its affiliates pursuing operational
control of U.S. airports, maritime ports or utilities?
Answer. Yes. Macquarie invests in a wide variety of infrastructure
assets and has investments in airports, ports, and utilities around the
world.
Question 6. Do you believe that the DOT Commission set up under
SAFETEA-LU (a Commission chaired by the Secretary and driven by DOT
staff) is currently casting a wide-enough net reviewing all options for
future infrastructure funding? Or is the Commission too narrowly
focused on driving their desired results and focusing solely on PPPs as
the end-all, be-all solution?
Answer. I have not been closely following the work of the
Commission. However, having worked extensively with Secretary Peters in
her former position as Administrator of the Federal Highway
Administration, I am confident that, as Chairman of the National
Surface Transportation Policy and Revenue Study Commission, she is
committed to an analytic process that addresses fully the range of
options for future infrastructure funding.
Mexican Truck-Pilot Program
Question 7. In your time working in the private sector or in your
service as General Counsel for the Federal Highway Administration, did
you ever become involved in promoting cross-border trucking traffic
between Mexico and the U.S. or Canada and the U.S.?
Answer. I was not directly involved in the effort to allow Mexican
trucks on U.S. highways. During my time at FHWA, the Department was
engaged in litigation on the environmental impact statement prepared by
Federal Motor Carrier Safety Administration. I do not recall becoming
involved in cross-border traffic between Mexico and the United States
or Canada and the United States.
Question 8. Do you have an opinion on the Administration's current
proposal (announced in February) for a pilot project to allow for
Mexican trucks to operate beyond the current limit of the 25 mile
commercial zones?
Answer. I do not have a personal opinion about the limited
demonstration of long-haul operations across the southern border
announced by the Department in February.
Question 9. Were you ever aware of this pilot project before it was
announced on February 23rd?
Answer. No, I was not.
Union Contract Negotiations
Question 10. You mention in your testimony that you look forward to
re-establishing your ties with union leaders. Given the FAA's recent
inability to come to agreement with some of their labor unions, what
role would DOT's General Counsel play in renegotiating agreements
should Congress pass legislation that would force the differing parties
back to the negotiating table?
Answer. My understanding is that, if legislation on this topic or
any other that affected the Department of Transportation or its
programs were enacted, the General Counsel would play a central role in
ensuring that the Department follows the letter and spirit of the new
enactment.
Conflict of Interest
Question 11. Your most recent employment was with Macquarie
Infrastructure Group, principally as an advocate for private financing
of infrastructure projects. As DOT Chief Counsel, do you plan to recuse
yourself from advocating for projects, policies and legislative and
regulatory initiatives that are likely to benefit Macquarie?
Answer. If confirmed as the General Counsel, I would strictly
adhere to the applicable ethics rules governing conflicts of interest.
In order to avoid even the appearance of a lack of impartiality,
government employees who have worked outside of the Federal Government
are required for a period of time to recuse themselves from
participating in ``particular matters'' involving specific parties if
their former employer is or represents one of the specific parties. See
5 CFR Sec. 2635.502. While the rules do not prohibit participation in
broad policy issues that may affect the interests of a large and
diverse group, they clearly prohibit for a certain period any
participation in particular matters to which the employee's former
employer is a specific party. I would of course never participate in a
decision in which the interests of any private entity are placed above
the interests of the citizens of the United States. Having the
opportunity to serve my country is a great honor and significant
responsibility; I would treat it as such.