[Senate Hearing 115-290]
[From the U.S. Government Publishing Office]
S. Hrg. 115-290
NOMINATIONS OF GILBERT B. KAPLAN,
MATTHEW BASSETT, AND ROBERT CHARROW
=======================================================================
HEARING
BEFORE THE
COMMITTEE ON FINANCE
UNITED STATES SENATE
ONE HUNDRED FIFTEENTH CONGRESS
FIRST SESSION
ON THE
NOMINATIONS OF
GILBERT B. KAPLAN, TO BE UNDER SECRETARY FOR INTERNATIONAL TRADE,
DEPARTMENT OF COMMERCE; MATTHEW BASSETT, TO BE ASSISTANT SECRETARY FOR
LEGISLATION, DEPARTMENT OF HEALTH AND HUMAN SERVICES; AND ROBERT
CHARROW, TO BE GENERAL COUNSEL, DEPARTMENT OF HEALTH AND HUMAN SERVICES
__________
AUGUST 3, 2017
__________
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COMMITTEE ON FINANCE
ORRIN G. HATCH, Utah, Chairman
CHUCK GRASSLEY, Iowa RON WYDEN, Oregon
MIKE CRAPO, Idaho DEBBIE STABENOW, Michigan
PAT ROBERTS, Kansas MARIA CANTWELL, Washington
MICHAEL B. ENZI, Wyoming BILL NELSON, Florida
JOHN CORNYN, Texas ROBERT MENENDEZ, New Jersey
JOHN THUNE, South Dakota THOMAS R. CARPER, Delaware
RICHARD BURR, North Carolina BENJAMIN L. CARDIN, Maryland
JOHNNY ISAKSON, Georgia SHERROD BROWN, Ohio
ROB PORTMAN, Ohio MICHAEL F. BENNET, Colorado
PATRICK J. TOOMEY, Pennsylvania ROBERT P. CASEY, Jr., Pennsylvania
DEAN HELLER, Nevada MARK R. WARNER, Virginia
TIM SCOTT, South Carolina CLAIRE McCASKILL, Missouri
BILL CASSIDY, Louisiana
Chris Campbell, Staff Director
Joshua Sheinkman, Democratic Staff Director
(ii)
C O N T E N T S
----------
OPENING STATEMENTS
Page
Hatch, Hon. Orrin G., a U.S. Senator from Utah, chairman,
Committee on Finance........................................... 1
Wyden, Hon. Ron, a U.S. Senator from Oregon...................... 3
CONGRESSIONAL WITNESS
Boozman, Hon. John, a U.S. Senator from Arkansas................. 6
ADMINISTRATION NOMINEES
Kaplan, Gilbert B., nominated to be Under Secretary for
International Trade, Department of Commerce, Washington, DC.... 8
Bassett, Matthew, nominated to be Assistant Secretary for
Legislation, Department of Health and Human Services,
Washington, DC................................................. 9
Charrow, Robert, nominated to be General Counsel, Department of
Health and Human Services, Washington, DC...................... 11
ALPHABETICAL LISTING AND APPENDIX MATERIAL
Bassett, Matthew:
Testimony.................................................... 9
Prepared statement........................................... 29
Biographical information..................................... 30
Responses to questions from committee members................ 33
Boozman, Hon. John:
Testimony.................................................... 6
Brown, Hon. Sherrod:
``Trump Can Kill Ohio Plan to Save Health Exchanges,'' by
Marty Schladen, The Columbus Dispatch, August 1, 2017...... 35
Charrow, Robert:
Testimony.................................................... 11
Prepared statement........................................... 36
Biographical information..................................... 37
Responses to questions from committee members................ 49
Hatch, Hon. Orrin G.:
Opening statement............................................ 1
Prepared statement........................................... 51
Kaplan, Gilbert B.:
Testimony.................................................... 8
Prepared statement........................................... 52
Biographical information..................................... 53
Responses to questions from committee members................ 60
Wyden, Hon. Ron:
Opening statement............................................ 3
Prepared statement........................................... 77
(iii)
NOMINATIONS OF GILBERT B. KAPLAN,
TO BE UNDER SECRETARY FOR
INTERNATIONAL TRADE,
DEPARTMENT OF COMMERCE;
MATTHEW BASSETT, TO BE ASSISTANT
SECRETARY FOR LEGISLATION,
DEPARTMENT OF HEALTH
AND HUMAN SERVICES;
AND ROBERT CHARROW, TO BE
GENERAL COUNSEL, DEPARTMENT OF HEALTH AND HUMAN SERVICES
----------
THURSDAY, AUGUST 3, 2017
U.S. Senate,
Committee on Finance,
Washington, DC.
The hearing was convened, pursuant to notice, at 10:05
a.m., in room SD-215, Dirksen Senate Office Building, Hon.
Orrin G. Hatch (chairman of the committee) presiding.
Present: Senators Grassley, Crapo, Thune, Cassidy, Wyden,
Stabenow, Cantwell, Menendez, Carper, Brown, Bennet, Casey,
Warner, and McCaskill.
Also present: Republican Staff: Mark Prater, Deputy Staff
Director and Chief Tax Counsel; Kimberly Brandt, Chief Health-
care Investigative Counsel; Nicholas Wyatt, Tax and Nominations
Professional Staff Member; Rory Heslington, Professional Staff
Member; Shane Warren, Chief International Trade Counsel; and
Jeff Wrase, Chief Economist. Democratic Staff: Michael Evans,
General Counsel; Ian Nicholson, Investigator; Elissa Alben,
International Trade Counsel; Elizabeth Jurinka, Chief Health
Advisor; Greta Peisch, International Trade Counsel; Tiffany
Smith, Chief Tax Counsel; and Jayme White, Chief Advisor for
International Competiveness and Innovation.
OPENING STATEMENT OF HON. ORRIN G. HATCH, A U.S. SENATOR FROM
UTAH, CHAIRMAN, COMMITTEE ON FINANCE
The Chairman. Welcome to all of you folks to this morning's
hearing.
Today we will consider the nominations of Gilbert Kaplan to
be Under Secretary of Commerce for International Trade, Matthew
Bassett to be Assistant Secretary for Legislation at Health and
Human Services, and Robert Charrow to serve as General Counsel
of Health and Human Services.
I would like to extend a warm welcome to each of these
nominees here today, and I want to extend congratulations to
each of you for your nominations and thank you for your
willingness to serve in these important positions.
In today's hearing I want to stress two major themes:
integrity and responsiveness. These are both important elements
for any position in government, particularly for a Senate-
confirmed position. They are absolutely essential for the
positions under review today.
The Under Secretary of Commerce for International Trade is
responsible for promoting American trade around the globe and
enforcing U.S. trade laws. If confirmed, Mr. Kaplan will need
to be a strong advocate for American exporters while holding
our trading partners accountable for improper trade practices.
There is a good deal of work that needs to be done to
improve compliance with our Nation's anti-dumping and
countervailing duty laws, but that mission should not come at
the expense of seeking to expand opportunities for U.S. goods
and services providers. It will be critical that the Department
of Commerce work with Congress and consult closely with members
of the committee.
Frankly, there is room for improvement here, but I am
confident Mr. Kaplan understands the importance of the
Department's responsibilities to Congress and will work with
Secretary Ross to ensure those responsibilities are met.
As for the nominees to the Department of Health and Human
Services, these are very, very important nominees as well. Your
responsibilities are similarly connected to themes of integrity
and responsiveness.
Mr. Bassett has been nominated to serve as an Assistant
Secretary with the specific function of performing legislative
affairs. This means that both the agency as well as Congress
will rely on you to ensure that we are kept well informed of
the goings-on at HHS.
This will be critical over the next few months. Obviously,
the effort to fix our Nation's health-care system suffered a
setback recently. The recent series of events intensifies the
importance of this position, as cooperation between Congress
and HHS will likely be more essential than ever.
Members of the Finance Committee expect to be in constant
contact with HHS and need timely and responsive answers to
questions and submitted inquiries. We hope that Mr. Bassett
will commit today to providing answers.
Finally, I would like to highlight the critical importance
of integrity for the position of General Counsel at HHS, for
which Mr. Charrow has been nominated. Now, Mr. Charrow
certainly has a considerable amount of experience as a
practicing lawyer, but the position of General Counsel at HHS
brings with it challenges that are sure to be new.
There are likely to be times where the officials in the
Department and the White House may disagree on how to proceed
on a specific course of action. If confirmed, your
responsibility will be to ensure that the laws on the books, as
written, are followed and implemented.
We have seen some thorny issues at both Commerce and at HHS
as the administration has, in some ways, gotten off to a rocky
start. That is all the more reason for the committee to move as
quickly as possible to consider and report these nominations.
Before I conclude, I want to take a moment to talk about
the committee's agenda after the August recess and the next few
months thereafter.
In the fall, the main priority of the committee will surely
be tax reform. I intend to work with my colleagues to draft and
report tax reform legislation in regular order.
That will mean that we are going to have to work very
assiduously and closely together to get things done. That means
hearings and a markup here in the committee.
While tax reform will be the major focus, there are other
priorities as well. In September, I plan to hold a hearing on
the CHIP reauthorization, which I know is a big priority for
members on both sides of the aisle.
We have also heard a lot of demands from members of the
committee for a health-care hearing. I intend to do that as
well at some point shortly after the recess.
Long story short, it is going to be a busy fall for the
Finance Committee, but it is always busy. So I do not see what
changes.
I think I speak for all of the members of the committee
when I say that we would not have it any other way. So with
that, I am very grateful to have as my co-leader on this
committee Senator Wyden, and we will turn to you now.
[The prepared statement of Chairman Hatch appears in the
appendix.]
OPENING STATEMENT OF HON. RON WYDEN,
A U.S. SENATOR FROM OREGON
Senator Wyden. Thank you very much, Mr. Chairman. Mr.
Chairman, thank you for our work together and the very
constructive statement that you have made this morning.
I am going to talk about health care first and then go to
taxes and the nominees, if I might.
This committee works best, of course, on a bipartisan
basis. There are certainly going to be some very good
opportunities in the months ahead. I am particularly pleased
that the chairman, with respect to health, focused on the
Children's Health Insurance Program, because that is a program
that has a time stamp on it.
It expires on September 30th. It serves more than 8 million
kids. These are kids who are falling between the cracks. They
are kids who are not eligible for Medicaid, but they are still
coming from families who are on an economic tightrope.
Mr. Chairman, one of the things that I enjoy the most about
our working relationship is talking about 20 years ago when you
and Ted Kennedy teamed up to create CHIP. Colleagues, very
often when you visit with Chairman Hatch in his office, he
always says, ``Stick with me, kid. I will make you a
legislator. That is what I did with Kennedy.''
But the fact is, CHIP was a bipartisan effort by Chairman
Hatch and Senator Kennedy, and they demonstrated against all
the odds that bipartisan health-care policy is not just
possible, it is the right thing to do.
So let me mention one other matter. Mr. Chairman, as you
touched on, in addition to the children's health program, in
light of the events of the last few weeks, we know that members
on both sides are eager to bring up additional health-care
ideas in an additional upcoming hearing. I am glad, Mr.
Chairman, that you made it clear that it would be on our
calendar as well.
Now, with respect to tax reform, as we have heard our
colleagues say on both sides, the tax system is just broken. I
have spent a significant amount of my time over the last few
years writing the only two actual bipartisan Federal
comprehensive tax reform plans, first with our colleague Judd
Gregg, and most recently with Dan Coats, who sat where Senator
Cassidy is sitting today.
So I know what this challenge is all about. Some people who
are smart on this subject like to say tax reform is hard, and
that is why it ought to be handled on a bipartisan basis. I
told the chairman of my concern that the Majority Leader has
dismissed our outreach and just said here in the last couple of
days that he was going to use the same partisan ``my-way-or-
the-highway'' approach on tax reform that did not work out that
well on health care.
My hope is that it changes. I would just say to colleagues,
if you go the partisan route on taxes, you are trampling on the
history of successful tax reform, because the history of
successful tax reform is, you only get it by working in a
bipartisan way. There are too many tough decisions and too many
challenges with respect to this tax break or that tax break if
one side tries to do it by themselves.
So I think Senator Hatch is very sincere in wanting to work
with us, and I hope some of his history with respect to
bipartisanship on this issue finds its way to Leader
McConnell's office.
Now, today we are going to talk about three nominations.
The first is Bob Charrow's nomination to serve as General
Counsel of the Department of Health and Human Services. This is
a tough job under normal circumstances, but as I told him in
our private meeting, I do not think he has seen tough until he
tries to tackle it at this point in time. That is because HHS's
General Counsel's role is to enforce the law, and right now it
seems that this administration is spending a fair amount of
time trying to undermine the law.
A few examples: the law on the books tells the
administration to make cost-sharing payments to help hold down
the cost of health insurance for millions of Americans. But the
President keeps threatening to cut those payments to score what
I think is a misguided political win.
And the fact is all of us--all of us who worked so hard on
Medicare Advantage and a role for the private sector--we know
that these kinds of statements are like pouring gasoline on the
fires of uncertainty in the private health insurance
marketplace. So my hope is that we do not see the health-care
marketplace go into a tailspin and we do not see Americans
getting hit in the pocketbooks with premium hikes on January
1st. But this idea of constantly threatening, this
rollercoaster approach with respect to making cost-sharing
payments, I think, is causing a lot of uncertainty in the
marketplace.
Additionally, the administration is taking taxpayer dollars
that are intended to help individuals and families sign up for
health coverage, and it is using those funds to actually stifle
enrollment. That means more people are living without access to
the care they need.
I recall sitting right here during Secretary Price's
nomination hearing, when he said, ``My role will be one of
carrying out the law you all in Congress pass. It is not the
role of the legislator.'' But the fact is--and I have just
given two specific examples--the administration has spent a lot
of time undermining the law, and it certainly is a different
story than we heard from the Secretary.
The bottom line for Mr. Charrow, should he be confirmed, is
he needs to ensure the Department faithfully executes the law,
meets the highest standard of ethics, and cooperates fully with
congressional oversight. He has been told in advance he is
going to get some tough questions today with respect to whether
he is prepared for that task.
Next is Mr. Matthew Basset, nominated to serve as Assistant
Secretary for Legislation at the Department of Health and Human
Services. It is my hope that the Senate moves in a bipartisan
respect on health care and the many issues under the HHS
umbrella.
We will hear his views with respect to how he would be the
liaison between the Department and the Congress in order to
ensure that there are bipartisan efforts in the days ahead. And
we are expecting his commitment to respond to requests from all
members of this committee, from Democrats and Republicans.
Finally, turning to the trade area, Mr. Gil Kaplan is
nominated to serve as the Under Secretary for International
Trade at the Department of Commerce. That, in effect, puts him
at the top of the International Trade Administration.
So far in this administration, we have heard a lot of tough
talk on trade enforcement, but there has not been a lot of
follow-through. And there is a real cost to all of the over-
hyped rhetoric when you see it as just that: talking and not
action. For example, in response to all of the tough talk on
steel, countries have shipped even more steel to the United
States in a rush to get ahead of any hike in tariffs.
Just think about that--all kinds of tough talk. What has
happened? Countries are shipping even more steel to our country
just because they are trying to game the system. My friend, Leo
Gerard, president of the Steelworkers, recently told me that
imports have surged 18 percent since the President launched his
section 232 investigation. Meanwhile, the administration
appears to be backing off. This episode demonstrates how tough
talk without a real strategy hurts our workers.
Mr. Kaplan's background suggests that he is going to be a
tough trade enforcer. That is exactly what we need at the
International Trade Administration. My guess is, he is going to
refrain from making promises on trade enforcement unless and
until the administration (1) does its homework, and (2) is
actually prepared to follow through.
Beyond enforcement, they also have a key role in growing
exports, and people ask about the export issue. For us on this
committee, it is key that we grow things in America and make
things in America, add value to them in America, and ship them
all over the world. There are going to be a billion middle-
class consumers in Asia in a few years. We want them buying
American products.
So we look forward to hearing how Mr. Kaplan is going to
ensure that our workers and manufacturers do not lose out on
opportunities to sell to consumers around the world. That also
means the administration backing away from self-defeating
budget cuts.
So with respect to this morning's agenda, Chairman Hatch is
absolutely right. This committee is going to have its hands
full. We are going to be working on key health issues, and we
talked about the two areas, specifically, that we are going to
be zeroing in on coming right out of the gate.
Then we both have talked about tax reform. And the chairman
knows my desire and the desire of many on our side who want to
work in a bipartisan way. I hope the Majority Leader will
change his mind and make that possible.
Finally, Mr. Chairman, I share your interest in getting the
kind of nominees we have today confirmed, and confirmed
quickly. So we will be working with you in a bipartisan way on
that.
The Chairman. Thank you, Senator.
[The prepared statement of Senator Wyden appears in the
appendix.]
The Chairman. We are really happy to have Senator Boozman
here, and we will call on him in just a minute--a very fine
Senator.
But I would like to extend first a warm welcome to our
three nominees today. I want to thank you all for being here.
First we will hear from Mr. Gil Kaplan, a partner in the
international trade practice at King and Spalding. Mr. Kaplan
has decades of practice in trade law, including notably the
first successful prosecution of a countervailing duty case
against China in 2007.
Mr. Kaplan has extensive experience serving in senior U.S.
governmental positions, including as Deputy Assistant Secretary
and Acting Assistant Secretary for Import Administration at the
Department of Commerce. He received both his undergraduate and
law degrees from Harvard University.
Next will be Mr. Matthew D. Bassett. Fortunately for Mr.
Bassett, my colleague Senator Boozman will be providing his
introduction.
Senator Boozman, I thank you for attending today. We will
just have you proceed with your statement at this point.
STATEMENT OF HON. JOHN BOOZMAN,
A U.S. SENATOR FROM ARKANSAS
Senator Boozman. Well, thank you, Chairman Hatch and
Ranking Member Wyden, for the opportunity to do this, and just
to take a second to talk about a good friend, Matt Bassett.
We certainly appreciate his willingness to serve, along
with his family. I think all of us as members understand how
difficult these jobs are and the time commitment, so we do
appreciate, again, their willingness to go forward with such an
important position.
Matt is a health-care policy expert with a career spanning
over 20 years in both the public and private sectors. I first
met Matt towards the beginning of his career in January 2002,
when he was working for Congressman Pete Sessions as a health-
care legislative aid.
During my tenure in the House, I was an active participant
in the Doctors' Caucus, where medical providers in Congress
were able to utilize their medical expertise in the development
of
patient-centered health-care policy. It was my pleasure to
continue to work with Matt on these issues when he served as
Deputy Chief of Staff to Representative Ernie Fletcher.
Matt continued to work to advance patient-centered policies
with a goal of improved quality and delivery of care. Matt
continued his leadership in health care as the Chief of Staff
to the Kentucky Cabinet for Health and Family Services, where
he gained an invaluable experience in navigating Kentucky's
Medicaid and insurance markets.
He continued this work in the private sector, where he
tackled legislative and regulatory routes to improve
availability of treatment services for Medicaid participants.
His involvement in the private sector, along with his
experience at both the Federal and State level, are a testimony
to his dedication to the advancement of a better standard of
health care.
Matt has the deep breadth of understanding of the
complexity of our health-care system that is so crucial as we
continue to debate health care.
Additionally, given his time serving in the House, he is
keenly aware of the importance of the relationship between the
legislative and the executive branches. I am more than
confident he will be responsive to member questions and
concerns when confirmed, which is so, so very important.
Matt has been nominated to fulfill an important role during
an exceptionally critical time. I know that his experiences and
expertise will provide invaluable insight in meeting these
challenges as we work to strengthen our health-care system and,
as the chairman and ranking member pointed out, provide
integrity and responsiveness.
I know as a member, that is what I want in a person
fulfilling that position. I cannot think of anybody who will do
a better job.
Thank you. I yield the floor.
The Chairman. Well, thank you, Senator. That is a very good
introduction.
You have to feel pretty good about that, Mr. Bassett. I
feel pretty good about it myself. [Laughter.]
We appreciate you taking time today--we know you have a
busy schedule--to be with us. It means a lot.
Finally, we will hear from Mr. Robert B. Charrow, a
principle shareholder at Greenberg Traurig, LLP, since 2002.
Prior to his current work, Mr. Charrow was a partner at Crowell
and Moring from June 1989 through June 2002.
While in private practice, he has represented numerous
clients on matters involving CMS, FDA, PHS, OCR, and OIG. I do
not know how you keep all of those straight.
He also has former public service experience as the
Principle Deputy General Counsel at the Department of Health
and Human Services in the Reagan administration, serving from
July 1985 to April 1989. Mr. Charrow also worked with President
Reagan as the Deputy Chief Counselor for the President's
reelection committee.
I really like you. [Laughter.] I just want you to know.
Mr. Charrow has also worked for nearly 8 years as an
associate professor of law at the University of Cincinnati's
College of Law and the Howard University School of Law. He
received his undergraduate degree from Harvey Mudd College and
his law degree from Stanford University School of Law.
So we are very happy to welcome you here today.
Mr. Kaplan, you can begin now with your opening remarks.
STATEMENT OF GILBERT B. KAPLAN, NOMINATED TO BE UNDER SECRETARY
FOR INTERNATIONAL TRADE, DEPARTMENT OF COMMERCE, WASHINGTON, DC
Mr. Kaplan. Thank you very much, Mr. Chairman. I would just
like to take a second to introduce my wife, Betty Ann, and
thank her for her love and support. I would like to introduce
two people who have worked with me for over 30 years: Lisa
Harris and Bonnie Byers. And I would like to introduce my
partner, Tom Spulak, who has helped me throughout this
confirmation process.
The Chairman. Great. We welcome all of you here and are
very proud of you. I have to say, you are willing to sacrifice
your husband for a number of years. I give you a lot of credit
for that. [Laughter.]
Go ahead. I am sorry.
Mr. Kaplan. Thank you.
Mr. Chairman, Ranking Member Wyden, members of the
committee, it is a great honor to be here today as the
President's nominee to serve as Under Secretary of Commerce for
International Trade.
I first testified before this committee in 1986, when I was
the Deputy Assistant Secretary of Commerce for Import
Administration, and I continue to be deeply impressed by the
rigorous and careful attention this committee gives to
international trade.
In some ways, I feel I have been preparing to hold this
position during my entire career. When I was fortunate enough
to run Import Administration in the 1980s under President
Reagan and Commerce Secretary Malcolm Baldrige, we conducted
over 500 antidumping and countervailing duty cases, including
cases on agricultural products, steel products, and
semiconductors. That unit, now called Enforcement and
Compliance, will be one of my areas of responsibility at the
International Trade Administration, if I am confirmed.
After leaving Import Administration, I devoted myself to
representing American companies and workers in a wide range of
trade cases and trade policy issues. As the chairman noted, I
filed and prosecuted the first successful countervailing duty
case ever against China.
Another area of my responsibility, if I am confirmed, will
be developing programs to build up the international
competitiveness of the manufacturing base in the United States,
within the Industry and Analysis unit of ITA. In that regard, I
was the cofounder of the Manufacturing Policy Initiative at
Indiana University School of Public and Environmental Affairs,
the first and only university program in the country focusing
on what public policy steps should be taken to revitalize U.S.
manufacturing.
I will also be working extensively to promote and increase
American exports and break down trade barriers through the
Global Markets and U.S. and Foreign Commercial Service unit at
Commerce. In that regard, while I was at Commerce, I was one of
the key negotiators of the U.S.-Japan Agreement on Trade in
Semiconductors and later enforced the terms of that agreement.
That was one of the most successful agreements ever in
opening a foreign market for our exports, particularly a very
difficult foreign market to open.
In addition, there are several over-arching themes I want
to focus on if I am confirmed. Those are making the whole world
open to U.S. digital trade, ensuring U.S. intellectual property
is protected everywhere in the world, and ensuring that small
and medium-sized enterprises can benefit from global trade.
We need to do all of this while making sure we do no harm
to U.S. consumers and to the many companies, workers, farmers,
and ranchers who benefit so much from trade.
In closing, I would like to tell a very brief story about
my family. My father and mother arrived in this country in 1946
after surviving the Holocaust. They arrived on a boat called
the Ernie Pyle.
When they docked in New York, my father had $7 in his
pocket, which he had won playing cards on the boat. I think my
parents would be truly amazed if they could be here today for
this hearing, amazed at the greatness of this country and at
the graciousness of all the people who have worked with me in
moving this appointment forward.
Thank you, Mr. Chairman, Ranking Member Wyden, and members
of the committee. I would be pleased to answer your questions.
The Chairman. I am sure that your parents are watching and
that they are very proud of you.
Mr. Kaplan. Thank you.
[The prepared statement of Mr. Kaplan appears in the
appendix.]
The Chairman. All right. Let us go to you, Mr. Bassett.
STATEMENT OF MATTHEW BASSETT, NOMINATED TO BE ASSISTANT
SECRETARY FOR LEGISLATION, DEPARTMENT OF HEALTH AND HUMAN
SERVICES, WASHINGTON, DC
Mr. Bassett. Senator, good morning.
The Chairman. Good morning.
Mr. Bassett. Thank you for the opportunity to be here. If I
could take one minute, first, to thank Senator Boozman for his
very generous and kind introduction of me, and for his many
years of friendship. I very much appreciate it.
If I could, I would like to take a minute to introduce and
thank my family who are here: my wife Stacy and my son Matthew.
Can you say ``hello''? My father David Bassett and my uncle Ben
Ash have also joined us. And I must say ``hello'' to my mother
who is, no doubt, one of five people enthusiastically tuning
into C-SPAN today just to see me. [Laughter.]
Chairman Hatch, Ranking Member Wyden, thank you for
inviting me to testify. I am honored to stand before you as the
President's nominee for the Assistant Secretary for Legislation
at the Department of Health and Human Services.
Senators, I have enjoyed the privilege of working in the
health-care industry for over 20 years. I have seen many
challenges to our Nation's health-care system firsthand. I have
seen these challenges from the patient side, provider and payer
side, public and private side, and lastly, the State and
Federal side.
I am of the firm belief that as Americans, we are very
fortunate to live in a country that has the greatest, most
innovative health-
care system in the world. People from other countries travel to
the United States to seek the latest cutting-edge care and
technologies that simply do not exist back home.
Yet our health-care system is not without substantial
challenges. High-quality, affordable care is at risk for an
unacceptable number of Americans and their families.
Addressing these challenges is an acute interest to me, and
having served as Chief of Staff for Kentucky's Cabinet for
Health and Family Services in the great Commonwealth, I have
seen firsthand how policy formed on Capitol Hill affects the
folks back home.
At the time when I served in the position, Kentucky was
experiencing an opioid scourge, imploding individual and small
group markets, and a Medicaid program that our State simply
could not afford.
Should I have the honor to be confirmed, I hope to have the
opportunity to work with all of you and your staffs to address
the similar challenges that we face today.
And perhaps the most significant qualification for the
position to which I have been nominated is the fact that I
actually served as a Capitol Hill staffer. Having worked for
two members of the House of Representatives, I understand the
unique role the Assistant Secretary for Legislation has in
working with members of Congress to make sure constituent
voices are heard and their needs are addressed in Washington,
DC.
The Office of the Assistant Secretary for Legislation is
responsible for the development and implementation of the
Department's legislative agenda. As a liaison between HHS and
Congress, I would not take this responsibility lightly. I
understand the information you rely on within HHS and all the
agencies contained therein is critical to fulfill your
legislative duties.
Should I receive the confidence of the Senate to serve as
the Assistant Secretary for Legislation, I pledge to stay true
to these lessons learned and to ensure that each and every day
ASL stands as a resource for Congress, reliably and readily
bringing these two great bodies to best serve the needs of the
American people.
Thank you again for the opportunity to appear this morning,
and I look forward to answering your questions.
The Chairman. Thank you very much.
[The prepared statement of Mr. Bassett appears in the
appendix.]
The Chairman. Mr. Charrow?
STATEMENT OF ROBERT CHARROW, NOMINATED TO BE GENERAL COUNSEL,
DEPARTMENT OF HEALTH AND HUMAN SERVICES, WASHINGTON, DC
Mr. Charrow. Chairman Hatch, Ranking Member Wyden, and
members of the committee, it is an honor to appear before you
as the President's nominee to serve as the General Counsel of
the Department of Health and Human Services.
I am joined by my wife, Dr. Veda Charrow, a retired Federal
employee, most recently of NIH.
I would like to thank this committee for considering my
nomination. I have had many productive meetings with some of
you and your staff already, and I look forward to discussing
the issues facing HHS with you today.
HHS's jurisdiction extends from the bench to the bedside,
underwriting basic research that will lead to tomorrow's
miracle drugs, new devices and biologics, and financing health
care through various programs, including Medicare, Medicaid,
and the Children's Health Insurance Program. In that regard,
HHS is a unique blend of science, health care, and finance.
I was privileged to serve as the Deputy General Counsel and
Principal Deputy General Counsel during President Reagan's
second term and into the presidency of George H.W. Bush. Aside
from working on President Reagan's reelection campaign as a
lawyer, I had been a law professor with little experience in
managing anyone other than scared law students.
My first few months at HHS in 1985 were a rude awakening.
But I was lucky. The career attorneys and staff at the Office
of the General Counsel were remarkably helpful and extremely
competent, also very patient--traits that I understand persist
and have not been lost to the passage of time. In fact, some of
the career attorneys in the office 30 years ago still work
there today.
Since leaving HHS in 1989, I have been in private practice,
focusing on health-care law, administrative law, and general
appellate litigation. In health care, I have represented
academic medical centers, learned societies, hospital systems,
research institutes, pharmaceutical companies, providers, and
insurers.
Those nearly 3 decades of seeing problems in the real world
have brought home the salient differences between the
obligations of government lawyers and those in the private
sector. The role of a General Counsel in a Federal agency is
not the same as a private attorney for a corporate client.
The General Counsel's role and obligation are to make sure
that all corners are squared and that the rules and policies
issued by the agency are legally proper and consistent with the
organic legislation governing the agency. They should also be
consistent with the Administrative Procedure Act in the way
that those rules have been issued.
In that regard, the General Counsel should act as a neutral
arbiter, assessing the potential agency action as if he or she
were a Federal district court judge. The notion that a rule
``may withstand judicial scrutiny'' is not sufficient. The
question when reviewing a rule is, how would I--as an impartial
judge--assess that rule in light of all possible challenges?
Private clients expect their attorneys to develop novel
legal arguments. Creating new legal theories or applying old
ones in new ways is the most enjoyable aspect of my private
legal practice, but that is very different from the role of a
General Counsel where legal creativity takes a back seat to
acting as impartial arbiter.
You may ask then, why would anyone forsake creativity,
which is a legitimate question. The answer is simple--the legal
issues themselves are unique and fascinating. In government
service, one is confronted with legal issues that are so
different from what is seen in private practice, and that more
than makes up for any loss of creativity.
I am well aware that many HHS rules issued over the past
generation, especially those implementing the Medicare Act,
have been ridiculed by Federal courts as being linguistically
incomprehensible. One role of a General Counsel is to ensure
that rules that defy comprehension do not see the light of day.
Experience in representing private-sector clients has
highlighted the importance of virtually all actors in our
health-care system. I hope that this practical legal experience
will help when reviewing rules, when counseling the Secretary,
and when testifying before Congress.
I know from experience that HHS will be the subject of
litigation. My goal is to ensure that the agency's position in
any given case is both legally correct and objectively just.
The one thing I have learned over the years is that agency
action which may be legally correct when viewed hyper-
technically, but which offends fundamental notions of fairness,
normally does not fare well in the courts.
Thank you for the opportunity to testify today. I now am
happy to answer any questions you may have.
The Chairman. We are happy to have all three of you here.
[The prepared statement of Mr. Charrow appears in the
appendix.]
The Chairman. Senator Grassley has one question he would
like to ask before I ask some questions today.
Before I turn to Senator Grassley, I have some obligatory
questions I am going to ask all of the nominees.
First, is there anything that you are aware of in your
background that might represent a conflict of interest with the
duties to the office for which you have been nominated?
Mr. Kaplan. No, Mr. Chairman.
Mr. Bassett. No, Mr. Chairman.
Mr. Charrow. No, Mr. Chairman.
The Chairman. All right.
Do you know of any reason, personal or otherwise, that
would in any way prevent you from fully and honorably
discharging the responsibilities of the office for which you
have been nominated?
Mr. Kaplan. No, Mr. Chairman.
Mr. Bassett. No, Mr. Chairman.
Mr. Charrow. No, Mr. Chairman.
The Chairman. All right.
Do you agree without reservation to respond to any
reasonable summons to appear and testify before any duly
constituted committee of the Congress if you are confirmed?
Mr. Kaplan. Yes, I do, Mr. Chairman.
The Chairman. All right.
Mr. Bassett. I will, Mr. Chairman.
The Chairman. All right.
Mr. Charrow. I will.
The Chairman. All right.
Finally, do you commit to provide a prompt response in
writing to any questions addressed to you by any Senator of
this committee?
Mr. Kaplan. Yes, Mr. Chairman.
Mr. Bassett. I do.
Mr. Charrow. I do.
The Chairman. So far, the hearing has gone pretty well.
[Laughter.]
We will turn to Senator Grassley. He has one question he
would like to ask.
Senator Grassley. Yes. I am also going to ask one question
to Mr. Kaplan and one question to Mr. Bassett for answer in
writing, but I have to hurry along.
So my one question is to Mr. Charrow about things we
discussed in my office. And I think you gave a satisfactory
answer in the office, but I would like to have something on the
record.
Let me read you a couple of sentences of lead-in. In 1986,
I coauthored amendments to the Lincoln-era False Claims Act
that empowered whistleblowers to help the government identify
and prosecute fraud on taxpayers. The False Claims Act is the
most effective antifraud tool that we have.
Since the 1986 amendments, the taxpayers have recovered
more than $53 billion of public money lost to fraud. Thirty-
three billion of that came from the health-care sector.
You have represented defendants in False Claims Act cases.
I have no problem with you as a lawyer doing that. So I want to
make sure that you can be objective about it, and that you
recognize it is a crucial tool to fight fraud on taxpayers.
Now, I know that you know that fraudulent claims for
Medicaid Part D funds are subject to the False Claims Act. Do
you have any bias against the False Claims Act that would
affect your advice to the Department of Health and Human
Services in cooperation with the Inspector General, the
Department of Justice, and generally on efforts to combat fraud
against government health-care programs?
Mr. Charrow. I have also represented a plaintiff in a False
Claims Act case, Senator, and I have no bias.
Senator Grassley. Thank you.
Thank you, Mr. Chairman.
The Chairman. Well, thank you.
Senator Wyden, we will go to you.
Senator Wyden. Would you like to go first, Mr. Chairman?
The Chairman. I will wait until after you.
Senator Wyden. Well, thank you all. I very much appreciate
the way you all have addressed some of the key issues in your
opening statements.
Mr. Charrow, let me start with you.
It seems to me what you are saying to the Senate Finance
Committee today is the Affordable Care Act is the law of the
land whether the President likes it or not, and you are
committed to seeing that it is carried out. I think that is
very constructive, and I appreciate it.
Now, suffice it to say, being General Counsel of the
Department of Health and Human Services is not exactly for the
fainthearted right now. You are going to step in it up to your
boots in an intensive controversy that affects the lives of
millions of Americans.
Now, for months the President said he hoped that the
Affordable Care Act would collapse. Two weeks ago he said, ``We
will let Obamacare fail, and then the Democrats are going to
come to us.'' A few days ago, after the Senate voted, he took
to Twitter to say, ``As I said from the beginning, let
Obamacare implode, then deal. Watch.''
Now, that was a word-for-word quote from the President. In
addition, he has threatened to withhold billions in cost-
sharing assistance that helps some of the most vulnerable
Americans pay their deductibles and their copayments, their
out-of-pocket costs. These threats have driven up premiums,
they have pushed plans out of the marketplace altogether, and
it leaves Americans with fewer paths to affordable coverage.
So here is my question, and it really builds, in my view,
on what you have said. The Affordable Care Act is the law of
the land. It is the administration's job to faithfully execute
that law. And it is going to be your job to be the honest cop
on the beat.
If the President, the Secretary, or anybody else wants to
take steps that are in your view inconsistent with either the
letter or the spirit of the law, it is your job to tell them
so. Will you do that?
Mr. Charrow. Yes, I will.
Senator Wyden. Okay.
I think there is only one other question that I want to ask
you, Mr. Charrow, because that really fundamentally gets at my
question. You talked yesterday about what you called gray
areas. Tell me a little bit more about that, because I think
you have addressed my fundamental concern with the question
that I have asked, but tell me a little bit more about these
gray areas.
Mr. Charrow. If every member of the Senate and of the House
of Representatives were all-knowing, there would be no gray
areas, but language has its limitations.
Senator Wyden. Are you saying that that is not the case?
[Laughter.]
I am shocked, like in ``Casablanca.''
Mr. Charrow. I am allowing you to infer it.
Language has its limitations, and as a result of that, when
you write a statute, it necessarily--there are going to be
provisions that are going to be ambiguous, that are going to
have gray areas. My job is to use the rules of statutory
interpretation to decide--in my best judgment--what those
provisions mean.
As I told you yesterday, I would be guided by the language
of the statute first, the legislative history, the report of
this committee, floor statements to a lesser extent. I would
not take into account--as I told you yesterday--post-enactment
statements.
Senator Wyden. Very good.
Let me ask you one question, if I might, Mr. Bassett. The
President, as I just said, called again for the Affordable Care
Act to fail. He has made that statement literally for months.
The administration, the Department of Health and Human Services
are constantly trying to sabotage the law and do it even though
millions of Americans every single day get up relying on the
law.
Members of the committee, certainly myself, are deeply
concerned with making sure the Department of Health and Human
Services fulfills its obligations to the public by enforcing
the Affordable Care Act. And for Congress to conduct oversight,
we have to be able to rely on the Department being transparent
and responding to our requests.
My question is, will you commit to ensuring that the
Department, on your watch, is responsive and transparent when
members of this committee submit inquiries, particularly those
that involve implementing the Affordable Care Act? And that is
a ``yes'' or ``no'' answer.
Mr. Bassett. Yes, I absolutely do.
Senator Wyden. Okay. Thank you.
Thank you, Mr. Chairman.
The Chairman. Thank you.
Let me ask a question of you, Mr. Kaplan. As you may be
aware, one of the programs currently administered by the
Department of Commerce is the Privacy Shield Agreement the
United States has with the EU, the EEA, and Switzerland. And
while we recognize that the administration has continued to
emphasize their support of the agreement, there is some concern
about the program's durability from the European and civil
society sides.
How do you intend to make sure that the whole world is open
to the U.S. digital trade, including any views you have on the
Privacy Shield Agreement?
Mr. Kaplan. Thank you, Mr. Chairman. Yes, I think the
Privacy Shield Agreement is very effective and very useful. I
have heard of some of the problems expressed on the European
side and the Court of First Instance looking at some of these
issues, but I will work closely with our legal team and with
the EU to make sure that we keep that program very strong,
because I have heard many, many good things about it from many
companies that use it.
In terms of making sure the whole world is open for U.S.
digital trade, ITA is really uniquely positioned to be able to
help with that. We have exceptional people in the global
markets and U.S. and foreign commercial service and in industry
and analysis, who know more about digital trade issues than
anybody.
But over and above that, we have NIST, which is part of
Commerce, and I would expect to work with them. We have the
Bureau of Industry and Security, which does all the export
controls, and they have tremendous expertise.
I think we need to have language in every one of our trade
agreements assuring open access for U.S. digital trade products
and services.
The Chairman. Okay.
Strong intellectual property rights are crucial for the
ability of American manufacturers, services providers, and
innovators to compete overseas. All too often, though, other
countries have weak standards for protecting and enforcing
intellectual property rights. How, specifically, do you plan to
improve intellectual property rights, protection, and
enforcement by our trading partners?
Mr. Kaplan. Well, I think we have to be prepared to use all
of the tools at our disposal. I know there is some discussion
about Section 301. I think 301 should be dusted off, perhaps,
and that has strong language on intellectual property, which I
think could be used. I know there are issues regarding imposing
tariffs at the end of a 301 case, but there are other things we
could do if we found intellectual property violations after a
301 case.
And then secondly, I think we need to be prepared to use
any negotiating leverage we have to protect intellectual
property, particularly with China, where it is such a large
issue. I think we are really going to have to ramp up our
willingness to enforce every one of our trade laws to make sure
this intellectual property problem is solved.
The Chairman. Well thank you.
Mr. Bassett, the backlog of Medicare appeals is already
unacceptably high. This makes it hard for beneficiaries and
providers to get the funds back that they deserve, and the
administration of the appeals process is really expensive. As
the senior population continues to grow, this problem is likely
to get worse.
What steps can Congress and the administration take
together to address the backlog of Medicare appeals?
Mr. Bassett. Well, Mr. Chairman, as you have indicated, the
backlog is far too long. I know that this is a priority for the
Secretary.
You are probably well aware we have litigation that also
strongly encourages us--if not mandates us--to decrease that
backlog. I would very much look forward to working with you and
your staff and all of the members in coming up with innovative
ways that we can shorten those times, because I agree it has to
be done.
The Chairman. Okay.
Mr. Charrow, how can HHS encourage States to innovate while
still assuring accountability? An example is the 1332 waivers
under the Affordable Care Act, which raised the question of,
will HHS be able to hold States appropriately accountable if
they opt to use these waivers?
Mr. Charrow. I believe the Department will be in that
position.
The Chairman. All right.
Senator Scott, you are up.
Senator Scott. Thank you, Mr. Chairman.
Good morning to the panel. Thank you for being here with
us.
Mr. Kaplan, South Carolina has greatly benefitted from a
resurgence of manufacturing exports and foreign investment.
While over 6,000 South Carolinian companies export goods and
services that value over $2.2 trillion--trade supports more
than 500,000 jobs in South Carolina, from small companies,
farms, global giants Boeing, BMW, Michelin, and the like--we
are successful because most of our access is to the places
where we have trade agreements, about 31 of them around the
world.
Simply put, trade is alive and well in South Carolina. Our
auto manufacturers, farmers, tire makers, paper producers, and
chemical manufacturers want greater access to the 96 percent of
the consumers who live outside the United States.
Good trade policy unlocks opportunity for American families
and gives us the tools necessary to make sure our trade
partners play by the same rules. With those thoughts in mind, I
have just a few questions for you.
The Chinese government caps market access for American
financial service firms operating in China. We do not do the
same to their companies.
As Commerce works on eliminating the U.S.-China trade
imbalance and participates in the CED, I think it is important
that you address both sides of the coin, both the manufacturing
side as well as the services. Why do you think the Chinese
institute these caps, and what are the arguments for removing
them? And will you prioritize removing them as one of your
priorities?
Mr. Kaplan. Thank you, Senator. I absolutely would
prioritize eliminating those caps and making sure our financial
service industries are able to access the Chinese market fully.
I think they put in these caps and limits to our financial
services because our industry and our services in this area are
so strong that they just think once we got in there, we know
how to do this so well that they would not be able to be
successful.
I do not think that is true. I think there is plenty of
room. It is a very large market--a very large market for life
insurance. I think it may be the largest in the world.
I think that we should be able to have complete access, and
we should not be subject to any caps or limits. I think you are
sort of suggesting maybe we should consider putting caps on
some of their services and investments in the United States. I
think that is very well worth looking into. I think we have to
churn up some of the pressure if we want to solve the problems
with China in services and other areas.
Senator Scott. Absolutely. I certainly think it is an issue
of reciprocity and fairness, one that we have not addressed
that needs to be addressed, as we have an opportunity to see
our services penetrate into foreign areas that will provide
tremendous growth for our Nation, frankly, for American workers
as well.
Mr. Kaplan. Absolutely. I think reciprocity is key, and I
think there is already a lot of thinking in the
administration--it is my understanding--about taking some
action if we cannot resolve these issues through the dialogues
and bilateral agreements we already have.
Senator Scott. Excellent.
Another question for you: improving trade enforcement has
been a priority for me and for this committee for some time. I
believe the NAFTA negotiations present a great opportunity to
negotiate agreed-upon practices with our North American trading
partners to combat duty evasion and to improve trade
enforcement.
This would be a great benefit for many South Carolina
industries. Can you speak about how you see a modernized NAFTA
helping to address these priorities?
Mr. Kaplan. Certainly. In the objectives that were stated
by Ambassador Lighthizer regarding NAFTA, there is specific
discussion of working with Canada and Mexico to avoid duty
evasion, and the reason that is so important, obviously, is
because Canada and Mexico--we share very long borders with both
of them. What has happened in terms of dumping duties, really
for 10 or 15 years now, is products have been circumvented
through Canada and Mexico and come in that way.
Senator Scott. Back door.
Mr. Kaplan. Back door. The duty is never paid. So I think
we need to make sure we get good agreements on the issue of
duty evasion through Canada and Mexico.
Senator Scott. Thank you.
My time is almost out, but, Mr. Bassett, I would like to
ask you one quick question.
With the previous administration, we really had very little
feedback from the agencies and departments. And having worked
on the Hill, you understand and appreciate that it is important
for the left hand to know what the right hand is doing. But
without open lines of communication with the folks within the
administration, it is very difficult for us to do all that we
can for our citizens.
Would you commit to making sure that you are as accessible
as possible, not only to my office, but to our colleagues, left
or right?
Mr. Bassett. I absolutely do.
To your point, Senator, I very much understand the
question. One thing I have heard during this nomination process
is the need for responsiveness, and I fully commit to doing
that in a bipartisan and a bicameral way.
Senator Scott. I certainly appreciate that very much.
Mr. Bassett. Thank you.
Senator Scott. Thank you, Mr. Chairman.
The Chairman. Thank you, Senator.
Senator Casey?
Senator Casey. Mr. Chairman, thanks very much.
I want to thank the witnesses for being here, for your
putting yourself forward for service, and of course, that
includes your families as well.
We have had a very contentious number of months now in
health care, as you know. This week, I think there has been a
very positive development. We are having a lot of discussions
between and among Democrats and Republicans in the Senate on a
way forward on a number of health-care issues. It is going to
continue to be a difficult issue, but I think we have made some
good progress this week with the hearings that have been
scheduled, both what Chairman Hatch spoke to today as well as
in the Health, Education, Labor, and Pensions Committee. So
that is the good news, that there is some progress on at least
bipartisan discussions.
I will turn to some of the bad news now, which is the press
reporting about what the administration might do on a whole
range of issues related to our health-care system, whether it
is cost-
sharing reduction payments or other issues. There is also a
report that the administration provided a list of regulations
that the Department of Health and Human Services plans to roll
back or repeal in a letter to congressional Republicans.
I have sent a letter--two letters, actually, since April--
requesting this particular document from HHS. My staff has had
multiple conversations with HHS staff about this, and yet the
document has not been produced. There is no legal basis for
that. I do not know why the administration or the Department
would not provide that.
So my first question is for you, Mr. Basset, and you, Mr.
Charrow. Do you agree that the administration should provide
thorough, complete, and timely responses to requests for
information from all members of Congress, including the
minority in the Senate?
Mr. Bassett. Senator, I do. I had the pleasure of meeting
with your staff in depth during this process, and they raised a
number of concerns that you are bringing up today. I appreciate
those concerns and will fully cooperate and work with your
staff to give accurate and timely responses. And I am sorry
that has been your experience to date.
Senator Casey. And I appreciate that. Chairman Hatch has
made this point a number of times--Senator Grassley--so
Democrat and Republican, I think we have a lot of agreement
about producing documents and being responsive.
Mr. Bassett and Mr. Charrow as well, do you also believe
the administration should provide documents to Congress when
requested, absent a legal basis for withholding them,
especially when those documents have been shared with other
members of Congress and reported on in the press?
Mr. Charrow. Yes.
Mr. Bassett. Yes.
Senator Casey. Thanks.
I want also to get to, Mr. Kaplan, a couple of questions
with regard to excess capacity in steel. We are told by the
OECD that there is more than 700 million metric tons of global
excess capacity in steel.
China accounts for the majority of that. Last year the G20
created a new forum to address this problem. Very little action
has been taken on this.
What do you think should be done to address this global
excess capacity problem with regard to steel?
Mr. Kaplan. Senator, I agree with you that it is an
enormous problem. One of the biggest problems we face is
overcapacity in China for some industrial products, including,
of course, steel.
I think we have to use all the tools we possibly can to
resolve this. I think it is good that the OECD is having talks
about this, but I think we may need to do some very creative
cases and turn the pressure on even more to actually get this
resolved.
There are a lot of tools we have. We can self-initiate
dumping and countervailing duty cases. I did that when I was in
the Department of Commerce. We can use Section 301, and I think
it is time to bring that back. We can use WTO cases. Those take
a long time, but they are sometimes successful.
If you look at the aircraft cases, they have been--I
think--very useful for the U.S. industry. Obviously, we have
232, and that process is ongoing.
Senator Casey. Great. Thank you very much.
The Chairman. Okay.
Senator Brown?
Senator Brown. Thank you, Mr. Chairman. Thanks for this
hearing.
Mr. Kaplan, thank you for your work with me over the years
in strengthening trade enforcement.
Mr. Kaplan. You are welcome.
Senator Brown. We know, as Senator Casey said in his
question, how important that is for our country. I know that
you have a long record of fighting for U.S. manufacturers. I
look forward to supporting your nomination when Chairman Hatch
brings it up.
As you know, we have worked to increase--for years--the
number of tools the U.S. has to crack down on currency
manipulation. I believe Commerce has the authority to address
it under the new trade remedy laws. Do you believe currency
should be treated like a countervailing subsidy in trade cases
when raised by a U.S. petitioner?
Mr. Kaplan. Senator, obviously that is something I will
need to discuss with the Secretary, ultimately, but in my view,
the U.S. countervailing duty law does cover currency
manipulation, and it is something we should look into doing, if
I am confirmed.
Senator Brown. It is really important, I think, to both
parties and almost every member of this committee. So thank
you.
Section 232--the President has pretty much led us to
believe he is moving on that. The Commerce Secretary spoke
about moving quickly on that. As you know, the delay has been a
problem in terms of foreign steel interests not playing on a
level playing field, selling more and more and more steel into
this country in anticipation of 232 action. The action has not
happened.
Will you support a quick resolution, if confirmed, to the
232 investigation so we can put an end to this uncertainty?
Mr. Kaplan. Yes, absolutely. I think that is very
important. I am aware of the problems of steel coming in in
anticipation of a result in that case.
I should mention that 232 is actually under another unit in
Commerce, not ITA. It is under the Bureau of Industry and
Security. So there is another nominee----
Senator Brown. But you know people, and you are smart. And
they will listen to you. [Laughter.]
Mr. Kaplan. Well, I will do whatever I can.
Senator Brown. We have to figure out how to get action. The
excess capacity in China--not just steel, but other commodities
too--it is so important that we get action and we move past
these discussions and these words and these tweets or whatever
we are doing or not doing about China. I know Senator Casey has
been--he and I have talked about this a lot.
Mr. Charrow, thank you, and I enjoyed our brief
conversation prior to your coming out here. There is an article
in The Columbus Dispatch, the most conservative newspaper in
Ohio, entitled ``Trump Can Kill Ohio Plan to Save Health
Exchanges.''
I would like to, Mr. Chairman, enter this in the record,
and I will be brief so Senator Cantwell can get her turn.
The Chairman. Without objection.
[The article appears in the appendix on p. 35.]
Senator Brown. Thank you, Mr. Chairman.
The Dispatch says nothing is guaranteed until the companies
sign contracts with the Federal Government at the end of
September. Even then, coverage will be certain only through
2018.
My question is this, Mr. Charrow: will you commit to
upholding the law, including the ACA and its CSRs, and commit
to doing everything you can in your position to provide
certainty for States like Ohio?
Mr. Charrow. Yes, I will.
Senator Brown. Okay. Thank you. Thank you very, very much.
That matters to so many people in our States. Will you commit
to objecting to any efforts to sabotage the law, even if those
efforts are made outside the bounds of HHS authority?
Mr. Charrow. As I stated during my testimony, I am a firm
believer in applying the law as written and passed by Congress,
and if an action is inconsistent with the law, I will not
approve it.
Senator Brown. Thank you.
And last, will you commit to notifying Congress that the
administration is attempting to skirt the law or if the
administration moves to explicitly undermine any current
provisions of the law?
Mr. Charrow. People who know me know that I have a big
mouth. [Laughter.]
Senator Brown. And you are as smart as Mr. Kaplan, I
understand, perhaps. [Laughter.]
Thank you. Thanks to the three of you.
The Chairman. All right.
Senator Cantwell?
Senator Cantwell. Thank you, Mr. Chairman.
Mr. Kaplan, do you think it is important to have a
functioning Export/Import Bank to do your job at the Department
of Commerce on promoting international trade?
Mr. Kaplan. Senator, I think it is a very important tool
for exports from the United States. Secretary Ross has said it
is an important tool in our tool box. The President has said
that he thinks that it is a good program. He thinks it is a
program, actually, that can make money for the United States. I
share those views.
Senator Cantwell. It does make money, but there are those
in the Cabinet who have said from time to time they consider it
controversial, and I always point out to them, it was supported
by a majority of Democrats and Republicans. So it may have some
detractors, but it is supported by the majority of both bodies
and both parties.
I am concerned about Chinese regulation of U.S.
technologies in the cloud service area. This is an important,
growing development for us, and obviously we give access to
those cloud computing companies here in the U.S.
So China has a draft regulation, along with the existing
Chinese law, that would require U.S. cloud providers to
transfer intellectual property, surrender brand names, give
control of their business to Chinese companies. No other
country has these kind of restrictions, and I would assume that
the United States wants to do everything that we can to stop
these kind of restrictions.
Mr. Kaplan. Absolutely. I have worked on this area for a
long time. I was the first person, I think, who tried to
challenge what they call the great firewall in China, stopping
Internet providers from getting in there by using the General
Agreement on Trade Services. We made some progress. At least
USTR did raise that at the services discussions in Geneva.
On cloud computing, this is a really big problem, and it is
getting bigger all the time. I have heard in the press--as I am
sure you have--that USTR is considering a 301 on some of the
technology transfer issues.
This is an area where we may have to be prepared to take
action against companies from China if they continue to do this
to our companies within China. There are opportunities, I
think, to prevent certain high-tech companies from having
complete access to the U.S. market if we have to do that to get
satisfaction on cloud computing issues in China.
Senator Cantwell. What do you think is a better way to
pursue? Right now, what would be the next steps, do you think?
Mr. Kaplan. Well, in the comprehensive dialogue, I think
this has to be raised. I think there has been a lot of talk
about services already in that dialogue, and I think probably
the next step is to raise it very strongly in the comprehensive
dialogue. And as I mentioned, the 301--at least there are press
reports about it, and that might be very helpful too, because I
think with China you have to have some kind of case at your
back when you are having these discussions, to be successful.
Senator Cantwell. Well, I also think that our northwest
companies have--I just believe in competition. You are going to
compete and cooperate at the same time.
Mr. Kaplan. Sure.
Senator Cantwell. And it is too big of a market to ignore,
and at the same time, we have to press our case. So our
companies have had to figure out very strategic ways of doing
that. And I do think that SED, the Strategic and Economic
Dialogue, is a good place to focus on the fact that Alibaba is
a big player in the U.S., and why would they think that we
would submit to these kinds of practices in China, as a way to
continue the dialogue of how all of this market of cloud
computing is going to play out. I think that would be very,
very helpful.
SED has been successful on helping us focus on clean energy
technology and get some MOUs. So maybe there is a possibility
to do that, but I so appreciate you wanting to pay attention to
it.
I would just note, Mr. Chairman, because of your help and
everything that this committee did on the Customs bill, we were
able to give a new enforcement tool to USTR to have more
resources on enforcement. I believe if 95 percent of consumers
are outside of the United States and with all our activity, we
should be beefing up enforcement just to make sure business can
happen.
I noticed the administration has zeroed out that program.
So I do not think that is where the House and Senate are, but
hopefully we can educate the White House on why it is so
important to have trade enforcement resources within USTR.
Thank you, Mr. Chairman.
The Chairman. Thank you.
As I understand it, Senator Wyden has some questions he
wants to ask. Otherwise, I am going to end this hearing. I
would just as soon end it.
It is clear that you are very competent people. I am very
proud of you.
I have to get over and vote, but Senator Wyden has a
question, and we will just recess until he gets here after the
vote. Is that okay?
Senator Cantwell. Well, I can ask a question while he--I
know we were both in a fire hearing, which is a very important
topic, Mr. Chairman.
The Chairman. Why don't you go ahead with any further
questions, and then if you finish and Senator Wyden is not
here, recess until he gets here.
Thank you.
Senator Cantwell [presiding]. Yes. I will ask a question of
Mr. Charrow. Thank you.
Mr. Charrow, this is an important question. We are not just
filler for Mr. Wyden.
If confirmed as General Counsel, will you ensure that the
administrative action taken by the Department follows the law
of the land and continue to administer something that is called
the Basic Health Plan under section 1331 of the Affordable Care
Act?
Mr. Charrow. Yes.
Senator Cantwell. Good. Yes. Thank you.
This is a very important tool that is bringing about great
success in driving down costs of health care in the States that
have implemented it, and it is different than the exchanges in
the context of how it is run. So it has been very cost-
effective in delivering up for consumers a big clout.
If you buy in bulk, you get a discount, and bundling up the
individual market into this kind of opportunity has allowed
them to get better rates from insurers and successfully drive
down costs. So we want to continue to explore that as a way to
help us in cost savings.
I will turn it over to my colleague.
Senator Menendez?
Senator Menendez. Well, thank you, Senator Cantwell.
Congratulations on all of your nominations. I am sorry I
was not here for your earlier part. We had a markup in the
Foreign Relations Committee. But I did have a couple of
questions that I wanted to ask.
Mr. Kaplan, our competitors around the world are dedicating
greater resources towards economic diplomacy, aggressively
helping their companies increase exports. Unfortunately, U.S.
companies cannot count on the same level of support from the
United States Government. That often prevents American firms
from competing on a level playing field. As I have traveled the
world and talked to our embassies and talked to American
Chambers of Commerce abroad, I hear this as one of the constant
refrains almost anywhere.
Now, if we cut 384 commercial and service officer positions
and close 10 domestic and 35 overseas offices, it seems to me
that is going to be even a greater challenge. So do you believe
this budget approach is consistent with the goal of growing
U.S. exports and reducing the trade deficit?
Mr. Kaplan. Senator, I, of course, was not at Commerce--and
I am not now--when this budget was put together. But as soon as
I am confirmed--if I am privileged to be confirmed--I am going
to look at those budget issues very carefully and discuss those
with the Secretary, and with the White House if warranted,
because I think we need to do everything we can to increase
exports. As many of the members have mentioned, 96 percent of
the world's consumers are outside our borders. So we have to be
able to get our products out there.
Senator Menendez. So is it fair to say that if you are
confirmed, you will be an advocate for a robust foreign
commercial service?
Mr. Kaplan. Absolutely. I think it is an incredibly
important program, and I have heard many, many good things
about it over the years.
Senator Menendez. What do you see the Foreign Commercial
Service's main mission being abroad, if you were to be
confirmed?
Mr. Kaplan. I think it is to promote and increase our
exports everywhere in the world. That is their main mission,
and I think they have helped many, many companies, large and
small, do that.
They also do some work promoting investment back into the
United States by foreign investors, and I think that is very
important too.
Senator Menendez. Now, one of the things that is incredibly
important to our country, which continues to lead in the
creation of innovation in the world, is intellectual property
questions. For New Jersey, which is the medicine cabinet of the
world, the intellectual property questions in the
biopharmaceutical field are incredibly important. Do you have
any sense of what you think the International Trade
Administration can do, what more they can do to advance
policies for American innovators that appropriately recognize
and reward the value of medicines, that ensure patients have
access to the medicines they need?
Mr. Kaplan. Well, I think we are uniquely positioned to do
that. We have intellectual property attaches as part of the
Foreign Commercial Service in many of the foreign embassies,
and they can push on this issue very significantly in the
countries where they are located.
Secondly, as of course you know, the Patent and Trademark
Office is part of Commerce, and I intend to work closely with
them to develop international strategies.
And finally--I mentioned this a little earlier in the
hearing--I think it is time, maybe, to dust off what is called
Section 301, which is a very important trade law that has very
strong intellectual property language in it. If need be, we can
turn to that to use the litigation approach to make sure our
pharmaceutical companies are protected.
Senator Menendez. Well, thank you for those thoughtful
answers.
Mr. Bassett, as a former Hill staffer, I know you would
appreciate--I hope--how much members and staff value open lines
of communication with agencies. Can you speak to your plan for
ensuring that members on both sides of the aisle and the
Capitol get the responses they need to their inquiries?
Mr. Bassett. Yes, Senator. Thank you for your question.
In my opening remarks and in several other remarks, I
mentioned that, in doing the due diligence through this
nomination process, the need for responsiveness was something
that came through crystal clear from both sides. And I gave
this committee my absolute commitment to work in a bicameral
and bipartisan fashion to get you and your staff the
information you need in order to do your jobs.
Senator Menendez. And in particular, Senator Booker and I
have been having issues getting responses from the FDA about an
issue I would appreciate your help with--should you be
confirmed--working with us just to get an answer. So we will
commend that to your attention upon your confirmation.
Finally, Mr. Charrow, let me ask you this. We were able to
spend some time together, and I appreciated you stopping by the
office to talk about the role of the General Counsel, which I
think is incredibly important.
We have had a great debate over the last, not just 7 years
but 7 months, intensively, about the Affordable Care Act. For
those who like it and for those who do not like it, it is the
law of the land. Americans are free to disagree with the law,
but they are not free to disobey it.
So my question is, as General Counsel, will you ensure
that, in any of the actions taken by the Secretary and/or his
subordinates in the Department of Health and Human Services,
you will advise them as General Counsel to faithfully and fully
administer the Affordable Care Act as it is in law?
Mr. Charrow. That is the most important aspect of my job,
and I will do so.
Senator Menendez. Okay.
And you mentioned that HHS regulations are often thought by
the courts to be linguistically incomprehensible.
Mr. Charrow. That is correct.
Senator Menendez. Now, I get that. I share that view in
some respects, but given that the administration is committed
to reducing the number of regulations, how will you ensure that
regulations are promulgated to ensure clarity for HHS programs
in light of the administration's view that we need less
regulation?
I am not one of those who advocate for regulations for
regulations' sake, but there is a broad swath that is left as a
result of congressional past statutory law that does get
interpreted, needs to be interpreted, so that people know what
are the rules of the road, how to follow it, how to stay within
it. Give me a sense of that.
Mr. Charrow. I think, as you pointed out, it is a balancing
act. You do not want to overregulate, but you want to provide
all the sectors that are affected with enough information so
that they can do their business.
I am of the firm view that regulations that are necessary
should be there, and they should be promulgated in a way that
is consistent with the APA. And if a regulation is unnecessary,
then we should look into, perhaps, repealing it, or in fact,
replacing it with a guidance which tends to be more flexible.
Senator Menendez. Thank you, Mr. Chairman.
Senator Wyden [presiding]. I thank my friend from New
Jersey and appreciate him giving me the chance to return.
Mr. Kaplan, let us turn to trade for a moment. I have been
clear that meaningful consultations with the Congress and
communications with the public are essential for all the
aspects of the trade agenda. Yet the Commerce Department has
been keeping the committee in the dark on several matters,
including proposals being developed by Commerce Department
officials to resolve the ongoing dispute with Canada over
softwood lumber.
Senator Crapo and I noted at June's trade hearing that the
committee has to be consulted every step of the way and should
be briefed on the details of the proposals before they are made
to Canada.
The two of us, Senator Crapo and I, sent a letter, along
with five other members of the committee, to Secretary Ross and
Ambassador Lighthizer emphasizing the need for a strong outcome
for American mill workers. I also put this in the context of
what we think is real consultation.
Real consultation is not telling us 5 minutes before
something is going to happen, before a proposal is offered, or
agreement is reached, or something of that nature. It is done
in a way where members of this committee, both Democrats and
Republicans, can actually have a chance to reflect on what is
being considered and give our comments. That is what we think
real consultation is all about.
Will you commit fully to having that kind of real briefing?
From now on, I am not just going to talk about a briefing. I am
going to talk about a real briefing, so there is an opportunity
for meaningful consultation between members of the committee
and their staff, in particular on the softwood lumber case, and
before our country gives the proposals to Canada.
Mr. Kaplan. Senator, I hear you loud and clear on that, and
I absolutely agree to do that with all the members of this
committee. I actually very much enjoy speaking with members of
the Finance Committee, because I learn so much, and it is so
important. So yes, I do agree to do that.
I should mention that the date of the lumber final is
September 6th. So if I am privileged to be confirmed and
confirmed before then, I will be more effective in that regard.
But I absolutely----
Senator Wyden. That is a really clever argument for the
United States Senate Finance Committee to move quickly. We have
had ingenious arguments made over the years. I think yours is
about as good as I have heard. [Laughter.]
Mr. Kaplan. Thank you, Senator.
Senator Wyden. Okay.
As you know, I have been very impressed with the quality of
your work, as we have talked about in the past. And I am not
going to call this the Kaplan Doctrine on Consultation or
anything like that, but it is different than when we have asked
the question in the past. Please communicate to the whole trade
team that that is how I am going to ask for it in the future:
consultation is not giving us something 5 minutes before
something is going to happen. Okay?
Mr. Kaplan. I understand that.
Senator Wyden. Let me turn to one other question, if I
might.
Senator Thune and I, for years, have been a little bit of
an outpost supporting digital trade and digital goods. And a
lot of this, of course, has shown incredible economic
potential, and it has all happened basically after NAFTA. And a
lot of the trade architecture that is in place and is vital to
exporters in every State, and to industries--we have called on
the administration to tackle a very wide range of barriers to
our digital exports.
Now in the past, the Commerce Department has been a leader
in the executive branch on a number of these issues that are
important to digital trade. I would like to hear your thoughts
about how you are going to follow up specifically on making
sure that digital trade is at the top of your agenda and look
at the structure of the agency in order to figure out where the
barriers are and the challenges.
Mr. Kaplan. Senator, I definitely will do that. And I think
Commerce and ITA are uniquely qualified to work on digital
trade issues. I think, obviously, USTR will play a big role in
that. But I think we have many layers of expertise on digital
trade, first in ITA, but then also in NIST, in the Patent and
Trademark Office, in the Bureau of Industry and Security, and I
think we ought to be a central force for making sure that
United States digital trade has access and is not pressured
anywhere in the world.
Senator Wyden. Okay.
Well, thank you all. You all bring substantial
qualifications to these positions. It is my intention to work
with my colleagues on both sides to advance the consideration
of your nominations. I was going to do that even before Mr.
Kaplan offered his clever, fresh argument about being moved
quickly. [Laughter.]
With regards to written questions for the record, on behalf
of the chairman, I would just like to make clear, per the
chairman's instruction--which I support--that committee members
submit them by close of business on August 8th.
With that, we are adjourned.
[Whereupon, at 11:30 a.m., the hearing was concluded.]
A P P E N D I X
Additional Material Submitted for the Record
----------
Prepared Statement of Matthew Bassett, Nominated to be Assistant
Secretary for Legislation, Department of Health and Human Services
Chairman Hatch, Ranking Member Wyden, thank you for inviting me to
testify today. I am honored to stand before you as the President's
nominee for Assistant Secretary for Legislation at the Department of
Health and Human Services.
First, I would like to take a minute to introduce and thank my
family who are here today: my wife Stacy and my son Matthew, Jr. My
father David Bassett and my uncle Ben Ash have also joined us, and I
must say hello to my mother Georgia who is no doubt one of five people
enthusiastically tuning into C-SPAN today just to see me.
Senators, having enjoyed the privilege of working in the health-
care industry for over 20 years, I have seen many challenges to our
Nation's health-care system firsthand. I have seen these challenges
from the patient, provider and payer side; the public and private side;
and the State and Federal side. I'm of the firm belief that as
Americans, we are very fortunate to live in a country that has the
greatest, most innovative healthcare system in the world. People from
other countries travel to the United States to seek the latest cutting
edge care and technologies that don't exist back home. Yet our health-
care system is not without substantial challenges. High-quality,
affordable care is at risk for an unacceptable number of Americans and
their families.
Addressing these challenges is of acute interest to me, and having
served as the Chief of Staff at the Cabinet for Health and Family
Services in the great Commonwealth of Kentucky, I saw firsthand how
policy formed on Capitol Hill affects folks back home. At the time I
served in this position, Kentucky was experiencing an opioid scourge,
imploding individual and small group markets, and a Medicaid program
our State could simply not afford. Should I have the honor to be
confirmed, I hope to have the opportunity to work with you and your
staff as we all face similar challenges today.
And perhaps the most significant qualification for the position to
which I have been nominated is the fact that I actually served as a
Capitol Hill staffer. Having worked for two members of the House of
Representatives, I understand the unique role the Assistant Secretary
for Legislation has in working with members of Congress to make sure
constituents' voices are heard and their needs are addressed in
Washington, DC.
The Office of the Assistant Secretary for Legislation is
responsible for the development and implementation of the Department's
legislative agenda. As a liaison between HHS and Congress, I would not
take this responsibility lightly. I understand that the information you
rely on within HHS and all of the agencies contained therein is
critical to fulfill legislative duties.
Should I receive the confidence of the Senate to serve as the
Assistant Secretary for Legislation at HHS, I pledge to stay true to
these lessons learned, and to ensure that each and every day ASL stands
as a resource for Congress, reliably and readily bridging these two
great bodies to best serve the American people.
Thank you again for the opportunity to appear this morning, and I
look forward to answering your questions.
______
SENATE FINANCE COMMITTEE
STATEMENT OF INFORMATION REQUESTED
OF NOMINEE
A. BIOGRAPHICAL INFORMATION
1. Name (include any former names used): Matthew David Bassett.
2. Position to which nominated: Assistant Secretary for Legislation
at Health and Human Services.
3. Date of nomination: May 8, 2017.
4. Address (list current residence, office, and mailing addresses):
5. Date and place of birth: January 27, 1973; Ft. Lauderdale,
Florida.
6. Marital status (include maiden name of wife or husband's name):
7. Names and ages of children:
8. Education (list secondary and higher education institutions, dates
attended, degree received, and date degree granted):
Cardinal Gibbons High School, 1990-1991, High School Diploma, May
1991.
Baylor University, 1992-1995, B.A. Communications Specialist,
August 1995.
Trinity University, 1996-December 1998, Master of Science, Health
Care Administration.
9. Employment record (list all jobs held since college, including the
title or description of job, name of employer, location of work, and
dates of employment):
Senior vice president of government relations, my NEXUS, Nashville
TN, March 2015-November 2015.
Principal of Bassett Consulting LLC, Nashville TN, November 2012-
February 2015.
Senior vice president, Revive Health, July 2011-December 2011.
Vice president for public policy, DaVita Inc. home office in
Lexington, KY and Nashville, TN, May 2006-July 2011.
Chief of Staff, Kentucky Cabinet for Health and Family Services,
December 2003-April 2006.
Deputy Chief of Staff, Congressman Ernie Fletcher, Washington, DC,
January 2003-November 2003.
Senior Legislative Assistant, Congressman Pete Sessions,
Washington, DC, January 2001-December 2002.
Hospital and Health Facility Development Consultant at the Texas
Department of Health, Austin, TX, September 1999-December 2000.
Policy Analyst for Texas Senate Health Services Committee, Austin,
TX, February 1999-September1999.
Administrative fellow, Baylor Health Care System, Dallas, TX
January 1998-January 1999.
10. Government experience (list any advisory, consultative, honorary,
or other part-time service or positions with Federal, State, or local
governments, other than those listed above):
Board of directors of the Access Tennessee Health Insurance Pool
(AccessTN).
11. Business relationships (list all positions held as an officer,
director, trustee, partner, proprietor, agent, representative, or
consultant of any corporation, company, firm, partnership, other
business, enterprise, or educational or other institution):
I consulted for Liberty Partners Group, LLC on behalf of their
Dental Service Organization clients. I tracked legislation, provided
strategic advice and on occasion attended meetings to represent them.
12. Memberships (list all memberships and offices held in
professional, fraternal, scholarly, civic, business, charitable, and
other organizations):
None.
13. Political affiliations and activities:
a. List all public offices for which you have been a candidate.
None.
b. List all memberships and offices held in and services rendered
to all political parties or election committees during the last 10
years.
None.
c. Itemize all political contributions to any individual, campaign
organization, political party, political action committee, or similar
entity of $50 or more for the past 10 years.
2010, Trey Grayson for U.S. Senate, $500.
2012, Newt Gingrich for President, $500.
14. Honors and awards (list all scholarships, fellowships, honorary
degrees, honorary society memberships, military medals, and any other
special recognitions for outstanding service or achievement):
None.
15. Published writings (list the titles, publishers, and dates of all
books, articles, reports, or other published materials you have
written):
Wrote op-ed in the Lexington Herald Leader in my capacity as Chief
of Staff for the Kentucky Cabinet of Health and Family Services, 2004/
2005.
16. Speeches (list all formal speeches you have delivered during the
past 5 years which are on topics relevant to the position for which you
have been nominated):
None.
17. Qualifications (state what, in your opinion, qualifies you to
serve in the position to which you have been nominated):
Health-care policy expert with over 20 years of experience in
both the public and private sectors.
Senior executive who has represented both elected officials and
private interests with the United States Congress, State legislatures,
Federal and State regulatory agencies, associations, coalitions, and
the media.
Extensive experience regarding: Medicare, Medicaid, and
insurance/payer issues.
Strategist who has designed and managed both public policy and
legislative campaigns in multiple States and in Washington, DC.
Effective manager who has overseen multi-million dollar budgets
in State agency and corporate environments and has led corporate,
government agency, and contract staff.
B. FUTURE EMPLOYMENT RELATIONSHIPS
1. Will you sever all connections with your present employers,
business firms, associations, or organizations if you are confirmed by
the Senate? If not, provide details.
Yes.
2. Do you have any plans, commitments, or agreements to pursue
outside employment, with or without compensation, during your service
with the government? If so, provide details.
No.
3. Has any person or entity made a commitment or agreement to employ
your services in any capacity after you leave government service? If
so, provide details.
No.
4. If you are confirmed by the Senate, do you expect to serve out
your full term or until the next presidential election, whichever is
applicable? If not, explain.
Yes
C. POTENTIAL CONFLICTS OF INTEREST
1. Indicate any investments, obligations, liabilities, or other
relationships which could involve potential conflicts of interest in
the position to which you have been nominated.
I am a passive partial owner of a home and hospice company,
Adoration LLC, in the central Tennessee area. I will be divesting this
holding within the prescribed guidelines and timetable.
2. 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.
3. 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. Activities
performed as an employee of the Federal Government need not be listed.
None.
4. Explain how you will resolve any potential conflict of interest,
including any that may be disclosed by your responses to the above
items.
I will be divesting my holding in Adoration LLC, within the
prescribed guidelines and timetable.
5. Two copies of written opinions should be provided directly to the
Committee by the designated agency ethics officer of the agency to
which you have been nominated and by the Office of Government Ethics
concerning potential conflicts of interest or any legal impediments to
your serving in this position.
Copies of the written opinions have been supplied to the
committee.
D. LEGAL AND OTHER MATTERS
1. Have you ever been the subject of a complaint or been
investigated, disciplined, or otherwise cited for a breach of ethics
for unprofessional conduct before any court, administrative agency,
professional association, disciplinary committee, or other professional
group? If so, provide details.
No.
2. Have you ever been investigated, arrested, charged, or held by any
Federal, State, or other law enforcement authority for a violation of
any Federal, State, county, or municipal law, regulation, or ordinance,
other than a minor traffic offense? If so, provide details.
No.
3. Have you ever been involved as a party in interest in any
administrative agency proceeding or civil litigation? If so, provide
details.
No.
4. Have you ever been convicted (including pleas of guilty or nolo
contendere) of any criminal violation other than a minor traffic
offense? If so, provide details.
No.
5. Please advise the committee of any additional information,
favorable or unfavorable, which you feel should be considered in
connection with your nomination.
Letters of support have been supplied to the committee.
E. TESTIFYING BEFORE CONGRESS
1. If you are confirmed by the Senate, 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.
2. If you are confirmed by the Senate, are you willing to provide
such information as is requested by such committees?
Yes.
______
Questions Submitted for the Record to Matthew Basset
Question Submitted by Hon. Orrin G. Hatch
Question. The ACA created the Star Ratings program, where Medicare
Advantage plans with four or more stars receive add-on payments to
their benchmarks. The ACA also placed a cap on each county's benchmark.
The quality bonus add-on payment is included in determining the
benchmark cap. This can result in plans that would have been rewarded
for high quality ratings not receiving the full value of their add-on
payment, which can be a disincentive for quality.
I understand that CMS does not believe it has the authority to lift
the benchmark cap or to remove quality incentive payments from the
benchmark cap and has stated it would require a legislative change.
Will you commit to reviewing this issue and determining whether the
Secretary has the authority to address this issue?
Answer. If confirmed, I will be glad to work with the Office of the
General Counsel and the appropriate policy divisions to review this
matter and determine whether the Secretary has the authority to address
this issue.
______
Questions Submitted by Hon. Chuck Grassley
Question. In recent months my staff has reached out to both CMS and
HHS for technical assistance on legislation under consideration. In
some cases it has taken multiple requests by my staff to get this
assistance.
Do you intend to be responsive to requests from my office?
Answer. Yes. If you believe there have been instances in which
technical assistance has been unduly delayed, I look forward to working
with your office to improve response times.
Question. Furthermore, do you intend to be responsive to staff and
members of this committee?
Answer. Absolutely. If confirmed, I will always make it a priority
to respond to all members and congressional offices.
______
Questions Submitted by Hon. John Thune
Question. I appreciate your commitment to ensuring the Department
is responsive to Senators. As I've raised with Secretary Price,
Administrator Verma, and other nominees who have come before the
committee, I have serious concerns regarding the ongoing challenges
faced by the Indian Health Service. In fact, late last week we received
notice from the Acting Assistant Secretary that the IHS Sioux San
Hospital emergency and inpatient departments would be permanently
closed within a year. This is a decision that impacts the tribal
members that utilize this facility as well as the local hospital who
will now have the responsibility of caring for these patients. As we
continue discussions with stakeholders in our state, if confirmed, will
you commit to ensuring that HHS responds to questions regarding this
closure in a timely fashion?
Answer. If confirmed, I will respond to all member requests in a
timely and appropriate manner. If confirmed, I will have the Office of
the Assistant Secretary for Legislation contact your office so that we
can begin discussions on your concerns.
Question. Senators Barrasso, Hoeven, and I have introduced the
Restoring Accountability in the IHS Act, which will give HHS
flexibility to terminate poorly performing employees, streamline the
hiring process so IHS can recruit talented health care providers, and
create incentives so those folks will stay on the job longer. Though
we've already been working with the Department on technical assistance,
I want to ask, if confirmed, for your commitment to continue working
with us on this bill and ensure timely feedback.
Answer. I will respond to all member requests in a timely and
appropriate manner. If confirmed, I will have the Office of the
Assistant Secretary for Legislation contact your office so that we can
discuss this technical assistance and other ways in which the office
may be helpful.
Question. I want to highlight one other pending item that my office
has with HHS and CMS regarding reimbursement for durable medical
equipment. At our budget and confirmation hearings with Secretary
Price, he expressed his interest in finding solutions to the challenges
rural areas face with the application of competitive bidding rates in
non-competitively bid areas. 48 other Senators and I recently sent a
letter urging the Department to take swift action to provide relief
through the regulatory process. As we're approaching the end of the
year, we're hopeful to receive a quick response. As such, if confirmed,
will you commit to helping get a response to that letter in the near
future?
Answer. I will respond to all member requests in a timely and
appropriate manner. If confirmed, I will have the Office of the
Assistant Secretary for Legislation contact your office so that a
response to your letter can be drafted as quickly as possible.
______
Questions Submitted by Hon. Debbie Stabenow
Question. There are many priorities I want to work on during this
Congress, including improving access to school based health centers,
expanding the Excellence in Mental Health Demonstration, and
strengthening and improving the Medicare program.
Will you commit to working with me, and consistently responding in
a timely manner, both when we share policy positions and when we may
not?
Answer. Absolutely. If confirmed, it is my intent to respond
appropriately to all member requests.
Question. One of ASL's missions is to work with the White House to
advance presidential initiatives. My opinion is the health care of the
Americans should be put first by the agency that serves them. I'm
concerned that President Trump recently said the plan was to ``let
Obamacare fail,'' rather than working to make our health-care system
better. At HHS, there have been efforts to limit outreach and decrease
enrollment in health care plans and make tax credits less generous, for
example.
If confirmed, how will you handle situations in which the
administration's objective is not aligned with the mission of your
office?
Answer. The mission of the Department is to provide for the health
and well-being of all Americans and, if confirmed, I will uphold that
mission in my work for the administration.
Question. Do you agree that HHS should ``let Obamacare fail''?
Answer. The administration has emphasized the importance of
reforming our health-care system to one that works better for patients
and their providers. Should I have the privilege to serve, I am eager
to work with Congress toward that end and to ensure the American people
have access to affordable coverage.
______
Submitted by Hon. Sherrod Brown, a U.S. Senator From Ohio
From The Columbus Dispatch, August 1, 2017
Trump Can Kill Ohio Plan to Save Health Exchanges
By Marty Schladen
If President Donald Trump carries through on his threat to end $7
billion in annual Federal reimbursements to insurers, that could prompt
the collapse of the federal and state health exchanges.
Insurance coverage is likely to be restored on the Federal health
exchange for Ohioans in at least 19 of 20 counties where insurers
recently announced they are pulling out.
But the measure appears to be only a temporary fix--and it may never
happen if President Donald Trump carries out a threat to undermine
Obamacare.
The Ohio Department of Insurance has found five insurers who are
willing to expand into all but one of the underserved Ohio counties,
Chris Brock, the department's assistant director of public affairs,
said Monday. The search for a Paulding County insurer continues.
He cautioned, however, that nothing is guaranteed until the companies
sign contracts with the Federal Government at the end of September.
Even then, coverage would be certain only through 2018.
``This is not a commitment that they will be here in the next 2 years
or 5 years or 10 years,'' Brock said.
Indeed, uncertainty surrounding the future of health care continues to
reign in Washington. Republican efforts to repeal or dramatically scale
back the program have repeatedly failed on Capitol Hill, leaving Trump
threatening to let Obamacare ``fail.''
Many have interpreted those threats to mean the administration would
end $7 billion in annual Federal reimbursements to insurers for
subsidizing prescription and medical copays for lower-income Americans.
Ending the subsidies would prompt double-digit premium increases and
possibly send the Federal and State health exchanges into a death
spiral, experts have said.
Brock said the uncertainty in Washington could undermine arrangements
in Ohio.
``Nothing is really final final until these contracts are signed at the
end of September,'' he said. ``There are things at the Federal level
that could change this.''
In a statement, Ohio Senator Jay Hottinger, R-Newark, seemed to agree.
``The challenges and uncertainty in the marketplace continue to be a
house of cards, and the slightest changes could result in further
turmoil, but today we celebrate the good news of the five carriers who
have stepped up to serve Ohioans in those counties,'' he said.
Created under the Affordable Care Act, also known as Obamacare, the
health exchanges were created so that individuals who are not otherwise
covered could buy health insurance. Those earning up to four times the
Federal poverty standard can qualify for Federal subsidies for their
insurance on the Federal and State exchanges. (Ohio uses the Federal
exchange.)
Mega-insurer Anthem, citing uncertainty about Obamacare's future as
part of the reason, announced in June it would pull out of Ohio at the
end of this year, leaving 20 counties without a coverage option.
Dayton-based Premier Health Plan also announced that it would leave the
nine counties in which it offered coverage on the health exchange at
the start of 2018.
With about 11,000 Ohioans standing to lose coverage because of the
moves, Monday's news of a possible reprieve was welcomed by advocates.
``This is a great way to make sure people in those counties have access
to some insurance,'' said Steve Wagner, executive director of the
Universal Health Care Action Network Ohio.
Tentative arrangements have been made to provide insurance options for
2018 in Coshocton, Crawford, Guernsey, Hancock, Harrison, Hocking,
Holmes, Jackson, Knox, Lawrence, Logan, Morgan, Muskingum, Noble,
Perry, Van Wert, Vinton, Williams and Wyandot counties, Ohio Insurance
Commissioner Jillian Froment said in a statement.
Those counties have relatively small populations, making them less
attractive to insurers, said Cynthia Cox, associate director for the
Study of Health Reform and Private Insurance at the Henry J. Kaiser
Family Foundation.
Typically, just 5 percent of a county's population participates in the
individual markets, meaning that insurers have to create networks of
doctors and hospitals for a relatively small number of patients in
rural counties, Cox said.
``It's not a surprise that you would have only a handful of companies
compete for that business,'' Cox said.
She added that it's also not surprising that four of the five insurers
expanding into the underserved Ohio counties--Buckeye Health Plan,
CareSource, Molina Health Care of Ohio and Paramount Health Care--also
operate Medicaid managed-care plans in the State. That means they
already have provider networks in those areas, Cox said.
Medical Mutual of Ohio is the sole non-Medicaid insurer eying expansion
into the underserved Ohio counties.
It's unclear how much arm-twisting was needed to get the Medicaid
contractors to expand onto the rural exchanges, but Cox said some
States require all such contractors to also offer plans on the
individual exchanges in all counties.
``That's one of the only ways the States or the Federal Government can
get insurers to go into some of these more rural counties,'' she said.
Dispatch Reporter Andrew Keiper contributed to this story.
______
Prepared Statement of Robert Charrow, Nominated to be General Counsel,
Department of Health and Human Services
Chairman Hatch, Ranking Member Wyden, and members of the committee, it
is an honor to appear before you as the President's nominee to serve as
the General Counsel of the Department of Health and Human Services. I
am joined by my wife, Dr. Veda Charrow, a retired Federal employee most
recently at the National Institutes of Health.
I would like to thank this committee for considering my nomination. I
have had many productive meetings with some of you and your staff
already, and look forward to discussing the issues facing HHS with you
today.
HHS's jurisdiction extends from the bench to the bedside, underwriting
basic research that will lead to tomorrow's miracle drugs, new devices
and biologics, and financing health care through various programs
including Medicare, Medicaid, and the Children's Health Insurance
Program. In that regard, HHS is a unique blend of science, health care,
and finance.
I was privileged to serve as the Deputy General Counsel and Principal
Deputy General Counsel during President Reagan's second term and into
the presidency of George H.W. Bush. Aside from working on President
Reagan's re-election campaign as a lawyer, I had been a law professor
with little experience managing anyone other than scared law students.
My first few months at HHS in 1985 were a rude awakening. But I was
lucky. The career attorneys and staff at the Office of the General
Counsel were remarkably helpful and extremely competent; traits that I
understand persist and have not been lost to the passage of time. In
fact, some of the career attorneys in the office 30 years ago still
work at the Office of the General Counsel.
Since leaving HHS in 1989, I have been in private practice focusing on
health-care law, administrative law, and general appellate litigation.
In health care, I have represented academic medical centers, learned
societies, hospital systems, research institutes, pharmaceutical
companies, providers, and insurers. Those nearly three decades of
seeing problems in the real world have brought home the salient
differences between the obligations of government attorneys and those
in the private sector.
The role of a General Counsel in a Federal agency is not the same as
private attorney for a corporate client. The General Counsel's role and
obligation is to make sure that all corners are squared and that the
rules and policies issued by the agency are legally proper. They should
be consistent with the legislation in substance. And these rules and
policies must follow the process required by the Administrative
Procedure Act. In that regard, a General Counsel should act as a
neutral arbiter assessing potential agency action as if he or she were
a Federal district judge. The notion that a rule ``may withstand
judicial scrutiny'' is not sufficient. The question, when reviewing any
rule, is--how would I, as an impartial judge, assess that rule in light
of all possible challenges.
Private clients expect their attorneys to develop novel legal
arguments. Creating new legal theories or applying old ones in new ways
is the most enjoyable aspect of my private legal practice. But that is
very different than the role of General Counsel where legal creativity
takes a back seat to acting as impartial arbiter. You may ask then, why
would anyone forsake creativity? A legitimate question. The answer is
simple--the legal issues themselves are unique and fascinating. In
government service, one is confronted with legal issues that are so
different from what is seen in private practice, and that more than
makes up for any loss in creativity.
I am well aware that many HHS rules issued over the past generation,
especially those implementing the Medicare Act, have been ridiculed by
Federal courts as being linguistically incomprehensible. One role of a
General Counsel is to ensure that the rules that defy comprehension do
not see the light of day.
Experience representing private-sector clients has highlighted the
importance of virtually all of the actors in our health-care system. I
hope that this practical legal experience will help when reviewing
rules, when counseling the Secretary, and when testifying before
Congress.
I know from experience that HHS will be the subject of litigation. My
goal is to ensure that the agency's position in any given case is both
legally correct and objectively just. The one thing I have learned over
the years is that agency action which may be legally correct when
viewed hyper-technically, but which offends fundamental notions of
fairness, normally does not fare well in the courts.
Thank you for the opportunity to testify today. I now am happy to
answer any questions.
______
SENATE FINANCE COMMITTEE
STATEMENT OF INFORMATION REQUESTED
OF NOMINEE
A. BIOGRAPHICAL INFORMATION
1. Name (include any former names used): Robert Phillip Charrow.
2. Position to which nominated: General Counsel, Department of Health
and Human Services.
3. Date of nomination: June 6, 2017.
4. Address (list current residence, office, and mailing addresses):
5. Date and place of birth: October 21, 1944; St. Louis, Missouri.
6. Marital status (include maiden name of wife or husband's name):
7. Names and ages of children:
8. Education (list secondary and higher education institutions, dates
attended, degree received, and date degree granted):
John H. Francis Polytechnic High School (1959-1962), H.S. diploma--
6/62.
Harvey Mudd College (1962-1966), B.S. physics--6/66.
Stanford University School of Law (1966-1969), J.D.--6/69.
9. Employment record (list all jobs held since college, including the
title or description of job, name of employer, location of work, and
dates of employment):
a. Greenberg Traurig, LLP, Washington, DC: June 10, 2002-present
(currently a principal shareholder); I practice law with an emphasis on
health-care litigation.
b. Crowell and Moring, Washington, DC: June 1989-June 9, 2002
(last a partner); I practiced law with an emphasis on health-care
litigation.
c. Office of the General Counsel, Department of Health and Human
Services, Washington, DC: July 1985-April 1989 (last Principal Deputy
General Counsel).
d. Reagan-Bush 1984, Washington, DC: Feb. 1984-July 1985 (deputy
chief counsel) (lawyer for the President's authorized re-election
committee).
e. University of Cincinnati College of Law, Cincinnati, OH: Aug.
1980-Aug. 1983 (associate professor of law).
f. Howard University School of Law, Washington, DC: Jan. 1975-June
1980 (last an associate professor of law).
g. Federal Home Loan Bank Board, Office of Industry Development,
Washington, DC: Dec. 12, 1977-Aug. 1978 (par-time consultant).
h. Center for Applied Linguistics, Arlington, VA: June 1, 1976-May
31, 1978 (co-principal investigator on NSF grant) (part-time).
i. United States House of Representatives; Washington, DC: July
1974-Dec. 1974 (Legislative Assistant).
j. University of Santa Clara College of Law, Santa Clara, CA:
Sept. 29, 1972-June 15, 1974 (lecturer in law and supervising
attorney).
k. Robert P. Charrow, Palo Alto, CA: June 12, 1971-June, 30 1974
(private practice of law).
l. Charrow and Reisman, Palo Alto, CA: Oct. 1, 1970-June 11, 1972
(private practice of law).
m. Layne, Brodie, and Germino, Palo Alto, CA: Feb. 1, 1970-Sept.
30, 1970
(associate-private practice of law).
n. Ralph J. Gampell, Esq., San Jose, CA: Nov. 15, 1969-Jan. 15,
1970 (law clerk).
o. Sequoia Union High School District, Redwood City, CA: Oct. 1,
1969-Nov. 14, 1969 (substitute teacher).
p. Legal Aid Society of San Mateo County, East Palo Alto, CA: June
10, 1968-Sept. 1, 1968 (summer law clerk).
q. RCA--Laser Division, Burlington, MA: July 1967-Sept. 1967
(laser physicist).
r. Korad--Laser Division of Union Carbide, Santa Monica, CA: June
1966-Sept. 1966 (laser physicist).
10. Government experience (list any advisory, consultative, honorary,
or other part-time service or positions with Federal, State, or local
governments, other than those listed above):
Member of the Secretary's Advisory Committee on Organ
Transplantation (2001-2005) (waived compensation).
Member, election board of town of Chevy Chase (May 2015-Sept.
2015) (no compensation).
Board of advisors, Institute of Human Virology, University of
Maryland School of Medicine (1999-present) (no compensation).
Member, advisory board, The Institute for Cellular Therapeutics,
University of Louisville, School of Medicine, Louisville, KY (1999-
2001) (no compensation).
Past advisor to the Pattern Jury Instruction Committees for the
States of Maryland and Illinois (no compensation).
Proposal reviewer, National Science Foundation (no compensation).
Taught a one-week course in health law at Arizona State University
College of Law (Jan. 2006) (travel expenses reimbursed; any
compensation would have been paid to Greenberg Traurig).
Judge Pro Tempore, Santa Clara County Municipal Court (portion of
summer 1973) (no compensation).
Interned in the District Attorney's Office, Santa Clara County
(1968-1969) (part-time) (no compensation).
11. Business relationships (list all positions held as an officer,
director, trustee, partner, proprietor, agent, representative, or
consultant of any corporation, company, firm, partnership, other
business enterprise, or educational or other institution):
Excluding clients of my two law firms, the positions are as
follows:
Principal Shareholder, Greenberg Traurig, LLP.
Partner, Crowell and Moring.
Sterling Gas Drilling Fund 1981 (\1/800\ interest) sold in Dec.
2016 for $1,000 (passive investment).
Franklin Forest Valley Associates (\1/120\ interest) sold about
15-20 years ago (passive investment).
Partner, Charrow and Resiman.
12. Memberships (list all memberships and offices held in
professional, fraternal, scholarly, civic, business, charitable, and
other organizations):
American Law Institute.
Cosmos Club.
American Bar Association.
California Bar Association.
District of Columbia Bar Association.
Adas Israel Congregation.
Federalist Society (contributor, but unclear whether I am a
member).
American Statistical Association.
American Health Lawyers Association (through Greenberg Traurig,
LLP).
Association of Trial Lawyers of America (faculty membership).
Republican National Lawyers Association.
Law and Society Association.
Linguistic Society of America.
Food and Drug Law Institute (through Greenberg Traurig, LLP).
Smithsonian (associate member).
Phillips Collection (member).
Advisory Board, BNA Medical Research Law and Policy Report
(member) (2002-present) (no compensation).
13. Political affiliations and activities:
a. List all public offices for which you have been a candidate.
None.
b. List all memberships and offices held in and services rendered
to all political parties or election committees during the last 10
years.
No offices; currently represent a House Chief of Staff and a
congressional campaign committee in an Ethics Committee proceeding in
the House of Representatives. As GT client, have represented the NY
State Democratic Party.
c. Itemize all political contributions to any individual, campaign
organization, political party, political action committee, or similar
entity of $50 or more for the past 10 years.
Friends of Isiah Ike Leggett (Montgomery County) (2006) $75.
Robert J. Garagiola for Congress (2012) $500.
Romney for President (2011) $250.
John McCain 2008 Inc. (2008) $1,000.
Susan Collins for Senator (2007) $250.
Greenberg Traurig, P.A. PAC (monthly) $850/annum (2004-2011)
and $750/annum (2012-present).
Catania for Mayor (DC) Exploratory Committee (2014) $600.
14. Honors and awards (list all scholarships, fellowships, honorary
degrees, honorary society memberships, military medals, and any other
special recognitions for outstanding service or achievement):
American Law Institute.
National Science Foundation Grant (Co-PI), 1976-1978.
Stanford University Scholarship, 1966-1969.
California State Scholarship, 1962-1966.
Secretary's Commendation (1987).
15. Published writings (list the titles, publishers, and dates of all
books, articles, reports, or other published materials you have
written):
A. Books
1. Charrow R., and L. Klaus, The Short Book on Standing: A
Practical Primer for the Practitioner (New York: Thomson Reuters/
Aspatore, 2015).
2. Charrow, V., Erhardt, M., and Charrow, R., Clear and
Effective Legal Writing (5th Edition) (New York: Aspen Publishers,
Inc., 2013).
3. Charrow, R., Law in the Laboratory: A Guide to the Ethics of
Federally Funded Science Research (Chicago: University of Chicago
Press, 2010).
B. Articles/Chapters/Monographs
4. Charrow, R., and Klaus, L., ``Birthers, Gifters, and
Standing,'' National Law Journal (Feb. 20, 2017).
5. Charrow, R., and Serbaroli, F., ``Office of Inspector General
(OIG) Proposes New Anti-Kickback Law and CMP Safe Harbors,'' Nat'l L.
Rev. (posted on Thursday, November 20, 2014).
6. Charrow, R., and Klaus, L., ``Judicial Developments--Homeland
Security in American Bar Association's Developments in Administrative
and Regulatory Practice 2013'' at 8 (Jeffrey Lubbers, ed., 2014).
7. Charrow, R., ``Circuits Split Over Legality of IRS Rule
Mandating Tax Credits for Individuals Covered Through Federal Exchanges
Under the Affordable Care Act,'' Nat'l L. Rev. (posted on Friday,
August 15, 2014).
8. Charrow, R., ``Supreme Court Extends PLIVA Case to Preempt
Certain Design Defect Claims Against Generic Drug Manufacturers,''
Nat'l L. Rev. (posted on Friday, August 9, 2013).
9. Charrow, R., Cherniga, M., Malone, M., and Taylor, N.,
``Stark Law Violations Costly to Intermountain Health Care Inc.,''
Nat'l L. Rev. (posted on Friday, April 5, 2013).
10. Charrow, R., and Klaus, L., ``Judicial Developments--Homeland
Security in American Bar Association's Developments in Administrative
and Regulatory Practice 2012'' at 8 (Jeffrey Lubbers, ed., 2013).
11. Charrow, R., and Taylor, N., ``Supreme Court Upholds
Affordable Care Act,'' Nat'l L. Rev. (posted on Thursday, June 28,
2012).
12. Charrow, R., and Taylor, N., ``Accountable Care Organization
(ACO)--The Real Journey Begins,'' Nat'l L. Rev. (posted on Monday,
April 11, 2011).
13. Charrow, R., and Klaus, L., ``Judicial Developments--Homeland
Security in American Bar Association's Developments in Administrative
and Regulatory Practice 2008-2009'' at 295 (Jeffrey Lubbers, ed.,
2010).
14. Kenney Jr., Robert J., Charrow, Robert P., et al, ``The
Implications of Obama's Executive Order on the Study of Embryonic Stem
Cells,'' BNA's Medical Research Law and Policy Report 253 (April 1,
2009).
15. Charrow, R., ``Protection of Human Subjects: Is Expansive
Regulation Counter-productive?'', 101 Nw. U. L. Rev. 707 (2007).
16. Charrow, R., and Ross, J., ``Institutional Review Boards--Are
They Science's Answer to Hollywood's Hays Board?'', BNA's Medical
Research Law and Policy Report (July 5, 2006).
17. Charrow, R., and Goldman, E., ``Regulation of Clinical Trials
by the FDA: A Process in Search of Procedures,'' BNA's Medical Research
Law and Policy Report (Feb. 4, 2004).
18. Charrow, R., ``The Federal Research Grant--Renaissance
Patronage With Legal Formalities,'' BNA's Medical Research Law and
Policy Report (May 1, 2002).
19. Charrow, R., ``The HIPAA Quagmire: Can Electronic Privacy Be
Enhanced Constitutionally by a Paperwork Rule?'', Health Care Review
(June 2001).
20. Charrow, R., and Bramlage, J., ``Biomedical Research--Human
Subjects Protection,'' National L. J. B10 (Oct. 30, 2000).
21. Charrow, R., ``Advisory Committees and the Federal Regulation
of Biomedical Research,'' 3 J. Biolaw and Bus. 5 (1999).
22. Charrow, R., and Greenlees, L., ``ERISA Pre-Emption--A Law in
Search of a Doctrine,'' 27 Health Law Digest 3 (March 1999).
23. Charrow, R., ``Wheat, Guns and Science: The Commerce Clause
and Human Subjects,'' 9 J. NIH Res. (Nov. 1997).
24. Charrow, R., Main, D., and Onek, J., ``Retooling Medicine
Through PSOs and Medicare+Choice Plans: Can Providers Catch the Brass
Ring?'', 25 Health Law Digest 3 (Oct. 1997).
25. Charrow, R., ``Life, Death, and the Archbishop: The Supreme
Court Redefines Federal Authority,'' 9 J. NIH Res. 53 (Sept. 1997).
26. Charrow, R., ``Grants, Contracts, and Science: The Legal
Basis of Research Funding,'' 9 J. NIH Res. 53 (July 1997).
27. Charrow, R., ``It's Time to Scrap the Office of Research
Integrity,'' 9 J. NIH Res. 63 (May 1997).
28. Charrow, R., ``Courting Science: Rational Decision Making in
an Irrational Environment,'' 9 J. NIH Res. 56 (March 1997).
29. Charrow, R., ``Why Your Grant Application is a Trade
Secret,'' 8 J. NIH Res. 61 (Nov. 1996).
30. Charrow, R., ``Court is Adjourned, and Researchers Should
Take Note,'' 8 J. NIH Res. 76 (Sept. 1996).
31. Charrow, R., ``Trial By Jury--Or By Dice?'', 8 J. NIH Res. 68
(July 1996).
32. Charrow, R., ``Miscalculated Risk: Redefining Misconduct is
Unnecessary and Dangerous,'' 8 J. NIH Res. 61 (May 1996).
33. Charrow, R., ``The Art of Designing Unconstitutional Laws,''
8 J. NIH Res. 69 (March 1996).
34. Charrow, R. and Onek, J., ``Who's Funding the Great Labs of
America?'', 8 J. NIH Res. 69 (Jan. 1996).
35. Charrow, R., ``The Perils of Publishing in Cyberspace,'' 7 J.
NIH Res. 74 (Dec. 1995).
36. Charrow, R., ``Intendo: The Legal Game of Gauging Mens Rea,''
7 J. NIH Res. 79 (Nov. 1995).
37. Charrow, R., ``Let's Look at Your Records: How Well Does the
Privacy Act Protect You?'', 7 J. NIH Res. 69 (Oct. 1995).
38. Charrow, R., ``Lawless in the Laboratory,'' 7 J. NIH Res. 87
(Sept. 1995).
39. Charrow, R., ``Now the Food and Drug Administration Regulates
Free Speech,'' 7 J. NIH Res. 90 (July 1995).
40. Charrow, R., ``A Legal Dog Fight: Florida vs. The Tobacco
Industry,'' 7 J. NIH Res. 76 (June 1995).
41. Charrow, R., ``The Commission on Research Integrity: A Horse
in Search of Two Humps,'' 7 J. NIH Res. 65 (May 1995).
42. Charrow, R., ``The Congress Shall Make No Law . . . Abridging
the Freedom of Speech, Or Shall It?'', 7 J. NIH Res. 90 (April 1995).
43. Charrow, R., ``The Range War Over the AZT Patent,'' 7 J. NIH
Res. 71 (March 1995).
44. Schwartz, V., Charrow, R., and Behrens, M., ``Following the
Supreme Court's Analysis in Cipollone, Courts Are Finding Broad
Preemption in Sophisticated Medical Device Tort Litigation,'' 17 J.
Prods. and Toxics Liab. 31 (1995).
45. Charrow, R., ``The Legacy of Queen Anne: A Primer on
Copyright Law,'' 7 J. NIH Res. 64 (Feb. 1995).
46. Charrow, R., ``Changes at an Old Club: A Primer on Rules of
the House,'' 7 J. NIH Res. 62 (Jan. 1995).
47. Charrow, R., ``Whose Tissue Is It, Anyway?'', 6 J. NIH Res.
79 (Dec. 1994).
48. Charrow, R., and Bernstein, D., Scientific Evidence in the
Courtroom: Admissibility and Statistical Significance After Daubert,
Wash. L. Found. Monograph (1994).
49. Charrow, R., ``Is the NIH Revitalization Act An Ethnic-Quota
Law?'', 6 J. NIH Res. 99 (July 1994).
50. Charrow, R., ``An AIDS Vaccine: It May Take an Act of
Congress,'' 6 J. NIH Res. 84 (June 1994 ).
51. Charrow, R., ``Scientific Misconduct Five Years Later,'' 6 J.
NIH Res. 20 (May 1994).
52. Charrow, R., ``A Natural Elixir for Breaking the Logjam at
FDA,'' 6 J. NIH Res. 92 (April 1994).
53. Charrow, R., ``The Scientist as a Client: Some Tips on
Shopping for an Attorney,'' 6 J. NIH Res. 92 (March 1994).
54. Charrow, R., ``The Regulatory Roller Coaster: ABCs of the
APA,'' 6 J. NIH Res. 79 (Feb. 1994).
55. Charrow, R., ``A Novice's Guide to Jurisprudence: Learning
the Law Through ORI Press Releases,'' 6 J. NIH Res. 64 (Jan. 1994).
56. Charrow, R., ``Motherhood, Apple Pie, and the NIH Grant-
Review System: Are They Unconstitutional?'', 5 J. NIH Res. 86 (Dec.
1993).
57. Charrow, R., ``The Legal System Confronts Peer Review: Is a
Tradition About to be Breached?'', 5 J. NIH Res. 90 (Nov. 1993).
58. Charrow, R., ``Informed Consent: From Canterbury Tales to
Canterbury v. Spence,'' 5 J. NIH Res. 75 (Oct. 1993).
59. Charrow, R., ``The Gift That Never Was: The Three Most
Frequently Asked Questions About Federal Grants,'' 5 J. NIH Res. 89
(Sept. 1993).
60. Charrow, R., ``A Rose Is a Rose Is . . . Plagiarism?'', 5 J.
NIH Res. 58 (Aug. 1993).
61. Charrow, R., ``New Risks and New Laws: The Plight of Factor
VIII Victims,'' 5 J. NIH Res. 107 (July 1993).
62. Charrow, R., ``The Mice That Roared: Patenting Basic
Research,'' 5 J. NIH Res. 82 (June 1993).
63. Charrow, R., ``A New Script for Health Care Reform,'' 5 J.
NIH Res. 81 (May 1993).
64. Charrow, R., ``Biomedical Research Joins the Pork Parade,'' 5
J. NIH Res. 80 (April 1993).
65. Charrow, R., ``A Primer on Research Ethics: Learning to Cope
With Federal Regulation of Research,'' 5 J. NIH Res. 76 (March 1993).
66. Charrow, R., ``The End Doesn't Justify the Means: A Rational
Approach to Curbing Illegal Bureaucratic Action,'' 5 J. NIH Res. 82
(Feb. 1993).
67. Charrow, R., ``The Foibles of FOIA: Balancing Privacy and
Curiosity,'' 5 J. NIH Res. 80 (Jan. 1993).
68. Charrow, R., ``Peer Reviews and a Jury of Peers,'' 4 J. NIH
Res. 79 (Dec. 1992).
69. Charrow, R., ``Extremism in the Cause of Perfection Can be a
Vice,'' 4 J. NIH Res. 92 (Nov. 1992).
70. Charrow, R., ``The Electoral College: The Last Bastion of
Representative Democracy,'' 4 J. NIH Res. 97 (Oct. 1992).
71. Charrow, R., ``Grime and Punishment: The Seedier Side of the
Legal Process,'' 4 J. NIH Res. 106 (Sept. 1992).
72. Charrow, R., ``The False Claims Act Can Trap Researchers,'' 4
J. NIH Res. 55 (Aug. 1992).
73. Charrow, R., ``Mrs. Palsgraf Meets the CDC: The Liability
Implications of Anonymous Antibody Testing for HIV,'' 4 J. NIH Res. 138
(July 1992).
74. Charrow, R., ``Legislating Morality on the Banks of Styx,'' 4
J. NIH Res. 83 (June 992).
75. Charrow, R., and Onek, J., ``The Most Expensive Election of
All,'' Washington Post A25 (June 17, 1992).
76. Charrow, R., ``Tinker to Evers to Chance: A Primer on Insider
Trading and the Flow of Information,'' 4 J. NIH Res. 81 (May 1992).
77. Charrow, R., ``And You Thought the Football Season Was Long:
A Spectator's Guide to Presidential Electioneering,'' 4 J. NIH Res. 89
(April 1992).
78. Charrow, R., ``Purity, Patents and Life: The Blood Stem Cell
Controversy,'' 4 J. NIH Res. 97 (March 1992).
79. Charrow, R., and Saks, M., ``Legal Responses to Allegations
of Scientific Misconduct,'' in M. Herson, Research Fraud in the
Behavioral and Biomedical Sciences (1992).
80. Charrow, R., ``A Proposal for Reforming the Misconduct
Quagmire,'' 4 J. NIH Res. 96 (Feb. 1992).
81. Charrow, R., ``To Say or Not to Say: A Primer on the Law of
Defamation,'' 4 J. NIH Res. 78 (Jan. 1992).
82. Charrow, R., ``Cases and Controversies: A Perspective on the
Supreme Court,'' 3 J. NIH Res. 80 (Dec. 1991).
83. Charrow, R., ``Sex, Politics, and Science,'' 3 J. NIH Res. 80
(Nov. 1991).
84. Charrow, R., ``PHS's Office of Scientific Integrity Review:
Housekeeping Is in Order,'' 3 J. NIH Res. 80 (Oct. 1991).
85. Charrow, R., ``The Scorpion and the Turtle: The Parable of
AZT and Government Regulation,'' 3 J. NIH Res. 97 (Sept. 1991).
86. Charrow, R., ``Introduction to D. Hardy, America's New
Extremists: What You Need to Know About the Animal Rights Movement,''
Washington Legal Foundation (Washington, DC 1991).
87. Charrow, R., ``Now You're Covered, Now You're Not:
Indemnification, the Silent Insurance,'' 3 J. NIH Res. 112 (July 1991).
88. Schwartz, V., and Charrow, R., ``Regulatory Action in Tort
Law: Toward a More Benign Relationship,'' 19 Prod. Safety and Liability
Rptr. 672 (June 7, 1991) and 6 Toxics Law Rptr. 68 (June 12, 1991).
89. Charrow, R., ``Forensic Evidence in the Courtroom Is Really
Probability Theory in the Jury Box,'' 3 J. NIH Res. 96 (June 1991).
90. Charrow, R., ``The Mystery of the Migrating Virus,'' 3 J. NIH
Res. 87 (May 1991).
91. Charrow, R., ``Fetal Tissue Transplantation Ban: Illegal
Political Solution to a Moral Problem,'' 3 J. NIH Res. 20 (April 1991).
92. Charrow, R., ``Controlling Health Care Costs: A Major Problem
in Need of an Enlightened Solution,'' 3 J. NIH Res. 74 (March 1991).
93. Charrow, R., ``Message to NIH's Office of Scientific
Integrity: Here Comes the Judge,'' 3 J. NIH Res. 97 (Feb. 1991).
94. Charrow, R., ``Contracting Away the First Amendment: Publish
and Perish,'' 3 J. NIH Res. 78 (Jan. 1991).
95. Charrow, R., and Kochan, Donald J., ``The Real Transition:
How to Stem a Deluge of Regulations,'' Washington Times A15 (Jan. 15,
2001).
96. Kochan, Donald J., and Charrow, R., ``Stopping the Last-
Minute Regulatory Deluge,'' Boston Globe 11 (Jan. 6, 2001).
97. Charrow, R., ``So You Want to Start Your Own Business,'' 2 J.
NIH Res. 84 (Dec. 1990).
98. Charrow, R., ``A Fly on the Wall: Opening the Peer Review
Process to the Public,'' 2 J. NIH Res. 78 (Nov. 1990).
99. Charrow, R., ``Scientific Misconduct Revisited: OSI on
Trial,'' 2 J. NIH Res. 83 (Oct. 1990).
100. Charrow, R., ``Untangling the Bureaucratic Web: Should NIH
Remain in the Department of Health and Human Services?'', 2 J. NIH Res.
80 (Sept. 1990).
101. Charrow, R., ``Choosing an NIH Director: Blending the
Politics of Science With the Science of Politics,'' 2 J. NIH Res. 83
(July 1990).
102. Charrow, R., ``Scientific Misconduct: Sanctions in Search of
Procedures,'' 2 J. NIH Res. 91 (June 1990).
103. Charrow, R., ``Article III Meets Godzilla: Animal Rights and
the Right to Sue,'' 2 J. NIH Res. 90 (May 1990).
104. Charrow, R., Book Review, Washington Times (1990).
105. Charrow, R., ``Liability in the Laboratory,'' 2 J. NIH Res.
88 (April 1990).
106. Charrow, R., ``Intellectual Property Rights: Who Owns What,
and When? Part II,'' 2 J. NIH Res. 88 (March 1990).
107. Charrow, R., ``Intellectual Property Rights: Who Owns What,
and When? Part I,'' 2 J. NIH Res. 91 (Jan.-Feb. 1990).
108. Charrow, R., ``Judicial Review of Peer Review,'' 1 J. NIH
Res. 117 (Nov.-Dec. 1989).
109. Charrow, R., ``Weighing Conflicting Solutions to Conflict of
Interest,'' 1 J. NIH Res. 135 (Sept.-Oct. 1989).
110. Shapiro, M., and Charrow, R., ``The Role of Data Audits in
Detecting Scientific Misconduct: Results of the FDA Program,'' 261 J.
American Medical Assn. 2505 (May 5, 1989).
111. Shapiro, M., and Charrow, R., ``Scientific Misconduct in
Investigational Drug Trials,'' 312 New England Journal of Medicine 731
(March 14, 1985).
112. Charrow, R., ``Symposium on Science and the Rules of Legal
Procedure,'' 101 F.R.D. 599 (1984) (ed. William Thomas).
113. Charrow, R., ``Advertising Prescription Drugs,'' 220 Science
1106 (June 10, 1983).
114. Book Review, 30 UCLA Law Review 1094 (1983).
115. Charrow, V., Crandall, J., and Charrow, R., ``Characteristics
and Functions of Legal Language,'' in Sublanguage: Studies of Language
in Restricted Semantic Domains (eds. R. Kittredge and J. Lehrberger,
1982).
116. Charrow, R., ``The Appeal of Violent Crime,'' The Cincinnati
Post 7A (April 6, 1981).
117. Charrow, R., and Charrow, V., ``Making Legal Language
Understandable: A Psycholinguistic Study of Jury Instructions,'' 79
Columbia Law Review 1306 (1979).
118. Charrow, R., and Charrow, V., ``Characteristics of the
Language of Jury Instructions,'' in Georgetown University Roundtable on
Language and Linguistics 1979 (eds. J. Alatis and G.R. Tucker).
119. Charrow, R. and Charrow, V., ``Lawyers' Views of the
Comprehensibility of Legal Language,'' in Language Use and the Uses of
Language (eds. R. Shuy and A. Shnukal, 1979).
120. Charrow, R., and Charrow, V., ``The Comprehension of Standard
Jury Instructions: An Overview,'' Working Paper, Center for Applied
Linguistics (1978).
121. Book Review, 21 Howard Law Review 320 (1978).
122. Smith and Charrow, ``Probability Theory and Circumstantial
Evidence,'' 72 J. Am. Stat. Assn. 318 (1977).
123. Charrow and Smith, ``A Conversation About `A Conversation
About Collins,' '' 64 Geo. L. J. 669 (1976).
124. Charrow, ``Jury Size and the Limitations of Probability
Theory,'' 2 J. Contemp. L. 114 (1975).
125. Smith and Charrow, ``Upper and Lower Bounds for Probability
of Guilt Based on Circumstantial Evidence,'' 70 J. Am. Stat. Assn. 555
(1975).
126. Charrow and Smith, ``A Methodology for Assessing the Weight
of Circumstantial Evidence,'' Working Paper No. CP-347, Center for
Research in Management Sciences, University of California, Berkeley
(1972).
C. Greenberg Traurig Alerts\1\
---------------------------------------------------------------------------
\1\ Some alerts may also appear as National Law Review postings and
are so indicated in section B of publications.
127. Charrow, R., Klaus, L., and Stouck, J., ``Impact on Federal
Regulatory and Administrative Law Issues of Recent Supreme Court
---------------------------------------------------------------------------
Decisions'' (Nov. 2016).
128. Taylor, N., and Charrow, R., ``What You Need to Know About
the Zika Virus'' (Feb. 2016).
129. Charrow, R., Klaus, L., and Stouck, J., ``Federal Regulatory
and Administrative Law Issues Impacted by Recent Supreme Court
Decisions'' (Oct. 2015).
130. Charrow, R., ``Supreme Court Upholds Affordable Care Act Rule
Authorizing Health Subsidies in States With Federal Exchanges'' (June
2015).
131. Charrow, R., and Gallo, S., ``Waivers of Certain Fraud and
Abuse Laws Permitted in CJR Model'' (Nov. 2015).
132. Charrow, R., ``Court Holds That `Supremacy Clause' Does Not
Create a Private Right of Action to Enforce the Provisions of
Medicaid'' (April 2015).
133. Charrow, R., ``Supreme Court Upholds Affordable Care Act Rule
Authorizing Health Subsidies in States With Federal Exchanges'' (June
2015).
134. Charrow, R., and Ledford, A., ``Court Holds That `Supremacy
Clause' Does Not Create a Private Right of Action to Enforce the
Provisions of Medicaid'' (April 2015).
135. Charrow, R., White, D., and Taylor, N., ``Circuits Split Over
Legality of IRS Rule Mandating Tax Credits for Individuals Covered
Through Federal Exchanges Under the Affordable Care Act'' (July 2014).
136. Charrow, R., and Serbaroli, F., ``OIG Proposes New Anti-
Kickback Law and CMP Safe Harbors'' (Nov. 2014).
137. Charrow, R., Cherniga, M., Taylor, N., and Malone, M.,
``Stark Law Violations Costly to Intermountain Health Care Inc.''
(April 2013).
138. Charrow, R., ``Supreme Court Extends PLIVA to Preempt Certain
Design Defect Claims Against Generic Manufacturers'' (Aug. 2013).
139. Charrow, R., Taylor, N., and Hayes, M., ``Supreme Court
Upholds Affordable Care Act'' (June 2012).
140. Solomons, M., Charrow, R., and Klaus, K., ``Beyond the Courts
of Appeals: The Potential for Expedited Supreme Court Review of Health
Care Reform,'' GT alert (Feb. 2011).
141. Asaro, T., et al., ``Accountable Care Organization (ACO)--The
Real Journey Begins'' (April 2011).
142. Charrow, R., ``Supreme Court Opens the Way for Direct
Corporate Participation in the Electoral Process'' (Jan. 2010).
143. Charrow, R., and Dunn, B., ``Health Care Reform:
Pharmaceutical and Device Sectors'' (April 2010).
144. Charrow, R., Klaus, L., and Taylor, N., ``U.S. Supreme Court
Rejects Complete Preemption Defense for Drug Manufacturers'' (March
2009).
145. Charrow, R., and Taylor, N., ``Summary of the Major Health
Care Provisions Included in the Recently Passed American Recovery and
Reinvestment Act of 2009'' (Feb. 2009).
146. Charrow, R., ``Supreme Court Holds That State Tort Law is
Expressly Preempted by Food, Drug, and Cosmetic Act in Suits Involving
FDA Approved Devices'' (Feb. 2008).
147. Charrow, R., ``Fifth Circuit Confirms Strength of Peer Review
Immunity'' (Aug. 2008).
148. Stouck, J., and Charrow, R., ``Recent Amendments to Freedom
of Information Act Ease Recovery of Both Documents and Attorneys'
Fees'' (Jan. 2008).
149. Charrow, R., and Rosenfeld, L., ``Fifth Circuit Confirms
Strength of Peer Review Immunity'' (July 2008).
150. Charrow, R. and Isasi, J., ``Supreme Court Holds That State
Tort Law is Expressly Preempted by Food, Drug, and Cosmetic Act in
Suits Involving FDA Approved Devices'' (Feb. 2008).
151. Charrow, R., Glaser, M., and Oppenheimer, J., ``Proposed New
Federal Ethics and Gift Rules Will Impact Public Officials, Lobbyists,
and Entities That Employ Lobbyists'' (Aug. 2007).
152. Taylor, N., Charrow, R., and Eck, W., ``S. 1932, The Deficit
Reduction Act of 2005 and Skilled Nursing Facilities'' (Feb. 2006).
153. Charrow, R., and Taylor, N., ``S. 1932, The Deficit Reduction
Act of 2005 and Managed Care Organizations'' (Feb. 2006).
154. Taylor, N., and Charrow, R., ``S. 1932, The Deficit Reduction
Act of 2005 and Drug Manufacturers'' (Feb. 2006).
155. Taylor, N., Charrow, R., and Eck, W., ``S. 1932, The Deficit
Reduction Act of 2005 and Hospitals'' (Feb. 2006).
16. Speeches (list all formal speeches you have delivered during the
past 5 years which are on topics relevant to the position for which you
have been nominated):
The following are short courses that I have taught.
Charrow, R., ``Science, the Law, and the Public,'' presented at
the University of Maryland School of Medicine, Baltimore, MD, March 29,
2017.
Charrow, R., ``Origins and Organizational Structure of FDA and
Overview of the Regulatory Process,'' presented at Food and Drug Law
Inst., Washington, DC, June 16, 2015.
Charrow, R., ``Products Liability for Drugs and Devices--A Really
Quick Course for Non-Lawyers,'' presented at Food and Drug Law Inst.,
FDA Campus, January 11, 2016.
Charrow, R., ``Law in the Laboratory: A Primer for Scientists
Conducting Federally Funded Research,'' presented at Cold Spring Harbor
Laboratory, Oct. 31, 2016.
Charrow, R., ``Law in the Laboratory: A Primer for Scientists
Conducting Federally Funded Research,'' presented at Cold Spring Harbor
Laboratory, Sept. 30, 2015.
Charrow, R., ``Law in the Laboratory: A Primer for Scientists
Conducting Federally Funded Research,'' presented at Cold Spring Harbor
Laboratory, Sept. 10, 2014.
Charrow, R., ``Law in the Laboratory: A Primer for Scientists
Conducting Federally Funded Research,'' presented at Cold Spring Harbor
Laboratory, Sept. 11, 2013.
Charrow, R., ``Law in the Laboratory: A Primer for Scientists
Conducting Federally Funded Research,'' presented at Cold Spring Harbor
Laboratory, Sept. 12, 2012.
Charrow, R., Klein, A., and Stoll, R., ``Judicial Review of Agency
Rulemaking in Rulemaking 101,'' 8th Annual Administrative Law and
Regulatory Practice Institute, Washington, DC, May 9, 2012.
17. Qualifications (state what, in your opinion, qualifies you to
serve in the position to which you have been nominated):
I previously served as the Deputy General Counsel and Principal
Deputy General Counsel of HHS from 1985-1989, and since 1989, I have
practiced health-care law with two large law firms covering Medicare,
Medicaid, FDA, Fraud and Abuse, and PHS Act related issues (e.g., NIH,
CDC, HRSA) and representing a broad range of clients from universities,
learned societies, charitable organizations (e.g., March of Dimes) and
academic medical centers, to pharmaceutical companies and insurers. I
have also written extensively on matters within or involving the
jurisdiction of HHS, including the rulemaking process under the
Administrative Procedure Act, a book devoted to the laws governing
federally funded research, and another book on Article III standing, an
issue central to many lawsuits involving HHS.
B. FUTURE EMPLOYMENT RELATIONSHIPS
1. Will you sever all connections with your present employers,
business firms, associations, or organizations if you are confirmed by
the Senate? If not, provide details.
Yes.
2. Do you have any plans, commitments, or agreements to pursue
outside employment, with or without compensation, during your service
with the government? If so, provide details.
No.
3. Has any person or entity made a commitment or agreement to employ
your services in any capacity after you leave government service? If
so, provide details.
No.
4. If you are confirmed by the Senate, do you expect to serve out
your full term or until the next presidential election, whichever is
applicable? If not, explain.
Yes.
C. POTENTIAL CONFLICTS OF INTEREST
1. Indicate any investments, obligations, liabilities, or other
relationships which could involve potential conflicts of interest in
the position to which you have been nominated.
Apple Inc.
Cisco Systems Inc.
First Energy Corp.
International Business Machines Corp.
Microsemi Corp.
The Walt Disney Company.
Wells Fargo Stable Value Fund.
Greenberg Traurig, LLP.
Will divest interests in all of the above as per OGE agreement.
2. Describe any business relationship, dealing, or financial
transaction which you have had during the last 10 years, whether for
yourself, on behalf of a client, or acting as an agent, that could in
any way constitute or result in a possible conflict of interest in the
position to which you have been nominated.
During the past 10 years I have represented numerous clients with
respect to matters involving or before CMS, FDA, PHS, OCR, and OIG.
Except as noted below, those matters have been closed or otherwise
resolved.
a. PRRB: I had one pending matter before the Provider
Reimbursement Review Board within CMS that was tried in September 2016,
and we are awaiting a decision. It was on behalf of a NY hospice
(Westchester) and I am withdrawing from that representation.
b. Qui tam cases: Federal qui tam cases--Illinois SD, a qui tam
case that I have not been actively involved in but was on the
pleadings. Withdrawal papers are being submitted for that case (U.S. ex
rel. Garbe v. Kmart).
California Superior Court. A State-only qui tam in Superior Court
for the State of California in and for the County of Sacramento. The
qui tam cases all involve either drug pricing or the compliance with
State Medicaid rules for dispensing drugs (Omlansky v. Save Mart). The
Federal Government is not a party and the State declined to intervene.
Intrexon--Oxitec Mosquito--provided FDA advice and was a lobbyist
for two quarters in 2016.
All clients that I have represented since January 1, 2015 have
been identified, and I will be recused from involvement in any
department matter in which that client is a party during the periods
required by law or by the administration's ethics pledge and during my
entire tenure at OGC, should I be confirmed, from any matter that I was
personally involved in while in private practice, irrespective of when
I was involved. I will also be recused as required by the Rules of
Professional Responsibility from any matter involving a former client,
whether I was personally and substantially involved or not, from whom I
may have acquired confidential information.
3. 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. Activities
performed as an employee of the Federal Government need not be listed.
I have in the past been registered as a lobbyist on behalf of two
clients. I lobbied on behalf of the American Psychiatric Association
from January 10, 2003 to June 30, 2004 with respect to implementation
of HIPAA's electronic code set provisions. I also lobbied on behalf of
Intrexon from March 2016 to June 30, 2016 with respect to FDA's
authority to issue Emergency Use Authorizations for animal drugs. My
registration for Intrexon was terminated retroactively to June 30, 2016
on March 23, 2017.
4. Explain how you will resolve any potential conflict of interest,
including any that may be disclosed by your responses to the above
items.
I have no trust agreements. OGE and the ADEO have prepared an
ethics agreement which requires that my wife and I divest our interest
in certain stocks, which will be done. I signed that agreement on June
7, 2017. In addition, we will establish an ethics screen at OGC, should
I be confirmed, to ensure that I am recused with involvement in any
matter involving any specific client during the requisite periods and
from any matter that I may have been personally involved in while in
private practice or as may be required by the Rules of Professional
Responsibility.
5. Two copies of written opinions should be provided directly to the
committee by the designated agency ethics officer of the agency to
which you have been nominated and by the Office of Government Ethics
concerning potential conflicts of interest or any legal impediments to
your serving in this position.
Copies have been provided.
D. LEGAL AND OTHER MATTERS
1. Have you ever been the subject of a complaint or been
investigated, disciplined, or otherwise cited for a breach of ethics
for unprofessional conduct before any court, administrative agency,
professional association, disciplinary committee, or other professional
group? If so, provide details.
No.
2. Have you ever been investigated, arrested, charged, or held by any
Federal, State, or other law enforcement authority for a violation of
any Federal, State, county, or municipal law, regulation, or ordinance,
other than a minor traffic offense? If so, provide details.
No.
3. Have you ever been involved as a party in interest in any
administrative agency proceeding or civil litigation? If so, provide
details.
Charrow v. Cohen, SC11657-76, DC Superior Court. Filed suit on
June 4, 1976 to collect $112 as a result of an auto accident; settled
prior to trial for $112.
In Re Papadopoulos, No. 90A-0321 (Charrow v. Papadopoulos). My
spouse and I were creditors of Chris Papadopoulos, a bankrupt home
contractor. We filed a claim with the bankruptcy court against
Papadopoulos as an adversary proceeding. The matter settled.
In 1991, I filed a claim against Papadopoulos with the Maryland
Home Improvement Commission entitled Maryland Home Improvement
Commission v. Papadopoulos, No. 91(05)1164. We were awarded $10,000.
Kennsington Plumbing and Heating, Inc. v. Robert and Veda Charrow,
No. 9382-90 (MD. Dist. Court, 11 First Field Rd., Gaithersburg, MD
20878). This suit was instituted against us for $416 by subcontractor
of Papadopoulos who claimed that Papadopoulos failed to pay him. Matter
went to trial on August 8, 1990 and judgment was entered for
defendants.
Charrow v. Marc Carrington, No. 4062-92, District Court for
Montgomery County, MD. Complaint to collect damages from a contractor
for breach of contract--judgment entered for plaintiff in amount of
$14,916 + $10 on July 8, 1992. On May 19, 1994, defendant filed a
motion to strike the judgment. That motion was denied on June 27, 1994;
defendant sought to appeal, but the appeal was dismissed on August 2,
1995.
Jacqueline Lee Jackson v. Charrow et ux, Case No. 03-CA-005274, DC
Superior Court. R. Charrow was dismissed before trial judgment entered
in favor of Veda Charrow on November 24, 2004. Plaintiff motion for a
new trial was denied on December 20, 2004 (James Boasberg, J.). Case
arose out of a traffic accident on February 24, 2003.
Philip W. Wyers and Wyers Products Group, Inc. v. Greenberg
Traurig, LLP, Mark Hogge, Laura Klaus, and Robert P. Charrow, Dist. Ct.
for city and county of Denver, 41645933 (December 30, 2011). Case
removed to Federal court for Dist. of Colorado, No. 12-cv-00750. Case
against Hogge, Klaus, and Charrow dismissed on March 24, 2015 in
anticipation of settlement; notice of settlement as to GT filed on
April 6, 2015; case voluntarily dismissed as to GT on February 18, 2016
as a result of settlement.
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, provide details.
No.
5. Please advise the committee of any additional information,
favorable or unfavorable, which you feel should be considered in
connection with your nomination.
In February 1987, I was nominated to be a judge on the U.S. Claims
Court, but the nomination did not proceed to a hearing, and I asked
that it be withdrawn later that year.
E. TESTIFYING BEFORE CONGRESS
1. If you are confirmed by the Senate, 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.
2. If you are confirmed by the Senate, are you willing to provide
such information as is requested by such committees?
Yes.
______
Questions Submitted for the Record to Robert Charrow
Question Submitted by Hon. Orrin G. Hatch
Question. The ACA created the Star Ratings program, where Medicare
Advantage plans with four or more stars receive add-on payments to
their benchmarks. The ACA also placed a cap on each county's benchmark.
The quality bonus add-on payment is included in determining the
benchmark cap. This can result in plans that would have been rewarded
for high quality ratings not receiving the full value of their add-on
payment, which can be a disincentive for quality.
I understand that CMS does not believe it has the authority to lift
the benchmark cap or to remove quality incentive payments from the
benchmark cap and has stated it would require a legislative change.
Will you commit to reviewing this issue and determining whether the
Secretary has the authority to address this issue?
Answer. Yes, I will commit to reviewing this issue. If confirmed, I
will have the Office of the Assistant Secretary for Legislation contact
your office so that we can begin discussions on your concerns.
______
Questions Submitted by Hon. Ron Wyden
interpreting statutes
Question. If you are confirmed as the General Counsel of the
Department of Health and Human Services (HHS), you will advise the
agency as it develops and implements major health-care programs
outlined in Acts of Congress. Specifically, you will guide the
Department as it considers how to interpret and implement laws passed
by Congress that affect health care for millions of Americans.
If confirmed as General Counsel, how would you approach a situation
where HHS proposes an interpretation of a statute that diverges from a
previous administration's interpretation?
Answer. As I mentioned during my testimony, if confirmed, my goal
would be to ensure that the agency's position in any given case is both
legally correct and objectively just. Agency action that may be legally
correct but which offends fundamental notions of fairness does not
typically fare well. My job will be to use the rules of statutory
interpretation to determine what the provisions of the law mean. As I
testified, that will include the significant reliance on statute's
text. However, in interpreting statutes that have been previously
interpreted by a prior General Counsel, I would accord that prior
interpretation due deference under Skidmore.
Question. Would your approach differ from the above situation for
either new statutes or situations where HHS has not previously spoken
on the applicable statute?
Answer. It would not. If confirmed, I would continue to evaluate
the agency's position based on the legislative text, the legislative
history, the report of the relevant committee, and floor statements.
ethics
Question. Earlier this year, the Office of Government Ethics (OGE)
released ethics waivers collected in response to a data call issued to
all executive branch agencies and offices.\1\ The data call revealed
that two dozen political appointees received ethics waivers during the
first 3 months of the Trump administration, including Secretary Tom
Price, Secretary Price's Chief of Staff, and Centers for Medicare and
Medicaid (CMS) Administrator Seema Verma.\2\
---------------------------------------------------------------------------
\1\ Office of Government Ethics, ``Certain waivers and
authorizations issued between May 1, 2016, and April 30, 2017,''
https://www.oge.gov/Web/OGE.nsf/Resources/Certain+Waivers+
and+Authorizations+issued+between+May+1,+2016+-+April+30,+2017,
accessed on June 12, 2017.
\2\ Bill Allison, ``Trump Administration Waived Ethics Rules for 10
Appointees,'' Bloomberg News, June 12, 2017, https://www.bloomberg.com/
politics/articles/2017-06-07/trump-administration-waived-ethics-rules-
for-10-appointees.
The OGE data call, issued on April 28, 2017,\3\ sought information
pertaining to the issuance of ethics waivers and authorizations
pursuant to various executive orders, Federal ethics regulations, and
Federal law between May 1, 2016 and April 30, 2017.\4\ On May 17, 2017,
Office of Management and Budget (OMB) Director Mulvaney asked OGE to
stay the data call. On May 26, 2017, following an exchange of letters,
Director Mulvaney stated that OMB ``never sought to impede OGE nor to
prevent others, including agencies, from acting as required by
law.''\5\ Subsequently, the White House released copies of these
waivers for its staff,\6\ and records for other agencies were released
shortly thereafter.
---------------------------------------------------------------------------
\3\ Program Advisory--``Data Call for Certain Waivers and
Authorizations,'' PA-17-02, April 28, 2017.
\4\ Executive Order 13770, Executive Order 13490, 18 U.S.C.
Sec. 208(b)(1), 5 CFR Sec. 2635.502(d), and 5 CFR Sec. 2635.503(c).
\5\ Letter from Mick Mulvaney to Walter Shaub, May 26, 2017.
\6\ Matea Gold, ``White House grants ethics waivers to 17
appointees, including four former lobbyists,'' Washington Post, May 31,
2017, https://www.washingtonpost.com/news/post-politics/wp/2017/05/31/
white-house-grants-ethics-waivers-to-17-appointees-including-four-
former-lobbyists/?utm_term=.8383c084ad0b.
Following the White House release, Ranking Member Wyden sent a
letter to Secretary Price on June 15, 2017 requesting that the
Department of Health and Human Services (``Department'') provide the
Committee on Finance copies of any subsequent ethics waivers, within
the categories covered by the OGE data call, issued to employees of the
Department within 7 days of their issuance. When such waivers are
granted subject to 18 U.S.C. Sec. 208(b) or 5 CFR Sec. 2635.502(d),
they allow Federal employees to work on issues where there might be a
real or perceived conflict of interest. Review of these waivers is
critical to the committee's understanding as to whether the
Department's political appointees are appropriately recused from issues
---------------------------------------------------------------------------
that former clients or employers may bring before the Department.
On July 27, 2017, Ranking Member Wyden received a response to his
request from Ms. Elizabeth Fischmann, the Department's Associate
General Counsel for Ethics and the Designated Agency Ethics Official
(DAEO). The response indicated that two additional waivers had been
granted since the OGE data call, and the referenced waivers were
provided to the committee. However, the Department did not make any
commitment to continue providing future waivers to the committee, as
had been requested.
Will you, if confirmed, commit to providing the committee any
ethics waivers that have been issued subsequent to Ms. Fischmann's July
27th response?
Answer. Yes, consistent with all applicable laws and privileges, if
asked by the committee, I will provide any ethics waivers issued
subsequent to July 27th.
Question. Will you, if confirmed, commit to providing any future
waivers within 7 days of their issuance going forward?
Answer. I will be glad to promptly respond to any committee
requests for wavers granted by the Department.
Question. As currently organized, the HHS DAEO is a senior official
within the Office of General Counsel--the Associate General Counsel for
Ethics. If confirmed, will you commit to ensuring that ethics reviews
and determinations made by this official are independent of any
political pressure or interference?
Answer. Yes.
______
Questions Submitted by Hon. Debbie Stabenow
Question. As general counsel, you will be advising the
administration on the cost sharing reductions (CSRs), the impact of the
lawsuit, and the implications of any related legislation in Congress.
In my State of Michigan, families will have to pay more for their
health insurance next year if the administration takes away the CSRs.
What do you see your role being as it relates to the CSRs, and what
would be your recommendation to the administration?
Answer. The agency is currently one of the named parties in
litigation related to the cost sharing reduction payments. As a
nominee, I am unfamiliar with the details of this case at this time,
but if confirmed, I will be more than willing to discuss with your
office after I have a chance to evaluate those aspects of the case and
as permitted by the Rules of Professional Conduct.
Question. Your office is also in charge overseeing ethics
violations and inquiries from members of Congress.
To what extent will you work with members of Congress on potential
ethics violations?
Answer. If confirmed, I will always be available to discuss these
matters with members and their staff, through the Office of the
Assistant Secretary of Legislation, and as permitted by the Rules of
Professional Conduct and subject to the caveat that my ability to
discuss on-going internal investigations is likely to be limited. The
Office of the Assistant Secretary of Legislation will also be able to
coordinate the sharing of information when possible.
Question. Can we expect timely responses?
Answer. Yes.
______
Prepared Statement of Hon. Orrin G. Hatch,
a U.S. Senator From Utah
WASHINGTON--Senate Finance Committee Chairman Orrin Hatch (R-Utah)
today delivered the following opening statement at a hearing to
consider the nominations of Gilbert B. Kaplan to be Under Secretary of
Commerce for International Trade, Matthew Bassett to be an Assistant
Secretary of Health and Human Services, and Robert Charrow to serve as
General Counsel of Health and Human Services:
I would like to extend a warm welcome to each of the nominees here
today. Congratulations on your nominations, and thank you for your
willingness to serve in these important positions.
In today's hearing, I want to stress two major themes: integrity
and responsiveness. These are both important elements for any position
in government, particularly for a Senate-confirmed position. They are
absolutely essential for the positions under review today. The Under
Secretary of Commerce for International Trade is responsible for
promoting American trade around the globe and enforcing U.S. trade
laws.
If confirmed, Mr. Kaplan will need to be a strong advocate for
American exporters, while holding our trading partners accountable for
improper trade practices. There is a good deal of work that needs to be
done to improve compliance with our Nation's anti-dumping and
countervailing duty laws, but that mission should not come at the
expense of seeking to expand opportunities for U.S. goods and services
providers. It will be critical that the Department of Commerce work
with Congress and consult closely with members of the committee.
Frankly, there is room for improvement here, but I am confident Mr.
Kaplan understands the importance of the Department's responsibilities
to Congress and will work with Secretary Ross to ensure those
responsibilities are met.
As for the nominees to the Department of Health and Human Services,
your responsibilities are similarly connected to themes of integrity
and responsiveness.
Mr. Bassett, has been nominated to serve as an Assistant Secretary
with the specific function of performing legislative affairs. This
means that both the agency as well as Congress will rely on you to
ensure that we are kept well informed of the goings on at HHS. This
will be critical over the next few months.
Obviously, the effort to fix our nation's health-care system
suffered a setback recently. The recent series of events intensifies
the importance of this position as cooperation between Congress and HHS
will likely be more essential than ever.
Members of the Finance Committee expect to be in constant contact
with HHS and need timely and responsive answers to questions and
submitted inquiries. We hope that Mr. Bassett will commit today to
providing answers.
Finally, I'd like to highlight the critical importance of integrity
for the position of General Counsel at HHS, for which Mr. Charrow has
been nominated. While Mr. Charrow certainly has a considerable amount
of experience as a practicing lawyer, the position of General Counsel
at HHS brings with it challenges that are sure to be new.
There are likely to be times where the officials in the Department
and the White House may disagree on how to proceed in a specific course
of action. If confirmed, your responsibility will be to ensure that the
laws on the books, as written, are followed and implemented.
We've seen some thorny issues at both Commerce and at HHS as the
administration has, in some ways, gotten off to a rocky start. That is
all the more reason for the committee to move as quickly as possible to
consider and report these nominations.
______
Prepared Statement of Gilbert B. Kaplan, Nominated to be Under
Secretary for International Trade, Department of Commerce
Mr. Chairman, Ranking Member Wyden, members of the committee, it is
a great honor to be here today as the President's nominee to serve as
Under Secretary of Commerce for International Trade. I first testified
before this committee in 1986, when I was the Deputy Assistant
Secretary of Commerce for Import Administration, and I continue to be
deeply impressed by the rigorous and careful attention this committee
gives to international trade.
In some ways I feel that I have been preparing to hold this
position during my entire career. When I was fortunate enough to run
Import Administration in the 1980s under President Reagan and Commerce
Secretary Malcolm Baldrige, we conducted over 500 antidumping and
countervailing duty cases, including cases on agricultural products,
steel products, textiles and apparel, and semiconductors.
That unit, now called Enforcement and Compliance will be one of my
areas of responsibility at the International Trade Administration
(``ITA'') if I am confirmed.
After leaving Import Administration I have devoted myself to
representing American companies and workers in a wide range of trade
cases and trade policy issues. I filed and prosecuted the first
successful countervailing duty (anti-subsidy) case ever against China,
in 2007.
Another area of my responsibility, if I am confirmed, will be
developing programs to build up the international competitiveness of
the manufacturing base in the United States, within the Industry and
Analysis unit of ITA. In that regard I was the founder of The
Conference on the Renaissance of American Manufacturing. I was also the
co-founder of the Manufacturing Policy Initiative (``MPI'') at Indiana
University School of Public and Environmental Affairs, the first and
only university program in the country focusing on what public policy
steps should be taken to revitalize U.S. manufacturing.
Finally, I will be working extensively to promote American exports
and break down trade barriers through the Global Markets and U.S. and
Foreign Commercial Service unit at Commerce. In that regard while I was
at Commerce I was one of the key negotiators of the U.S.-Japan
Agreement on Trade in Semiconductors and later enforced the terms of
that agreement. That was one of the most successful agreements ever in
opening a foreign market, particularly a very difficult foreign market
to open.
Within the Global Markets unit at Commerce, we will also be
focusing on bringing foreign investment to the United States, to help
rebuild our manufacturing base and create good-paying jobs.
In addition, there are several over-arching themes I want to focus
on if I am confirmed: making sure the whole world is open to U.S.
digital trade, ensuring U.S. intellectual property is protected
everywhere in the world, and ensuring that small and medium-sized
enterprises can benefit from global trade.
There is an enormous amount of work to be done. We need to level
the playing field, increase exports, and revitalize industry. This will
entail vigorous trade law enforcement, including self-initiation of
cases, and vigorous negotiation of trade agreements, all while making
sure we do no harm to U.S. consumers and to the many companies,
workers, farmers, and ranchers who benefit so much from trade.
If I am confirmed, I look forward to working for a man who is
already making a big difference in these areas. That is Secretary
Wilbur Ross. I would like to thank Secretary Ross for the confidence he
has shown in me by supporting me for this role.
In closing, I would like to tell a very brief story about my
family. My father and mother arrived in this country in 1946 after
surviving the Holocaust. They arrived on a boat called the Ernie Pyle.
When they docked in New York, my father had $7 in his pocket, which he
had won playing cards on the boat.
I think my parents would be truly amazed if they could be here
today for this hearing, amazed at the greatness of this country, and at
the graciousness of all the people who have worked with me in moving
this appointment forward.
Chairman Hatch, Ranking Member Wyden, and members of the committee,
thank you for your consideration, and I would be pleased to answer any
questions.
______
SENATE FINANCE COMMITTEE
STATEMENT OF INFORMATION REQUESTED
OF NOMINEE
A. BIOGRAPHICAL INFORMATION
1. Name (include any former names used): Gilbert Bruce Kaplan.
2. Position to which nominated: Under Secretary of Commerce for
International Trade.
3. Date of nomination: May 25, 2017.
4. Address (list current residence, office, and mailing addresses):
5. Date and place of birth: July 9, 1951, Endicott, New York.
6. Marital status (include maiden name of wife or husband's name):
7. Names and ages of children:
8. Education (list secondary and higher education institutions, dates
attended, degree received, and date degree granted):
Harvard Law School, JD cum laude, 1977 (attended 1974-1977).
Harvard College, AB magna cum laude, 1974 (attended 1969-1972;
1973-1974).
Phillips Exeter Academy, Exeter, NH; graduated with high honors,
1969 (attended 1966-1969).
9. Employment record (list all jobs held since college, including the
title or description of job, name of employer, location of work, and
dates of employment):
June 2004--Present: Partner, King and Spalding LLP, Washington,
DC, International Trade Group. Responsible for trade remedy cases
(antidumping and countervailing duty), as well as intellectual property
matters (section 337); filed and won the first ever successful U.S.
anti-subsidy cases against China; substantial WTO experience in
disputes on United States trade remedy laws.
Co-Founder, Manufacturing Policy Initiative (``MPI'') at Indiana
University School of Public and Environmental Affairs (2015),
Bloomington and Indianapolis, Indiana; the first and only university
program in the country focusing on what public policy actions should be
taken to revitalize United States manufacturing.
Founder, Conference on the Renaissance of American Manufacturing
(2010); organized and ran two full-day conferences on U.S.
manufacturing revival at the National Press Club in Washington, DC.
President, Committee to Support U.S. Trade Laws (2010-2012), an
organization dedicated to preserving and enhancing the United States
unfair trade laws.
1990-May 2004: Senior partner, Hale and Dorr, Washington, DC and
Boston, MA; chairman of the Government and Regulatory Affairs
Department; hiring partner for the Mid-Atlantic Region; handled major
cases on dumping and subsidies in the semiconductor area.
1988-1990: Partner, Morrison and Foerster, Washington, DC; head of
the international trade practice.
1985-1988: Deputy Assistant Secretary and First Acting Assistant
Secretary of Commerce for Import Administration. United States
Department of Commerce.
Supervised department with over 300 staff. Responsible for
administering the antidumping and countervailing duty laws, overseeing
the implementation of trade agreements with foreign countries (key
negotiator of U.S.-Japan Semiconductor Agreement), the Foreign Trade
Zones program, and section 232 cases on import relief for national
security purposes. Supervised over 500 trade remedy cases.
Oversaw legislative issues regarding trade remedy laws for the
administration; oversaw GATT affairs and GATT negotiations with respect
to the trade remedy laws. Became the first Acting Assistant Secretary
for Import Administration when this new position was created as the
result of a reorganization at the end of 1987.
1983-1985: Director, Office of Investigations, United States
Department of Commerce; in charge of day-to-day trade remedy law
administration.
1977-1983, and Summer 1976: Hill and Barlow, Boston, MA;
Associate, Litigation and General Corporate Practice.
Summer 1975: Research assistant, Professor Richard Parker, Harvard
Law School, Cambridge, MA; research on constitutional law.
Summer 1974: Cambridge School of Weston Summer Camp, Weston, MA;
camp counselor.
10. Government experience (list any advisory, consultative, honorary,
or other part-time service or positions with Federal, State, or local
governments, other than those listed above):
Appointed by Governor William Weld to be a member of the
Massachusetts International Trade Advisory Board; served as Co-Chairman
of the Export Promotion Task Force of the board; formulated and wrote a
new export finance provision for Massachusetts that was enacted into
law in 1992.
11. Business relationships (list all positions held as an officer,
director, trustee, partner, proprietor, agent, representative, or
consultant of any corporation, company, firm, partnership, other
business enterprise, or educational or other institution):
Member, advisory board; Manufacturing Policy Initiative (``MPI''),
Indiana University School of Public and Environmental Affairs,
appointed 2016 for a 3-year term.
12. Memberships (list all memberships and offices held in
professional, fraternal, scholarly, civic, business, charitable, and
other organizations):
I was the president of the Committee to Support U.S. Trade Laws
(``CSUSTL'') from 2010-2012. Prior to that I was head of the Lawyer's
Committee. From 2012-2017 I served as head of the Public Affairs and
Membership Committee. As noted above, CSUSTL is an association of
companies, workers, farmers, and individuals dedicated to maintaining
the strength of the United States unfair trade laws.
I was the co-founder of The Manufacturing Policy Initiative
(``MPI'') at the School of Public and Environmental Affairs at Indiana
University. As noted above, this is the first and only university
program in the country dedicated to studying and making recommendations
regarding which public policies to pursue to revitalize United States
manufacturing. MPI was started in 2015. I serve on the Advisory Board
of MPI, which was created earlier this year, but has not yet met.
I was the founder of the Conference on the Renaissance of American
Manufacturing, which is an ad hoc organization that sponsored two
conferences at the National Press Club (in 2010 and 2012) on reviving
United States manufacturing.
I was a member of the Coalition for a Prosperous America (``CPA'')
in 2015 and 2016. As stated on their website, ``The Coalition for a
Prosperous America is the Nation's premier nonprofit organization
working at the intersection of trade, jobs, tax, and economic growth.
We are a bipartisan coalition of farmers and ranchers, manufacturers,
and labor groups working for a national strategy to eliminate the trade
deficit, create good-paying jobs, protect U.S. sovereignty, and achieve
broadly shared prosperity.''
I am a member of the American Bar Association and have been since
the 1980s.
I am a member of the National Press Club and have been since the
1990s.
I am a member of the Metropolitan Club in Washington, DC, since
2007.
13. Political affiliations and activities:
a. List all public offices for which you have been a candidate.
Candidate for Massachusetts State Representative, Back Bay
Beacon Hill Section of Boston, 1982.
b. List all memberships and offices held in and services rendered
to all political parties or election committees during the last 10
years.
Member of presidential candidate Mitt Romney's Trade Advisory
Board, 2012.
Host committee, NRSC Governors for a Senate Majority Reception,
September 8, 2014; host committee, Senator Orrin G. Hatch breakfast,
July 26, 2012; host committee, Senator Evan Bayh breakfast, May 5,
2009; host committee, Congressman Sandy Levin breakfast, April 28,
2009; host committee, Senator Arlen Specter breakfast, April 23, 2008;
host committee, Senator Orrin G. Hatch reception, January 19, 2006.
c. Itemize all political contributions to any individual, campaign
organization, political party, political action committee, or similar
entity of $50 or more for the past 10 years.
Date Amount Recipient
October 15, 2007 $1,000.00 Giuliani, Rudolph
December 31, 2007 $2,250.00 King and Spalding Political
Action Committee
March 12, 2008 $500.00 Peters, Gary
April 28, 2008 $2,300.00 Specter, Arlen
August 29, 2008 $2,500.00 King and Spalding Political
Action Committee
September 7, 2008 $2,300.00 McCain-Palin Victory 2008
September 30, 2008 $2,300.00 Republican National Committee
April 28, 2009 $1,000.00 Levin, Sander
May 11, 2009 $1,000.00 Bayh, Evan
August 30, 2009 $2,550.00 King and Spalding Political
Action Committee
November 18, 2009 $1,000.00 Schumer, Charles
March 30, 2010 $1,000.00 McCain, John
April 22, 2010 $500.00 Peters, Gary
August 20, 2010 $250.00 Hatch, Orrin
October 22, 2010 $1,000.00 Coats, Dan
June 30, 2011 $1,500.00 Olympia's List (Olympia, Snowe)
July 31, 2011 $2,000.00 King and Spalding Political
Action Committee
November 1, 2011 $500.00 Hastings, Doc
December 28, 2011 $1,000.00 Romney for President
January 9, 2012 $500.00 Romney for President
May 7, 2012 $1,000.00 Romney, Mitt
May 7, 2012 $2,500.00 Romney, Mitt
May 7, 2012 $5,000.00 Republican National Committee
May 7, 2012 $5,000.00 Republican National Committee
June 10, 2012 $500.00 Chambliss, Saxby
July 16, 2012 $1,000.00 Romney Victory, Inc.
July 18, 2012 $1,000.00 Republican National Committee
August 10, 2012 $1,500.00 Hatch, Orrin
August 17, 2012 $1,000.00 Republican National Committee
August 17, 2012 $1,000.00 Romney Victory, Inc.
September 7, 2012 $10,000.00 Republican National Committee
September 7, 2012 $10,000.00 Romney Victory, Inc.
September 28, 2012 $1,000.00 Camp, Dave
September 25, 2013 $1,000.00 Portman, Rob
September 30, 2013 $500.00 Lane, Charlotte
March 31, 2014 $20,000.00 Republican National Committee
September 11, 2014 $2,000.00 NRSC
September 21, 2014 $250.00 Sullivan, Dan
September 30, 2014 $250.00 Murphy, Tim
March 17, 2015 $500.00 Morrisey for West Virginia
April 24, 2015 $1,000.00 Grassley, Charles
May 7, 2015 $500.00 Schumer, Charles
May 15, 2015 $1,650.00 King and Spalding Political
Action Committee
September 25, 2015 $1,000.00 NRSC
September 30, 2015 $1,000.00 Portman, Rob
March 22, 2016 $250.00 Morrisey for West Virginia
14. Honors and awards (list all scholarships, fellowships, honorary
degrees, honorary society memberships, military medals, and any other
special recognitions for outstanding service or achievement):
Recognized in Chambers (America's Leading Lawyers); Super Lawyers;
Who's Who in America; Who's Who in American Law.
15. Published writings (list the titles, publishers, and dates of all
books, articles, reports, or other published materials you have
written):
Practice at the International Trade Commission, Chapter 106 of
Intellectual Property Counseling and Litigation (Matthew Bender 2014)
(co-author with other colleagues at my firm).
``How VAT Trade Zones Can Boost American Manufacturing,'' with
John Taylor, New America Foundation, May 2011.
``A New Focus for Trade Talks,'' Baltimore Sun, December 2008.
``Five Myths About the Death of the American Factory,'' The
Washington Post, June 2008; reprinted in Repository, in Canton, OH; The
Pioneer Press, in St. Paul, MN; The Cleveland Plain Dealer; The
Dispatch, in Brainerd, MN; The Austin American-Statesman; The Atlanta
Journal-Constitution; and The Deseret Morning News, in Salt Lake City,
UT.
``The First Affirmative Countervailing Duty Case Against China,''
with Christopher Cloutier, Metropolitan Corporate Counsel, May 2007.
``The ITC or the District Court? Where to Protect Your
International Intellectual Property,'' with Courtland Reichman,
Monograph Series, National Legal Center for the Public Interest,
November 2006.
``Summer Mixer, Take a Hiring Partner's Advice,'' Legal Times, May
29, 2000 (article on how to have a good summer associate experience).
The GATT 1994 Antidumping Agreement; Evolution, Basic Principles,
and Dispute Settlement Proceedings, with Michael D. Esch and Cris R.
Revaz, Oceana Publications (1999).
``GATT Talks: Selling Ourselves Short,'' The Washington Post,
Sunday, February 25, 1990.
``The Use of Arbitration to Resolve Market Access Disputes,'' 22
Cornell International Law Journal 469 (1989).
``Recent Developments and Trends in Unfair Trade Laws: Antidumping
and Countervailing Duties,'' with Bonnie B. Varga and Thomas A. Behney,
in Trade Law and Policy, Practicing Law Institute Course Series (1989).
``Antidumping, Countervailing Duty, and National Security
Provisions in the 1988 Trade Act,'' with Susan Haggerty Kuhbach and
Ronald K. Lorentzen, 22 George Washington Journal of International Law
and Economics 553 (1989).
``Cost Analysis Under the Antidumping Law,'' with Lynn G. Kamarck
and Marie Parker, 21 George Washington Journal of International Law and
Economics 357 (1988).
``The Causes of Unfair Trade: A Trade Law Enforcer's
Perspective,'' with Susan Haggerty Kuhbach, 56 Antitrust Law Journal
445 (1987).
``How to Prepare a Good Dumping or Countervailing Duty Case,''
with Kenneth C. Stanhagen; published in International Trade Law,
Professional Education Systems Inc., 1985,
The following are recent posts written by me and published in The
Huffington Post:
September 29, 2016: ``U.S. Manufacturing, Alexander Hamilton, and
the Presidential Election.''
September 16, 2015: ``What President Obama Should Say to
President Xi on Trade.''
December 30, 2014: ``Make Trade Promotion Authority Into Jobs
Promotion Authority.''
January 24, 2014: ``The War on Poverty, International Trade, and
the State of the Union.''
16. Speeches (list all formal speeches you have delivered during the
past 5 years which are on topics relevant to the position for which you
have been nominated):
No formal speeches during this period.
17. Qualifications (state what, in your opinion, qualifies you to
serve in the position to which you have been nominated):
I am deeply committed to the mission of the International Trade
Administration (``ITA'') at the U.S. Department of Commerce. I believe
my prior experience in the government (in a unit that is part of ITA)
enforcing the trade laws and assisting U.S. manufacturers, workers, and
farmers; in my law practice representing U.S. manufacturers in their
struggle to achieve fair trade competition; and in establishing
innovative programs regarding revitalizing United States manufacturing
all make me uniquely qualified to assume the position of Under
Secretary for International Trade at the U.S. Department of Commerce.
While in the United States government, from 1983 to 1988, I served
in several senior positions. I was the Acting Assistant Secretary and
Deputy Assistant Secretary for Import Administration at the U.S.
Department of Commerce. While there, I was in charge of administering
the U.S. antidumping and countervailing duty laws and conducted over
500 antidumping and countervailing duty cases. These included cases on
agricultural products, such as potatoes, roses, and ethanol, steel
products, textiles, and apparel, and a variety of semiconductor and
high-technology products.
While at the Department of Commerce, I also supervised the
President's Steel Program, the U.S.-Japan Agreement on Trade in
Semiconductors, the U.S.-
Canada agreement on lumber, and the machine tool program. In addition,
I oversaw the foreign trade zones program, as well as the Office of
Industrial Resource Administration, which develops and implements
programs to ensure the availability of industrial resources to meet
U.S. peace-time and emergency requirements. I was a principal spokesman
for the administration on legislative and congressional issues related
to the dumping, countervailing duty, and National Security import
relief (section 232) laws.
In my private law practice, I have focused on representing U.S.
manufacturers in a wide range of cases on antidumping (price
discrimination), countervailing duties (subsidies), and section 337
(intellectual property infringement). I have also advised clients on
trade policy matters, as well as trade negotiations such as those
involving the WTO and international anti-subsidy agreements. Among
other major matters, I filed and prosecuted the first successful
countervailing duty (anti-subsidy) cases ever against China, in 2007 on
behalf of U.S. paper and pipe manufacturers. I also filed a series of
successful cases for the U.S. semiconductor industry on subsidies to
foreign semiconductor producers. I am currently a partner at the firm
of King and Spalding and was previously a partner at Hale and Dorr, and
had the opportunity to work with and learn from many exceptional
lawyers at both firms.
As noted above in the questionnaire, I have published extensively
in the international trade field, including a monograph on section 337
cases at the International Trade Commission entitled The ITC or the
District Court? Where to Protect Your International Intellectual
Property, National Legal Center for the Public Interest, 2006. I
published an op-ed piece in the Washington Post Outlook Section in 2008
entitled, ``5 Myths about the Death of the U.S. Factory,'' which was
extensively republished. I have published a number of law review
articles on the enforcement of the unfair trade laws, an area that will
be within my responsibilities if I am confirmed, including ``Cost
Analysis Under the Antidumping Law,'' with Lynn G. Kamarck and Marie
Parker, 21 George Washington Journal of International Law and Economics
357 (1988).
I served as the first president of the Committee to Support U.S.
Trade Laws (CSUSTL), from 2010-2012. CSUSTL is an organization of
companies, trade associations, farmers, ranchers, workers, and
individuals dedicated to preserving and enhancing the U.S. trade remedy
laws.
As noted, I have worked extensively on revitalizing the United
States manufacturing industry. I am the founder of The Conference on
the Renaissance of American Manufacturing, which among other activities
held two all-day conferences on revitalizing manufacturing at the
National Press Club in Washington, DC, in 2010 and 2012. Many members
of the Senate and House spoke at these conferences. I also am the co-
founder of the Manufacturing Policy Initiative at the Indiana
University School of Public and Environmental Affairs, the first and
only university program in the country dedicated to studying and making
recommendations regarding the best public policies to revitalize United
States manufacturing.
B. FUTURE EMPLOYMENT RELATIONSHIPS
1. Will you sever all connections with your present employers,
business firms, associations, or organizations if you are confirmed by
the Senate? If not, provide details.
Yes. However, as noted in my ethics agreement, from the date of my
resignation from King and Spalding through the year 2025, I will
receive fixed monthly retirement payments from the law firm. The amount
of these fixed payments will be calculated at the time of my departure
from the firm, based on my ``equivalency unit'' points at the time of
my departure.
2. Do you have any plans, commitments, or agreements to pursue
outside employment, with or without compensation, during your service
with the government? If so, provide details.
No.
3. Has any person or entity made a commitment or agreement to employ
your services in any capacity after you leave government service? If
so, provide details.
No.
4. If you are confirmed by the Senate; do you expect to serve out
your full term or until the next presidential election, whichever is
applicable?
Yes.
C. POTENTIAL CONFLICTS OF INTEREST
1. 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 ethics officials at the Department
of Commerce to identify potential conflicts of interest. Any potential
conflicts will be resolved in accordance with the terms of the ethics
agreement that I have entered into with the Department of Commerce and
that has been provided to the committee. I am not aware of any other
potential conflicts of interest.
2. Describe any business relationship, dealing, or financial
transaction which you have had during the last 10 years, whether for
yourself, on behalf of a client, or acting as an agent, that could in
any way constitute or result in a possible conflict of interest in the
position to which you have been nominated.
I am not aware of any. I will comply with all points in my ethics
agreement.
3. 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. Activities
performed as an employee of the Federal Government need not be listed.
As president of the Committee to Support U.S. Trade Laws
(``CSUSTL''), a position I held from 2010-2012, I advocated for strong
enforcement of the unfair trade laws, including for the passage of the
so-called GPX legislation (U.S. Public Law 112-99 enacted on March 13,
2012), providing that the countervailing duty law could be applied to
non-market economy countries.
4. Explain how you will resolve any potential conflict of interest,
including any that may be disclosed by your responses to the above
items.
As noted above, in connection with the nomination process, I have
consulted with the Office of Government Ethics and ethics officials at
the Department of Commerce to identify potential conflicts of interest.
Any potential conflicts will be resolved in accordance with the terms
of the ethics agreement that I have entered into with the Department of
Commerce and that has been provided to the committee. I am not aware of
any other potential conflicts of interest.
5. Two copies of written opinions should be provided directly to the
committee by the designated agency ethics officer of the agency to
which you have been nominated and by the Office of Government Ethics
concerning potential conflicts of interest or any legal impediments to
your serving in this position.
D. LEGAL AND OTHER MATTERS
1. Have you ever been the subject of a complaint or been
investigated, disciplined, or otherwise cited for a breach of ethics
for unprofessional conduct before 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 for a violation of
any Federal, State, county, or municipal law, regulation, or ordinance,
other than a minor traffic offense?
No.
3. Have you ever been involved as a party in interest in any
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. Please advise the committee of any additional information,
favorable or unfavorable, which you feel should be considered in
connection with your nomination.
I can't think of any not already provided.
E. TESTIFYING BEFORE CONGRESS
1. If you are confirmed by the Senate, 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.
2. If you are confirmed by the Senate, are you willing to provide
such information as is requested by such committees?
Yes.
______
Questions Submitted for the Record to Gilbert B. Kaplan
Questions Submitted by Hon. Orrin G. Hatch
Question. The NAFTA modernization negotiations are an opportunity
to establish strong, enforceable international trade rules for ensuring
cross-border data flows.
Do you support including rules to allow cross-border data flows in
a modernized NAFTA?
Answer. The administration recognizes the importance of the digital
economy to American jobs and prosperity, and the necessary role cross-
border data flows play in facilitating trade. Cross-border data flows
are vital to every industry sector conducting trade, and preserving
data flows ensures U.S. companies maintain their leadership in this
area.
In fact, the McKinsey Global Institute noted in its March 2016
report on ``Digital Globalization: The New Era of Global Flows'' that
``Over a decade, global flows have raised world GDP by at least 10
percent; this value totaled $7.8 trillion in 2014 alone. Data flows now
account for a larger share of this impact than global trade in goods.''
I am committed to ensuring high-quality standards ensuring the free
flow of data across borders as these data flows are a necessary part of
any modern trade relationship including a modernized NAFTA.
Question. In the wake of the administration's release of specific
objectives for the upcoming negotiations with Canada and Mexico, there
has been some interest in the United States' commitment to the APEC
Cross-Border Privacy Rules system, or APEC-CBPRs. The Department of
Commerce has played an instrumental role in negotiating and structuring
this agreement.
How do you think the APEC-CBPRs and an updated NAFTA will function
together, and how do you plan to prioritize continued and improved data
flows with our Canadian and Mexican neighbors?
Answer. The Department of Commerce continues to work with APEC
economies, including Canada and Mexico, to bolster the APEC Cross-
Border Privacy Rules system for the benefit of U.S. industry in the
region. I am encouraged that all parties to NAFTA participate in the
APEC-CBPR system, and believe the mechanism's role in NAFTA can ensure
the free flow of commercial data throughout the NAFTA region.
One of the many areas that have necessitated a modernization of
NAFTA is the lack of an existing digital trade chapter in the current
agreement. In 2015, the United States had a trade surplus of nearly $22
billion in potentially ICT-enabled services among NAFTA parties. Every
sector of the American economy relies on cross-border data flows, and
ensuring mechanisms for digital trade--including through use of the
APEC-CBPR system--will preserve the leadership position of U.S.
industry across sectors.
Question. India remains one of our most problematic trading
partners, ranking last among G20 countries in the World Bank's Doing
Business report, and near the bottom of the U.S. Chamber of Commerce
International IP index every year. What is your plan for engaging with
the Government of India for the benefit of U.S. exporters?
Answer. I intend to continue the International Trade
Administration's (ITA) efforts to regularly raise U.S. exporter
concerns through its bilateral commercial dialogue with the Indian
Ministry of Commerce and Industry as well as USTR's Trade Policy Forum.
Through these engagements, ITA seeks opportunities to resolve market
access barriers that impact U.S. exporters, including issues with IPR
protection and enforcement, standards harmonization, and the
rationalization of taxes and tariffs. ITA also facilitates direct
dialogue between U.S. exporters and the Government of India (GOI)
through venues such as the U.S.-India CEO Forum, the U.S.-India Ease of
Doing Business Private Sector Outreach webinar series, and other
business-to-government engagements. Through its seven Indian offices,
the Foreign Commercial Service provides vital support to U.S. exporters
to help them navigate the Indian market, connect with potential
partners, and gain access to GOI decision-
makers. The ITA Advocacy Center works with U.S. exporters to ensure
they benefit from a level playing field when competing for GOI tenders,
including in growing sectors such as aerospace, defense, energy, and
health care. Along with USTR and the U.S. Patent and Trademark Office,
ITA also develops regular workshops and exchange programs with the
Government of India on topics including anti-piracy, copyright
protections, trade secrets, and patent issues related to bio-
pharmaceuticals, bio-agriculture, and computer-related inventions.
Question. I am disturbed by what I see as an increasing trend by
certain international organizations to engage in initiatives that
threaten U.S. competitiveness, including last year's High-Level Panel
on Access to Medicines and multiple initiatives that harm U.S. dairy.
The key to counteracting these initiatives is consistent interagency
coordination. In some cases, I have seen U.S. agencies responsible for
interacting with these international organizations fail to run an
effective interagency process that takes into account the views of all
stakeholders. How will you ensure that the Department of Commerce will
work with other agencies to improve interagency coordination and ensure
that trade and economic issues are front and center in interagency
deliberations?
Answer. To ensure the Department represents the needs of U.S.
industry in government trade policy decision-making, ITA fully engages
the interagency Trade Policy Staff Committee (TPSC) process at all its
levels. ITA administers Commerce representation in the TPSC process,
and ensures that decisions under consideration are evaluated by
relevant experts within the Department, that the Department is
appropriately represented in all facets of decision-making, and that
our positions are conveyed in a clear and timely manner.
If confirmed, I will commit to ensuring that the commercial
interests of U.S. manufacturers, farmers, ranchers, workers, and
intellectual property holders are clearly and vigorously defended in
the interagency process and promoted in international fora.
Question. Investor-state dispute settlement (ISDS) provides crucial
protections for American firms developing products in the United States
and selling them overseas. In the Bipartisan Congressional Trade
Priorities and Accountability Act of 2015, protection for U.S.
investors is a principal negotiating objective of the United States.
This has been a critical part of most U.S. free trade agreements, and
has been a part of U.S. international economic policy through bilateral
investment treaties for decades.
If confirmed, will you work to reduce or eliminate artificial or
trade distorting barriers to U.S. investment, and secure for U.S.
investors overseas enforceable rights that are comparable to those that
would be available under U.S. legal principle and practice?
Answer. If confirmed, I will work to ensure that U.S. investments
abroad are accorded a level playing field and that such investments
receive the same types of substantive protections and enforceable
rights that are available under U.S. legal principles and practice. We
are fully aware of the important provisions on this issue in the
Bipartisan Congressional Trade Priorities and Accountability Act of
2015. If confirmed, I will seek to ensure that such tools are in place
in a way that will protect U.S. investors without limiting the U.S.
Government's ability to enforce its laws and regulations.
______
Questions Submitted by Hon. Ron Wyden
transparency and consultations
Question. I have been clear that meaningful consultations with
Congress and communications with the public are necessary for every
aspect of our trade agenda. Yet the Commerce Department has kept this
committee in the dark on several matters, including proposals being
developed by Commerce Department officials to resolve the ongoing
dispute with Canada over softwood lumber trade. As Senator Crapo and I
noted at June's trade agenda hearing, this committee must be consulted
every step of the way, and should be briefed on the details of U.S.
proposals before they are made to Canada. Senator Crapo and I recently
sent a letter, along with five other members of the Senate Finance
Committee, to Secretary Ross and Ambassador Lighthizer emphasizing the
need for a strong outcome for American millworkers.
I note also that such consultations will only be meaningful if
conducted in a way that allows members of this committee and their
staffs to actually reflect on what is being considered and to offer
comments. It is simply unacceptable to only engage the committee just
before a proposal is offered or an agreement reached.
If confirmed, will you commit to fully brief upon request the
members of the Finance Committee and their staffs in detail on the
softwood lumber case, to do so before the United States gives proposals
to Canada, and to do so in a manner that allows the opportunity for
meaningful consultation with the committee?
Answer. Yes, if confirmed, I commit to fully brief the members of
the Finance Committee and their staffs on the softwood lumber case and
on proposals regarding resolution of the ongoing dispute, upon request
from members or their staffs, and before proposals are made. I will do
so in a manner that allows for meaningful consultations with the
committee.
digital trade
Question. Last month, Senator Thune and I sent a letter outlining
some of our priorities on digital trade, which is now vital to
exporters in every State and industry. In particular, we called on the
administration to tackle the full range of barriers to America's
digital exports. In recent years, the Commerce Department has been a
leader in the executive branch on many of these issues critical to a
large and growing part of the U.S. economy.
Do you commit to keeping digital trade at the top of your agenda
and to examining the structure within the agency to ensure that the
Commerce Department is best positioned to effectively tackle digital
trade barriers?
Answer. Yes. The Department of Commerce plays a key role in driving
international digital trade initiatives, whether it is market access
for U.S. digital products, standards, cybersecurity, emerging
technologies, cross-border data flows, privacy issues, or the impact of
digital trade on many other goods and services (as noted in the letter
referenced above.) The International Trade Administration has led the
government and Department of Commerce in a number of cross-cutting
digital issues, including cybersecurity, cloud technologies, digital
media and entertainment, privacy, and cross-border data flows. It is
imperative that the Department of Commerce continue this important
work, and steer the U.S. Government's efforts to combat discriminatory
policies that hurt U.S. industry operating globally. In bilateral and
multilateral engagement, the International Trade Administration is best
positioned to lead the Government's efforts to expand the U.S. economy
by facilitating digital trade and this will remain at the top of ITA's
agenda if I am confirmed. I also commit to examine the structure within
the agency to see if any improvements can be made.
Question. What international initiatives do you plan specifically
to enable digital trade to thrive and grow?
Answer. The administration has already begun establishing bilateral
dialogues with partners around the world, including a strategic
economic dialogue with Japan on digital trade issues, and the
Comprehensive Economic Dialogue with China, among others, to take
concrete steps to improve digital trade conditions for U.S. industry.
The modernized NAFTA will also include new provisions on digital trade.
The Department of Commerce will continue to create new opportunities
for U.S. businesses and the American economy, and improve upon existing
initiatives. As such, the International Trade Administration will
continue to lead the EU-U.S. Privacy Shield, U.S.-Swiss Privacy Shield,
and APEC Cross-Border Privacy Rules System, facilitate digital trade
and e-commerce chapters of Free Trade Agreements in partnership with
our colleagues at USTR, and address barriers to digital trade, such as
forced data localization and the measures around revealing source code.
The International Trade Administration will maintain its role as the
leading agency in the government for numerous digital trade issues. It
is a priority for the administration to ensure America remains the
global leader in all sectors supported by digital trade, and we look
forward to continuing the important work we lead at the International
Trade Administration.
privacy shield
Question. Under the previous administration, ITA negotiated and
launched the EU-U.S. Privacy Shield. This vital mechanism allows U.S.
companies to transfer personal data from the European Union to the
United States while providing strong privacy protections. The EU
participates in an annual review of the program and of U.S. privacy
practices to ensure its citizens' privacy remains adequately protected
when their data is transferred here.
The first such review, between the European Commission and a U.S.
delegation led by the Commerce Department, is occurring in September.
European advocacy groups and parliamentarians continue to object to the
Privacy Shield and have challenged it in European courts. Failure to
secure the EU's consent to continue the data transfer mechanism would
be devastating for many U.S. exporters.
If confirmed, will you personally ensure that Privacy Shield
remains a priority for both ITA and Commerce Department leadership, as
it was in the previous administration?
Answer. Yes. The Privacy Shield Framework is critically important
to U.S. industry's ability to do business from the United States, since
it enables U.S. companies to access personal data in the United States
necessary to provide goods and services globally. As of August 2017,
over 2,300 organizations have participated in and benefitted from the
Privacy Shield, and that number continues to grow each month. We will
continue to support the Privacy Shield at ITA. In fact, Secretary Ross
has reiterated the importance of the Framework and the Department's
support for it, and we will continue to prioritize it in ITA if I am
confirmed. As this Framework is critical to U.S. business interests, it
will remain a priority at the Department of Commerce.
Question. In view of ongoing European criticism of the Privacy
Shield, how should the Commerce Department use the upcoming joint
review to defend the agreement and ensure its continuity?
Answer. The U.S.-EU economic relationship is the largest in the
world, with trade flows valued at over $1 trillion annually, and
combined stocks of investment in each economy sourced from the other
market close to $4 trillion. Data flows are crucial to and underpin
this strong economic relationship, allowing businesses in all sectors
to cooperate across the Atlantic. The annual review is a unique
mechanism that will allow both parties to engage on a regular basis to
not only build relationships, but address any concerns about Privacy
Shield. The Department of Commerce has been in close communication with
their European counterparts, and we are confidant both sides will
continue this important work and engagement to address any concerns and
achieve a successful result.
Question. If confirmed, will you engage vigorously with interagency
partners, including the national security-focused agencies, to ensure
the United States is a credible actor on data privacy issues?
Answer. Yes. The Privacy Shield Framework contains critical
elements related to national security and law enforcement issues that
require close collaboration with colleagues across the Federal
Government, including ODNI, DOJ and the Department of State. The
Department of Commerce regularly engages with these interagency
partners to ensure that all of the pieces of the Framework are in
place. We will continue to collaborate with them to coordinate on all
aspects of the Privacy Shield, including leading up to the annual
review which will provide an important avenue for engagement with our
European partners.
exports and the trade deficit
Question. The Trump administration has talked a lot about reducing
the trade deficit. It seems to me the best way to do that is to
increase exports--which is what I have been saying for years. We need
to grow things here, make things here, add value to them here and ship
them to the rest of the world. The Commerce Department has an important
role in promoting and supporting U.S. exports. For example, ITA's
Portland office has made a difference for exporters in my State.
Similar offices are operating in the States of almost every member of
the Finance Committee.
But the President has proposed cuts to ITA funding that would,
among other harms, shut down 10 local offices helping small businesses
across the country increase their exports.
Will you fight to ensure that the administration fully funds key
export programs?
Answer. Yes. Exports support millions of high-paying jobs for
American citizens, and the administration wants to see them grow. If
confirmed, I will fight to ensure that ITA has the funds necessary to
enable its mission of promoting the exportation of U.S. goods and
services.
Question. Recognizing the administration's commitment to
manufacturing, how will you work to expand exports to grow U.S.
manufacturing jobs and seek to address foreign barriers without putting
those exports at risk?
Answer. ITA has established a non-tariff barrier (NTB) task force.
The goal is to help increase exports by leveraging Commerce's global
footprint, its experts, industry input, and policy levers to help
reduce, remove, and prevent NTBs to trade, to remedy unfair situations,
and to improve agreements compliance and market access globally for
U.S. stakeholders. This work is helping to open markets and expand our
exports, helping to grow U.S. manufacturing jobs. As part of this work,
ITA develops an appropriate strategy that ensures U.S. interests are
not adversely affected by U.S. engagement. ITA works hand-in-glove with
the company and/or industry to ensure any action taken does not put our
exports at risk. The plan seizes upon the unique roles and skill-sets
from each ITA unit and adds increased ITA-wide collaboration to advance
a next generation set of trade enforcement and compliance activities to
resolve trade barriers in a commercially-meaningful time frame. ITA has
been quite successful in helping our companies and industries and if I
am confirmed I look forward to continuing this collaboration to ensure
U.S. companies can compete globally and succeed.
excess capacity in steel
Question. Mr. Kaplan, we have a serious problem of global
overcapacity in steel, aluminum, solar, and other products resulting
from foreign government subsidies and other market-distorting
practices. The OECD has been trying to address these issues in the
steel sector; the Commerce Department is currently investigating
whether imports of steel and aluminum pose a threat to our national
security. While that investigation is ongoing, foreign steel is
flooding our markets, further threatening U.S. jobs. Clearly we need a
more comprehensive strategy to deal with the problem.
In your view, what are the specific steps the United States should
take to obtain concrete results in the reduction of global steel,
aluminum, and solar capacity?
Answer. With regard to steel, there are several areas where the
United States is working to address the global excess capacity problem.
One is in the Global Forum which originated in the G20 where Leaders in
Hangzhou (September 2016) agreed to establish a forum where
participants could evaluate the causes of excess capacity and encourage
market-based adjustment. At the G20 Hamburg Summit in July 2017,
Leaders reaffirmed this mandate and directed the Global Forum members
to (1) complete information-sharing by August 2017, and (2) provide a
substantive report with concrete policy solutions by November 2017. The
work of the Global Forum is on-going, Leaders reaffirmed its importance
in July and look forward to the report in November.
With regard to aluminum, global overcapacity and lower prices are
primarily a result of excess production by China's aluminum sector. The
United States must utilize every forum to pressure China to reduce its
aluminum capacity. The United States has requested WTO consultations on
subsidies that China provides to certain producers of primary aluminum.
The administration has also joined other G20 countries to develop a
forum similar to the steel Global Forum to evaluate the causes of
excess capacity and encourage market-based adjustment. Similar steps
should be examined for the solar industry.
I believe one model we should look to to deal with excess capacity
in a range of industries (steel, aluminum, solar) is the method we used
to deal with excess capacity in memory semiconductors in the 1980s in
Japan. There the United States self-initiated a dumping case on DRAM
semiconductors, pursued a Section 301 case on market access for
semiconductors, vigorously negotiated with Japan, and ultimately
reached a comprehensive agreement (the U.S.-Japan Agreement on Trade in
Semiconductors) which dealt with dumping and other unfair practices
both into the United States and third countries, and with market access
in Japan. We combined a trade case strategy (dumping and Section 301)
with tough negotiating to reach a very positive result. In view of the
subsidies involved in the industries you mention, at this time we
should consider self-initiating countervailing duty cases where
warranted and then lead into vigorous negotiations.
u.s.-china trade
Question. We have many challenges in our trade relationship with
China. In April, Chairman Hatch and I sent a letter to the President
laying out the areas that we think should be top priorities, including
discriminatory and distortive technology policies and burdensome
regulations on cloud providers. After ``initial results'' of the 100-
day action plan were announced there were no further results--or even
progress--out of the Comprehensive Economic Dialogue and 100-day
process that ended July 19th. And, I am not aware of any plans for
future discussions or any strategy to tackle the issues. The Commerce
Department co-leads the Comprehensive Economic Dialogue and thus has a
vital role in setting the agenda for engagement with China.
How will you, in your role at Commerce, work to address the real
issues that U.S. businesses face in China, and what avenues of
engagement do you see as most effective in producing results?
Answer. I am committed to pressing China to eliminate its market-
distorting industrial policies and to open its market further to
exports of U.S. goods and services. We will rigorously enforce existing
U.S. trade laws to protect U.S. firms and U.S. workers from unfair
trade practices. Working closely with our colleagues at USTR and the
State Department, we will push China to implement market opening
measures that they have previously agreed to in either bilateral or
multilateral negotiations and if China does not act, we will take
appropriate action under U.S. or international trade law. We will also
aggressively negotiate with China to take further steps to open its
markets to U.S. exports. Finally, our Foreign Commercial Service will
continue to work with U.S. industry to help them sell in the China
market.
Also on August 14th, President Trump signed a Presidential
Memorandum directing the U.S. Trade Representative to determine whether
to initiate a Section 301 investigation of China's laws, industrial
policies, and other measures that may harm American intellectual
property rights, innovation, or technological development. In the
memorandum, the President indicated his concern in particular with
certain Chinese measures that may ``encourage or require the transfer
of American technology and intellectual property to enterprises in
China or that may otherwise negatively affect American economic
interests.''
The most effective approach is a coordinated combination of trade
negotiations to create new market openings, trade enforcement to ensure
that existing agreements are implemented and existing trade is fair to
U.S. firms and workers, and trade promotion to help U.S. firms take
advantage of the opportunities in the market.
trade negotiations
Question. I believe the NAFTA negotiations present a great
opportunity to negotiate agreed-upon practices with our North American
trading partners to combat duty evasion and to improve trade
enforcement, and this would be a great benefit for many industries.
Combating duty evasion and improving trade enforcement have been
priorities for the Finance Committee for some time now.
Can you speak about how you see a renegotiated NAFTA helping to
address these priorities?
Answer. Combating duty evasion and improving trade enforcement are
also priorities for ITA. A renegotiated NAFTA that leads to increased
information sharing and collaborative enforcement efforts between the
NAFTA countries could significantly help to address these priorities.
For example, sharing knowledge about bad actors and past attempts to
fraudulently enter goods into any of the NAFTA countries could result
in actions that stop the fraudulently traded goods from crossing our
border thus ensuring a level playing field for domestic industries. The
NAFTA Negotiating Objectives put forth by USTR in July specify as
objectives increasing cooperation among trade remedy administrators,
and strengthening procedures to prevent AD/CVD duty evasion. If
confirmed I will work with USTR to achieve these goals.
The President pulled out of the Trans-Pacific Partnership because
he is in favor of bilateral deals.
Question. Where do you see the opportunities for our exporters to
access new markets supporting high paying jobs here in the United
States?
Answer. There is tremendous opportunity for the United States to
increase its exports over the next 5 years. By 2025, global
infrastructure spending is projected to reach $9 trillion per year. By
2050, per capita incomes in Asia and parts of Africa are projected to
triple and be on par with the wealthiest economies of today. These
factors will combine to create huge demand for infrastructure products
and services, transportation equipment, high-tech machinery, energy,
and intellectual property (IP)-intensive products and services--all
sectors in which U.S. companies are most competitive.
Despite the economic benefits that exporting provides to
businesses, workers, and communities, only about 5 percent of U.S.
companies currently export. U.S. firms under-export and are under-
represented in foreign markets compared to competitors from other
industrialized nations. The Department is addressing this imbalance by
aggressively promoting ``Made in America'' products and services, by
helping U.S. businesses (especially SMEs) access reliable actionable
information and qualified international buyers and distributors, reach
potential tourists, and remove challenges and barriers when doing
business overseas by reducing the costs and complexities of exporting.
Renegotiation of NAFTA and the holding of a special session of the
joint committee of KORUS are also part of a broader effort by the
administration to open foreign markets, eliminate foreign market
distortions and level the playing field. The administration has
launched a comprehensive review of our trading systems and
relationships to identify where the system is not working and how we
might restore the trade balance to become more free and more reciprocal
to the benefit of U.S. businesses, workers, farmers, ranchers, and
service providers. With respect to trade agreements, the administration
has expressed its intent to deepen economic ties, including through
negotiation of trade agreements, with Japan, the European Union, and
the United Kingdom so far. The administration is also looking at all
members of the TPP 11.
Question. What is your view of sectoral agreements such as TiSA and
EGA, that may not be bilateral, but have significant potential benefits
for U.S. companies?
Answer. While the President has expressed a preference for
bilateral deals, there may be instances where a number of like-minded
trading partners can fashion an agreement that is in accordance with
their level of ambition without the risk of having to make concessions
to a smaller player of lesser ambitions. When such agreements can
benefit U.S. companies and workers, they should be pursued.
small business exporters
Question. The number of SMEs that export has risen exponentially
since 1992, reaching nearly 300,000 companies today. SMEs were
responsible for about one-third of goods exports by value in 2015, or
$440 billion in exports, and they stand to gain by expanding their
reach in the global marketplace. The National Small Business
Association reported that most respondents to their survey export to
less than 5 countries, with Canada and Mexico at the top of the list
(and North America as the market with the greatest potential over the
next 3 years). Yet the 7 percent of SMEs who exported to 10 or more
countries in 2015 accounted for more than half of total SME export
value.
How can ITA help SMEs reach new markets and expand the volume of
exports?
Answer. If confirmed, I definitely want to help increase both the
number of markets that U.S. SMEs export to as well as the volume of
U.S. exports, by the following steps:
To address the inherent market failures and disadvantages that
SMEs face when seeking to take advantage of global market
opportunities, ITA provides actionable market intelligence, including
practical transactional know-how on the mechanics of exporting,
guidance to manage and overcome barriers to trade, and information on
trade financing options. Recognizing the speed at which companies need
to operate, ITA will enable U.S. companies to access this information
and exporter services rapidly through self-service options on its
website and other digital channels.
ITA will develop more focused initiatives on emerging
industries such as 21st-
century technologies, infrastructure development, services sector
trade, and the digital economy/e-commerce. These emerging industries
provide great opportunity for SMEs to begin exporting and establishing
themselves as global players while the industries are still young.
Strengthening and expanding partnerships with State, local,
and international export resources, economic development organizations,
trade associations, and corporations enable the Department to reach
more potential exporters. ITA will continue to develop strategic
partnerships with service providers and trade facilitators across the
United States to reach a broader network of exporters and potential
exporters and to help more companies increase sales and productivity.
ITA will work with USTR to include an SME chapter in Free
Trade Agreements. This chapter specifically will help SMEs become aware
of the specific benefits to them, giving them greater opportunity and
reason to export to those markets.
______
Question Submitted by Hon. Chuck Grassley
Question. The administration is currently conducting a 232
investigation for steel and aluminum imports, but I want to hear your
views on another import issue that is endangering thousands of
manufacturing jobs around the country, and that is the massive growth
of subsidized biodiesel imports into the United States.
Last year, more than a billion gallons of biodiesel was imported,
which equates to roughly 39 percent of the total market. Imports are
continuing to take away market share from U.S. producers, as our
domestic production has shrunk to about 65 percent of production
capacity. I'm sure you're aware of the pending anti-dumping and
countervailing duty case the Department is investigating concerning
highly subsidized biodiesel imports from Argentina and Indonesia. While
the Department's initial determination is due in a few weeks, I am
curious to get your opinion on how we are letting jobs and market share
being taken away along with our energy security.
Answer. The administration remains focused on U.S. energy security
and is committed to vigorously enforcing our trade remedy laws to
address unfair trade practices that impact American workers and
companies in the energy sector. If confirmed, I can assure you that I
will employ all of the tools provided under the law to take swift
action against harmful trade practices that put Americans at a
disadvantage. Further, if confirmed, I will commit to focus on
increasing U.S. market share and jobs within the energy sector and
ensuring that U.S. companies and workers harmed by unfair trade
practices receive the full relief provided under U.S. law.
______
Question Submitted by Hon. Michael B. Enzi
Question. The U.S. soda ash industry is a shining example of U.S.
competitiveness in manufacturing. The industry is the most competitive
and environmentally friendly in the world due to a unique deposit of
the soda ash material, trona, in Green River, WY. The industry exports
over $1 billion annually, over half of its total output. However, as a
result of China's excess steel capacity, U.S. workers have experienced
devastation from massive Chinese exports to the United States. In the
context of the Joint Committee on Commerce and Trade (JCCT), China made
commitments to exchange information with the Commerce Department
regarding its excess capacity in soda ash. Does the administration plan
to enforce this obligation through the JCCT or will excess capacity in
China's soda ash market be addressed in the context of the U.S.-China
Comprehensive Economic Dialogue?
Answer. Under the JCCT, the United States repeatedly raised the
issue of China's soda ash production, exports and government supports,
but China did not respond to our concerns. At the 2016 JCCT, China
agreed to an exchange of information regarding the soda ash industry.
The administration has established a new framework for our engagement
with China and in July the United States and China held the first
Comprehensive Economic Dialogue under which the issue of excess
capacities was discussed. Eliminating unfair trade practices around the
world, particularly by China, is a top priority for President Trump and
Secretary Ross. As the administration works out detailed arrangements
under the new framework, we will determine the appropriate forum to
implement the JCCT outcome and raise our concerns regarding soda ash.
In any case, the commitments made by China regarding China's excess
capacity in soda ash will be enforced. We will keep you informed
regarding this issue as we move forward.
______
Questions Submitted by Hon. John Cornyn
market access
Question. China is the United States' largest global trading
partner but with good reason also stands as one of the most frequently
cited trouble spots for industries in the United States due to a wide
range of market-distorting industrial policies and discriminatory
market conditions.
How would you seek to address problematic Chinese actions more
effectively while minimizing economic disruption or the risk of
retaliatory action against businesses and workers in the United States?
Answer. ITA is committed to press China to eliminate its market-
distorting industrial policies and to open its market further to
exports of U.S. goods and services. We will rigorously enforce existing
U.S. trade laws to protect U.S. firms and U.S. workers from unfair
trade practices. Working closely with our colleagues at USTR and the
State Department, we will push China to implement market opening
measures that they have previously agreed to in either bilateral or
multilateral negotiations and if China does not act, we will take
appropriate action under U.S. or international trade law. We will also
aggressively negotiate with China to take further steps to open its
markets to U.S. exports. Finally, our Foreign Commercial Service will
continue to work with U.S. industry to help them sell in the China
market.
At the same time, we understand the risk of retaliation against
U.S. exports. By acting consistently with U.S. and international law
and by seeking to make progress through negotiated solutions, those
risks will be minimized.
Question. President Trump and Chinese President Xi Jinping had a
frank dialogue in April during the Mar-a-Lago summit, and struck a
cooperative tone--including announcements of China's 100-day plan and
upcoming commercial dialogues. The 100-day plan's final results covered
some areas, but the first Comprehensive Economic Dialogue did not
produce the results many had hoped.
How will you, in your role at Commerce (one of the CED's two
leads), work to address the real issues that U.S. businesses face in
China?
What approaches, both existing and new, do you see as most
effective in producing results?
Answer. I will work closely with Secretaries Ross and Mnuchin to
press China to eliminate its market-distorting industrial policies and
to open its market further to exports of U.S. goods and services. The
100-day plan achievements were part of the Comprehensive Economic
Dialogue, which is an ongoing process. China's market-distorting
industrial policies and mercantilist trade regime not only injure U.S.
firms and workers, they also raise prices and limit choices for Chinese
consumers, create instability in China's economy and ultimately make
Chinese firms less competitive. We will use the CED to push for
measurable results--a substantial increase in U.S. exports--that show
that China is addressing these problems. We are also very cognizant of
the large build-up of overcapacity in certain industries due to
subsidies. We will explore fully options to deal with this overcapacity
build up including the use of self-initiated countervailing duty cases
and dealing with this issue through multilateral forums.
Moreover, on August 14th, President Trump signed a Presidential
Memorandum directing the U.S. Trade Representative to determine whether
to initiate a Section 301 investigation of China's laws, industrial
policies, and other measures that may harm American intellectual
property rights, innovation, or technological development. In the
memorandum, the President indicated his concern in particular with
certain Chinese measures that may ``encourage or require the transfer
of American technology and intellectual property to enterprises in
China or that may otherwise negatively affect American economic
interests.''
The most effective approach is a coordinated combination of trade
negotiations to create new market openings, trade enforcement to ensure
that existing agreements are implemented and existing trade is fair to
U.S. firms and workers, and trade promotion to help U.S. firms take
advantage of the opportunities in the market.
Question. At present, China maintains a 50% foreign equity cap
restriction on foreign direct investment in the Chinese domestic life
insurance market. An equity cap is unnecessary to protect a Chinese
life/health insurance industry that controls 95% of the market and is
actively expanding in foreign markets, including in the United States,
where no such equity caps exist. Removal of the Chinese equity cap
restriction has been an industry objective since the Chinese joined the
WTO in 2000. I applaud the administration's commitment to getting China
to play fairly in the international marketplace and note the recent
announcement of an agreement between the United States and China to
make progress on some issues. At the hearing, you suggested other items
were also being pursued as part of the ``100-day plan'' agreed to
between President Trump and President Xi.
Can you tell me if the life insurance equity cap restriction has
been or will be tabled as part of the ongoing CED with China?
Answer. China's 50% foreign equity cap on life insurance is a trade
barrier and its removal would provide significant commercial benefits
to U.S. life insurers. This issue has been a part of our ongoing CED
dialogue with China.
Question. Can you commit to pursuing this and other market-opening
advancements in the Chinese domestic financial services sector?
Answer. Yes, this issue is critically important and we will
continue to pursue this and other market opening measures in the
Chinese domestic financial services sector. China's restrictions on
investment by U.S. life insurance and other financial services firms
were discussed at the CED and those discussions will continue until
China grants full, fair, and reciprocal access to its markets to all
U.S. services firms.
nafta
Question. More money is spent on biomedical R&D in the United
States than in any other country in the world. Proposals under
consideration in Canada to dramatically change the way medicines are
paid for would ignore this important investment and instead apply
harmful pricing setting measures from other countries to Canada's
private market. This would significantly harm U.S. biopharmaceutical
companies and ultimately exacerbate delays in patient access to
medicine.
What more do you think the International Trade Administration can
do to advance policies for American innovators that appropriately
recognize and reward the value of medicines and ensure patients have
access to the medicines they need?
Answer. I recognize that Canada and many other trading partners
fail to appropriately value U.S. pharmaceuticals and biopharmaceuticals
in their government pricing and reimbursement regimes, causing enormous
harm to patients and undermining future biomedical investment and
innovation. If confirmed, I will work with our interagency partners to
ensure that trade agreements include enforceable commitments that
government pricing and reimbursement systems appropriately value and
reward innovation as well as provide transparency and procedural
fairness to U.S. companies. I will also ensure that the International
Trade Administration works to achieve these objectives in other
bilateral engagements with individual countries. We are fully aware of
the important provisions on this issue in the Bipartisan Congressional
Trade Priorities and Accountability Act of 2015.
Question. The administration has worked to advance an ambitious
trade agenda, which has the potential to significantly strengthen
economic growth and accelerate the pace of innovation in our economy.
Do you agree that NAFTA modernization will be one of the first
opportunities to level the playing field for American innovators by
advancing strong standards and will also be critical for setting a high
bar for future agreements?
Answer. NAFTA was negotiated more than 23 years ago, and, since
that time, the U.S. economy and U.S. businesses have changed
considerably. NAFTA has not kept up with these changes; instead, most
chapters are outdated and do not reflect the most recent standards in
U.S. trade agreements.
NAFTA's renegotiation is one component in a broader strategy of
this administration. A cohesive trade policy is key to the
administration's efforts to promote growth and innovation and we intend
to set a high bar in our renegotiation of NAFTA and certainly expect
these high standards will set a valuable precedent for other
negotiations the administration may undertake in the future. The NAFTA
objectives set forth by USTR in July make clear that inclusion of
strong provisions on digital trade, cross-border data flows, and
intellectual property are a critical part of this effort.
Question. Moreover, do you believe that it is important to
establish strong IP standards as part of a NAFTA renegotiation?
Answer. Absolutely. Our IP-intensive industries are significant
drivers of economic growth, job creation, and exports. I believe a
renegotiated NAFTA should provide a fair and level playing field for
U.S. businesses, and strong IP standards are a prerequisite to ensuring
that happens.
Question. Mexico is an essential market for Texas agriculture. In
addition to the beef we export there, it's our top foreign dairy market
by far. Nationwide, U.S. exports to Mexico are about triple what they
are in China, despite that market's tremendous importance. So when
we're looking south, we want to make sure there's a strong priority on
keeping the access we have, which is relevant for tariffs and nontariff
policies. Furthermore, it is essential that the NAFTA modernization
efforts incorporate text on the issue of geographical indications (GIs)
and common names. The trade agreement between Canada and the European
Union is set to be implemented this summer. The protections the EU
demanded from Canada will impair market access for cheese and other
food products from third countries and are in complete disregard of
Canadian intellectual property laws. Also, Mexico has been negotiating
FTA expansion with the European Union that is intended to incorporate
GI provisions. As the European Commission seeks to incorporate GI
provisions in all its FTAs, it has been attempting to use the
negotiation with Mexico to impose de facto barriers to trade and
competition on various common name products that the EU falsely claims
as GIs. It is critical that the U.S. continue to reinforce that GIs are
a type of intellectual property.
Question. Will GI provisions similar to those in TPP be
incorporated into NAFTA and future U.S. trade deals?
Answer. I share your concerns that the EU's approach to the
protection of geographical indications in the EU and third-country
markets can inhibit U.S. producers' access to those markets, posing
particular challenges for those who rely on the use of common food
names. I am fully aware of the importance of this issue and will work
to preserve U.S. market access opportunities for common name products
despite the EU's efforts to misuse GIs to erect barriers to those
products. I agree that U.S. export markets must remain open to American
goods, and that access should not be restricted through protectionist
policies. Our Commerce Department staff, including staff from ITA and
the U.S. Patent and Trademark Office (USPTO) work through bilateral and
multilateral channels to advance U.S. market access interests in
foreign markets and ensure that GI-related trade initiatives of the EU
and its member states and international organizations do not undercut
such market access. I would also note that the NAFTA objectives put
forth by USTR in July specifically state the following objective:
``prevent the undermining of market access for U.S. products through
the improper use of a country's system for protecting or recognizing
geographical indications, including failing to ensure transparency and
procedural fairness and protecting generic terms.'' I will work with
USTR to achieve this goal.
intellectual property
Question. Intellectual property-intensive industries not only
support nearly 46 million jobs, but also account for over half (52%) of
all U.S. exports.
What role do you believe American's innovation-led industries, such
as the biopharmaceutical, software, and motion picture industries, can
play in helping to address our trade imbalances?
Answer. These industries are a critical element in dealing with
trade imbalances, First, the very high-end products and services they
produce are in demand world-wide and are very important exports
already. But by enhancing intellectual property protection worldwide
and further opening foreign markets, we can expand even further the
role of these exports and the importance of these industries. As you
noted, our IP-intensive industries are a significant source of both
jobs and exports. The world's demand for U.S. innovation and creativity
manifests itself in report after report that show the outsized effect
these industries continue to have on the U.S. economy. Open markets and
rules-based trading will allow these industries to continue their
positive contribution toward our trade balances. Finally, the very high
level of expertise and dynamism these industries embody lead to whole
new categories of products and services that can over time greatly
contribute to lessening trade imbalances.
Question. What role do you believe the International Trade
Administration should play to advance this goal?
Answer. ITA will contribute to this goal by advocating for a
trading system that respects intellectual property, by confronting
unfair trade barriers wherever they are found, and through our already
significant engagement and consultation with innovation-led industry.
We also will be a leader in digital trade issues, ensuring that our
trade agreements provide full world-wide access for U.S. digital trade
products, that the industry is not subjected to artificial constraints,
and that their intellectual property is protected.
Question. We have seen a disturbing trend in recent years whereby
some of our trading partners have ignored their international
commitments, particularly with respect to intellectual property
protection, either by failing to fully implement agreements or by
flouting the rules in order to give their businesses an unfair
advantage. These decisions are short-sighted and ultimately discourage
innovation, investment and job growth.
What do you believe ITA should be doing to ensure our trading
partners are enforcing existing commitments and deter countries from
weakening such standards in their own IP regimes?
Answer. Insisting on a fair and equitable international trading
system is a top priority for me. Our businesses are increasingly
reliant on multiple forms of intellectual property with those
industries providing an outsized effect on the U.S. economy and job
growth. Our trading partners should expect nothing less from us than an
insistence on full compliance with the agreements we have made. The
United States has many tools, some carrot, some stick, that can be
wielded to address any shortcomings among our trading partners. These
include the use of domestic trade cases as well as WTO cases. Also
direct intervention by our country and industry experts, including
those on the ground with the Foreign Commercial Service within our
trading partners, can lead to progress. As the lead for ITA, I would
support using whatever tool would get the job done.
air cargo
Question. The International Trade Administration has a unique
responsibility to promote U.S. trade, investment, and exports, while
also ensuring that U.S. companies face fair trade practices around the
globe. The U.S. air cargo industry is a leading exporter of shipping
and logistics services and a major contributor to moving exported U.S.
products to foreign markets. I have recently learned that the U.S. air
cargo industry is facing challenges in China that undermine their
abilities to compete. Aviation authorities in China have significantly
restricted the take-off and landing ``slots'' that are available to
U.S. carriers and, in particular, cargo carriers. In addition to
restrictions that force U.S. cargo carriers to land at odd hours and
keep expensive aircraft idle on the ramp for hours unnecessarily, the
U.S. cargo carriers have not seen any appreciable increase in the
availability of new slots, despite substantial airport infrastructure
growth in China over the last decade. Additionally, they sometimes are
prevented from serving two points in China on the same flight even
though the U.S.-China air transport agreement permits them to do so. I
am concerned that the China aviation authorities are providing
preferential treatment to their domestic cargo carriers in awarding new
slots and not living up to China's commitments in the U.S.-China air
transport agreement.
What will you do at ITA to work with Departments of State and
Commerce to ensure that U.S. cargo carriers have access to take-off and
landing slots in China on a fair and nondiscriminatory basis?
Answer. I am well aware of the U.S. cargo industry's concerns in
this area and commit to meet with the impacted U.S. cargo airlines to
hear and address their concerns, and to consult with you and your staff
regarding this problem.
Recognizing that China is not meeting their full obligations under
the U.S.-China air transport agreement, the United States has made
clear to China that we will not negotiate the further improvements they
seek to the agreement that would allow more passenger flights from east
China airports to the United States, until they meet their obligations
under our existing agreement. These obligations include the ones
mentioned related to non-discriminatory and commercially viable slot
allocation to all U.S. cargo and passenger airlines and permitting
``co-terminalized'' flights by cargo air carriers that link two
airports in China on the same flight routing.
With the Departments of State and Transportation, ITA has held
discussions with the Chinese aviation authorities, and proposed
solutions that would improve the fairness, transparency, and efficiency
of Chinese slot allocation at congested airports. With my interagency
colleagues, I will continue to work closely with U.S. aviation industry
stakeholders to address their concerns and make every effort to solve
this discriminatory treatment issue.
other ftas
Question. The United States has negotiated bilateral, regional,
multilateral, and sectoral trade agreements to open foreign markets,
eliminate foreign market distortions, and level the playing field.
Beyond NAFTA and KORUS, which countries, regions and sectors are
priorities for the Trump administration?
Answer. Renegotiation of NAFTA and the holding of a special session
of the joint committee of KORUS are part of a broader effort by the
administration to open foreign markets, eliminate foreign market
distortions, and level the playing field. The administration has
launched a comprehensive review of our trading systems and
relationships to identify where the system is not working and how we
might restore the trade balance to become more free and more reciprocal
to the benefit of U.S. businesses, workers, farmers, ranchers, and
service providers. With respect to trade agreements, the administration
has expressed its intent to deepen economic ties, including through
negotiation of trade agreements, with Japan, the European Union, and
the United Kingdom so far. We are also looking at all members of the
TPP 11.
dispute settlement
Question. Foreign investment is a critical tool that allows
American manufacturers to grow and thrive, allowing them to reach the
95 percent of consumers who exist outside of U.S. borders and boosting
income they contribute to the U.S. economy. Indeed, little known is the
fact that U.S. companies that invest overseas are the predominant
exporters from the United States that have U.S.-based capital
investment and research and development. But investors have to receive
fair treatment in order for that investment to benefit the U.S. That is
why investor-state dispute settlement mechanisms are such a critical
part of our trade agreements. All investors in the U.S. benefit from
protections baked into the U.S. Constitution, but such basic
protections are not always available when U.S. investors invest in
other countries, meaning that investors must lean on investor-state
dispute settlement to ensure a fair treatment and the rule of law.
Congress included investor-state as part of Trade Promotion
Authority, voting by a heavy majority in the Senate to keep this
important provision in our trade agreements going forward.
Will you commit that you and your team at Commerce will commit to
following Congress's direction on the importance of investor-state
enforcement, as part of a robust U.S. enforcement tool kit--including
in NAFTA renegotiations?
Answer. We are fully aware of the important provisions on this
issue in the Bipartisan Congressional Trade Priorities and
Accountability Act of 2015. If confirmed, I commit to work to ensure
that U.S. investments abroad are accorded a level playing field and
that such investments receive the same types of substantive protections
and enforceable rights that are available under U.S. legal principles
and practice, including in NAFTA. This is an important part of our
enforcement tool kit.
The NAFTA negotiating objectives set forth by USTR in July state as
one objective: ``Secure for U.S. investors in the NAFTA countries
important rights consistent with U.S. legal principles and practice,
while ensuring that NAFTA country investors in the United States are
not accorded greater substantive rights than domestic investors.'' If
confirmed I will work with USTR to achieve this objective.
export promotion
Question. The Commerce Department and ITA play a vital role in
providing strategic direction for the Federal Government's export
promotion activities and also offers tangible support for many U.S.
exporters, through its Foreign and Commercial Service personnel and
Advocacy Center as well as the interagency Trade Promotion Coordinating
Committee.
How will you support and expand the trade promotion initiatives, so
that more U.S. companies can capture export sales and support job
growth here at home?
Answer. There are three areas of priority for the Commerce
Department and ITA to fully engage more U.S. companies in export
growth:
I plan to strengthen our advocacy efforts to ensure we are
effective and have the administration's support for U.S. companies
bidding on infrastructure projects that have been duly qualified and
can benefit from U.S. Government advocacy. To do this, I will work with
my team to ensure the TPCC Advocacy Working Group has the attention of
its senior-level officials across the administration to advocate on
behalf of U.S. business interests in such areas as infrastructure,
aerospace and defense, energy, healthcare, and ITC.
We will deepen our work with State and local partners. For the
first time earlier this year, ITA developed export strategies with each
State. We want to expand and improve this effort to include elements on
performance metrics and training in connection with these strategies.
We will also monitor State activity and progress to ensure the
strategies are implemented.
We will also work to ensure that our overseas officers and
staff are trained on the latest issues facing U.S. exporters be it
intellectual property or e-commerce. We want to ensure that U.S.
companies get all the assistance they need.
______
Questions Submitted by Hon. Richard Burr
Question. Despite frequent bilateral engagement with India since
2014, India has failed to create significant positive opportunities for
U.S. workers, businesses, and farmers. It remains a tough place to do
business, ranking last among G20 countries in the World Bank's Doing
Business report, and on the United States Trade Representative's
Priority Watch List in the 2017 Special 201 Report, due to its
insufficient protection of intellectual property rights. Aside from
bilateral discussion, what venues and opportunities does Commerce have
to address these issues with the government of India to affect change?
Answer. The International Trade Administration (ITA) does seek to
lower trade barriers with India through its bilateral commercial
dialogues with the Indian Ministry of Commerce and Industry and through
USTR's Trade Policy Forum. But in addition to these bilateral
engagements, ITA plays a key role in facilitating direct dialogue
between U.S. industry and the Government of India (GOI) through venues
such as the U.S.-India CEO Forum and the U.S.-India Ease of Doing
Business Private Sector Outreach webinar series. The ITA Advocacy
Center works with U.S. exporters to ensure they benefit from a level
playing field when competing for GOI tenders. Through its Enforcement
and Compliance unit. ITA ensures that India and other trading partners
abide by fair trading practices that are consistent with international
trade obligations. This unit is devoted to making sure all trade
agreements are complied with and can focus on Indian intellectual
property issues and other Indian trade issues. ITA also seeks to
promote stronger protection and enforcement of intellectual property
rights during this year's Global Entrepreneurship Summit, to be held in
Hyderabad, India November 28-30, 2017. Finally, Commerce is also the
home of the United States Patent and Trademark Office (``PTO'') which
can bring tremendous technical resources to bear in solving these
Indian intellectual property problems.
Question. The American Manufacturing Competitiveness Act (AMCA),
passed by Congress in May 2016, establishes a new process for the
consideration and enactment of the Miscellaneous Tariff Bill (MTB). I
appreciate the U.S. Department of Commerce's efforts on the MTB, in
cooperation with the U.S. International Trade Commission and U.S.
Customs and Border Protection, to implement the ongoing MTB review
process, as required under the AMCA. I am concerned, however, that some
aspects of the ITC's process will lead to the improper exclusion of a
number of petitions from the ITC's final report. What steps will you
take to ensure that these issues are remedied during future MTB
reviews?
Answer. The American Manufacturing Competitiveness Act (AMCA) sets
out clearly defined roles for agencies in the MTB review process, and
the International Trade Administration has taken the requirements of
the AMCA very seriously. During the recent review, ITA staff spent
countless hours reviewing the petitions for domestic production
concerns to make sure their analysis was as accurate as possible. ITA
then worked closely with U.S. Customs and Border Protection and the
U.S. Department of Agriculture to send the Commerce report to the USITC
and the relevant committees. ITA has a good working relationship with
the USITC, which I believe will continue into the next MTB review. We
will make every effort to make sure no improper exclusions occur.
Commerce has significant authority in this area because, in fact,
section 3(c) of the AMCA requires that the USITC, ``tak[e] into account
the report of the Secretary of Commerce,'' when preparing its report.
Ultimately, however, the determination on how MTB petitions are
categorized in the USITC report is the USITC's to make.
______
Question Submitted by Hon. Patrick J. Toomey
air cargo
Question. The International Trade Administration has a unique
responsibility to promote U.S. trade, investment, and exports, while
also ensuring that U.S. companies face fair trade practices around the
globe.
The U.S. air cargo industry is a leading exporter of shipping and
logistics services and a major contributor to moving exported U.S.
products to foreign markets. It is my understanding that the U.S. air
cargo industry is facing challenges in China that undermine their
ability to compete. Aviation authorities in China have significantly
restricted the take-off and landing ``slots'' that are available to
U.S. carriers and, in particular, cargo carriers. In addition to
restrictions that force U.S. cargo carriers to land at odd hours and
keep expensive aircraft idle on the ramp for hours unnecessarily, the
U.S. cargo carriers have not seen any appreciable increase in the
availability of new slots, despite substantial airport infrastructure
growth in China over the last decade. Additionally, they sometimes are
prevented from serving two points in China on the same flight even
though the U.S.-China air transport agreement permits them to do so. I
am concerned that the China aviation authorities are providing
preferential treatment to their domestic cargo carriers in awarding new
slots and not living up to China's commitments in the U.S.-China air
transport agreement.
What will you do at ITA to work with Departments of State and
Commerce to ensure that U.S. cargo carriers have access to take-off and
landing slots in China on a fair and nondiscriminatory basis?
Answer. I am well aware of the U.S. cargo industry's concerns in
this area and commit to meet with the impacted U.S. cargo airlines to
hear and address their concerns, and to consult with you and your staff
regarding this problem.
Recognizing that China is not meeting their full obligations under
the U.S.-China air transport agreement, the United States has made
clear to China that we will not negotiate the further improvements they
seek to the agreement that would allow more passenger flights from east
China airports to the United States, until they meet their obligations
under our existing agreement. These obligations include the ones
mentioned related to non-discriminatory and commercially viable slot
allocation to all U.S. cargo and passenger airlines and permitting
``co-terminalized'' flights by cargo air carriers that link two
airports in China on the same flight routing.
With the Departments of State and Transportation, ITA has held
discussions with the Chinese aviation authorities, and proposed
solutions that would improve the fairness, transparency, and efficiency
of Chinese slot allocation at congested airports. With my interagency
colleagues, I will continue to work closely with U.S. aviation industry
stakeholders to address their concerns and make every effort to solve
this discriminatory treatment issue.
______
Questions Submitted by Hon. Robert Menendez
Question. We have seen a disturbing trend in recent years whereby
some of our trading partners have ignored their international
commitments, particularly with respect to intellectual property
protection, either by failing to fully implement agreements or by
flouting the rules in order to give their businesses an unfair
advantage. These decisions are short-sighted and ultimately discourage
innovation, investment, and job growth.
What do you believe ITA should be doing to ensure our trading
partners are enforcing existing commitments and deter countries from
weakening such standards in their own IP regimes?
Answer. Insisting on a fair and equitable international trading
system is a top priority for me. Our businesses are increasingly
reliant on multiple forms of intellectual property with those
industries providing an outsized effect on the U.S. economy and job
growth. Our trading partners should expect nothing less from us than an
insistence on full compliance with the agreements we have made. The
United States has many tools, some carrot, some stick, that can be
wielded to address any shortcomings among our trading partners. These
include the use of domestic trade cases as well as WTO cases. Also
direct intervention by our country and industry experts, including
those on the ground with the Foreign Commercial Service within our
trading partners, can lead to progress. As the lead for ITA, I would
support using whatever tool would get the job done.
Question. In the context of the Joint Committee on Commerce and
Trade (JCCT), China made commitments to exchange information with the
Commerce Department regarding its excess capacity in soda ash.
Does the administration plan to enforce this obligation through the
JCCT, or will excess capacity in China's soda ash market be addressed
in the context of the U.S.-China Comprehensive Economic Dialogue?
Answer. Under the JCCT, the United States repeatedly raised the
issue of China's soda ash production, exports and government supports,
but China did not respond to our concerns. At the 2016 JCCT, China
agreed to an exchange of information regarding the soda ash industry.
The new administration has established a new framework for our
engagement with China and in July the United States and China held the
first Comprehensive Economic Dialogue under which the issue of excess
capacities was discussed. Eliminating unfair trade practices around the
world, particularly by China, is a top priority for President Trump and
Secretary Ross. As the administration works out detailed arrangements
under the new framework, we will determine the appropriate forum to
implement the JCCT outcome and raise our concerns regarding soda ash.
In any case, the commitments made by China regarding China's excess
capacity in soda ash will be enforced. We will keep you informed
regarding this issue as we move forward.
Question. I understand that China's new cybersecurity law, as well
as other related regulations, has created a number of restrictions for
U.S. companies that operate in China. These regulations require annual
security reviews, forfeiture of proprietary information, and also
mandate that all data be stored locally in China. And because these
regulations are also unclearly defined, they're creating confusion for
companies and the U.S. Government alike.
How will you work to ensure that China's regulations do not
discriminate against U.S. firms and allow U.S. businesses to compete on
a level playing field?
Answer. I am committed to press China to eliminate its market-
distorting industrial policies and to open its market further to
exports of U.S. goods and services. I am very concerned about the
restrictions in China's Cybersecurity Law, and other laws, regulations,
and measures. To address the inequities in China's market, I intend to
rigorously enforce existing U.S. trade laws to protect U.S. firms and
U.S. workers from unfair trade practices. Working closely with my
colleagues at USTR and the State Department, we will push China to
implement market opening measures that they have previously agreed to
in either bilateral or multilateral negotiations and if China does not
act, we will take appropriate action under U.S. or international trade
law. We will also aggressively negotiate with China to take further
steps to open its markets to U.S. exports. Finally, ITA staff working
closely with our Commercial Service on the ground in China, will
continue to work with U.S. industry to help them sell in the China
market including in the high technology space.
Moreover, on August 14th, President Trump signed a Presidential
Memorandum directing the U.S. Trade Representative to determine whether
to initiate a Section 301 investigation of China's laws, industrial
policies, and other measures that may harm American intellectual
property rights, innovation, or technological development. In the
memorandum, the President indicated his concern in particular with
certain Chinese measures that may ``encourage or require the transfer
of American technology and intellectual property to enterprises in
China or that may otherwise negatively affect American economic
interests.''
Question. The OECD estimates that there is more than 700 million
metric tons of global excess capacity in steel and China accounts for
the majority of it. Last year, the G20 created a new forum to try to
address this ongoing problem. But thus far nothing has been done to
solve it. In fact, China has not even shared the data necessary to
inform our discussions about the problem.
What do you think should be done to address the ongoing global
excess capacity problems in steel and other sectors?
Answer. With regard to steel, there are several areas where the
United States is working to address the global excess capacity problem.
One is in the Global Forum which originated in the G20 where Leaders in
Hangzhou (September 2016) agreed to establish a forum where
participants could evaluate the causes of excess capacity and encourage
market-based adjustment. At the G20 Hamburg Summit in July 2017,
Leaders reaffirmed this mandate and directed the Global Forum members
to (1) complete information-sharing by August 2017, and (2) provide a
substantive report with concrete policy solutions by November 2017. The
work of the Global Forum is on-going, Leaders reaffirmed its importance
in July, and look forward to the report in November.
With regard to aluminum, global overcapacity and lower prices are
primarily a result of excess production by China's aluminum sector. The
United States must utilize every forum to pressure China to reduce its
aluminum capacity. The United States has requested WTO consultations on
subsidies that China provides to certain producers of primary aluminum.
The administration has also joined other G20 countries to develop a
forum similar to the steel Global Forum to evaluate the causes of
excess capacity and encourage market-based adjustment.
I believe one model we should look at to to deal with excess
capacity in a range of industries (steel, aluminum, solar) is the
method we used to deal with excess capacity in memory semiconductors in
the 1980s in Japan. There the United States self-initiated a dumping
case on DRAM semiconductors, pursued a Section 301 case on market
access for semiconductors, vigorously negotiated with Japan, and
ultimately reached a comprehensive agreement (the U.S.-Japan Agreement
on Trade in Semiconductors) which dealt with dumping and other unfair
practices both into the United States and third countries, and with
market access in Japan. We combined a trade case strategy (dumping and
Section 301) with tough negotiating to reach a very positive result. In
view of the subsidies involved in steel, at this time we should
consider self-initiating countervailing duty cases where warranted and
then lead into vigorous negotiations.
Question. I have had longstanding concerns that currency
manipulation by our trading partners has repeatedly undermined U.S.
competitiveness and led to job losses.
How would you use Commerce's existing authorities to address this
behavior?
Answer. Currency manipulation and misalignment is a critical issue
when it comes to the United States' ability to compete in international
trade on a level playing field. This administration has made clear its
view that it is unacceptable for any country to try to grow its exports
based on a manipulated or misaligned exchange rate, and I firmly
believe the United States should not stand idly by while U.S.
companies, workers, farmers and ranchers suffer the consequences of
having to compete against such unfair practices. While the authority to
monitor and report on currency manipulation rests with the Department
of the Treasury, Commerce separately has the authority to investigate
an allegation that foreign producers and exporters are benefitting from
currency-related foreign government subsidies, provided the allegation
meets the requirements for initiating an investigation under the U.S.
countervailing duty law. An allegation of a countervailable currency
subsidy made by a petitioning U.S. industry or its workers will be
carefully examined by Commerce based on the merits of and evidence
underlying the allegation, in conformity with the initiation
requirements under U.S. law. I am committed to vigorously enforcing the
trade remedy laws to ensure that U.S. companies, workers, farmers, and
ranchers receive the relief from unfair trade to which they are
entitled under law.
______
Prepared Statement of Hon. Ron Wyden,
a U.S. Senator From Oregon
The Finance Committee meets this morning to discuss three
nominations. First is Mr. Robert Charrow's nomination to serve as the
General Counsel of the Department of Health and Human Services. This is
a tough job under normal circumstances, but it's especially tough in
the Trump administration. That's because the HHS General Counsel's role
is to enforce the law, and right now the President and his team are
determined to undermine the law.
A few examples: the law on the books tells the administration to
make cost sharing payments that help keep down the cost of health
insurance for millions of Americans. But the President keeps
threatening to cut those payments off to score a misguided political
win. The lack of certainty this is causing in the private markets is
already setting up to hit Americans directly in the pocketbooks with
premium hikes on January 1st. If the payments do stop, the markets will
go into a tailspin.
Additionally, the administration is taking taxpayer dollars that
are intended to help get individuals and families signed up for health
coverage, and it's using those funds to stifle enrollment. That means
more people are living without access to the care they need.
I recall sitting right here during Secretary Price's nomination
hearing when he said, quote: ``. . . My role will be one of carrying
out the law that you all in Congress pass. It's not the role of the
legislator. . . .'' Everything the administration has done to undermine
the law tells a different story.
Bottom line, the General Counsel needs to ensure the Department is
faithfully executing the law, meeting the highest standard of ethics,
and cooperating fully with congressional oversight. Mr. Charrow is
going to face tough questions today as to whether he's prepared for
that task.
Next is Mr. Matthew Basset's nomination to serve as Assistant
Secretary for Legislation at the Department of Health and Human
Services. It's my hope that the Senate moves in a bipartisan direction
with respect to health care and the many other issues under the HHS
umbrella.
If the two sides are going to come together around lasting
proposals that can pass with big majorities, it'll be necessary to have
partners at HHS who are willing to work with members regardless of
party.
So I'm looking forward to hearing from Mr. Bassett, who would be
the liaison between HHS and the Congress if confirmed, how he plans to
accomplish that. I am also looking for his commitment that he will
respond to requests from all members of this committee, both Democrats
and Republicans.
Finally, Mr. Gilbert Kaplan is nominated to serve as the Under
Secretary for International Trade at the Department of Commerce, which
would put him at the top of the International Trade Administration.
So far in this administration, there's been a lot of tough talk on
trade enforcement, but there hasn't been much in the way of action. And
there is a real cost to all the over-hyped rhetoric when the follow-
through isn't there. For example, in response to all of the tough talk
on steel, countries have shipped even more steel to the United States
in a rush to get in ahead of any hike in tariffs.
My friend Leo Gerard, president of the United Steelworkers,
recently informed me that imports have surged 18% since the President
launched his section 232 investigation. Meanwhile, the administration
appears to be backing off. This episode demonstrates how tough talk
without a real strategy hurts American workers.
Mr. Kaplan's background suggests he will be a tough trade enforcer,
and that's exactly what's needed right now at ITA. I expect he'll
refrain from making promises on trade enforcement unless and until the
administration has done its homework and is prepared to follow through.
Beyond enforcement, it's also critical that ITA is as committed to
growing American exports. But the administration's budget proposals
would slash funding for a host of programs within ITA that American
small businesses depend on to break into foreign markets. So I look
forward to hearing how Mr. Kaplan, if confirmed, would ensure that
American workers and manufacturers don't lose out on opportunities to
sell to consumers around the world because the administration insisted
on self-defeating budget cuts.
I want to thank all three nominees for being here today, and I look
forward to hearing their testimony. Thank you, Chairman Hatch.
[all]