Construction Industry News
Senate and House Leaders Seek GAO Review of Political Appointee Conversions to Federal Civil Service Positions
WASHINGTON - U.S. Sen. John Thune (R-S.D.), chairman of the Senate Committee on Commerce, Science, and Transportation, Sen. Ron Johnson (R-Wis.), chairman of the Senate Committee on Homeland Security and Governmental Affairs, Rep. Fred Upton (R-Mich.), chairman of the House Committee on Energy and Commerce, and Rep. Jason Chaffetz (R-Utah) chairman of the House Committee on Oversight and Government Reform, have asked the U.S. Government Accountability Office (GAO) to conduct a review of political appointee conversions to career federal civil service positions.
The possibility of “burrowing in,” especially at the end of a presidential administration, may affect the integrity of the federal workforce by allowing political appointees to assume career positions through favoritism as opposed to a merit-based selection process. In past administrations, GAO has identified examples where administration officials failed to follow laws and regulations intended to ensure that political appointees seeking career positions do not receive unfair advantages. GAO released its last report on conversions in June 2010 covering the last transition of presidential administrations from May 2005 to May 2009.
The text of the letter follows below:
Dear Mr. Dodaro:
Political appointees at Executive Branch departments and agencies sometimes seek positions as career government employees. Unlike political appointments, these positions do not end at the conclusion of a presidential administration. Such changes in employment status – whereby an individual transfers from a non-career, political position to a career position within the Executive Branch – are known as “conversions.” Conversions are permissible when agencies follow laws and regulations governing career appointments and political appointees do not receive unfair competitive advantages. Nevertheless, it is important for Congress to conduct periodic oversight to ensure that departments, agencies, and commissions are adhering to applicable laws and regulations.
Although the Government Accountability Office has “regularly reported on conversions from non-career to career positions in the past,” GAO issued its most recent report on conversions of federal employees from political to career positions on June 28, 2010, more than five years ago. That report reviewed agency personnel actions from May 1, 2005, through May 30, 2009. Since that time, GAO has not conducted a review to determine the extent to which these conversions have occurred.
Title 5 of the U.S. Code and Title 5 of the Code of Federal Regulations govern appointments to career federal civil service positions. Each agency and commission head is responsible for preventing prohibited personnel practices and adhering to the applicable merit principles. The relevant statutes and regulations are designed to ensure that the process for selecting career employees is fair, open, and free from political influence.
The Office of Personnel Management (OPM) is responsible for making sure that departments and agencies use fair practices with respect to personnel. According to OPM policy, effective January 1, 2010, “agencies must seek prior approval from OPM before they can appoint a current or recent political appointee to a competitive or non-political excepted service position at any level under the provisions of title 5, United States Code.” OPM requires written authorization in order to appoint “a former political Schedule A or Schedule C Executive Branch employee who held the position within the last five years to a competitive or non-political excepted service position under title 5 of the U.S. Code” or “a former Non-career SES Executive Branch employee who held the position within the last five years to a competitive or non-political excepted service position under title 5 of the U.S. Code.” Since this policy went into effect more than five years ago, it is important to review its effectiveness to determine if any changes are warranted.
The possibility that political appointees are “burrowing in” – through favoritism in the selection process, effectively taking civil positions that would otherwise be open to the public and awarded based on merit – may affect the integrity of the merit-based federal workforce. Therefore, we are writing to request that GAO conduct a study to ensure that federal agencies and full-time commissions are following appropriate authorities and proper procedures in making conversions of non-career to career positions.
We ask that GAO review conversions in federal agencies and commissions, to be selected in consultation with our Committees, for the period from June 1, 2009 to October 1, 2015, as well as the implementation and effectiveness of the OPM policy that went into effect in 2010. This review should include, but not be limited to, the following information:
1. The number and type of conversions of political appointees to competitive service, non-political excepted service, senior executive service (SES), senior level (SL), or scientific or professional (ST) positions that have occurred, including the agency, office, titles, grades, dates of conversion, and salaries of the political and career positions.
2. An explanation of the outcome of each pre-employment review and an explanation for each case not approved.
3. The status of any corrective action requested by OPM of an appointing agency as a result of the pre-employment review process.
4. A list of each political appointee converted to a competitive service, non-political excepted service, SES, SL, or ST position for which the appointing agency did not provide sufficient information to justify the employment action, by agency, office, title, grade, date of conversion, and salary.
5. For each conversion for which it appears that an agency may not have followed appropriate procedures or used appropriate authorities, a detailed explanation of the issue, and OPM’s analysis regarding the appropriateness of the conversion.
We further suggest that the GAO continue to conduct periodic reviews in the future to ensure consistent application of these rules. Thank you for your attention to this important matter. We look forward to your prompt response to our request.
Sen. John Thune (R-S.D.), Sen. Ron Johnson (R-Wis.), Rep. Jason Chaffetz (R-Utah), Rep. Fred Upton (R-Mich.)
WASHINGTON – Today, the U.S. Senate Commerce, Science, and Transportation Committee approved an amended version of S. 2044, the Consumer Review Freedom Act, introduced by Chairman John Thune (R-S.D.), Communications, Technology, Innovation, and the Internet Subcommittee Ranking Member Brian Schatz (D-Hawaii), and Consumer Protection, Product Safety, Insurance, and Data Security Subcommittee Chairman Jerry Moran (R-Kan.). The bipartisan bill is also co-sponsored by the full committee’s Ranking Member, Senator Bill Nelson (D-Fla.), and Sens. Richard Blumenthal (D-Conn.), Cory Booker (D-N.J.), Steve Daines (R-Mont.), and Claire McCaskill (D-Mo.).
The Commerce Committee held a hearing on the issue on November 4, 2015, with testimony from Ms. Jen Palmer, a plaintiff in Palmer v. KlearGear, where a company demanded the removal of a negative online review or payment of $3,500 in fines because the online merchant’s terms of service included a non-disparagement clause. When the review was not taken down, the company reported the unpaid $3,500 to a credit reporting agency as an outstanding debt, which negatively impacted the Palmers’ credit.
“Reviews offering blunt and honest criticism play an increasingly important role in helping customers select the best products and services,” said Thune. “The Consumer Review Freedom Act is needed so consumers can benefit from the experiences of others through the open exchange of information.”
“Honest reviews on websites like Yelp and TripAdvisor encourage better business practices, promote competition, and give consumers a place to share their experiences and offer feedback,” said Schatz. “These consumer reviews help so many of us decide what to buy and where to eat or stay, and no business should have the right to intimidate or stop consumers from sharing their opinions. We’re making some good progress on our bill, and I will continue to work with Senators Thune and Moran to get the Consumer Review Freedom Act through Congress and onto the President’s desk.”
“Advancement of this legislation through the Commerce Committee puts us one step closer to making certain Americans are able to express their opinions online without the threat of lawsuits that stifle honest feedback and unfairly punish consumers,” said Moran. “Word of mouth has long been at the center of how we learn about new products and services or determine the strengths and weaknesses of existing ones, and its role is no less important in the online marketplace. I hope to soon see this commonsense legislation passed by the full United States Senate.”
Gag clauses now appear in a large number of non-negotiable form contracts. A form contract is when a party leverages its outsized bargaining power to impose standardized terms without a meaningful opportunity for the other party to modify the contract. Some businesses have sought to use these clauses to penalize or pursue fines from customers for negative but honest reviews of their services on websites such as Yelp or TripAdvisor. The Consumer Review Freedom Act bans this practice.
Similar bipartisan legislation, H.R. 2110, has been introduced in the U.S. House of Representatives by Reps. Darrell Issa (R-Calif.), Eric Swalwell (D-Calif.), Blake Farenthold (R-Texas), Anna Eshoo (D-Calif.), Brad Sherman (D-Calif.), and Steve Cohen (D-Tenn.).
Click here for a copy of the legislation as amended in today’s markup.
WASHINGTON - Today, the Senate Committee on Commerce, Science, and Transportation approved six bills and approved nominations for two agencies.
Bills and nominations considered are as follows (all passed by voice vote unless otherwise noted):
1. Vote on final passage deferred/postponed: S. 571, Pilot Bill of Rights 2, Sponsors: Sens. James Inhofe (R-Okla.), Joe Manchin (D-W.V.), and 67 bipartisan cosponsors
2. S.1143, West Coast Dungeness Crab Management Act, Sponsors: Sens. Maria Cantwell (D-Wash.), Ron Wyden (D-Ore.), Patty Murray (D-Wash.), Jeff Merkley (D-Ore.), Barbara Boxer (D-Calif.), Dianne Feinstein (D-Calif.)
3. S.1518, Reinforcing American-Made Products Act of 2015, Sponsors: Sens. Mike Lee (R-Utah), Deb Fischer (R-Neb.), Angus King, Jr. (I-Maine), Susan Collins (R-Maine)
4. S.1685, Amateur Radio Parity Act of 2015, Sponsors: Sens. Roger Wicker (R-Miss.), Richard Blumenthal (D-Conn.), Al Franken (D-Minn.)
5. S.1916, Rural Health Care Connectivity Act of 2015, Sponsor: Sen. John Thune (R-S.D.), Amy Klobuchar (D-Minn.), John Hoeven (R-N.D.), Deb Fischer (R-Neb.)
6. S.2044, Consumer Review Freedom Act of 2015, Sponsors: Sens. John Thune (R-S.D.), Jerry Moran (R-Kan.), Brian Schatz (D-Hawaii), Claire McCaskill (D-Mo.), Richard Blumenthal (D-Conn.), Bill Nelson (D-Fla.), Steve Daines (R-Mont.), Cory Booker (D-N.J.)
a. Passed with Thune substitute amendment
7. S.2206, National Oceanic and Atmospheric Administration Sexual Harassment and Assault Prevention Act, Sponsors: Sens. Dan Sullivan (R-Alaska), John Thune (R-S.D.), Bill Nelson (D-Fla.), Maria Cantwell (D-Wash.), Charles Grassley (R-Iowa), Brian Schatz (D-Hawaii), Roger Wicker (R-Miss.)
a. Passed with Sullivan substitute amendment
8. Derek Tai-Ching Kan, to be a Director of the Amtrak Board of Directors
9. Anthony Coscia, to be a Director of the Amtrak Board of Directors (reappointment; current chairman)
10. Nominations for Promotion in the United States Coast Guard
Click here for additional information on nominees.
Ranking Member Bill Nelson (D-Fla.) Opening Statement
U.S. Senate Committee on Commerce, Science & Transportation
Executive Session #9
November 18, 2015
Thank you, Chairman Thune, for calling this markup. I would like to briefly address a few of the bills that we will be considering today.
I’d like to first talk about the Pilot’s Bill of Rights 2. I hope that we can make a number of common sense changes today to address some serious safety concerns I have with this bill.
I have filed a number of amendments to improve this legislation, and to make reasonable, common sense changes to ensure the safety of our national airspace.
We have the safest aviation system in the world, and it’s our responsibility to uphold that standard.
S. 571 would eliminate the existing medical requirements for the vast majority of general aviation pilots, regardless of their physical and mental health.
Senator Manchin’s substitute amendment would add a requirement that pilots see their private physician every four years, and I will offer an amendment to require an independent medical panel to develop a checklist for pilots and their physicians to use.
This checklist is aimed at identifying medical conditions that could interfere with a pilot’s ability to fly.
Medical experts know which conditions could be dangerous, so there is no sense in ignoring the science on this.
We should continue working to improve this bill, and protect the safety of our aviation system.
I expect that we will be working on a comprehensive FAA reauthorization bill in the coming months, as the current authorization expires in March. Any changes to FAA regulations contemplated by this bill should be thoroughly debated on the Senate floor as part of that process.
I would also like to take moment to mention the bipartisan NOAA Sexual Harassment and Assault Prevention Act on our agenda today. This bill will require NOAA to develop a policy to prevent and respond to sexual assault and harassment.
I would also like to mention the Amateur Radio Parity Act.
While I have great respect for Senators Blumenthal and Wicker, I must oppose this bill today.
Amateur radio plays an important role in enhancing public safety communication, and I encourage communities to work with amateur radio operators to find ways to further these services.
This bill before us, though, would effectively repeal parts of millions of private contracts and agreements relied upon by homeowners around the country.
This committee would be overriding guidelines that were established – and agreed to – by residents of a community when they voluntarily choose to live in that community. This is a step too far.
Finally, with respect to spectrum, I am glad that the Chairman has decided to pull his draft bill from today’s markup. This will give us much needed time to consult with stakeholders to try to find consensus.
The question this committee always faces with respect to spectrum policy is how to strike the right balance between the needs of federal and non-federal spectrum users.
As a senior member of both the Commerce and Armed Services Committees, I have seen a lot of progress made on freeing up additional spectrum in recent years through the productive collaboration between the private sector and federal agencies such as the Department of Defense.
As a result, we must tread carefully and make sure that nothing we do inadvertently compromises those important steps or jeopardizes national security.
Mr. Chairman, I appreciate your willingness to continue to work with my staff and our members to find common ground.
"Good morning. While we await our quorum, I’d like to highlight some of the items on today’s agenda.
"First, however, I would note that Senator Nelson and I have just come from the initial meeting of the conference committee on the Surface Transportation bill. I am encouraged by the progress we have already made during preliminary discussions with our House counterparts, and I anticipate that the Senate will be in a position to approve a consensus, multi-year bill very soon.
"Before we turn to the agenda items, I would also note that the Committee was originally scheduled to take up the MOBILE NOW Act today, a bill that will help secure our nation’s wireless future. But Ranking Member Nelson and I both thought it best to take a little more time to work through the constructive feedback we have received, including from the Administration.
"We hope to mark up MOBILE NOW after Thanksgiving, so we ask everyone to work with our staffs on any additions or amendments you would like to see included in the bill.
"We have also temporarily postponed consideration of S. 1886, the Coordinated Ocean Monitoring and Research Act, to allow for continued negotiations on some discrete issues. This bill enjoys bipartisan support, and I expect it will be on our December markup agenda.
"Today we have a bipartisan slate of bills that reflect the breadth of our Committee’s jurisdiction – from Senator Cantwell’s bill on the management of the West Coast Dungeness crab fishery to legislation sponsored by Senators Wicker and Blumenthal to ensure regulatory parity for amateur radio operators.
"I am especially glad that we’ll be considering the Rural Health Care Connectivity Act, S. 1916, a bill I introduced with Senators Klobuchar, Fischer, and Hoeven.
"Throughout the country, skilled nursing facilities are providing critical care for elderly and convalescing Americans in rural communities. These essential providers are an important part of the rural health care system, yet they are not currently eligible for support from the Universal Service Fund’s Rural Health Care Program.
"Passing S. 1916 today is the first step toward ensuring rural skilled nursing facilities will have the communications connectivity they need to take care of our seniors.
"Today we will also consider the Consumer Review Freedom Act, S. 2044, which would ban so-called “gag clauses” that prevent consumers from providing truthful reviews to help other consumers.
"Earlier this month, the Committee held a hearing on consumer gag clauses and received compelling testimony about how this practice decreases consumer power and negatively impacts the Internet ecosystem. The record in that hearing clearly demonstrated the need for targeted legislation like S. 2044 to bring an end to clauses that stifle free and honest speech.
"I thank Senators Schatz and Moran for introducing this important consumer protection legislation with me, and thank Ranking Member Nelson and Senators Daines, Blumenthal, McCaskill, and Booker for their co-sponsorship. The legislation also has bipartisan backing in the House, where a similar bill has been introduced by Representative Issa.
"I would also like to thank Senator Sullivan and Senator Schatz for their work on S. 2206, the National Oceanic and Atmospheric Administration (NOAA) Sexual Harassment and Assault Prevention Act.
"Prompted by whistleblower complaints regarding NOAA’s lack of response to allegations of sexual harassment, this bill outlines clear and uniform procedures to help prevent the occurrence of – and improve the Administration’s response to – sexual assault and harassment.
"As an agency with a unique workforce, often serving in remote areas and at sea, NOAA needs a tailored system that its employees can depend upon. "This bill will also reauthorize the NOAA Corps, a uniformed service whose members operate NOAA’s fleet of ships and aircraft. Their combination of scientific and operational expertise, as well as their flexibility and deploy-ability, allow them to support nearly all of NOAA’s programs and missions.
"Our agenda today also includes S.1518, a bill introduced by Senator Lee to ensure consistency in the labeling of products as “Made in America.” Senator Fischer is an original cosponsor of this measure, and she has asked that her statement on the bill be included in the record. So, without objection, it will be.
"Last, but certainly not least, we will be taking up S. 571, Senator Inhofe’s Pilot’s Bill of Rights 2, which would make several reforms to the third-class medical certification process to benefit recreational general aviation pilots.
"Senator Manchin is the lead cosponsor of this bill, which has attracted an impressive total of 68 bipartisan cosponsors, including all of the members on my side of the Committee dais. Notwithstanding this support, however, some concerns have been expressed about the bill – as reflected in the nearly two dozen amendments filed by the Ranking Member.
"An amendment in the nature of a substitute filed by Senator Manchin reflects months of negotiations between the prime sponsors of the bill and the Committee, and makes several improvements to the bill.
"It is my hope that, following today’s markup, we will continue to work toward consensus on these issues, so the reforms can ultimately be included in the FAA reauthorization bill the Committee will produce early next year.
"With that, I will turn to the Ranking Member for any opening remarks he would like to make."
Joint Commerce Committee Statement on Senate Passage of Bill to Boost Competitiveness of U.S. Space Industry
Note: Senator Thune was in Lincoln, Nebraska this weekend as a guest of Senator Fischer. Fischer and Thune visited BNSF and Duncan Aviation.
In America’s heartland, we understand and value productivity and hard work. Across Nebraska and South Dakota, there’s no shortage of wide open spaces or hardworking people. The businesses and agriculture producers in our states also rely upon America’s roads, highways, bridges and railroads to get their commodities and other products to market. Despite various challenges, our agriculture producers feed not only this country but millions more across the globe.
This year, we have worked to establish a new pattern of productivity in the U.S. Senate. As leaders on the Senate Commerce, Science, and Transportation Committee, we have focused on a wide range of issues affecting businesses and our economy. For several months, this focus has targeted improvements to our nation’s transportation network. By working together and seeking input from stakeholders across the country, our committee has achieved many bipartisan successes, including Senate passage of the first multi-year highway bill in nearly a decade.
Over the course of the year, the committee has held over a dozen hearings to explore the right policies to enhance transportation safety, efficiency, and reliability for all Americans. We heard from a wide group of stakeholders from across the nation on a diverse number of issues.
The first transportation subcommittee hearing examined the future of America’s transportation policy and featured witnesses from Nebraska, including Jim Mullen of Werner Enterprises, Lance Fritz of Union Pacific Railroad, and Douglas Means of Cabela’s. Each witness discussed three common themes: the importance of a reliable and efficient surface transportation network; the challenges they are facing in regard to organization, safety, and overall performance; and their relationships with federal agencies.
This spring, we examined the significant service disruptions that were occurring at West Coast ports. For nearly 10 months, protracted labor disputes delayed the movement of goods to and from markets. This affected even landlocked states like Nebraska and South Dakota. Manufacturers waited for vital inputs and hospitals even had difficulty receiving medical supplies. In fact, meat producers from our region were unable to ship products and had to reduce production levels. Following our hearing, we were pleased to see an agreement ending the dispute.
However, to prevent such occurrences in the future, we have worked on new measures helping the Department of Transportation to actually track and monitor port congestion. Heading off another transportation system problem, just last month, the president signed into law a common-sense, accountability-focused solution we advanced to ensure that our nation’s freight and passenger rail system did not face severe disruptions because of an unrealistic deadline for new train control technology.
One of our committee’s most successful accomplishments this year was the Senate passage of bipartisan, multiyear highway legislation in July that should soon result in the signing of a bill to advance highway project construction and enhance road safety. This bill also incorporates additional regulatory relief for our agriculture producers. Specifically, it would allow farmers the flexibility to transport up to 1,000 gallons of diesel fuel for equipment without the burden of obtaining special permits. The bill also develops a comprehensive strategy for freight infrastructure planning across the country and provisions to strengthen truck safety through regulatory reforms at the Federal Motor Carrier Safety Administration. These truck safety reforms would encourage stronger regulatory analysis, more transparency, and wider public participation in the regulatory process.
The Senate’s accomplishments are an important step, but our work has just begun as we seek to make the federal government more accountable to the needs of Americans in states like Nebraska and South Dakota.
U.S. Sen. Deb Fischer is a member of the Senate’s Commerce, Science and Transportation Committee. She serves as chairman of the Subcommittee on Surface Transportation and Merchant Marine Infrastructure, Safety, and Security. U.S. Sen. John Thune (R-S.D.) is chairman of both the Republican Senate Conference and the Commerce, Science and Transportation Committee.
WASHINGTON, D.C. – U.S. Sen. Bill Nelson (D-FL), the top Democrat on the Senate Commerce Committee, today called on the airline industry to halt any plans they may have to charge increased checked-bag fees during the holidays.
Nelson made the call in letters he sent today to the CEOs of all the major U.S. airlines. His move comes on the heels of reports that Spirit and Frontier airlines are going to raise their baggage fees during this year’s holiday travel season.
“These increased surcharges fly in the face of declining fuel costs and appear focused on increasing profitability on the backs of American families,” Nelson wrote. “If your company does plan to impose holiday surcharges, I request that you rescind those plans immediately.”
Earlier this year, Nelson released a Commerce Committee minority report taking aim at the airline industry for failing to adequately disclose extra fees and add-on costs charged to the flying public.
The report made several recommendations, including one requiring checked and carry-on baggage fees to have a clear connection between the costs incurred by the airline and the fees charged.
Nelson hopes to include many of the report’s recommendations in legislation reauthorizing the Federal Aviation Administration that’s expected to come before the Senate next year.
Below is the text of Nelson’s letter to the airlines:
November 6, 2015
According to recent reports, at least two airlines plan to impose “holiday surcharges” that will increase baggage fees during the peak holiday travel period.
These increased surcharges fly in the face of declining fuel costs and appear focused on increasing profitability on the backs of American families. That’s why I am seeking an assurance from your company that you will not impose a holiday surcharge on baggage fees. Furthermore, if your company does plan to impose holiday surcharges, I request that you rescind those plans immediately.
In August, Senate Commerce Committee minority staff released a report that found ancillary fees, such as change and cancellation penalties and preferred seating fees, were increasingly keeping consumers in the dark about the true cost of air travel. The report made a number of recommendations, including one requiring ancillary fees to have a clear connection between the cost incurred by the airline and the fee charged. I hope to include many of the report’s recommendations in legislation reauthorizing the Federal Aviation Administration that’s expected to come before the Senate next year.
Thank you for your attention to these concerns. I look forward to receiving your company’s response on this important issue no later than November 20, 2015.
Blumenthal, Nelson Demand Independent Federal Investigation into Health Risks from Children's Playgrounds and Artificial Turfs Made with Crumb Rubber from Scrap Tires
WASHINGTON, D.C. – Today, U.S. Senators Richard Blumenthal (D-Conn.) and Bill Nelson (D-Fla.), Ranking Member on the Subcommittee on Consumer Protection, Product Safety, Insurance, and Data Security and Ranking Member of the Senate Commerce Committee respectively, called on the Consumer Product Safety Commission (CPSC) to immediately conduct an independent, comprehensive investigation to determine the true health risks of exposure to crumb rubber made from scrap tires that is increasingly used across the country to make or fill playgrounds and artificial turf fields. In the senators’ letter to CPSC Chairman Elliot F. Kaye, they highlighted the current lack of conclusive evidence on health risks of crumb rubber and the urgent need to study full health effects from exposure, noting that athletes and young children are two groups that come in frequent contact with rubber turf and most vulnerable for any serious risks. This week, the issue was featured by ESPN on their E:60 program, entitled “The Turf War.”
“Even though crumb rubber sport and play surfaces are widely played on, little is known about their risks to health and safety—especially to vulnerable populations, like toddlers with frequent hand-to-mouth actions, and to participants with especially high exposure, such as soccer goalies, who come in frequent contact with the rubber infill on synthetic turfs,” the senators wrote.
“According to the most recent counts by University of Washington soccer coach Amy Griffin, who has been tracking cancer incidences involving athletes who have played for a number of years on synthetic turf with crumb rubber infill, there are now 153 such cancer cases. Of these, 124 are soccer players and 85 of these played goalie…A recent study conducted at Yale University found that the rubber used in synthetic turf and rubber mulch contains 96 chemicals. There were no toxicity assessments for a little under half of those chemicals and of those with toxicity assessments, 20 percent are probable carcinogens.”
The senators raised doubts about the validity of a current crumb rubber evaluation in California which is “commissioned by CalRecycle – the state agency responsible for promoting tire recycling and which may have a special interest in finding beneficial reuse applications for scrap tires.” Because of the plausible conflict of interest in the only ongoing study, the senators requested “CPSC should lead the independent federal investigation on this important matter. States and localities already depend on the CPSC for guidelines for playground safety…The CPSC has an obligation to make sure its recommendations do not put children’s health at risk.”
“As part of this investigation, we also respectfully request that your epidemiology team coordinate with the Centers for Disease Control’s Agency for Toxic Substances and Disease Registry and any other relevant public health agencies to keep track of cancer incidences related to playing on crumb rubber surfaces. This information is necessary to confirm or disprove the existence of a cancer cluster.”
The letter also requests the CPSC to provide “interim guidelines regarding how individuals can reduce their exposure to the potential hazards of crumb rubber.” The senators asked that CPSC respond with specific steps they will take by November 30, 2015.
Full letter can be seen here and below.
Dear Chairman Kaye:
With thousands of fields and playgrounds across the country now made or infilled with crumb rubber from scrap tires, and absent conclusive information regarding the safety of these kinds of surfaces, we write to urge the Consumer Product Safety Commission (CPSC) to devote additional resources to conclusively determine whether these products can be safely played on by young children and people of all ages.
Even though crumb rubber sport and play surfaces are widely played on, little is known about their risks to health and safety—especially to vulnerable populations, like toddlers with frequent hand-to-mouth actions, and to participants with especially high exposure, such as soccer goalies, who come in frequent contact with the rubber infill on synthetic turfs. According to the most recent counts by University of Washington soccer coach Amy Griffin, who has been tracking cancer incidences involving athletes who have played for a number of years on synthetic turf with crumb rubber infill, there are now 153 such cancer cases. Of these, 124 are soccer players and 85 of these played goalie.
To date, studies on the health effects from exposure to crumb rubber have only been partial assessments or did not accurately reflect realistic playing conditions. A recent study conducted at Yale University found that the rubber used in synthetic turf and rubber mulch contains 96 chemicals. There were no toxicity assessments for a little under half of those chemicals and of those with toxicity assessments, 20 percent are probable carcinogens. Communities and parents deserve to know whether these chemicals may have synergistic effects and are present in levels that pose a health risk, even under intense playing conditions.
In your September press statement on crumb rubber, you stated that the CPSC intends to provide technical assistance for California’s Office of Environmental Health Hazard Assessment’s comprehensive evaluation of crumb rubber. As you may know, this study is commissioned by CalRecycle – the state agency responsible for promoting tire recycling and which may have a special interest in finding beneficial reuse applications for scrap tires.
CPSC should lead the independent federal investigation on this important matter. States and localities already depend on the CPSC for guidelines for playground safety. Many states have adopted into law all or parts of the CPSC’s Public Playground Safety Handbook, which currently identifies rubber mulch as “appropriate surfacing” for playgrounds. Furthermore, CPSC has also issued guidance – based on a limited 2008 staff evaluation – that synthetic athletic fields are “OK to Install, OK to Play On.” In 2013, the CPSC amended that guidance to note that the staff evaluation was “subject to specified limitations including sample size” and that the “exposure assessment did not include chemicals or other toxic materials, beyond lead.” While we recognize this assessment was conducted under other leadership, the same mistakes should not be repeated in any analysis of crumb rubber safety. The CPSC has an obligation to make sure its recommendations do not put children’s health at risk.
Therefore, we request that you lead an independent investigation into the health risks of crumb rubber surfaces. As part of this investigation, we also respectfully request that your epidemiology team coordinate with the Centers for Disease Control’s Agency for Toxic Substances and Disease Registry and any other relevant public health agencies to keep track of cancer incidences related to playing on crumb rubber surfaces. This information is necessary to confirm or disprove the existence of a cancer cluster.
Understanding that the CPSC intends to provide technical assistance for California’s study and that this is the only comprehensive study currently planned, we also respectfully request you answer the following questions:
Much attention has been focused on crumb rubber used in synthetic turfs, but this product is also widely used on playgrounds intended for play by very young children. How will the CPSC ensure the California study also assesses health risks associated with crumb rubber used on playgrounds?
Does CPSC staff believe that crumb rubber or synthetic turf products marketed primarily towards primary schools should comply with the lead limits applicable to children’s products under section 101 of the Consumer Product Safety Improvement Act of 2008?
- How will the CPSC ensure that risks to the most vulnerable populations, including toddlers and athletes that play frequently and intensely, are assessed in this study?
Since the makeup of crumb rubber varies widely from one batch to another, and since tire ingredients can be proprietary, how can the CPSC ensure this study examines truly representative samples?
How will the CPSC ensure that all potential exposure pathways (dermal, oral, and inhalation) are being evaluated?
- What steps will be made to guarantee that conclusions from the California study can be generalized for any scrap tire crumb rubber products and playing conditions nationwide?
Finally, in the absence of conclusive information regarding health risks and since the California study is expected to take three years to complete, the CPSC should provide the public with interim guidelines regarding how individuals can reduce their exposure to the potential hazards of crumb rubber. For example, before voluntary standards were instituted to prevent the use of lead in artificial turf products, the Centers for Disease Control recommended field managers post signs outlining specific precautions individuals can take to minimize their exposure risks. Please inform us when you expect to be able to disseminate such information to the public.
Thank you for your attention to this important matter affecting so many communities across the country. We respectfully request you provide a response to this letter by November 30, 2015.
U.S. Senate Committee on Commerce, Science, and Transportation will hold a full committee hearing entitled “Zero Stars: How Gagging Honest Reviews Harms Consumers and the Economy” on Wednesday, November 4 at 10:00 a.m. The hearing follows the introduction of S. 2044, the Consumer Review Freedom Act, by Senators John Thune (R-S.D.), Jerry Moran (R-Kan.) and Brian Schatz (D-Hawaii) on September 16, 2015. The bipartisan bill would prohibit the use of non-disparagement clauses referred to as “gag clauses” in form contracts between consumers and businesses. S. 2044 was referred to the Senate Commerce Committee where it is currently pending.
Gag clauses are appearing in a large number of non-negotiable form contracts. This practice can occur when one party imposes a standardized contract without a meaningful opportunity for the other party to modify the contract. Some businesses have sought to use these clauses unfairly to penalize or pursue fines from customers for negative but honest reviews of their services on websites such as Yelp or TripAdvisor.
One of the witnesses, Ms. Jen Palmer, is a plaintiff in Palmer v. KlearGear.com, where a website demanded that she remove a negative online review or pay $3,500 in damages because the website’s terms of service included a non-disparagement clause. When she refused to pay the penalty, the website reported the $3,500 to credit reporting agencies as an unpaid debt.
- Mr. Adam Medros, Senior Vice President for Global Product, TripAdvisor LLC
- Ms. Jen Palmer, Plaintiff, Palmer v. KlearGear
- Mr. Daniel Castro, Vice President, Information Technology and Innovation Foundation
- Mr. Eric Goldman, Professor, Santa Clara University School of Law
- Mr. Ira Rheingold, Executive Director of National Association of Consumer Advocates
Wednesday, November 4, 2015
Full Committee hearing
This hearing will take place in Senate Russell Office Building, Room 253. Witness testimony, opening statements, and a live video of the hearing will be available at www.commerce.senate.gov.
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Today we shine light on an anti-consumer practice that is growing by leaps and bounds every year and is being used by a growing list of companies.
These companies are using their size and unequal bargaining power to force consumers to sign lengthy “take it or leave it” agreements or contracts.
In some cases, these agreements are just online “pop-up” terms that a consumer clicks on – usually without reading – to purchase a good or service on the Internet.
Almost no one reads them – but they can have major consequences.
Now I am just a country lawyer, but, when I was in law school, they called these “contracts of adhesion.”
They are called adhesion, because you’re stuck with them.
You can’t modify the contract in any way, and you are bound by the “fine print” that lawyers are so good at drafting.
And the idea that some companies are suing, or threatening to sue, their customers for truthfully reviewing their consumer experiences online – and saying it’s OK, because of these so-called non-disparagement clauses snuck into contracts in fine print – is appalling.
We need to do something about it.
In a state like Florida, that is so dependent on tourism, we want visitors to share their experiences.
We want to let the sunshine in.
Businesses that do a good job are rewarded; those who do not are punished.
So I’m glad your bill, Mr. Chairman, would stop this practice by voiding contracts of adhesion that punish consumers for sharing their experiences and opinions with other consumers.
I also think this hearing is timely, Mr. Chairman, because this issue and your bill bring up – in my mind – a related issue that needs to be discussed.
Just a few weeks ago, the Los Angeles Times reported that Fiat Chrysler was requiring consumers who wanted to receive a “friends and family” discount on a car to sign a mandatory arbitration clause as part of the sales contract.
So if the car is defective and kills or injures that consumer – as was the case with Toyota’s sudden acceleration, GM’s faulty ignition switches, and Takata’s exploding airbags – he or she is potentially barred from seeking judicial relief.
This type of provision is an outrageous “get out of jail free” card for carmakers.
And, beyond the automakers themselves, many dealers are also trying to use these arbitration provisions to shield themselves.
How is this right? How is this acceptable?
This committee has seen too many examples lately of companies getting away scot-free for killing and injuring and hiding the truth.
And these non-disparagement and arbitration clauses are just another way for companies to avoid accountability by silencing consumers – whether by preventing them from posting an online complaint or telling their story to a jury.
So, yes, consumers should be able to write negative reviews about a business. But consumers also should have the ability to seek justice in a court of law when businesses fail to hold up their end of the bargain.
Especially when that failure involves injury or death.
We can’t keep giving businesses more and more “get out of jail free” cards. Not after GM. And not after Takata and Volkswagen.
Thank you, Chairman Thune, and I look forward to hearing from today’s witnesses.
"Today we convene to examine a growing and disturbing trend affecting consumers in the United States.
"Imagine you’re a consumer who purchases an item online, but the product isn’t what you bargained for.
"Because you don’t want other consumers to waste their time or money, you take to social media to post an honest account of your experience.
"You’re then aggressively approached by the company that sold you the substandard product and threatened with a stiff penalty unless you immediately take down the critical review.
"Little did you know that buried in the fine print of the website’s Terms and Conditions was an anti-consumer clause forbidding you from posting a negative review about the company, even if it’s true.
"This scenario sounds far-fetched, but the sad reality is that it’s happening every day across the country.
"So-called “non-disparagement,” or “gag,” clauses are being forced on consumers and then being used to intimidate them.
"These gag provisions are egregious from a consumer protection standpoint, but they’re also doing harm to our Internet ecosystem.
"Our committee spends a significant amount of time focusing on how we can increase broadband adoption and create policies that unlock the true potential of the Internet, but speech-stifling contract terms undermine what we’re trying to accomplish in Internet policy.
"A core tenet of the Internet is the ability to freely share information with whomever you like.
"What good is information if it’s been sanitized to remove truthful criticism?
"Simply put, imposing consumer gag clauses can result in unfair bullying.
"The practice is frequently about a larger entity abusing its power and insulating itself from legitimate and constructive criticism.
"Often consumers don’t believe they have any power against companies that treat them poorly, but online review sites and social media have given American consumers a tremendous amount of power.
"Consumers rightfully place high value on the experiences of other consumers and therefore frequently rely on the wisdom of the crowd when deciding where to spend their money.
"Do some consumers sometimes abuse the Internet with false reviews?
"Sure they do.
"But businesses that face unfair reviews have existing remedies available to them, including the ability to sue for defamation.
"In addition, businesses should be able to offset phony reviews with positive assessments from satisfied customers.
"Regrettably, there are a growing number of businesses in the marketplace that are blocking honest consumer speech through gag clauses rather than responding to negative criticism by providing a better product or service.
"Today we are joined by Jen Palmer, who will share her personal experience fighting against an unscrupulous company that sought a $3,500 penalty simply because she told the truth about poor customer service.
"Fortunately for the Palmers, they were able to challenge this abuse in court and persevered.
"The Palmers are far from alone in their experience.
"In one case, a dentist included a non-disparagement clause in her contract, as well as a clause that purported to grant the dentist the copyright to anything the patient may later write about the dentist.
"When a patient posted an online review complaining about being overcharged, the dentist sent a “takedown” notice to the review site.
"The dentist also sent the patient a series of invoices demanding payment of $100 for each day the complaints continued to appear online.
"The patient sued the dentist and a court found the clause to be unconscionable and void, awarding the patient nearly $5,000.
"In another case, a consumer who did not receive her order from an online retailer informed the company she would report the matter to her credit card company.
"In response, the company demanded the consumer pay $250 for violation of its fine-print “Terms of Sale,” which prohibited a customer from even threatening to make a negative public statement about the retailer.
"The consumer filed suit against the retailer alleging its actions were unfair, deceptive, and contrary to public policy. The court ultimately found in the consumer’s favor.
"Going even a step further, in a wedding contract, one hotel went so far as to inform prospective newlyweds they could be fined if they or any of their guests violated a gag clause by leaving a negative review.
"After this clause was reported widely in the press, the business changed its terms.
"Keep in mind, the vast majority of non-disparagement clauses never see public light.
"This is because consumers often succumb to pressure and remove the negative review.
"Understandably, they’d rather avoid the fight than face the threat of excessive penalties, costly litigation, or damage to their credit scores.
"The proliferation of this problem led Senators Moran, Schatz, Blumenthal, McCaskill and me to introduce the bipartisan and bicameral Consumer Review Freedom Act that would ban non-disparagement clauses in form contracts while still permitting companies to pursue good faith defamation claims.
"Our bill empowers the Federal Trade Commission and state Attorneys General to enforce against these anti-consumer provisions.
"The FTC recently filed suit against one company over a consumer gag clause and the Consumer Review Freedom Act would guarantee the commission’s ability to fight against these provisions.
"Since introduction we’ve worked with stakeholders and plan to make a few changes prior to marking up the bill.
"I’m looking forward to moving this pro-consumer legislation through our committee and the Senate so Americans can continue to help each other make informed decisions.
"We have an excellent panel here today with diverse experiences on this issue.
"You each bring a unique perspective and I look forward to hearing about your experiences and thoughts on our legislation.
"Thank you for agreeing to testify."