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Executive Session

U.S. Sen. Roger Wicker, R-Miss., chairman of the Senate Committee on Commerce, Science, and Transportation, will convene an executive session on Thursday, October 1, 2020, at 10:00 a.m. in Dirksen Senate Office Building 106 to consider the following measures:

Agenda:

  • Authorization to subpoena the attendance of witnesses for purpose of a hearing: 
  • Mr. Jack Dorsey, Chief Executive Officer, Twitter
  • Mr. Sundar Pichai, Chief Executive Officer, Alphabet Inc., Google
  • Mr. Mark Zuckerberg, Chief Executive Officer, Facebook

*Agenda subject to change

Executive Session Details:

October 1, 2020
10:00 a.m.
Full Committee
Dirksen Senate Office Building 106 

A live video of the markup and additional information will be available at www.commerce.senate.gov.

*In order to maintain physical distancing as advised by the Office of the Attending Physician, seating for credentialed press will be limited throughout the course of the hearing. Due to current limited access to the Capitol complex, the general public is encouraged to view this hearing via the live stream.

Preventing Fraud and Abuse of PPP and EIDL: An Update with the SBA Office of Inspector General and the Government Accountability Office

House Small Business Committee News - Thu, 10/01/2020 - 10:00am
The Committee on Small Business Subcommittee on Investigations, Oversight, and Regulations will hold a hybrid hearing titled, “Preventing Fraud and Abuse of PPP and EIDL: An Update with the SBA Office of Inspector General and the Government Accountability Office.” The hearing is scheduled to begin at 10:00 A.M. on Thursday, October 1, 2020 in Room 2360 of the Rayburn House Office Building. Participating members can also join remotely via CISCO Webex.

The Subcommittee will meet to discuss the July 28, 2020 Management Report from the SBA Office of Inspector General (OIG) and the COVID-19 reports from the Government Accountability Office (GAO). The reports detail a lack of internal controls and potential for fraud within SBA’s Economic Injury Disaster Loan (EIDL) program and Paycheck Protection Program (PPP). The hearing will give Members the opportunity to discuss OIG and GAO’s findings and determine if SBA’s response to these reports is consistent with their recommendations or if more work needs to be done to prevent fraud, waste, and abuse.

To view a livestream of the hearing, please click here. 

Hearing Notice 

Hearing Memo 

Witnesses
Mr. Hannibal “Mike” Ware
Inspector General
Office of the Inspector General
United States Small Business Administration
Washington, DC

Mr. William Shear
Director
Financial Markets and Community Investment
United States Government Accountability Office
Washington, DC

NASA Missions and Programs: Update and Future Plans

U.S. Sen. Roger Wicker, R-Miss., chairman of the Committee on Commerce, Science, and Transportation, will convene a hearing titled, “NASA Missions and Programs: Update and Future Plans,” at 10:00 a.m. on Wednesday, September 30, 2020. This hearing will focus on the National Aeronautics and Space Administration’s (NASA) progress on major missions, including the Artemis Program. The hearing will also provide an opportunity to discuss mission challenges caused by the COVID-19 pandemic and how the agency is adapting to meet those challenges.

Witness:

  • The Honorable Jim Bridenstine, Administrator, National Aeronautics and Space Administration

*Witness list subject to change

Hearing Details:

Wednesday, September 30, 2020
10:00 a.m.
Full Committee Hearing

This hearing will take place in the Russell Senate Office Building 253. Witness testimony, opening statements, and a live video of the hearing will be available on www.commerce.senate.gov.

 

In order to maintain physical distancing as advised by the Office of the Attending Physician, seating for credentialed press will be limited throughout the course of the hearing. Due to current limited access to the Capitol complex, the general public is encouraged to view this hearing via the live stream. 

 

How COVID-19 is Impacting Small Businesses Across the Food System

House Small Business Committee News - Wed, 09/30/2020 - 10:00am
The Committee on Small Business will hold a hybrid hearing titled: “How COVID-19 is Impacting Small Businesses Across the Food System.” The hearing is scheduled to begin at 10:00 A.M. on Wednesday, September 30, 2020 in Room 2175 of the Rayburn House Office Building. Participating members can also join remotely via CISCO Webex.

This hearing will give members a chance to hear about the role of small businesses within our food production, distribution, and retail systems, the challenges they are facing, and how federal programs are addressing these challenges.

To view a livestream of the hearing, please click here

Hearing Notice 

Hearing Memo 

Witnesses
Ms. Kimberly Gorton
President and CEO
Slade Gorton & Co., Inc.
Boston, MA
*Testifying on behalf of the National Fisheries Institute

Mr. Jimmy Wright
President
Wright’s Market
Opelika, AL
*Testifying on behalf of the National Grocers Association

Mr. Rob Larew
President
National Farmers Union
Washington, DC

Mr. Collin Castore
Owner, Seventh Son Brewing
President, Ohio Craft Brewers Association (OCBA)
Columbus, OH

A Review of PPP Forgiveness

The Committee on Small Business Subcommittee on Economic Growth, Tax, and Capital Access will hold a hybrid hearing entitled “A Review of PPP Forgiveness.” The hearing is scheduled to begin at 9:30 AM (EST) on Friday, September 25, 2020 and will take place in room 2360 of the Rayburn House Office Building. Members who wish to participate remotely may do so via Cisco WebEx, information to be provided separately.

The hearing will provide an overview of the Paycheck Protection Program (PPP) loan forgiveness process and allow Members an opportunity to hear from lenders, borrowers, and other stakeholders about their experiences with the forgiveness process. The committee will examine loan forgiveness guidance and proposals for simplifying the loan forgiveness process for certain borrowers.

To view a livestream of the hearing, please click here. 

Hearing Notice 

Hearing Memo 

Witnesses
Ms. Lynn G. Ozer
President, SBA Lending
Fulton Bank
Pottstown, PA

Ms. Amy Bonfig
Owner
Little Saints Academy
St. Joseph, MN

Mr. Jim Parker
CEO & Director
Riverview Studios
Bordentown, NJ

Mr. Pete Patel
President & Chief Executive Officer
Promise Hotels
Tulsa, OK 





Maryland High Court Adopts Daubert Expert Evidence Standard

WLF Legal Pulse - Thu, 09/24/2020 - 4:44pm

By Victor E. Schwartz, co-chair of Shook, Hardy & Bacon L.L.P.’s Washington, D.C.-based Public Policy Group.  He is co-author of the best-selling torts casebook in the United States, Prosser, Wade & Schwartz’s Torts: Cases & Materials (14th ed. 2020).

In Rochkind v. Stevenson, 2020 WL 5085877 (Md. Aug. 28, 2020), the Maryland Court of Appeals, the state’s highest court, replaced its longstanding rule governing the admission of expert scientific evidence with the more rigorous Daubert standard applied in federal courts and most other states. The decision completed what the court described as a “jurisprudential drift” over the past half-century toward greater scrutiny of expert evidence to prevent unreliable science from entering the state’s courtrooms. Id. at *16.

As co-author of a torts casebook, what struck me about the decision is that it is a textbook opinion for trial judges: it teaches as well as decides. The court explained with clarity why it abandoned a flawed, antiquated standard based on the so-called “Frye rule” in favor of instructing judges to serve as “gatekeepers” to assure that only sound and reliable expert evidence is considered by juries.

Rochkind involved the issue of whether an adult woman’s Attention Deficit Hyperactivity Disorder (ADHD) was caused by childhood exposure to lead. She sued the landlord of the apartment where she had lived for 15 months during infancy, claiming exposure to lead, as opposed to other factors such as a family history of learning disabilities, caused her to develop ADHD and other cognitive disorders. See id. at *2. At trial, she sought to prove a causal connection through expert testimony. See id. at *2-4 (discussing how the case ultimately involved four separate trials). The landlord challenged the reliability of the proposed expert’s causation analysis and conclusions, setting the stage for the state high court to consider adopting the Daubert standard.

ABCs of Evidence Law

To fully appreciate the wisdom and importance of the court’s decision in Rochkind, it is helpful to recall the fundamentals of evidence law. Under evidence rules, laypersons are permitted to give firsthand testimony within their direct knowledge and experience. A jury or other trier of fact can evaluate that testimony based on its own background and experience. For example, if a witness saw a car accident, he or she can testify as to whether a driver went through a red light. On the other hand, if a question arises as to whether a car’s brakes satisfied certain mechanical standards, expert testimony would be needed because the jury cannot answer that question through its own knowledge and experience.

The question then arises as to how can a layperson jury evaluate the reliability of an expert’s testimony on a topic about which the jury knows little or nothing? Adding to this challenge of evaluating an expert is the fact that expert witnesses have “super” witness powers that lay witnesses do not. An expert witness can rely on hearsay (e.g. things read in a book or report, or heard in a lecture) and can testify as to conclusions (e.g. “the braking system is defective”). Lay witnesses cannot do either of these things; they must leave that job to the jury.

These basic functions of expert witnesses underscore why it is so critical that judges act as “gatekeepers” against unreliable scientific evidence. Many proposed expert witnesses have exceptional credentials (e.g. Ivy League education) in a relevant field, but may nevertheless put forth testimony that is not based on sound science. As a result, layperson jurors or other factfinders may be misled as to the true nature of scientific support for a proposition, for example whether a certain amount of lead exposure may cause ADHD or other disorders.

Daubert Versus Frye

For the past half-century, Maryland had followed a version of the Frye rule in determining the admissibility of expert evidence. This standard centers on whether scientific evidence is “generally accepted” in a relevant scientific community, which is an approach that may produce inconsistent results.

As Maryland’s high court recognized, the Frye rule can be overinclusive in allowing a jury to hear evidence of any “generally accepted” scientific principle or methodology, even if it produces unreliable science. For example, it was “generally accepted” for centuries in the scientific community that the Sun rotated around the Earth until Copernicus debunked that fallacy. At the same time, the Frye rule can be underinclusive in disallowing reliable scientific evidence that has not yet obtained general acceptance in the scientific community. For example, many scientists once believed that the conditions of space precluded sending a person to the moon and back until NASA proved otherwise.

In 1993, the U.S. Supreme Court, in Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993), recognized the shortcomings of the Frye rule and replaced this evidentiary standard. The Daubert rule refocused attention away from general acceptance of a given methodology to the reliability of the methodology used to reach a particular result. In doing so, the Supreme Court instructed judges to act as “gatekeepers” for the admissibility of reliable scientific evidence.

Pursuant to the Daubert rule, which Maryland now follows, judges must make a threshold determination as to whether a proffered expert’s testimony is based on sufficient facts or data, is the product of reliable principles and methods, and that the expert has reliably applied the principles and methods to the facts of the case in a manner that will assist the jury or other factfinder. Rochkind, 2020 WL 5085877, at *14-16. Judges are to consider whether a theory or technique can be (or has been) tested or subjected to peer review, whether a particular scientific technique has a known or potential rate of error, and the existence and maintenance of standards and controls, among other factors. See id.; see also Federal Rule of Evid. 702; Md. Rule 5-702.

Unreliable scientific evidence, such as fringe theories that an exposure to a product or substance caused a specific disease in spite of no scientific support, is no longer simply presented to a jury to decide. Again, this is an important change because layperson jurors may not fully appreciate how novel and unscientific the “expert” testimony actually is.

In adopting Daubert, Maryland’s high court also made clear that a judge’s gatekeeping role is not to determine whether a proposed expert is “right” or “wrong” in their testimony. Rather, the standard is whether the expert’s testimony is adequately grounded in reliable and sound science, and that there is not “too great an analytical gap” between the expert’s methodology and conclusions. Id. at *6 (quoting General Electric Co. v. Joiner, 522 U.S. 136, 146 (1997)). Further, the court recognized that the more demanding Daubert rule has worked well in the federal courts and “supermajority of states” that adopt it. Id. at *16. Maryland’s delayed adoption of Daubert, the court explained, provides an “added benefit of hindsight” and a broad body of case law to draw upon that will give the state’s courts “a decided advantage when faced with emerging technologies [the court] cannot yet foresee.” Id.

The Daubert Standard Promotes Justice for All Parties

Another benefit of requiring judges to act as “gatekeepers” to screen unreliable expert evidence is that the rule works the same for all parties. Although some critics of Daubert have suggested the approach favors only civil defendants, and that a defendant’s “[v]igorous cross-examination” alone should be relied upon to adequately screen expert evidence, the reality is that the standard is neutral in application. Id. at *18 (quoting Daubert, 509 U.S. at 596).

For instance, the rule can help plaintiffs dispose of unreliable testimony by an expert who rejects a clear causal connection between a harmful exposure and disease before it taints the minds of jurors. The Daubert rule can also aid criminal defendants where a prosecutor puts forth unsound scientific evidence in an attempt to obtain a conviction. The standard helps ensure that no party suffers prejudice from unsound scientific evidence.

Conclusion

Maryland’s high court provided a true public service in the Rochkind case, not only for trial judges in the state, but also for trial judges throughout the nation. The court did not simply “adopt” the Daubert rule, as federal courts and most other states have done; it spelled out precisely why the change in law is so important and necessary to a fair civil justice system.

The post Maryland High Court Adopts <em>Daubert</em> Expert Evidence Standard appeared first on Washington Legal Foundation.

Categories: Latest News

On the Merits: Rutledge v. Pharmaceutical Care Management Association

WLF Legal Pulse - Thu, 09/24/2020 - 4:21pm

Featuring Helgi C. Walker, Matthew S. Rozen, and Max E. Schulman, attorneys in the Appellate and Constitutional Law practice group at Gibson, Dunn & Crutcher LLP in Washington, D.C.; and Aphrodite Kokolis, an attorney at Schiff Hardin LLP in Chicago, IL.

*      *     *

CaseRutledge v. PCMA, U.S. Supreme Court Docket No. 18-540 (Argument date: October 6, 2020)

Question Presented: Whether Arkansas’s Act 900, which regulates pharmacy benefit managers’ reimbursement rates, is preempted by the Employee Retirement Income Security Act of 1974 (“ERISA”).

Summary of the Case: Arkansas’s Act 900 regulates pharmacy benefit managers (“PBMs”)—third-party administrators hired to manage prescription-drug benefits on a plan’s behalf. The Act requires PBMs to: (1) update the lists specifying the rates at which PBMs reimburse pharmacies for drugs prescribed to plan members; (2) maintain appeal procedures allowing pharmacies to challenge reimbursements they consider too low; and (3) grant certain appeals, increase the reimbursements at issue, and adjust the price list going forward.

The district court held that Act 900 has an impermissible “connection with” ERISA and is thus preempted. In affirming, the court of appeals considered itself “completely bound” by its earlier decision that an Iowa statute was preempted because it made “implicit reference” to ERISA by regulating PBMs that administer benefits for entities that can include ERISA plans. See Pharmaceutical Care Mgmt. Ass’n v. Gerhart, 852 F.3d 722, 728-31 (8th Cir. 2017) (invalidating Iowa PBM law).

Judgment for Respondent (Authored by Helgi C. Walker, Matthew S. Rozen, and Max E. Schulman)

ERISA Section 514(a) expressly preempts “any and all State laws” that “relate to” employee benefit plans. 29 U.S.C. § 1144(a). The Eighth Circuit held that this provision preempts an Arkansas statute regulating the administration of prescription-drug benefits on behalf of ERISA-governed benefit plans. We agree and affirm the judgment below.

In ERISA, Congress aimed to encourage formation of employee benefit plans by establishing a “uniform regulatory regime.” Aetna Health v. Davila, 542 U.S. 200, 208 (2004). ERISA’s broad express-preemption provision serves that goal by preventing a hodge-podge of state regulations that would “complicate the administration of nationwide plans” and produce “inefficiencies that employers might offset with decreased benefits.” FMC Corp. v. Holliday, 498 U.S. 52, 60 (1990).

We apply a two-part test for preemption under Section 514. “A law ‘relates to’ an employee benefit plan” and is preempted “if it has a [(1)] connection with or [(2)] reference to such a plan.” Shaw v. Delta Air Lines, Inc., 463 U.S. 85, 96-97 (1983). We focus here on the first part of this test. A state law “has an impermissible ‘connection with’ ERISA plans” if it “governs” a “central matter of plan administration,” “interferes with nationally uniform plan administration,” or imposes “acute, albeit indirect, economic effects” that “‘force an ERISA plan to adopt a certain scheme of substantive coverage or effectively restrict its choice of insurers.’” Gobeille v. Liberty Mut. Ins. Co., 136 S. Ct. 936, 943 (2016).

Arkansas’s Act 900 is preempted under this test. It directly regulates (and increases) the rates that PBMs—acting as agents for ERISA plans—pay for prescription drugs, and requires PBMs to process claims for benefits under different substantive and procedural rules in Arkansas than in other states. 

Arkansas’s defense of Act 900 rests on the misconception that ERISA does not preempt state “rate regulation.” On the contrary, state regulation of the rates that plans agree to pay to provide coverage to their members is at the core of ERISA preemption. “[T]he payment of benefits” is “a central matter of plan administration” that ERISA squarely protects from state regulation. Egelhoff v. Egelhoff ex rel. Breiner, 532 U.S. 141, 148 (2001). We have thus long recognized ERISA preemption of state laws that, like Act 900, “regulat[e] a plan’s “method of calculating . . . benefits,” De Buono v. NYSA-ILA Med. & Clinical Servs. Fund, 520 U.S. 806, 814-15 (1997), or “force an ERISA plan to adopt a certain scheme of substantive coverage,” N.Y. State Conference of Blue Cross & Blue Shield Plans v. Travelers Ins. Co., 514 U.S. 645, 668 (1995). Act 900’s direct regulation of plan benefit levels is antithetical to ERISA’s statutory scheme, in which “Congress’ primary concern” was to ensure that employers pay the benefits due to their employees, Massachusetts v. Morash, 490 U.S. 107, 115 (1989), not to “mandate what kind of benefits employers must provide if they choose to have [benefits] plans,” Lockheed Corp. v. Spink, 517 U.S. 882, 887 (1996). Act 900 is thus plainly preempted because its direct regulation of benefits and benefit administration establishes an impermissible “connection with” ERISA-governed plans.

Act 900 is not saved by the arguments of the United States as amicus. The United States argues that the Act is not preempted because it applies to third parties that administer benefits for ERISA plans. But Gobeille confirms that ERISA preemption applies equally when a state regulates core plan functions by imposing requirements on a plan’s “third-party administrator” or agent, rather than the plan itself. 136 S. Ct. at 942.

If allowed to stand, Act 900 would open the door to a patchwork of state laws that would decrease efficiency and increase plan costs—not just in the PBM context, but in numerous others involving different kinds of benefits and plans, different aspects of plan administration, and different kinds of third-party administrators. The result would be to “undermine the congressional goal of ‘minimiz[ing] the administrative and financial burden[s]’ on plan administrators—burdens ultimately borne by the beneficiaries.” Gobeille, 136 S. Ct. at 944.  ERISA forbids that result.

The judgment is affirmed

Dissenting View (Authored by Aphrodite Kokolis):

ERISA preempts state laws “insofar as they may now or hereafter relate to any employee benefit plan.” 29 U.S.C. § 1144(a). We have cautioned, however, that a literal reading of “relate to” could invalidate state legislation to an extent not intended by Congress. 

The decision below employs a sweeping interpretation of ERISA’s preemption provision that is inconsistent with our precedent, pays inadequate regard to the states’ historic police powers to regulate health care, and would leave a significant gap in the regulation of PBMs nationwide. I would therefore reverse the judgment below.

PBMs have played an increasingly important role in the pricing and delivery of pharmaceuticals in the United States. PBMs serve as intermediaries between pharmacies and health plans, both ERISA and non-ERISA plans: PBMs contract with pharmacies to establish pharmacy networks, and separately contract with plans to provide access to those networks. At issue here are PBMs’ maximum allowable cost lists, which set reimbursement rates to pharmacies dispensing generic prescription drugs. Those rates are sometimes lower than the wholesale cost to the pharmacy, causing the pharmacy to lose money. Many independent pharmacies, particularly those serving rural areas, have closed as a result, often leaving those communities unserved.   

To address these issues, many states have enacted legislation regulating PBMs. The Arkansas statute is not directed at ERISA plans. Rather, it regulates the prices at which PBMs reimburse pharmacies for generic drugs and requires disclosure in the price-setting process. Ark. Code Ann. §§ 17-92-507(a), (c). 

The Arkansas PBM statute is not preempted by ERISA.  First, the Arkansas statute does not “relate to” ERISA plans, because it does not make “reference to” or have a “connection with” ERISA plans. A state law has an impermissible “reference to” ERISA plans if it “acts immediately and exclusively upon ERISA plans” or if “the existence of ERISA plans is essential to the law’s operation.” Gobeille v. Liberty Mut. Ins. Co., 136 S. Ct. 936, 943 (2016). A state law has an impermissible “connection with” ERISA plans if it governs “a central matter of plan administration” or “interferes with nationally uniform plan administration.” Id.

The Arkansas statute does none of these things. It does not regulate ERISA plans at all, but instead regulates PBMs and applies regardless of whether the PBM’s customer is an ERISA or non-ERISA plan. Nor does the statute dictate ERISA plans’ health care choices. Although the statute could have an indirect effect on an ERISA plan’s choice of insurance, such state laws of general application are not preempted simply because they could indirectly affect ERISA plans. New York State Conf. of Blue Cross & Blue Shield Plans v. Travelers Ins. Co., 514 U.S. 645, 659-61 (1995). The court of appeals’ “implicit reference” standard invites precisely the sort of “limitless application” of ERISA preemption that we have rejected.  Gobeille, 136 S. Ct. at 943.

Second, the decision below fails to account for the federal deference to state health care regulation, an area “traditionally occupied by the States.” De Buono v. NYSA-ILA Med. & Clinical Servs. Fund, 520 U.S. 806, 814 (1997). We repeatedly have recognized the “historic primacy of state regulation in matters of health and safety.” Medtronic, Inc. v. Lohr, 518 U.S. 470, 485 (1996). These state police powers may not be superseded unless that was the “clear and manifest purpose of Congress.” Travelers, 514 U.S. at 655.

There is no such “clear and manifest” congressional intent here. On the contrary, Congress could not have intended the sweeping displacement of state health care regulation contemplated by the decision below. Congressional intent not to preempt is further evidenced by ERISA’s legislative history. In enacting ERISA in 1974, Congress imposed comprehensive federal regulation of retirement plans, but no substantive federal regulation of health care plans. See 29 U.S.C. §§ 1001(a), (c) (findings concerned with pension plans); H.R. Rep. No. 93-533, at 17-18 (1974); S. Rep. No. 93-127, at 1 (1974). The absence of such regulation of health care plans strongly suggests Congress’ intent not to displace state regulation of those plans. ERISA’s preemption provision must be interpreted in light of this dichotomy.

Finally, federal preemption of state PBM laws would result in a substantial regulatory gap.  Petitioner has demonstrated the adverse effect of PBMs on the viability of independent pharmacies and the statewide health care crises precipitated by their closures. Congress has yet to act comprehensively to address these issues. Congress could not have intended ERISA to invalidate these state laws without corresponding federal regulation.

I respectfully dissent.

The post On the Merits: <em>Rutledge v. Pharmaceutical Care Management Association</em> appeared first on Washington Legal Foundation.

Categories: Latest News

With En Banc Review, Tenth Circuit Foreshadows Potential Split with D.C. Circuit on Chevron Waiver

WLF Legal Pulse - Thu, 09/24/2020 - 4:18pm

By Jeremy J. Broggi, an Associate with Wiley Rein LLP. Prior to joining the firm, he served as a law clerk to Judge Gregory G. Katsas of the U.S. Court of Appeals for the D.C. Circuit and to Judge Richard J. Leon of the U.S. District Court for the District of Columbia. Before becoming an attorney, he served as a policy aide in the Bush-Cheney Administration.

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Federal administrative agencies often must interpret statutes they administer to determine how those statutes apply to new situations.  Out of respect for Executive Branch policy judgments and expertise, reviewing courts afford varying levels of deference to these interpretations.  Courts sometimes must resolve the appropriateness of such deference where the Government does not affirmatively seek it—or, particularly in more recent cases, where the Government affirmatively disclaims it.

Earlier this month, the U.S. Court of Appeals for the Tenth Circuit granted rehearing en banc in Aposhian v. Barr, to decide whether the Government can affirmatively waive Chevron deference. No. 19-4036 (10th Cir. Sept. 4, 2020) (order granting rehearing en banc). The court’s decision to rehear the case sets up a potential split with the U.S. Court of Appeals for the D.C. Circuit, which last year held that the Government cannot waive or forfeit Chevron. See Guedes v. Bureau of Alcohol, Tobacco, Firearms and Explosives, 920 F.3d 1 (D.C. Cir. 2019) (per curiam), cert. denied, 140 S. Ct. 789 (2020). Rehearing in Aposhian also provides the full Tenth Circuit an opportunity to account for the U.S. Supreme Court’s recent decision in County of Maui, Hawaii v. Hawaii Wildlife Fund, 140 S. Ct. 1462 (2020).  That decision, which came too late for panel consideration, suggests that Skidmore deference may be appropriate where the Government does not invoke Chevron.

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The Tenth Circuit and D.C. Circuit cases both arose from a decision by the Bureau of Alcohol, Tobacco, Firearms, and Explosives to classify bump stocks as machineguns under the National Firearms Act, 26 U.S.C. § 5845(b).  Specifically, the Bureau determined in a regulation promulgated after notice and comment that the statutory phrase “single function of the trigger” means a “single pull of the trigger” and that the term “machinegun” includes a bump stock that “allows a semi-automatic firearm to shoot more than one shot with a single pull of the trigger by harnessing the recoil energy of the semi-automatic firearm to which it is affixed.”  Bump-Stock-Type Devices, 83 Fed. Reg. 66,514, 66553–54 (Dec. 26, 2018).

Under longstanding Supreme Court precedent, agencies are entitled to varying levels of judicial deference for statutory interpretations.  The most deferential review takes its name from Chevron, U.S.A., Inc. v. Natural Resources Defense Council, 467 U.S. 837 (1984).  In Chevron, the Supreme Court held that “[w]hen a court reviews an agency’s construction of the statute which it administers” the reviewing court must begin by determining whether the statute is “silent or ambiguous with respect to the specific issue.”  Id. at 842–43.  If it is, then the agency’s interpretation will be upheld so long as it is “reasonable.”  Id. at 845.

Chevron is not the only form of deference.  Another standard originates in Skidmore v. Swift & Co., 323 U.S. 134 (1944).  Under Skidmore, the “weight” a court affords to an agency’s interpretation “depend[s] upon the thoroughness evident in its consideration, the validity of its reasoning, its consistency with earlier and later pronouncements, and all those factors which give it power to persuade, if lacking power to control.”  Id. at 140.  Skidmore is much less deferential than Chevron, and the choice between the two depends upon various factors including the procedural formalities observed by the agency.  See generally United States v. Mead Corp., 533 U.S. 218 (2001).

Not surprisingly, federal agencies typically invoke the more deferential Chevron standard.  But in the bump stock cases, the Government affirmatively disclaimed Chevron and asserted that the Bureau’s interpretation should be upheld as the “best” reading of the statute—advocating, in essence, for de novo review.  Indeed, at oral argument in Guedes, the Government went so far as to indicate that it would prefer that the court set aside the Bureau’s regulation rather than uphold it under ChevronRecording of Oral Argument at 42:38–43:45.

The Government did not explain fully its reasons for disclaiming Chevron.  There are, however, at least two potential consequences where a court accepts waiver.  One is that the agency action is less likely to be upheld.  Accordingly, a circumstance where the Government might be inclined to waive Chevron is where it felt compelled to take a particular administrative action (perhaps for political reasons) but does not actually prefer the result.

A second consequence of waving Chevron is that the reviewing court is more likely to find that the underlying statute is clear.  Courts generally do not see themselves as exercising interpretive discretion in statutory cases.  Thus, when forced to decide the best interpretation, a judge may describe his or her own decision as following unambiguously from the statutory text, thus effectively “locking in” the result.  See generally Natl. Cable & Telecomm. Ass’n v. Brand X Internet Services, 545 U.S. 967 (2005).  Accordingly, the Government might be inclined to seek this result where it wants to take an issue off the table for itself or for future administrations.

Whatever the Government’s motivation in the bump stock cases, the D.C. Circuit held that the Government could not waive or forfeit Chevron because Chevron is “a doctrine about statutory meaning” “not a ‘right’ or ‘privilege’ belonging to a litigant.”  Guedes, 920 F.3d at 22.  The majority distinguished contrary circuit precedent that held the doctrine waived by characterizing those cases as involving waiver by the agency, not its lawyers.  On the merits, the court found that the Bureau’s rule was a reasonable interpretation of the National Firearms Act.  (Judge Henderson dissented, arguing that Chevron should not apply because the National Firearms Act imposes criminal and civil penalties; she noted in passing the tension between the majority’s decision and circuit precedent permitting waiver.)

The Tenth Circuit also applied Chevron to uphold the bump stock rule.  Curiously, the panel majority found that the plaintiff’s arguments against Chevron were an “invitation” to apply the doctrine.  Aposhian v. Barr, 958 F.3d 969, 982 (10th Cir. 2020), reh’g en banc granted, judgment vacated, 19-4036 (10th Cir. Sept. 4, 2020).  The majority touched on the waiver issue in a footnote, remarking that “[t]o the extent that Chevron is a standard of review, we would need no invitation to apply it.”  Id. at n.6.

Judge Carson dissented.  On the issue of waiver, he quoted a recent statement by Justice Gorsuch arguing that “[i]f the justification for Chevron is that ‘policy choices’ should be left to executive branch officials ‘directly accountable to the people,’ then courts must equally respect the Executive’s decision not to make policy choices in the interpretation of Congress’s handiwork.”  Id. at 998 (citation omitted).  Under this view, the court should “supply its best independent judgment about what the law means” when the Government waives ChevronSee Guedes v. Bureau of Alcohol, Tobacco, Firearms and Explosives, 140 S. Ct. 789, 790 (2020) (statement of Gorsuch, J., respecting denial of certiorari)).

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The Tenth Circuit’s grant of rehearing en banc signals the full court’s intent to take up these issues.  The grant directs the parties to file supplemental briefs addressing four specific questions relating to the applicability of the Chevron doctrine, including whether it can be waived by the Government.

  1. Did the Supreme Court intend for the Chevron framework to operate as a standard of review, a tool of statutory interpretation, or an analytical framework that applies where a government agency has interpreted an ambiguous statute?
  2. Does Chevron step-two deference depend on one or both parties invoking it, i.e., can it be waived; and, if it must be invoked by one or both parties in order for the court to apply it, did either party adequately do so here?
  3. Is Chevron step-two deference applicable where the government interprets a statute that imposes both civil and criminal penalties?

***

  1. Is the bump stock policy determination made by the Bureau of Alcohol, Tobacco and Firearms peculiarly dependent upon facts within the congressionally vested expertise of that agency?

Aposhian v. Barr, No. 19-4036 (10th Cir. Sept. 4, 2020) (order granting rehearing en banc)

In addition to setting up a potential split with the D.C. Circuit on waiver, the grant provides an opportunity for the Tenth Circuit to account for the Supreme Court’s recent decision in County of Maui, which came too late for the panel’s consideration.  There, the Court considered an interpretation of the Clean Water Act issued by the Environmental Protection Agency after notice and comment.  Observing that “[n]either the Solicitor General nor any party has asked us to give what the Court has referred to as Chevron deference to EPA’s interpretation of the statute,” Justice Breyer’s 6-3 majority opinion cited Skidmore for the proposition that “[e]ven so, we often pay particular attention to an agency’s views in light of the agency’s expertise in a given area, its knowledge gained through practical experience, and its familiarity with the interpretive demands of administrative need.”  Id. at 1474.

Because the Supreme Court went on to find that that the EPA’s interpretation was not persuasive, Maui’s dictum does not definitively resolve the question of what should happen when the Government waives or forfeits Chevron.  Still, it may be telling that no member of the Court disagreed with the majority’s suggestion that Skidmore establishes the default level of deference where the Government does not invoke Chevron.  Moreover, unlike the Tenth and D.C. Circuits, the Supreme Court declined to analyze whether the EPA’s interpretation was of the type that could have otherwise received Chevron deference—providing yet another clue about its view on the permissibility of waiver.

Substantively, the Maui decision opens a potentially interesting middle ground between Chevron and de novo review.  If the en banc Tenth Circuit were to follow Maui and conclude that Skidmore applies where the Government declines to invoke Chevron, it could potentially preserve some of the perceived benefits of deference—benefits that are often important to regulated entities, such as uniformity in administrative and judicial understanding of what federal law requires, and appropriate consideration of an agency’s information-gathering functions and technical expertise.  Moreover, under Skidmore’s weaker deference, those benefits could be achieved without sanctioning the kinds of blatant agency flip flops that have become too common under Chevron.

Applying Skidmore where the Government is permitted to waive Chevron would also arguably be consistent with the theoretical underpinnings of both doctrines.  Unlike Chevron, Skidmore does not rest on a theory of implicit delegation of interpretive authority from Congress to the Executive Branch.  Rather, Skidmore acknowledges that agency decisions “constitute a body of experience and informed judgment” that result from pursuance of the functions authorized by Congress. 323 U.S. at 140.  Thus, even where the Government disclaims any intent to bind the courts to its interpretation of a federal statute, the reviewing court may nevertheless afford that decision an appropriate weight that gives at least some consideration to persuasive agency views.

Rehearing by the full Tenth Circuit provides an opportunity for briefing and consideration of these important issues.  However that court resolves them, the question of Chevron waiver appears to ultimately be headed to the Supreme Court for definitive resolution.

The post With <em>En Banc</em> Review, Tenth Circuit Foreshadows Potential Split with D.C. Circuit on <em>Chevron</em> Waiver appeared first on Washington Legal Foundation.

Categories: Latest News

WLF Urges Supreme Court to Review Closely Watched Securities Class Action

WLF Legal Pulse - Thu, 09/24/2020 - 2:39pm

“Without the ability to rebut class-wide reliance at the class-certification stage, most securities class-action defendants will have no choice but to settle.”
—Cory Andrews, WLF Vice President of Litigation

Click HERE for WLF’s brief.

(Washington, DC)—Washington Legal Foundation (WLF) today asked the U.S. Supreme Court to review, and ultimately to vacate, a decision of the U.S. Court of Appeals for the Second Circuit in a securities class action with far-reaching implications. WLF’s amicus brief was prepared with the pro bono assistance of Lyle Roberts and Daniel Sachs at Shearman & Sterling LLP.

Under the Supreme Court’s decision in Basic Inc. v. Levinson, a defendant can rebut the presumption of class-wide reliance in a securities class action by showing that an alleged misrepresentation did not actually affect the stock’s market price. The Supreme Court has also made clear, in Halliburton Co. v. Erica P. John Fund, that a defendant is entitled to rebut the Basic presumption at the class-certification stage.

The Second Circuit violated those precedents in this case. Holding that such an inquiry would necessarily reach the merits of materiality, the appeals court barred the defendant from being able to rebut price impact by pointing to the generic nature of the alleged misstatements (e.g., Goldman Sachs’s aspirational mission statement). As WLF contends in its amicus brief, that decision, if left to stand, would undermine Congress’s intent to limit the proliferation of meritless securities class actions.

Under the Second Circuit’s rule, WLF argues, a plaintiff need only claim that a misstatement affected the stock’s price—not by artificially inflating it when the misstatement was made, but simply by preventing the stock price from decreasing from a previously inflated level. That “inflation-maintenance” approach to class-wide reliance, if allowed to stand, would render class certification in a securities class action a near certainty.

The post WLF Urges Supreme Court to Review Closely Watched Securities Class Action appeared first on Washington Legal Foundation.

Categories: Latest News

An Evaluation of FirstNet’s Progress

U.S. Sen. John Thune, R-S.D., chairman of the Subcommittee on Communications, Technology, Innovation, and the Internet, will convene a hearing titled, “An Evaluation of FirstNet’s Progress,” at 10:00 a.m. on Thursday, September 24, 2020. The hearing will examine FirstNet and AT&T’s progress on building a nationwide public safety broadband network. The hearing will also review the Government Accountability Office’s most recent oversight report on FirstNet that was released in January 2020. 

 Witnesses: 

  • Captain Tony Harrison, Sheriff’s Office, Pennington County, South Dakota
  • Ms. Karima Holmes, Director, Unified Communications 
  • Mr. Edward Parkinson, Chief Executive Officer, FirstNet Authority
  • Mr. Jason Porter, Senior Vice President, FirstNet Program at AT&T 

*Witness list subject to change

Hearing Details:

Thursday, September 24, 2020
10:00 a.m.
Subcommittee on Communications, Technology, Innovation, and the Internet

This hearing will take place in the Russell Senate Office Building 253. Witness testimony, opening statements, and a live video of the hearing will be available on www.commerce.senate.gov

*In order to maintain physical distancing as advised by the Office of the Attending Physician, seating for credentialed press will be limited throughout the course of the hearing. Due to current limited access to the Capitol complex, the general public is encouraged to view this hearing via the live stream.

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House Small Business Committee News - Thu, 09/24/2020 - 10:00am

The Committee on Small Business Subcommittee on Innovation and Workforce Development will hold a hybrid hearing entitled “Paycheck Protection Program: An Examination of Loan Forgiveness, SBA Legacy Systems, and Inaccurate Data.” The hearing is scheduled to begin at 10:00 AM (EST) on Thursday, September 24, 2020 and will take place in room 2360 of the Rayburn House Office Building. Members who wish to participate remotely may do so via Cisco WebEx, information to be provided separately.

The SBA launched the Paycheck Protection Program (PPP) to provide an incentive for small businesses to keep their workers on the payroll. However, SBA’s legacy technology systems were not fully equipped to handle the unprecedented level of applicants, resulting in a number of technical issues with the implementation. Members of the Committee will have an opportunity to address these issues and the related concerns about the accuracy of the recently released PPP data, as well as learn more about SBA’s new system for PPP f orgiveness. 


To view a livestream of the hearing, please click here

Hearing Notice 

Hearing Memo 

Witnesses 

Mr. William Manger
Small Business Administration Chief of Staff
Associate Administrator, Office of Capital Access
Small Business Administration
Washington, DC


Committee Announces Markup on October 1

WASHINGTON – U.S. Sen. Roger Wicker, R-Miss., chairman of the Senate Committee on Commerce, Science, and Transportation, will convene an executive session on Thursday, October 1, 2020, at 10:00 a.m. in Dirksen Senate Office Building 106 to consider the following measures:

Agenda:

  • Authorization to subpoena the attendance of witnesses for purpose of a hearing: 
  • Mr. Jack Dorsey, Chief Executive Officer, Twitter
  • Mr. Sundar Pichai, Chief Executive Officer, Alphabet Inc., Google
  • Mr. Mark Zuckerberg, Chief Executive Officer, Facebook

*Agenda subject to change

Executive Session Details:

October 1, 2020
10:00 a.m.
Full Committee
Dirksen Senate Office Building 106

A live video of the markup and additional information will be available at www.commerce.senate.gov.

*In order to maintain physical distancing as advised by the Office of the Attending Physician, seating for credentialed press will be limited throughout the course of the hearing. Due to current limited access to the Capitol complex, the general public is encouraged to view this hearing via the live stream.

Revisiting the Need for Federal Data Privacy Legislation

U.S. Sen. Roger Wicker, R-Miss., chairman of the Committee on Commerce, Science, and Transportation, will convene a hearing titled, “Revisiting the Need for Federal Data Privacy Legislation,” at 10:00 a.m. on Wednesday, September 23, 2020. This hearing will examine the current state of consumer data privacy and legislative efforts to provide baseline data protections for all Americans. The hearing will also examine lessons learned from the implementation of state privacy laws in the U.S. and the E.U. General Data Protection Regulation, as well as how the COVID-19 pandemic has affected data privacy.   

Witnesses:

  • The Honorable Julie Brill, Former Commissioner, Federal Trade Commission
  • The Honorable William Kovacic, Former Chairman and Commissioner, Federal Trade Commission
  • The Honorable Jon Leibowitz, Former Chairman and Commissioner, Federal Trade Commission
  • The Honorable Maureen Ohlhausen, Former Commissioner and Acting Chairman, Federal Trade Commission

*Witness list subject to change

Hearing Details:

Wednesday, September 23, 2020
10:00 a.m.
Full Committee Hearing

This hearing will take place in the Russell Senate Office Building 253. Witness testimony, opening statements, and a live video of the hearing will be available on www.commerce.senate.gov.

In order to maintain physical distancing as advised by the Office of the Attending Physician, seating for credentialed press will be limited throughout the course of the hearing. Due to current limited access to the Capitol complex, the general public is encouraged to view this hearing via the live stream.

WLF Urges Ninth Circuit to Vacate Nationwide Injunction

WLF Legal Pulse - Wed, 09/23/2020 - 9:00am

“A court that issues a nationwide injunction is not resolving a judicial controversy but rather is engaged in policymaking.”
—Cory Andrews, WLF Vice President of Litigation

Click HERE for WLF’s brief.

(Washington, DC)—Washington Legal Foundation (WLF) today asked the U.S. Court of Appeals for the Ninth Circuit to vacate a wildly overbroad district court order that blocks all new oil line and gas line projects, nationwide.

The case arises from a suit by environmental activists over the dredge and fill that companies sometimes place in navigable waters as they construct utility lines. The underlying issue is whether the U.S. Army Corps of Engineers committed a procedural violation of the Endangered Species Act when it relied on nationwide permit 12 (NWP 12)—a streamlined protocol for permitting such dredge and fill activity—to allow the construction of the Keystone XL pipeline.

But in siding with the plaintiffs, the district court took an extraordinary step. Although the plaintiffs had challenged the use of NWP 12 for only the Keystone XL project, the district court vacated NWP 12 in full and enjoined its use for any project, nationwide. In subsequent briefing, even the plaintiffs encouraged the court to narrow its remedy. While the court later limited the scope of its order to “the constriction of new oil and gas pipelines,” that sweeping relief still lacks any legal basis.

As WLF contends in its amicus brief, the plaintiffs here lacked standing to obtain nationwide relief. Under Article III, a court may only resolve the case or controversy between the parties before it. A lone district court judge has no authority to block implementation of nationwide governmental policy. Nor did the plaintiffs attempt to show—nor could they—that they are somehow injured by every new oil and gas project approved under NWP 12. Rather than vacate NWP 12 and issue a nationwide injunction, the trial court should have simply remanded to the agency and its experts to fix the supposed procedural defect.

The post WLF Urges Ninth Circuit to Vacate Nationwide Injunction appeared first on Washington Legal Foundation.

Categories: Latest News

Committee Announces Hearing on NASA Missions and Programs

WASHINGTON – U.S. Sen. Roger Wicker, R-Miss., chairman of the Committee on Commerce, Science, and Transportation, will convene a hearing titled, “NASA Missions and Programs: Update and Future Plans,” at 10:00 a.m. on Wednesday, September 30, 2020. This hearing will focus on the National Aeronautics and Space Administration’s (NASA) progress on major missions, including the Artemis Program. The hearing will also provide an opportunity to discuss mission challenges caused by the COVID-19 pandemic and how the agency is adapting to meet those challenges.

Witness:

  • The Honorable Jim Bridenstine, Administrator, National Aeronautics and Space Administration

*Witness list subject to change

Hearing Details:

Wednesday, September 30, 2020
10:00 a.m.
Full Committee Hearing

This hearing will take place in the Russell Senate Office Building 253. Witness testimony, opening statements, and a live video of the hearing will be available on www.commerce.senate.gov.

In order to maintain physical distancing as advised by the Office of the Attending Physician, seating for credentialed press will be limited throughout the course of the hearing. Due to current limited access to the Capitol complex, the general public is encouraged to view this hearing via the live stream.

Ranking Member Cantwell Warns of Privacy Implications of New SCOTUS Justice, Urges Passage of Privacy Bill With Strong Consumer Protections

WASHINGTON, D.C.–U.S. Senate Committee on Commerce, Science, and Transportation Ranking Member Maria Cantwell (D-WA) reiterated the need for federal privacy legislation at today’s Commerce Committee Hearing. 

Ranking Member Cantwell said, The Supreme Court discussion that we're now having, I think will launch us into a very broad discussion of privacy rights and where they exist within the Constitution. To me this is incredibly important.”

The Consumer Online Privacy Rights Act (COPRA) that Ranking Member Cantwell introduced last year gives Americans control over their personal data; establishes strict standards for the collection, use, sharing, and protection of consumer data; protects civil rights; and penalizes companies that fail to meet data protection standards. The legislation also codifies the rights of individuals to pursue claims against entities that violate their privacy.

In the hearing, Cantwell criticized how other privacy bills do not fully protect consumers in the way COPRA does: “These bills allow companies to maintain the status quo, burying important disclosure information in long contracts, hiding where consumer data is sold, and changing the use of consumer data without their consent...Most strikingly, these bills would actually weaken consumer rights around the country by preempting stronger state laws.”

During the Q&A portion of the hearing, California Attorney General Xavier Becerra reiterated the importance of consumers being able to enforce their own rights saying, “As I said in quoting our state senator, a right without a remedy is really not a right at all, because you can have rights on paper but if you can never enforce them, because the one enforcer, the state attorney general, is too consumed with other enforcement actions, then your right, essentially, it’s in a privacy desert. And so, we have to make sure that consumers have their day in court, and they can enforce that right. And that's why it's so essential that along with our public enforcers, that we give consumers that opportunity. 

I guarantee you, consumers would prefer to have the California Attorney General move their case instead of them. But at the end of the day, if we don't have the capacity, then some of those consumers will take up the opportunity if they aren't given the right to go to court.”

The full text of the Consumer Online Privacy Rights Act (COPRA) can be found HERE

one-pager on the legislation can be found HERE

Ranking Member Cantwell has long been a leading advocate for online protections for American consumers. As Congress has worked to develop privacy legislation, she has repeatedly called for comprehensive privacy protections. She has led the fight to protect and restore net neutrality rules to keep a free and open internet. She has also championed the importance of investing in cybersecurity measures throughout the U.S. economy and pushed federal agencies like the FTC to take a more robust role in protecting Americans from privacy threats. 

Lastly, Senator Cantwell highlighted the importance of federal support for local journalism, and announced that the Commerce Committee Democrats will soon release a staff report describing in detail the dire economic straits that our critically important local journalism sector is facing. “I think local journalism in a COVID crisis is proving that it's valued information with the correct information on our local communities, and I think that this is something we need to take into consideration as we consider privacy laws and we consider these issues moving forward.”

###

U.S. Coast Guard Capabilities for Safeguarding National Interests and Promoting Economic Security in the Arctic

U.S. Sen. Dan Sullivan, R-Alaska, chairman of the Subcommittee on Security, will convene a hearing titled, “U.S. Coast Guard Capabilities for Safeguarding National Interests and Promoting Economic Security in the Arctic,” at 2:30 p.m. on Tuesday, September 22, 2020. This hearing will examine how the United States Coast Guard (USCG) 2019 Arctic Strategic Outlook is being resourced through acquisition plans, training exercises, and infrastructure investments and the importance of USCG presence in the Arctic as commercial sea traffic increases. The hearing will also address the security implications of Chinese and Russian interests in the Arctic and the current state of the USCG’s icebreaking capacity.  

Witness Panel 1: 

  • Admiral Charles Ray, Vice Commandant, United States Coast Guard

Witness Panel 2: 

  • The Honorable Sharon E. Burke, Senior Advisor, International Security Program and Resource Security Program, New America
  • Major General Randy “Church” Kee, United States Air Force, Retired, Executive Director, Arctic Domain Awareness Center 
  • Ms. Stephanie Madsen, Executive Director, At-sea Processors Association 

Hearing Details:

Tuesday, September 22, 2020
2:30 p.m.
Subcommittee on Security

This hearing will take place in the Russell Senate Office Building 253. Witness testimony, opening statements, and a live video of the hearing will be available on www.commerce.senate.gov.

*In order to maintain physical distancing as advised by the Office of the Attending Physician, seating for credentialed press will be limited throughout the course of the hearing. Due to current limited access to the Capitol complex, the general public is encouraged to view this hearing via the live stream.

Wicker, Collins Introduce Legislation to Provide Additional Relief to Air Transportation Sector

WASHINGTON – U.S. Sens. Roger Wicker, R-Miss., chairman of the Committee on Commerce, Science, and Transportation, and Susan Collins, R-Maine, chairman of the Appropriations Subcommittee on Transportation, Housing and Urban Development, and Related Agencies, today introduced the Air Carrier Worker Support Extension Act of 2020. The legislation would extend the airline worker Payroll Support Program (PSP) through March 2021.  

“The CARES Act successfully saved thousands of jobs that support the airline industry and provided these businesses with some breathing space after the drastic drop in air travel caused by the COVID-19 pandemic,” said Wicker. “However, the market has not turned around as much as we had hoped, and additional relief is needed to prevent more than 60,000 aviation sector employees from losing their jobs beginning October 1. This legislation would extend the critical Payroll Support Program to provide support for passenger air carriers, cargo air carriers, and aviation contractors. It would also preserve our nationwide service by requiring airlines to maintain routes as a condition for receiving assistance. Maintaining a strong national air transportation system is critical for today’s economy and the continued recovery.”

“The pandemic has had a devastating toll on the aviation industry, putting many American jobs at risk.  The Payroll Support Program that was included in the CARES Act saved over 700,000 of these jobs.  Our legislation to extend this lifeline would help frontline employees to continue to receive a paycheck and require airlines to maintain flights to every community they serve,” said Collins.  “As the Chairman of the Transportation Appropriations Subcommittee, I am committed to ensuring that all facets of our transportation network, including buses, motorcoaches, passenger ferries, and public transportation, have the resources they need to survive the current economic crisis.”

The Air Carrier Worker Support Extension Act would: 

  • Extend PSP through March 31, 2021;
  • Provide $28 billion in assistance for passenger air carriers, cargo air carriers, and airline contractors;
  • $11 billion in new appropriations
  • $17.4 billion in funding repurposed from unspent CARES Act PSP funds and loans
  • Preserve national air service;
  • Include CARES Act taxpayer protections, including requirements that some of the assistance be paid back as loans with interest.

The Air Carrier Worker Support Extension Act contains a technical correction to the CARES Act PSP to align airline payroll expense calculations for smaller air carriers with the exact standards and criteria applied to larger air carriers. The new PSP would also allow some airlines an opportunity to request payroll support based a different time window than was used under the CARES Act. This would ensure those passenger airlines that added jobs or increased worker wages and benefits during the later period would receive a more equitable amount of payroll support than they received under the first PSP. 

Click here to read the bill.

Senators Cantwell, Scott Introduce Bipartisan Bill to Charge TSA With Implementing Temperature Check Technology Nationwide

WASHINGTON, D.C.?–?U.S. Senate Committee on Commerce, Science, and Transportation Ranking Member Maria Cantwell (D-WA) and Senator Rick Scott (R-FL) today introduced bipartisan legislation that would require the Transportation Security Administration (TSA) to establish temperature screenings at airport checkpoints to promote safe air travel during the ongoing global COVID-19 pandemic.  

The Cantwell-Scott bill will charge the TSA with deploying a temperature check program across the United States by first testing technology in various scenarios before final rollout.

Said Senator Maria Cantwell, “Americans deserve all the available tools to fight COVID-19. For workers and the traveling public, a temperature check program provides important data. The legislation I introduced would require TSA to use innovative temperature screening technology to better protect passenger and worker health, and build public trust in the aviation system.”

Senator Rick Scott said, “As our economy re-opens and Americans begin traveling more, we have to do everything we can to make sure travel is safe. We also have to ensure consumers are protected from unfair pricing tactics from airlines. Since the beginning of the pandemic, I’ve been calling for temperature checks for passengers of mass transit as a common sense way to help keep Americans safe and healthy. This legislation will enable temperature checks while also ensuring airlines are flexible with customers who get sick following the purchase of a flight. If passengers are not allowed to fly due to a fever, airlines will have to work with the customer to reschedule or cancel the flight at no cost.”

Why temperature screening is important 

Because fever is a common indicator of many infectious diseases, the identification of fever through temperature (thermal) screening has been used around the world to identify and mitigate the spread of COVID-19, similar to how such screening was used during the severe acute respiratory syndrome (SARS) pandemic in 2003, the influenza A (H1N1) pandemic in 2009, and the Ebola outbreak in 2014. The use of temperature checks can help address the current risk of COVID-19 and prepare the United States for future public health risks.

Says Dr. Hilary Godwin, Dean of Public Health at the University of Washington: “Developing and implementing guidelines – like temperature screening -- that promote safe air travel is critical to defeating the virus and smoothing the transition back to more regular travel levels. This is especially important to have in place, at the very least until we get more reliable rapid response testing or a vaccine. I’m glad to see Senators Cantwell and Scott put forth this bipartisan solution, and I hope Congress will pass it.” 

According to data from the International Air Transport Association (IATA), more than 140 countries and territories world-wide have currently implemented temperature screenings, including eight of the top ten aviation markets by scheduled capacity – with the United States and Germany as the hold outs. International regulators, such as the International Civil Aviation Organization (ICAO), European Aviation Safety Agency (EASA), and World Health Organization (WHO), have also included thermal screening as part of the combination of measures that can be implemented to manage the risk of COVID-19 in air travel. Temperature screening is more than detection, these checks can serve to dissuade sick persons from traveling. 

How temperature-screening technology works 

Temperature checks can be deployed using contactless thermal camera-based systems that automatically screen large numbers of travelers passing through existing security checkpoints. An individual can expect a seamless thermal imaging screening experience because the systems are capable of detecting an individual’s temperature using cameras that relay information to monitored video screens that highlight individuals with elevated temperatures. Once detected, individuals are subject to secondary screening, typically conducted by medical personnel in a private or isolated location.  

The programs protect for individual privacy by limiting the information and images captured through the screening process and the length of time the images are retained.  

Screening programs are already underway in the United States as well. The Hawaii Department of TransportationLos Angeles World Airports (LAWA), and the Port of Seattle, amongst others, have piloted or deployed temperature screening programs to detect individuals with elevated temperatures. The pilot established by the Cantwell-Scott bill would support these ongoing programs with additional data and ensure consistency across airports nationwide.

In a program announced in July, Canada began a phased approach to implement temperature checks at airports, administered by the Canadian Air Transport Security Authority—the Canadian counterpart to the Transportation Security Administration. So far, the Canadian program has focused on touchless technology options that facilitate mass screening while managing any privacy concerns. 

Singapore is another country that successfully implemented temperature screenings early on in the coronavirus pandemic based on its experience using temperature checks as a health screening measure as far back as 2003 during the SARS pandemic. Singapore has implemented temperature checks well beyond air travel and uses them at entry to workplaces and elsewhere. The Government Technology Agency of Singapore (GovTech) has developed an automated screening solution, which can allow for a self-service temperature taking and eliminates the need for additional resources to conduct the screening. 

The Cantwell-Scott Fly Safe and Healthy Act of 2020 (S. 4623)           

The Cantwell-Scott legislation requires the Transportation Security Administration within 30 days to establish a pilot program to test temperature screening technology, building on international best practices for such screenings at airports:  

  • The 120-day pilot program would be conducted at TSA checkpoints at airports that represent diverse operating conditions, including those with various passenger throughputs.  
  • As part of the program, the Administrator would have to address protection of personal and medical privacy issues, exceptions for individuals who may have a fever unrelated to COVID-19, and for accommodating individuals with disabilities or observing certain religious practices;
  • The Administrator would have the flexibility to test various technologies, and would be required to ensure Transportation Security Officers are properly trained on how to use the technology and program procedures.
  • No later than 90 days after the pilot program concludes, TSA would be required to issue a policy to deploy program more broadly at airports throughout the United States until the end of the COVID-19 public health emergency.  
  • TSA would be permitted to partner with universities or academic institutions, national laboratories, public health authorities, or private entities to develop, evaluate, or improve technology for the purpose of detecting fevers or for conducting secondary screening.  
  • The Secretary of Transportation would be required to issue a rule to require airlines to notify passengers that they will be subject to temperature screening and to encourage them to not come to the airport if they have a fever. 

Any passenger who is denied entry to the sterile area of the airport—and therefore not allowed to fly—would be entitled to cancel or change their flight at no cost to them. Airport or airline employees with fevers not permitted in the sterile area of the airport would be subject to their employer’s leave policies and procedures.

Temperature screenings have other benefits as well 

In addition to the health and safety benefits, using advanced technology to check the temperatures of travelers and workers in an airport can help more people feel safe and confident while traveling.  

Currently in the United States, the U.S. Travel Association reports that 58% of leisure travelers said they planned to “stay-cation” rather than book flights for the remainder of the year. Looking forward, 55% of respondents told IATA they do not plan to travel at all in 2020. Destination Analysts, a market research company, found almost three quarters of respondents were personally concerned with contracting COVID-19; nearly half would replace airline travel with road trips; close to a third are not planning to travel by air before April 2021; and critically, only 18.5% felt safe flying.  

In a recent IATA survey of travelers, however, 80% indicated that temperature checks make them feel safer when traveling. Countries that employ temperature checks can experience a relative rebound in air travel. For example, China and Japan, countries with lengthy experience in using these screenings for pandemics, are at 92% and 55% scheduled capacity levels, as compared to the beginning of 2020. In fact, reports indicate that some Asian carriers will return to profitability in the third quarter. Within Europe, Germany (45%) and Sweden (33%) are not doing as well as France (61%) and Italy (56%), which are performing these checks. Other major aviation markets – United Kingdom, Russia, India, Turkey, and Indonesia – are employing thermal screenings.

According to estimates from Airlines for America and Compass Lexecon, a 10 percent increase in air travel demand could drive more than $1.533 billion in airline salaries, wages, and benefits over the course of three months. In turn, this increase in demand will create approximately 182,000 jobs in total – 45,620 directly at the airline, 74,746 across the supply chain, and 61,230 jobs more broadly, as additional spending makes its way through the economy. Along with these 182,000 additional jobs, as much as $4.8 billion in monetary benefits could be injected into the economy. 

section-by-section of the Fly Safe and Healthy Act of 2020 can be found here

Q&A sheet can be found here.

The following are quotes from additional stakeholders supporting temperature screening prior to traveling: 

Snohomish Health District Health Officer Dr. Chris Spitters“In addition to passengers, staff and other airport visitors self-screening and staying home if any symptoms develop, temperature checks could provide an added layer of defense against transmission in the air travel system. This is also something that the Snohomish Health District does at our headquarters for all staff and visitors. It may not catch every case of COVID boarding aircrafts, but it does add some additional protection above and beyond the existing strategies for maintaining passenger and crew safety with respect to COVID.”

National Safety Council President Lorraine M. Martin: “Screening must be a critical component of our collective response to the pandemic. We applaud this bipartisan action to keep both workers and the traveling public as safe as possible.”  

Transport Workers Union of America President John Samuelsen: “The only way our economy will recover from this pandemic is by ensuring the health of our transportation systems. Keeping airports and airlines free from COVID-19 will restore the faith of the travelling public in our airspace and save lives. This bipartisan bill, along with immediate federal aid, are essential steps for our country to climb out of the pandemic recession and back to prosperity. The Transport Workers Union applauds Senator Cantwell and Senator Scott for leading this effort on behalf of aviation workers and travelers.”

Association of Flight Attendants International President Sara Nelson: "The threat to U.S. aviation is the virus itself — the threat is both health and economic. We need a federal plan including health screenings to build confidence in air travel while providing continuous funding to keep aviation workers on the job, connected to our healthcare, and providing essential service to all of our communities. Aviation safety and security has always been a layered approach. We must take action to tackle the totality of the crisis."

AFL-CIO Transportation Trades Department President Larry Willis: "Aviation will never get back to normal until passengers feel safe flying, and until there are meaningful federal health and safety standards. This bill takes an important step toward safe flying during a pandemic, and does so without compromising the core security responsibilities of the TSA. Aviation, and the good jobs found in this industry, will be critical to the recovery of our economy, and we look forward to working with Congress to advance this legislation as well as meaningful economic relief for airline workers."

Port of Seattle Commission President Peter Steinbrueck: “The Port of Seattle deeply appreciates Senator Cantwell’s leadership on ensuring a consistent nationwide approach to keeping passengers and employees healthy and safe during the current pandemic. At Seattle-Tacoma International Airport (SEA), we have implemented a wide range of new [email protected] protocols, but we rely on the federal government to drive solutions throughout the entire air travel system. Directing TSA to pilot temperature screening will help us learn more about how this technology fits into a multi-layered approach to protect our customers and workers.” 

Airlines for America President and CEO Nicholas E. Calio“We are pleased to see Senator Scott and Ranking Member Cantwell’s attention?to this issue. U.S. carriers have been supporting the introduction of temperature checks as an added layer of protection during this public health crisis since June. U.S. airlines have implemented multiple layers of measures to help mitigate the spread of Covid-19, and we continue to believe that temperature checks are a key measure in assuring the traveling public and airline employees that the federal government is prioritizing their safety and well-being.” 

Chicago Department of Aviation Commissioner Jamie L. Rhee: "With more and more travelers returning to the skies, I applaud the Fly Safe and Healthy Act for creating a TSA pilot program, which would further enhance Chicago’s multilayered approach to airport safety and security -- as well as passenger well-being. These are uncertain times, and it has never been more important to provide reassurance to travelers that their journey will be a safe one -- a process that begins well before the airplane doors are closed. This program would nicely complement the robust efforts CDA and our many airport partners have already undertaken to provide the safest possible environment."

U.S. Travel Association Executive Vice President Tori Barnes: “The decline in travel has drained $2 billion per day from the U.S. economy and cost millions of jobs since the start of the pandemic, and restarting the travel sector is pivotal to a broader recovery,” said U.S. Travel Association Executive Vice President for Public Affairs and Policy Tori Emerson Barnes. “While safeguarding health must continue to be the priority, travel ought to be possible with solid protocols in place. This bill’s temperature check pilot program is a prudent step in exploring the framework that will allow travel to more broadly reopen.”

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