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Regulation Digest

April 5, 2023

Vol. 12, No. 14

Editor: Nate Thompson

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Marketplace of Ideas

GW Regulatory Studies

- Comment on DEA’s Proposed Telemedicine Prescribing of Buprenorphine, Bridget C.E. Dooling

Washington Legal Fdn.

- HHS Faces IRA Implementation Risk Without Notice and Comment, Brenna E. Jenny et al. 


- Judicial Review Bars in the Patent System, Medicare, and Beyond, Laura Dolbow

American Action Forum

- Biden Regulatory Rollback Would Not Prevent Another SVB, Thomas Kingsley

- EPA Has Big End to March 2023, Dan Goldbeck

- A Comparative Analysis of Broadband Affordability Subsidies, Jeffrey Westling


- ACUS Releases FY2022 Data on EAJA Attorney’s Fees Awards, Harry M. Seidman

- Request for Comment: Identifying and Reducing Burdens in Administrative Processes, due by 4/17

American Prospect

- Why We Need a Public Interest Council, Saule Omarova

Bipartisan Policy Center

- Podcast: How Banking Instability Affects Housing Affordability, Mark Calabria et al.

Brookings Institution

- Robotic Rulemaking, Bridget Dooling & Mark Febrizio

C. Boyden Gray Center

- Podcast: Judge Glock and the Origins of the Novice Administrative State, Adam White et al.

Cato Institute

- SNAP Spending Doubles to $127 Billion, Chris Edwards

- Courts Should Protect the Right to Participate in Agency Rulemaking, Thomas A. Berry & Gregory Mill


- Summit for Democracy Highlights Need for Global Leaders to Address Tech Harms, Patrick Gaspard & Laetitia Avia


- Government, Expertise, and a Fair Chance in the Race of Life, Sidney A. Shapiro


- This Week in Ridiculous Regulations, Ryan Young

- House Passes Energy Bill to Increase Domestic Production, Ben Lieberman et al. 

Data Foundation

- Event: RegTech 2023 Data Summit: Data Modernization under the Financial Data Transparency Act, 4/11 (w/ RSC’s Bridget Dooling)

Federalist Society

- Video: Discussion on the FAR Council's Federal Supplier Climate Risks and Resilience Proposed Rule, Adam Gustafson et al. 

- DOL’s Independent Contractor Rule: A Quiet Threat to Federalism?, Alexander MacDonald

Free State Foundation

- Videos: Watch presentations of the FSF 15th Annual Policy Conf.


- Improper Payments Are A Continuing Concern

- HUD’s Increased 40-Year Term for Loan Modifications

Heritage Foundation

- Biden’s Energy Policies Will Lose the New Cold War, Diana Furchtgott-Roth


- The TikTok Debate Should Start With Reciprocity, David Moschella

Manhattan Institute

- An Economically Rational Energy Policy for the US, Nic Abouchedid

Mercatus Center

- A Taxonomy of State Accessory Dwelling Unit Laws, Emily Hamilton & Abigail Houseal

- Biden’s Medicare Shell Game, Charles Blahous


- Capital Controls and Trade PolicySimon P. Lloyd & Emile A. Marin

Pew Trusts

- US Seeks to Improve How it Measures Climate Resilience, Brian Watts

- Affordable Housing Broadband Challenges, Kathryn de Wit

Progressive Policy Inst.

- Understanding the Chip Export Controls, Jordan Shapiro & Michael Mandel


- AI Should Be Regulated, Ronald Bailey & Robin Hanson

- Blame Regulations, Not Foreign Buyers, for High Housing Costs, Christian Britschgi

R Street

- TikTok CEO Testifies Unpersuasively, Steven Ward

- What to Know About Naloxone, Stacey McKenna

Regulation In Numbers Project

- FGV Direito Rio Launches Hub for Understanding Regulatory Law in Brazil (in Portugese)

Resources for the Future

- Natural Resource Economics through the Lens of Racial Equity, Amy Ando et al. 

- Insights: Standards for Passenger Vehicle Fuel Economy, Benjamin Leard et al. 


- Event: Benefit-Cost Analysis for Beginners, 4/28


- Taxes Versus Quantities Reassessed, Larry S. Karp & Christian P. Traeger

- Agencies Regulating Risks, Lorenzo Allio & Nicoletta Rangone

The Regulatory Review

- Designing a Regulatory Check on Autonomous Vehicles, CeCe Coffey

- Reviewing the Regulation of Fake Reviews, Caroline Hackley et al. 

- The Supreme Court and the Future of the Internet, Amanda Shanor

- Event: Is It Time to Re-Regulate the Airlines?, 4/12

Urban Institute

- How to Improve Evidence to Drive Rural Policy and Investments, Corianne Payton Scally & Anne N. Junod

Agency Rulemaking Highlights

Strengthening Mercury Standards for Power Plants

The Environmental Protection Agency (EPA) is proposing to strengthen and update the Mercury and Air Toxics Standards (MATS) for coal- and oil-fired Electric Utility Steam Generating Units (EGUs). The proposed amendments are the result of EPA’s review of the May 22, 2020 residual risk and technology review of MATS. A public hearing is planned to be held during the comment period. Comments due 60 days following publication in the Federal Register.

Commercial Spyware and National Security Risks

President Biden signed Executive Order 14093 directing the U.S. government to not make operational use of commercial spyware that poses significant counterintelligence or security risks to the U.S. government or significant risks of improper use by a foreign government or foreign person. The order also encourages the development and implementation of responsible norms regarding the use of commercial spyware that are consistent with respect for the rule of law, human rights, and democratic norms and values.

Cybersecurity Risk Management Rule for Securities Participants

The Securities and Exchange Commission (SEC) is proposing to require securities market participants to address cybersecurity risks through policies and procedures and immediate notification and reporting to the SEC of the occurrence of a significant cybersecurity incident. The proposal would also require public disclosures to improve transparency with respect to cybersecurity risks and significant cybersecurity incidents. Comments due June 5.

Reinstatement of HUD's Discriminatory Effects Standard

The Department of Housing and Urban Development (HUD) issued a final rule reinstating its 2013 rule which formalized a burden-shifting test for determining whether a given practice has an unjustified discriminatory effect prohibited by the Fair Housing Act. In 2020, HUD published a rule that would have altered the standards set forth in the 2013 rule. However, a preliminary injunction prevented the 2020 rule from going into effect. This final rule reinstates and maintains the 2013 rule and rescinds the 2020 rule. Effective May 1.

Medicare FY 2024 Hospice Wage Index and Payment Rate Update

The Centers for Medicare & Medicaid Services (CMS) proposes to update the hospice wage index, payment rates, and aggregate cap amount for fiscal year (FY) 2024. The proposal aims to equip patients and caregivers with information to inform hospice selection, and solicits comments on ways to examine health equity under the hospice benefit. Additionally, the rule proposes to require hospice certifying physicians to be Medicare-enrolled or to have validly opted-out. Comments due May 30.

Copayment Exemption for Indian Veterans

The Department of Veterans Affairs (VA)  amended its medical regulations to implement a statute exempting Indian and urban Indian veterans from copayment requirements for the receipt of hospital care or medical services. The final rule also exempts such veterans from copayments for all urgent care visits. Effective April 4.

Extending Home Confinement After COVID Public Health Emergency

The Department of Justice (DOJ) issued a final rule affirming the authority of the Bureau of Prisons to lengthen the maximum amount of time for which a prisoner may be placed in home confinement after the expiration of the COVID-19 Public Health Emergency on May 11. Effective May 4.

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The Opinion Section

Jennifer Rubin: Feel Free to Spill the Beans, Ex-Employees. Your Former Boss Can’t Stop You.

Paul H. Kupiec: Thanks to Regulators, SVB Will Be the Most Costly Bank Failure in History

Peter J. Wallison: The US Needs a New Bank Supervisory System

Bloomberg Editorial Board: How Financial Regulators Should Respond to the Latest Banking Crisis

Michael Lyon: Bonuses to Executives at Failed Banks Must Be Clawed Back

Daniel Burge: Guaranteeing Bank Deposits is Risky — But it Beats the Alternative

Thomas Lenard: The FCC Has Too Much Power—and We All Pay

Robert Popovian & William Smith: A Federal Drug Discount Program for the Wealthy

Kirsten Axelsen & Michael W. Hodin: Medicine Price Setting Might Appeal to Voters But Will Cost Patients

Larry Allen: It’s Time to Shut Down the Technology Transformation Service

Ezra Klein: The Problem With Everything-Bagel Liberalism

Ruth Marcus: This Federal Judge May Be Hazardous to Your Health

Clyde Wayne Crews Jr.: Regulatory Reform’s Role In Addressing the Debt Limit

Noah Feldman: Regulating AI Might Require a New Federal Agency

Randolph May: The Affordable Connectivity Program: Extend It, But Mend It

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