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Regulation Digest

November 9, 2022

Vol. 11, No. 45

Editor: Nate Thompson

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GW Regulatory Studies

- Join Our Team: RSC Policy Analyst position open

- New 2021 Data at RegStats: 

Total Pages Published in Federal Register & in Code of Federal Regulations, Major Rules Published by Presidential Year

Free State Foundation

- The Adverse Impact of Municipal and Cooperative Internet Service on Entry and Competition, Michelle P. Connolly


- FDA Oversight of Substances Used in Manufacturing, Packaging, and Transporting Food Could Be Strengthened

- RFS: Actions Needed to Improve Decision-Making in the Small Refinery Exemption Program

Heritage Foundation

- FERC’s Proposed Candor Rule, Jack Fitzhenry

- Government Officials Need To Ban TikTok in the US, Jake Denton

Hoover Institution

- SCOTUS & Arguments for the Administrative State, Richard Epstein

Inst. for Policy Integrity

- How the Government Can Avoid Subsidizing Carbon-Intensive Hydrogen, Matthew Lifson


- Policymakers Should Not Fall for Musk’s “Town Square” Fallacy, Daniel Castro

- Data Divide or Digital Divide? Or Both?, Gillian Diebold

Manhattan Institute

- Diverging Bets, Steven Malanga

Mercatus Center

- Event: Demystifying AI, Its Impact on Finance and Regulation, 12/7

- Beware the Unintended Consequences of Subsidizing EV Charging Stations, Tracy Miller


- The Economics of Women's Rights, Michèle Tertilt et al.

Niskanen Center

- Refundability of Clean Energy Tax Credits in the IRA, Shuting Pomerleau


- Judge Declares Cryptotoken Requires Regulation by SEC, Brian Doherty

- Kansas Voters Could Give Legislature Power To Veto Executive Branch Regulations, Eric Boehm

- Title IX Due Process Protections Could Be Wiped Away by Ed Dept, Report Claims, Robby Soave

R Street

- Why Climate Lawsuits Have Not Succeeded, Josiah Neeley

- The High Price of Emergency Spending, Nan Swift


- Does Energy Star Certification Reduce Energy Use in Commercial Buildings?, Karen Palmer et al.

- Support for Clean Hydrogen & Nature-Based Solutions, Matt Fleck & Elizabeth Wason


- Spring 2023 Conference: Call for Abstracts


- The Ripple Effect of EU Disclosures Regulation in Financial Services Sector, Catherine Malecki

- The European Approach to the Regulation of the Internet of Things, Guido Noto La Diega

- Digital Asset Innovations and Regulatory Fragmentation: The SEC versus the CFTC, Yuliya Guseva & Irena Hutton

The Regulatory Review

- Perils of Comparative Administrative Law, Craig Green

- Policymaking Accountability and the Emerging Authoritarian State, Paul R. Verkuil

- Regulating Supervised Consumption Services, Caroline Hackley

Urban Institute

- Exploring the Relationship between Student Loan Forgiveness and Race, Bryan J. Cook & Alexandra Tilsley


- Major Questions Doctrine Reading List, Beau J. Baumann

- MQD, Nondelegation, and Presidential Power, Daniel Farber

- Democracy’s Chief Executive and the Separation of Powers, Christopher J. Walker

American Action Forum

- EPA’s HFC Proposal Tops Billion-dollar Week, Dan Bosch

- Congress Broke PAYGO, Gordon Gray & Rohit Ramesh

- Congressional Tech Priorities After the Midterms, Jeffrey Westling


- Many More Student Loan Borrowers to Get Discharges Through Disability, Mark J. Warshawsky

American Prospect

Tech Company Workers Should Unionize Immediately, Ryan Cooper

Bipartisan Policy Ctr

- How to Make College More Affordable and Recession-Proof

Brookings Institution 

- Could Elon Musk Grow to Like Regulation?, Tom Wheeler

- Getting Over Overdraft, Aaron Klein

- Event: Digital Asset Regulation: The State Perspective, 11/15

- Transparency is Essential for Effective Social Media Regulation, Mark MacCarthy

Cato Institute

- Reining in the Unreasonable ExecutiveWilliam Yeatman

- Taking the ‘Free’ Out of ‘Freelance’, Scott Lincicome

- How the Bitcoin White Paper Outperformed Dodd‐​Frank, Jack Solowey


- What Will Happen if Congress Fails To Further Fund COVID-19, Jill Rosenthal

- Ending the Subminimum Wage for Tipped Workers Would Benefit Everyone, Justin Schweitzer


- This Week in Ridiculous Regulations, Ryan Young

- A Dose of Reality Over “Zero-Emissions” Electric Vehicles, Ben Lieberman

- The Supreme Court Gets Another Chance to Rein in the Administrative State, Jessica Melugin & Mario Loyola


- The Supreme Court’s Earliest Pollution Cases, Daniel Farber

Federalist Society

- 4th Branch Podcast: Helix Energy v. Hewitt, David R. Dorey et al.

- Garrison v. US Dept. of Ed.: A Challenge to Biden’s Student Loan ForgivenessDiana Furchtgott-Roth & Caleb Kruckenberg

- Sackett v. EPA, Post-Argument SCOTUScast, Tony Francois et al.

- FedSoc National Lawyers Convention 2022 starts November 10. Videos and media toolkit available now!

Agency Rulemaking Highlights

Ukraine/Russia Related Actions

Presidential Memo to the Secretary of State authorizing drawdown of additional defense materials to assist Ukraine

Other Notable Actions

Opening the Federal Regulatory Process to More Voices

The Office of Information and Regulatory Affairs (OIRA) will hold an engagement session on November 17 from 12pm to 1pm ET to hear directly from the public about ways to improve participation in the regulatory process. The session will inform development of the United States’ Open Government National Action Plan—a set of public commitments the federal government is drafting with input from civil society to support a more equitable, transparent, and accountable government. RSVP for the November 17 engagement session.

Addressing Junk Fees and Deceptive Endorsements

The Federal Trade Commission issued a pair of advance notices of proposed rulemaking to address deceptive or unfair “junk” fees charged by businesses or organizations, and the use of deceptive reviews and endorsements. The junk fees, including hidden fees, are described as having little or no added value to the consumer and would reasonably be assumed to be included in the overall advertised price of a good or service. These fee practices can be found throughout the economy but appear to be particularly widespread in markets for travel such as hotels, room-sharing, car rentals, and cruises. Similarly, the Commission proposes to address deceptive marketing practices that make it difficult for shoppers to distinguish real product reviews and endorsements from fake ones. Deceptive reviews include those from people who do not exist, did not actually use or test the product, or who are misrepresenting their experience with it. Comments on both proposals are due January 9, 2023.

Protecting News Media from Compelled Disclosure of Sources

The Department of Justice (DOJ) issued a final rule amending its policies on the use of compulsory legal process, including subpoenas, search warrants, and court orders for the purpose of obtaining information or records from members of the news media. The rule also amends DOJ’s regulations regarding questioning, arresting, or charging members of the news media. The changes reflect the importance of a free press and the Department’s commitment not to unreasonably impair newsgathering. Effective November 3.

Phasedown of Hydrofluorocarbons

The Environmental Protection Agency (EPA) proposed a rule establishing a methodology for allocating hydrofluorocarbon (HFC) production and consumption allowances for the calendar years of 2024 through 2028. EPA is also proposing to amend the consumption baseline to reflect updated data and lessons learned from the HFC phasedown program thus far. The American Innovation and Manufacturing Act of 2020 authorized EPA to address HFCs through phasing down production and consumption, facilitating transition to next-generation technologies, and minimizing releases of HFCs. Comments due December 19.

Election Bars While Unfair Labor Charges Pending

The National Labor Relations Board (NLRB) issued an advance notice of proposed rulemaking to rescind and replace its rules and regulations governing the filing and processing of petitions for an NLRB-conducted representation election while unfair labor practice charges are pending. The rule also proposes to rescind an amendment specific to petitions in the construction industry which governs proof of majority support. The changes aim to better protect employees’ right to choose union representation and collective bargaining. Comments due January 3, 2023.

Medicare Payment Rates for Home Health and Renal Disease Programs

The Centers for Medicare and Medicaid Services (CMS) issued a final rule with routine updates to the Medicare home health payment rates for calendar year 2023 and finalizes the reassignment of certain diagnosis codes under the Patient Driven Groupings Model.

Separately, CMS issued a final rule updating the End-Stage Renal Disease (ESRD) Prospective Payment System for calendar year 2023 and the payment rate for renal dialysis services furnished by an ESRD facility to individuals with acute kidney injury.

A third final rule from CMS implements provisions of the Consolidated Appropriations Act, 2021, and makes revisions to Medicare enrollment and eligibility rules by deleting references to specific Medicare forms from the text of existing regulations to provide greater administrative flexibility. The rule also updates regulations affecting a state’s payment of Medicare Part A and B premiums for beneficiaries enrolled in the Medicare Savings Programs.

Most of the changes in the three CMS final rules become effective January 1, 2023.

The Opinion Section

WSJ Editorial Board: No Guardrails for Regulators

Jeffrey Kupfer: Banning Energy Exports is a Terrible Idea

Carlton Reid: Why are Slow Rental E-Scooters Speed-Regulated in Cities but Fast Motor Cars are Not?

Roger Valdez: Report Affirms More Housing Means Lower Rents and Prices

Patrick Gleason: How a Kansas Ballot Measure Could Motivate a GOP-Led Congress to Rein In the Administrative State

Jackson Ewing: Meeting Trade-offs for a Net-zero America

Zeynep Tufekci: We Pay an Ugly Cost for Ads on Twitter

Donald Luskin: The Feds Don’t Want You Betting on Elections

In the News

Governance & Politics

Financial Markets & Housing

Energy & Environment

Health & Safety

Business & Technology

Transportation & Infrastructure


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