Week in Review

IN THE NEWS 

• The Federal Communications Commission (FCC) adopted rules under the Infrastructure Investment and Jobs Act to address unjust practices that disproportionately impact consumers’ broadband access based on income, race, or national origin. For example, the rules include guidelines that states may use to increase broadband device programs, disseminate information, and boost participation in federal broadband affordability programs. The FCC explains in the final rule that it aims to address federal policies that hinder equal access to high-speed broadband services while emphasizing an approach that achieves Congress’s objective of providing broadband to historically unserved and underserved communities.
• The U.S. Department of Labor proposed a rule that would require retirement plans to implement automatic portability transactions when employees change jobs. Automatic portability transactions help workers keep track of their retirement savings accounts and improve retirement security by reducing cash-outs when workers change jobs. Lisa M. Gomez, Assistant Secretary for Employee Benefits Security, said the rule addresses the “need for automatic portability solutions that help ensure participants remain connected to their retirement savings when they change jobs.”
• The U.S. Food and Drug Administration (FDA) issued orders prohibiting two e-cigarette manufacturers from marketing and distributing their products in the United States. FDA emphasized that the companies’ marketing submissions both lacked adequate scientific evidence, including reporting on the likelihood of abuse, and omitted key e-cigarette ingredient details. Since 2020, FDA has authorized 23 e-cigarette devices but has denied more than 20 million applications for new tobacco products.
• The U.S. General Services Administration (GSA) granted authorizations to two electric vehicle supply equipment (EVSE) vendors—Chargie and ChargePoint—allowing them to begin building federal electric vehicle charging station infrastructure across the country. The GSA’s Administrator, Robin Carnahan, emphasized the significance of the approval, explaining that it provides assurance to federal agencies of the security of any electric vehicle charging stations that they install. The GSA, the agency responsible for government-wide vehicle contracts, saw a substantial 63 percent increase in electric vehicle sales between fiscal years 2022 and 2023, with over 5,800 orders being placed during the last fiscal year. The GSA announced that it plans to authorize six more EVSE vendors later this year as part of President Biden’s Investing in America agenda, which is designed to accelerate the nation’s clean transportation future.
• The U.S. Food and Drug Administration proposed guidance on coatings for orthopedic products. The guidance, if finalized, would recommend that orthopedic device sponsors provide additional data in their application to the agency if the product has a metallic or calcium phosphate coating. According to the guidance, sponsors should describe the coating and biocompatibility information, which would clarify if a chemical induces a harmful biological response in patients.
• The Federal Railroad Administration (FRA) issued a final rule requiring railroad companies to provide an emergency escape breathing apparatus to employees on freight trains transporting hazardous materials. The rule also mandates that railroad companies train crew members to mitigate inhalation hazards during hazardous material releases. FRA Administrator Amit Bose emphasized the importance of employee safety, as mandated by the Rail Safety Improvement Act of 2008. A regulatory impact analysis of the final rule determined that it will promote improved employee safety, injury prevention, and earlier public notification in hazmat release scenarios.
• The Municipality of Anchorage issued guidance recommending that homeowners remove snow from roofs as soon as practicable. The guidance explains that Anchorage has received reports of snow loads of over 30 pounds per square foot, which “is a lot of weight.” The guidance communicates that homeowners who observe obvious signs of distress, such as a sagging roof or strange noises, should remove the snow as soon as possible. Buildings with wood trusses built before 1990 and those constructed from wood with certain types of nails, the guidance suggests, pose a greater risk of failure.

WHAT WE’RE READING THIS WEEK

• In a forthcoming article, Emily Fletcher, Charles Larkin, and Shaen Corbet discussed how criminals and terrorists have exploited Bitcoin to finance terrorism and facilitate money laundering schemes. Bitcoin is well-suited for these purposes, Fletcher, Larkin, and Corbet explained, because it provides users with anonymity and an alternative payment mechanism to banks. In light of this problem, Fletcher, Larkin, and Corbet argued that Bitcoin should be classified as a technology, and that it should be regulated along with other private sector technology companies.
• In a forthcoming article, Herbert Hovenkamp, James G. Dinan University Professor at the University of Pennsylvania Carey Law School, evaluated courts’ use of structural breakups as a remedy for unlawful monopolization under the Sherman Act. Hovenkamp argued that for digital markets, traditional forms of “breakups” may not work, but that regulators can mandate asset sharing by imposing nonexclusive license or interoperability requirements. Hovenkamp concluded that although courts should still look first to injunctions when determining a remedy for monopolization, these types of “quasi-structural” remedies may also be useful in addressing digital violations of antitrust laws.
• In a recent article in the Yale Journal on Regulation, Shelley Welton, Professor of Law and Energy Policy at the University of Pennsylvania, along with her co-authors, law professors Joshua C. Macey and Hannah Wiseman, proposed a suite of reforms that would increase direct government oversight and accountability in the regulation of electric reliability. In their article, Welton, Macey and Wiseman traced the historic evolution of the North American Electric Reliability Corporation (NERC) and highlighted NERC as an example of industry led-governance. The article highlighted, however, that shifting reliability challenges in an era of grid decarbonization may require NERC to update how it oversees and ensures grid reliability.

EDITOR’S CHOICE

• In an essay in The Regulatory Review, Sangh Rakshita and Sofia Ranchordas argued that California’s existing anti-discrimination laws fail to protect ethnic groups from caste-based discrimination. Rakshita and Ranchordas argued that California Governor Gavin Newsom’s recent veto of Senate Bill 403, the latest attempt to outlaw discrimination based on ancestry, reflected a lack of understanding about the specificity of this type of discrimination and its significance for South Asians and other immigrant groups. Rakshita and Ranchordas argued that SB 403 should acknowledge the gaps in anti-discrimination protections, which include caste-based discrimination.