FDA provides guidance addressing new COVID-19 variants, President Biden makes changes to the Paycheck Protection Program, and much more…
IN THE NEWS
The U.S. Food and Drug Administration (FDA) issued guidance for medical products targeting COVID-19 variants. The guidance specifically addressed vaccines, diagnostic testing, and therapeutic products meant to prevent, detect, or treat emerging variants of the virus that causes COVID-19. One of FDA’s recommendations allows vaccine developers to conduct shorter clinical trials for COVID-19 vaccines that are modified to prevent contracting the disease’s new variants. Janet Woodcock, acting FDA commissioner, reportedly stressed that new medical products may not be necessary to target new variants of COVID-19 depending on the efficacy of current vaccines.
President Joe Biden announced changes to the Paycheck Protection Program, including an application period exclusively for companies with fewer than 20 employees and a new loan calculation formula to make loans more accessible for sole proprietors, independent contractors, and self-employed individuals. The Administration will also now allow individuals with a non-fraud criminal conviction and individuals who have been delinquent on their federal student loans to receive funds through the program. In support of the changes, President Biden stated that “small businesses are the engines of our economic progress” and the “heart and soul of our communities.”
Illinois Governor JB Pritzker signed legislation that eliminates cash bail, prohibiting judges from setting bail for a defendant charged with a crime. Instead, judges will evaluate if suspects should be held in jail or released through a risk-assessment process. Governor Pritzker called the legislation “a substantial step toward dismantling the systemic racism that plagues our communities, our state, and our nation and brings us closer to true safety, true fairness, and true justice.” Amanda Pyron, executive director of The Network: Advocating Against Domestic Violence, praised the bill for “ensuring those accused of non-violent crimes are not punished for being poor.”
The Public Utility Commission of Texas ordered utility companies to offer deferred payment plans to consumers and to stop processing disconnections for non-payment. The order was reportedly the result of a meeting between state lawmakers of both the Republican and Democratic parties, the Utility Commission, and Texas Governor Greg Abbott, who has criticized the high electricity bills faced by consumers of variable pricing plans during the recent snowstorm and power outages. The order was one of a slew of recent regulatory waivers designed to help alleviate financial hardship for Texans, including automatic renewal of benefits under the Supplemental Nutrition Assistance Program, a waiver allowing expanded gasoline production, and the addition of 500 new plumbing licenses to help fix burst pipes across the state. Federal Energy Regulatory Commission Chairman Richard Glick stated that he is prepared to impose new mandatory standards to weatherize critical infrastructure in response to the recent storm.
The Supreme Court of the United Kingdom held that Uber drivers are not self-employed but deemed “workers,” which entitles them to certain rights and privileges under U.K. law even though they are not working under an employment contract. The Court noted that employment protection laws apply to vulnerable individuals who have little or no say over their pay and working conditions. Because Uber controls drivers through the Uber application, the Court ruled that drivers are strictly controlled by the company, entitling them to workplace protections including a minimum wage and paid annual leave. Yaseen Aslam, a plaintiff in the case and president of the App Drivers and Couriers Union, reportedly called the decision “a massive achievement” to “stand up against a giant.”
The Federal Aviation Administration issued an Emergency Airworthiness Directive requiring operators of airplanes equipped with Pratt & Whitney PW4000 engines to conduct thermal acoustic image inspections, which can find microscopic cracks in engine fan blades, before flight. The PW4000 engines have been tied to a series of reported mishaps, allegedly causing debris to rain down on populated areas and forcing a plan leaving Okinawa, Japan to make an emergency landing in December. The directive followed shortly after Japan’s Ministry of Land, Infrastructure, Transport, and Tourism ordered Japanese airlines to ground all planes with the PW4000 engines. At a press briefing, the National Transportation Safety Board presented the results of a preliminary investigation into the engines, which revealed that the engines experienced fan blade cracks that could be discovered by regular maintenance protocols.
The U.S. Environmental Protection Agency (EPA) issued preliminary determinations to regulate under the Safe Drinking Water Act two harmful substances known as PFOS and PFOA, which EPA has informally classified as “forever chemicals” because they do not break down naturally in the environment. EPA also issued a proposed rule that would require water utilities to monitor the amount of 30 additional similar contaminants and report their findings to the agency after two years. EPA indicated that it will use the data to determine whether federal limits on the amount of these substances in drinking water are needed to protect public health. EPA Acting Assistant Administrator for Water Radhika Fox celebrated the actions, saying that they “will underpin better science, better future regulation, and improved public health protections.”
Senator Bob Menendez (D-N.J.) reintroduced the Improving Corporate Governance Through Diversity Act, which would require public companies to disclose the gender and racial composition of their board of directors and executive officers to the Securities and Exchange Commissioner. The bill would also require the U.S. Securities and Exchange Commission to establish a diversity advisory group that would submit annual reports about the state of corporate diversity to the U.S. Congress. The U.S. Chamber of Commerce and several interest groups—including the National Urban League and American Bankers Association—endorsed the bill. When introducing the bill, Senator Menendez stated that “greater diversity in top corporate positions” is necessary for the United States to “compete with other leading economies” and “progress toward full inclusivity.”
Senators Mitt Romney (R-Utah) and Tom Cotton (R-Ark.) plan to introduce a minimum wage bill as a counterpoint to the Democratic proposal to increase the minimum wage to $15 per hour by 2025. After the pandemic ends, the bill would increase the minimum wage to $10 per hour over four years but would also require all employers to use an electronic verification service to avoid hiring undocumented workers. Senator Romney stated that the “federal minimum wage has not been increased in more than 10 years” despite the “rising cost of living.” Senator Cotton added that it was “unfair” that workers competed with undocumented immigrants, and that the bill would end “the black market” for undocumented labor.
WHAT WE’RE READING THIS WEEK
In an article in Stanford Law Review, Erin A Scharff and Joshua Sellers, law professors at Arizona State University, examined structural preemption, the means by which a state government displaces a local government’s autonomy over designing or changing its government institutions and processes for political participation. Arizona, for example, structurally preempted the city of Tempe, Arizona from implementing an ordinance requiring disclosures of large election donations after the Arizona legislature passed a conflicting bill. Instead, Arizona required the city to follow its bill. Scharff and Sellers argued that state officials, courts, and scholars should consider four key values—administrative cost, democratic accountability, democratic deliberation, and pluralism—when evaluating preemption disputes. A values-based approach, Scharff and Sellers noted, would highlight the political consequences of structural preemption for citizens better than the evaluative methods traditionally used by courts.
In an issue brief, Janet Weiner, co-director for health policy at the Leonard Davis Institute of Health Economics at the University of Pennsylvania, developed an overview of state and international long-term care programs to provide long-term care financing solutions to federal policymakers. Weiner and her coauthors explained that the current federal system in the United States leaves many people responsible for financing long-term care themselves. After analyzing long-term care financing solutions, Weiner and her coauthors offered policy recommendations for the alleviation of the financial and caregiving burden associated with long-term care.
In an article in The Journal of Things We Like (Lots), Jack Beermann, professor at the Boston University School of Law, drew a comparison between the challenges faced by patent examiners and those faced by regulatory agencies. Beerman cited research by Jennifer Freilich, a professor at the Fordham University School of Law, who argued that less deference should be given to U.S. Patent and Trademark Office determinations when challenged in court because patent examiners must rely upon voluminous disclosures and biased information provided by applicants when granting patents. Beerman argued that this informational challenge is comparable to that of administrative agencies, which frequently must review mountains of comments on a proposed rule. Beerman suggested that administrative law scholars consider this similarity when thinking about how much deference should be given to administrative agency rulings.
FLASHBACK FRIDAY
In an essay in The Regulatory Review, Susan Dudley, director of the George Washington University Regulatory Studies Center, argued that the public comment process on proposed regulations has provided stability and democratic accountability over the past decade. Dudley observed that recent presidential administrations have held significant policymaking power compared to Congress. She explained that after the Clinton Administration’s 1993 Executive Order 12,866, which required the Office of Information and Regulatory Affairs to review all significant regulatory actions, has remained largely unchanged. Dudley argued that by giving Presidents control over administrative agencies’ actions, the process of centralized review forces bureaucratic institutions to reflect democratic preferences.
