Week in Review

IN THE NEWS

• President Joseph R. Biden announced the American Families Plan, which the Biden Administration calls an “investment in our children and families.” The Administration’s plan would provide universal preschool and affordable childcare, offer two years of free community college for all Americans, cut the cost of higher education for many Americans, and improve teacher training. In addition, the proposal would provide U.S. workers with paid family and medical leave and expand nutrition assistance to needy families. The plan would extend tax cuts and health insurance tax credits that benefit lower and middle class workers. The plan proposes tax increases to fund the package, including a new tax on capital gains and an increased tax rate returning the highest tax bracket to the Obama-era rate of 39.6 percent.
• The Centers for Disease Control and Prevention (CDC) updated its mask guidance for vaccinated individuals. Most individuals considered fully vaccinated—generally two weeks after their final shot—are not required to wear masks in most outdoor settings, according to the CDC’s new recommendation. The CDC however, still urges all individuals to continue wearing masks while indoors or in crowded outdoor settings, regardless of their vaccination status.
• President Biden signed the Advancing Education on Biosimilars Act of 2021, which U.S. Senator Maggie Hassan (D-N.H.) introduced into the Senate in February. The law directs the U.S. Food and Drug Administration (FDA) to provide educational materials about biosimilar products to health care providers, patients, and caregivers. A biosimilar drug has no clinically meaningful differences from an FDA-approved drug. Although biosimilars differ from generic drugs that contain the same active ingredient as the brand name drug, FDA requires that biosimilars be “highly similar” to the relevant FDA-approved drug. Christine Simmon, Executive Director of the Biosimilars Council said, “Education is a crucial step toward more widespread adoption of safe, effective, and more-affordable biosimilar therapies.”
• U.S. Secretary of Education Miguel Cardona issued a letter to top state education officials instructing them to identify youth experiencing homelessness and provide “wraparound services in light of the impact of the COVID-19 pandemic.” This week, the Education Department distributed $200 million to states to provide these services, which include academic, social, emotional, and mental health support. The Education Department will allocate a total of $800 million to assist youth experiencing homelessness under President Biden’s American Rescue Plan. Cardona noted that schools failed to “adequately engage students experiencing homelessness during pandemic-related school building closures” and urged states to take immediate action.
• The Occupational Safety and Health Administration (OSHA) sent a draft of new federal workplace safety standards to the Office of Management and Budget. With the emergency temporary standard, OSHA officials intend to protect the safety and health of workers during the coronavirus pandemic. Although President Biden directed the agency to issue new protections by March 15, a U.S. Department of Labor spokesperson reportedly claimed the agency delayed the release of the standards to get them right based on recommendations from other agencies.
• U.S. Department of Homeland Security (DHS) Secretary Alejandro Mayorkas directed his department to review processes for detecting and preventing domestic violent extremism. In a letter, Mayorkas cited the January 6 attacks on the U.S. Capitol and claimed that “domestic violent extremism poses the most lethal and persistent” terroristic threat to the United States. He stressed that responding to the evolving threat of domestic extremism is an “urgent priority” of the Biden Administration. Mayorkas tasked an internal team with developing recommendations to best address the threat.
• The U.S. Department of Health and Human Services (HHS) released guidelines that will allow more health care providers to prescribe buprenorphine—a medication that treats opioid use disorders—as overdose deaths rise during the pandemic. The drug helps reduce cravings for opioids, reduce withdrawal symptoms, and decrease the risk of death from opioid overdose. Tom Coderre, an acting assistant secretary at the Substance Abuse and Mental Health Services Administration, emphasized that the “guidelines are an important step forward in reducing barriers to treatment and will ultimately help more people find recovery.”

WHAT WE’RE READING THIS WEEK

• In a recent report, the U.S. Government Accountability Office (GAO) reviewed information available on the number and nature of private for-profit drinking water utilities and the government assistance provided to such utilities. Although the U.S. Environment Protection Agency (EPA) is responsible for collecting information on drinking water utility ownership, GAO researchers found that the agency’s information is inaccurate. GAO recommended that EPA correct and continually update the information it collects about the ownership of private water utilities. In addition, GAO recommended that EPA conduct a survey to “establish an updated, accurate baseline of drinking water utility information” for regulators to use for rulemaking and other purposes.
• In a recent report from the Congressional Research Service, legislative attorney Michael Foster outlined President Biden’s six executive actions responding to recent mass shootings. These actions included directing the Justice Department to issue two proposed rules regulating firearms. The first rule should “help stop the proliferation of ‘ghost guns’”––guns assembled from component parts without traceable serial numbers. Foster noted that the U.S. Bureau of Alcohol, Tobacco, Firearms and Explosives might change the definition of “firearm frame or receiver” through rulemaking to regulate ghost guns under federal law. The second rule should “make clear when a device marketed as a stabilizing brace effectively turns a pistol into a short-barreled rifle subject to the requirements of National Firearms Act (NFA).” Foster explained that the federal government regulates handguns such as pistols under the Gun Control Act while more dangerous weapons such as short-barreled rifles––intended for firing from the shoulder––under the NFA as it imposes more stringent requirements. Foster noted that current law does not clarify if or when a stabilizing brace effectively turns a handgun into a short-barreled rifle. The proposed rule called for by President Biden would eliminate this ambiguity.
• Some agencies, such as GAO, “exist to support Congress” and have the power to influence policy, yet academics often overlook their operations, argued Bridget C.E. Dooling of the George Washington University Regulatory Studies Center. In an article in the American University Law Review, Dooling claimed that one such overlooked operation is GAO’s expansion of Congress’s ability to disapprove executive agency rules under the Congressional Review Act (CRA). Congress may only overturn rules under the CRA, but it is not always clear which agency actions are rules. Although the CRA does not grant GAO authority to determine which agency actions are rules, Dooling explained that legislators have increasingly requested that GAO issue opinions on the matter. Legislators then rely on these non-binding opinions to bolster their argument that Congress can revoke the “rule.” Because Congress can regulate its own procedures, this practice is likely constitutional but deserves greater scrutiny, Dooling concluded.

FLASHBACK FRIDAY

• In an essay in The Regulatory Review, Anthony Braga of Northeastern University and Philip Cook of Duke University argued that the slogan, “guns don’t kill people, people kill people” is false because the type of gun that a shooter uses influences whether the victim lives or dies. Braga and Cook noted that in 1972, University of Chicago law professor Franklin Zimring found that as the caliber of the gun increases, so does the likelihood of victim fatality and named the phenomenon “instrumentality.” Braga and Cook replicated Zimring’s analysis using data from the Boston Police Department and, like Zimring, they found a “strong positive association between death rate and caliber.” Braga and Cook encouraged participants in the gun debate to treat the connection between the use of guns in shootings and increased fatality risk as “a measurable fact.”