Week in Review

IN THE NEWS

• The U.S. Department of Justice issued a final rule modernizing its definition of a firearm to include “parts kits that are readily convertible to firearms,” otherwise known as ghost guns. The rule would subject ghost guns to the same regulations as any other firearm. This new rule requires manufacturers to add serial numbers, retailers to comply with tracing and record requirements, and potential purchasers to undergo background checks. The Justice Department expects this rule to mitigate the proliferation of unmarked firearms and aid law enforcement in relevant criminal investigations.
• President Joseph R. Biden announced that the U.S. Environmental Protection Agency (EPA) will temporarily allow for the sale of “E15” gasoline—gasoline that contains 15 percent ethanol compared to the 10 percent in standard gasoline—in the United States over the summer to “lower energy costs for working families.” The Clean Air Act prohibits the sale of E15 in the summer due to its effects on air pollution, but it also permits EPA to issue a waiver of this prohibition. President Biden acknowledged that although only a few thousand U.S. gas pumps currently use E15, his Administration plans to invest over $100 million in biofuel infrastructure. Both environmental nonprofits and oil companies have criticized the sale of E15 for violating a provision of the Clean Air Act that limits what type of fuel can be sold.
• The Idaho Supreme Court temporarily blocked a law that would have banned abortions performed any time after detection of a fetal heartbeat. Idaho’s law would also have allowed the family members of a person who received an abortion to sue an abortion provider for a minimum of $20,000 in damages. Idaho governor Brad Little had signed the bill into law in March, but Planned Parenthood petitioned the Idaho Supreme Court to stop the law from taking effect, arguing it is unconstitutional.
• The Transportation and Security Administration extended the federal mask requirement on public transportation until May 3, 2022. This extension adheres to Centers for Disease Control and Prevention (CDC) recommendations in response to rising COVID-19 cases resulting from the BA.2 subvariant, which accounts for more than 85 percent of cases in the United States. White House Press Secretary Jen Psaki, indicated that the CDC will consider a further extension in two weeks.
• Vice President Kamala Harris and U.S. Department of Labor Secretary Marty Walsh announced the Occupational Safety and Health Administration’s (OSHA) first ever program designed to protect workers from extreme heat hazards in the workplace. Under the program, 70 high-risk industries will be inspected for heat conditions and OSHA will engage in union outreach. This program supplements OSHA’s proposed rulemaking to create a federal heat standard which was announced in October. Secretary Walsh commented that “heat illness—exacerbated by our climate’s rising temperatures—presents a growing hazard for millions of workers,” and the Administration has made a commitment to workers’ safety.
• The Consumer Financial Protection Bureau (CFPB) proposed a rule to prevent consumer reporting agencies from including negative credit information stemming human trafficking abuses in survivors’ consumer reports. In its proposed rule, the CFPB noted that many victims of trafficking have adverse credit information due to coercion and abuse. CFPB director Rohit Chopra stated that survivors of human trafficking should not be “penalized for abuse they have endured” and noted the proposal will “ensure that survivors can work to rebuild their lives, including accessing credit, opening a bank account, and finding a job.”
• The Centers for Medicare & Medicaid Services (CMS) announced a final policy approving Medicare coverage of monoclonal antibodies to treat Alzheimer’s Disease in clinical trials. Under this policy, this class of drugs may be covered while their clinical benefit for treatment of Alzheimer’s is assessed. Given the prevalence of Alzheimer’s, Lee Fleisher, chief medical officer at CMS, emphasized the importance of ensuring access to this treatment. Currently, FDA has only approved one drug to treat Alzheimer’s, but there are three others in late-stage clinical trial development.
• Florida advanced two restrictions on abortion legislation—one that places a waiting period on people seeking an abortion and another that imposes a time limit to receive one. A Florida judge upheld a law that requires anyone seeking an abortion wait 24 hours after an initial consultation. In addition, Governor Ron DeSantis signed into law a ban on all abortions performed 15 weeks after gestation commences, except to save the life of a pregnant woman or prevent “substantial and irreversible physical impairment.” Kara Gross, legislative director and senior policy counsel of the ACLU of Florida promised “swift legal action to protect Floridians’ rights and defend against this cruel attack on our bodily autonomy.”
• The Kentucky legislature overrode Governor Andy Beshear’s veto of a bill that severely restricts access to abortion. The law, which takes effect immediately, bans abortions after 15 weeks, requires a “birth-death or stillbirth certificate” to be issued after an abortion is performed, and imposes procedural and logistical requirements on abortion providers. In vetoing the bill, Beshear wrote that he was concerned that the bill contained no exception for rape or incest and was “likely unconstitutional.”

WHAT WE’RE READING THIS WEEK

• In an article in the Administrative Law Review, Steven J. Balla and several coauthors examined three types of technology-enabled public comments received by agencies: mass comments, misattributed comments, and computer-generated comments. These methods can result in agencies receiving millions of comments, which Balla and his coauthors argued pose challenges for agencies in terms of deciding how to respond, allocating resources, and maintaining legitimacy in their proceedings. Balla and his coauthors also argued that agencies should develop policies that encourage legitimate participation and discourage misleading comments. Balla and his coauthors concluded that agencies should use new technologies to aid in comment management.
• In a Brookings Institution report, Nicol Turner Lee, senior fellow in governance studies, and Caitlin Chin, fellow at the Center for Strategic and International Studies, argued that greater privacy protections are needed to prevent law enforcement from abusing facial recognition software and harming communities of color. Turner Lee and Chin explained that facial recognition software is much less accurate when analyzing individuals with darker skin tones. In addition, Turner Lee and Chin contended that it is “virtually impossible” for an individual to opt out of inclusion in a facial recognition database. Turner Lee and Chin noted that the prevalence of facial recognition technology has “shifted the balance of power toward law enforcement agencies,” making it essential that local, state, and federal government agencies enact greater privacy protections to prevent its misuse.
• In an article in the Yale Journal on Regulation, David K. Hausman, a postdoctoral scholar at Stanford University and former attorney with the American Civil Liberties Union Immigrants’ Rights Project, assessed the efficiency of discretion in the Social Security Disability adjudicative review process. Looking at a dataset of these decisions, Hausman categorized the appellate process as comprising three stages that involve discretion: a claimant’s decision to appeal, the decision following the review of the appeal, and a decision made after a  case is remanded back to the initial adjudicator. In his assessment of three stages of review, Hausman concluded that appellate decisions are inconsistent because administrative judges defer too greatly to the factual findings of lower judges, but are too strict towards technical errors.

EDITOR’S CHOICE

• In an essay in The Regulatory Review, Phillip J. Cook, professor at the Sanford School of Public Policy at Duke University, and Jens Ludwig, professor at the University of Chicago Harris School of Public Policy, advanced an economic framework for quantifying the value of a reduction in gun violence to members of society. Cook and Ludwig conducted a national survey asking respondents how much they would permit their taxes to be increased to reduce gun violence. Cook and Ludwig contrasted their approach with the traditional public health framework, which assigns a dollar valuation to the injury and deaths caused by gun violence. Cook and Ludwig argued their approach represents a “shift in perspective from the sum of injuries to the value of community safety.”