Week in Review

IN THE NEWS

• The Florida Board of Education voted unanimously to ban teaching on gender identity and sexual orientation in all public school classrooms through the 12th grade. The ban does not extend to instruction that the state requires as part of its academic standards, nor does it prohibit instruction that is part of a school’s reproductive health class, but a student’s parents can exempt their child from that class. The ban builds on a law that Florida Governor Ron DeSantis signed last year banning most instruction of these topics in classrooms through the third grade level.
• The Federal Aviation Administration (FAA) updated its guidelines for space launch approvals to minimize congestion in national airspace. The FAA explained that “the substantial growth in the number of commercial space launches” has disrupted commercial flight operations, since each space launch requires closure of nearby airspace for two to four hours due to safety concerns. To balance demand for airspace near launch sites, the FAA will now consider space launch proposals using “objective factors” such as timing, location, and duration of the launch, as well as the number of commercial flights and passengers potentially affected. The agency encouraged space companies to schedule nighttime launches to minimize air traffic interference, and said that it will continue to seek input on the guidelines from government and commercial stakeholders.
• The U.S. Securities and Exchange Commission (SEC) voted 3-2 to reopen public comment on its proposal to expand the definition of “exchange” to include decentralized cryptocurrency platforms. This decision responded to criticisms from crypto firms that the proposal to alter the definition was vague and aimed at bringing decentralized finance platforms under the SEC’s purview. SEC Chair Gary Gensler clarified that most crypto platforms already fell under the existing definition of exchange and that the proposed expansion was instead primarily targeted at U.S. Treasury markets, where crypto brokers have operated like exchanges without being registered as such. Gensler stated that he “welcomes additional public comment” in light of this clarification.
• The New York State Board of Regents, which supervises public education in the state, voted unanimously to adopt a proposed rule barring public schools from using Indigenous names, logos, and mascots. The rule contains exceptions for schools operated by federal or state-recognized Indigenous tribes, as well as for any high school that makes a written agreement with an Indigenous tribe. Chief of the Unkechaug Indian Nation Harry Wallace applauded the rule and noted that Indigenous mascots can be “damaging to Native children, who see that as a humiliation of their culture and their way of life.”
• The National Highway Traffic Safety Administration (NHTSA) issued a notice of proposed rulemaking for comment on the Motor Vehicle Safety Whistleblower Act, a component of the Fixing America’s Surface Transportation (FAST) Act. As part of the FAST Act, Congress required NHTSA to establish regulations to administer its whistleblower program, which will enable motor vehicle industry employees to report problems with vehicles that may create unreasonable risk of death and serious injury. NHTSA acknowledged that although the rule is designed to promote safety, the formalized procedures may disadvantage whistleblowers not represented by counsel. The proposed rule, if finalized, would outline the procedures for reporting safety problems to NHTSA and explain the scope of the whistleblower program.
• The New York State Department of Financial Services (NYDFS) adopted a new rule that will start charging cryptocurrency firms registered in the state for the costs of annual supervision and examination. These fees will apply to entities holding a Bitlicense, a virtual currency business license issued by NYDFS, and will be based in part on the crypto firm’s size and complexity. Each crypto firm will be billed five times per fiscal year that begins April 1 and ends March 31 of each year. NYDFS Superintendent Adrienne A. Harris said the rule will help the Department expand its virtual currency unit as the cryptocurrency industry continues to grow and produce new digital assets.
• The U.S. Food and Drug Administration (FDA) issued a final order to modify the yogurt standard of identity final rule in response to an objection from the International Dairy Foods Association (IDFA). IDFA had objected to a provision of the final rule which required yogurts to have either a minimum titratable acidity of 0.7 percent or a maximum pH of 4.6 prior to filling with flavoring ingredients, such as fruit. FDA responded by eliminating the minimum titratable acidity requirement and allowing compliance only by meeting the pH requirements. Joseph Scimeca, Senior Vice President of Regulatory and Scientific Affairs for IDFA, stated that although the original rule could have discontinued many popular yogurts, such as “fruit-on-the-bottom” yogurts, the final order will allow for these products to “continue being made and sold, while ensuring the safety of yogurt.”
• The Animal and Plant Health Inspection Service (APHIS) issued a notice of proposed rulemaking for comment on its proposal to remove the requirements for certain cut flowers from importation regulations. Under the new rule, cut flowers from the chrysanthemum family—which carry the chrysanthemum white rust fungus—would no longer face any importation restrictions, and the fungus would no longer be eradicated domestically. APHIS reasoned that the rule does not risk spread of the fungus and can produce a positive economic impact, since it is more cost-effective to use fungicide when the fungus is detected locally than to restrict the importation of chrysanthemums altogether.

WHAT WE’RE READING THIS WEEK

• In an Urban Institute report, John Holahan, Institute Fellow at the Urban Institute, Erik Wengle, a research analyst, and Claire O’Brien, also a research analyst, found that competition for health care in most markets has kept insurance premiums and health care costs low. Holahan, Wengle, and O’Brien explained that most urban markets with six or more insurers experienced increased competition and reduced premiums, compared to markets with fewer insurance options. Holahan, Wengle, and O’Brien proposed that lower premiums in competitive markets may signal that existing provider networks are inadequate and that, in many markets, health care providers could potentially refuse to participate in health insurance plans and in turn increase the cost of care to individuals.
• In an article in the Administrative Law Review, Bridget C.E. Dooling, a professor at the George Washington University Regulatory Studies Center, and Rachel Augustine Potter, an associate professor at the University of Virginia, examined the often-overlooked role of private sector contractors in the agency rulemaking process. Dooling and Potter noted that though contractors handle various tasks at different stages in the rulemaking process and offer efficiency and expertise, they may also compromise “government capacity, accountability, and ethics.” Dooling and Potter emphasized the difficulty of deciding whether a government task is suitable for a contractor due to the “web” of guidance from the Office of Federal Procurement Policy. Dooling and Potter concluded that the influence of contractors in the rulemaking process warrants greater attention.
• In a Center for American Progress report, Lilith Fellowes-Granda, a senior policy analyst at American Progress, and Crystal Weise, a research associate at American Progress, emphasized the need for an independent Consumer Financial Protection Bureau (CFPB) in light of recent banking disasters. Fellowes-Granda and Weise explained that the U.S. Congress insulated the CFPB from political influence by providing its funding from the Federal Reserve, rather than annual congressional appropriations. The U.S. Court of Appeals for the Fifth Circuit, however, held that the CFPB’s funding source was unconstitutional, noted Fellowes-Granda and Weise. Fellowes-Granda and Weise argued that relying on Congress instead of the Federal Reserve for funding may undermine the independent enforcement function of the CFPB, leading to greater banking instability.

EDITOR’S CHOICE

• In an essay in The Regulatory Review, Carrie N. Baker, a professor in the Program for the Study of Women and Gender at Smith College, emphasized that politically motivated restrictions on mifepristone have blocked easy access to the pill, despite the safety of medication abortion. Baker argued that certain FDA limitations on providing mifepristone, including a requirement that the pill be dispensed only during in-person visits to certain health care facilities, represent unreasonable barriers to patients’ ability to access medication abortion. Baker concluded that allowing health care providers to mail mifepristone to patients after a telemedicine consultation is just as safe as handing the medications directly to patients.