Weekly review | Regulation overview

IN NEWS

• The U.S. Department of Justice’s Drug Enforcement Administration has proposed a new rule that would reclassify marijuana from Schedule I to Schedule III of the Controlled Substances Act. This rule reflects a scientific and medical review conducted by the Department of Health and Human Services (HHS) in response to President Joe Biden’s request to review the marijuana schedule. HSS took into account factors such as the accepted medical use of marijuana, its potential for abuse, and its potential to create physical or psychological dependence. Rescheduling marijuana sales would not legalize marijuana for adult use, but it would classify marijuana as certain prescription drugs and allow some federal tax breaks for marijuana businesses.
• South Carolina Governor Henry McMaster signed a bill banning gender-affirming care for minors. The law prohibits doctors from providing “sex reassignment procedures” such as puberty blockers, cross-sex hormones, and sex reassignment surgery. The law only applies to these activities if they are performed “to help a person physically change gender,” and doctors can still perform them to treat diseases such as prostate or breast cancer. South Carolina is the 25th state to prohibit or restrict gender-specific guardianship of minors.
• The Consumer Financial Protection Bureau (CFPB) has issued an interpretive rule clarifying consumer protections available under “Buy Now, Pay Later” loans, which allow consumers to purchase a product entirely with credit and a down payment with the expectation that they will pay off the remainder of the loan over several installments . A CFPB study found that “Buy Now, Pay Later” loans encourage over-extensions and excessive debt accumulation. The rule clarifies that consumers are entitled to many of the same Truth in Lending Act protections that apply to traditional credit cards. For example, lenders must disclose information specifying fees, pricing structures and their rights regarding bill disputes and refunds.
• The U.S. Department of Transportation’s Federal Railroad Administration (FRA) announced two final rules requiring railroads to “develop certification and training programs for train dispatchers and signal workers.” These rules reflect the Biden administration’s ongoing efforts to strengthen rail safety in light of recent train derailments and data showing concerns among rail workers, their families and the general public. The regulations require railroads to submit certification programs to the FRA to assess competency and safety and provide employees with periodic safety training. Transportation Secretary Pete Buttigieg said the rules would ensure there are “competent, skilled teams managing rail operations.”
• The US Federal Communications Commission (FCC) issued a final regulation that restored the agency’s jurisdiction over “broadband Internet access services.” The FCC reclassified these access services as telecommunications services under Title II of the Communications Act. This provision also reinstated prohibitions on manipulating the display of content access services based on paid arrangements with these content providers. Additionally, the rule establishes general standards of conduct for access providers that will operate on an “individual basis” to address access provider policies that are not expressly addressed in the rule. Some lawmakers have described this regulatory change as a step toward a “fast, open and fair” internet for all consumers.
• The Centers for Medicare and Medicaid Services has proposed a rule that would establish a new mandatory Medicare payment model to test the impact of outcome-based incentive payments on the kidney transplant system. The Increasing Access to Organ Transplantation Model (IOTA Model) would test whether incentive payments paid to participating kidney transplant hospitals would increase access to kidney transplants for patients with end-stage renal disease while maintaining quality of patient care and reducing Medicare spending. The IOTA model aims to increase access to kidney transplants, improve the quality of care for transplant seekers, reduce disparities among those undergoing transplantation, and increase the efficiency and capacity of participating hospitals.
• The U.S. Department of Energy has published final regulations changing the procedures for including your Social Security Number (SSN) on documents mailed from the Department of Energy. These changes bring the Department of Energy into compliance with the SSN Fraud Prevention Act of 2017 regarding mail restrictions. However, the rule allows the Department of Energy to include SSNs on documents if inclusion of the SSN is “necessary.” The rule defines necessity as when it is required by law or when it meets a “compelling business need.”

WHAT WE ARE READING THIS WEEK

• In the Brookings Institution report, Zoe Wynn, former research fellow in the Management Studies Program at The Brookings Institution, Hannah Fried, executive director of All Voting is Local, and Norman Eisen, senior research fellow in the Management Studies Program at The Brookings Institution, argued that ​​confidentiality laws, if codified in state law, could help protect women election officials amid an expected surge in voter denialism in the 2024 presidential election. Wynn’s team explained that women election officials face the most threats and harassment from voter denialists , which are typically male-generated and often contain sexual or misogynistic language. Wynn and her co-authors noted that given the overrepresentation of women among election staff, these threats raise concerns about election security. Wynn’s team suggested a gendered solution to the problem: adopting confidentiality laws in state legislatures to protect the personal information of women election officials, modeled after the 1994 Violence Against Women Act.
• In a report published by the Urban-Brookings Tax Policy Center, Janet Holtzblatt and Robert McClelland, senior fellows at the Tax Policy Center, and Gabriella Garriga, research analyst at the Tax Policy Center, examined racial disparities in benefits families receive from the U.S. Mortgage interest deduction under the Internal Revenue Code . Holtzblatt’s team found that in 2019, Black families received 54% and Latino families 38% of the average benefit for all families, while white families received 21% more than the average benefit. Although upcoming changes to the Tax Cuts and Jobs Act will double the percentage of all families claiming this deduction, racial disparities in benefits will not significantly decrease. Holtzblatt and her co-authors suggested that President Joseph Biden’s proposed tax credit for first-time homebuyers could help close the racial homeownership gap and improve access for Black and Latino families to tax breaks such as the mortgage interest deduction.
• In a forthcoming article in the Georgetown Journal of International Law, Francesco Paolo Patti, professor of law at Bocconi University, discussed the European Union’s regulations on the market for cryptographic assets (MiCA) and their potential impact on initial coin offerings (ICOs). An ICO raises funds for a company or project by offering the public the option to invest in cryptocurrency, as is the case with an initial public offering for public companies. Patti explained how legal uncertainty in recent years has led to fewer ICOs and says regulations such as MiCA could cause the number of ICOs to increase again. For example, Patti described how MiCA standardizes information published about crypto assets in ICOs and provides for legal liability for incomplete or misleading information, which can better help investors compare assets and make informed investment decisions. Patti concluded that these regulations could cause a resurgence of ICOs.

EDITORS’ CHOICE

• In the essay in Regulation overview, Andrew Garber, general counsel for the Brennan Center for Justice’s Voting Rights and Elections Program, and Will Wilder, Singer Fellow for the Brennan Center for Justice’s Voting Rights and Elections Program, argued that election officials’ regulatory discretion is essential to protect access to vote. Garber and Wilder explained that this regulatory discretion allows election officials to protect access to voting, for example by allocating resources to increase accessibility for voters with disabilities or establishing rules prohibiting voter obstruction or harassment. Garber and Wilder argued that in the wake of extraordinary efforts by election officials during the Covid-19 pandemic, many state legislatures have sought to limit election officials’ regulatory powers, which would threaten their ability to protect voting access.