Biden administration seeks to push regulatory change in 2022 | Blogs | Coronavirus Resource Center: Back to Business
The first year of the Biden administration marked the passage of major spending programs, including the US bailout and the Infrastructure Investment and Jobs Act. Still, with President Biden’s social spending package, the Build Back Better Act, currently stalled in the Senate, the administration hopes to implement its agenda as much as possible through regulatory action. In 2022, with a slate of new decision makers appointed to federal agencies and less than a year before the midterm elections, a slew of new regulations are about to be proposed.
In 2021, the value of cryptocurrency skyrocketed and offered novice investors the opportunity to get involved with few barriers to entry. With their presence now in the mainstream, the public treated them as if they were typical stocks or bonds, but their regulatory status was not seen as such. As a new and emerging technology, regulators attempt to regulate markets to provide investor protections and prevent financial crimes. So far, the Securities and Exchange Commission (SEC) and the Commodity Futures Trading Commission (CFTC) have taken the lead in regulating digital assets. January 26and, the SEC has introduced an expanded rule to regulate entities that trade using decentralized finance (DeFi) technology. Immediately, it drew backlash from pro-crypto SEC commissioner Hester Peirce, who called it a “Trojan horse” designed to regulate cryptocurrency. The proposed rule had a 30-day comment period, which recently ended on February 25and. Ultimately, Congress could step in with more comprehensive legislation to establish oversight measures.
While President Biden has called for more competition in US markets, his administration is taking action. The Treasury Department recently announced recommendations within the beer, wine and spirits industry to promote greater competition. Citing significant concentration within the beer industry, the regulations would aim to reform post-prohibition laws that have disproportionately affected small businesses and entrepreneurs. The Treasury ordered the Department of Justice (DOJ) and the Federal Trade Commission (FTC) to share much of the antitrust regulation. Although this regulation is still in its early stages, a proposed new rule could be published by the end of 2022.
During a House Agriculture Committee hearing in January, US Department of Agriculture (USDA) Secretary Tom Vilsack told committee members that “farmers deserve fair measure in the marketplace. , and they do not receive a just measure”. Following this, the USDA reviewed the publication of various competition-based regulations under its authority, focusing most of its attention on the “tournament system”. The tournament system is an incentive-based contract system between chicken farmers and meatpacking companies. The USDA cited the lack of both a competitive market and clear rules of engagement of the tournament system between farmers and companies. The USDA withdrew a Trump-era regulation on the tournament system, but it did not offer a more comprehensive rule to follow President Biden’s executive order aimed at increasing competition within the economy.
Health Care Regulations
A key aspect of President Biden’s Build Back Better plan is to allow Medicare to negotiate prescription drug prices. With its deadlock in the Senate, the Biden administration is looking for other ways to regulate drug prices. The FTC recently considered whether to study Pharmacy Benefit Managers (PBMs) and their drug pricing practices. Ultimately, the vote failed on a 2-2 vote. The Department of Health and Human Services (HHS) recently proposed a rule on new requirements for the 340B program’s administrative dispute resolution process. The rule would apply to all drugmakers and covered entities that participate in the 340B program. HHS also recently proposed a rule to establish new requirements to allow certain drugs to be marketed as non-prescription drugs. The goal of this rule reflects the Biden administration’s goal of increasing consumer access.
In late December 2021, the Environmental Protection Agency (EPA) announced that it would begin demanding stricter regulations regarding the use of ethylene oxide (EtO), citing that it is carcinogenic and can damage the brain. and the nervous system. EtO is a common chemical used in the sterilization of medical devices such as heart valves, syringes and catheters. The Obama administration sought to limit the use of EtO in 2016, but the regulations were reversed under the Trump administration. The rule could be officially announced in the coming months.
The Supreme Court ruled in late January that OSHA does not have the authority to mandate the COVID-19 vaccine or testing requirement under the Emergency Temporary Standard (ETS) for businesses with 100 employees or more. OSHA officially phased out the ETS on January 26.and. However, the vaccine or test requirement for healthcare workers, issued by CMS, has been upheld by the Supreme Court. CMS has begun implementing this requirement in all states. However, the mandate is currently the subject of ongoing litigation and could potentially be changed in the future.
OSHA said it will instead focus on creating a permanent rule on COVID-19 safety standards for the healthcare industry. The rule would include requirements such as mandatory mask-wearing, social distancing and cleaning procedures aimed at protecting healthcare workers. In June 2021, OSHA released a temporary rule on these requirements, but the rule expired in December 2021 and has not been renewed. Due to outside pressure from unions and organizations, the agency is poised to move quickly in creating a permanent rule.
As climate change initiatives are a crucial aspect of President Biden’s Build Back Better Act, the administration is now seeking to circumvent Congress to limit its effects. EPA Administrator Michael Reagan has publicly stated that they are looking for ways to regulate air and water pollution through various rules. Namely, the EPA seeks to regulate coal-fired power plants and accelerate the transition to alternative energy sources such as wind, solar, and hydrogen. Currently, the EPA has not yet formally proposed rules for coal and oil-fired power plants. However, the EPA is currently accepting comments and may issue a formally proposed rule in 2022.
The rule proposed by the EPA and the US Army Corps of Engineers to erase the Trump administration’s rules on waters of the United States (WOTUS) has received wide attention from Congress and the courts. The United States Supreme Court’s review of Sackett v EPA could have a significant impact on the proposal. Congressional leaders have called for a pause in the rulemaking process while the Supreme Court takes up the case. As with previous WOTUS rules, it is expected that there will be ongoing litigation and congressional investigation throughout the process.
The SEC has pushed for new regulations to require public companies to disclose their management of climate risk. First proposed in July 2021, the SEC would require public companies to disclose their climate change mitigation plans, greenhouse gas emissions and climate change risks to investors. However, since its proposal last July, the SEC has changed its projected release date several times, angering Democratic lawmakers, including Sen. Elizabeth Warren (D-MA). Democrats have urged the SEC to issue tougher guidelines that will allow them to make up for lost ground in the fight against climate change, as the fate of the Build Back Better Act remains unknown. The SEC said it plans to issue the guidelines in March, but that deadline could also slip.
Progressive Democrats and climate change activists, frustrated by the lack of movement on the Build Back Better Act, have urged President Biden to use his executive powers to declare a “climate emergency.” Rep. Earl Blumenauer (D-OR) co-authored The National Climate Emergency Act alongside Rep. Alexandra Ocasio-Cortez (D-NY) and Senator Bernie Sanders (I-VT). The bill would require President Biden to declare a national climate emergency. The mandate would allow the president to allocate funds from the Federal Emergency Management Agency (FEMA) to build renewable energy systems, stop crude oil exports and suspend offshore drilling. The White House said that nothing is excluded to fight against climate change, but no rules have yet been proposed. The bill is still before the House.
With a focus on regulatory change and the implementation of the bipartisan infrastructure bill, the Biden administration is poised to salvage its agenda as Congress continues to mull over the Build Back Better Act. A narrow Democratic majority in Congress, coupled with a bleak midterm election outlook for the party, has forced President Biden to look elsewhere to achieve his goals. To prepare for what lies ahead, the Foley Federal Public Affairs team is here to develop and execute advocacy efforts to help your business deal with any regulatory changes 2022 may have in store.