Regulatory Playbook | Pillsbury Law
Regulatory Playbook
Inside analysis direct from Washington, DC
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Regulatory Playbook

Inside analysis direct from Washington, DC

Welcome to Pillsbury’s Regulatory Playbook, where you’ll find news and insights on the regulatory trends that are driving markets and shaping businesses. Here, Pillsbury’s market-leading regulatory group illuminates critical developments at the intersection of law and policy. If you need to know what’s happening, why it’s happening and how to respond, consult the Playbook.

Trending Issues

FCC Proposes Action on Scam and Spam Text Messaging
In late September, the Federal Communications Commission (FCC or Commission) took a significant step toward reducing the amount of scam and spam text messages Americans receive on their mobile devices. In a wide-ranging Notice of Proposed Rulemaking (NPRM or Notice), the FCC seeks comment on dozens of questions, ideas and tentative conclusions that will, if the agency decides to move forward, inform rule changes affecting how wireless carriers must deal with malicious robotexts.

Prepare for Arrival: Aviation Finance Transitions to SOFR
Term SOFR emerges as the new market standard for aviation financing and leasing transactions.

DOE Announces $50 Million Award for the Design of a Fusion Pilot Plant
The September 2022 launch of this public-private partnership is the first step toward realizing the Biden Administration’s bold decadal vision for commercial fusion energy.

Modified DC Non-Compete and Anti-Moonlighting Law to Take Effect October 1, 2022
In January 2021, DC enacted a sweeping ban on almost all employer restrictions against employees engaging in other compensated work either during or after employment. In response to employer concerns, the applicability date of that law was repeatedly pushed back, so it never went into effect. On July 27, 2022, Mayor Bowser signed into law the Non-Compete Clarification Amendment Act of 2022 (the Act), which significantly updates and narrows the scope of the prior restrictions. Most notably, the Act:

DHS to Boost State and Local Cybersecurity Programs with $1 Billion in Grant Funding
On September 16, 2022, the Department of Homeland Security (DHS) announced a Notice of Funding Opportunity (Notice) for a “first-of its-kind” program providing cybersecurity grants for state, local and territorial governments across the country through the State and Local Cybersecurity Grant Program (SLCGP). The agency is poised to provide similar assistance to tribal governments through the Tribal Cybersecurity Grant Program (TCGP), which is expected to be announced in the coming months.

NRC Preliminary White Paper on Nuclear Fusion Indicates Paths for Regulatory Options
A September 2022 Preliminary White Paper issued by NRC Staff indicates that the agency is considering the option of regulating commercial fusion technologies via a risk-informed framework using 10 CFR Part 30.

What to Consider When Strategically Implementing the SEC’s New Pay for Performance Rule

Major Rule Changes
The specifics of the SEC’s new rule have been widely reported, but at a high level the SEC’s new pay versus performance rule, adopted August 25, 2022, requires a new table and narrative/graphical disclosure comparing “actually paid” compensation against company performance.

Proposed Rule to Designate Two PFAS Chemicals as Hazardous Substances Stands to Up the Ante for Site Remediation
On Friday, August 26, 2022, the U.S. Environmental Protection Agency (EPA) released a pre-publication notice of a long-awaited proposed rule to designate two of the most-studied per- and polyfluoroalkyl substances (PFAS)—perfluorooctanoic acid (PFOA) and perfluorooctanesulfonic acid (PFOS)—as hazardous substances under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA).

The CHIPS and Science Act Offers Support to Advanced Nuclear and Fusion Industries
The Act includes significant funding to ensure long-term U.S. competitiveness in the advanced nuclear sector.

Federal Court Blocks Enforcement of Florida “Stop WOKE Act”
The court finds that the addition to the Florida Civil Rights Act turns the First Amendment “upside down.”

Workplace Safety Hazards in Retail Industry
OSHA has been turning its attention to workplace safety hazards in warehouses and retail stores.

General Services Administration Information Request Foreshadows Potentially Significant Rulemaking on Single-Use Plastic Packaging
Given the federal government’s buying power and wide use of plastic packaging, the GSA’s proposed rulemaking could have consequences for the plastics, packaging and shipping industries.

Inflation Reduction Act Revives Hope for Biden’s Climate Agenda
The far-reaching proposal would represent the largest legislative climate investment in U.S. history.

Historic $280 Billion Investment in Domestic Semiconductor Manufacturing and STEM Research and Development to Be Signed into Law
The legislation is the result of months of negotiations between Congressional Democrats and Republicans to support domestic semiconductor manufacturing and related research and workforce development efforts.

Senate Democrats Announce Breakthrough Bill on Energy, Climate, Tax Reform and Prescription Drug Pricing
The Inflation Reduction Act of 2022 would constitute a historic investment in the U.S. clean energy industry.

State Department Issues Two Open General Licenses Authorizing Reexports and Retransfers of Certain Defense Articles for Australia, Canada, and the UK
On July 13, 2022, as part of a new pilot program, the Department of State’s Directorate of Defense Trade Controls (DDTC) issued two open general licenses (OGLs) permitting certain reexports and retransfers of unclassified defense articles subject to the International Traffic in Arms Regulations (ITAR) within or between Australia, Canada, and the United Kingdom.

SBA Proposes Rule to Take Control of All Veteran-Owned Certifications
The Small Business Administration (SBA) has proposed consolidating and making significant changes to the Veteran-Owned Small Business (VOSB) and the Service-Disabled Veteran-Owned Small Business (SDVOSB) programs, including the elimination of self-certification.

Department of Labor Proposes Rule to Give Service Employees a Right of First Refusal under Successor Contracts
To avoid displacement of current service employees, the proposed rule will require contractors and their subcontractors to offer qualified employees a right of first refusal of employment under the successor contract.

Your Government Customer Is Considering a Default Termination: What Should You Do?
When government agencies threaten termination for default, applicable regulations offer strategies and defenses to help contractors protect their interests.

China Passes Long-Awaited Measures on Security Assessment for Data Export
On July 7, 2022, the Cyberspace Administration of China (CAC) of the People’s Republic of China (PRC or China) released the final version of the long-awaited Measures on Security Assessment for Data Export (Measures, “《数据出境安全评估办法》” in Chinese). The Measures specify the thresholds of data and information, the export of which is subject to CAC’s security assessment.

Changes to DC’s Universal Paid Leave Program and a Forthcoming Maryland Paid Leave Program
The DC Council significantly expands benefits for workers and reduces employer contributions, while Maryland adopts a different paid leave model.

Landmark Federal Privacy Bill Clears First Congressional Hurdle
American Data Privacy and Protection Act would require organizations to limit collection of personal information, grant consumers access to their own data, enhance data protections for children, mandate implementation of security measures and prohibit data holders from employing discriminatory algorithms.

Contractor Settles Cybersecurity-Related False Claims Act Suit for $9 Million
A seven-year long False Claims Act suit comes to an end after Aerojet Rocketdyne reaches a $9 million settlement agreement for its alleged false certification of compliance with cybersecurity requirements.

DoD Increases Focus on Cybersecurity Compliance
A recent DoD memorandum should serve as a warning to contractors that they need to focus on cybersecurity compliance now or risk serious consequences.

Corporate Transparency Act and Proposed Regulations: The Start of Applicability Is Coming upon Us Quickly
AML (Anti Money Laundering) reforms led to the Corporate Transparency Act.

SBA Proposes New Size Standards for 2022 NAICS Codes
The Small Business Administration’s proposed rule would adopt the latest NAICS revision issued by the Office of Management and Budget, creating 111 new industries by reclassifying, combining or splitting 156 existing industries.

Supreme Court Narrows Title IX Liability for Schools
By holding that emotional distress damages are not recoverable under certain antidiscrimination statutes, including Title IX, the Supreme Court has limited the liability of schools facing federal discrimination claims.

Update: Supreme Court Issues Opinion in West Virginia v. EPA
The Supreme Court rejected EPA’s Obama-era Clean Power Plan in a decision that has significant implications both for future attempts by EPA to regulate CO2 emissions and for other agencies attempting to promulgate rules that implicate “major questions.”

Department of Education Proposes New Regulations Under Title IX
Title IX of the Education Amendments of 1972 requires schools and institutions receiving federal funds (Recipients) to eliminate discrimination on the basis of sex in their education programs or activities. The Executive Branch first codified Title IX regulations under the supervision of Betsy DeVos, whose rules were criticized as making it difficult to protect Title IX complainants. On the 50th anniversary of Title IX, and following a year in conversation with educational institutions, students, advocacy organizations, and other stakeholders, the Department of Education (ED) issued a Notice of Proposed Rulemaking (NPRM) with proposed regulations that brings the scope of Title IX closer to the Obama-era guidance.

EPA Announces Stringent New Health Advisory Levels for Four PFAS Chemicals

On June 15, 2022, the EPA released drinking water health advisory levels for four per- and polyfluoroalkyl substances (PFAS): PFOA, PFOS, PFBS and GenX. The announcement reflects the Biden administration’s continued push to regulate PFAS.