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OUR PERSPECTIVES

Regulatory agenda demonstrates the power of rulemaking in 2023



While all eyes are currently focused on the dynamics of kicking off the 118th Congress, this year is also poised to be busy in terms of forthcoming regulatory actions from the Biden administration. On January 4th, 2023, the Office of Management & Budget released their highly anticipated Fall 2022 Unified Regulatory Agenda – albeit over two months behind schedule. Since 1983, this publication from the White House has been released twice a year, with the intent of offering insight into forthcoming regulatory priorities from every administration. This year’s agenda lays out 2,651 rule changes spread across all federal agencies, with a wide array of impacts ranging from worker safety to climate change to energy standards to much more.


Especially in a divided Congress with very narrow majorities, the legislative process will be more complex, and it will take considerable time to gain the traction necessary to advance legislation with bipartisan and bicameral support. Thus, the administration will be focused now more than ever on using regulatory and administrative action to advance their agenda, and this effort will only grow more prominent as the White House seeks to move forward on their key priorities before the 2024 campaign cycle becomes the primary focus.


Furthermore, federal agencies will also continue to be focused on implementing the several large-ticket legislative packages that were signed into law in the first two years of the Biden administration – most notably the Infrastructure Investment & Jobs Act, the CHIPS & Science Act, and the Inflation Reduction Act. Implementation of the programs in these packages, as well as disbursement of the various funding mechanisms enacted, will continue to be a paramount priority for the administration.


Therefore, while it is a busy policy atmosphere with the new Congress, it is vital that entities do not lose sight of these forthcoming administration regulations that will have the potential for large impact throughout this year. The regulatory agenda for this year points to several notable actions across virtually every policy space, including the below as only a few examples:


Climate Change: The Securities and Exchange Commission (SEC) is planning to release rules that would require publicly traded companies to disclose climate-related risks in their financial statements. The agency is planning to issue these regulations by April. Separately, the Environmental Protection Agency (EPA) is planning to move forward with its phasedown of hydrofluorocarbons (HFCs), with regulatory action expected in September.


Cybersecurity: The Department of Defense is expected to roll out the highly anticipated regulations for its Cybersecurity Maturity Model Certification (CMMC) program in May this year. Additionally, the SEC is expected to issue final regulations for its proposed rules on cyber risk assessments and cyber incident disclosures in April.


Workers: There has been much focus over the past year on forthcoming changes from the Department of Labor on the rules for overtime pay, with a Notice of Proposed Rulemaking set to be released in May 2023. Furthermore, the Labor Department is planning to issue final rules on classifying independent contractors in the same month.


Transportation: The Department of Transportation is planning to issue a final rule on both greenhouse gas emissions and multi-pollutant emissions, in line with President Biden’s Executive Order on “Strengthening American Leadership in Clean Cars and Trucks.” Both rulemakings are expected in March.


Tobacco: While the Food & Drug Administration acted in 2022 to issue regulatory actions on menthol and flavored tobacco, stakeholders have been waiting for a final rule on increasing the minimum age for purchasing tobacco to 21 – an action which is now expected to take place in October this year. The same month, the FDA is also planning to release a rule that would implement limitations on how much nicotine can be in cigarettes.


Education: There are a number of issues that the Education Department plans to address through rulemaking this year, but the greatest amount of focus is on publication of a robust Title IX rule that would alter a number of issues under the jurisdiction of the statute. This action is expected in May this year.


Cryptocurrency: The Treasury Department is set to publish a rule on cryptocurrency reporting obligations – especially after changes made by the enactment of the Bipartisan Infrastructure Law. This regulation is expected in June.


WOTUS: The EPA and the Army Corps of Engineers are planning to publish a new definition for “Waters of the United States” in November.


As demonstrated by the highlights above, the regulatory agenda for 2023 is robust and covers a wide breadth of policy priorities. Although it will be a busy year for engaging with Congress on a number of legislative items, it will be critical for entities to remain informed of and involved in the regulatory process in order to be truly effective in advancing their policy platforms.



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