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Monday, November 8, 2010

Rulemaking Requirements and Authorities in the Dodd-Frank Wall Street Reform and Consumer Protection Act

Curtis W. Copeland
Specialist in American National Government

The Dodd-Frank Wall Street Reform and Consumer Protection Act (P.L. 111-203, July 21, 2010) contains more than 300 provisions that expressly indicate in the text that rulemaking is required or permitted. However, it is unclear how many rules will ultimately be issued pursuant to the act because, among other things, (1) most of the provisions appear to be discretionary (e.g., stating that an agency “may” issue a rule); (2) individual provisions may result in multiple rules; (3) some provisions appear to provide rulemaking authorities to agencies that they already possess; and (4) rules may be issued to implement provisions that do not specifically require or permit rulemaking.

Nearly 80% of the relevant provisions in the Dodd-Frank Act assign rulemaking responsibilities or authorities to four agencies: the Securities and Exchange Commission (SEC), the Board of Governors of the Federal Reserve System, the Commodity Futures Trading Commission (CFTC), and the Consumer Financial Protection Bureau. Many of the mandatory provisions specify the details of the rules to be issued, but many of the discretionary provisions allow the agencies to issue such rules “as may be necessary.” Most of the rulemaking provisions in the act do not indicate how the regulations should be developed, but some either require or prohibit notice-andcomment procedures before the final rule is issued.

Fewer than 40% of the rulemaking provisions in the Dodd-Frank Act indicate when the required or permitted rule should be issued or go into effect. Of the provisions with deadlines, four require rules to be issued within 90 days of enactment (i.e., by October 19, 2010), and five other provisions require rules within 180 days (i.e., by January 17, 2011). As of October 20, 2010, 10 final rules had been published in the Federal Register implementing the act, including six by the SEC and two by the CFTC.

Many of the government-wide rulemaking requirements (e.g., the Administrative Procedure Act) appear to apply to rulemaking under the Dodd-Frank Act, but the exceptions and exemptions to those requirements also apply. Other rulemaking requirements and controls (e.g., Executive Order 12866) are not applicable to the independent regulatory agencies like the SEC and the CFTC, who are responsible for issuing most of the rules under the act. Also, some of the rulemaking agencies do not receive congressionally appropriated funds, and therefore may not be subject to appropriations restrictions that Congress has used to control rulemaking.

Nevertheless, Congress has a number of oversight tools available to affect the nature of Dodd- Frank Act rulemaking, including confirmation hearings for nominees to head the agencies, oversight hearings, and letters to and meetings with agency representatives. Appropriations restrictions can be used with regard to agencies who receive appropriated funds. Congressional Review Act resolutions of disapproval can call attention to certain rules.

This report will not be updated. 

Date of Report: November 3, 2010
Number of Pages: 92
Order Number: R41472
Price: $29.95

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