Upcoming Rules Pursuant to the Dodd-Frank Act: Spring 2011 Unified Agenda
Released: 2011-08-15T00:00:00

Summary:
Congress delegates rulemaking authority to agencies for a variety of reasons, and in a variety of ways. The Dodd-Frank Wall Street Reform and Consumer Protection Act (P.L. 111-203, July 21, 2010; hereafter the "Dodd-Frank Act") is a particularly noteworthy example of congressional delegation of rulemaking authority to federal agencies. A previous CRS report identified more than 300 provisions in the act that require or permit the issuance of rules to implement the legislation.
One way for Congress to identify upcoming Dodd-Frank Act rules is by reviewing the Unified Agenda of Federal Regulatory and Deregulatory Actions, which is published twice each year (usually in the spring and fall) by the Regulatory Information Service Center (RISC), a component of the U.S. General Services Administration (GSA), for the Office of Management and Budget's (OMB) Office of Information and Regulatory Affairs (OIRA). The Unified Agenda lists upcoming activities, by agency, in five separate categories or stages of the rulemaking process: the prerule stage, the proposed rule stage, the final rule stage, long-term actions, and completed actions. All entries in the Unified Agenda have uniform data elements, including the department and agency issuing the rule, the title of the rule, its Regulation Identifier Number (RIN), an abstract describing the nature of action being taken, and a timetable showing the dates of past actions and a projected date for the next regulatory action. Each entry also contains an element indicating the priority of the regulation (e.g., whether it is considered "economically significant" under Executive Order 12866, or whether it is considered a "major" rule under the Congressional Review Act).
This report examines the most recent edition of the Unified Agenda, which was published on July 7, 2011 (the second edition that RISC compiled and issued since the enactment of the Dodd-Frank Act). This report identifies upcoming proposed and final rules listed in the July 7, 2011, edition of the Unified Agenda that agencies expect to issue pursuant to the Dodd-Frank Act. (A previous CRS report identified the rulemaking actions that were listed in the December 2010 version of the Unified Agenda.) The Appendix lists these upcoming proposed and final rules in a table. The report also briefly discusses the long-term actions listed in the Unified Agenda, as well as some options for congressional oversight over the Dodd-Frank Act rules.

subsections: section_title: Introduction
paragraphs: Federal regulations generally result from an act of Congress and are the means by which statutes are implemented and specific requirements are established. The Dodd-Frank Wall Street Reform and Consumer Protection Act (hereafter, the "Dodd-Frank Act," P.L. 111-203 , July 21, 2010) is a particularly noteworthy example of congressional delegation of rulemaking authority to federal agencies. A previous CRS report identified 330 provisions in the Dodd-Frank Act that require or permit the issuance of rules to implement the legislation. Nearly 80% of these 330 provisions assign rulemaking authorities or responsibilities to one of four agencies: the Securities and Exchange Commission (SEC), the Board of Governors of the Federal Reserve System (FRS), the Commodity Futures Trading Commission (CFTC), and the newly created Consumer Financial Protection Bureau (CFPB).
The regulations that these and other agencies will issue pursuant to the Dodd-Frank Act are expected to have a major effect on how the legislation is implemented. As one observer put it, the rules would "turn reform into reality." Shortly after the legislation was enacted, another observer said, "In most pieces of legislation like this, the real teeth is in the regulations." Another said that the Dodd-Frank Act "is complicated and contains substantial ambiguities, many of which will not be resolved until regulations are adopted." An article in the New York Times stated that the legislation 
is basically a 2,000-page missive to federal agencies, instructing regulators to address subjects ranging from derivatives trading to document retention. But it is notably short on specifics, giving regulators significant power to determine its impact—and giving partisans on both sides a second chance to influence the outcome.
subsections: section_title: Mandatory and Discretionary Rulemaking Provisions
paragraphs: The manner in which Congress delegates rulemaking authority to federal agencies determines the amount of discretion the agencies have in crafting the rules and, conversely, the amount of control that Congress retains for itself. Some of the 330 rulemaking provisions in the Dodd-Frank Act are quite specific, stipulating the substance of the rules, whether certain consultative or rulemaking procedures should be used, and deadlines for their issuance or implementation. However, more than half of the 330 rulemaking provisions in the Dodd-Frank Act appear to be discretionary in nature, stating that certain agencies "may" issue rules to implement particular provisions, or that the agencies shall issue such rules as they "determine are necessary and appropriate." Therefore, the agencies may decide to promulgate rules regarding all, some, or none of these provisions, and often have broad discretion to decide what these rules will contain. 
In addition, there are numerous other provisions in the Dodd-Frank Act that require regulatory agencies to take certain actions, but do not specifically mention "regulations" or "rules." For example, Section 732 of the act amended Section 4d of the Commodity Exchange Act (7 U.S.C. § 6d), and states that the CFTC 
shall require that futures commission merchants and introducing brokers implement conflict-of-interest systems and procedures that (1) establish structural and institutional safeguards to ensure that the activities of any person within the firm relating to research or analysis of the price or market for any commodity are separated by appropriate informational partitions within the firm from the review, pressure, or oversight of persons whose involvement in trading or clearing activities might potentially bias the judgment or supervision of the persons; and (2) address such other issues as the Commission determines to be appropriate.
It is possible that many of these kinds of provisions will, either by the agencies' choice or by legal necessity, be implemented through the rulemaking process.
section_title: Congressional Oversight and the Unified Agenda
paragraphs: In his book Building a Legislative-Centered Public Administration , David H. Rosenbloom noted that rulemaking and lawmaking are functionally equivalent (both have the force of law), and that when agencies issue rules they, in effect, legislate. He went on to say that the "Constitution's grant of legislative power to Congress encompasses a responsibility to ensure that delegated authority is exercised according to appropriate procedures." Congressional oversight of rulemaking can address a variety of issues, including the substance of the rules issued pursuant to congressional delegations of authority and the process by which those rules are issued. 
For Congress to oversee the regulations being issued to implement the Dodd-Frank Act, it would help to have an early sense of what rules the agencies are going to issue, and when. The previously mentioned CRS report identifying the provisions in the act that require or permit rulemaking can be useful in this regard. However, the legislation did not indicate when some of the mandatory rules should be issued, some of the rules that the agencies are permitted (but not required) to issue may never be developed, and many of the rules that the agencies will issue may not be specifically mentioned in the act. 
subsections: section_title: The Unified Agenda
paragraphs: One way for Congress to identify upcoming Dodd-Frank Act rules is by reviewing the Unified Agenda of Federal Regulatory and Deregulatory Actions (hereafter, Unified Agenda), which is published twice each year (usually in the spring and fall) by the Regulatory Information Service Center (RISC), a component of the U.S. General Services Administration, for the Office of Management and Budget's (OMB) Office of Information and Regulatory Affairs (OIRA). The Unified Agenda helps agencies fulfill two current transparency requirements: 
The Regulatory Flexibility Act (5 U.S.C. § 602) requires that all agencies publish semiannual regulatory agendas in the Federal Register describing regulatory actions that they are developing that may have a significant economic impact on a substantial number of small entities. Section 4 of Executive Order 12866 on "Regulatory Planning and Review" requires that all executive branch agencies "prepare an agenda of all regulations under development or review." The stated purposes of this and other planning requirements in the order are, among other things, to "maximize consultation and the resolution of potential conflicts at an early stage" and to "involve the public and its State, local, and tribal officials in regulatory planning." The executive order also requires that each agency prepare, as part of the fall edition of the Unified Agenda, a "regulatory plan" of the most important significant regulatory actions that the agency reasonably expects to issue in proposed or final form during the upcoming fiscal year.
The Unified Agenda lists upcoming regulatory activities, by agency, in five separate categories or stages of the rulemaking process: 
prerule stage (e.g., advance notices of proposed rulemaking (ANPRM) that are expected to be issued in the next 12 months); proposed rule stage (i.e., notices of proposed rulemaking (NPRM) that are expected to be issued in the next 12 months, or for which the closing date of the comment period is the next step); final rule stage (i.e., final rules or other final actions that are expected to be issued in the next 12 months); long-term actions (i.e., items under development that agencies do not expect to take action on in the next 12 months); and completed actions (i.e., final rules or rules that have been withdrawn since the last edition of the Unified Agenda). 
All entries in the Unified Agenda have uniform data elements, including the department and agency issuing the rule, the title of the rule, its Regulation Identifier Number (RIN), an abstract describing the nature of action being taken, and a timetable showing the dates of past actions and a projected date (sometimes just the projected month and year) for the next regulatory action. Each entry also contains an element indicating the priority of the regulation (e.g., whether it is considered "economically significant" under Executive Order 12866, or whether it is considered a "major" rule under the Congressional Review Act). 
There is no penalty for issuing a rule without a prior notice in the Unified Agenda, and some prospective rules listed in the Unified Agenda never get issued, reflecting the fluid nature of the rulemaking process. Nevertheless, the Unified Agenda can help Congress and the public know what regulatory actions are about to occur; and it arguably provides federal agencies with the most systematic, government-wide method to alert the public about their upcoming proposed rules. A previously issued CRS report indicated that about three-fourths of the significant proposed rules published after having been reviewed by OIRA in 2008 were previously listed in the "proposed rule" section of the Unified Agenda.
section_title: This Report
paragraphs: The July 7, 2011, edition of the Unified Agenda and Regulatory Plan is the second edition that RISC has compiled and issued after the enactment of the Dodd-Frank Act. Federal agencies were required to submit data to RISC for the Unified Agenda by February 25, 2011. Therefore, the information in the Unified Agenda was current as of February 2011. 
This report examines the July 7, 2011, edition of the Unified Agenda and identifies upcoming proposed and final rules that agencies expect to issue pursuant to the Dodd-Frank Act in the next 12 months, as well as long-term actions. To identify those upcoming rules and actions, CRS searched all fields of the Unified Agenda (all agencies) using the term "Dodd-Frank," identifying items in the proposed rule and final rule stages of rulemaking and the "long-term actions" category. The results included all actions that were being issued pursuant to the Dodd-Frank Act.
The results of the searches for proposed and final rules are provided in the Appendix to this report. For each upcoming proposed and final rule listed, the table identifies the department or agency expected to issue the rule, the title of the rule and its RIN, an abstract describing the anticipated rulemaking action, and the date that the agency expects to issue the proposed or final rule. The abstracts presented in the table were taken verbatim from the Unified Agenda entries. The entries in the table are organized by agency. 
Because agencies were compiling the information early in the year, their estimates for when upcoming proposed and final rules would be issued may have been out of date by the time the Unified Agenda was published. To provide the most up-to-date information, on August 3, 2011, CRS electronically searched the Federal Register (at http://www.gpoaccess.gov/fr/index.html ) to see whether they had been published. That information is provided in the table. If the proposed or final rule was published as of August 3, the Federal Register citation is also provided.
When submitting rules to the Unified Agenda, each agency submits all of their upcoming rules to RISC, even if the rule is to be issued jointly with other agencies. CRS attempted to identify and consolidate the entries for joint rules listed multiple times under different agencies into a single rule, so as not to double-count rules. In those cases, the agencies listed in the left-hand column for the joint rules are the agencies that listed the rule as an entry in the Unified Agenda, not all the agencies that may have been statutorily required to participate in the joint rulemaking.
section_title: Upcoming and Recently Issued Dodd-Frank Act Proposed Rules
paragraphs: The July 7, 2011, edition of the Unified Agenda listed 30 Dodd-Frank Act-related actions in the "proposed rule stage" of rulemaking (indicating that the agencies expected to issue proposed rules on the topics within the next 12 months, or for which the closing dates of the comment periods are the next step). The agencies expected to issue the most proposed rules were the Securities and Exchange Commission (SEC, 10 upcoming proposed rules) and the Commodity Futures Trading Commission (CFTC, five upcoming proposed rules). Other agencies with upcoming proposed rules included the Office of the Comptroller of the Currency (OCC, three rules), the Office of Thrift Supervision (OTS, two rules), the Office of Housing (HUD–OH, one rule), the Farm Credit Administration (FCA, one rule), the Federal Housing Finance Agency (FHFA, one rule), and the National Credit Union Administration (NCUA, one rule). Six other upcoming proposed rules were expected to be issued jointly from among these agencies. 
Although most of these Unified Agenda entries referred to specific upcoming proposed rules, sometimes a single entry in the Unified Agenda indicated that more than one rule would be proposed. For example, a CFTC entry entitled "Identity Theft Red Flag Rules for CFTC Regulated Institutions Under Fair Credit Reporting Act" said the following in its abstract:
Section 1088 of the Dodd-Frank Wall Street Reform and Consumer Protection Act contains amendments to Section 621 of the Fair Credit Reporting Act (FCRA). These amendments add the CFTC and the SEC (together referred to as the Agencies) to the list of Federal agencies that are required to promulgate regulations relating to the development and implementation of identity theft programs under the FCRA. The Agencies' rules implementing section 621 of the FCRA will require financial institutions and creditors that are regulated by either of both of the Agencies to develop and implement written identity theft programs to detect, prevent and mitigate identity theft in connection with the opening of certain accounts or certain existing accounts. 
subsections: section_title: Timing of Upcoming Proposed Rules
paragraphs: The Unified Agenda indicated that 26 of the 30 upcoming proposed rules pursuant to the Dodd-Frank Act would be issued in May, June, or July of 2011. As of August 3, 2011, 14 of these 26 proposed rules had been published. As discussed later in this report, most of these published proposed rules are expected to result in final rules at some point in 2011. Some of the proposed rules that the Unified Agenda indicated would be issued in May, June, or July but that had not been published as of August 3, 2011, were
a Treasury–OTS rule on "Alternatives to the Use of External Credit Ratings in the Regulations of the OTS;" an FCA rule on "Funding and Fiscal Affairs, Loan Policies and Operations, and Funding Operations—Capital Adequacy; Ratings-Based Approach;" an SEC rule on "Amendments to Rule 3a-7 Under the Investment Company Act;" and an SEC rule on "Conflicts of Interest Relating to Certain Securitizations."
Four other Dodd-Frank proposed rules were expected to be issued later in 2011, but had not been published as of August 3. These include
a HUD–OH rule on "Housing Counseling: New Program Requirements: Implementing Resulting From Dodd-Frank Wall Street Reform and Consumers Act" (expected in October 2011); a CFTC rule on "Identity Theft Red Flag Rules for CFTC Regulated Institutions Under Fair Credit Reporting Act" (expected in September 2011); an SEC rule on "Compensation Clawback" (expected in August 2011); and an SEC rule on "Executive Compensation Disclosure" (expected in August 2011). 
section_title: Notable Proposed Rules
paragraphs: The Unified Agenda indicated that none of the 30 rules listed in the "proposed rule" section would be "economically significant" or "major" rules (e.g., none were expected to have a $100 million annual effect on the economy). However, one of the rules was considered important enough to have been included in the regulatory plan: a HUD–OH rule on "Housing Counseling: New Program Requirements." Expected to be published in October 2011, the Unified Agenda indicated that the proposed rule would 
amend HUD's regulations for the Housing Counseling program to address the new program requirements and certification requirements for HUD approved housing counselors as provided by the Dodd-Frank Wall Street Reform and Consumer Protection Act. The proposed rule will reflect the authority and responsibility of HUD's new Office of Housing Counseling as established by Dodd-Frank, to coordinate and administer HUD's Housing Counseling program. The proposed regulatory amendments will implement the changes made to section 106 of the Housing and Urban Development Act of 1968 by Dodd-Frank which include directing that HUD-approved housing counseling agencies provide counseling that addresses the entire process of homeownership and that HUD establish materials and forms to be used by HUD-approved housing counselors.
The Unified Agenda indicated that 14 of the 30 rules listed in the "proposed rule" section were "other significant," indicating that although they were not listed in the regulatory plan or expected to be "major" or "economically significant," they were expected to be significant enough to be reviewed by OIRA under Executive Order 12866, or were considered a priority by the agency head. Six of the 14 rules were to be issued by the CFTC. These "other significant" proposed rules included
a HUD–OH rule on "Housing Counseling: New Program Requirements;" a Treasury–OTS rule on "Incentive-Based Compensation Arrangements;" a CFTC rule on "Product Definitions Relating to Swaps and Security Based Swaps;" a CFTC rule on "Swap Data Recordkeeping and Reporting Requirements: Pre-Enactment and Transitional Swaps;" and an FCA rule on "Funding and Fiscal Affairs, Loan Policies and Operations, and Funding Operations—Capital Adequacy; Ratings-Based Approach."
subsections: section_title: Expected Effects on Small Entities
paragraphs: The Regulatory Flexibility Act (5 U.S.C. §§ 601-612) generally requires federal agencies to assess the impact of their forthcoming regulations on "small entities" (i.e., small businesses, small governments, and small not-for-profit organizations). The agencies indicated that one of the 30 rules listed in the "proposed rule" section of the Unified Agenda would require a regulatory flexibility analysis—the SEC's "Disqualification of Felons and Other 'Bad Actors' From Rule 506 Offerings" proposed rule, which the SEC published as a proposed rule on June 1, 2011. According to the Unified Agenda, however, none of the other proposed rules were expected to affect small entities.
section_title: Upcoming Dodd-Frank Act Final Rules
paragraphs: The July 7, 2011, edition of the Unified Agenda listed 72 Dodd-Frank Act-related actions in the "final rule stage" of rulemaking (indicating that the agency expected to issue final rules or take other final actions on the subjects within the next 12 months). Twenty-eight of the 72 final rule entries were from the SEC; another 28 were from the CFTC; five were from the Federal Reserve; three were from FSOC; two were from OSHA; and one was from the National Credit Union Administration (NCUA). Three other rules were expected to be issued as joint rules and were listed in the Unified Agenda by more than one agency.
However, it is possible that these entries will result in more than 72 final rules. As was the case for upcoming proposed rules under the Dodd-Frank Act, one of the CFTC final rule entries in the Unified Agenda ("Position Limits for Derivatives') was rather general:
The Commission has been mandated by Congress (in the Dodd-Frank Act) to impose position limits, on an aggregate basis, on futures and swaps relating to exempt in order to (a) diminish, eliminate, or prevent excessive speculation; (b) deter and prevent market manipulation, squeezes, and corners; (c) ensure sufficient market liquidity for bona fide hedgers; and (d) ensure that the price discovery function of an underlying market is not disrupted. Given the potential effects of position limits on various market participants, the Commission has issued a notice of proposed rulemaking to solicit and consider the public's comments in advance of issuing final rules. 
subsections: section_title: Timing of Upcoming Final Rules
paragraphs: The Unified Agenda indicated that 61 final rules were expected to be issued in June or July of 2011. As of August 3, 2011, 18 of the 61 rules had been published as final rules or as interim final rules. The other 43 rules had not been published as of August 3. 
Rules included in the Unified Agenda that were published before August 3, 2011, include 
a Federal Reserve rule on "Regulation M—Consumer Leasing;" an NCUA rule on "Share Insurance and Appendix;" an SEC rule on "Beneficial Ownership Reporting Requirements and Security-Based Swaps;" and an SEC rule on "Proposed Rules for Implementing the Whistleblower Provisions of Section 21F of the Securities Exchange Act." Among the rules that were expected to be issued in June or July of this year but were not issued as of August 3, 2011, are the following: a CFTC rule on "Swap Data Repositories;" a Federal Reserve rule on "Regulation Y—Definitions of 'Predominately Engaged in Financial Activities' and 'Significant' Nonbank Financial Company and Bank Holding Company;" an FSOC rule on "Authority To Require Supervision and Regulation of Certain Nonbank Financial Companies;" and an SEC rule on "Reporting of Proxy Votes on Executive Compensation and Other Matters."
The large number of rules that were expected to be published in June or July 2011 is probably due to the fact that numerous rulemaking provisions in the Dodd-Frank Act had a deadline of one year after the law was enacted (i.e., by July 21, 2011). As a previous CRS report noted, 73 of the rulemaking provisions in the Dodd-Frank Act had a deadline on or before the one-year anniversary of the enactment of the legislation. 
section_title: Notable Final Rules
paragraphs: Four of the 72 rules pursuant to the Dodd-Frank Act that were listed in the "final rule" section of the Unified Agenda were considered to be "economically significant," "major," or both: 
a HUD–OH rule on "SAFE Mortgage Licensing Act: Minimum Licensing Standards and Oversight Responsibilities;" a HUD–OH rule on "Emergency Homeowners' Loan Program;" an FDIC rule on "Alternatives to the Use of Credit Ratings in the Risk-Based Capital Guidelines of the Federal Banking Agencies;" and an FDIC rule on "Risk-Based Capital Guidelines: Market Risk." None of the 72 rules that were listed in the "final rule" section of the Unified Agenda were included in the regulatory plan. Thirty of the rules, however, were considered "other significant," indicating that they could be reviewed by OIRA, or they were considered a priority by the agency's leadership. Twenty-five of those rules were CFTC rules. Some examples of "other significant" upcoming final rules include a DOL–OSHA rule on "Procedures for the Handling of Retaliation Complaints Under Section 806 of the Corporate and Criminal Fraud Accountability Act of 2002, As Amended;" a CFTC rule on "Core Principles and Other Requirements for Designated Contract Markets;" a CFTC rule on "Governance and Possible Limits on Ownership and Control (DCOs, SEFs, and DCMs): Requirements for DCOs, DCMs, & SEFs Regarding the Mitigation of Conflicts of Interest;" a CFTC rule on "Amendments to Commodity Pool Operator and Commodity Trading Advisor Regulations Resulting From the Dodd-Frank Act;" and a Financial Stability Oversight Council (FSOC) rule on "Authority To Require Supervision and Regulation of Certain Nonbank Financial Companies."
subsections: section_title: Effects on Small Entities
paragraphs: Nine of the rules that were listed in the "final rule" section of the Unified Agenda were expected to trigger the requirement for an analysis under the Regulatory Flexibility Act, including
an FDIC rule on "Alternatives to the Use of Credit Ratings in the Risk-Based Capital Guidelines of the Federal Banking Agencies;" a Federal Reserve rule on "Regulation Z—Escrow Requirements;" an SEC rule on "Disclosure of Payments By Resource Extraction Issuers;" and an SEC rule on "Net Worth Standard for Accredited Investors."
Three other rules were expected to have an impact on small entities, although it was undetermined yet whether they would require a regulatory flexibility analysis:
a Federal Reserve rule on "Regulation M—Consumer Leasing;" a Federal Reserve rule on "Regulation Z—Truth in Lending;" and an SEC rule on "Registration of Municipal Advisers."
section_title: Proposed Rules Leading to Final Rules
paragraphs: As noted earlier in this report, 11 of the 25 proposed rules that were expected to be issued in June or July 2011 had been published by August 3, 2011. The Unified Agenda indicated that several of these proposed rules had final rule statutory deadlines at some point during 2011, were expected to result in final rules at some point during 2011, or both. For example:
a Treasury–OCC proposed rule on "Off-Exchange Retail Foreign Exchange Transactions" was published on April 22, 2011, and the statutory deadline for the final rule was reportedly July 16, 2011; an SEC proposed rule on "Disqualification of Felons and Other 'Bad Actors' From Rule 506 Offerings" was published on June 1, 2011, and the statutory deadline for the final rule was reportedly July 21, 2011; and an SEC proposed rule on "Investment Adviser Performance or Incentive Fees" was published on May 13, 2011, and the statutory deadline for the final rule was reportedly July 21, 2011.
Therefore, many more Dodd-Frank Act final rules may be published in 2011 than were listed in the "final rule" section of the Unified Agenda.
section_title: Dodd-Frank Act Long-Term Actions
paragraphs: As noted earlier in this report, the Unified Agenda also identifies "long-term actions"—that is, regulatory actions that are under development in the agencies that the agencies do not expect to take action on in the next 12 months. The July 7, 2011, edition of the Unified Agenda listed two long-term actions related to the Dodd-Frank Act—both of which were actions to be taken by the CFTC. In the first entry, the agency stated that the "Commission is directed by the Dodd-Frank Act of 2010, to adopt an interim final rule (IFR) to establish a timeframe for reporting to a registered swap data repository swaps entered into prior to enactment of the Dodd-Frank Act whose terms had not expired on the date of enactment." CFTC published the interim final rule on October 14, 2010, and the agency indicated that the nature and timing of its next step was "to be determined." 
The second long-term entry, also from the CFTC, indicated that the Dodd-Frank Act 
directs that rules adopted by the Commission under this section shall provide for the reporting of 'transition' swaps-e.g. those swaps entered into after the date of enactment of the Dodd-Frank Act and prior to the effective date of that statute. The Commission expects shortly to issue a notice for comment about permanent, substantive rules under CEA section 2(h)(5) to govern the reporting of these post-enactment swaps. The purpose of the interim final rule is to alert counterparties that these swaps may be subject to reporting rules and to ensure the preservation of data relating to those swaps pending implementation of such rules.
CFTC published the interim final rule on December 27, 2010, and indicated that the nature and timing of its next step was "to be determined." 
section_title: Concluding Observations
paragraphs: As noted earlier in this report, when federal agencies issue substantive regulations, they are carrying out legislative authority delegated to them by Congress. Therefore, it is appropriate for Congress to oversee the rules that agencies issue to ensure that they are consistent with congressional intent and the rulemaking requirements established in various statutes and executive orders. For Congress to oversee the rules being issued pursuant to the Dodd-Frank Act, it must first know that they are being issued—ideally as early as possible. The Unified Agenda is perhaps the best vehicle to provide that early information, describing not only what rules agencies are expected to issue, but also providing information regarding their significance and timing. 
subsections: section_title: Congressional Oversight Options
paragraphs: Congress has a range of tools available to oversee the rules that federal agencies are expected to issue to implement the Dodd-Frank Act, including oversight hearings and confirmation hearings for the heads of regulatory agencies. Individual Members of Congress may also participate in the rulemaking process by, among other things, meeting with agency officials and filing public comments. Congress, committees, and individual Members can also request that the Government Accountability Office (GAO) evaluate the agencies' rulemaking activities. However, the act itself contains more than 40 provisions requiring GAO to conduct studies and write reports. For example:
Section 412 of the act requires GAO to examine compliance costs associated with SEC rules regarding custody of funds or securities of clients by investment advisers, and any additional costs if a portion of a rule relating to operational independence is eliminated. GAO is required to submit a report on the results of the study to the Senate Committee on Banking, Housing, and Urban Affairs and the House Committee on Financial Services not later than three years after the date of enactment (i.e., by July 21, 2013). Section 939E requires GAO to study the feasibility and merits of creating an independent professional organization for rating analysts employed by nationally recognized statistical rating organizations. GAO is to submit a report on the results of the study to the Senate Committee on Banking, Housing, and Urban Affairs and the House Committee on Financial Services not later than one year after the date of publication of the rules issued by the commission pursuant to Section 936 of the act. Section 1421 requires GAO to submit a report to Congress within one year of the date of enactment (i.e., by July 21, 2011) assessing the effects of the Dodd-Frank Act on the availability and affordability of credit for consumers, small businesses, homebuyers, and mortgage lending. 
Another option is the Congressional Review Act (CRA, 5 U.S.C. §§801-808), which was enacted in 1996 in an attempt to reestablish a measure of congressional authority over rulemaking "without at the same time requiring Congress to become a super regulatory agency." The act generally requires federal agencies to submit all of their covered final rules to both houses of Congress and GAO before they can take effect. It also established expedited legislative procedures (primarily in the Senate) by which Congress may disapprove agencies' final rules by enacting a joint resolution of disapproval. The definition of a covered rule in the CRA is quite broad, arguably including any type of document (e.g., legislative rules, policy statements, guidance, manuals, and memoranda) that the agency wishes to make binding on the affected public. After these rules are submitted, Congress can use the expedited procedures specified in the CRA to disapprove any of the rules. CRA resolutions of disapproval must be presented to the President for signature or veto.
For a variety of reasons, however, the CRA has been used to disapprove only one rule since it was enacted. Perhaps most notably, it is likely that a President would veto a resolution of disapproval to protect rules developed under his own administration, and it may be difficult for Congress to muster the two-thirds vote in both houses needed to overturn the veto. Congress can also use regular (i.e., non-CRA) legislative procedures to disapprove agencies' rules, but such legislation may prove even more difficult to enact than a CRA resolution of disapproval (primarily because of the lack of expedited procedures in the Senate), and if enacted may also be vetoed by the President.
Although the CRA has been used only once to overturn an agency rule, Congress has regularly included provisions in the text of agencies' appropriations bills directing or preventing the development of particular regulations. Such provisions include prohibitions on the finalization of particular proposed rules, restrictions on certain types of regulatory activity, and restrictions on implementation or enforcement of certain provisions. Appropriations provisions can also be used to prompt agencies to issue certain regulations, or to require that certain procedures be followed before or after their issuance. The inclusion of regulatory provisions in appropriations legislation as a matter of legislative strategy appears to arise from two factors: (1) Congress's ability via its "power of the purse" to control agency action, and (2) the fact that appropriations bills are considered "must pass" legislation. Congress's use of regulatory appropriations restrictions has fluctuated somewhat over time, and previous experience suggests that they may be somewhat less frequent when Congress and the President are of the same party.
subsections: section_title: Appendix. Upcoming Proposed and Final Rules Pursuant to the Dodd-Frank Act, as Listed in the July 7, 2011 Unified Agenda