Upcoming Rules Pursuant to the Dodd-Frank Act: Fall 2010 Unified Agenda
Released: 2011-01-25T00:00:00

Introduction

Federal regulations generally start with 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 (Board of Governors), 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.

Mandatory and Discretionary Rulemaking Provisions

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.

Congressional Oversight and the Unified Agenda

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.

In order 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.

The Unified Agenda

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 (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 (i.e., 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.

This Report

The December 20, 2010, edition of the Unified Agenda and Regulatory Plan is the first 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 September 10, 2010, although some of the agencies did not submit the data until early October. Therefore, the information in the Unified Agenda was current as of September/October 2010.

This report examines the December 20, 2010, edition of the Unified Agenda and identifies upcoming proposed and final rules that are expected to be issued pursuant to the Dodd-Frank Act, 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, or that would have an impact on its implementation.

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 and 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 proposed or final rule was expected to be issued. The abstracts presented in the table were taken verbatim from the Unified Agenda entries, although CRS sometimes shortened them or used other information from the entries to identify the section of the Dodd-Frank Act being implemented by the regulatory action when the agency-provided abstracts did not do so. Within the proposed and final rule sections of the table, the entries are organized in terms of the expected dates of issuance, with the earliest dates presented first.

Upcoming and Recently Issued Dodd-Frank Act Proposed Rules

The December 20, 2010, 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). Twenty-two of the 30 upcoming proposed rules were expected to be issued by the CFTC. Four of the remaining eight proposed rules were to be issued by the Department of the Treasury's Office of Thrift Supervision (OTS) or the Comptroller of the Currency (two rules each); two rules were to be issued by the SEC; and the remaining rule was to be issued by the Department of Housing and Urban Development's (HUD) Office of Housing.

Although most of these Unified Agenda entries referred to specific upcoming proposed rules, one of the SEC entries was more general. Entitled "Proposed Rules Under the Dodd-Frank Wall Street Reform and Consumer Protection Act," the entry said the following:

The Dodd-Frank Wall Street Reform and Consumer Protection Act was enacted on July 21, 2010. The Act includes a significant number of rulemaking provisions applicable to the Commission. The Commission is in the process of considering the legislation and determining whether and how to consolidate some of the rulemakings. It will add specific rules under the Act to the Regulatory Flexibility Act agenda as it proceeds.

Therefore, it appears that the SEC could ultimately issue multiple proposed rules related to the Dodd-Frank Act pursuant to this Unified Agenda entry, or the SEC could issue no proposed rules.

Timing of Upcoming Proposed Rules

The Unified Agenda indicated that 25 upcoming proposed rules pursuant to the Dodd-Frank Act would be issued in December 2010. As of January 14, 2011, 20 of these 25 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. The five proposed rules that the Unified Agenda indicated would be issued in December 2010 but that had not been issued as of January 14, 2011, were as follows:

A Treasury/OTS rule on "Alternatives to the Use of External Credit Ratings in the Regulatory Capital Guidelines of the Federal Banking Agencies" A Treasury/OTS rule on "Alternatives to the Use of External Credit Ratings in the Regulations of the OTS" A CFTC rule on "Identity Theft Red Flag Rules for CFTC Regulated Institutions Under Fair Credit Reporting Act" A CFTC rule on "Position Limits on Agricultural Commodities" A CFTC rule on "Position Limits on Exempt Commodities"

Three of the upcoming Dodd-Frank proposed rules were expected to be issued in March 2011:

A HUD/Office of Housing rule on "Housing Counseling: New Program Requirements" A Treasury/OCC rule on "Regarding Alternatives to the Use of External Credit Ratings in the Regulatory Capital Guidelines of the Federal Banking Agencies" A Treasury/OCC rule on "Regarding Alternatives to the Use of External Credit Ratings in the Regulations of the OCC" One of the upcoming Dodd-Frank proposed rules was expected to be issued in April 2011 (a CFTC action entitled "Volcker Rule" which would reportedly proposed limitations on proprietary trading, investment in hedge funds, and other activities by financial institutions); and one was expected to be issued in August 2011 (the previously mentioned SEC general entry entitled "Proposed Rules Under the Dodd-Frank Wall Street Reform and Consumer Protection Act").

Notable Proposed Rules

The Unified Agenda indicated that none of the 30 upcoming Dodd-Frank Act proposed rules would be "economically significant" or "major" rules (i.e., 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: the HUD/Office of Housing rule on "Housing Counseling: New Program Requirements." Expected to be published in March 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 Act]," and would "enhance the choices and protections afforded borrowers participating in HUD's single family mortgage insurance programs."

The Unified Agenda indicated that 20 of the 30 upcoming proposed rules 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. Seventeen of the 20 rules were to be issued by CFTC. These "other significant" proposed rules included the following:

A HUD/Office of Housing rule on "Housing Counseling: New Program Requirements" A Treasury/OTS rule on "Alternatives to the Use of External Credit Ratings in the Regulatory Capital Guidelines of the Federal Banking Agencies" A CFTC rule on "Governance and Possible Limits on Ownership and Control (DCOs, SEFs, and DCMs)" A CFTC rule on "Identity Theft Red Flag Rules for CFTC Regulated Institutions Under Fair Credit Reporting Act" A CFTC rule on "Swap Execution Facilities Registration Requirements and Core Principle Rulemaking, Interpretation and Guidance"

Expected Effects on Small Businesses

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 none of the upcoming proposed rules pursuant to the Dodd-Frank Act would require a regulatory flexibility analysis, and only one of the rules would have any effect on small entities—the Federal Reserve System's "Regulation Z—Truth in Lending" proposed rule, which FRS indicated would be issued in December 2010.

Upcoming Dodd-Frank Act Final Rules

The December 20, 2010, edition of the Unified Agenda listed 12 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). Eight of the 12 agenda entries were from the SEC; two were from the Federal Trade Commission (FTC); and two were from the Occupational Safety and Health Administration (OSHA) within the Department of Labor.

However, it is possible that these entries will not result in 12 final rules. As was the case for upcoming proposed rules under the Dodd-Frank Act, one of the SEC final rule entries in the Unified Agenda ("Final Rules under the Dodd-Frank Wall Street Reform and Consumer Protection Act") was very general:

The Dodd-Frank Wall Street Reform and Consumer Protection Act was enacted on July 21, 2010. The Act includes a significant number of rulemaking provisions applicable to the Commission. Some of the provisions require final rulemakings. The Commission is in the process of considering the legislation and determining whether and how to consolidate some of the rulemakings. It will add specific rules under the Act to the Regulatory Flexibility Act agenda as it proceeds.

Although this Unified Agenda entry indicated that the upcoming action would be an interim final rule to be issued in September 2011, the rule's legal authority was characterized as "Not Yet Determined." Therefore, it appears that the SEC could ultimately issue multiple final rules related to the Dodd-Frank Act pursuant to this Unified Agenda entry, or the SEC could issue no final rules.

Three other SEC "final rule" entries (two of which were entitled "References to Ratings of Nationally Recognized Statistical Rating Organizations," and one on "Security Ratings" ) were scheduled for action in July 2011. All three entries referenced prior notices of proposed rulemaking, with the agency indicating that it was considering how to proceed in light of the Dodd-Frank Act. Therefore, these entries may result in a final rule, or may result in the agency concluding action without issuing a final rule.

Another SEC final rule entry was entitled "Transitional Registration as a Municipal Advisor," and references an interim final rule that was issued in September 2010 that is effective through December 2011. The agency did not indicate whether this interim final rule would be continued, or whether it would just be allowed to expire.

Timing of Upcoming Final Rules

The Unified Agenda indicated that one FTC final rule on "Rulemaking Proceeding With Respect to Mortgage Loans" would be issued in December 2010, and that rule was issued on schedule. As of January 14, 2011, the remaining 11 upcoming Dodd-Frank Act final rules had not been issued. Three of those rules were scheduled to be issued during the first two months of 2011:

Two SEC rules on "Reporting of Proxy Votes on Executive Compensation and Other Matters," and "Shareholder Approval of Executive Compensation and Golden Parachute Compensation," both of which were expected to be issued in January 2011 An FTC rule on the "Fair and Accurate Credit Transactions Act of 2003," which was scheduled to be issued in February 2011

One other Dodd-Frank Act rule was scheduled for the first half of the year—an April 2011 SEC final rule on "Family Offices" (which is expected to define the type of "family offices" that would be excluded from the definition of an investment adviser under the Investment Advisers Act of 1940).

The remaining Dodd-Frank Act final rules were not expected to be issued until the later part of 2011. For example, two OSHA final rules were scheduled for September 2011—one on "Procedures for the Handling of Retaliation Complaints Under Section 806 of the Corporate and Criminal Fraud Accountability Act of 2002, As Amended"; and one on "Complaints Under the Employee Protection Provision of the Consumer Financial Protection Act of 2010, Section 1057 of the Dodd-Frank Wall Street Reform and Consumer [Protection Act]." OSHA indicated that both of these regulations would be issued as interim final rules.

Notable Upcoming Final Rules

None of the upcoming final rules pursuant to the Dodd-Frank Act were included in the regulatory plan, and none were considered "economically significant" or "major" rules. Three of the rules were considered "other significant," indicating that they could be reviewed by OIRA, or were considered a priority by the agency's leadership:

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 DOL/OSHA rule on "Complaints Under the Employee Protection Provision of the Consumer Financial Protection Act of 2010, Section 1057 of the DODD-FRANK Wall Street Reform and Consumer" An FTC rule on "Fair and Accurate Credit Transactions Act of 2003"

Effects on Small Entities

Two of the upcoming final rules under the Dodd-Frank Act were expected to trigger the requirement for an analysis under the Regulatory Flexibility Act:

An SEC rule on "Shareholder Approval of Executive Compensation and Golden Parachute Compensation" An SEC rule on "Transitional Registration as a Municipal Advisor"

Two other rules were expected to have an impact on small entities, although not enough to require a regulatory flexibility analysis:

An FTC rule on "Fair and Accurate Credit Transactions Act of 2003" An FTC rule on "Rulemaking Proceeding With Respect to Mortgage Loans"

Proposed Rules Leading to Final Rules

As noted earlier in this report, 20 of the 25 proposed rules that were expected to be issued in December 2010 had been published by January 14, 2011. The Unified Agenda indicated that 17 of these 20 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. Fifteen of these 17 final rules were expected to be issued by CFTC. For example, see the following rules:

A CFTC proposed rule on "Larger Trader Reporting" was published on November 2, 2010, and the statutory deadline for the final rule is reportedly January 18, 2011 A CFTC proposed rule on "Review of Rules To Find Alternatives to Reliance of Credit Ratings" was published on November 2, 2010, and the final rule was expected to be issued in March 2011 A CFTC proposed rule on "Whistleblowers" was published on December 6, 2010, and the final rule was expected to be issued in April 2011 A CFTC proposed rule on "Systemically Important DCO Rules Authorized Under Title VII" was published on October 14, 2010, and the final rule was expected to be issued in June 2011 An SEC proposed rule on "Definitions Contained in Title VII of the Dodd-Frank Wall Street Reform and Consumer Protection Act" was published on December 21, 2010, and the final rule was expected to be issued in July 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.

Dodd-Frank Act Long-Term Actions

As noted earlier in this report, the Unified Agenda also identifies "long-term actions"—i.e., 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 December 20, 2010, edition of the Unified Agenda listed two long-term actions related to the Dodd-Frank Act—one each by CFTC and the Federal Deposit Insurance Corporation (FDIC). In the CFTC 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 FDIC entry indicated that the Dodd-Frank Act "requires Federal agencies to review their regulations that (1) require an assessment of the credit-worthiness of a security or money market instrument and (2) contain references to or requirements regarding credit ratings. In addition, the agencies are required to remove such requirements that refer to or rely upon credit ratings, and to substitute in their place uniform standards of credit-worthiness." FDIC and three other agencies jointly published an advance notice of proposed rulemaking on August 25, 2010, seeking comment on alternative standards of credit-worthiness that may be used for risk-based capital requirements. The agency said its next step was "undetermined."

Concluding Observations

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. In order 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.

However, some of the entries in the December 20, 2010, edition of the Unified Agenda related to the Dodd-Frank Act do not identify particular upcoming rules, and therefore are not as helpful as other entries. For example, the SEC included entries in both the proposed and final rule sections of the Unified Agenda stating that the Dodd-Frank Act "includes a significant number of rulemaking provisions applicable to the Commission," and that the agency was considering how to proceed. Therefore, the SEC may issue a dozen or more proposed and final rules pursuant to this provision, or may issue no rules at all.

Congressional Oversight Options

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, see the following:

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 in the 14 years 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.

Appendix. Upcoming Proposed and Final Rules Pursuant to the Dodd-Frank Act