1. Regulatory Oversight Essen3als Part II: Monitoring and Shaping the Debate Hester Peirce Senior Research Fellow Mercatus Center March 12, 2013
2. Course Topics q Why do regula3ons maJer? q To what extent can oversight make a diﬀerence? q Where is informa3on about regula3ons found? q What should you be asking regulators before, during, and aPer the rulemaking process? q How are rules made?
3. BoJom Line: What You Need to Be Thinking About As We Go Through Speciﬁcs • DraP statutes with oversight in mind v Repor3ng/tes3mony requirements v Speciﬁc analysis requirements v Sunsets, retrospec3ve review requirements • Express an interest early v Invite regulators in for brieﬁngs about topics of importance to your member v Ask regulators to keep you updated on their progress • Ask regulators lots of ques3ons v What are their priori3es and why? v What assump3ons are they making and data are they using in rulemakings? v How have they sought input from the public and relevant experts? v Have they considered par3cular comments and how? v How do they plan to measure success? • Bring in reinforcements—GAO, IGs
4. The Landscape Encourage agency to think outside of the statutory box, but watch out for agency aDempts to regulate without coming to Congress for more statutory authority. Statutory Authority Agency’s Chosen Regulatory Approach. Don’t let this deﬁne the universe. You might want the agency to consider an op>on that is within the agency’s statutory authority, but the agency has not considered. Another agency or another level of government may have jurisdic>on that makes it the best source of a solu>on.
5. Rulemaking Process in Brief F Pre-‐rule ANPRM NPRM CComm-‐ Stage—the Advanced No3ce of ent Period Final Rule agency is No3ce of Proposed and OMB thinking Proposed Rule-‐ Review about what Rule-‐ making Period to do making Retrospec3ve Review
6. How Long Does the Whole Process Take? • SEC approves MSRB Rule G37 restric3ng pay to play in municipal It can take many securi3es markets years for an idea in April 1994 • SEC proposes a rule to restrict pay the minds of staﬀers to play by investment advisers at a regulatory August 1999 • SEC reproposes rule to restrict pay to play by investment advisers agency to become a • SEC withdraws 1999 proposal August 2009 ﬁnal rule. If you • SEC adopts rule to restrict pay to care about a rule, play by investment advisers July 2010 keep asking about it.
7. How Long Does the Whole Process Take? • Dodd-‐Frank is signed into law • § 951 requires shareholder votes on But, depending on the July 2010 execu3ve comp & golden parachutes circumstances and the • SEC proposes a rule to implement § pressure the agency Oct. 28, 2010 951 faces, the process can also move a lot faster. Nov. 18,2010 • Comment deadline If you don’t act fast, you won’t get a • Final rule is published in the Federal Register chance to weigh in. Feb. 2, 2011
8. Oversight Op3on: Ask About Very Slow or Very Fast Rulemaking
9. Sample Advanced No3ce of Proposed Rulemaking . . . Without a mandate from Use of Deriva>ves by Investment Companies Under the Investment Company Act of 1940 AGENCY: Securi3es and Exchange Congress, the S.E.C. is proceeding Commission. ACTION: Concept release; request for with cau3on. comments. SUMMARY: The Securi3es and Exchange Commission (the Last year, the agency began a broad ‘‘Commission’’) and its staﬀ are reviewing the use of study into the mutual fund industry’s deriva3ves by management investment companies registered under the Investment Company Act of 1940 (the ‘‘Investment use of deriva3ves, a growing Company Act’’ or ‘‘Act’’) and companies that have elected to be treated as business development companies (‘‘BDCs’’) phenomenon. The S.E.C.’s concept under the Act (collec3vely, ‘‘funds’’). To assist in this review, release approved on Wednesday will the Commission is issuing this concept release and request for comments on a wide range of issues relevant to the use of take the review a step further, asking deriva3ves by funds, including the poten3al implica3ons for fund leverage, diversiﬁca3on, exposure to certain securi3es-‐ the public to weigh in on funds’ use related issuers, porlolio concentra3on, valua3on, and related of deriva3ves and the current maJers. In addi3on to the speciﬁc issues highlighted for comment, the Commission invites members of the public to regulatory landscape. . . address any other maJers that they believe are relevant to the use of deriva3ves by funds. The Commission intends to Ben Protess, S.E.C. Examines Mutual consider the comments to help determine whether regulatory ini3a3ves or guidance are needed to improve the current Funds’ Use of Deriva:ves, DealBook, regulatory regime for funds and, if so, the nature of any such ini3a3ves or guidance. New York Times, Aug. 31, 2011. 76 FR 55273 (Sept. 7, 2011).
10. When Should I Weigh In? q To have an eﬀect late in the process, you need to lay the groundwork as early in the process and as oPen as possible. q Find out what agencies’ priori3es are and how they are contempla3ng achieving them. q It is easier to get an agency to think outside the box early in the process, before it is commiJed to one par3cular course.
11. Oversight Op3on: Encourage Agency to Ask Data on Costs and Beneﬁts SUMMARY: The Securi3es and Exchange Commission is reques3ng data and other informa3on, in par3cular quan3ta3ve data and economic analysis, rela3ng to the beneﬁts and costs that could result from various alterna3ve approaches regarding the standards of conduct and other obliga3ons of broker-‐dealers and investment advisers. We intend to use the comments and data we receive to inform our considera3on of alterna3ve standards of conduct for broker-‐dealers and investment advisers when providing personalized investment advice about securi3es to retail customers. We also will use this informa3on to inform our considera3on of poten3al harmoniza3on of certain other aspects of the regula3on of broker-‐dealers and investment advisers.
12. Oversight Op3on: Commen3ng on a Rule Washington Post14,479 letters supporting the Volcker RuleBy Suzy Khimm, Published: February 15, 2012 Wall Street ﬂooded the government with cri3cism of the Volcker Rule this week, as the period for public feedback on the regula3on-‐in-‐progress came to a close. The SEC received 241 detailed, unique comment leJers on the regula3on, mostly from ﬁnancial ﬁrms that have cri3cized the law. Industry group representa3ves have also held the bulk of the face-‐to-‐face mee3ngs that lobbyists and other stakeholders have had with federal regulators. But they aren’t the only ones who have weighed in. The Securi3es and Exchange Commission also received 14,479 generic form leJers in support of a strong version of the Volcker Rule, which prohibits specula3ve trading by banks for their own beneﬁt. By my rough count, as of last week: » 18,179 form leJers » 512 unique comment leJers
13. Does Commen3ng Make a Diﬀerence? Changes in Final Rule The SECs proposals aJracted much aJen3on, drawing over 20,000 comments-‐ among the most comments for a proposal in the Commissions history. . . . numerous comments spoke speciﬁcally to the Ka3e Couric Clause. . . . Instead of moving for-‐ ward immediately with its en3re ini3al proposal, the Commission adopted some rules and issued a separate release request-‐ ing addi3onal comments on disclosure of compensa3on of those who are not exec-‐ u3ve oﬃcers. The SEC notably recognized that commenters perceived problems with the original proposal to add disclosure for highly compensated employees who did not serve as execu3ve oﬃcers.
14. Oversight Op3on: Ask for a Re-‐proposal if Ini3al Proposal is Inadequate or Agency Is Planning to Finalize Something Very Diﬀerent from Proposal On January 26, 2011, the Council issued a no3ce of proposed rulemaking (the ‘‘NPR’’) (76 FR 4555) through which it sought public comment regarding the speciﬁc criteria and analy3c framework that the Council intends to apply in the Determina3on Process. The comment period for the NPR closed on February 25, 2011. In response to comments that the Council received on the NPR, the Council is issuing a second no3ce of proposed rulemaking (the ‘‘Proposed Rule’’) and proposed interpre3ve guidance (the ‘‘Proposed Guidance’’) to provide (i) addi3onal details regarding the framework that the Council intends to use in the process of assessing whether a nonbank ﬁnancial company could pose a threat to U.S. ﬁnancial stability, and (ii) further opportunity for public comment on the Council’s proposed approach to the Determina3on Process. FSOC, Authority to Require Supervision and Regula3on of Certain Nonbank Financial Companies, 76 Fed. Reg. 64,264 (Oct. 18, 2011).
15. Oversight Op3on: Play a Role in Bringing Important Comments to Their AJen3on . . . One commenter asserted that the cost of compliance will exceed 10 to 20 3mes the amount projected by the Commission. . . . The Commission con3nues to believe that the cost to develop and maintain compliance policies and procedures will not be signiﬁcant for most brokers-‐dealers. . . . the compliance cost is a weighted average that skews lower because most brokers and dealers who already maintain compliance policies and procedures will not face signiﬁcantly greater costs. Although several broker-‐dealers may indeed incur a cost of compliance that will exceed the amount es3mated in the Proposing Release, the Commission an3cipates that these broker-‐dealers will be signiﬁcantly outnumbered by brokers-‐dealers who will incur minimal addi3onal costs. . . . SEC, Risk Management Controls for Brokers or Dealers With Market Access; Final Rule, 75 FR 69792 (Nov. 15, 2010).
16. Finding a No3ce of Proposed Rulemaking You can search by Federal Register cite or by keyword.
17. If you click here, it takes you to regula3ons.gov, another place to look for agency no3ces. It is also a place where you can make comments.
18. A Note on Federal Register Publica3on • SEC vote on Adviser • It typically takes about a 7/11/2007 An3fraud Rule week for the Federal Register to publish a • Rule published on no3ce aPer an agency SEC website 8/3/2007 transmits it. • Agencies may post no3ces on their own • Rule published in 8/9/2007 Federal Register websites ﬁrst, but even this can take some 3me.
19. Oversight Op3on: Talk with Oﬃce of Management and Budget q In addi3on to the public comment process, for execu3ve agencies, there is a parallel process q The White House Oﬃce of Management and Budget has an oﬃce—the Oﬃce of Informa3on and Regulatory Aﬀairs (OIRA)—that reviews rules q Series of Execu3ve Orders governs this process q These Execu3ve Orders require agencies to perform regulatory impact analysis, which OIRA reviews q Public can direct comments to OIRA
20. Execu3ve Orders • President Clinton (1993) • E.O. 12866 focused OIRA oversight on “signiﬁcant” rules • Beneﬁts must “jus3fy” costs • Qualita3ve factors can be considered • Agencies must develop plans for retrospec3ve analysis • President Obama: Reaﬃrmed and added to E.O. 12866 in E.O. 13563
21. "Are you achievingthis regulatoryobjective in thesmartest, mosteffective, mostefficient waypossible?”OIRA Staffer Michael Fitzpatrick, quoted at http://www.npr.org/2011/11/28/142721675/obama-office-alters-more-federal-rules-than-bush
22. Major Elements of Regulatory Impact Analysis 1. Deﬁne the desired outcome. 2. Deﬁne and iden3fy the root cause of the systemic problem that must be solved to achieve the desired outcome. 3. Develop a wide variety of alterna3ves and assess their eﬀec3veness. 4. Assess costs, beneﬁts, cost-‐eﬀec3veness, and net beneﬁts of alterna3ves.
23. An Everyday Example of Economic Analysis
24. Requirements Vary With Importance of Regula3on • 3000-‐4000 ﬁnal regula3ons issued annually • 200-‐400 “signiﬁcant” ﬁnal rules include basic cost/beneﬁt analysis and are reviewed by OIRA • 60-‐100 “major” or “economically signiﬁcant” ﬁnal rules (> $100 million annual impact) require a full Regulatory Impact Analysis • Regula3ons with impact exceeding $1 billion must have a formal quan3ta3ve uncertainty analysis
25. Oversight Op3on: Check to See if All Major Rules Are Being Flagged
26. Sample Regulatory Impact Analysis REGULATORY IMPACT We have examined the impact of the ANALYSIS joint interagency Rule being issued to interpret and implement the For Secure and Fair Enforcement for Registra>on of Mortgage Loan Mortgage Licensing Act of 2008, Title Originators Final Rulemaking V of the Housing and Economic January 8, 2010 Recovery Act of 2008 (P.L. 110-‐289, 122 Stat. 2654, 12 U.S.C. 5101 et (Revised July 1, 2010) seq.) (. . . The joint interagency Rule Oﬃce of the Comptroller of requires loan originators to register the Currency and disclose their registra3on hJp://www.regula3ons.gov/#! numbers to consumers. documentDetail;D=OCC-‐2010-‐ 0007-‐0002
27. Regulatory Impact Analysis This is the es3mate used for com-‐ parison.
28. Regulatory Impact Analysis This is the lowest cost op3on.
29. Regulatory Impact Analysis IX. Conclusion Because of the constraints described above, the Agencies are precluded from implemen3ng the Act using the less costly performance standard described in this RIA that reduces the burden imposed on banks through automa3on. Accordingly, given the constraints imposed on OCC by the Act, and based on the es3mated mean cost, the joint interagency Rule is the least cost op3on available to the OCC.
30. Regulatory Impact Analysis The Act, therefore, sets forth an atypical principal/vendor rela3onship in which the Agencies are required to proceed by developing modiﬁca3ons to an exis3ng state licensing system and are not free to use a compe33ve process to select a vendor or create a new registry designed solely for federal registrants. This limita3on on the Agencies’ choice of registry plalorm creates a monopoly for its operator, SRR (a wholly owned subsidiary of the CSBS). This situa3on severely limited the ability of the Agencies to nego3ate the range and type of implementa3on op3ons that could have increased eﬃciency and reduced the regulatory burden (i.e., the cost) of the joint interagency Rule.
31. Comparing Alterna3ves Some3mes None of the Op3ons is Good hJp://water.epa.gov/scitech/wastetech/guide/construc3on/upload/2008_11_25_guide_construc3on_proposed_proposed-‐econ-‐20081114.pdf
32. Oversight Op3on: Ask for RIA Results • Ask regulators to let you know when an RIA shows nega3ve net beneﬁts • Ask regulators to let you know when the statute prevents them from pursuing an alterna3ve that would be more cost-‐ eﬀec3ve
33. Grading the Regulators
34. Oversight Op3on: Ask Ques3ons about the Regulatory Impact Analysis Based on Report Card Regulatory Scoring Agency: Treasury et. al. Rule title: Risk-Based Capital Guidelines; Capital Adequacy Guidelines; Capital Maintenance: Standardized Risk-Based Capital Rules (Basel II: Standardized Option) RIN 1557-AD07 RIA Yes Stage Publication Date Proposed Rule 7/29/2008 Rule summary: The Office of the Comptroller of the Currency (OCC), Board of Governors of the Federal Reserve System (Board), Federal Deposit Insurance Corporation (FDIC), and Office of Thrift Supervision (OTS) (collectively, the agencies) propose a new risk-based capital framework (standardized framework) based on the standardized approach for credit risk and the basic indicator approach for operational risk described in the capital adequacy framework titled ‘‘International Convergence of Capital Measurement and Capital Standards: A Revised Framework’’ (New Accord) released by the Basel Committee on Banking Supervision. The standardized framework generally would be available, on an optional basis, to banks, bank holding companies, and savings associations (banking organizations) that apply the general risk- based capital rules. Openness Score Comments 1. How easily were the RIA, the proposed rule, and any supplementary materials found online? 3 See Topic 1 Tab 2. How verifiable are the data used in the analysis? 1 See Topic 1 Tab 3. How verifiable are the models and assumptions used in the analysis? 2 See Topic 1 Tab 4. Was the Regulatory Impact Analysis comprehensible to an informed layperson? 3 See Topic 1 Tab Total Openness (Sum of 1-4) 9 Analysis Score Comments 5. How well does the analysis identify the desired outcomes and demonstrate that the regulation will achieve them? 1 See Topic 2 Tab 6. How well does the analysis identify and demonstrate the existence of a market failure or other systemic problem the regulation is supposed to solve? 3 See Topic 2 Tab 7. How well does the analysis assess the effectiveness of alternative approaches? 3 See Topic 2 Tab 8. How well does the analysis assess costs and benefits? 2 See Topic 2 Tab
35. Independent Regulatory Agencies • Not subject to execu3ve orders on economic analysis • Some3mes their own organic statutes require them to do analysis • Tend not to do economic analysis absent a statutory/judicial prompt
36. Oversight Op3on: Ask the Independent Regulators to Do Regulatory Impact Analysis • Regulatory impact analysis is a tool that regulators should use regardless of whether they are told by statute or execu3ve order to do so • One could argue that the principles of good rulemaking derived from the Administra3ve Procedure Act requires economic analysis
37. Sample Statutory Requirement: SEC Whenever pursuant to this subchapter the Commission is engaged in rulemaking and is required to consider or determine whether an ac3on is necessary or appropriate in the public interest, the Commission shall also consider, in addi3on to the protec3on of investors, whether the ac3on will promote eﬃciency, compe33on, and capital forma3on. 15 U.S.C. § 77b(a)
38. Judicial Assessment of SEC’s Economic Analysis . . . Here the Commission inconsistently and opportunis3cally framed the costs and beneﬁts of the rule; failed adequately to quan3fy the certain costs or to explain why those costs could not be quan3ﬁed; neglected to support its predic3ve judgments; contradicted itself; and failed to respond to substan3al problems raised by commenters. . . . Business Roundtable v. SEC, 647 F.3d 1144 (D.C. Cir. 2011).
39. Sample Statutory Requirement: CFTC Costs and beneﬁts (1) In general Before promulga3ng a regula3on under this chapter or issuing an order (except as provided in paragraph (3)), the Commission shall consider the costs and beneﬁts of the ac3on of the Commission. (2) Considera>ons The costs and beneﬁts of the proposed Commission ac3on shall be evaluated in light of— (A) considera3ons of protec3on of market par3cipants and the public; (B) considera3ons of the eﬃciency, compe33veness, and ﬁnancial integrity of futures markets; (C) considera3ons of price discovery; (D) considera3ons of sound risk management prac3ces; and (E) other public interest considera3ons. 7 U.S.C. § 19(a).
40. Judicial Assessment of CFTC’s Economic Analysis . . . whether the beneﬁts of the Final Rule outweigh its costs is within the sound discre3on of the agency. The agency must only show the Court that it considered and evaluated the costs and beneﬁts as it was required to do by statute. . . . The CFTC fulﬁlled its obliga3on under the CEA to consider the costs and beneﬁts of its proposed rule. ICI v. CFTC, (D.D.C. 2012).
41. Inspector General’s Assessment of CFTC’s Economic Analysis We recognize that cost-‐beneﬁt analysis does not possess anywhere near the exac3tude of, say, calculus, but it does provide structure for evalua3on. A more robust process is clearly permiJed under the cost-‐beneﬁt guidance issued by the Oﬃce of General Counsel and the Oﬃce of Chief Economist, and we believe a more robust approach would be desirable, with greater input from the Oﬃce of Chief Economist. Oﬃce of Inspector General, CFTC, An Inves3ga3on Regarding Cost-‐Beneﬁt Analyses Performed by the Commodity Futures Trading Commission in Connec3on with Rulemakings Undertaken Pursuant to the Dodd-‐Frank Act (Apr. 15, 2011)
42. Sample Statutory Requirement: CFPB STANDARDS FOR RULEMAKING.—In prescribing a rule under the Federal consumer ﬁnancial laws— (A) the Bureau shall consider— (i) the poten3al beneﬁts and costs to consumers and covered persons, including the poten3al reduc3on of access by consumers to consumer ﬁnancial products or services resul3ng from such rule; and (ii) the impact of proposed rules on covered persons, as described in sec3on 1026, and the impact on consumers in rural areas; Dodd-‐Frank § 1022(b)(2) [12 U.S.C. § 5512 (b)(2)].
43. GAO’s Assessment of Federal Financial Regulators’ Economic Analysis By taking steps to more fully incorporate OMB’s guidelines in their rulemaking policies and procedures, federal ﬁnancial regulators could enhance the rigor and transparency of their regulatory analyses. By taking such ac3on, regulators could demonstrate the ra3onale behind their regulatory decisions and ensure that the alterna3ves they have chosen are in fact the most cost-‐beneﬁcial op3ons. Government Accountability Oﬃce, Dodd-‐Frank Act Regula3ons: Implementa3on Could Beneﬁt from Addi3onal Analyses and Coordina3on (Nov. 2011), at 37.
44. Oversight Op3on: Bring in Reinforcements • An agency’s inspector general can take a look at how the agency is making its rules, se€ng its priori3es, etc. • The GAO can look at how well agencies are conduc3ng and coordina3ng analysis, par3cularly when a statute mandates mul3ple, simultaneous rulemakings • You can encourage an independent regulatory agency to bring in the OMB for consulta3on
45. Regulatory Flexibility Act • Requires agencies to analyze the eﬀects of their rules on small en33es and look for ways to minimize the burden on small en33es • Doesn’t apply to rules that are issued as ﬁnal without a proposal • Agency either has to: v cer3fy, aPer a threshold analysis, that a rule will not have a signiﬁcant economic impact on a substan3al number of small en33es, or v complete and publish in the Federal Register an Ini3al Regulatory Flexibility Analysis (IRFA) and—if it s3ll can’t cer3fy—a Final Regulatory Flexibility Analysis (FRFA) • Chief Counsel for Advocacy at the Small Business Administra3on receives a copy of these analyses and monitors compliance with the Act • Public has opportunity to comment • OSHA, EPA and CFPB have to form SBREFA panels, which formalize outreach to small en33es • Requires agencies to review rules with signiﬁcant impact within 10 years • Allows for judicial review
46. Sample Reg Flex Cer3ﬁca3on V. Regulatory Flexibility Act The Council cer3ﬁes that this ﬁnal rule will not have a signiﬁcant economic impact on a substan3al number of small en33es. The economic impact of this rule is not expected to be signiﬁcant. The ﬁnal rule would apply only to nonbank ﬁnancial companies that could pose a threat to the ﬁnancial stability of the United States. Size is an important factor, although not the exclusive factor, in assessing whether a nonbank ﬁnancial company could pose a threat to ﬁnancial stability. The Council expects that few, if any, small companies (as deﬁned for purposes of the Small Business Act) could pose a threat to ﬁnancial stability. Therefore, the Council does not expect the rule to directly aﬀect a substan3al number of small en33es. Accordingly, a regulatory ﬂexibility analysis under the Regulatory Flexibility Act (5 U.S.C. 601-‐612) is not required. FSOC, Authority to Require Supervision and Regula3on of Certain Nonbank Financial Companies, 77 FR 21637 (Apr. 11, 2012).
47. Oversight Op3on: Work with the SBA • The SBA’s Oﬃce of Example: Advocacy weighed in on CFPB’s mortgage rules: Advocacy works on ensuring that small “The CFPB asserted that loan en33es are taken into performance, as measured by the delinquency rate, was an appropriate account in the metric to evaluate whether a rulemaking process consumer had the ability to repay those loans at the 3me the loan was • The Oﬃce also assists made. Advocacy ques3oned that in the review of asser3on because a consumer’s exis3ng regula3ons to circumstances may have changed aPer a loan was made.” minimize regulatory -‐Oﬃce of Advocacy, SBA, Report on the burdens Regulatory Flexibility Act, FY 2012, at 23.
48. Oversight Op3on: Ask Ques3ons about Paperwork Reduc3on Act Analysis • Agencies have to es3mate burdens of and jus3fy collec3ons of informa3on. • Agencies are supposed jus3fy their informa3on collec3ons. • OIRA reviews and approves collec3ons before they take eﬀect and every 3 years thereaPer. • No obliga3on to comply with unapproved collec3on of informa3on.
49. Oversight Op3on: Ask Ques3ons About Unfunded Mandates Reform Act Analysis • Requires analysis of “major” regula3ons (mandate exceeding $100 million annually) • Focus is on costs imposed on non-‐federal governmental bodies and private sector • Required analysis includes qualita3ve and quan3ta3ve analysis of costs and beneﬁts and considera3on of alterna3ves • Requirement to choose or explain why not choosing least burdensome alterna3ve
50. Oversight Op3on: Congressional Review Act • Members can introduce a resolu3on to disapprove a ﬁnal rule within 60 days of receiving it. • If President vetoes the resolu3on, 2/3 majority is needed in both houses. • Has only been used successfully once: 2001 disapproval of an OSHA rule
51. Judicial Review q Legal challenge can be based on failure to follow APA process v Agency ac3ons must have suﬃcient factual support in the record v Agency ac3ons must not be arbitrary or capricious v Agency must have no3ﬁed the public and considered public comments q If an agency used the good cause excep3on not to comply with standard APA procedures, this decision can be challenged in court q The quality of the agency’s analysis can be challenged (although EO 12866 is not judicially enforceable) q Courts employ a deferen3al review standard
52. Oversight Op3on: File An Amicus Brief STATEMENT OF INTEREST As the United States Senators who were the authors and sponsors of Sec3on 1504 (hereinaPer “the Cardin-‐Lugar Amendment”) of the Dodd-‐Frank Wall Street Reform and Consumer Protec3on Act (P.L. 111-‐203, July 21, 2010 (hereinaPer the “Dodd-‐Frank Act”), amici curiae have direct knowledge of the development and draPing of the text and the Congressional intent behind the substance of the bill, including the consistency of the Securi3es and Exchange Commission (“S.E.C.” or “Commission”) ﬁnal rule (“Final Rule”) with the substance and intent of the Cardin-‐Lugar Amendment. 2 Brief of Senators Benjamin Cardin and Carl Levin and Former Senator Richard Lugar as Amici Curiae in Support of Respondent, American Petroleum Ins3tute v. SEC, D.C. Cir., No. 12-‐1398 (Jan. 16, 2013).
53. Oversight Op3on: Make Regulators Look Back • Ask regulators to tell you how a rule is working • This works best when you have goJen them to build success metrics into the regula3on. Otherwise, they will be tempted to select metrics that show success. • President Obama issued an execu3ve order calling on regulators to look back.
54. An Example of a Built-‐In Look Back And in most respects this rule is consistent with the desire to be careful, thoughlul and data driven. Most importantly, we build into the rulemaking, aPer the regulatory structure for security-‐based swaps is in place for two years, a comprehensive staﬀ study of some of the choices we are making today, to determine whether those choices are correct or need to be modiﬁed. At that 3me, we will have the beneﬁt of massive amounts of addi3onal data, a more developed regulatory infrastructure, and several years of agency exper3se in regula3ng and overseeing these markets. The Commission will be in a far stronger posi3on to determine whether the lines we draw today-‐-‐including the de minimis level for determining whether one is a dealer, and the factors used to determine whether one is a dealer or major security-‐based swap par3cipant—should be modiﬁed in light of a more comprehensive understanding of the market. Importantly, it should be noted, the study doesn’t predetermine the ul3mate outcome of these choices, but merely allows that more comprehensive data and analysis will guide any decisions the Commission may make to modify or reﬁne the deﬁni3ons we are adop3ng today. Statement at SEC Open Mee3ng: Deﬁning Swaps-‐Related Terms, by Commissioner Daniel M. Gallagher, on April 18, 2012
55. Where to Look? • Agency Websites (for example, hJp://www.cPc.gov/index.htm) • Regula3ons.gov hJp://www.regula3ons.gov/#!home;tab=search • Federal Register hJps://www.federalregister.gov/ar3cles/search • OpenRegs.com hJp://openregs.com/ • OMB’s OIRA Website hJp://www.reginfo.gov/public/ • GAO’s CRA website hJp://www.gao.gov/legal/congressact/fedrule.html
56. Oversight Op3on: General Monitoring q Direct involvement in the rulemaking process is not the only avenue for aﬀec3ng it. q Other op3ons include oversight hearings, brieﬁng requests, leJers, appropria3ons riders. q These are blunt instruments, but can be eﬀec3ve in le€ng regulators know someone is paying aJen3on.