Rulemaking for Federal Agencies

Many federal agencies are tasked with regulating and overseeing financial markets and institutions in the United States—including the Securities and Exchange Commission (SEC), the Federal Deposit Insurance Corporation (FDIC), and the Consumer Financial Protection Bureau (CFPB), among others. The U.S. Congress authorizes these and other federal agencies and grants many of them wide-ranging authority to make rules pertaining to their individual areas of specialization.

These rules are crucial to the proper functioning of financial markets and institutions, although it is not always transparent how the rules are made. Below, we explore how some of the best-known federal financial agencies create rules.

Overview of the Federal Rulemaking Process

Congress grants authority to federal agencies to allow them to implement a variety of rules related to statutory programs. Agencies often have highly specialized and technical expertise that Congress lacks, although Congress does retain oversight and the ability to repeal any regulations in these cases. Once completed, federal agency rules carry the force and effect of law.

A federal agency that has been granted rulemaking authority by Congress must follow a generalized procedure to finalize a rule and make it legally binding. This process is in place to ensure that a thorough analysis of regulatory changes occurs before any change takes effect. Many of these procedural components are established and required by the Administrative Procedure Act (APA). The process also involves close oversight by the Office of Management and Budget’s Office of Information and Regulatory Affairs (OIRA). The OIRA was established as a central reviewer of federal agency rules by then-President Ronald Reagan in 1981.

Once Congress has authorized a federal agency to make rules, the general rulemaking process looks like this:

1. Federal agency creates a draft of the proposed rule.
2. OIRA completes review of the draft of the proposed rule.
3. Agency publishes the proposed rule.
4. Agency receives comments and makes changes to the rule.
5. OIRA completes review of the draft of the final rule.
6. Agency publishes the final review.
7. Rule is subjected to either judicial or congressional review.

Congress may utilize the Congressional Review Act (CRA) to overturn rules, and a court may vacate agency rules under certain circumstances as well. Additionally, the process provides the public an opportunity to submit comments during the drafting and review process, which may have an impact on the final rule.

Rulemaking by Federal Agencies in the Financial Space

While the broader rulemaking process for federal agencies follows the procedures listed above, some of the federal agencies tasked with regulating the financial space adopt additional or varied procedures as well. Below, we explore the rulemaking procedure for several of these agencies.

Securities and Exchange Commission (SEC)

The Securities and Exchange Commission (SEC) oversees the functioning of the U.S. securities markets. It also facilitates capital formation and works to protect investors from fraud and manipulative market behaviors.

Rules created by the SEC typically originate in one of three agency divisions: Market Regulation, Corporate Finance, or Investment Management. The SEC’s Office of General Counsel (OGC) and Office of Economic Analysis (OEA) are typically involved in the process as well, to ensure that rules comply with existing policies, statutes, and regulations, and to conduct a cost-benefit analysis regarding economic impacts, respectively.

The SEC’s rulemaking process begins either with a rule proposal, as in the broader rulemaking procedure above, or with a solicitation of public input on appropriate approaches to a given issue. In the latter case, the SEC will issue a release or hold public hearings describing the topic and the SEC’s concerns. The SEC then reviews public feedback in creating the proposed rule. The rulemaking process then continues as in the procedure described above.

The SEC maintains a chronological list of proposed rules dating back to 1988 on its website.

Federal Reserve Board (FRB)

Also known as the Board of Governors of the Federal Reserve System, the Federal Reserve Board (FRB) is the governing body of the central bank of the U.S. The FRB is charged with setting monetary policy in accordance with a set of principles prioritizing employment and stable prices, among other goals.

The FRB is charged by Congress with implementing the Federal Reserve Act, in part through enacting a series of regulations. The FRB follows a process similar to the other agencies on this list and posts pending proposed amendments on its website to solicit feedback from the public. The agency also provides compliance guides for its regulations.

Federal Deposit Insurance Corporation (FDIC)

The Federal Deposit Insurance Corporation (FDIC) insures deposits in U.S. banks and thrifts in the case of bank failures. It was created following the Great Depression in an effort to stabilize the banking system and build public trust.

The FDIC publishes proposed rules and information about public commenting in the Federal Register, which is the U.S. government’s daily journal, as well as through its own website. The agency states that its goal is to implement regulations in the “least-burdensome manner possible” and in such a manner as to ensure that regulations and policies achieve their goals effectively. Additionally, the FDIC periodically reviews its regulations and policy statements to maintain their effective, efficient status. This review process has included conferences, internal reviews, public participation, and other mechanisms to reduce burden and improve transparency.

Consumer Financial Protection Bureau (CFPB)

Among the newest federal agencies in the financial space, the Consumer Financial Protection Bureau (CFPB) was created in 2010 by the passage of the Dodd-Frank Wall Street Reform and Consumer Protection Act. It aims to educate and protect consumers in the financial sector.

The CFPB provides rules governing a host of financial institutions and has a detailed rulemaking process. The Dodd-Frank Act requires the agency to form a Small Business Review Panel when it is creating a rule that may have a significant impact on small entities. Each panel includes representatives from the CFPB, the OIRA, the Small Business Administration’s Chief Counsel for Advocacy, and a representative group of small businesses. The small business representatives receive information about the potential rule and have an opportunity to provide feedback in the panel setting. The CFPB creates a report of the content of the panel and publishes that report along with the proposed rule.

The CFPB provides an “advanced notice of proposed rulemaking” in certain—but not all—cases to solicit initial public input on potential rules. Like other agencies on this list, it also provides proposed rules to the public in an effort to gain feedback that may or may not affect the final rule. In some cases, the CFPB provides what it calls “interim final rules,” or rules that are implemented without a public comment period beforehand. The agency may request comments and make alterations to these rules later on.

Office of the Comptroller of the Currency (OCC)

The Office of the Comptroller of the Currency (OCC) charters, regulates, and supervises national banks and other federally chartered savings associations. This agency has the power to take supervisory actions against banks, remove bank directors, and deny applications for new bank branches, among other things.

The OCC provides issuances on activities permissible for banks and associations under its jurisdiction, as well as on office bulletins and interpretations and actions. Like other agencies, it publishes proposed rules for public comment before making final determinations. The OCC is advised by the Legislative and Regulatory Activities Division of its Law Department in the rulemaking process.

Financial Industry Regulatory Authority (FINRA)

The Financial Industry Regulatory Authority (FINRA) has regulatory powers, but is not a government agency. It is a not-for-profit entity and the largest self-regulatory organization (SRO) in the securities industry within the U.S. FINRA oversees registered brokers and broker-dealer firms in the U.S. It aims to protect the public from fraud and bad practices by these institutions.

FINRA has a complex rulemaking process consisting of 10 steps:

1. New rule is proposed (by FINRA firms, investors, interested parties, other regulatory bodies, etc.)
2. Internal review by FINRA
3. Presentation of proposed rule to FINRA committees
4. Submission of proposed rule to FINRA board
5. Regulatory notice and solicitation of public comments
6. Filing of rule with the SEC
7. SEC publishing of proposed rule in the Federal Register for comment
8. FINRA response to comments received
9. SEC approval of proposed rule
10. FINRA issuance of a regulatory notice of finalized rule

The Bottom Line

Congress authorizes federal agencies such as the SEC, the FDIC, and the OCC to create rules concerning their areas of specialization. These agencies must go through rigorous and complex rulemaking processes that involve multiple drafts, periods of review, and an opportunity for the public to provide comments. When finalized, these rules carry the force and effect of law.