Committee on Capital Markets Regulation's Executive Director for Research Testifies that Sound Cost-Benefit Analysis "Must Be a Part" of Rulemaking

WASHINGTON, April 17, 2012 /PRNewswire-USNewswire/ -- Jacqueline C. McCabe, Executive Director for Research of the Committee on Capital Markets Regulation testified before the TARP, Financial Services and Bailouts of the House Oversight and Government Reform Committee today, warning that inadequate cost benefit analysis by regulators rulemaking under Dodd-Frank risks successful legal challenges and/or litigation delays which will cause economic harm.

Ms. McCabe recapped a recent study by the Committee on cost-benefit analysis in 192 orders, proposed rules and final rules issued by 15 government agencies pursuant to Dodd-Frank:

"…we believe many of the rules under Dodd-Frank could be subject to successful challenge in court. It would be an unfortunate outcome if, after the Dodd-Frank rulemaking process has run its course for several years, important rules are invalidated because of inadequate analysis. Even if such rules are not eventually invalidated, prolonged uncertainty around their fate threatens to hamper economic activity."

With regard to the recently issued SEC Internal Guidance on Economic Analysis in SEC Rulemakings she said that, "We are pleased that the SEC has recognized the need to consider the overall economic impact of its rules, including both SEC rulemaking pursuant to Congressional mandates, as well as entirely discretionary SEC rulemaking... The SEC acknowledges that this approach will provide the most complete evaluation of a rule's economic effect, particularly because in many cases it is difficult to distinguish between mandatory and discretionary aspects of a rule." 

She also addressed recent CFTC Internal Guidance, which is contrary to the SEC's Internal Guidance, "The SEC's approach to this issue of discretion stands in contrast to that taken by the CFTC. In staff guidance issued by the CFTC General Counsel and Chief Economist last May, the CFTC advised its staff that if rulemaking provisions under Dodd-Frank  'merely replicate the statutory provisions the Commission is required to promulgate without the exercise of discretion, then cost-benefit considerations may not be a factor in the promulgation of the rule.'"

Ms. McCabe concluded that: "…in calling for better cost-benefit analysis as part of the rulemaking process, we are not suggesting that the Dodd-Frank rulemaking process should be sidetracked or delayed. Many provisions of Dodd-Frank are crucial to ensuring the safety and soundness of our financial markets, and thus should be made effective as soon as possible." However, "Rules needed to protect the financial system can be put in jeopardy by the failure to conduct a cost-benefit analysis that can withstand judicial scrutiny.  We commend the new direction the SEC has taken on this issue and would hope other agencies would follow suit.

For further information please visit: http://capmktsreg.org/

Contact Information:

Jacqueline C. McCabe                                                  Hal Scott
Executive Director for Research                                     Director
Committee on Capital Markets Regulation                      Committee on Capital Markets Regulation   
jmccabe@capmktsreg.org                                             hscott@law.harvard.edu
617.384.5364                                                               617.384.5364

 

SOURCE Committee on Capital Markets Regulation



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http://www.capmktsreg.org

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