Cadwalader attorneys described several ways for the Trump Administration and Congressional Republicans, short of a repeal of the Dodd-Frank Act, to reduce the regulatory burden on the commodities markets.
In a memorandum titled: " The Trump Administration: Potential Levers of Regulatory Change Affecting the Commodities Markets," Cadwalader attorneys considered how the Congressional Review Act ("CRA") provides a mechanism for Congress to review and effectively overturn newly promulgated agency rules before they become effective, and how it may apply to "major" rules that can provide Congress with a time-limited window to reject agency action.
The attorneys debated how various agencies under a new administration could decide to amend or withdraw proposed existing agency rules pursuant to The Administrative Procedure Act ("APA"). The attorneys noted that certain provisions of the Dodd-Frank Act applicable to the commodities markets (and financial markets generally) required multiple regulators, including the CFTC, to implement rules governing the same statutory provision. The attorneys stated that, to the extent that an agency under the Obama Administration adopted a statement of policy or other "guidance," the same agency under the new Trump Administration has the discretion to retain, amend, replace, and/or withdraw the policy or guidance. The APA does not obligate an agency to engage in notice and comment rulemaking to amend, replace, and/or withdraw policy statements or guidance because they do not constitute rules under the APA.
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