Editor’s note: This is general educational information about how a US securities regulator comes to reopen a rule it has already adopted. It is not investment advice. It relies on the statutes and Federal Register documents listed at the end.
Rules do not get reconsidered because someone at an agency has a better idea. There is a statutory machine that decides when an existing rule gets looked at again, who may push it onto the list, and what the reviewer has to weigh. The machine is slow, published in advance, and almost entirely ignored by the market it governs.
Three separate mechanisms can put an adopted rule back on a regulator’s desk, and they operate on different clocks.
The calendar: a mandatory ten year review
The Regulatory Flexibility Act, codified at 5 U.S.C. 601 through 612, requires each agency to review rules that have a significant economic impact upon a substantial number of small entities within ten years of their publication as final rules. Section 610 sets the purpose of that review: to determine whether the rules should be continued without change, or should be amended or rescinded, consistent with the stated objectives of applicable statutes, to minimize any significant economic impact on a substantial number of such small entities.
The statute also fixes what the reviewer must consider. Five factors are listed: the continued need for the rule; the nature of complaints or comments received about it from the public; its complexity; the extent to which it overlaps, duplicates or conflicts with other federal rules and, to the extent feasible, with state and local rules; and the length of time since the rule was evaluated, or the degree to which technology, economic conditions or other factors have changed in the area affected.
Section 610 also requires each agency to publish annually in the Federal Register a list of the rules to be reviewed in the succeeding twelve months, with a brief description of each rule and the need for and legal basis of it, and to invite public comment. Where completion is not feasible by the established date, the agency head must so certify in the Federal Register and may extend the completion date by one year at a time, for not more than five years in total.
What that looks like in practice
The Securities and Exchange Commission published its list for the current cycle on January 12, 2026, under Release Nos. 33-11399, 34-104555, IA-6936 and IC-35865, File No. S7-2026-02, with comments due by February 11, 2026. The list covers rules adopted in 2016, excluding rules substantially changed since adoption, minor amendments to previously adopted rules, and rules that are ministerial, procedural or technical.
The entries are specific. One is the 2016 amendment to Exchange Act Rules 12g-1, 12g-2, 12g-3, 12g-4 and 12h-3 reflecting the higher registration and deregistration thresholds set by the Jumpstart Our Business Startups Act and Title LXXXV of the Fixing America’s Surface Transportation Act, together with the revision of the definition of held of record in Rule 12g5-1. The Commission adopted those amendments on May 3, 2016 in Release Nos. 33-10075 and 34-77757, published in the Federal Register on May 10, 2016 at 81 FR 28689, having proposed them in Release Nos. 33-9693 and 34-73876, published on December 30, 2014.
Another entry covers the Form ADV and Investment Advisers Act rules adopted on August 25, 2016 in Release No. IA-4509, and a third covers Investment Company Reporting Modernization. In each case the notice records where the prior regulatory flexibility analyses were published, so a commenter can compare what the Commission predicted with what happened.
The Commission states in the notice that it particularly solicits comment on whether the listed rules affect small businesses in new or different ways than when they were first adopted. That is the actual question a section 610 review asks.
The other two routes in
The second route is a petition. Under 5 U.S.C. 553(e), each agency must give an interested person the right to petition for the issuance, amendment or repeal of a rule. Nothing obliges the agency to grant it, but the request is on the record.
The third is not a review mechanism at all but a standing constraint that shapes every reconsideration. Section 3(f) of the Securities Exchange Act requires that whenever the Commission is engaged in rulemaking, or in the review of a rule of a self-regulatory organization, and is required to consider whether an action is necessary or appropriate in the public interest, it must also consider, in addition to the protection of investors, whether the action will promote efficiency, competition and capital formation.
If the agency decides to act, the process is prescribed. General notice of proposed rule making is published in the Federal Register and must state the time, place and nature of the proceedings, the legal authority for the proposal, and either the terms or substance of the proposed rule or a description of the subjects and issues involved, along with the internet address of a plain-language summary of not more than 100 words. The agency must then give interested persons the opportunity to submit written data, views or arguments, and must incorporate in the adopted rules a concise general statement of their basis and purpose. Publication of a substantive rule must be made not less than 30 days before its effective date, with narrow exceptions including a rule that grants an exemption or relieves a restriction.
Analysis: the review list is a public document that almost nobody reads
The section 610 list is the most under-used disclosure in US securities regulation. It is published annually, it names the rules whose costs the agency is about to reassess, it is open for comment, and the comment window in the January 12, 2026 notice ran to February 11, 2026. A firm that finds a 2016 disclosure requirement expensive has a statutory invitation to say so, on a schedule set ten years in advance.
The design also explains why rule reconsideration feels arbitrary from outside. The mandatory trigger is not evidence that a rule is failing. It is the passage of ten years combined with a threshold finding of significant economic impact on a substantial number of small entities. A rule that burdens only large institutions may never reach the list at all, and the notice itself excludes rules substantially changed since adoption, so a rule amended in the interval falls outside that year’s list as drafted.
What the five statutory factors do reward is documented complaint. The nature of complaints or comments received concerning the rule from the public is one of them, and it is the only factor a market participant can influence directly. Comments filed during the original adoption are already considered; comments filed now, against ten years of operating experience, are what the review is asking for.
There is one further asymmetry worth naming. Section 3(f) tells the Commission to weigh efficiency, competition and capital formation alongside investor protection when it acts, but nothing in section 610 requires it to act at all. The permitted outcome of a review is continuation without change. A careful reader tracking a rule they care about would therefore watch three things: whether it appears on the annual list, what the comment file says at the close of the window, and whether anything is published afterwards. Silence following a review is itself the agency’s answer.
