March 15, 2019
by Elizabeth Lan Davis

On March 13, 2019, the Senate Agriculture Committee held its hearing on the nomination of Dr. Heath Tarbert to replace current CFTC Chairman J. Christopher Giancarlo, whose term is set to expire in mid-April.[1]  Tarbert currently serves as the Assistant Secretary for Institutional Markets at the Treasury Department.  With indications of bipartisan support for his nomination, Tarbert is widely expected to be confirmed and to arrive at the CFTC this summer.  The hearing provided insights into what is in store for the CFTC’s regulatory and enforcement regimes under Tarbert’s watch.

On the regulatory front, Tarbert testified that he would ensure that the CFTC has proper funding and would work to finalize a number of pending Dodd-Frank regulations.  Tarbert committed to finalizing a position limits rule, and stated that the rule is meant to address speculative limits and that bona fide hedgers need access to exemptions.  While Tarbert needed to look further into concerns about concentration in the swaps market, he does not anticipate revisiting $8 million de minimis exception to swap dealer registration.  Tarbert noted, however, that the more swaps that are centrally cleared and traded on swap execution facilities, the more transparent and more liquid the markets will become.  Automated trading looks to be back on the table as Tarbert commented that he would reopen discussions regarding Regulation Automated Trading (Reg AT).  Tarbert also opposed EU oversight over US clearing houses and stated that US CCPs should be exclusively supervised by US regulators.  On the cybersecurity and FinTech fronts, Tarbert commented on the need for additional authority to address the CFTC’s cybersecurity capabilities and tools, as well as the need to balance the opportunities and risks that the evolving FinTech landscape provides.

The current initiatives and priorities of the CFTC’s Division of Enforcement (“DOE”) will likely continue and expand.  Tarbert stated that he would keep DOE the largest division of the agency and would invest resources as needed.  Look for more individuals being held accountable for their violations of the Commodity Exchange Act, and a continued push for individuals and companies to self-report and cooperate with the DOE.  This is especially notable given the CFTC’s recent announcement of its self-reporting and cooperation advisory relating to potential violations of the Commodity Exchange Act relating to foreign corrupt practices.[2]  Tarbert stated that while he does not believe in leniency, he noted the utility of self-reporting can be useful, assuming that it is followed up with systematic self-correction.  Tarbert also highlighted the need for coordination with other regulators and law enforcement to pursue criminal charges.  

 

[1] Nomination Hearing, U.S. Senate Committee on Agriculture, Nutrition, & Forestry (Mar. 13, 2019), available at: https://www.agriculture.senate.gov/hearings/nomination-of-heath-p-tarbert.

[2] Walsh. B, Davis. E, Cooper. K, CFTC Announces Enforcement and Cooperation Approach in Connection with Commodity Exchange Act Violations Involving Foreign Corrupt Practices (Commodity Corner, Mar. 7, 2019), available at:  https://www.commodity-corner.com/blog/commodity-corner/cftc-announces-enforcement-and-cooperation-approach-in-connection-with-commodity-exchange-act-violations-involving-foreign-corrupt-practices-698/.

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