Washington — President Donald Trump plans to nominate Treasury Department official Heath Tarbert to serve as commissioner and the next chairman of the US Commodity Futures Trading Commission, replacing Christopher Giancarlo, the White House said Wednesday.
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Giancarlo, whose term expires in April 2019, has previously said he would not seek a second term and would stay on until the new chairman has been confirmed.
The changeover could have implications for rulemakings impacting energy sector derivatives, including a long-delayed action setting federal position limits, capital requirements for swap dealers, as well as recently proposed amendments to requirements for swaps execution facilities.
Tarbert currently serves as assistant secretary for international markets at Treasury, where he focuses on investment security. He was a legal advisor to President Obama on the response to the financial crisis in 2008 and 2009, and a law clerk for Supreme Court Justice Clarence Thomas. He also served as special counsel to the Senate Committee on Banking, Housing and Urban Affairs during negotiations leading up to the Dodd-Frank Act, and as vice president of the Committee on Capital Markets Regulation. In the private sector, he worked for the law firm of Allen & Overy, as well as Weil Gotshal and Manges.
Giancarlo, in a statement, said the White House had made a "superb choice," and that Talbert "will be well suited to continue the work of transitioning the CFTC into a 21st Century digital regulator that balances concerns over systemic stability with market vibrancy to support strong economic growth and American prosperity."
Despite Tarbert's extensive experience and Giancarlo's endorsement, some energy sector interests approached the changeover with caution.
"Giancarlo has been a champion for making regulations work and the markets work, rather than seeking to get rules in place strictly from a Dodd-Frank perspective," said Phil Lookadoo, partner at Haynes and Boone. That stands in contrast to the approach taken by former CFTC Chairman Gary Gensler, who worked to put in place quickly regulations stemming from the new law, he said. Giancarlo has been "a breath of fresh air" for those who use the swap markets to hedge exposure to risk, he added.
CFTC observers differed over the prospects for action on position limits before Giancarlo steps down, and whether a change in leadership could bog down that process. At issue is a long-delayed regulation setting federal position limits in 25 physical commodity futures and swap markets.
Giancarlo, who has found fault with the CFTC's prior take on the matter, has said he would like to see a new proposal early in the 2019. Statements by Democratic Commissioner Dan Berkovitz supportive of a role for the exchanges in overseeing federal position limits may indicate friction is easing over the regulation, said Tyson Slocum of Public Citizen. Giancarlo in debate over the rule has backed a role for exchanges in overseeing hedge exemptions to position limits.
"We are not letting up on any rulemakings, so everything is still going ahead," said CFTC spokeswoman Erica Elliott Richardson, though she added the timing of the regulation is not yet determined.
Jenny Fordham of the Natural Gas Supply Association said the trade group urged Giancarlo to complete the position limits rule before he leaves.
"Our call for position limits was the first time we called for action on the issue," she said, noting that was in the interest of ending uncertainty. In that context, she noted that Giancarlo has been mindful of the importance of exemptions for hedging in position limits regulations and the need for "appropriately set limits."
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