House Committee on Agriculture Chair Rep. K. Michael Conaway (R-TX) asked CFTC Chair Timothy Massad to "refrain from pushing through controversial regulations" for the remainder of his tenure.

In a recent letter, Rep. Conaway cited three ongoing CFTC rulemakings to curtail: (1) Regulation AT, the comment period for which he urged the CFTC to extend by 180 days, (2) the position limits rule proposal, which he said lacked sufficient time to be analyzed properly before the regime change; and (3) the proposed cross-border application of the registration threshold (i.e., the "arranged, negotiated, executed" proposal).

After emphasizing the importance of his request, Rep. Conaway commended Chair Massad for his work at the CFTC, and praised his leadership at an agency that had been "reeling from previous mismanagement."

Commentary / Steven Lofchie

If ever a rulemaking reflected the triumph of political ideology over economic reality, it is the position limits proposal. It should be obvious to all by now that the price of energy is not driven by "speculation" but by world events, such as potential war in the Middle East, developments in Iran, Russia and Venezuela, economic activity in China, and the development of fracking. CFTC Chair Massad should at least admit the possibility that the rulemaking was ill-conceived or, failing that, defer the issue to the next regime. Is there really a policy basis for pushing through an energy position limits proposal that even its most devoted advocates can justify only by suggesting that it might do some good (see Commissioner Bowen Supports Position Limits) during a time when the world is awash in energy suppliers?

Commentary / Nihal Patel

A review of the record suggests that there were no comparable letters from Rep. Conaway to the head of an agency during the period of November-December 2008 that reflected his present concerns. Notwithstanding his previous silence, so-called "midnight" regulation took place in 2008, as it did during previous transitions. See generallyO'Connell, Agency Rulemaking and Political Transitions, 105 Nw. U. L. Rev. 471 (2011).

This is not to say that it is good policy for agencies to effect change in this manner (it probably isn't), or that the CFTC should act on these particular proposals (it probably shouldn't). It is simply worth noting that the CFTC's activity in this time period, and the responses to that activity, are all par for the course.

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