Dissenting Statement of Commissioner Rostin Behnam Regarding CFTC’s Extension of Currently Open Comment Periods in Response to the COVID-19 Pandemic

April 10, 2020

I strongly support extending all current open comment periods on rule proposals, which will allow commenters to solely focus their efforts on the immediate personal and professional needs of the day, and ensure – after we collectively get through these uncertain times – that commenters are able to provide the CFTC with the most fulsome comments to these important policy proposals.  Unfortunately, today’s Commission action does not extend current open comment periods in any meaningful way, and thus I respectfully must dissent.

Five open comment periods are extended by today’s action.  However, the comment periods for three of the five rules are extended for a mere two days.  That is not an extension at all.  Instead, it is essentially an announcement that the Commission will not be extending these deadlines.  For two of these rules, the comment period opened on February 20, so the entire comment period has essentially spanned the COVID-19 pandemic.  Market participants deserve an opportunity to comment outside of current market conditions, and better rules would result.  Importantly, the COVID-19 pandemic itself may impact views on the proposed rules, and the CFTC should adjust comment periods to allow for consideration of these evolving impacts.

Similarly, today’s action extends the comment period for position limits by a mere sixteen days.  Prior position limits proposals have garnered hundreds of public comments totaling thousands of pages.  Producing these comments presumably takes months of work and careful thought by market participants and other stakeholders.  Extending the deadline to May 15 as market and public health uncertainty continues is not sufficient.

I commend agency Division Directors and staff, who are themselves adjusting in real-time to the new realities of social distancing and teleworking, for issuing no-action relief aimed at providing market participants and registrants with necessary relief.[1]  These important actions have enabled market participants and registrants to focus their efforts on business continuity, market stability, and personnel management in these turbulent times.  I also applaud the CFTC’s recent actions to issue Customer Advisories notifying the public to be on high alert for fraudsters that are seeking to profit from recent market volatility related to COVID-19.[2]

I previously stated that the CFTC should temporarily table all non-critical policy work, shifting all our efforts and resources towards monitoring market and institutional stability and resiliency, prioritizing surveillance and enforcement, working with other regulators, and exhaustively engaging with market participants to consider necessary agency action that will alleviate market disruptions and support stable financial markets.[3]

Although markets continue to show signs of normalcy and stability since the most volatile days of the last two months, there remains significant uncertainty and a steep road ahead.  Consequently, I believe comment periods should be of sufficient length to allow market participants to focus on the current crisis, which the public and country continue to endure.  I stand ready to work with the Chairman, my fellow Commissioners, and market participants to reach agreement on meaningful extensions.

-CFTC-