The Commodity Futures Trading Commission proposed to amend a March 2013 order that exempted certain electric energy transactions from most requirements under the Commodity Exchange Act and CFTC regulations. The order was for the benefit of certain regional transmission organizations ("RTOs") and independent system operators ("ISOs") and was limited to transactions for the purchase and sale of certain enumerated electric energy-related products. The order exempted relevant RTOs and ISOs from all provisions of applicable law and CFTC regulations with the exception of anti-fraud and anti-manipulation requirements, as well as specified scienter-based prohibitions. However, the order was silent on the application of the law’s private right of action authorization (click here to access this provision of law – 7 USC § 25). However in a recent federal appeals court decision, it was held that a private right of action does not exist under the CFTC’s March 2013 Order (click here to access the relevant legal decision). In response, in the proposed amendment, the Commission proposes to make clear that the private right of action provision is applicable. In a vigorous dissent, Commissioner J. Christopher Giancarlo objected to a change of course at this time in the CFTC’s proposed regulation without a change of law or circumstances necessitating such amendment. He said it was “disingenuous” for the CFTC to now claim that its prior silence evidenced its intent “all along” to retain a private right of action. However, in supporting the proposed amendment, Chairman Timothy Massad acknowledged the ambiguity engendered by the Commission’s prior silence, but said that “we should decide the issue now on the merits.” The Commission will accept comments on its proposal for 30 days following its publication in the Federal Register.