Staff Report on

Commodity Swap Dealers & Index Traders

with Commission Recommendations

COMMODITY FUTURES TRADING COMMISSION 

SEPTEMBER 

2008
Table of Contents

EXECUTIVE SUMMARY ............................................................................................................ 1

Findings: ..................................................................................................................................... 3

Preliminary Recommendations:.................................................................................................. 6

1. Introduction................................................................................................................................. 8

2. Development of Swap Markets and Swap Dealers................................................................... 10

3. Swaps Exemption from Federal Speculative Position Limits.................................................. 13

4. The Commission‘s Special Call to Swap Dealers.................................................................... 15

A. Scope of the Special Call .................................................................................................... 16

B. Potential Limitations of the Special Call............................................................................. 19

5. Findings.................................................................................................................................... 20

A. Notional Value of Commodity Index Trading.................................................................... 21

B. NYMEX WTI Crude Oil...................................................................................................... 22

C. CBOT Wheat........................................................................................................................ 24

D. CBOT Corn.......................................................................................................................... 27

E. ICE Futures-U.S. Cotton ..................................................................................................... 29

F. Other Commodity Findings................................................................................................. 31

6. Preliminary Recommendations.............................................................................................. 32

Appendix A................................................................................................................................... 36

COMMODITY INDEX INVESTMENT ................................................................................. 36

Appendix B................................................................................................................................... 37

The Purposes of Futures Trading on DCMs: Hedging and Price Discovery............................ 37

Appendix C................................................................................................................................... 39

Speculation and Price Discovery in Futures Markets............................................................... 39

Appendix D................................................................................................................................... 44

Commitments of Traders Report .............................................................................................. 44

Appendix E ................................................................................................................................... 52

History of Speculative Position Limits..................................................................................... 52

Appendix F.................................................................................................................................... 57

Special Call Letter to Commodity Swaps Dealers.................................................................... 57

Appendix G................................................................................................................................... 60

Commissioner Bart Chilton Dissent ......................................................................................... 60

Appendix H................................................................................................................................... 63

Commissioner Michael Dunn Signing Statement..................................................................... 63

GLOSSARY ................................................................................................................................. 64
1

EXECUTIVE SUMMARY

The following is a CFTC staff report on the special call survey of swap dealers and index 

traders, with several preliminary Commission recommendations.

Major changes in the composition of futures market participants have developed over the 

last 20 years. Specifically, there has been an influx of new traders into the market – commodity 

index traders (including pension and endowment funds) that seek exposure to commodities 

through passive long-term investment in commodity indexes, and swap dealers that seek to 

hedge price risk resulting from their over-the-counter (OTC) activity. In addition to those 

changes, volume growth on futures markets has increased fivefold in the last decade, and in the 

last year, the price and volatility of oil and other commodities have reached unprecedented 

levels. In light of these developments, the Commodity Futures Trading Commission (CFTC or 

Commission) staff has undertaken a survey of swap dealers and commodity index funds to better 

characterize their activity and understand their potential to influence the futures markets. This 

type of a compelled survey relating to off-exchange activity is unprecedented, but the growth and 

evolution in futures market participation and growing public concern regarding off-exchange 

activity supported the need for this extraordinary regulatory inquiry. 

The development of the OTC swap industry is related to the exchange-traded futures and 

options industry in that a swap agreement can function as a competitor or complement to futures 

and option contracts. Market participants often use swap agreements because they offer the 

ability to customize contracts to match particular hedging or price exposure needs. Conversely, 

futures markets typically involve standardized contracts that, while often traded in very liquid 

markets, may not precisely meet the needs of a particular hedger or speculator.

The swap dealer, which is often affiliated with a bank or other large financial institution, 

has emerged to serve as a bridge between the OTC swap market and the futures markets. Swap 

dealers act as swap counterparties both to commercial firms seeking to hedge price risks and to 

speculators seeking to gain price exposure. In essence, swap dealers function as aggregators or 

market makers, offering contracts with tailored terms to their clients before utilizing the more 

standardized futures markets to manage the resulting risk. The bilateral contracts that swap 

dealers create vary widely - from contracts tailored to customer needs, to relatively standardized 

contracts (some virtually identical to an exchange-traded futures contract). Because swap 

agreements can be highly customized and the liquidity for a particular swap contract can be low, 

swap dealers often rely on a variety of means, including other swaps, physical market positions,

and futures contracts to offset the residual market risks in their swap book.

Since 1991, the Commission has granted hedge exemptions to swap dealers (in regulated 

futures markets that have Federal speculative position limits) to manage the price risk on their 

books that results from serving as a market maker to OTC clients. Separately, the Commission 

has classified the trading activity of swap dealers as commercial rather than noncommercial in its 

weekly public Commitments of Traders report (COT) because swap dealers use futures markets 

for the commercial purpose of hedging their price risk. As this survey shows, futures market 

trades by swap dealers are essentially an amalgam of hedging and speculation by their clients. 
2

Thus, any particular trade that a swap dealer brings to the futures market may reflect information 

and decisions that originated with a hedger, a speculator, or some combination of both. 

A commodity index trader, which includes pension and endowment funds seeking 

exposure to commodities, is a passive, transparent investor in commodity markets. The 

investment objective of a commodity index trader is to track an index of commodities over time 

by acquiring long positions via OTC swap contracts, index funds, or exchange-traded futures. 

The larger commodity index traders typically gain commodity exposure through swap dealers.

In June 2008, Commission staff initiated a special call to futures traders, which included

43 requests issued to 32 entities and sub-entities. These entities include swap dealers engaged in 

commodity index business, other large swap dealers, and commodity index funds. The special 

call required all entities to provide data relating to their total activity in the futures and OTC 

markets, and to categorize the activities of their customers, for month-end dates beginning 

December 31, 2007 through June 30, 2008, and continuing thereafter. All entities complied.

The scope of the survey attempts to answer the following questions:

 How much total commodity index trading is occurring in both the OTC and onexchange markets?

 How much commodity index trading is occurring by specific commodity in both 

the OTC and on-exchange markets?

 What are the major types of index investors?

 What types of clients utilize swap dealers to trade OTC commodity transactions?

 To what extent would swap clients have exceeded position limits or 

accountability levels had their OTC swap positions been taken on-exchange?

This preliminary survey is not able to accurately answer and quantify the amount of 

speculative trading occurring in the futures markets. The current data received by the CFTC 

classifies positions by entity (commercial versus noncommercial) and not by trading activity 

(speculation versus hedging). These trader classifications have grown less precise over time, as 

both groups may be engaging in hedging and speculative activity. Importantly, as a result of this 

survey, the Commission recommends improvements to the classification process and reporting 

requirements for large traders that will help the agency better quantify the nature and accuracy of 

trading activity being conducted on exchanges. 

This preliminary survey was an unprecedented effort to quantify key components of the 

OTC swap and commodity index markets. It called for collection, organization, and analysis of 

the OTC trading of hundreds of counter-parties, millions of transactions, and billions of dollars 

of trading occurring over a 6-month period. The expedited timing of the survey presented a 

challenge to staff to process and analyze the large volume of OTC market information. 

Nonetheless, the preliminary survey results represent the best data currently available to the staff 

and the results present the best available snapshot of swap dealers and commodity index traders

for the relevant time period. However, as a result of the survey limitations, there may be a 

margin of error in the precision of the data, which will improve as the staff continues to work 

with the relevant firms and to further review and refine the data. 
3

Findings:

In analyzing the total OTC and on-exchange positions for index trading, this report 

focuses on three quarterly snapshots – December 31, 2007, March 31, 2008, and June 30, 2008

and has thus far revealed the following preliminary data:

TOTAL OTC AND ON-EXCHANGE 

COMMODITY INDEX INVESTMENT ACTIVITY 

December 31, 2007 March 31, 2008 June 30, 2008

Index Investments in 

Net Notional Value $146 billion $168 billion $200 billion

Index Investments in 

Net Notional Value –

U.S. Exchanges Only

$118 billion $133 billion $161 billion

NYMEX Crude Oil—

Index Notional Value $39 billion $41 billion $51 billion

Crude Oil Index 

Values Measured in 

Futures Equivalents

408,000 398,000 363,000

NYMEX Crude Oil

Price $96 bbl. $102 bbl. $140 bbl.

CBOT Wheat –

Index Notional Value $8 billion $9 billion $9 billion

CBOT Wheat Index 

Values Measured in 

Futures Equivalents

185,000 188,000 194,000

CBOT Wheat

Price $8.85 bu. $9.29 bu. 8.44 bu.

CBOT Corn—

Index Notional value $8 billion $10 billion $13 billion

CBOT Corn Index 

Values Measured in 

Futures Equivalents

326,000 362,000 350,000

CBOT Corn

Price $4.56 bu. $5.67 bu. $7.25 bu.

ICE-Futures Cotton—

Notional Value $3 billion $3 billion $3 billion

ICE-Futures Cotton 

Index Values

Measured in Futures 

Equivalents

72,000 73,000 73,000

ICE-Futures Cotton

Price $.68 lb. $.69 lb. $.71 lb.
4

 Total Net Commodity Index Investments: The estimated aggregate net amount of all 

commodity index trading (combined OTC and on-exchange activity) on June 30, 2008 was

$200 billion, of which $161 billion was tied to commodities traded on U.S. markets regulated 

by the CFTC. Of the $161 billion combined total, a significant amount of the OTC portion 

of that total likely is never brought to the U.S. futures markets due to internal netting by swap 

dealers. 

 Net Notional Index Values vs. Total Notional Market Values: For comparison purposes, the 

total notional value on June 30, 2008 of all futures and options open contracts for the 33 U.S. 

exchange-traded markets that are included in major commodity indexes was $945 billion –

the $161 billion net notional index value was approximately 17 percent of this total.

o The total notional value of futures and options open contracts on June 30, 2008 for 

NYMEX crude oil was $405 billion – the $51 billion net notional index value was 

approximately 13 percent of this total.

o The total notional value of futures and options open contracts on June 30, 2008 for

CBOT wheat was $19 billion – the $9 billion net notional index value was 

approximately 47 percent of this total.

o The total notional value of futures and options open contracts on June 30, 2008 for

CBOT corn was $74 billion - the $13 billion net notional index value was 

approximately 18 percent of this total.

o The total notional value of futures and options open contracts on June 30, 2008 for

ICE-Futures cotton was $13 billion – the $3 billion net notional index value was 

approximately 23 percent of this total. 

 Crude Oil Index Activity: While oil prices rose during the period December 31, 2007 to June 

30, 2008, the activity of commodity index traders during this period reflected a net decline of 

swap contracts as measured in standardized futures equivalents.1

o During this period, the net notional amount of commodity index investment related to 

NYMEX crude oil rose from about $39 billion to $51 billion—an increase of more 

than 30 percent.

2

 This rise in notional value appears to have resulted from the 

increase in the price of oil, which rose from approximately $96 per barrel to $140 per 

barrel—an increase of 46 percent. 

o Measured in standardized futures contract equivalents, the aggregate long positions of 

commodity index participants in NYMEX crude oil declined by approximately 

45,000 contracts during this 6 month period - from approximately 408,000 contracts 

on December 31, 2007 to approximately 363,000 contracts on June 30, 2008. This 

amounts to approximately an 11 percent decline.

 

1

―Futures contract equivalents‖ are described in Section 4A, n.29.

2 For the West Texas Intermediate (WTI) crude oil contract traded on the New York Mercantile Exchange 

(NYMEX), as of June 30, 2008, the Commission‘s special call covered 90 percent or more of the actual 

total long and the total short futures and options positions held by all of the swap dealers and represented 

essentially all of the index trading done through swap dealers. 
5

 Types of Index Investors: Of the total net notional value of funds invested in commodity 

indexes on June 30, 2008, approximately 24 percent was held by ―Index Funds,‖ 42 percent 

by ―Institutional Investors,‖ 9 percent by ―Sovereign Wealth Funds,‖ and 25 percent by 

―Other‖ traders.3

 Clients Exceeding Position Limits or Accountability Levels4: On June 30, 2008, of the 550 

clients identified in the more than 30 markets analyzed, the survey data shows 18

noncommercial traders in 13 markets who appeared to have an aggregate position (all onexchange futures positions plus all OTC equivalent futures combined) that would have been 

above a speculative limit or an exchange accountability level if all the positions were onexchange. These 18 noncommercial traders were responsible for 35 instances that would 

have exceeded either a speculative limit or an exchange accountability level through their 

aggregate on-exchange and OTC trading that day. Of these instances:

 8 were above the NYMEX accountability levels in the natural gas market; 

 6 were above the NYMEX accountability levels in the crude oil market; 

 6 were above the speculative limit on the CBOT wheat market;

 3 were above the speculative limit on the CBOT soybean market; and 

 12 were in the remaining 9 markets. 

These combined positions do not violate current law or regulations and the amounts by 

which each trader exceeded a limit or level were generally small. However, there were a few 

instances where a noncommercial client‘s combined on-exchange futures positions and OTC 

equivalent futures positions significantly exceeded a position limit or exchange accountability 

level. 

In light of the preliminary data and staff findings set forth herein, the Commission 

believes that certain constructive steps can and should be taken, and has approved the following 

recommendations,5several of which may benefit from legislative codification. The Commission 

will consider whether further recommendations are necessary as this survey and analysis 

continues. 

 

3 These categories are discussed in greater detail in Section 4A.

4 Position limits are hard limits that a trader‘s on-exchange position may not exceed without the trader 

potentially violating the Commodity Exchange Act (CEA or Act). By contrast, accountability levels are 

position levels that if exceeded, may trigger additional exchange scrutiny of the positions and requests 

from the exchange for information concerning the positions. Exceeding accountability levels is not a 

violation of the CEA; accountability levels are simply a regulatory tool of the exchange used to identify 

and monitor positions that reach a certain size and do not preclude maintaining or adding to the position. 

Position accountability rules apply to contracts that are less likely to be susceptible to the threat of 

manipulation. Pursuant to Commission regulation 150.5(e), contracts that have an established trading 

history (i.e., listed for at least 12 months), experience significant open interest and trading volume, have 

liquid cash and futures markets, and are readily arbitraged, may be subject to a position accountability 

rule rather than a numerical position limit. 

5 But see Dissent of Commissioner Bart Chilton, Appendix G.
6

Preliminary Recommendations:

1. Remove Swap Dealer from Commercial Category and Create New Swap Dealer 

Classification for Reporting Purposes: In order to provide for increased transparency of 

the exchange traded futures and options markets, the Commission has instructed the staff to 

develop a proposal to enhance and improve the CFTC‘s weekly Commitments of Traders 

Report by including more delineated trader classification categories beyond commercial and 

noncommercial, which may include at a minimum the addition of a separate category 

identifying the trading of swap dealers. 

2. Develop and Publish a New Periodic Supplemental Report on OTC Swap Dealer 

Activity: In order to provide for increased transparency of OTC swap and commodity index 

activity, the Commission has instructed the staff to develop a proposal to collect and publish 

a periodic supplemental report on swap dealer activity. This report will provide a periodic 

―look through‖ from swap dealers to their clients and identify the types and amounts of 

trading occurring through these intermediaries, including index trading. 

3. Create a New CFTC Office of Data Collection with Enhanced Procedures and Staffing: 

In order to enhance the agency‘s data collection and dissemination responsibilities, the 

Commission has instructed its staff to develop a proposal to create a new office within the 

Division of Market Oversight, whose sole mission is to collect, verify, audit, and publish all 

the agency‘s COT information. The Commission has also instructed the staff to review its 

policies and procedures regarding data collection and to develop recommendations for 

improvements. 

4. Develop “Long Form” Reporting for Certain Large Traders to More Accurately Assess 

Type of Trading Activity: The Commission has instructed staff to develop a supplemental 

information form for certain large traders on regulated futures exchanges that would collect 

additional information regarding the underlying transactions of these traders so there is a 

more precise understanding of the type and amount of trading occurring on these regulated 

markets. 

5. Review Whether to Eliminate Bona Fide Hedge Exemptions for Swap Dealers and 

Create New Limited Risk Management Exemptions: The Commission has instructed 

staff to develop an advanced notice of proposed rulemaking that would review whether to 

eliminate the bona fide hedge exemption for swap dealers and replace it with a limited risk 

management exemption that is conditioned upon, among other things: 1) an obligation to 

report to the CFTC and applicable self regulatory organizations when certain noncommercial 

swap clients reach a certain position level and/or 2) a certification that none of a swap 

dealer‘s noncommercial swap clients exceed specified position limits in related exchangetraded commodities. 

6. Additional Staffing and Resources: The Commission believes that substantial additional 

resources will be required to successfully implement the above recommendations. The 

CFTC devoted more than 30 employees and 4000 staff hours to this survey, which the 

Commission is now recommending to produce on a periodic basis. Other new 
7

responsibilities will also require similar additional staff time and resources. Accordingly, the 

Commission respectfully recommends that Congress provide the Commission with funding 

adequate to meet its current mission, the expanded activities outlined herein, and any other 

additional responsibilities that Congress asks it to discharge.

7. Encourage Clearing of OTC Transactions: The Commission believes that market 

integrity, transparency, and availability of information related to OTC derivatives are 

improved when these transactions are subject to centralized clearing. Accordingly, the 

Commission will continue to promote policies that enhance and facilitate clearing of OTC 

derivatives whenever possible.

8. Review of Swap Dealer Commodity Research Independence: Many commodity swap 

dealers are large financial institutions engaged in a range of related financial activity, 

including commodity market research. Questions have been raised as to whether swap dealer 

futures trading activity is sufficiently independent of any related and published commodity 

market research. Accordingly, the Commission has instructed the staff to utilize existing 

authorities to conduct a review of the independence of swap dealers‘ futures trading activities 

from affiliated commodity research and report back to the Commission with any findings. 
8

1. Introduction

U.S. futures6 markets have experienced tremendous growth during the past decade. In 

1998, the total U.S. exchange-traded futures and futures option trading volume was 

approximately 630 million contracts. The annual trading volume figure has grown over five fold 

to 3.2 billion contracts traded in 2007. The pace of growth continues to accelerate in 2008 with 

the total trading volume exceeding last year‘s trading volume level by 17.3 percent for the period 

of January to July 2008.

7

 The growth in exchange-traded futures trading has not been confined 

to any single commodity or futures exchange. In this regard, an annual comparison of total 

exchange-traded futures and futures options volume in 2007 versus 2006 showed that year over 

year, both financial futures and energy futures trading volume grew by over 27 percent, 

agricultural futures grew by 23 percent, and metal futures grew by 38 percent. The same 

comparison by futures exchanges shows that trading volume on each of the three largest U.S. 

futures exchanges grew by over 26 percent.

8

The growth in trading activity on Commission-regulated futures exchanges, which are 

called Designated Contract Markets (DCMs), may also be measured by the number of large 

trader participants in the market. In monitoring the activities of futures markets, the Commission 

receives daily information on large traders‘ positions. Over the past ten years, the total number 

of large (reportable) traders that the Commission staff must process, track and analyze has grown 

by more than 26 percent. For specific individual commodity futures markets, the number of 

reportable traders in CBOT Corn, CBOT Wheat, and NYMEX WTI Crude Oil has increased by 

43 percent, 116 percent, and 74 percent, respectively. 

In addition to this unprecedented growth in volume and participation over the past 

decade, the futures industry also has witnessed new types of participants and trading strategies. 

Prior to the mid 1990s, the participants in the futures markets could be easily categorized into 

two broad major categories - commercial and noncommercial traders.9 Commercial traders were 

entities that had some physical dealing or commercial activity with the underlying commodity 

and therefore faced some price risks in the cash market that were offset or hedged in the futures 

market. Noncommercial traders, often referred to as speculators, were the traders who usually 

took the opposite position to commercial traders, thereby providing liquidity to the market

without necessarily having physical risk exposure that needed to be offset. 

Today this classification by trading entity is less precise in describing the type of trading 

activity conducted by these entities than it was 25 years ago when the CFTC first began to use 

 

6 For purposes of this report, the term ―futures‖ refers to exchange-traded futures contracts.

7 Source: Futures Industry Association. 

8 These exchanges are the Chicago Mercantile Exchange (CME), the Chicago Board of Trade (CBOT), 

and the NYMEX (which includes the Comex Division) and collectively they represent about 98 percent 

of all U.S. futures and futures option trading.

9 Although the CFTC for market surveillance purposes receives much greater detail on all large traders, it 

limits its classification of traders in its weekly Commitments of Traders report to commercial or 

noncommercial. 
9

these classification categories. For example, some commercial traders may be speculating at 

times based on market information they obtain in the course of their commercial dealings. There 

are also swap dealers today that deal in the merchandising of the physical commodities. 

The type of trading conducted by noncommercial traders has also changed significantly 

over time. For example, in the NYMEX crude oil market, a vast majority of noncommercial 

traders do not take direct long or short positions in the market where they would benefit directly 

from prices rising or falling. Rather, most noncommercial traders place spread positions, which 

amounts to simultaneously buying and selling in different months to trade on pricing 

relationships over certain time horizons. Spread trading for NYMEX Crude Oil with equal and 

offsetting long and short positions has grown from roughly 10 percent of the market to over 40 

percent of the market today. See graph below.

Recently, we have also witnessed the growth in participation of commodity swap dealers 

and commodity index traders in futures markets. Historically, commodity returns tend to be 

negatively correlated to stock market and bond market returns. As such, it has become attractive 

for some investors to include commodities exposure as a way to balance an overall portfolio. 

Moreover, because commodity returns are often positively correlated with inflation, it is possible 

for investors to invest in commodities as a means to hedge against rising inflation. Due to these 

factors, more investors have sought commodity exposure as a way to achieve portfolio 

diversification, and the commodity swap dealer business has flourished. 

These paradigm shifts in the structure of futures markets have occurred during a period 

where many commodities have reached record high prices. For example, CBOT‘s wheat futures 

contract reached a record high of $13.00 per bushel on February 27, 2008. Similarly, corn 
10

reached a record price of $7.625 on June 27, 2008. There were other notable record high prices 

for other agricultural markets including rice, soybeans, and oats.10

In addition to record agricultural prices, energy prices also reached record highs in July 

2008. The nearby futures price for the NYMEX WTI crude oil contract traded at a record price 

of $147.27 per barrel on July 11, 2008. On the same day, refined oil products set new records, 

with gasoline futures prices hitting $3.63 per gallon and heating oil futures prices hitting $4.16 

per gallon. 

In light of all of these market developments, on May 29, 2008 and June 3, 2008, the 

Commission announced several market initiatives related to the energy and agricultural markets. 

These initiatives included the Commission using its special call authority to require certain 

traders and swap dealers to provide regular reports of their index trading activity so the 

Commission could better identify the amount and impact of index trading on the energy and 

agricultural markets. This report outlines the results thus far and the staff analysis of the data

received to date.

2. Development of Swap Markets and Swap Dealers

From the inception of U.S. futures trading in the mid 1800s until recently, regulated 

futures exchanges offered the primary means by which commercial entities could manage their 

physical market price risks. During the 1980s, however, financial institutions began to develop

non-exchange-traded derivatives contracts that offered similar risk management benefits. In 

1981, the World Bank and IBM entered into what has become known as a currency swap. The 

swap essentially involved a loan of Swiss francs by IBM to the World Bank and the loan of U.S. 

dollars by the World Bank to IBM. The motivation for the transaction was the ability of each 

party to borrow the funds they were loaning more cheaply than the counterparty, thus reducing 

overall funding costs for both parties. This structure of swapping cash flows ultimately served as 

the template for swaps on any number of financial assets and commodities.

Financial institutions then looked at the fixed income markets and found that swaps that 

provided for the exchange of a fixed rate for a floating rate (e.g., the interest rate on Treasury 

Bills ―swapped‖ for the London Interbank Offer Rate (LIBOR)) served as an effective hedging 

vehicle in much the same way that financial futures contracts do. For example, a typical futures 

contract has many of the same characteristics as a swap in that it is essentially a contract where

the buyer of the contract agrees at the outset to pay a fixed price for a commodity in return for 

future delivery of the commodity which will have an uncertain or floating value at the time of 

expiration of the contract.

11

 

10 The nearby contract futures price for rice reached a record price of $24.46 on April 23, 2008; soybeans 

reached a record price of $16.60 on July 3, 2008; and oats reached a record price of $4.55 on July 3, 2008.

 

11 Title III of the Commodity Futures Modernization Act of 2000 (CFMA) addressed legal certainty for 

swap agreements. See Commodity Futures Modernization Act of 2000, Pub. L. 106-554, Appendix E, 

Sections 301 - 304, 114 Stat. 2763A, 449 - 457 (2000). CFMA Section 301 amended the Gramm-LeachBliley Act to define "swap agreement," and excluded certain transactions from the definition. CFMA 
11

The party offering the swap, typically called a swap dealer, takes on any price risks 

associated with the swap and thus must manage the risk of the commodity exposure. In the early 

development of swap markets, investment banks often served in a brokering capacity to bring 

together parties with opposite hedging needs. The currency swap between the World Bank and 

IBM, for example, was brokered by Salomon Brothers. While brokering swaps eliminates

market price and credit risk to the broker, the process of matching and negotiating swaps 

between counterparties with opposite hedging needs could be difficult. As a result, swap brokers

(who took on no market risk) evolved into swap dealers (who took the contract onto their books).

As noted, when a swap dealer takes a swap onto its books, it takes on any price risks 

associated with the swap and thus must manage the risk of the commodity exposure. In addition, 

the counterparty bears a credit risk that the swap dealer may not honor its commitment. This risk 

can be significant in the case of a swap dealer because it is potentially entering into numerous 

transactions involving many counterparties, each of which exposes the swap dealer to additional 

credit risks. As a result of these risks, there has been a natural tendency for financial 

intermediaries (e.g., commercial banks, investment banks, insurance companies) to become swap 

dealers. These firms typically have the capitalization to support their creditworthiness as well as 

the expertise to manage the market price risks that they take on. In addition, for particular 

commodity classes, such as agriculture and energy, large commercial companies that have the 

expertise to manage market price risks have set up affiliates to specialize as swap dealers for 

those commodities.

The utility of swap agreements as a hedging vehicle has led to significant growth in both 

the size and complexity of the swap market. During the early period in the development of the 

swap market, the majority of swap agreements involved financial assets. In fact, even today the 

vast majority of swaps outstanding involve either interest rates or currencies. The Bank for 

International Settlements (BIS) estimated that at the end of 2007, a total of $156 trillion of 

notional value in OTC financial derivatives was outstanding, compared to approximately $9 

trillion in physical commodity-related contracts. Thus, the financial-related portion of the OTC 

derivative market was, and is, significantly larger than the physical commodity-related portion. 

The OTC swap market has grown significantly because, for many financial entities, the 

OTC derivatives products offered by swap dealers have distinct advantages relative to futures 

contracts. While futures markets offer a high degree of liquidity (i.e., the ability to quickly 

execute trades due to the high number of participants willing to buy and sell contracts), futures 

contracts are more standardized, meaning that they may not meet the exact needs of a hedger. 

Swaps, on the other hand, offer additional flexibility since the counterparties can tailor the terms 

of the contract to meet specific hedging needs. 

As an example of the flexibility that swaps can offer, consider the case of an airline 

wanting to hedge future jet fuel purchases. Currently there is no jet fuel futures contract 

available to the airlines to directly hedge their price exposure. Contracts for crude oil (from 

which jet fuel is made) and heating oil (which is a fuel having similar chemical characteristics to 

jet fuel) do exist. But while these contracts can be used to hedge jet fuel (in what is referred to as 

 

Section 304, in turn, provided that nothing in the CFMA should be construed as finding or implying that a 

swap agreement is a security or a commodity under the federal securities laws or the CEA.
12

a ―cross hedge‖), the dissimilarities between jet fuel and crude oil or heating oil mean that the 

airline will inevitably take on what is known as ―basis risk.‖ That is, the price of jet fuel and the 

prices of these futures contracts will not tend to move perfectly together, diminishing the utility 

of the hedge.

12

 

In contrast, swap dealers can offer the airline the alternative of entering into a contract 

that directly references the cash price for jet fuel at the specific time and location where the 

product is needed. By creating a customized OTC derivative product that specifically addresses 

the price risks faced by the airline, by taking on the administrative costs associated with 

managing that contract over time, and by assuming the price risks attendant to that contract, the 

swap dealer facilitates the airline‘s risk management.13

Swap agreements have also become a popular vehicle for noncommercial participants, 

such as hedge funds, pension funds, large speculators, commodity index traders, and others with 

large pools of cash, to gain exposure to commodity prices. Recently, portfolio managers have 

sought to invest in commodities because of the lack of correlation, or even negative correlation, 

that commodities tend to have with traditional investments in stocks and bonds. In addition, 

swaps, because of the ability to tailor transactions, can represent a more efficient means by 

which these participants can enter the market. Hence, many of the benefits that swap agreements 

offer commercial hedgers also attract noncommercial interests to the swap market.

Since swap dealers are willing to enter into swap contracts on either side of a market, at 

times they will enter into swaps that create offsetting exposures, reducing the swap dealer‘s 

overall market price risk associated with the firm‘s individual positions opposite its 

counterparties. Since it is unlikely, however, that a swap dealer could completely offset the 

market price risks associated with its swap business at all times, dealers often enter the futures 

markets to offset the residual market price risk. As a result of the growth of the swap market and 

the dealers who support the market, there has been an associated growth in the open interest of 

the futures markets related to the commodities for which swaps are offered, as these swap dealers 

attempt to lay off the residual risk of their swap book. 

A more recent phenomenon in the derivatives market has been the development of

commodity index funds and exchange-traded funds for commodities (ETFs) and exchange-traded 

 

12 Although basis risk also would occur if a jet fuel contract did exist, it will be greater in the case where 

the underlying commodities do not match precisely.

13 When a commercial entity uses a swap to offset its risk, the swap dealer assumes the price risk of the 

commodity. For example, if the swap dealer enters into a jet fuel swap with an airline, the airline agrees 

to periodically pay a fixed amount on the swap while the swap dealer pays a floating amount based on a 

cash market price. At each point in time when the payments are due, a netting of the obligations takes 

place and the party responsible for the larger payment pays the difference to the other party. Thus, if 

prices rise, the floating payment will be larger than the fixed price and the swap dealer pays the net 

amount to the airline. Conversely, if prices fall, the airline will be required to make a payment to the 

swap dealer. Recall, however, that when the airline makes a payment on the swap to the swap dealer, it 

means that at the same time, it is paying a lower price to acquire jet fuel in the cash market The swap 

dealer, however, has no natural offsetting transaction to counterbalance the risk. That is why swap 

dealers will, in turn, hedge this price risk in the regulated futures markets.
13

notes (ETNs), which are mainly transacted through swap dealers. Both products are designed to 

produce a return that mimics a passive investment in a commodity or group of commodities. 

ETFs and ETNs are traded on securities exchanges and are backed by physical commodities or

long futures positions held in a trust. Commodity index funds are funds that enter into swap 

contracts that track published commodity indexes such as the S&P Goldman Sachs Commodity 

Index or the Dow Jones AIG Commodity Index. The vast majority of commodity index trading 

by principals is conducted off-exchange using swap contracts. 

3. Swaps Exemption from Federal Speculative Position Limits

Beginning in the mid-1980s, derivatives trading and risk management practices began to 

evolve considerably. Under the Commission‘s definition at that time, ―bona fide hedging‖ 

transactions in futures ―normally represent[ed] a substitute for transactions to be made or 

positions to be taken at a later time in a physical marketing channel,‖ and were ―economically 

appropriate to the reduction of risks in the conduct of a commercial enterprise.‖14 This aspect of 

the hedging definition proved to be ill-fitted to the economic realities of financial futures because 

portfolio managers utilize financial products to add incremental income to managed assets, to 

manage risk, or to rebalance a portfolio. These financial futures positions typically are taken as 

an alternative to cash market transactions (in view of their lower transaction costs, speed, and 

minimal price impact), rather than as a temporary substitute for positions that will later be taken 

in the underlying cash market.15 

In 1986, Congress directed the Commission to keep the hedging definition consistent 

with evolving industry needs and practices. In response to concerns regarding artificial restraints 

on investment decisions imposed by position limits, the House Committee on Agriculture, in its 

Report accompanying the Commission‘s 1986 reauthorization legislation, instructed the 

Commission to re-examine its approach to speculative position limits and its definition of 

hedging.16 Specifically, as to the hedging definition, the House Report ―strongly urge[d] the 

Commission to undertake a review of its hedging definition . . . and to consider giving certain 

concepts, uses, and strategies  ̳non-speculative‘ treatment . . . whether under the hedging 

definition or, if appropriate, as a separate category similar to the treatment given certain spread, 

straddle or arbitrage positions ....‖

17

 

 

14 17 CFR 1.3(z)(1).

15 Indeed, in view of his/her fiduciary duties, a portfolio manager may be constrained from closing out an 

―anticipatory hedge‖ position in stock index futures and investing in the underlying stocks if the market 

has moved in an unfavorable direction since the futures contract was entered into.

16 H.R. Rep. No. 99-624, at 44-46 (1986).

17 Id. at 46. The House Report singled out four categories of trading strategies that the Commission 

should recognize as ―non-speculative:‖ (1) the concept of risk management by portfolio managers, as an 

alternative to the concept of ―risk reduction;‖ (2) futures positions taken as alternatives to, rather than 

temporary substitutes for, cash market positions; (3) other trading strategies involving the use of financial 

futures including, but not limited to, asset allocation (altering portfolio exposure in certain areas such as 

equity and debt), portfolio immunization (curing mismatches between the duration and sensitivity of a 

pension fund's assets and liabilities to ensure that portfolio assets will be sufficient to fund payment of its 
14

The Senate Committee on Agriculture, Nutrition, and Forestry, in its Report on the 1986 

reauthorization legislation, ―urge[d] the Commission to undertake a review of its hedging 

definition for the purpose of ensuring that the definition is, in fact, consistent with the legitimate 

needs and practices of the industry.‖

18

 The Senate Committee specified that, as part of this 

review, the Commission should consider ―whether the concept of prudent risk management 

[should] be incorporated in the general definition of hedging as an alternative to the risk 

reduction standard.‖19

In view of the direction from its authorizing committees to review its hedging definition 

to ensure that the definition was consistent with the current needs and practices of the industry, 

the Commission tasked its Financial Products Advisory Committee (FPAC) to deliberate on the 

issue and provide the Commission with recommendations. In 1987, the FPAC completed its 

review and unanimously voted to provide the Commission with a detailed report recommending 

an updated approach to evaluating bona fide hedging activities. The Commission staff then 

issued interpretive statements directing that ―risk-management‖ be included as a type of 

speculative position limit exemption.

20

In 1991, the Commission received a request from a large commodity merchandising firm 

that engaged in commodity related swaps as a part of its commercial line of business. The firm, 

through an affiliate, wished to enter into an OTC swap transaction with a large pension fund 

involving an index based on the returns afforded by investments in exchange-traded futures 

contracts on certain non-financial commodities. The commodities making up the index included 

wheat, corn, and soybeans, all of which were and remain subject to Federal speculative position 

limits. As a result of the swap, the swap dealer would, in effect, be exposed to short side 

commodity price risk. In other words, it would be required to make payments to the pension 

fund counterparty if the value of the index was higher at the end of the swap payment period than 

at the beginning. In order to hedge itself against this possible risk from the OTC swap, the swap 

dealer planned to establish a portfolio of long exchange-traded futures positions in the 

commodities making up the index, in such amounts as would replicate its exposure under the 

swap transaction.21 

The Commission reviewed the request in light of the prior review, study, and amendment 

of the hedging definition and determined that the swap dealer‘s futures positions fulfilled the 

 

liabilities) and duration (altering the average maturity of a portfolio's assets); and (4) options transactions, 

in particular the writing of covered puts and calls. Id.

18 S. Rep. 99-291, at 22 (1986).

19 Id.

20 Risk Management Exemptions from Speculative Position Limits Approved under Commission 

Regulation 1.61, 52 FR 34633 (September 14, 1987); Clarification of Certain Aspects of the Hedging 

Definition, 52 FR 27195 (July 20, 1987).

21 By design, the index did not include contract months that had entered the delivery period and the swap 

dealer, in replicating the index, stated that it would not maintain futures positions based on index-related 

swap activity into the spot month (when physical commodity markets are most vulnerable to 

manipulation and attendant unreasonable price fluctuations).
15

requirements of regulation 1.47 to be classified as bona fide hedging, including the requirement 

of regulation 1.47(b)(2) that the swap dealer demonstrate that the positions were ―economically 

appropriate to the reduction of risk exposure attendant to the conduct and management of a 

commercial enterprise.‖22 Thereafter, the Commission granted the swap dealer a hedge 

exemption from the Federal speculative position limits in the relevant commodities. The swap 

transaction allowed the pension fund to add commodities exposure to its portfolio indirectly, 

through the OTC trade with the swap dealer – something it could have done directly, but only in 

a limited fashion.23

Similar hedge exemptions were subsequently granted in other cases where the futures 

positions clearly offset risks related to swaps or similar OTC positions involving both individual 

commodities and commodity indexes.24 These non-traditional hedges were all subject to specific 

limitations to protect the marketplace from potential ill effects. These limitations included that: 

(1) the futures positions must offset specific market price risk; (2) the dollar value of the futures 

positions would be no greater than the dollar value of the underlying risk; and (3) the futures 

positions would not be carried into the spot (delivery) month. DCMs, in administering exchange 

speculative position limits pursuant to Commission regulation 150.5, may impose similar 

constraints when issuing hedge exemptions with respect to contracts subject to exchange limits. 

It is of note that the Commission grants hedge exemptions for the limited group of commodities 

subject to Federal speculative limits. This group does not include crude oil. Hedge exemptions 

for commodities not subject to Federal speculative limits are granted by the DCMs. 

4. The Commission’s Special Call to Swap Dealers

In May and June 2008, as part of its initiatives relating to the energy and agricultural 

markets, the Commission announced that it would gather more information regarding the offexchange commodity trading activity of swap dealers and revisit whether swap dealers‘ futures 

 

22 17 CFR 1.47(b)(2).

23 The pension fund would have been limited in its ability to take on this commodities exposure directly, 

by putting on the long futures position itself, because the pension fund – having no offsetting price risk 

incidental to commercial cash or spot operations – would not have qualified for a hedge exemption with 

respect to the position. 

24 More recently, Commission staff has issued two no-action letters involving another type of index-based 

trading. CFTC Letter 06-09 (April 19, 2006); CFTC Letter 06-19 (September 6, 2006). Both cases 

involved trading that offered investors the opportunity to participate in a broadly diversified commodity 

index-based fund or program (―index fund‖). The futures positions of these index funds differ from the 

futures positions taken by the swap dealers described above. There, the swap dealer positions were taken 

to offset OTC swap exposure that was directly linked to the price of an index. By contrast, in the index 

fund positions described in the no-action letters, the price exposure results from a promise or obligation to 

track an index, rather than from holding an OTC swap position whose value is directly linked to the price 

of the index. Because the index fund positions represented a legitimate and potentially useful investment 

strategy, Commission staff granted the index funds no-action relief, subject to certain conditions intended 

to protect the futures markets from potential ill effects. These conditions included that: (1) the positions 

must be passively managed; (2) they must be unleveraged (so that financial conditions should not cause 

rapid liquidation of positions); and (3) the positions may not be carried into the delivery month (when 

physical delivery markets are most vulnerable to manipulation or congestion). 
16

trading is being properly classified.

25

 Thereafter, pursuant to its authority under regulation 18.05, 

the Commission issued a special call to swap dealers and index traders to gather pertinent 

information regarding these entities.26 Prior to this special call, Commission staff had used the 

special call authority in a targeted fashion to obtain OTC market information for surveillance 

purposes from one or a few traders at a time in a single market when specific concerns about 

potential manipulation of a futures market had arisen. This authority had not been used 

previously to conduct expansive reviews of the activities of a broad segment of the OTC 

markets, as it is now being used. To accomplish such an unprecedented review of the OTC 

markets, approximately 35 Commission staff members spent a total of nearly 4000 hours on this 

special call over a 14-week period.

A. Scope of the Special Call

The special call involved staff issuing 43 written requests to 32 entities and their subentities compelling these futures traders to produce data relating to their OTC market activities.

27

Of the 43 requests, 16 were directed to swap dealers known to have significant commodity index 

swap business; 13 were directed to traders identified as swap dealers (but not known to engage in 

significant commodity index swap business) and who, at the time of the call, held futures 

positions that were large relative to Commission or exchange-set speculative position limits or 

accountability levels; and 14 were directed to commodity index funds (including asset managers 

and sponsors of ETFs and ETNs whose returns are based upon a commodity index). 

 

25 See Commission press releases: http://www.cftc.gov/newsroom/generalpressreleases/2008/pr5503-

08.html and http://www.cftc.gov/newsroom/generalpressreleases/2008/pr5504-08.html. 

26Commission Regulation 18.05 provides that traders with reportable positions in any futures contract 

must, upon request, furnish to the Commission any pertinent information concerning the traders‘ 

positions, transactions, or activities involving the cash market as well as other derivatives markets,

including their OTC business. Specifically, regulation 18.05, entitled ―Maintenance of books and 

records,‖ requires that every trader who holds or controls a reportable futures or option position shall keep 

books and records showing all details concerning all positions and transactions in the commodity: (1) On 

all reporting markets; (2) Over the counter and/or pursuant to Sections 2(d), 2(g) or 2(h)(1)–(2) of the 

CEA or Part 35 of the CFTC‘s regulations; (3) On exempt commercial markets operating pursuant to 

Sections 2(h)(3)–(5) of the Act; (4) On exempt boards of trade operating pursuant to Section 5d of the 

Act; and (5) On foreign boards of trade. Regulation 18.05 further provides that every such trader shall 

also keep books and records showing all details concerning all positions and transactions in the cash 

commodity, its products and byproducts, and all commercial activities that the trader hedges in the futures 

or option contract in which the trader is reportable and that the trader shall upon request furnish to the 

Commission any pertinent information concerning such positions, transactions, or activities in a form 

acceptable to the Commission. 

27 Each recipient of the special call was given the following warning: ―Any person who knowingly and 

willfully makes false or fraudulent statements, whether under oath or otherwise in the course of a 

Commission investigation, or who falsifies, conceals, or covers up a material fact, or submits any false 

writing or document, knowing it to contain false, fictitious, misleading, materially incomplete, or 

fraudulent information, is subject to the criminal penalties listed in 18 U.S.C. § 1001, which provides for 

imposition of a substantial fine under the Federal Sentencing Guidelines, imprisonment of not more than 

five years, or both, for such conduct.‖
17

The special call required all entities to provide data for month-end dates beginning 

December 31, 2007, and continuing through June 30, 2008. The special call is on-going, and the 

entities have a continuing obligation to provide data for each month-end date by the 5th business 

day after the ―as of‖ date.28 The special call required production of the following information:

 From commodity index traders, the total notional value of their commodity index business, 

with a breakout of how much of that notional value is based upon commodities in the index 

that are traded on U.S. markets versus non-U.S. markets, and separately for each commodity 

in the index that is traded on a U.S. DCM, notional values and the estimated equivalent 

number of futures contracts29 (regardless of whether the futures position is actually carried 

and cleared at the DCM or has been internally netted by the responder). 

 From commodity index funds and swap dealers reporting the commodity-index portion of 

their swap books, a classification, in aggregate form, of their index clients as ―index funds,‖ 

―institutional accounts,‖ ―sovereign wealth funds,‖ or ―other.‖30 

 From commodity index funds, the extent to which their market exposure was gained (1) by 

holding positions directly in the component futures markets and (2) by positions held through 

OTC commodity swap agreements or other derivative transactions.

 

28 Pursuant to a Memorandum of Understanding on information sharing between the Commission and a 

foreign futures regulator, the Commission enlisted the assistance of the foreign regulator in obtaining data 

from two entities with a non-U.S. parent firm located in that foreign jurisdiction. 

29 Each futures contract has a notional value (essentially the price per unit times the number of units in the 

contract, e.g., for wheat, the notional value of 1 futures contract is 5000 bushels times the price per 

bushel). If one knows the total notional value invested in a futures commodity, one can calculate an 

equivalent number of futures contract. Vice versa, if one knows the total number of futures contracts in a 

commodity, one can calculate the equivalent notional value. Commission staff requested that traders 

report a ―futures equivalent‖ position, combining futures with delta-adjusted option positions and 

estimating what futures positions would have been established absent other offsets. This ―would have 

been‖ feature of the call arises from the fact that a swap dealer or an index fund may cover or obtain an 

exposure to an index through a combination of several alternatives, included establishing futures positions 

in the component markets, initiating swap agreements or other OTC trades with third parties, and internal 

offsets or netting with other parts of the entity‘s business. The energy markets in particular offer an array 

of methods/markets to establish and offset risk, so that only asking for open, cleared futures/options 

positions that directly result from index trading would not be indicative of the impact of index trading on 

futures markets. Moreover, swap dealers routinely calculate the equivalent futures position of a swap 

agreement as precisely as possible to avoid net market exposure. For example, a swap on jet fuel 

covering several years must be converted to the present value of a hedgeable commodity—most likely 

heating oil—so that the dealer‘s risk can be offset versus on-exchange futures contracts or OTC 

derivatives, or be netted internally against other risk in heating oil.

30 For this purpose, an ―index fund‖ is defined as a client/counterparty with a fiduciary obligation to 

match or track the results of a commodity index, including ETFs and ETNs based upon a commodity 

index; an ―institutional investor‖ is defined as a pension fund, endowment fund, or other similar investors; 

and a ―sovereign wealth fund‖ is defined as a non-U.S. government entity, including, for example, a 

government investment company or a government-run pension fund. The ―other‖ category is largely 

made up of retail investors holding ETFs, ETNs, and similar instruments that are publicly traded.
18

 From commodity index funds, the identities of individual clients investing $100 million or 

more in notional value. To put that dollar value in perspective, a $100 million notional value 

invested solely in NYMEX crude oil futures contracts when the price of a barrel of crude oil 

was $120 would be equal to fewer than 850 contracts. This criterion was intentionally set at 

a relatively low level so the data provided is over-inclusive rather than under-inclusive.

 From swap dealers, details of their bilateral, single-commodity swap business including, by 

market, the futures equivalent positions arising from swaps referenced to or hedged in a U.S. 

market, and in aggregate form, a classification of their single-commodity swap clients as 

―commercial,‖ ―noncommercial,‖ or ―intermediary.‖31

 From swap dealers, the identity of clients (whether arising from their index business or their 

single-commodity business) whose aggregate position across all expirations in a commodity 

was at or above 25 percent of the single-month position limit or accountability level for that 

market.32 This criterion, like that for commodity index funds, also was set at a relatively low 

level in order to see more, rather than less, data. Swap dealers were directed to sum up all 

 

31 For this purpose, a ―commercial‖ means a client/counterparty who has market risk arising from physical 

market activities in the subject commodity, and the swap agreement is part of a risk-management strategy; 

―noncommercial‖ is a counterparty who is not using the swap relative to physical market activities; and 

the ―intermediary‖ category includes clients/counterparties that are intermediaries (other swap dealers, 

banks, etc.) for whom the responder had no information on whether they are acting on behalf of 

noncommercial or commercial clients. The intermediary category is substantial in many markets, but is 

often relatively balanced between long and short exposure. In many cases, the intermediary counterparty 

to a single-commodity swap is another swap dealer who was also subject to the special call. Thus, the 

Commission may very well be including the ultimate client in these data. For example, Dealer #1 

customizes a swap for an airline for part of its fuel requirements for a 5-year period—the swap payouts 

are referenced to the NYMEX heating oil market. Dealer #1 offsets the risk by doing a swap with Dealer 

#2, who in turn offsets the risk by putting on heating oil futures contracts on NYMEX. If both dealers 

were subject to the special call, which was usually the case, Dealer #1‘s response to the special call would 

show its commercial counterparty (the airline) with an estimated long position in heating oil futures and 

an intermediary counterparty (Dealer #2) with an estimated short position in heating oil futures. Dealer 

#2‘s response to the special call would show an intermediary counterparty (Dealer #1) with an estimated 

short position in heating oil futures. In this case, when summed up across the dealers subject to the call, 

the intermediary category would net to something close to zero and the commercial category would show 

the position in heating oil that offsets the airline‘s risk management. More complex cases might involve a 

number of swap dealers as intermediaries, including a swap dealer that wants to trade a heating oil risk for 

a risk in another energy derivative product or risk over a different time period or location—U.S. versus 

European. 

32 It is important to note that ―positions‖ reported are not necessarily the same as futures and option 

positions held in the name of the client/counterparty. In the case of a swap dealer, the counterparty 

position may be offset against another OTC counterparty, offset through a non-U.S. exchange, or offset or 

netted internally with other parts of the dealer‘s business. 
19

the business they do with a client and entities under common ownership (10 percent or 

greater financial interest) or control to determine if that client met the 25 percent threshold.

33

 

In total, data from the special call identified about 550 individual clients that met the threshold 

criteria in one or more markets.34 

B. Potential Limitations of the Special Call

The special call was issued only to traders that hold reportable futures positions. This 

does not appear to impose a serious limitation because large swap dealers are also likely to be 

substantial futures traders. While there are ways that investors can gain exposure to 

commodities markets without being subject to Commission reporting requirements, such trading 

activity is likely reflected in the special call data in other ways. Sponsors of ETFs and ETNs that 

base their return on an index of commodities, for example, may go directly to futures markets or 

through swap dealers to gain market exposure. To the extent either method represents a 

substantial notional value, it will show up in the special call data. A mutual fund that tracks a 

commodity index (such as the ―PIMCO Commodity Real Return Strategy Fund‖ and the 

―Oppenheimer Commodity Strategy Total Return Fund‖) may have certain tax or other 

 

33 Swap dealers were instructed to apply the 25 percent threshold as follows: add up all of the client‘s 

futures equivalent exposure gross long and short across all expiration months in a market, and then 

compare each of the gross long and gross short in that market to 25 percent of that market‘s single-month 

position limit or accountability level. For example, in NYMEX WTI crude oil, the single-month 

accountability level is 10,000 contracts net long or short and 25 percent of that is 2,500 contracts. If a 

dealer has a client that is equivalent to 1,000 long in the August future, 1,500 short in the September 

future, and 2,000 long in the October future, then their gross exposure (3,000 long and 1,500 short) meets 

the reporting criteria of 2,500 contracts, even though the position in any one futures month was less than 

25 percent of the single-month accountability level. 

34 All the individual client/counterparties that were reported were then matched against the Commission‘s 

large-trader reporting system to determine whether any entity was also identified in the Commission‘s 

large-trader reporting system and held concurrent futures or options positions in the same commodity in 

their own name. Any outright futures equivalent positions (i.e., futures plus futures-equivalent options) 

held in the trader‘s own name were then aggregated with any estimated futures positions attributed to the 

client by one or more of the dealers or index funds responding to the special call. This aggregate position 

was then compared to the actual single-month and all-months-combined position limits or accountability 

levels to determine the extent to which traders may be acquiring the equivalent of large positions—above 

the limits/levels—that would not otherwise be observable by the Commission or the exchanges.
20

considerations that limit its direct investment in futures,35 but to the extent it has a substantial 

notional value, it will show up in the special call data, likely as a client of a swap dealer.36

Just as this type of special call was unprecedented for the Commission and the staff, it 

was equally unprecedented for the recipients. Entities receiving a request were asked to provide 

data, under tight deadlines, of a type and in a form that would be useful to the Commission staff, 

which was typically not consistent with how the firms kept their records. Some entities re-filed 

at least part of their data several times, as recently as during the week of September 1, which 

required updates to the already compiled data and analysis. 

5. Findings

In analyzing the monthly data received for the first 6 months of 2008 and preparing these 

findings, staff focused their analysis on three quarterly snapshots – as of December 31, 2007, 

March 31, 2008, and June 30, 2008. Given the volume of data received and analyzed, and in 

order to meet the announced September 15, 2008 deadline to provide this information to 

Congress, staff focused on providing three snapshots of the data rather than monthly analysis. 

In addition, the findings below highlight four key markets—the NYMEX WTI crude oil contract,

the CBOT soft red wheat and corn contracts, and the ICE Futures-U.S. cotton contract, and make 

some general observations about other major markets. The findings do not equally highlight all 

the markets for which data was requested because again, time constraints would not allow staff 

to conduct the detailed analysis of all markets.37

 

35 For example, PIMCO Funds, in a supplemental filing with the Securities and Exchange Commission 

concerning their Commodity Real Return Strategy Fund (6/29/06), states that, ―[b]ased on Revenue 

Ruling 2006-31, IRS guidance and advice of counsel, the Fund will seek to gain exposure to the 

commodity markets primarily through investments in commodity index-linked notes. However, the Fund 

will continue to seek ways to make use of other commodity-linked derivative instruments, including swap 

agreements, commodity options, futures and options on futures, and alternative structures within the Fund 

to gain exposure to commodity markets.‖ 

36 By contrast, single-commodity ETFs, such as ―streetTracks Gold Trust‖ (the largest such investment 

vehicle) and the ―iShares Silver Trust,‖ hold physical bullion and are not a part of this study.

37 Crude oil is featured because this special call was initially undertaken as part of several energy market 

initiatives announced on May 29, 2008 - the largest and most notable of those markets is the NYMEX 

WTI crude oil market. The agricultural commodities featured in these findings were all subject to 

discussion at the Commission‘s April 22, 2008 Agricultural Forum. The CBOT soft red wheat futures 

contract, the CBOT corn futures contract, and ICE Futures-U.S. cotton are featured because these three 

markets all are subject to Federal speculative position limits, and they are included in the 12 agricultural 

markets for which the Commission publishes data on index trading. Further, from among those 12 

agricultural markets, the CBOT wheat market has consistently had one of the highest percentages of index 

trading with gross long positions of index traders in CBOT wheat futures and options combined averaging

about 41 percent of open interest over the first 6 months of 2008. Moreover, the CBOT corn market has 

consistently had the highest number of futures contracts devoted to index trading. The ICE Futures-U.S. 

cotton market is also included because of the unprecedented market conditions and concerns expressed by 

market participants with respect to the February/March 2008 price run-up. 
21

It is important to remember that these figures do not represent the amount of trades that 

were brought to the regulated futures exchanges since a significant amount of these positions are 

―netted‖ internally by swap dealers. These ―look behind‖ figures represent the OTC book of 

swap dealers and not the ―netted‖ amount that is ultimately managed in the futures markets. 

A. Notional Value of Commodity Index Trading

For each of the above-mentioned quarterly dates, the net notional value38 of commodity 

index trading, which includes the portfolios held by swap dealers doing index business with their 

counterparties, plus the notional value of positions held by index funds trading directly on 

exchanges, was reported to be:

December 31, 2007: $146 billion;

March 31, 2008: $168 billion; and

June 30, 2008: $200 billion.

Approximately 20 percent of the net notional value of commodity index trading on each 

of those dates was tied to commodities traded on non-U.S. markets, with the remainder tied to 

commodities traded on U.S. markets regulated by the Commission (DCMs).39 As such, the net 

notional value of the portion of commodity index trading tied to commodities traded on U.S. 

markets was reported to be:

December 31, 2007: $118 billion: 

March 31, 2008: $133 billion; and 

June 30, 2008: $161 billion.

By way of comparison, on June 30, 2008, the total notional value of all futures and 

options open contracts for the for the 33 U.S. exchange-traded markets that are included in major 

commodity indexes was $946 billion. 

Of the $161 billion net notional value of commodity index business in U.S. markets on 

June 30, 2008, about 24 percent was held by ―index funds,‖ about 42 percent was held by 

―institutional investors,‖ about 9 percent was held by ―sovereign wealth funds,‖ and about 25

percent was held by ―other‖ traders. The ―other‖ category is largely made up of retail investors 

holding ETFs, ETNs, and similar instruments that are publicly traded. The percentages held by 

 

38 Throughout the report, notional values and the equivalent numbers of futures contracts are provided on 

a net basis. During the study, we found that portfolio managers that have established a long commodity 

index exposure through a long-term swap agreement may establish short commodity index exposure 

when the commodities component of their total portfolio has grown beyond the desired percentage 

allocation, which was prevalent during this recent period of rising commodity prices compared to returns 

on other assets. These short commodity index positions offset a portion of their long exposure. As a 

result, the net values properly represent the size and potential impact of index investment.

39 Most non-U.S. market commodity index trading occurs on futures exchanges in London (e.g., London 

Metal Exchange). 
22

these various classes of traders appear to have been reasonably consistent over the three quarterly 

dates included in this study. 

The 9 percent of commodity index notional value held by sovereign wealth funds was 

analyzed further by the types and locations of entities in that category. For clients of index funds 

with $100 million or more invested, four entities were identified as sovereign wealth funds: 2

separate pension funds run by a European government; 1 fund in the name of a North American 

government; and 1 fund in the name of a European city. None of the 4 was identified with a 

futures-equivalent position over a position limit or accountability level. For single-commodity 

clients of swap dealers, 6 entities that appear to be sovereign wealth funds were identified as 

above the threshold levels described earlier (i.e., total all-months gross futures equivalent 

position of 25 percent or more of a single-month limit or level). Three of these were North 

American, 1 was European, and 2 were Asian. 

B. NYMEX WTI Crude Oil

Amounts of Index Trading

The data for NYMEX crude oil positions includes positions traded on NYMEX as well as 

those traded on ICE Futures Europe in London that are linked to the NYMEX crude oil contract. 

On the quarterly dates, NYMEX crude oil had the following amount of commodity index 

investment, which averaged approximately 32 percent of the total index notional value in all U.S. 

markets:40

December 31, 2007 March 31, 2008 June 30, 2008

NYMEX Crude Oil—

Index Notional Value $39.1 billion $41.0 billion $51.0 billion

Crude Oil index 

values measured in 

futures equivalents

408,000 398,000 363,000

Total NYMEX Crude 

Oil Futures and 

Options Open Interest

2,508,971 2,885,101 2,837,447

NMEX Crude Oil

Price $96 bbl. $102 bbl. $140 bbl.

While the net notional value of commodity index business in NYMEX WTI crude oil 

increased sharply over the 6-month period ending on June 30, 2008—by about 30 percent, the 

actual numbers of equivalent long futures contracts declined over that same period by about 11 

percent. In other words, the sharp rise in the net notional value of commodity index business in 

crude oil futures appears to be due to an appreciation of the value of existing investments caused 

 

40 The Commission does not publish Index Traders positions for WTI crude oil futures, for reasons 

discussed elsewhere in this report, so no direct comparisons can be made to Commitment of Traders data.
23

by the rise in crude oil prices and not the result of more money flowing into commodity index 

trading. This is illustrated in the following chart:

80

90

100

110

120

130

140

150 12/31 1/8 1/15 1/23 1/30 2/6 2/13 2/21 2/28 3/6 3/13 3/20 3/28 4/4 4/11 4/18 4/25 5/2 5/9 5/16 5/23 6/2 6/9 6/16 6/23 6/30

NYMEX WTI Crude Oil Net Commodity Index Values

Notional Value

In Billions of Dollars

(left axis)

Futures Contract Equivalents

In 1,000’s

(right axis)

WTI Crude Oil Price

(Nearby NYMEX Future in $/bbl)

Types of Swap Clients

For NYMEX WTI crude oil, as of June 30, 2008, the special call covered 90 percent or 

more of the actual total long and the total short futures and options positions held by all of the 

swap dealers and represented essentially all of the index trading done through swap dealers. The 

special call data show that, where the principals are known to the dealer, commercial client 

counterparties of single-commodity swaps in crude oil held about 59 percent of the estimated 

futures contract equivalents on the long side and about 69 percent on the short side; while 

noncommercial client counterparties held about 41 percent of the estimated futures contract 

equivalents on the long side and about 31 percent on the short side. Here the noncommercial 

category includes the sum of the noncommercials identified as single-commodity swap 

counterparties and all of the dealer‘s commodity index clients (the index funds, institutional 

investors, sovereign wealth funds, and other). 

Swap Clients Above Accountability Levels

On June 30, 2008, there were 20 swap clients identified to the CFTC with aggregate 

positions (all on-exchange futures positions plus all OTC positions combined, on a futures 

equivalent basis) exceeding the 10,000-contract single-month or the 20,000-contract all-monthscombined accountability levels. Unlike position limits (which are specific limits that a trader‘s 

on-exchange position may not exceed without potentially violating the CEA), accountability 

levels are position levels that, if exceeded, trigger additional exchange scrutiny of the positions 
24

and requests from the exchange for information concerning the positions, but do not preclude 

maintaining or adding to the position. 

Of the 20 counterparties, 14 were commercial clients and 6 were noncommercial clients. 

There were also 10 intermediaries reported as clients above an accountability level. All of those

intermediaries were separately subject to the Commission‘s special call and, to the extent they 

may have had large clients, they would have reported them.

Of the 6 noncommercial clients in crude oil who held aggregate futures plus OTC 

positions above the single-month or all-months-combined level, 3 held equivalent futures 

positions above the single-month level: a U.S. hedge fund over on the short side by 14,700 

contracts; a European pension fund over on the long side by 2,600 contracts; and an Asian

sovereign wealth fund over on the long side by 3,000 contracts. The remaining 3 noncommercial 

clients held equivalent futures positions above the all-months-combined level were—a European 

pension fund over on the long side by 14,600 contracts, a U.S. investment advisor with 

institutional clients over on the long side by 4,800 contracts, and a Canadian pension fund over 

on the short side by 600 contracts.

On June 30, 2008, the total of 25,000 long contracts of equivalent positions that 4 

noncommercial clients had above an accountability level represented about 2 percent of the total 

open interest held by long noncommercial traders on-exchange and about 1 percent of total 

futures and options open interest for crude oil. Similarly, the total of 15,300 short contracts of 

equivalent positions that 2 noncommercial clients had above an accountability level represented 

about 1 percent of the total open interest held by short noncommercial traders on-exchange and 

about 0.5 percent of total futures and options open interest. NYMEX was aware of 3 of the 6 

total identified noncommercial customers above accountability levels, though the NYMEX may 

not have known the full extent of their OTC positions.

Counting only OTC positions reported in the special call (i.e., excluding actual futures 

contracts held by the clients) 3 of the above-cited noncommercial clients held futures-equivalent 

OTC positions exceeding the accountability levels. Two exceeded the single month level by 

2600 futures contract equivalents each on the long side; and 1 exceeded the all-months level by 

600 futures contracts equivalents on the short side. 

C. CBOT Wheat

Amounts of Index Trading

On the quarterly dates, CBOT Wheat had the following amount of commodity index 

investment, which averaged approximately 6% of the total index net notional value in all U.S. 

markets:41

 

41By way of comparison, the weekly Commitments of Traders data published on dates nearest to the 

quarterly dates showed net long wheat futures equivalent positions held by Index Traders as 196,000 

contracts on December 31, 2007, 178,000 contracts on April 1, 2008, and 178,000 contracts on July 1, 

2008. The COT data have to be viewed ultimately as estimates of index trading, because the reported 
25

December 31, 2007 March 31, 2008 June 30, 2008

CBOT Wheat—Index 

Notional Value $8.1 billion $8.8 billion $8.7 billion

CBOT Wheat Index 

values measured in 

futures equivalents

185,000 188,000 194,000

Total CBOT Wheat 

Futures and Options 

Open Interest

540,679 536,731 444,953

CBOT Wheat

Price $8.85 bu. $9.29 bu. $8.44 bu.

Both the net notional values and the equivalent numbers of futures contracts reported for 

commodity index trading in wheat changed very little over that time period. Wheat futures 

prices, however, experienced a great deal of volatility over the 6-month period. The nearby 

futures price was at around $8.85 per bushel on December 31, and traded near $13.00 in late 

February and early March, before declining to $8.44 at the end of June. Based upon this limited 

amount of data, there is no clear relationship between the small changes in numbers of futures 

equivalents related to commodity index business and the movement or volatility of wheat futures 

prices. This is illustrated in the following chart:

 

futures positions of swaps dealers doing index trading includes internal netting and the other business—

single-commodity swaps and proprietary—that they bring to the futures markets.
26

6

8

10

12

14 12/31 1/8 1/15 1/23 1/30 2/6 2/13 2/21 2/28 3/6 3/13 3/20 3/28 4/4 4/11 4/18 4/25 5/2 5/9 5/16 5/23 6/2 6/9 6/16 6/23 6/30

CBOT Wheat Net Commodity Index Values

Notional Value

In Billions of Dollars

(left axis)

Futures Contract Equivalents

In 1,000’s

(right axis)

Wheat Price

(Nearby CBOT Future in $/bu)

Types of Swap Clients

The OTC aspect of the CBOT wheat market is very small compared to, for example, the 

highly developed OTC crude oil market. As of June 30, 2008, the special call data show that, 

where the principals are known to the dealer, commercial client counterparties of singlecommodity swaps held less than 1 percent of the estimated futures contract equivalents on the 

long side and about 3 percent on the short side; while noncommercial client counterparties held 

over 99 percent of the estimated futures contract equivalents on the long side and about 97

percent on the short side. Here the noncommercial category includes the sum of the 

noncommercials identified as single-commodity swap counterparties and all of the dealer‘s 

commodity index clients (the index funds, institutional investors, sovereign wealth funds, and 

other).

Swap Clients Above Speculative Limits

On June 30, 2008, there were 7 principals identified to the CFTC with aggregate 

positions (all on-exchange futures positions plus all OTC positions combined, on a futures 

equivalent basis) exceeding either the 5,000 contract single-month or the 6,500-contract allmonths-combined speculative position limits and 6 of those were noncommercial. Of those 6

noncommercial clients, 4 held futures equivalent positions above the all-months-combined 

limit— a European hedge fund over on the long side by 5,900 contracts, the sponsor of an ETF 

over on the long side by 2,400 contracts, a European pension fund over on the long side by 1,700 

contracts, and a European hedge fund over on the short side by 1,100. The remaining 2

noncommercial clients held futures equivalent positions above the single-month level—a U.S. 

hedge fund over on the short side by 1,000 contracts, and another U.S. hedge fund over on the 

short side by 600 contracts. There were also 11 intermediaries identified to the CFTC as clients, 
27

all of whom were subject to the Commission‘s special call. To the extent they may have had 

large clients, they would have reported them. 

On June 30, 2008, the total of 10,000 long contracts of equivalent positions that 3 

noncommercial clients had above position limits represented about 5 percent of the total open 

interest held by long noncommercial traders on-exchange and about 2 percent of total futures and 

options open interest for wheat. Similarly, the total of 1,600 short contracts of equivalent 

positions that 3 noncommercial clients had above an accountability level represented less than 1 

percent of the total open interest held by short noncommercial traders on-exchange and was a 

negligible portion of total futures and options open interest. 

Counting only OTC positions reported in the special call (i.e., excluding actual futures 

contracts held by the clients), 2 of the above-cited noncommercial clients exceeded the single 

month limit by 2000 and by 3900 futures contract equivalents respectively, both on the long side; 

amounting to the clients exceeding the all-months limit, by 500 and by 2400, respectively, both 

on the long side.

D. CBOT Corn

Amounts of Index Trading

On the quarterly dates, CBOT corn had the following amount of commodity index 

investment, which averaged approximately 7 percent of the total index net notional value in all 

U.S. markets: 42

December 31, 2007 March 31, 2008 June 30, 2008

CBOT Corn—Index 

Notional Value $7.6 billion $10.3 billion $13.1 billion

CBOT Corn Index 

values measured in 

futures equivalents

326,000 362,000 350,000

Total CBOT Corn 

Futures and Options 

Open Interest

1,726,038 2,111,856 2,048,567

CBOT Corn

Price $4.56 bu. $5.67 bu. $7.25 bu.

 

42By way of comparison, the weekly Commitments of Traders data published on dates nearest to the 

quarterly dates showed net long corn futures equivalent positions held by Index Traders as 366,000 

contracts on December 31, 2007, 439,000 contracts on April 1, 2008, and 417,000 contracts on July 1, 

2008. The COT data have to be viewed ultimately as estimates of index trading, because the reported 

futures positions of swaps dealers doing index trading includes internal netting and the other business—

single-commodity swaps and proprietary—that they bring to the futures markets.
28

Corn futures prices were also volatile over the 6-month period and increased sharply. 

The nearby futures price was at around $4.56 per bushel near January 1, closed at $5.67 on 

March 31, and moved even higher to about $7.25 at the end of June. The net notional values 

associated with commodity index trading increased significantly from December 31 to March 31 

(by about 36 percent) and increased again from March 31 to June 30 (by about 27 percent). The 

estimated numbers of futures contracts associated with commodity index trading increased from 

December 31 to March 31 by about 11 percent. However, from March 31 through June 30, 

2008, as the nearby futures price increased by about 28 percent, there was a net 3 percent 

reduction in the equivalent long corn futures contracts held by commodity index traders. This is 

illustrated in the following chart:

4.00

4.50

5.00

5.50

6.00

6.50

7.00

7.50

8.00 12/31 1/8 1/15 1/23 1/30 2/6 2/13 2/21 2/28 3/6 3/13 3/20 3/28 4/4 4/11 4/18 4/25 5/2 5/9 5/16 5/23 6/2 6/9 6/16 6/23 6/30

Notional Value

In Billions of Dollars

(left axis)

Futures Contract Equivalents

In 1,000’s

(right axis)

Corn Price

(Nearby CBOT Future in $/bu)

CBOT Corn Net Commodity Index Values

Types of Swap Clients

The OTC aspect of the CBOT corn market is also very small compared to the highly 

developed OTC crude oil market. As of June 30, 2008, the special call data show that, where the 

principals are known to the dealer, commercial client counterparties of single-commodity swaps 

held about 1 percent of the estimated futures contract equivalents on the long side and about 13

percent on the short side; while noncommercial client counterparties held about 99 percent of the 

estimated futures contract equivalents on the long side and about 87 percent on the short side. 

Here the noncommercial category includes the sum of the noncommercials identified as singlecommodity swap counterparties and all of the dealer‘s commodity index clients (the index funds, 

institutional investors, sovereign wealth funds, and other).
29

Swap Clients Above Speculative Limits

On June 30, 2008, there was 1 principal identified to the CFTC with aggregate positions 

(all on-exchange futures positions plus all OTC positions combined, on a futures equivalent 

basis) exceeding either the 13,500-contract single-month or the 22,000-contract all-monthscombined speculative position limits. This principal was a commercial client. There were also 9 

intermediaries reported as clients, all of whom were subject to the Commission‘s special call. To 

the extent they may have had large clients, they would have reported them. 

E. ICE Futures-U.S. Cotton 

Amounts of Index Trading

On the quarterly dates, ICE-Futures cotton had the following amount of commodity index 

investment, which averaged approximately 2 percent of the total index net notional value in all 

U.S. markets: 43

December 31, 2007 March 31, 2008 June 30, 2008

ICE-Futures Cotton—

Index Notional Value $2.6 billion $2.6 billion $2.9 billion

ICE-Futures Cotton 

index values 

measured in futures 

equivalents

72,000 73,000 73,000

Total ICE-Futures 

Cotton Futures and 

Options Open Interest

369,243 537,132 380,560

ICE-Futures Cotton

Price $.68 lb. $.69 lb. $.71 lb.

In the context of a highly volatile period of time for the cotton futures market, there were 

only small changes in the notional values of commodity index trading and equivalent futures 

contracts over the 6-month time period. This is illustrated by the following chart:

 

43By way of comparison, the weekly Commitments of Traders data published on dates nearest to the 

quarterly dates showed net long cotton futures equivalent positions held by Index Traders as 99,000 

contracts on December 31, 2007, 109,000 contracts on April 1, 2008, and 105,000 contracts on July 1, 

2008. The COT data have to be viewed ultimately as estimates of index trading, because the reported 

futures positions of swaps dealers doing index trading includes internal netting and the other business—

single-commodity swaps and proprietary—that they bring to the futures markets.
30

60

65

70

75

80

85

90 12/31 1/8 1/15 1/23 1/30 2/6 2/13 2/21 2/28 3/6 3/13 3/20 3/28 4/4 4/11 4/18 4/25 5/2 5/9 5/16 5/23 6/2 6/9 6/16 6/23 6/30

Notional Value

In Billions of Dollars

(left axis)

Futures Contract Equivalents

In 1,000’s

(right axis)

ICE US Cotton No. 2 Net Commodity Index Values

Cotton Price

(Nearby ICE Future in cents/lb)

Types of Swap Clients

The OTC aspect of the ICE-Futures cotton market is also very small compared to the 

highly developed OTC crude oil market. As of June 30, 2008, the special call data show that, 

where the principals are known to the dealer, commercial client counterparties of singlecommodity swaps held less than 1 percent of the estimated futures contract equivalents on the 

long side and about 4 percent on the short side; while noncommercial client counterparties held 

over 99 percent of the estimated futures contract equivalents on the long side and about 96

percent on the short side. Here the noncommercial category includes the sum of the 

noncommercials identified as single-commodity swap counterparties and all of the dealer‘s 

commodity index clients (the index funds, institutional investors, sovereign wealth funds, and

other).

Swap Clients Above Speculative Limits

On June 30, 2008, three principals were identified to the CFTC with aggregate positions 

(all on-exchange futures positions plus all OTC positions combined, on a futures equivalent 

basis) exceeding either the 3,500-contract single-month speculative position limit or the 5,000-

contract all-months limit in cotton. One was a commercial client, 2 were noncommercial clients. 

One of the 2 noncommercial clients, the sponsor of an ETF, held an equivalent long futures 

position above the one single-month limit by 1,100 contracts. The second noncommercial client, 

a European hedge fund, held an equivalent long futures position above the all-months limit by 

6,000 contracts. There were also 4 intermediaries reported as clients. All 4 were subject to the 

Commission‘s special call. To the extent they may have had large clients, they would have 

reported them. 

 
31

On June 30, 2008, the total of 7,100 long contracts of equivalent positions that two 

noncommercial clients had above speculative position limits represented about 4 percent of the 

total open interest held by long noncommercial traders on-exchange and about 2 percent of total 

futures and options open interest for cotton. Counting only OTC positions reported in the special 

call (i.e., excluding actual futures contracts held by the clients), the same two non-commercial 

swap clients exceeded the single-month limit, by 1100 and by 4600 respectively, both on the 

long side; and one of them exceeded the all-months limit, by 3100 on the long side.

F. Other Commodity Findings

NYMEX Natural Gas

On June 30, 2008, 32 principals were reported as holding aggregate futures and OTC 

positions above the single-month or the all-months-combined accountability level. Of those, 24

were commercial clients. Of the 8 noncommercial clients in natural gas, 2 held equivalent futures 

positions above the single-month level (of 6,000 contracts)— a U.S. investment advisor with 

institutional clients was over on the long side by 1,400 contracts and a European pension fund 

was over on the long side by 750 contracts. Six noncommercial natural gas traders held 

equivalent futures positions above the all-months-combined level (of 12,000 contracts)—a high 

net worth U.S. energy trader was over on the long side by 18,200 contracts, another high net 

worth U.S. investor was over on the long side by 6,600 contracts, a third high net worth U.S. 

investor was over on the long side by 5,200 contracts, a U.S. hedge fund was over on the short 

side by 4,700 contracts, a U.S. hedge fund was over on the short side by 2,200 contracts, and 

another U.S. hedge fund was over on the short side by 2000 contracts. Counting only OTC 

positions reported in the special call (i.e., excluding actual futures contracts held by the clients), 

4 of the above-cited clients held positions exceeding the single-month accountability level (by 

11100 long; 2400 short; 6700 long; and 10800 long); and 3 of them exceeded the all-months 

accountability level (by 5100; 700; and 4800; all on the long side).

CBOT Soybeans

On June 30, 2008, 3 noncommercial principals each held aggregate futures and OTC 

positions exceeding a position limit—a European hedge fund held a long equivalent position

above the all-months-combined limit (of 10,000 contracts) by 200 contracts. The other 2

noncommercial traders held equivalent long futures positions that were above the single-month 

limit (of 6,500 contracts)— a U.S. investment advisor with institutional clients was over on the 

long side by 3,100 contracts and an Asian hedge fund was over on the long side by 1,300 

contracts. Seven intermediaries in soybeans were reported as clients above the limits, but all 

were subject to the Commission‘s special call. Counting only OTC positions, none of the above 

exceeded limits.
32

ICE Futures-U.S. Sugar #11

On June 30, 2008, 4 commercial and 2 noncommercial principals each held aggregate 

futures and OTC positions exceeding an accountability level. Of the 2 noncommercial clients, a 

European hedge fund held a long equivalent position above the all-months-combined level (of 

15,000 contracts) by 10,400 contracts, and the sponsor of an ETF had a short position above the 

all-months-combined level by 500 contracts. Nine intermediaries in sugar were reported as 

clients above an accountability level, but all were subject to the Commission‘s special call. 

Counting only OTC positions, the same two noncommercial swap clients exceeded the allmonths limit by 500 and 4200 respectively, both on the long side.

6. Preliminary Recommendations

This special call survey of swap dealers and commodity index traders has revealed the 

complexity of the OTC markets, the difficulty of determining precisely the nature, size, and 

scope of OTC commodity swap transactions, and the challenges associated with extracting

meaningful market information from such a substantial and non-standardized OTC data set. The 

CFTC‘s market oversight staff was charged with the formidable task of unraveling and analyzing 

the multi-billion dollar portfolios of numerous major swap dealers and assessing, to the extent 

possible, the impact of this type of derivatives trading on the price discovery process on futures 

exchanges. 

While certain key findings can be drawn from the resulting data, the limitations of the 

scope of the survey and the relatively narrow time period of review suggest the need for 

continued information and analysis. Nevertheless, while highlighting the need to proceed 

cautiously in light of the serious difficulties in drawing meaningful market information from the 

large and non-standardized OTC marketplace, the Commission believes, at a minimum, that 

certain constructive steps can and should be taken in light of the results of this survey, and 

approved the following preliminary recommendations,

44 several of which may benefit from 

legislative codification. Of course, the Commission will consider whether further 

recommendations are necessary as this survey and analysis continues. 

Enhanced Transparency and Data Accuracy

This survey demonstrates a need for greater transparency in the manner and amount of 

trading that occurs through swap dealers. Transparency is healthy both for regulatory monitoring 

and for market integrity and public reporting. Accurate information also is critical to making 

appropriate regulatory and policy decisions. Accordingly, the Commission recommends the 

following steps to enhance transparency, increase understanding of market activity, and improve 

the agency‘s data collection and reporting procedures. 

 

44 But see Dissent of Commissioner Bart Chilton, Appendix G.
33

1. Remove Swap Dealer from Commercial Category and Create a New Swap Dealer 

Classification for Reporting Purposes: In order to provide for increased transparency of the 

exchange-traded futures and options markets, the Commission has instructed the staff to develop 

a proposal to enhance and improve the CFTC‘s weekly COT reports by including more 

delineated trader classification categories beyond commercial and noncommercial, which may 

include at a minimum the addition of a separate category identifying the trading of swap 

dealers.45 The Commission believes that creating a separate stand-alone reporting category for 

swap dealers out of the commercial category will facilitate better understanding of the operation 

of and developments in the futures and options markets.

2. Develop and Publish a New Periodic Supplemental Report on OTC Swap Dealer 

Activity: In order to provide for increased transparency of OTC swap and commodity index 

activity, the Commission has instructed the staff to develop a proposal to publish a periodic 

supplemental report on swap dealer activity. This new report will allow for a better 

understanding of the exchange traded swap dealer activity that will be separately reported in the 

enhanced weekly COT report discussed above. It will provide a periodic ―look through‖ from 

swap dealers to their clients and identify the types and amounts of trading occurring through 

these intermediaries, including index trading. 

3. Create a New CFTC Office of Data Collection with Enhanced Procedures and Staffing: 

The CFTC strives to provide the public with the most accurate aggregate data possible when 

publishing its weekly COT reports – consistent with the inherent limitations of the current trader 

classification system and the agency‘s resources. In order to enhance the agency‘s data 

collection and dissemination responsibilities, the Commission has instructed its staff to develop a 

proposal to create a new office within the Division of Market Oversight, whose mission is to 

collect, verify, and audit information related to large trader data and certain other market 

information and to maintain responsibility for publication of the agency‘s COT reports and other 

periodic public reports. The Commission also has instructed the staff to review its policies and 

procedures regarding data collection and to develop recommendations for improvements. The 

Commission believes that the creation of this new office and the accompanying policy review 

will improve the consistency and accuracy of the agency‘s data collection, classification, and 

publication processes.

4. Develop “Long Form” Reporting for Certain Large Traders to More Accurately Assess 

Type of Trading Activity: As swap dealers and other large traders on regulated futures 

exchanges conduct a mix of both commercial and noncommercial activity, the current ―either/or‖ 

classification system for commercial and noncommercial entities has become less useful and 

meaningful. This imprecision has led to significant misunderstandings about the nature and 

scope of participation in the futures markets. Because of this ambiguity in classification 

categories, it is difficult and unreliable for the CFTC to make estimates on the true nature of 

transactions occurring on exchanges without improvements to the current system. As a result,

the Commission has instructed the staff to develop a supplemental information form for certain 

 

45 Any new classifications and data in the COT reports would be subject to the requirements of CEA 

Section 8 prohibiting the publication of data and information that would separately disclose the business 

transactions or market positions of any person. 7 USC 12(a).
34

large traders on regulated futures exchanges that would collect additional information regarding 

the underlying transactions of these traders so there is a more precise understanding of the type 

and amount of trading occurring on these regulated markets. 

Enhanced Controls on Swap Dealer Trading Activity

The survey has shown that swap dealers represent an amalgam of both commercial and 

noncommercial interests, depending on the type of commodity being traded. This mix of 

commercial and noncommercial activity by swap dealers calls into question whether swap 

dealers should receive commercial hedge exemptions from speculative position limits for some 

activity that is characterized as noncommercial. While the total number of noncommercial 

aggregate positions (all on-exchange futures positions plus all OTC equivalent futures positions) 

exceeding exchange position limits or accountability levels were quite small compared to the 

overall size of the futures markets, the Commission recommends—as a matter of regulatory 

consistency and fairness—the following step: 

5. Review Whether to Eliminate Bona Fide Hedge Exemption for Swap Dealers and Create 

New Limited Risk Management Exemptions: The Commission has instructed the staff to 

develop an advance notice of proposed rulemaking that would address whether to eliminate the 

bona fide hedge exemption for swap dealers and replace it with a limited risk management 

exemption that is conditioned upon, among other things: (1) an obligation to report to the CFTC 

and applicable self regulatory organizations when certain noncommercial swap clients reach 

certain position levels in related exchange traded contracts, and/or (2) a certification that none of 

a swap dealer‘s noncommercial swap clients exceed specified position limits in related 

exchange-traded contracts. While more information is needed to fully evaluate this 

recommendation, requiring swap dealers to monitor and restrict the position sizes of their

counterparty traders, subject to CFTC reporting and audits, as a condition of obtaining and 

maintaining such an exemption, is a practicable way of ensuring that noncommercial 

counterparties are not purposefully evading the oversight and limits of the CFTC and exchanges,

and that manipulation is not occurring outside of regulatory view. 

Increased Funding

6. Additional Staffing and Resources: The Commission believes that substantial additional 

resources will be required to successfully implement the above recommendations. The CFTC 

devoted more than 30 employees and 4000 staff hours to this survey, which the Commission is 

now recommending to produce on a periodic basis. Other new responsibilities will also require

additional staff time and resources. The agency has currently been operating at or near 

historically low staffing levels. Accordingly, the Commission respectfully recommends that 

Congress provide the CFTC with funding adequate to meet its current mission, the expanded 
35

activities outlined herein, and any other additional responsibilities that Congress asks the CFTC 

to discharge.46

Other Recommendations

7. Encourage Clearing of OTC Transactions: The Commission believes that market integrity, 

transparency, and availability of information related to OTC derivatives are improved when 

these transactions are subject to centralized clearing. Accordingly, the Commission will 

continue to promote policies that enhance and facilitate clearing of OTC derivatives whenever 

possible.

8. Review of Swap Dealer Commodity Research Independence: Many commodity swap 

dealers are large financial institutions engaged in a range of related activity, including 

commodity market research. Questions have been raised as to whether swap dealers‘ futures 

trading activity is sufficiently independent of any related and published commodity market 

research. Accordingly, the Commission has instructed the staff to utilize existing authorities to 

conduct a review of the independence of swap dealers‘ futures trading activities from affiliated 

commodity research, and report back to the Commission with any findings.

 

46 For purposes of this report, the Commission has not set forth specific resource and staffing estimates 

for any of the proposed recommendations. However, the Commission stresses its willingness to assist 

Congress by providing specific budgetary estimates related to these recommendations as necessary.
36

Appendix A

COMMODITY INDEX INVESTMENT

Net Notional Value Reported by Call Responders 

(Billions of US Dollars)

US Futures Market

(Notional Value > 0.5 billion US$)*

31-Dec0731-Mar0830-Jun08

Cocoa 0.4 0.5 0.8 

Coffee 2.2 2.4 3.1 

Copper COMEX 2.8 4.4 4.4 

Corn 7.6 10.3 13.1 

Cotton 2.6 2.6 2.9 

Feeder Cattle 0.4 0.5 0.6 

Gold 7.3 8.3 9.0 

Heating Oil 7.8 7.7 10.0 

Lean Hogs 2.1 2.9 3.2 

Live Cattle 4.5 5.0 6.5 

Natural Gas 10.8 13.3 17.0 

RBOB Gasoline 4.5 6.2 8.0 

Silver 1.8 2.4 2.3 

Soybean Oil 2.1 2.0 2.6 

Soybeans 8.7 8.2 10.9 

Sugar 3.2 4.5 4.9 

Wheat (CBOT) 8.1 8.8 8.7 

Wheat (KCBOT) 1.2 1.0 1.0 

WTI Crude Oil 39.1 41.0 51.0 

Subtotal (> 0.5 billion US$) 117.2 132.0 160.1 

Subtotal (< 0.5 billion US$) 0.7 0.8 1.4 

Total US 117.9 132.8 161.5 

Total NON-US 28.1 34.8 38.4 

Total Notional Value 146.0 167.6 199.9 

34 swaps dealers and index funds responded with notional value data for 

commodity index business 

* US Futures Markets with greater than 0.5 billion US dollars in reported 

index investment notional value at the end of at least one month 

(December, March, or June).
37

Appendix B

The Purposes of Futures Trading on DCMs: Hedging and Price Discovery

An exchange-traded futures contract is an agreement between two parties to buy and sell 

a given amount of a commodity at an agreed upon date in the future, at an agreed upon price and 

at a given location.47 Such contracts are primarily designed to manage risk and, as a result 

usually are extinguished without physical delivery by exchange style offset or, depending on the 

contract, cash settlement. Their terms and conditions usually are identical in all aspects except 

for the contracted price; and the trades are cleared through designated clearinghouses. The 

standardization and clearing of such futures contracts make the contracts fungible, which allows 

for easy offset and enhances trading. That is, every exchange-traded futures contract for a 

particular commodity is the same as any other contract, and because the clearinghouse is the 

counterparty to every contract, there is no need for a party to go back to the original contracting 

party to offset a position—the holder of a futures contract simply enters into a new contract 

opposite that of the first to cancel the obligation.

The standardization and tradability of exchange-traded futures contracts also facilitate 

risk management because a hedger can obtain a price exposure to a well-defined commodity (in 

terms of commodity specification and delivery location) that tends to correlate in a known way 

with the price he/she is trying to hedge. However, standardization also means that the price risk 

the hedger is hedging, and the terms specified in the contract may not match precisely 

(particularly with respect to delivery location). The offset feature of futures contracts means that 

a hedger will typically not deliver or take delivery of the commodity, opting instead to take a 

financial settlement of the contract that may mitigate the effect of losses realized in the cash 

market. Indeed, a vast majority of futures contracts do not result in delivery. It is the threat of 

delivery that serves the purpose of keeping the cash and futures prices aligned. 

Due to contract standardization, exchange-traded futures contracts are not generally 

suited, or used, to merchandise the physical commodity. For example, to serve a significant 

merchandising role, such contracts would need to offer multiple locations of physical delivery 

with a variety of grades or qualities to match the diverse needs of numerous buyers and sellers of 

the commodity. Such a variety of contract specifications, however, would make the trading of 

 

47 For example, the CBOT December 2008 corn contract is an agreement to deliver 5,000 bushels of No. 2 

yellow corn via a shipping certificate within the Chicago and Burns Harbor, Indiana shipping districts 

along the Illinois waterway during the first half of December 2008. In the case of crude oil, the NYMEX 

WTI December 2008 oil contract is an agreement to physically deliver 1,000 barrels (42,000 gallons) of 

oil at Cushing, Oklahoma during the contract month. For all futures contracts there is a buyer and a 

seller. The buyer (or long trader) and the seller (or short trader) agree to a price when they enter into the 

contract. If the contract provides for physical delivery of a commodity, a party whose contract remains 

open at its expiration date (i.e. not offset) is obligated to make or take delivery as promised. Not all 

futures contracts require physical delivery. Some futures contract provide for cash settlement at contract 

expiration, whereby a cash price or other price is used to value the gains or losses on a contract. For 

example, the CME uses the CME Feeder Cattle Index to settle its feeder cattle futures contract. The index 

is a seven-day weighted average of USDA prices from a 12-state region.
38

the contracts unwieldy due to the uncertainty of what would be delivered on the contract and 

where. As a result, the designers of on-exchange contracts strive to create contracts that are 

reflective of the general characteristics of the physical markets, while leaving the role of 

merchandising the actual commodity to the cash markets. The cash markets include the spot 

market, where transactions involve immediate or near term delivery and payment for the 

commodity; and forward contracts where delivery and payment are deferred for reasons of 

commercial convenience or necessity. 

Because most exchange-traded futures contracts are standardized in all respects other 

than price, futures markets are ideal for aggregating a multiplicity of opinions about the expected 

price of a commodity at different points in time. For that reason, futures markets are an 

important source of price information—prices are often said to be ―discovered‖ in futures 

markets and then communicated to participants in cash markets who may choose to use futures 

prices as the basis for their transactions.

The price discovery function of futures markets is extremely valuable for commercial 

enterprises in terms of planning business activities and for allocating resources. The availability 

of publicly observed futures prices for several years into the future makes it possible to 

recognize, plan, and finance needed business adjustments in supply and demand early on. This, 

in turn, may help reduce price volatility. Price volatility is often higher in markets without a 

successful exchange-traded futures contract, such as those for fertilizers, coal, tea and onions.48 

 

48 For example, while onion futures contracts are explicitly banned by law, it has been observed that the 

cash price for onions rose 400 percent between October 2006 and April 2007, fell 96 percent by March 

2008, and then rebounded 300 percent by April 2008.
39

Appendix C

Speculation and Price Discovery in Futures Markets

1. Hedgers and Speculators

As passive commodity index trading has become more attractive as an investment 

alternative, many in the private and public sectors have expressed a concern that the amount of 

these ―long only‖ investments may be artificially driving prices higher over the long run or 

blunting the effects of supply and demand. Questions have been raised whether this activity may 

be overwhelming traditional commercial interests that have used these markets to hedge their 

business activities.

While hedging and speculation are typically thought of as distinct and opposite activities 

in the futures markets, this swap dealer survey has made clear that the distinction in practice may 

be much less clear. Traditionally, those with a commercial interest in or an exposure to a 

physical commodity have been called hedgers, while those without such an exposure have been 

called speculators. In practice, however, some hedgers may be ―taking a view‖ on the price of a 

commodity beyond their hedging needs. 

Traditional speculators enter into futures contracts with the intention of reversing their

positions before they would be required to deliver (short positions) or to accept physical delivery 

(long positions) of a commodity. As such, speculators serve important market functions –

immediacy of execution, liquidity, and information aggregation.

Traditional speculators can further be differentiated depending on the time horizons at 

which they operate. Speculators known as ―scalpers‖ or ―market makers,‖ operate at the shortest 

time horizon – sometimes trading in and out of a position within a single second. These traders 

typically do not trade with a view as to where prices are going. Instead, they provide immediacy 

of execution to a trade. That is, they ―make markets‖ by standing ready to buy or sell at a 

moment‘s notice. These market makers will usually offset their positions soon after entering into 

them. The goal of a market maker is to buy contracts at a slightly lower price than the current 

market price and sell them at a slightly higher price (or vice versa), perhaps at only a fraction of 

a cent profit on each contract. By trading hundreds or even thousands of contracts a day, skilled 

market makers can earn a profit. Absent a market maker, a commercial market participant would 

have to wait until the arrival of another commercial party with an opposite trading interest.

Other types of speculators take longer-term positions based on their view of where prices 

may be headed. Speculators known as ―day traders‖ establish positions based on their view of 

where prices might be moving in the next minutes or hours, while ―trend followers‖ take 

positions based on price expectations over a period of days, weeks or months. Through their 

efforts to gather information on underlying commodities, the activity of these traders serves to 

bring information to the futures markets and to aid in price discovery. These speculators are also 

important to the futures markets in that they often supply overall liquidity to hedgers.
40

Finally, a new class of speculator—commodity index traders—has emerged in the futures 

markets that does not necessarily take a view on expected prices, but seeks to capture a 

commodity exposure that will diversify a portfolio. Traditionally, portfolio managers have 

sought to hold a diverse set of stocks and bonds to smooth out the performance of the portfolio. 

For example, the manager may invest in stocks of companies in different industrial sectors (such 

as manufacturing, agriculture, mining and service) on the assumption that when one sector 

falters, others will rise. This diversification is important to the portfolio manager because there 

is usually a steady stream of redemptions on the portfolio—e.g., to pay pensions or insurance 

claims—that must be paid out from the assets. If a portfolio is not diversified, the manager could 

be faced with the situation of paying out redemptions from negative earnings. As discussed 

above, managers have achieved an additional level of diversification on their portfolios by 

turning to commodities investment via an index of commodities. Whether done directly or 

indirectly, through swap dealers or various forms of index funds, that investment takes the form 

of long futures positions in the various commodities that make up the index. Futures positions 

must be rolled from one contract to the next as contracts near their expiration months. The 

typical index trader will roll the position prior to the delivery period to avoid becoming involved 

in the delivery process. 

2. Speculative Position Limits

Historically, speculative position limits have been one of the tools used by the 

Commission and exchanges to prevent manipulation by controlling the size of positions held by 

noncommercial entities that do not have hedging needs in the underlying physical markets. 

These position limits require all traders to have positions below a specified level during different 

periods of trading unless the trader has received a hedge exemption from either the Commission 

or the exchange. This is meant to lessen the likelihood that a trader can obtain a large enough 

position to manipulate the market. Commercial entities with large merchandising needs have 

received hedge exemptions from these limits because of their need to match their futures market 

positions with their underlying physical commodity needs. Without such hedge exemptions, 

commercial entities would not be able to successfully hedge the price risk associated with their 

underlying commodity price risk exposure. 

The statutory framework for Federal (Commission imposed and enforced) speculative 

position limits dates back to section 4a(a) of the CEA, first enacted in 1936. Section 4a(a) states 

that:

Excessive speculation in any commodity under contracts of sale of such 

commodity for future delivery made on or subject to the rules of contract 

markets or derivatives transaction execution facilities, or on electronic 

trading facilities with respect to a significant price discovery contract, 

causing sudden or unreasonable fluctuations or unwarranted changes in 

the price of such commodity, is an undue and unnecessary burden on 

interstate commerce in such commodity.

Accordingly, section 4a(a) of the Act provides the Commission with the authority to:
41

fix such limits on the amounts of trading which may be done or positions 

which may be held by any person under contracts of sale of such 

commodity for future delivery on or subject to the rules of any contract 

market or derivatives transaction execution facility, or on an electronic 

trading facility with respect to a significant price discovery contract, as the 

Commission finds are necessary to diminish, eliminate, or prevent such 

burden.

The operative terms of section 4a(a) – finding excessive speculation causing sudden or 

unreasonable fluctuations or unwarranted changes in commodity prices to be a burden on 

interstate commerce, and authorizing the Commission to fix such limits as are necessary to 

diminish, eliminate or prevent such burden – have remained essentially unchanged since 1936, 

with amendments generally taking into account additional types of trading facilities.49 

Moving beyond Federal speculative limits, the Futures Trading Act of 1982 added new 

section 4a(e) to the Act. This section acknowledged the key role of exchanges in setting their 

own speculative position limits, by providing that ―[n]othing in [section 4a] shall prohibit or 

impair the adoption‖ of exchange speculative position limits. New section 4a(e) also provided 

that position limits set by exchanges and approved by the Commission are subject to 

Commission enforcement as violations of the Act. Later, the CFMA amended the Act in 2000 to 

change commodities regulation from a system based on prescriptive rules to one of principlesbased regulation.50

 Thus, the CFMA established designation criteria and core principles with 

which a DCM must comply to receive and maintain designation. Among these, Core Principle 5 

in section 5(d) of the Act states:

Position Limitations or Accountability —To reduce the potential threat of 

market manipulation or congestion, especially during trading in the 

delivery month, the board of trade shall adopt position limitations or 

position accountability for speculators, where necessary and appropriate.

 

49 In 2000, the Commodity Futures Modernization Act of 2000 (CFMA) added the reference to 

derivatives transaction execution facilities (DTEFs). In 2008, the CFTC‘s reauthorization legislation (The 

Food, Conservation and Energy Act of 2008, Pub. L. 110-246, 122 Stat. 1651, Title XIII) added the 

reference to electronic trading facilities trading significant price discovery contracts. The electronic 

trading facilities referred to are exempt commercial markets (ECMs) (See: section 2(h)(3) of the Act). 

Standards and procedures for determining a contract traded on an ECM to be a significant price discovery 

contract (―SPDC‖) are set out in section 2(h)(7)(B) of the Act.

50 Section 2 of the CFMA identified the purposes of this landmark legislation as being, among other 

things, ―to streamline and eliminate unnecessary regulation for the commodity futures exchanges and 

other entities regulated under the Commodity Exchange Act‖ and ―to transform the role of the 

Commodity Futures Trading Commission to oversight of the futures markets.‖
42

The Commission‘s 2008 reauthorization legislation added similar position limitation / 

position accountability provisions for DTEFs and for ECMs with respect to significant price 

discovery contracts.51

3. Hedge Exemptions

As mentioned earlier, certain commercial entities have been allowed to receive hedge 

exemptions from speculative position limits in order to allow these entities to manage their 

exposure to price risk derived from their commercial businesses. The regulatory structure for 

speculative position limits is administered under a two-pronged framework, resulting in 

enforcement of speculative position limits being shared by both the Commission and the 

DCMs.52

Under the first prong, the Commission establishes and enforces speculative position 

limits for futures contracts on a limited group of agricultural commodities. These ―Federal 

limits‖ are enumerated in Commission regulation 150.2, and apply to the following futures and 

option markets: CBOT corn, oats, soybeans, wheat, soybean oil, and soybean meal; Minneapolis 

Grain Exchange (MGX) hard red spring wheat and white wheat; ICE Futures U.S. (formerly the 

New York Board of Trade) cotton No. 2; and Kansas City Board of Trade (KCBT) hard winter 

wheat.

Under the second prong, for all other commodities, individual DCMs, pursuant to the 

core principles under the Act, establish and enforce their own speculative position limits or 

position accountability provisions (including exemption and aggregation rules), subject to 

Commission oversight and separate Commission authority to enforce exchange-set speculative 

position limits as violations of the Act. Thus, responsibility for enforcement of speculative 

position limits is shared by the Commission and the DCMs.

 

51 With respect to DTEFs, new section 5a(d)(4) requires DTEFs to adopt position limitations or 

accountability for speculators ―where necessary and appropriate for a contract, agreement or transaction 

with an underlying commodity that has a physically deliverable supply.‖ With respect to ECMs, new 

section 2(h)(7)(C)(ii)(IV) requires such electronic trading facilities to ―adopt, where necessary and 

appropriate, position limitations or position accountability for speculators in significant price discovery 

contracts, taking into account positions in other agreements, contracts and transactions that are treated by 

a derivatives clearing organization, whether registered or not registered, as fungible with such significant 

price discovery contracts.‖

52 Provisions regarding the establishment of exchange-set speculative position limits were originally set 

forth in CFTC regulation 1.61. In 1999, the Commission simplified and reorganized its rules by 

relocating the substance of regulation 1.61‘s requirements to part 150 of the Commission‘s regulations, 

thereby incorporating within part 150 provisions for both Federal speculative position limits and 

exchange-set speculative position limits (See: 64 FR 24038, May 5, 1999). With the passage of the 

CFMA in 2000 and the Commission‘s subsequent adoption of its part 38 regulations covering DCMs in 

2001 (66 FR 42256, August 10, 2001), part 150‘s approach to exchange-set speculative position limits 

was incorporated as an acceptable practice under DCM Core Principle 5 – Position Limitations or

Accountability.
43

Prior to 1974, the hedging definition, which was set forth in the CEA, applied to 

agricultural commodities only. In 1974, when the Commission was created and the definition of 

―commodity‖ under the Act was expanded significantly, Congress was concerned that the 

statutory definition would fail to address developing risk-shifting needs that were beginning to 

emerge at that time. Accordingly, Congress repealed the old statutory definition, and instead 

gave the Commission rulemaking authority to define what constituted bona fide hedging.

By 1977, the Commission had formulated the regulatory framework that remains in place 

today. The Commission‘s bona fide hedging definition consists of three parts contained in 

regulation 1.3(z).53 First, regulation 1.3(z)(1), ―General Definition,‖ provides a general 

description of transactions or positions that the Commission considers to be bona fide hedging 

under economically appropriate circumstances. This part of the rule specifies that no transaction 

or position shall be classified as bona fide hedging for purposes of exceeding Federal speculative 

position limits unless, among other requirements, it can be established and liquidated in an 

orderly manner.

The second part of the definition, regulation 1.3(z)(2), ―Enumerated Hedging 

Transactions,‖ applies only to those domestically produced agricultural commodities that are 

subject to Federal speculative position limits. This part of the rule lists various types of futures 

market positions, both sales and purchases, which the Commission views as conforming to the 

general description in the first part of the definition. This list roughly approximates the list that 

was originally contained in the pre-1974 statutory definition.

The third part of the definition, regulation 1.3(z)(3), ―Non-Enumerated Cases,‖ provides 

that for purposes of exemptions from Federal speculative position limits, the Commission may 

recognize as bona fide hedging, purchases or sales other than those enumerated in the second 

part of the definition. This provision avoids potential inflexibility in the rule. It requires persons 

requesting a hedge exemption to provide the Commission with evidence that the transactions 

meet the requirements of the general definition in regulation 1.3(z)(1), and permits the 

Commission to specify any conditions it deems necessary to assure that the positions are 

consistent with orderly markets and other requirements of the Act.

 

53 17 CFR 1.3(z).
44

Appendix D

Commitments of Traders Report

1. The COT Report and Changes in the Marketplace

During this period of record commodity prices, there has been an intense focus on the 

weekly report published by the Commission that classifies traders as either commercial or 

noncommercial. Specifically, some have questioned whether the historical classification of swap 

dealers as commercial is appropriate, given their mix of both commercial and noncommercial 

business.

The Commitments of Traders (COT) reports are weekly reports published by the 

Commission to provide a degree of transparency about activity in the futures markets. The 

reports are not used for market surveillance or for any regulatory purpose, including the granting 

of exemptions from speculative position limits. The Commission alone is responsible for 

preparation of the COT reports, as well as the associated classification of individual traders used 

in preparing the reports. Details about the underlying data and classifications are not shared with 

the exchanges (or traders) and, accordingly, this information does not affect the exchanges‘ 

surveillance activities or speculative position limit enforcement actions.

The COT reports show aggregate commercial and noncommercial trader positions in 

certain futures and options markets. The COT reports provide a breakdown of each Tuesday's 

open interest54 for all futures and option markets in which 20 or more traders hold positions 

equal to or above the reporting levels55 established by the Commission. The weekly reports for 

 

54 Open interest is the total of all futures and/or option contracts entered into and not yet offset by an 

opposite transaction, e.g. by delivery, by exercise (for options), etc. The aggregate of all long open 

interest is equal to the aggregate of all short open interest. Open interest held or controlled by a trader is 

referred to as that trader's position. For the COT Futures & Options Combined report, option open 

interest and traders' option positions are computed on a futures-equivalent basis using delta factors 

supplied by the exchanges. Long-call and short-put open interest are converted to long futures-equivalent 

open interest. Likewise, short-call and long-put open interest are converted to short futures-equivalent 

open interest. For example, a trader holding a long put position of 500 contracts with a delta factor of 

0.50 is considered to be holding a short futures-equivalent position of 250 contracts. A trader's long and 

short futures-equivalent positions are added to the trader's long and short futures positions to give 

"combined-long" and "combined-short" positions. Open interest, as reported to the Commission and as 

used in the COT reports, does not include open futures contracts against which notices of deliveries have 

been stopped by a trader or issued by the clearing organization of an exchange.

55 Clearing members, futures commission merchants, and foreign brokers (collectively called "reporting 

firms") file daily reports with the Commission. Those reports show the futures and option positions of 

traders that hold positions above specific reporting levels set by Commission regulations. These reporting 

levels range from 25 contracts for new or relatively small markets to 3,000 contracts for three-month 

Eurodollar time deposit rates (See 17 CFR 15.03). If, at the daily market close, a reporting firm has a 

trader with a position at or above the Commission‘s reporting level in any single futures month or option 

expiration, it reports that trader‘s entire position in all futures and option expiration months in that 

commodity, regardless of size. The aggregate of all traders‘ positions reported to the Commission usually 
45

Futures-Only Commitments of Traders and for Futures-and-Options-Combined Commitments of 

Traders are released every Friday at 3:30 p.m. Eastern time. Reports are available in both a short 

and long format. The short report shows open interest separately by reportable and 

nonreportable56 positions. For reportable positions, additional data is provided for commercial 

and noncommercial holdings.

The short report also provides additional data for reportable positions regarding 

spreading,57 changes from the previous report,58 percent of open interest by category,59 and 

numbers of traders.60 The long report, in addition to the information in the short report, also 

groups the data by crop year,61 where appropriate, and shows the concentration of positions held 

by the largest four and eight reportable traders, without regard to whether they are classified as 

commercial or noncommercial. Current COT data are available on the internet at the 

Commission‘s website, www.cftc.gov.62

When a trader is first identified to the Commission by becoming reportable for a 

particular commodity, Commission staff classifies the trader as commercial or noncommercial

 

represents 70 to 90 percent of the total open interest in any given market. From time to time, the 

Commission will raise or lower the reporting levels in specific markets. 

56 The long and short open interest shown as "Nonreportable Positions" are derived by subtracting total 

long and short "Reportable Positions" from the total open interest. Accordingly, for "Nonreportable 

Positions," the number of traders involved and the commercial/non-commercial classification of each 

trader are unknown.

57 For the futures-only report, spreading measures the extent to which each non-commercial trader holds 

equal long and short futures positions. For the options-and-futures-combined report, spreading measures 

the extent to which each non-commercial trader holds equal combined-long and combined-short 

positions. For example, if a non-commercial trader in Eurodollar futures holds 5,000 long contracts and 

4,500 short contracts, 500 contracts will appear in the "Long" category and 4,500 contracts will appear in 

the "Spreading" category. These figures do not include intermarket spreading (e.g., spreading Eurodollar 

futures against Treasury Note futures).

58 Changes in commitments from the previous report represent the differences between the data for the 

current report date and the data published in the previous report.

59 Percents are calculated against the total open interest for the futures-only report and against the total 

futures-equivalent open interest for the options-and-futures-combined report. Percents less than 0.05 are 

shown as 0.0, and the percents may not add to exactly 100.0 due to rounding.

60 To determine the total number of reportable traders in a market, a trader is counted only once regardless 

of whether the trader appears in more than one category (non-commercial traders may be long or short 

only and may be spreading; commercial traders may be long and short). To determine the number of 

traders in each category, however, a trader is counted in each category in which the trader holds a 

position. Therefore, the sum of the number of traders in each category will often exceed the "total" 

number of traders in that market.

61 For selected commodities where there is a well-defined marketing season or crop year, the COT data 

are broken down by "old" and "other" crop years.

62 Also available at that site are historical COT data going back to 1986 for futures-only reports and to 

1995 for option-and-futures-combined reports.
46

for that commodity. As a result, the entire trader's reported futures positions in that commodity 

are classified as commercial or noncommercial - it is the trading entity and the trader‘s futures 

position that are classified, not each individual transaction of the trader. 

A trading entity generally gets classified as a commercial if the CFTC Form 40 that it is 

required to file with the Commission states that it is ―commercially engaged in business activities 

hedged by the use of the futures or option markets." In order to ensure that traders are classified 

with accuracy and consistency, the Commission staff reviews this self-classification and may reclassify a trader if the staff has additional information about the trader‘s use of the markets. A 

trader may be classified as a commercial in some commodities and as a noncommercial in other 

commodities. A single trading entity cannot be classified as both a commercial and 

noncommercial in the same commodity. Nonetheless, a multi-functional organization that has 

more than one trading entity may have each trading entity classified separately in a commodity. 

For example, a financial organization trading in financial futures may have both a banking entity 

whose positions are classified as commercial and a separate money-management entity whose 

positions are classified as noncommercial.

COT reports are used by persons making marketing and trading decisions to analyze 

commodity markets, including trading activity, supply and demand, price trends, and other 

market factors. COT users include, among others: commercial marketing and hedging advisors 

and brokers (including registered futures commission merchants, introducing brokers and 

commodity trading advisors); cash market merchandisers/hedgers and similar decision makers, 

including producers, processors, end-users, merchants and exporters; and individual commodity 

traders/speculators. The COT reports are also used by academic and economic researchers.

One of the historical changes in the COT reports has raised questions with respect to the 

use of the COT data in today‘s market environment. Specifically, analysts have cited the COT 

reports as evidence of overall speculative and hedging activity in the futures markets by 

evaluating the breakdowns between commercial and noncommercial categories in the reports. 

As explained below, the current trader classifications of commercial and noncommercial are a 

function of historical changes in the CFTC‘s reporting rules. 

In 1981, the Commission adopted regulations63 to eliminate the routine filing of series 

‘03 reports by large traders.64 Prior to 1982, the COT reports were based on data from the series 

‘03 reports which included both position information for all reportable traders and the traders‘ 

classification of how much of their positions was speculative and how much was hedging. Thus, 

the pre-1982 COT reports classified positions as either ―hedging‖ or ―speculative.‖ In its 

rulemaking eliminating the series ‘03 reports, the Commission stated its intention to continue 

 

63 46 FR 59960 (December 8, 1981).

64 Series ‘03 reports were required to be filed with the Commission by any trader who owned or 

controlled a reportable futures position. Once traders acquired a reportable position in a commodity, they 

were required to report trades, positions, exchanges of futures for physicals and delivery information 

regarding that commodity on series ‘03 reports, and to classify how much of their position was 

speculative and how much was hedging.
47

publishing the COT reports using data from the series ‘01 reports and Form 102,65 as well as the 

Form 40, Statement(s) of Reporting Trader.66 The Commission‘s decision to eliminate the series 

‘03 forms as the basis for the COT reports improved the timing and accuracy of the COT reports 

because: (1) series ‘03 forms were mostly mailed to the Commission from wherever the trader 

resided, in some cases taking several days to arrive and be processed, whereas series ‘01 reports 

are filed electronically by the following morning; and (2) series ‘03 forms were only required to 

be filed when a reportable trader‘s position changed, so that a trader‘s delay or failure to file a 

report often led to an erroneous assumption that the position had not changed. After 1982, then 

reportable positions were classified as commercial or noncommercial based on the declarations 

made in the reporting traders‘ Form 40 statements.

The Commission believes that the public perception is that the ―commercial vs. 

noncommercial‖ classification in current COT reports is analogous (if not identical) to the 

―hedging vs. speculation‖ distinction in the pre-1982 COT reports. Over time, however, 

derivatives markets (including both exchange-traded and OTC markets), as well as derivatives 

trading patterns and practices, have evolved tremendously. Changes have been particularly 

evident during the last 17 years, including the recent influx of commodity index trading. As a 

result of these changes in markets and trading practices, questions have been raised as to whether 

the commercial and noncommercial categories of today‘s COT reports appropriately classify

trading practices that were not contemplated when the ―hedging vs. speculation‖ categories were 

removed in 1982.

Based on a review of the COT reports in 2006, which included the solicitation of public 

comments, the Commission addressed the index trader issue by initiating publication of a new 

weekly report, entitled ―COT—Supplemental,‖ beginning in January 2007.67 The COT—

Supplemental report includes, in a separate category, the positions of commodity index traders in 

 

65 Series ‘01 reports are reports filed by futures commission merchants (FCMs), foreign brokers and 

exchange clearing members clearing their own trades, with respect to all customer or (for the exchange 

clearing members) proprietary accounts that attain a reportable position. A series ‘01 report itemizes the 

account number and certain positions, deliveries and exchanges of futures (including exchanges of futures 

for physicals [EFPs], swaps [EFSs], risk [EFRs] and options [EFOs] or other exchanges of futures for a 

commodity or for a derivatives position) associated with each account carrying a reportable position (See

17 CFR 17.00). The name, address and occupation of the person or persons who own such accounts are 

separately identified on Form 102 (See 17 CFR 17.01). By aggregating the series ‘01 and Form 102 

information filed with respect to traders with accounts at multiple FCMs or foreign brokers, the 

Commission can determine the size of each reportable trader‘s overall position.

66 Each person that holds or controls a reportable position is required to file a Form 40. The Form 40 

requires a trader to list its principal business or occupation and to state whether it is ―commercially 

engaged in business activities hedged by the use of the futures or option markets.‖ If the trader answers 

―yes,‖ it is instructed to complete a separate schedule ―listing the futures or option contract used, the cash 

commodity(ies) hedged, or the risk exposure covered, and the marketing occupations associated with 

hedging uses.‖

67 Contemporaneously with publication of the first COT—Supplemental report, in January 2007, the 

Commission also published back data showing the preceding calendar year‘s trading information in the 

Supplemental report‘s format, in order to put the data in the Supplemental report in context and make it 

more understandable and useful.
48

certain agricultural physical commodity futures markets. These so-called ―Index Traders‖ are 

drawn from both the current noncommercial and the commercial categories. Coming from the 

noncommercial category are managed funds, pension funds and other institutional investors that 

generally seek exposure to commodity prices as an asset class in an unleveraged68 and passivelymanaged69 manner using a standardized commodity index. Coming from the commercial 

category are entities whose positions predominantly reflect hedging of OTC transactions 

involving commodity indices—for example, swap dealers holding long futures positions to 

hedge short OTC commodity index exposure opposite institutional traders such as pension funds.

The COT—Supplemental report is restricted to selected commodity futures markets that 

are included in commodity indices. At this time though, the COT—Supplemental report is 

limited to agricultural futures markets and does not include energy or metals futures markets 

although they are included in commodity indices. This determination was based on an 

assessment of the accuracy with which this data can be parsed out for firms engaged in 

commodity index trading, between such index trading and other unrelated trading activity. In the 

case of agricultural futures markets, the futures positions of index traders generally reflected only 

hedges related to their index-based trades and were not significantly influenced by other, 

unrelated trading activity. This is becoming less true over time as shown by this survey. That is, 

the firms engaged in commodity index trading are also becoming engaged in more unrelated 

agricultural commodity trading, as the OTC markets in agricultural commodities develop.

In the case of energy and metals markets, positions of traders involved in commodity 

index strategies are, in many cases, overwhelmed by their unrelated trading activity involving 

alternative U.S. and non-U.S. exchanges and a multitude of OTC markets and derivative 

products. For example, many swap dealers, in addition to their commodity index-related OTC 

activity, enter into other OTC derivative transactions in individual commodities, both with 

commercial firms hedging price risk and with speculators taking on price risk. In addition, some 

swap dealers are very actively engaged in commercial activity in the underlying cash market, 

such as physical merchandising or dealing activity. The futures positions of these swap dealers 

represent a hedge of their net exposure, taking into account their overall long and short positions 

in various markets and derivative transactions. As a result, the overall futures positions held by 

these energy and metals traders in Commission-regulated exchanges do not necessarily 

correspond closely with their hedging of OTC commodity index transactions in particular. Such 

a swap dealer might, for example, have short exposure resulting from index-related trades 

(requiring a long futures position as a hedge) offset by even greater long exposure due to a 

commercial transaction in the underlying cash market (requiring a short futures hedge). As a 

result, the swap dealer would hedge its overall net exposure with a short futures position. But, 

 

68 In an ―unleveraged‖ position, the notional value of the position is fully offset by cash set aside, or by 

profits on the position. Therefore, financial considerations (e.g., significant price changes) should not 

trigger rapid liquidations of the position that could lead to sudden or unreasonable fluctuations or 

unwarranted changes in prices.

69 A passively managed position generally means futures or futures equivalent positions that track a 

broadly diversified index of physical commodities, which index is calculated, adjusted and re-weighted 

pursuant to an objective, predetermined mathematical formula, the application of which allows only 

limited discretion with respect to trading decisions.
49

placing that (short) futures position of such a swap dealer in a commodity index trader category 

would not accurately reflect its commodity index trading activity for energy and metals markets. 

Factors such as this complicate the Commission‘s ability to compile reports with respect to the 

role of any one trader, or category of traders, in the energy and metals futures market.

Accordingly, based on difficulties associated with reporting on trades in the energy and 

metals markets, the Commission decided to proceed initially with publishing the COT—

Supplemental report for the following 12 agricultural commodity futures and options on the 

following exchanges: corn, soybeans, wheat, and soybean oil on the CBOT; wheat on the 

KCBOT; cotton no. 2, coffee C, sugar no. 11, and cocoa on the New York Board of Trade (now 

ICE Futures US); and live cattle, lean hogs, and feeder cattle on the CME. The Commission 

staff is confident that the classifications of traders for the COT—Supplemental report for these 

12 markets are as accurate as the Commission‘s large-trader reporting system allows.

The new COT—Supplemental report is being published on a two-year, pilot program 

basis. During the course of the pilot program, the Commission is assessing the relevance and 

usefulness of the new data and studying whether it is possible and appropriate to expand the 

COT—Supplemental report to include data for other physical commodity markets. In January 

2009, at the conclusion of the two-year pilot program period, the Commission will determine 

what further action to take with respect to the COT—Supplemental report.

Notably, the Commission‘s COT reports are not mentioned in, or explicitly required by, 

the Act. Nor is the publication of aggregate trading data specifically enumerated as one of the 

CEA‘s purposes.70 As noted above, the COT reports are not used in the performance of any of 

the Commission‘s regulatory responsibilities. Yet, the considerable staff time and technology 

spent on the publication of the COT reports is time and technology that would otherwise be 

devoted to surveillance and other regulatory activities more clearly mandated by the Act.

2. Additional History and Evolution of the COT Reports

The COT reports trace their antecedents all the way back to 1924. In that year, the U.S. 

Department of Agriculture‘s (USDA) Grain Futures Administration, predecessor of the USDA‘s 

Commodity Exchange Authority, which is in turn the predecessor of the Commission, published 

its first comprehensive annual report. The report was published pursuant to the provisions of the 

Grain Futures Act of 1922,71 the predecessor statute of today‘s Act.

The Grain Futures Administration noted that the general objectives of the Grain Futures 

Act included ―[t]o obtain for the use of Congress and the enlightenment of the public authentic 

and comprehensive information regarding trading in grain futures.‖72 To that end, that 

legislation imposed recordkeeping and reporting requirements on exchanges. One requirement 

 

70 7 USC 5(b).

71 42 Stat. 998, September 21, 1922.

72 Annual Reports of the Department of Agriculture for 1924, Report of the Grain Futures Administration 

on Administration of the Grain Futures Act, at 2, September 9, 1924.
50

of the implementing regulations was that records should be made in such a manner as to show 

whether the persons for whom transactions were executed were ―engaged in the cash grain 

business.‖73 The express purpose of this requirement was to insure that the basic records of all 

transactions in grain futures would contain information that could be utilized for distinguishing 

transactions originating with persons engaged in the cash grain business (and therefore 

presumably representing in considerable part ―hedging‖) from transactions originating with 

persons not so engaged (and therefore presumably representing for the most part ―speculation‖). 

The report characterized the distinction between hedging and speculation as being of 

―fundamental significance from the public point of view‖ and one that ―deserves systematic 

reflection in the records kept of transactions in grain futures.‖ 74

Over the years, the Grain Futures Administration and, after 1936, its successor 

organization the Commodity Exchange Authority, continued to publish annual statistics 

concerning hedging versus speculative transactions. Beginning with the adoption of the 

Commodity Exchange Act in 1936, and as part of amendments to that Act on a number of 

subsequent occasions, the Commodity Exchange Authority‘s jurisdiction was expanded beyond 

grains to cover additional agricultural commodities. The Authority expanded its annual reports 

of hedging and speculative positions in futures markets to include additional commodities. 75

In 1962, the Commodity Exchange Authority took what it called ―another step forward in 

the policy of providing the public with current and basic data on futures market operations‖ by 

moving beyond an annual statistical recap and initiating the publication of monthly COT reports. 

The original COT reports were compiled on an end-of-month basis and published on the 11thor 

12th calendar day of the following month. The first COT report, covering 13 agricultural 

commodities, was published on June 13, 1962. Over the 46 years since then, both the COT 

reports and the underlying futures markets have undergone a number of significant changes.

With respect to the COT reports, the number of commodities covered has continued to 

expand. In April 1975, the newly-formed CFTC succeeded the Commodity Exchange Authority. 

The Commission continued to publish the COT reports, but expanded the reports‘ content to 

include new commodities first brought under the Commission‘s jurisdiction by the Commodity 

Futures Trading Commission Act of 1974.76 In the years since then, scores of new futures and 

option products have been listed for trading on designated futures exchanges. Not all of these 

commodities are included in the COT reports, since reports are published only for commodities 

in which 20 or more traders hold reportable positions. Nevertheless, the number of commodities 

for which the Commission publishes a report and the number of trading entities that Commission 

 

73 Id. at 6.

74 Id.

75 In addition, starting in 1942, the Commodity Exchange Authority began issuing ―Commodity Futures 

Statistics‖ as a separate publication, distinct from the USDA annual report. The Commodity Futures 

Statistics were also expanded to include monthly data, but were still published only on an annual basis.

76 Pub. L. 93-463, 88 Stat. 1389, October 23, 1974. The new commodities added in 1974 included coffee, 

sugar, cocoa, metals, energy products and financial products, among other things.
51

staff must monitor and classify are quite large. In this regard, the most recent COT reports cover 

110 to 120 commodities trading on seven different DCMs.77

In addition to expanding the number of commodities covered, the Commission has 

improved the COT reports in several other ways over the years. The Commission changed the 

publication schedule several times to provide information to the public more frequently –

switching publication from monthly to twice monthly (mid-month and month-end) in 1990, to 

every two weeks in 1992, and to weekly in 2000. The Commission has also acted to improve the 

timeliness of the reports – moving publication to the sixth business day after the ―as of‖ date in 

1990, and then to the third business day after the ―as of‖ date in 1992. The Commission has also 

expanded the scope of the information included in the reports – adding data on the numbers of 

traders in each category, a crop-year breakout and concentration ratios in the early 1970s, and 

adding data on option positions in 1992. Finally, the Commission has made the COT reports 

more widely available – moving from a paid subscription-based mailing list to fee-based 

electronic access in 1993 and, since 1995, making the COT data freely available on the 

Commission‘s internet website.

 

77 The COT reports are the most frequently visited section of the Commission‘s website. During FY 

2008, to date, the COT reports received over 1.3 million visits. 
52

Appendix E

History of Speculative Position Limits

In June of 1936, the Commodity Exchange Act was enacted, extending Federal regulation 

to a list of enumerated commodities that included, among other things, cotton, rice, butter, eggs 

and potatoes in addition to the grains. In December 1938, the Commodity Exchange 

Commission78 promulgated the first Federal speculative position limits for futures contracts in 

the grains (then defined as wheat, corn, oats, barley, flaxseed, grain sorghums and rye), but did 

not impose limits in the other commodities enumerated in the 1936 Act.79 Over the following 

years, Federal limits were extended to various other commodities enumerated in the Act. In 

some cases, Federal limits were applied to commodities already listed in the original 1936 Act.80 

In other cases, Federal limits were applied to new commodities added to the list of enumerated 

commodities by subsequent amendments to the Act.81 However, no uniform rule regarding 

speculative position limits was applied to the commodities enumerated in the Act. In some cases 

(e.g., soybeans), a commodity added to the Act‘s list of enumerated commodities was also added 

to the roster of commodities subject to Federal speculative position limits. In other cases (e.g., 

grain sorghums), commodities enumerated in the Act never became subject to Federal position

limits. Frequently, such commodities were omitted from the Federal position limit rules in 

apparent deference to the fact that they were already subject to speculative position limits 

imposed by the exchanges where they were traded. For example, after livestock products were 

added to the list of enumerated commodities by the 1968 amendments to the Act, the Commodity 

Exchange Authority never imposed Federal speculative position limits on livestock products. 

Such products had already been subject to speculative position limits under the rules of the CME

when they were brought under Federal regulation.

When the Commission opened its doors in April 1975, ―various contract markets [had] 

voluntarily placed speculative position limits on 23 contracts involving 17 commodities.‖82 At 

that time, ―position limits were in effect for almost all actively traded commodities then under 

regulation, and the limits for positions in about one half of these actively traded commodities had 

been specified by the contract markets.‖83 Initially, the Commission retained the position limits 

 

78 The Commodity Exchange Commission is the predecessor of the Commodity Exchange Authority, 

which is in turn, the predecessor of the Commission.

79 3 FR 3145 (December 24, 1938).

80 For example, speculative limits were imposed on cotton in 1940. See 5 FR 3198 (August 28, 1940).

81 For example, the Act was amended: in 1940 to add fats and oils (including soybean oil), soybeans and 

soybean meal; in 1954 to add wool; in 1955 to add onions; and in 1968 to add, among other things, 

livestock products (e.g., live cattle, live hogs, pork bellies) and frozen concentrated orange juice.

82 45 FR 79831 (December 2, 1980).

83 Id. at 79832. ―Commodity Exchange Authority regulations included limits for wheat, corn, oats, 

soybeans, cotton, eggs and potatoes. Exchange rules included limits for live cattle, feeder cattle, live 

hogs, frozen pork bellies, soybean oil, soybean meal, and grain sorghums.‖ (Id., note1)
53

enacted by the Commodity Exchange Authority, as then in effect, but did not establish position 

limits for any additional commodities.84 In the years immediately following, the Commission 

implemented a few relatively minor changes to the position limits regulations, but undertook no 

significant expansion of speculative position limits.

In fact, serious questions were raised concerning the effectiveness of position limits as a 

regulatory tool. The newly created Commission had appointed a number of advisory committees 

to advise it on issues relating to its new regulatory role. One of these, the Advisory Committee 

on the Economic Role of Contract Markets, reviewed the subject of speculative position limits. 

The Advisory Committee found speculative position limits to be of limited utility, noting that, 

―these limits provide little control over the activities of large hedgers, and virtually no control 

during the crucial delivery months.‖85 The Advisory Committee recommended that ―Speculative 

position limits should not play a major role in the CFTC‘s future regulatory program. In the long 

run, they should be supplanted by an improved monitoring and surveillance program designed to 

achieve orderly liquidation of expiring contract months.‖86

A 1977 analysis by the Commission‘s Office of the Chief Economist (OCE) also 

considered basic issues regarding speculative position limits, including: ―(1) whether there 

should be limits and for what groups of commodities, (2) what limits should be imposed, and (3) 

whether the Commission or the exchanges should set the limits.‖87 The staff analysis found that 

factors such as breadth of supply, storability, and fungibility of a commodity, along with low 

transportation costs, ease of delivery and liquidity in the cash and futures markets ―tend to 

promote (but do not guarantee) arbitrage between the cash and futures markets‖ and that such 

arbitrage, ―if it exists, to any appreciable degree, causes the cash and futures markets to be highly 

interrelated,‖ which limits the potential for a large futures position to influence the price level.88

Nevertheless, the staff analysis found that, ―Other things held equal, sufficiently large 

positions and trades can become a perceptible market factor,‖ and recommended that position 

limits should be set in some, but not all, markets:

The Commission [should] adopt a policy of establishing speculative limits in those 

markets where the characteristics of the commodity, its marketing system, and the 

contract lend themselves to undue influence from large scale speculative positions.89

 

84 Pursuant to section 4l of the Commodity Futures Trading Commission Act of 1974, 88 Stat. 1414, all 

regulations previously adopted by the Commodity Exchange Authority continued in full force and effect, 

to the extent they were not inconsistent with the Commodity Exchange Act, as amended, unless or until 

terminated, modified or suspended by the Commission.

85 Report of the Commodity Futures Trading Commission Advisory Committee on the Economic Role of 

Contract Markets, at 7 (July 17, 1976).

86 Id.

87 Speculative Limits, a staff paper by the Commission‘s Office of the Chief Economist, cited at 45 FR 

79831, at 79832 (December 2, 1980).

88 Id.

89 Id.
54

The staff study also recommended that ―where limits are necessary, the exchanges should set and 

review the limits subject to Commission approval,‖ noting that ―the exchanges have the

necessary competence and knowledge of the particular commodity to establish the limits.‖90

Subsequently, though, events in the silver futures market during late 1979 to early 1980, 

commonly referred to as ―the Hunt Brothers silver manipulation,‖

91 caused the Commission to 

conclude that ―The recent events in silver ... suggest that the capacity of any futures market to 

absorb large positions in an orderly manner is not unlimited.‖92 Accordingly, the Commission 

adopted Regulation 1.61, which required all DCMs to adopt and submit for Commission 

approval speculative position limits in active futures markets for which no exchange or 

Commission limits were then in effect.93

The next significant development regarding speculative position limits occurred in 1986, 

when the Commission undertook a comprehensive review of speculative position limit policies, 

including position limit levels. Congress, during the Commission‘s 1986 reauthorization, had 

suggested that this subject should be addressed. As noted in the Report of the House Agriculture 

Committee:

... the Committee believes that, given the changes in the nature of these markets and the 

influx of new market participants over the last decade, the Commission should reexamine 

the current levels of speculative position limits with a view toward elimination of 

unnecessary impediments to expanded market use.94

Consistent with Congressional intent, the Commission in October 1987 adopted final rule 

amendments revising the structure of the position limit regulations and raising some of the 

limits.95 The major changes introduced in the Federal speculative position limits in 1987 

included: (1) the Commission retained the current spot month and individual month limits, but 

increased the all-months-combined levels; (2) the Commission revised the limits, which had 

historically been set on a generic commodity basis, to establish levels for each contract market 

―according to the individual characteristics of that contract market;‖96 and (3) in response to a 

petition by the Chicago Board of Trade, soybean oil and soybean meal, which had been subject 

to exchange limits, were made subject to Federal limits, ―providing consistency with all other 

agricultural commodities traded at the CBOT.‖97

 

90 Id.

91 See: In re: Nelson Bunker Hunt et al., CFTC Docket No. 85-12.

92 45 FR 79831, at 79833 (December 2, 1980).

93 46 FR 50938 (October 16, 1981).

94 H.R. Rep. No. 99-624, at 4 (1986). 

95 52 FR 38914 (October 20, 1987).

96 Id. at 38917.

97 Petition for rulemaking of the Chicago Board of Trade, dated July 24, 1986, cited at 52 FR 6814 

(March 5, 1987).
55

In 1992, the Commission adopted final rules adhering to the principle that speculative 

position limit levels should be increased based upon increases in the size of a contract‘s open 

interest (in addition to the traditional standard of distribution of speculative traders in the 

market). The formula was thereafter ―routinely applied ... as a matter of administrative practice 

when reviewing proposed exchange speculative position limits under Commission rule 1.61.‖

98

During this same time frame, the Commission began a process that led to the adoption of 

position accountability rules for the (non-enumerated) contracts subject to exchange-set 

speculative position limits. Regulation 1.61, adopted in 1981, required exchanges to adopt 

speculative position limits for futures and option contracts not subject to Commission limits. 

Beginning in 1991, the Commission approved several exchange rules establishing position 

accountability in lieu of numerical position limits for certain contracts exhibiting significant 

trading volume and open interest, a highly liquid underlying cash market and ready arbitrage 

between the cash and futures markets.99

In 1999, the Commission simplified and reorganized its speculative position limit rules to 

include requirements for both Commission-set limits and the regulation 1.61 exchange-set limits 

in a single regulation, Part 150. Regulation 150.5(e), establishes a ―Trader accountability 

exemption.‖100 This provision codifies the position accountability rules that began as an 

administrative practice in 1991. It provides that, for futures and option contracts that have been 

listed for trading for at least 12 months, an exchange may submit a position accountability rule, 

in lieu of a numerical limit, as follows:

1. For contracts on a financial instrument or product having average month-end open 

interest of 50,000 contracts and average daily trading volume of 100,000 contracts and a 

very highly liquid cash market, an exchange may submit a rule requiring traders to 

provide information about their position on request;

2. For contracts on a financial instrument or product or on an intangible commodity having 

average month-end open interest of 50,000 contracts and average daily volume of 25,000 

contracts and a highly liquid cash market, an exchange may submit a rule requiring 

traders to provide information about their position on request and to consent to halt 

increasing the trader‘s position if so ordered by the exchange; and

3. For contracts on a tangible commodity, ―including but not limited to metals, energy 

products, or international soft agricultural products [coffee, sugar, cocoa],‖ having 

average month-end open interest of 50,000 contracts and average daily volume of 5,000 

contracts and a liquid cash market, an exchange may submit a rule requiring traders to

provide information about their position on request and to consent to halt increasing the 

 

98 63 FR 38525 (July 17, 1998).

99 See, for example, notices of proposed exchange rule changes published at 56 FR 51687 (October 15, 

1991) and 57 FR 29064 (June 30, 1992).

100 64 FR 24038, at 24048 (May 5, 1999).
56

trader‘s position if so ordered by the exchange, provided that for such tangible 

commodities, exchanges are not exempt from the requirement to set numerical spot 

month limits at a level no greater than one quarter of the estimated spot month 

deliverable supply.101

The reorganized rules also included new regulation 150.5, which codified the 

Commission‘s 1992 formula for calculating Federal speculative position limits based upon open 

interest, and applied it to exchanges for their use in calculating the levels of exchange-imposed 

numerical speculative position limits. The formula provided for ―combined futures and option 

speculative position limits for both a single month and for all-months-combined at the level of 10

percent of open interest up to an open interest of 25,000 contracts, with a marginal increase of 

2.5 percent thereafter.‖102

As noted above, in 2000 the CFMA was enacted, including Core Principle 5 requiring 

DCMs to implement position limits or position accountability for speculators ―where necessary 

and appropriate.‖ The Commission‘s Acceptable Practices for complying with Core Principle 5, 

set out in Appendix B to part 38 of the Commissions regulations,103 specifically reference part 

150 of the Commission‘s regulations as providing guidance on how to comply with Core 

Principle 5. The CFMA did not change the treatment of the enumerated agricultural 

commodities, which remain subject to Federal speculative position limits. In 2005, the 

Commission increased single month and all-months-combined Federal speculative position 

limits, based generally upon the 1992 formula (as incorporated into regulation 150.5).104 As in 

previous position limit rulemakings, the spot month limits were not increased. In 2007, the 

Commission proposed further non-spot month increases in Federal speculative position limits, 

based upon the regulation 150.5 open interest formula.105 After reviewing comments on the 

proposed rules, the Commission determined to ―withdraw the proposed rulemaking pending 

further consideration of the relevant issues.‖106

 

101 The Commission‘s concern regarding spot month limits was mirrored by the CFMA, which provides in 

DCM Core Principle 5 (section 5(d)(5) of the Act), that ―To reduce the potential threat of market 

manipulation or congestion, especially during trading in the delivery month, the board of trade shall 

adopt position limitations or position accountability for speculators, where necessary and appropriate.‖ 

[emphasis supplied]

102 64 FR 24038, at 25039.

103 17 CFR Part 38, Appendix B, Core Principle 5(b)(2).

104 70 FR 24705 (May 11, 2005).

105 72 FR 65483 (November 21, 2007).

106 73 FR 32261 (June 6, 2008).
57

Appendix F

Special Call Letter to Commodity Swaps Dealers

I. Commodity Index Transactions

A. Provide the total notional value (in U.S. dollar equivalents) of all outstanding commodity 

index transactions, showing the gross long and gross short notional value.107 Separately show 

how much of that total notional value is referenced to U.S. futures markets versus non-U.S. 

futures markets.

B. For the total notional value reported in I.A, provide the notional value by ―brand‖ of

commodity index, e.g., S&P GSCI, DJ-AIG, including any sub-indices or variants. If the 

transaction involves returns on a non-standard index, indicate ―Other Index.‖ (Use your best 

judgment on whether a specific basket of index commodities is a subset/variant of a standard 

index or whether it is different enough to be classified as ―Other.‖) For each of these index 

groups, list every U.S. futures market included, showing the long and short notional value. 

(Show the notional value in WTI crude oil as NYMEX, even if some part of the position is 

actually traded on the ICE Futures-Europe WTI contract. Show separately notional values for 

wheat in the CBOT, MGEX, and KCBT markets.) [see Attachment 1 for a sample format]

 

II. Futures Equivalent Positions and Types of Clients/Counterparties [see Attachment 2 for a 

sample format]

A. Futures Equivalent Positions.

108 Provide the futures equivalent positions by U.S. commodity 

futures market, separately for long and short positions, resulting from:

1. Commodity index transactions, for each commodity identified in 1.B.

2. Any bilateral, non-cleared commodity swap or other derivative transaction in a single 

physical commodity that either references a U.S. futures market price or is hedged in a 

U.S. futures market. Swaps on emissions and weather need not be included, nor swaps on 

financial products. Forward contracts for actual delivery or receipt of a commodity are 

excluded. If within the entity responding to this call, you have a unit that owns physical 

 

107 Positions should be shown from the perspective of your client or counterparty, e.g., if your client is the 

fixed-price payer, that position should be shown as a long position. In other words, ―long‖ notional value 

is that which, if you hedged it, would result in long futures positions, and ―short‖ notional value is that 

which would result in short futures positions.

108 ―Futures equivalent positions‖ shall included futures and delta-adjusted options and should be provided 

based upon all outstanding OTC transactions regardless of whether the transaction resulted in an open 

futures position on the exchange, i.e., it should include an estimate of positions that have been offset 

internally and have not resulted in trading in the futures market. 
58

assets (inventory, production, exports,...) and the swap is a hedge against that specific 

physical activity, then you should exclude that swap. In other words, in this section of 

the call, show your activity as a swaps dealer, not as an enterprise in a physical market.

B. Types of Clients/Counterparties.109 For positions identified in II.A.1, provide a breakout by 

type of client: index funds, institutional investors, sovereign wealth funds, and ―other.‖ 110 For

positions identified in II.A.2, provide a breakout showing aggregate non-commercial,

commercial, and intermediary counterparty111 positions, long and short. Where you do know the 

ultimate client‘s identify, regardless of whether they are trading through an intermediary, please 

classify as noncommercial or commercial based upon the preponderance of that client‘s business 

activity.

III. Client/Counterparty Identity

Provide the identity of each client/counterparty in II.A whose total notional value with you 

represents a futures equivalent position (as defined in footnote 2) equal to or greater than 25 

percent of the Federal or exchange single-month position limit or position accountability level 

for any U.S. commodity futures market. In addition to their identity, show their futures 

equivalent positions in those markets where their position is at or above the 25 percent threshold 

level just described, and indicate in which of the categories in II.B they appear. For purposes of 

determining a client/counterparty, sum up all the business you do with the client and entities 

under common ownership (10 percent or greater financial interest) or control, as best you know. 

The 25 percent threshold should then be applied as follows: add up all of the client‘s futures 

equivalent exposure gross long and short across all expiration months in a market, and then 

compare each of the gross long and gross short in that market to 25 percent of that market‘s 

single-month position limit or accountability rule. For example, in NYMEX WTI crude oil, the 

single-month accountability level is 10,000 contracts net long or short and 25 percent of that is 

2,500 contracts. If you have a client that has business with you that is equivalent to 1,000 long in 

the August future, 1,500 short in the September future, and 2,000 long in the October future, then 

their gross exposure (3,000 long and 1,500 short) meets the reporting criteria of 2,500 contracts. 

 

109 For the purposes of this report, a client or counterparty is the real owner/controller of the position. If a 

bank or other intermediary is simply facilitating the transaction, look through the intermediary to the 

client, where known.

110For the purposes of this report, an ―index fund‖ shall mean a client/counterparty with a fiduciary 

obligation to match or track the results of a commodity index, including ETFs and ETNs based upon a 

commodity index; an ―institutional investor‖ shall include pension funds, endowment funds, and other 

similar investors; and a ―sovereign wealth fund‖ shall mean a non-U.S. government entity, including, for 

example, a government investment company or a government-run pension fund.

111 For the purposes of this report, a ―commercial‖ shall mean a client/counterparty who has market risk 

arising from physical market activities in the subject commodity, and the swap agreement is part of a riskmanagement strategy; the ―intermediaries‖ category should include clients/counterparties that are 

intermediaries (other swaps dealers, banks, etc.) for whom you have no information on whether they are 

acting on behalf of noncommercial or commercial clients.. All other counterparties should be shown as 

―non-commercial.‖
59

If a client is  ̳reportable,‘ show the breakout of their futures equivalent position by expiration 

month.

In general, please feel free to submit, along with your response, descriptive materials about the 

nature of your business and the manner in which you answered the questions in the special call.

Special Call Letter to Commodity Index Traders

I. Commodity Index Transactions

A. Provide the total notional value of all outstanding commodity index investment, showing the 

gross long and short notional value. Separately show how much of that total notional value 

involves U.S. futures markets versus non-U.S. futures markets.

B. For the total notional value reported in I.A, provide the notional value by ―brand‖ of

commodity index, e.g., S&P GSCI, DJ-AIG, including any sub-indices or variants. If the 

transaction involves a non-standard index, indicate ―Other Index.‖ For each of these index 

groups, list every U.S. futures market included, showing the long and short notional value. (see 

Attachment 1 for a sample format)

II. Futures Equivalent Positions112

Provide the futures equivalent positions by U.S. commodity futures market, separately for long 

and short positions, resulting from commodity index trading identified in I.A. Show separately:

1. Commodity positions held directly in futures.

2. Commodity positions held through OTC commodity swap or other derivative 

 transactions in an index or a single physical commodity. (see Attachment 2 for a 

 sample format)

III. Client Identity

Provide, if known, a breakout of the total notional value by type of client: institutional investors, 

sovereign wealth funds, and ―other.‖ 113 Separately identify proprietary accounts (in aggregate) 

and each of your clients, if their total notional value with you is equal to or greater than $100 

million. In addition to their identity, show their total notional value, and indicate in which of the 

categories (institutional investors, sovereign wealth funds, etc.) they appear.

 

112 ―Futures equivalent positions‖ shall included futures and delta-adjusted options and should be provided 

based upon all outstanding notional value regardless of whether the notional value resulted in an open 

futures position on the exchange, i.e., it should include an estimate of positions that have been offset 

internally and have not resulted in trading in the futures market. 

113For the purposes of this report, an ―institutional investor‖ shall include pension funds, endowment 

funds, and other similar investors; and a ―sovereign wealth fund‖ shall mean a non-U.S. government 

entity, including, for example, a government investment company or a government-run pension fund.
60

Appendix G

Commissioner Bart Chilton

Dissent

from

CFTC Recommendations in Connection with the Special Call Survey of Swaps Dealers

September 11, 2008

______________________________________________________________________________

I respectfully dissent from the Commission‘s issuance of recommendations relating to the 

staff‘s special call survey of swaps dealers. 

At the outset, let me state that my action does not represent any dissatisfaction or 

uncertainty regarding the efforts of agency staff. As I have noted previously, the staff of the 

Commission are highly dedicated, competent professionals, and I have the utmost confidence in 

their ability to carry out the mission of the agency as mandated by Congress, to ensure that 

America‘s futures markets perform their risk management and price discovery functions in a fair 

and efficient manner.

That said, I dissent from the issuance of the Commission‘s recommendations. I do not 

believe the Commission‘s recommendations go far enough, and I have significant concerns 

relating to the underlying analysis on which the recommendations are based. Specifically, I 

express doubts regarding the amount and type of data received in connection with the special call 

survey, the nature of the analysis, and I have a fundamental disagreement with certain 

conclusions underlying the Commission‘s recommendations. 

I am concerned that, while I believe the staff did a tremendous amount of work in a short 

period of time, the agency may not have received the type of comprehensive data sets needed to 

make reliable analyses and conclusions. It is my understanding that staff have been in the 

process of receiving data within just the last few weeks, making an extremely short turn-around 

time for processing and analyzing this exceedingly complex issue. Most importantly, I regret 

that, certain conclusions may underlie these recommendations regarding the causality link 

between index traders and price movements, particularly in the crude oil market, and that these 

conclusions that do not appear necessarily to be ineluctably linked to the data received. Absent 

compelling evidence, I believe that the most responsible course of action is to refrain from 

making conclusions or declarative statements based upon such limited and unreliable data. 

There is ample evidence that many have reached judgments regarding a positive causality 

link with regard to speculative trading and commodity pricing. For example, a report released 

last week by the United Nations Conference on Trade and Development states that, ―although 

there is no conclusive evidence of the extent to which speculation is contributing to rising 
61

commodity prices so far, there can be little doubt that it has significantly amplified price 

movements originally caused by changes in market fundamentals. ―Commodity Prices, Capital 

Flows, and the Financing of Investment,‖ Trade and Development Report 2008, September 2008, 

at 22. Similarly, in May 2008, the International Monetary Fund released a report stating, ―[i]n 

summary, it appears that speculation has played a significant role in the run-up in oil prices as 

the U.S. dollar has weakened and investors have looked for a hedge in oil futures . . . .‖ Regional 

Economic Outlook, Middle East and Central Asia, International Monetary Fund World 

Economic and Financial Survey, May 2008, at 27. Indeed, even former Federal Reserve Board 

Chairman Alan Greenspan has noted, ―Financial speculation did play a significant part in the 

rapid increase in oil prices.‖ Financial Times, August 11, 2008. Similar conclusions about the 

effect of financial speculators in the commodities markets have been reached by others.* In 

sum, smart people can disagree on this issue. Accordingly, until we have a comprehensive, 

unbiased study of this issue, we should not be making declarative judgments as to causation or 

effect. 

That being said, due to the critical nature of this issue, I believe the American public can 

no longer wait for studies or task forces. Given the data that we have received, I believe there 

are some appropriate conclusions that can be drawn, and certain recommendations that should be 

made. I believe, first and foremost, there is a great deal of information regarding the over-thecounter market that the agency does not routinely receive and that such information may be 

imprecise. This data may have a significant impact on the exchange-traded markets. Secondly, 

in my opinion it would also appear that such over-the-counter activity may, at times, have 

uneconomic effects on prices. Accordingly, I urge the Commission to make the following 

specific recommendations, based on the data that has been received up to this point:

 request that Congress provide specific statutory authorities to allow the Commission to 

obtain data regarding over-the-counter transactions that may impact exchange-traded 

markets;

 request that Congress provide specific statutory authorities to allow the Commission to 

address market disturbances or violations of the Commodity Exchange Act, based on the 

data received pursuant regarding over-the-counter transactions;

 request that Congress provide immediate authorization and appropriations for at least 100 

additional FTEs to carry out these new responsibilities.

I agree is it desirable for the Commission to do all it can, using the full force and effect of its 

administrative authority, to address issues that may be having a deleterious effect on the pricing 

or risk management functions of the U.S. futures markets. At a minimum, these administrative 

actions could include:

 immediate cessation of issuance by staff, rather than review and analysis by the full 

Commission, of all hedge exemption requests;

 re-analysis of the practice of issuance of non-commercial hedge exemptions;

 issuance of regulations to ensure firewalls between research and trading functions of 

investment banks; and 

 re-analysis of appropriate classifications of traders.
62

I recognize that several of these administrative initiatives are included, at least in part, in the 

Commission‘s recommendations; my dissent, however, is based on my concern that these 

regulatory responses are not the primary actions the Commission should be undertaking. Rather, 

we should be recommending that Congress provide the agency with the specific statutory 

authorities identified above. I believe the Commission‘s recommendations do not address the 

entirety of the concerns identified, and that they simply do not go far enough to ensure that 

commodity pricing in futures markets accurately reflects the forces of supply and demand.

Finally, I have several concerns relating to the issuance of these recommendations based 

on the staff survey of swaps dealers, and the upcoming release of a report by the Interagency 

Task Force on Commodity Markets (Interagency Task Force). The Interagency Task Force 

released an Interim Report on July 22nd that contained statements about speculative activity in 

the oil markets. Those statements were at best premature given that key information, such as the 

type of data on which the CFTC bases its instant recommendations, was not available for 

analysis by the Interagency Task Force. As noted, the reliability of the data and the conclusions 

of the staff‘s analysis cause concern that, should the Interagency Task Force Final Report rely on 

that analysis and review, its findings and conclusions will be similarly tainted.

Bart Chilton

Commissioner

* E.g., ―The Oil Price Really Is A Speculative Bubble,‖ R. S. Eckaus, Center for Energy and 

Environmental Policy Research, Joint Center of the Department of Economics, MIT Energy 

Initiative, and Sloan School of Management, June 2008 (―Since there is no reason based on 

current and expected supply and demand that justified the current price of oil, what is left? The 

oil price is a speculative bubble.‖ At 8); ―Seeking the Causes of the July 3rd Spike in World Oil 

Prices,‖ Robert F. McCoullough, Jr., McCoullough Research, August 2008 (―There is a strong 

possibility that the high level of concentration in the spot and future oil markets have made the 

market strategies of the principal market participants more significant than fundamentals – at 

least in the short term.‖ At 8); ―Institutional investors are one of, if not the primary, factors 

affecting commodities prices today.‖ Testimony of Michael Masters, Masters Capital 

Management, before the Committee on Homeland Security and Governmental Affairs, United 

States Senate, May 20, 2008. 
63

Appendix H

Commissioner Michael Dunn

Signing Statement

CFTC Recommendations in Connection with the Special Call Survey of Swaps Dealers

____________________________________________________________________________

Today I signed a set of preliminary recommendations made in connection with the 

CFTC‘s special call survey of swaps dealers. While I still have questions surrounding market 

conditions and the role speculation has played in our markets, at a minimum, I believe that these 

preliminary recommendations provide the CFTC with necessary tools that will allow this agency 

to better police our markets and ensure that our markets are free from manipulation and 

excessive speculation.

The data collected from this survey clearly highlights the fact that greater transparency is 

needed to fully understand the activities of swap dealers and the effects that their activities have 

on the markets the CFTC regulates. While people can and will reach disparate conclusions based 

on the data collected, the very fact that we have this data in our possession is a significant step in 

the right direction towards increased transparency.

To the extent that the CFTC‘s recommendations require legislative action, I strongly urge 

Congress to review them and provide specific statutory authorities. Additionally, as the markets 

adapt and react to fundamental forces, the CFTC will continue to work with Congress so that it 

can provide the CFTC with the necessary tools to achieve its core mission. The CFTC will also 

work with Congress to ensure that it has the necessary information to answer questions raised by 

constituents.

The CFTC will continue, under its current regulatory authorities, to collect, analyze and 

disseminate as much information as possible to market users so that they are able to make 

informed trading decisions. If needed, the CFTC will also promulgate any rules it deems 

necessary to increase transparency. The preliminary recommendations that I signed today are the 

first step in providing CFTC staff with the tools they need to provide greater transparency over 

the activities of swap dealers, while also protecting the privacy interests of those market users.

I would be remiss in my duties as Commissioner if I did not highlight the daunting, timeconsuming, and sometimes thankless efforts of CFTC staff who have worked non-stop over the 

last several months to collect this special call data. People have often asked whether there is a 

cop on the beat in these markets, I can answer that question with a resounding yes. Despite the 

fact that the CFTC is underfunded and understaffed – its employees remain undeterred. It is my 

hope that these preliminary recommendations provide our staff with the ability to do their job 

more efficiently and effectively and that we in turn can provide greater transparency to the 

markets the CFTC has diligently regulated since 1974.
64

GLOSSARY

Arbitrage: A strategy involving the simultaneous purchase and sale of identical or equivalent 

commodity futures contracts or other instruments across two or more markets in order to benefit 

from a discrepancy in their price relationship. In a theoretical efficient market, there is a lack of 

opportunity for profitable arbitrage. See Spread.

Basis: The difference between the spot or cash price of a commodity and the price of the nearest 

futures contract for the same or a related commodity. Basis is usually computed in relation to the 

futures contract next to expire and may reflect different time periods, product forms, grades, or 

locations.

Board of Trade: Any organized exchange or other trading facility for the trading of futures 

and/or option contracts.

Buyer: A market participant who takes a long futures position or buys an option. An option 

buyer is also called a taker, holder, or owner.

Cash Commodity: The physical or actual commodity as distinguished from the futures contract, 

sometimes called spot commodity or actuals.

Cash Market: The market for the cash commodity itself (as contrasted to a futures or other 

derivatives contract) taking the form of either an organized, self-regulated central market (e.g., a 

commodity exchange) or a decentralized over-the-counter market. Trading in the cash market 

may be for spot (immediate) or deferred/forward delivery.

Cash Price: The price in the marketplace for actual cash or spot commodities to be delivered via 

customary marketing channels. 

Cash Settlement: A method of settling certain futures or option contracts whereby the seller (or 

short) and buyer (or long) exchange a payment based on the cash value of the commodity traded 

according to a procedure specified in the contract in lieu if the seller making delivery of the 

underlying commodity. Also called Financial Settlement.

CFTC Form 40: The form used by large traders to report their futures and option positions and 

the purposes of those positions.

Clearing: The procedure through which the clearing organization becomes the buyer to each 

seller of a futures contract or other derivative, and the seller to each buyer for clearing members.

Clearing Member: A member of a clearing organization. All trades of a non-clearing member 

must be processed and eventually settled through a clearing member.

Clearing Organization or Clearing House: An entity through which futures and other 

derivative transactions are cleared and settled. It is also charged with assuring the proper conduct 
65

of each contract‘s delivery procedures and the adequate financing of trading. A clearing 

organization may be a division of a particular exchange, an adjunct or affiliate thereof, or a 

freestanding entity.

Commitments of Traders Report (COT): A weekly report from the CFTC providing a 

breakdown of each Tuesday's open interest for markets in which 20 or more traders hold 

positions equal to or above the reporting levels established by the CFTC. Open interest is broken 

down by aggregate commercial, noncommercial, and non-reportable holdings. With respect to 

the COT report commercial traders include a trader involved in the production, processing, or 

merchandising of a commodity and swap dealers using the futures or options markets to offset 

risks they hold due to swap positions on their books. The COT reports also report the positions 

of noncommercial traders held as spread positions between delivery months.

Commodity Index: An index or average, which may be weighted, of selected commodity prices,

intended to be representative of the markets in general or a specific subset of commodities, e.g., 

energy products or grains.

Commodity Index Trading: A passive investment strategy that attempts to replicate the return 

on an index of commodities by holding futures positions in correspondence to their weight in a 

specified commodity index.

Commodity Swap: A swap in which the payout to at least one counterparty is based on the price 

of a commodity or the level of a commodity index.

Congestion: A market situation in which shorts attempting to cover their positions are unable to 

find an adequate supply of contracts provided by longs willing to liquidate or by new sellers 

willing to enter the market, except at sharply higher prices.

Contract Market: A board of trade or exchange approved by the Commodity Futures Trading 

Commission to trade futures or options under the Commodity Exchange Act. A contract market 

can allow both institutional and retail participants and can list for trading futures contracts on any 

commodity, provided that each contract is not readily susceptible to manipulation. Also called a 

Designated Contract Market (DCM).

Contract/Delivery Month: The specified month within which a futures contract matures and 

can be settled by delivery or the specified month in which the delivery period begins.

Cross-Hedge: Hedging a cash market position in a futures or option contract for a different but 

price-related commodity.

Counterparty: The opposite party in a bilateral agreement, contract, or transaction, such as a 

swap. There are two counterparties to each trade.

Day Trader: A speculative trader who takes positions and then offsets them during the same 

trading session prior to the close of trading.
66

Deliverable Supply: That portion of the total supply of a commodity that meets the delivery 

specifications of a futures contract and that is available for delivery on the futures contract at its 

economic value.

Delivery: The tender and receipt of the actual commodity, the cash value of the commodity, or 

of a delivery instrument covering the commodity (e.g., warehouse receipts or shipping 

certificates), used to settle a futures contract.

Delivery Location: A location designated by a commodity exchange where stocks of a 

commodity represented by a futures contract may be delivered in fulfillment of the contract.

Derivative: A financial instrument, traded on or off an exchange, the price of which is directly

dependent upon (i.e., "derived from") the value of one or more underlying securities, equity 

indices, debt instruments, commodities, other derivative instruments, or any agreed upon pricing 

index or arrangement (e.g., the movement over time of the Consumer Price Index or freight 

rates). Derivatives involve the trading of rights or obligations based on the underlying product, 

but do not directly transfer property. They are used to hedge risk or to exchange a floating rate of 

return for a fixed rate of return. Derivatives include futures, options, and swaps. For example, 

futures contracts are derivatives of the physical contract and options on futures are derivatives of 

futures contracts.

Designated Contract Market: See Contract Market.

Electronic Trading Facility: A trading facility that operates by an electronic or 

telecommunications network instead of a trading floor and maintains an automated audit trail of 

transactions.

Equivalent Futures Contracts or Position: The futures and delta-adjusted options on futures 

that would have been established on-exchange absent other internal offsets or nettings.

Exchange-Traded Fund (ETF): An investment vehicle holding an asset such as a commodity 

that issues shares that are traded like a stock on a securities exchange.

Exchange-Traded Futures Contract: An agreement to purchase or sell a commodity for 

delivery at a specified time in the future: (1) at a price (or pricing formula) that is determined at 

initiation of the contract; (2) that obligates each party to the contract to fulfill the contract at the 

specified price; (3) that is primarily used to assume or shift price risk without taking delivery of 

the underlying commodity; and (4) that may be satisfied by delivery, offset or cash settlement, as 

specified by the terms of the contract.

Exchange-Traded Note (ETN): A principal-protected investment vehicle the return on which is 

based on, for example, a commodity index rather than an interest rate.

Exempt Commercial Market: An electronic trading facility that trades exempt commodities on 

a principal-to-principal basis solely between persons that are eligible commercial entities.
67

Financial Settlement: See, Cash settlement.

Foreign Board of Trade: A futures exchange outside the United States.

Forward Contract: A commercial merchandising transaction common in many industries, 

including commodity merchandising, in which a commercial buyer and seller (with the capacity 

to make or take delivery) agree upon delivery of a specified quality and quantity of a commodity

at a specified future date. Terms may be more ―personalized‖ than is the case with standardized 

futures contracts (i.e., delivery time and amount are as determined between seller and buyer). A 

price may be agreed upon in advance, or there may be agreement that the price will be

determined at the time of delivery.

Futures Commission Merchant (FCM): Individuals, associations, partnerships, corporations, 

and trusts that solicit or accept orders for the purchase or sale of any commodity for future 

delivery on or subject to the rules of any exchange and that accept payment from or extend credit 

to those whose orders are accepted.

Hedge Exemption: An exemption from speculative position limits for bona fide hedgers and 

certain other persons who meet the requirements of exchange or CFTC rules.

Hedger: A trader who enters into a position in a futures market opposite to a position held in the 

cash market to minimize the risk of financial loss from an adverse price change; or who 

purchases or sells futures as a temporary substitute for a cash transaction that will occur later. 

One can hedge either a long cash market position (e.g., one owns the cash commodity) or a short 

cash market position (e.g., one plans on buying the cash commodity in the future).

Hedging: Taking a position in a futures market opposite to a position held in the cash market to 

minimize the risk of financial loss from an adverse price change; or a purchase or sale of futures 

as a temporary substitute for a cash transaction that will occur later. One can hedge either a long 

cash market position (e.g., one owns the cash commodity) or a short cash market position (e.g., 

one plans on buying the cash commodity in the future).

Index Fund: A fund that has a fiduciary obligation to match or track the results of an index. As 

used in this report, a commodity index fund that tracks the performance of a commodity index.

Institutional Investor: A pension fund, endowment fund, and similar investors.

Large Traders: A large trader is one who holds or controls a position in any one future or in any 

one option expiration series of a commodity on any one exchange equaling or exceeding the 

exchange or CFTC-specified reporting level.

Liquidity: An aspect of a market indicating that selling and buying can be accomplished with 

minimal effect on price. The more liquid a market is, the easier it is to execute large trades with 

minimal price impact.
68

Long: (1) One who has bought a futures contract to establish a market position; (2) a market 

position that obligates the holder to take delivery; (3) one who owns an inventory of 

commodities.

Manipulation: Any planned operation, transaction, or practice that causes or maintains an 

artificial price. Specific types include corners and squeezes as well as unusually large purchases 

or sales of a commodity or security in a short period of time in order to distort prices, and putting 

out false information in order to distort prices.

Market Maker: In the futures industry, a trader who, in speculating for his own account, 

provides bids and offers for commercial users of the market.

Nearbys: The nearest delivery months of a commodity futures market.

Non-commercial: A trader other than a commercial, that is, a trader that is not involved in the

production, processing, or merchandising or other commercial activity in the commodity it is 

trading.

Notional Value: In an interest rate swap, forward rate agreement, or other derivative instrument, 

the amount or, in a currency swap, each of the amounts to which interest rates are applied in 

order to calculate periodic payment obligations.

Offer: An indication of willingness to sell at a given price; opposite of bid, the price level of the 

offer may be referred to as the ―ask.‖

Offset: Liquidating a purchase of futures contracts through the sale of an equal number of 

contracts of the same delivery month, or liquidating a short sale of futures through the purchase 

of an equal number of contracts of the same delivery month.

Open Interest: The total number of futures contracts long or short in a delivery month or market 

that has been entered into and not yet liquidated by an offsetting transaction or fulfilled by 

delivery.

Option: A contract that gives the buyer the right, but not the obligation, to buy (call) or sell (put) 

a specified quantity of a commodity or other instrument at a specific price within a specified 

period of time, regardless of the market price of that instrument.

Over-the-Counter (OTC) Market: The trading of commodities, contracts, or other instruments

directly between two parties off of an exchange through an electronic network, facsimile or

telephone. OTC trading may also be facilitated by market makers, or dealers, who make twosided markets by offering to both buy and sell the commodities, contracts or other instruments.

Position: An interest in the market, either long or short, in the form of one or more open 

contracts.
69

Position Accountability: An enhanced market surveillance provision adopted, by rule, by an 

exchange. Under position accountability provisions, persons with positions exceeding exchange 

specific ―accountability levels‖ are subject to increased oversight and the exchange has enhanced 

powers to address market problems. Persons exceeding the accountability level must report the 

nature of the position, trading strategy, and hedging information of the position to the exchange, 

upon request of the exchange. The exchange may take action to prohibit the person from 

increasing its position or may order that positions be reduced to address market problems.

Position Limit: See Speculative Position Limit.

Price Discovery: The process of determining the price level for a commodity based on supply 

and demand conditions. For organized exchanges, such as futures exchanges, the price discovery 

mechanism aggregates information and opinions on supply and demand fundamentals from 

multiple market participants to arrive at a price that reflects the collective judgment of those 

participants.

Reportable Level: The size of a futures position set by the exchange and/or the CFTC at or 

above which commodity traders or brokers who carry these accounts must make daily reports 

about the size of the position by commodity, by delivery month, and whether the position is 

controlled by a commercial or non-commercial trader.

Retail Investor/Customer: A customer that does not qualify as an eligible contract participant 

under Section 1a(12) of the Commodity Exchange Act, 7 USC 1a(12). An individual with total 

assets that do not exceed $10 million, or $5 million if the individual is entering into an 

agreement, contract, or transaction to manage risk, would be considered a retail customer.

Seller: A market participant who takes a short futures position or sells an option. An option 

seller is also called a grantor.

Short: (1) The selling side of an open futures contract; (2) a trader whose net position in the 

futures market shows an excess of open sales over open purchases.

Sovereign Wealth Fund (SWF): A non-U.S. government entity, including government 

investment companies and government-run pension funds.

Special Call: A request to a reportable (i.e. large) futures trader pursuant to CFTC Regulation 

18.05 for further details regarding the trader‘s cash and derivative market positions.

Speculative Position Limit: The maximum position, either net long or net short, in one 

commodity future (or option) month or in all futures (or options) of one commodity combined 

that may be held or controlled by one person (other than a person granted a hedge exemption) as 

prescribed by an exchange and/or by the CFTC.

Speculator: In commodity futures, a trader who does not hedge, but who trades with the 

objective of achieving profits through the successful anticipation of outright price movements or 

through relative price movements in the case of spread trades.
70

Spot Market: Market of immediate delivery of and payment for the commodity. Contrasted with 

Forward Contract.

Spot Commodity: (1) The actual physical commodity (as distinguished from a futures contract); 

(2) sometimes used to refer to cash commodities available for immediate delivery.

Spot Month Contract: The futures contract that matures and becomes deliverable during the 

present month.

Spot Price: The price at which a physical commodity is bought and sold for immediate delivery 

at a given time and place.

Spread: The purchase of one futures delivery month against the sale of another futures delivery 

month of the same commodity; the purchase of one delivery month of one commodity against 

the sale of that same delivery month of a different commodity; or the purchase of one commodity 

in one market against the sale of the commodity in another market, to take advantage of a profit 

opportunity from a change in price relationships. The term spread is also used to refer to the 

difference between the price of a futures month and the price of another month of the same 

commodity. A spread can also apply to options.

Supplemental COT Report: A companion report to CFTC‘s regular weekly Commitments of 

Traders report that, for 12 agricultural markets, breaks out the amount of index trading.

Swap: In general, an OTC contract for the exchange of one asset or liability for a similar asset or 

liability for the purpose of lengthening or shortening maturities or otherwise shifting risks. See 

Commodity Swap.

Swap Dealer: An entity such as a bank or investment bank that markets swaps to end users.

Swap dealers often manage the risk associated with their net swap positions by trading in the 

futures markets.

Underlying Commodity: The cash commodity or instrument underlying a futures or option 

contract.

Volume of Trading: The number of contracts traded during a specified period of time. It may be 

quoted as the number of contracts traded or as the total of physical units traded, such as bales or 

bushels, pounds or dozens.