COMMODITY FUTURES TRADING COMMISSION

17 CFR Parts 1, 20 and 151

RIN 3038 – AC85

Federal Speculative Position Limits for Referenced Energy Contracts and Associated

Regulations

AGENCY: Commodity Futures Trading Commission.

ACTION: Notice of proposed rulemaking.

SUMMARY: The Commodity Futures Trading Commission (“CFTC” or “Commission”) is 

proposing to implement speculative position limits for futures and option contracts in certain 

energy commodities. The Commodity Exchange Act of 1936 (“CEA” or “Act”) gives the 

Commission the authority to establish limits on positions to diminish, eliminate or prevent 

excessive speculation causing sudden or unreasonable fluctuations in the price of a commodity, 

or unwarranted changes in the price of a commodity. In addition to identifying the affected 

energy contracts and the position limits that would apply to them, the notice of proposed 

rulemaking includes provisions relating to exemptions from the position limits for bona fide

hedging transactions and for certain swap dealer risk management transactions. The notice of 

proposed rulemaking also sets out an application process that would apply to swap dealers 

seeking a risk management exemption from the position limits, as well as related definitions and

reporting requirements. In addition, the notice of proposed rulemaking includes provisions

regarding the aggregation of positions under common ownership for the purpose of applying the 

limits.

DATES: Comments must be received on or before [Insert 90 days after the date of 

publication].
2

ADDRESSES: Comments should be submitted to David Stawick, Secretary, Commodity 

Futures Trading Commission, Three Lafayette Centre, 1155 21st Street, NW, Washington, DC

20581. Comments also may be sent by facsimile to (202) 418-5521, or by electronic mail to 

secretary@cftc.gov. Reference should be made to “Proposed Federal Speculative Position 

Limits for Referenced Energy Contracts and Associated Regulations.” Comments may also be 

submitted by connecting to the Federal eRulemaking Portal at http://www.regulations.gov and 

following comment submission instructions.

FOR FURTHER INFORMATION CONTACT:

Stephen Sherrod, Acting Director of Surveillance, (202) 418-5452, ssherrod@cftc.gov, David P. 

Van Wagner, Chief Counsel, (202) 418-5481, dvanwagner@cftc.gov, Donald Heitman, Senior 

Special Counsel, (202) 418-5041, dheitman@cftc.gov, or Bruce Fekrat, Special Counsel, (202) 

418-5578, bfekrat@cftc.gov, Division of Market Oversight, Commodity Futures Trading 

Commission, Three Lafayette Centre, 1155 21st Street, NW, Washington, DC 20581, facsimile 

number (202) 418-5527.

SUPPLEMENTARY INFORMATION:

I. Overview

The majority of futures and options trading on energy commodities in the United States 

occurs on the New York Mercantile Exchange (“NYMEX”), a designated contract market 

(“DCM”) that operates as part of the CME Group.1

 

1 The CME Group is the parent company of four DCMs: NYMEX, the Chicago Board of Trade 

(“CBOT”), the Chicago Mercantile Exchange (“CME”), and the Commodity Exchange 

(“COMEX”).

 Energy commodity trading also takes place 

on the Intercontinental Exchange (“ICE”), an Atlanta-based exchange that operates as an exempt 

commercial market (“ECM”) and is, as of July 2009, a registered entity with respect to its Henry 
3

Financial LD1 Fixed Price natural gas contract.2 NYMEX currently lists physically-delivered 

and cash-settled futures contracts (and options on such futures contracts) in crude oil, natural gas, 

gasoline and heating oil. ICE lists a cash-settled look-alike contract on natural gas, and options 

thereon, that settles directly to the settlement price of NYMEX’s physically-delivered natural gas 

futures contract.3

ICE’s Henry Financial LD1 Fixed Price natural gas contract and virtually all NYMEX 

energy contracts are currently subject to exchange-set spot-month speculative position limits that 

are in effect for the last three days of trading of the respective contracts. Under an exchange’s 

speculative position limit rules, no trader, whether commercial or noncommercial, may exceed a 

specified limit unless the trader has requested and received an exemption from the exchange. 

Outside of a contract’s spot month, these energy contracts are subject to exchange all-months-

 2 Under section 2(h)(7) of the Act, ECM contracts that have been determined by the Commission 

to be significant price discovery contracts (“SPDCs”) are subject to Commission regulation. 7 

U.S.C. 2(h)(7). ECMs listing SPDCs (“ECM-SPDCs”) are also deemed to be registered entities 

with self-regulatory responsibilities with respect to such contracts. To date, ICE’s Henry 

Financial LD1 Fixed Price natural gas contract is the first and only ECM contract to have been 

determined by the Commission to be a SPDC under section 2(h)(7) of the Act. 74 FR 37988 

(July 30, 2009). 3 US-based traders also enter into various energy contracts listed by the ICE Futures Europe 

Exchange (“ICE Futures Europe”), a London-based exchange. These energy contracts include 

futures on West Texas Intermediate (WTI) light sweet crude oil, a New York Harbor heating oil 

futures contract and a New York Harbor unleaded gasoline blendstock futures contract. All of 

the listed contracts directly cash-settle to the price of NYMEX futures contracts that are 

physically-settled. ICE Futures Europe is a foreign board of trade (“FBOT”) and, unlike 

NYMEX and ICE, is not registered in any capacity with the Commission. Instead, ICE Futures 

Europe and its predecessor, the International Petroleum Exchange, have operated in the US since 

1999 pursuant to Commission staff no-action relief. CFTC Staff Letter No. 99-69 (November 

12, 1999). Since 2008, ICE Futures Europe’s no-action relief has been conditioned on, among 

other things, the requirement that the Exchange implement position limit requirements for its 

NYMEX-linked contracts that are comparable to the position limits that NYMEX applies to its 

contracts. CFTC Staff Letter No. 08–09 (June 17, 2008); CFTC Staff Letter No. 08–10 (July 3, 

2008). Generally, comparable position limits for FBOT contracts that link to CFTC-regulated 

contracts serve to ensure the integrity of prices for CFTC-regulated contracts.
4

combined and single-month position accountability rules. Under an exchange’s position 

accountability rules, once a trader exceeds an accountability level in terms of outstanding 

contracts held, the exchange has the right to request supporting justification from the trader for 

the size of its position, and may order a trader to reduce or not increase its positions further.

As described in detail in section VI of this release, the Commission is proposing to 

impose all-months-combined, single-month, and spot-month speculative position limits for

contracts based on a defined set of energy commodities. Broadly described, the Commission’s 

proposal, for non-spot-month positions, would apply exchange-specific speculative position 

limits to a set of economically similar contracts that settle in the same manner. In addition, the 

Commission is proposing to implement and enforce aggregate non-spot-month speculative 

position limits that would apply across registered entities that list substantially similar energy 

contracts. As discussed in the Paperwork Reduction Act section of this notice of proposed 

rulemaking, should the proposed regulations be adopted, the Commission estimates that the total 

number of traders with significant positions that could be affected by the proposed regulations 

would be approximately ten. 

Particular data concerning the distribution of speculative traders in a market and an

analysis of market conditions and variables, including open interest, can support a range of 

acceptable speculative position limit requirements. The Commission, in structuring the 

speculative position limit framework as proposed, has considered its recent and historical actions 

in setting position limits, its continuous oversight of exchange-set speculative position limit and 

accountability rules, its experience in administering Commission-set speculative position limits4

 

4 The Commission sets Federal speculative position limits for certain agricultural commodities 

enumerated in section 1a(4) of the Act. See 17 CFR 150.2.

and its observations of energy commodity market conditions and developments, particularly
5

during the past four years. The Commission notes that the proposed Federal speculative position 

limits on energy contracts would be in addition to, and not a substitute for, a reporting market’s 

existing speculative position limit and accountability requirements. Reporting markets, defined 

in Commission regulation 15.00 to include DCMs and ECM-SPDCs, are self-regulatory 

organizations with an independent responsibility for adopting and implementing appropriate 

position limit and accountability rules. 

This notice of proposed rulemaking does not propose regulations that would classify and 

treat differently passive long-only positions. The Commission does, however, in section VIII of 

this notice, solicit comment on specific issues related to large, passive long-only positions. In 

particular, the Commission solicits comments on how to identify and define such positions and

whether such positions should, including collectively, be limited in any way. 

II. Statutory Background

Speculative position limits have been identified as an effective regulatory tool for 

mitigating the potential for market disruptions that could result from uncontrolled speculative 

trading. Section 4a(a) of the Act , 7 U.S.C. 6a(a), which in significant part retains language that 

was initially adopted in 1936, provides 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 following 

authority:

For the purpose of diminishing, eliminating, or preventing such 

burden, the Commission shall, from time to time...proclaim and 
6

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.

Amendments introduced to the Act by the Futures Trading Act of 1982 supplemented this 

longstanding statutory framework for Commission-set Federal speculative position limits by 

explicitly acknowledging the role of the exchanges in setting their own speculative position 

limits.5 The 1982 legislation also gave the Commission, under section 4a(5) of the Act, the 

authority to directly enforce violations of exchange-set, Commission-approved speculative 

position limits in addition to position limits established directly by the Commission through 

orders or regulations.

6

The Commodity Futures Modernization Act of 2000 (“CFMA”)

 Thus, since 1982, the Act’s framework explicitly anticipates the 

concurrent application of Commission and exchange-set speculative position limits. The 

concurrent application of limits is particularly consistent with an exchange’s close knowledge of 

trading activity on that facility and the Commission’s greater capacity for monitoring trading and 

implementing remedial measures across interconnected commodity futures and option markets. 

7

 

5 Futures Trading Act of 1982, Pub. L. No. 97–444, 96 Stat. 2299-30 (1983).

introduced substantial 

changes to the CEA. Broadly described, the CFMA established a principles-based approach to 

regulating the futures markets, allowed for the implementation of exchange rules through a 

certification process without requiring the exchanges to obtain prior Commission approval, and 

delineated specific designation criteria and core principles with which a DCM must comply to 

6 Section 4a(5) has since been redesignated as section 4a(e) of the Act. 7 U.S.C. 4a(e). 

7 Commodity Futures Modernization Act of 2000, Appendix E of Pub. L. No. 106-554, 114 Stat. 

2763 (2000).
7

receive and maintain designation. Among these, Core Principle 5 in section 5(d) of the Act 

provides:

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.

Most recently the CEA was amended by the CFTC Reauthorization Act of 2008.

8

 The 

2008 legislation amended the CEA by, among other things, adding core principles in new section 

2(h)(7) governing SPDCs traded on electronic trading facilities operating in reliance on the 

exemption in section 2(h)(3) of the Act.

9

 The 2008 legislation amended the Act to impose

certain self-regulatory responsibilities on ECM-SPDCs through core principles, as did the CFMA 

with respect to DCMs, including a core principle that requires such facilities to “adopt, where 

necessary and appropriate, position limitations or position accountability for speculators in 

significant price discovery contracts...”10

As mentioned above, the CFMA generally replaced the Act’s exchange rule approval 

process with a certification process. On a practical level, this shift has tended to reduce the 

Commission’s ability to more directly shape the specific requirements of exchange-set 

 The 2008 legislation also amended section 4a(e) of 

the Act to incorporate references to ECM-SPDCs, thereby assuring that violation of an ECMSPDC’s position limits, regardless of whether such position limits have been approved by or 

certified to the Commission, would constitute a violation of the Act that the Commission could 

independently enforce.

 

8 Food, Conservation and Energy Act of 2008, Pub. L. No. 110-246, 122 Stat. 1624 (June 18, 

2008).

9 7 U.S.C. 2(h)(3)-(7). 

10 7 U.S.C. 2(h)(7)(C)(ii)(IV).
8

speculative position limit and accountability rules through approving such rules prior to 

implementation. In light of this, the Commission’s broad authority to independently set position 

limits under CEA section 4a(a) could be viewed as an increasingly important enabling provision

that allows the Commission to take the initiative in acting, when appropriate, to bolster market 

confidence and curb or prevent excessive speculation that may cause sudden, unwarranted, or 

unreasonable fluctuations in commodity prices.

III. Federal Speculative Position Limits

A. Historical Background

From the earliest days of federal regulation of the futures markets, Congress made it clear 

that unchecked speculative positions, even without intent to manipulate the market, can cause 

price disturbances.11 To protect markets from the adverse consequences associated with large 

speculative positions, Congress expressly authorized the Commodity Exchange Commission 

(“CEC”)

12 to impose speculative position limits prophylactically.13

 

11 The Congressional finding that excessive speculation can have detrimental consequences even 

without manipulative intent is consistent with the series of studies and reports made to Congress 

urging the adoption of measures to restrict speculative trading notwithstanding the absence of 

“the deliberate purpose of manipulating the market.” See e.g., Fluctuations in Wheat Futures, 

69th Cong., 1st Sess., Senate Document No. 135 (June 28, 1926). 

 The Congressional 

endorsement of the Commission’s prophylactic use of position limits rendered unnecessary a 

specific finding that an undue burden on interstate commerce had actually occurred.

Additionally, Congress closely restricted exemptions from position limits to bona fide hedging 

12 The CEC is the predecessor of the Commodity Exchange Authority, which is, in turn, the 

predecessor of the Commission.

13 Requiring a specific demonstration of the need for position limits is contrary to section 4a(a) 

of the Act, which provides that the Commission shall set position limits from time to time, 

among other things, to prevent excessive speculation. 7 U.S.C. 4a(a).
9

transactions, initially defined as sales or purchases of futures contracts offset by sales or 

purchases of the same cash commodity.

In December of 1938, the CEC promulgated the first Federal speculative position limits 

for futures contracts in grains (then defined as wheat, corn, oats, barley, flaxseed, grain sorghums

and rye) after finding that large speculative positions tended to cause sudden and unreasonable 

fluctuations and changes in the price of grain.

14

Over the following years, Federal position limits were extended to various other 

commodities enumerated in the Act. However, no uniform approach regarding speculative 

position limits was applied to those enumerated commodities. 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., livestock 

products, butter, and wool), commodities added to the list of enumerated commodities in the Act 

never became subject to Federal position limits. 

 At that time, the CEC did not impose limits in 

the other commodities enumerated in the 1936 Act. 

In 1974, Congress overhauled the CEA to create the CFTC and simultaneously expanded 

the new agency’s jurisdictional scope beyond the enumerated agricultural commodities to 

include futures contracts in any commodity. In expanding the CFTC’s jurisdiction, Congress 

reiterated a fundamental precept underlying the Act, namely, to minimize or prevent the harmful 

effect of uncontrolled speculation.15

 

14 3 FR 3145 (December 24, 1938).

 When the Commission came into existence in April 1975, 

“various contract markets [had] voluntarily placed speculative position limits on 23 contracts 

15 “The fundamental purpose of the measure is to insure fair practice and honest dealing on the 

commodity exchanges and to provide a measure of control over those forms of speculative 

activity which too often demoralize the markets to the injury of producers and consumers and the 

exchanges themselves.” S. Rep. No. 93-1131, 93rd Cong., 2d. Sess. (1974). 
10

involving 17 commodities.”16 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.”17 Initially, the 

Commission retained the position limits enacted by the CEC, as then in effect, but did not 

establish position limits for any additional commodities.18

After the silver futures market crisis during late 1979 to early 1980, commonly referred 

to as “the Hunt Brothers silver manipulation,”

 In the years immediately following, 

the Commission implemented a few relatively minor changes to position limit regulations, but 

undertook no significant expansion of Federal speculative position limits.

19 the Commission concluded that “[t]he recent 

events in silver ... suggest that the capacity of any futures market to absorb large positions in an 

orderly manner is not unlimited.”20 Accordingly, in 1981 the Commission adopted regulation 

1.61, which required all exchanges 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.21

 

16 45 FR 79831 (December 2, 1980).

 Although regulation 1.61 directed the exchanges to implement position limit rules, 

the pre-CFMA exchange rule approval process, on a practical level, gave the Commission the 

ability to shape the requirements of exchange-set position limit rules as measures that guarded 

17 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. n.1)

18 Pursuant to section 4l of the Commodity Futures Trading Commission Act of 1974, all 

regulations previously adopted by the Commodity Exchange Authority continued in full force 

and effect, to the extent they were not inconsistent with the Act, as amended, unless or until 

terminated, modified or suspended by the Commission. Sec. 205, 88 Stat. 1397 (effective July 

18, 1975).

19 See, In re Nelson Bunker Hunt et al., CFTC Docket No. 85-12.

20 45 FR 79831, at 79833 (December 2, 1980).

21 46 FR 50938 (October 16, 1981).
11

against excessive speculation in accordance with the purposes and findings of section 4a(a) of 

the Act. 

The next significant development occurred in 1986, when the Commission undertook a 

comprehensive review of speculative position limit policies, including position limit levels. 

During the Commission’s 1986 reauthorization, the CFTC’s Congressional authorizing 

committees suggested that this subject should be addressed. The Report of the House 

Agriculture Committee stated:

[T]he 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.22

Subsequently, the Commission reviewed its Federal speculative position limit framework and, in 

October 1987, adopted final amendments that raised some of the Federal speculative position 

limits and revised the general structure of the Federal speculative position limit regulations.23 

The amendments introduced in 1987 retained the then current spot-month and individual month 

position limits but increased the all-months-combined position limits. The revised limits, which 

had historically been set on a generic commodity basis, established position limits for each 

contract “according to the individual characteristics of that contract market,” particularly “the 

distribution of speculative position sizes in recent years and recent levels of open interest.”24

 

22 H.R. Rep. No. 624, 99th Cong., 2d Sess., at 4 (1986). 

 In 

response to a petition by the CBOT, the Commission also established position limits for CBOT 

23 52 FR 38914 (October 20, 1987).

24 Id. at 38917, 38919.
12

soybean oil and soybean meal contracts, which had been subject solely to exchange-set position

limits, to provide “consistency with all other agricultural commodities traded at the CBOT.”25

In 1992, the Commission issued proposed regulations adhering to the principle that 

speculative position limits should be formulaically adjusted based upon increases in the size of a 

contract’s open interest (in addition to the traditional standard of distribution of speculative 

traders in a market).26 The formula was thereafter “routinely applied ... as a matter of 

administrative practice when reviewing proposed exchange speculative position limits under 

Commission [regulation] 1.61.” 27

During this same time frame, the Commission began a process that led to the adoption of 

position accountability rules for contracts that were subject to exchange-set speculative position 

limits. Beginning in 1991, the Commission approved several exchange rules establishing 

position accountability provisions in lieu of position limits for certain contracts exhibiting 

significant trading volume and open interest, a highly liquid underlying cash market and ready 

opportunities for arbitrage between the cash and futures markets.28

In 1999, the Commission simplified and reorganized its speculative position limit 

regulations to consolidate requirements for both Commission-set limits and exchange-set limits 

 An exchange’s position 

accountability rules, as opposed to position limits that bar traders from acquiring contracts that 

quantitatively exceed a specific number of outstanding contracts, require persons holding a 

certain number of open contracts to report the nature of their positions, trading strategy, and 

hedging needs to the exchange, upon the exchange’s request. 

 

25 Petition for rulemaking of the CBOT, dated July 24, 1986, cited in 52 FR 6814 (March 5, 

1987).

26 57 FR 12766 (April 13, 1992).

27 63 FR 38525 (July 17, 1998).

28 See, e.g., 56 FR 51687 (October 15, 1991) and 57 FR 29064 (June 30, 1992).
13

under regulation 1.61 in part 150 of the Commission’s regulations. Regulation 150.5(e), 

currently, and as initially adopted in 1999, establishes a “trader accountability exemption”29 and 

generally codifies the position accountability conditions that initially were imposed as a matter 

of administrative practice beginning in 1991.

30

The reorganized rules also included new regulation 150.5(c), 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 

 

29 64 FR 24038, at 24048 (May 5, 1999).

30 Regulation 150.5(e) 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 futures and option contracts on a financial instrument or product having an 

average open interest of 50,000 contracts and an average daily trading volume of 100,000 

contracts and a very highly liquid cash market, an exchange bylaw, regulation or resolution 

requiring traders to provide information about their position upon request by the exchange;

(2) For futures and option contracts on a financial instrument or product or on an 

intangible commodity having an average month-end open interest of 50,000 and an average daily 

volume of 25,000 contracts and a highly liquid cash market, an exchange bylaw, regulation or 

resolution requiring traders to provide information about their position upon request by the 

exchange and to consent to halt increasing further a trader’s positions if so ordered by the 

exchange; 

(3) For futures and option contracts on a tangible commodity, including but not limited to 

metals, energy products, or international soft agricultural products having an average month-end 

open interest of 50,000 contracts and an average daily volume of 5,000 contracts and a liquid 

cash market, an exchange bylaw, regulation or resolution requiring traders to provide 

information about their position upon request by the exchange and to consent to halt increasing 

further a trader’s positions if so ordered by the exchange, provided, however, such contract 

markets are not exempt from the requirement of paragraphs (b) or (c) that they adopt an 

exchange bylaw, regulation or resolution setting a spot month speculative position limit with a 

level no greater than one quarter of the estimated spot-month deliverable supply...” 17 CFR 

150.5(e).

Notably, the Commission’s concerns regarding spot-month limits were eventually mirrored by 

the CFMA, which provides in DCM Core Principle 5 (section 5(d)(5) of the Act), that “[t]o 

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.” 
14

numerical speculative position limits.31 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% thereafter.”32

[I]ts large trader data indicates that limits based on open interest as 

described above should accommodate the normal course of 

speculative positions in agricultural markets. The levels derived 

using this method of analysis generally are consistent with the 

largest exchange-set speculative limits approved by the 

Commission under Rule 1.61 for contract markets in agricultural 

commodities at corresponding levels of open interest. However, 

the Commission, based on its surveillance experience and 

monitoring of exchange and Federal speculative position limits, is 

satisfied that the levels indicated by this methodology, although 

near the outer bounds of the levels which have been approved 

previously, nevertheless will achieve the prophylactic intent of 

Section [4a] of the Act and Commission Rule 1.61, thereunder

[emphasis supplied].

 In initially proposing to use this formula, the Commission noted that:

33 

The Commission also emphasized that particular data can result in a range of acceptable 

speculative position limits, and that based on its experience overseeing exchange-set speculative 

limits and its direct administration of the Federal limits establishing “a single-month and allmonth limits on futures positions combined with option positions on a delta-equivalent basis of 

no more than ten percent of the combined markets' open interest for contracts with combined 

open interest below 25,000” was within the range of acceptable speculative position limits.34

 

31 The formulaic approach, initially developed by Blake Imel, former Acting Director of the 

Division of Economic Analysis (the Division has since been merged into the Division of Market 

Oversight), was premised on limiting the concentration of positions in the hands of one or a few 

traders by requiring a minimum number of distinct market participants.

 For 

those markets with combined average open interest greater than 25,000 contracts, the 

32 64 FR 24038, at 24039 (May 5, 1999).

33 57 FR 12766, at 12771 (April 13, 1992).

34 Id. at 12770.
15

Commission proposed a marginal increase of 2.5% after noting that “the size of the largest 

individual positions in a market do not continue to grow in proportion with increases in the 

overall open interest of the market.”35

As noted above, Core Principle 5, introduced to the Act in 2000 by the CFMA, requires

DCMs to implement position limits or position accountability rules for speculators “where 

necessary and appropriate.” In 2001, the Commission established Acceptable Practices for 

complying with Core Principle 5, set out in Appendix B to part 38 of the Commission’s 

regulations.

36 The Acceptable Practices specifically reference part 150 of the Commission’s 

regulations as providing guidance on how to comply with the requirements of the Core 

Principle.37

In 2005, the Commission increased the all-months-combined Federal speculative position 

limits and reset the single-month levels to roughly approximate the existing numerical 

relationship between all-months-combined and single-month levels (i.e., arriving at the singlemonth limits by setting them at about two-thirds of the relevant all-months-combined limits), 

based generally on the 1992 open interest formula (as incorporated into regulation 150.5(e)).

 The CFMA, however, did not change the treatment of the enumerated agricultural 

commodities, which remained subject to Federal speculative position limits. 

38

In 2008, Congress, in response to high prices and volatility in the energy markets and 

concerns regarding excessive speculation on unregulated energy exchanges, including ECMs, 

adopted the CFTC Reauthorization Act of 2008 and amended two CEA provisions aimed at 

curbing possible manipulation and excessive speculation in the energy markets. Specifically, the 

 

35 Id.

36 17 CFR part 38, Appendix B, Core Principle 5(d)(5).

37 66 FR 42256 (August 10, 2001).

38 70 FR 24705 (May 11, 2005).
16

2008 legislation amended CEA section 4a(e) to give the CFTC enforcement authority over 

position limits certified by the exchanges and adopted new section 2(h)(7) to apply a position 

limit and position accountability core principle to ECM-SPDCs.39

B. Statutory Basis and Need for Energy Speculative Position Limits

 Notably, the legislation also 

extended the Commission’s authority to set Federal speculative position limits, under CEA 

section 4a(a), to ECM-SPDCs.

Energy futures and option contracts have never been subject to CFTC-set speculative 

position limits. These contracts began to attract significant trading volumes in the early 1980s 

beginning with NYMEX’s New York Harbor No. 2 heating oil futures contract,40

As noted above, in 1999 the Commission reorganized its speculative position limit 

regulations to codify its earlier administrative practice of allowing exchanges to adopt position 

accountability rules in lieu of numerical position limits for positions outside of the spot month. 

Currently, virtually all of NYMEX’s energy futures and option contracts and ICE’s single SPDC 

contract are subject to exchange-set position accountability rules during non-spot months and to 

hard speculative position limits during spot months. 

followed by 

NYMEX’s gasoline futures contract in 1981 and crude oil futures contract in 1983. NYMEX did 

not initially adopt position limits for heating oil futures contracts. However, with the adoption of 

Commission regulation 1.61, effective November 16, 1981, each exchange was required to 

submit for Commission approval speculative position limits for each actively traded futures 

contract. Thereafter, newly-designated contracts (e.g., NYMEX’s crude oil futures contract in 

1983) were required to be accompanied by exchange speculative position limit rules as a 

condition of designation. 

 

39 See 7 U.S.C. 2(h)(7)(C)(IV).

40 The contract was designated in October 1974, but significant volume first developed in 1980.
17

From 2007 to mid 2008, commodity prices generally, and energy prices in particular, 

increased significantly and experienced unusual volatility. As a result of this, Commissionregulated energy markets, as well as the over-the-counter (“OTC”) energy swap markets over 

which the Commission has no direct regulatory authority, were the subject of numerous 

Congressional hearings41 and formal and informal studies, including a preliminary review by an 

Interagency Task Force chaired by CFTC staff. 42 In the summer of 2009, the Commission held 

three days of hearings “to discuss energy position limits and hedge exemptions” (“Energy 

Hearings”).43 The Commission heard from 26 witnesses, including members of the U.S. House 

and Senate, swap dealers, money managers, futures market participants (including commercial 

hedgers), trade associations, exchanges, and consumer advocates.44

 

41 At the hearings, numerous witnesses expressed concern regarding the impact on energy prices 

of speculation on commodity futures markets, including particularly the price impact of trading 

by swap dealers and index funds. Alternatively, many other witnesses expressed the view that 

fundamental market conditions were the primary driver of prices.

In addition, a total of 5,281 

42 The Task Force included staff representatives from the Departments of Agriculture, Energy 

and the Treasury, the Board of Governors of the Federal Reserve, the Federal Trade 

Commission, and the Securities and Exchange Commission. The Task Force looked at the crude 

oil market between January 2003 and June 2008. The staff members of the various agencies did 

not find direct causal evidence for the general increase in oil prices between January 2003 and 

June 2008. Interagency Task Force on Commodity Markets, Interim Report on Crude Oil (July 

22, 2008). 

43 Commodity Futures Trading Commission, “CFTC to Hold Three Open Hearings to Discuss 

Energy Position Limits and Hedge Exemptions,” CFTC Release 5681-09 (July 21, 2009).

44 See the following Commission Releases for a listing of agendas and witnesses and related 

links:

5681-09 (July 21, 2009) http://www.cftc.gov/newsroom/generalpressreleases/2009/pr5681-

09.html;

5682-09 (July 27, 2009) http://www.cftc.gov/newsroom/generalpressreleases/2009/pr5682-

09.html; and

5685-09 (July 31, 2009) http://www.cftc.gov/newsroom/generalpressreleases/2009/pr5685-

09.html.
18

email comments were received (including some 1,200 identical emails from a single 

commenter).45

As with the Congressional hearings and market studies, there were mixed opinions 

among the Energy Hearing participants as to the causes of the price rises and market volatility. 

With respect to position limits for energy commodities, a number of witnesses expressed concern 

over the impact on energy prices of excessive speculation and supported position limits.

 

46 

Others cautioned that such limits could be ineffective, hurt market liquidity or distort the price 

discovery process if not properly constructed.47

As discussed above, section 4a(a) represents an explicit Congressional finding that 

extreme or abrupt price fluctuations attributable to unchecked speculative positions are harmful 

to the futures markets and that position limits can be an effective prophylactic regulatory tool to 

diminish, eliminate or prevent such activity. Accordingly, Congress charged the Commission 

 45 Persons wishing to review these comments may contact the Commission’s Secretariat at 

secretary@cftc.gov.

46 “This increase in volatility has been associated with a massive increase in speculative 

investment in oil futures.” Ben Hirst, Senior Vice President and General Counsel for Delta 

Airlines; “...[S]peculative trading strategies may not always have a benign effect on the 

markets.” Laura Campbell, Assistant Manager of Energy Resources, Memphis Light, Gas & 

Water, on behalf of The American Public Gas Association; “That ability [to hedge heating fuel 

costs], however, is now being undermined by an erratic market, questionable investment tactics 

and purely speculative market forces.” Sean Cota, President, Cota & Cota, Inc. Hearings on 

Energy Position Limits and Hedge Exemptions, July 28, July 29 and August 5, 2009, at the 

Commodity Futures Trading Commission.

47 “If [limits] are set too tight, traders who possess important market information and provide 

crucial liquidity are kept away.” Todd E. Petzel. Chief Investment Officer, Offit Capital 

Advisors; “Simply eliminating or limiting swap dealer hedge exemptions will impair liquidity, 

have other unintended consequences and would very likely not achieve the stated objective.” 

Donald Casturo, Managing Director, Goldman Sachs & Co.; “Position limits no matter how well 

meaning create real market migration risk and pushing price discovery of agricultural, energy or 

metals markets to overseas or other trading venues would be contrary to the purposes of the 

Act.” Mark D. Young, Kirkland & Ellis LLP. Hearings on Energy Position Limits and Hedge 

Exemptions, July 28, July 29 and August 5, 2009, at the Commodity Futures Trading 

Commission.
19

with responsibility for setting contract position limits in any commodity to prevent or minimize 

extreme or abrupt price movements resulting from large or concentrated positions. Under the 

authority granted to it, the Commission may impose speculative position limits without finding 

an extant undue burden on interstate commerce resulting from excessive speculation.48

Large concentrated positions in the energy futures and option markets can potentially 

facilitate abrupt price movements and price distortions. The prevention of unreasonable and 

abrupt price movements that are attributable to large or concentrated speculative positions is a 

congressionally endorsed regulatory objective. This objective is furthered by position limits, 

particularly given that the capacity of any reporting market to absorb the establishment and 

liquidation of large speculative positions in an orderly manner is related to the relative size of 

such positions and is not unlimited. Specifically, when large speculative positions are amassed 

in a contract, or contract month, the potential exists for unreasonable and abrupt price 

movements should the positions be traded out of or liquidated in a disorderly manner. 

Concentration of large positions in one or a few traders’ accounts can also create the 

unwarranted appearance of appreciable liquidity and market depth. Trading under such 

conditions can result in greater volatility than would otherwise prevail if traders’ positions were 

more evenly distributed among market participants. 

 Section 

8a(5) of the Act also provides that the Commission may make and promulgate such rules and 

regulations that in its judgment are reasonably necessary to accomplish any of the purposes of 

the Act. 

 

48 Moreover, the exchanges’ independent responsibility to monitor trading and implement 

position limits and position accountability rules does not detract from or otherwise impair the 

Commission’s broad authority to impose speculative limits.
20

Furthermore, concurrent trading in economically similar and equivalent energy futures 

and option contracts on multiple exchanges effectively creates a single but fragmented market 

for such contracts. Because individual exchanges have knowledge of positions only on their own 

trading facilities, it is difficult for them to assess the full impact of a trader’s positions on the 

greater market. As such, monitoring and limiting positions through exchange-specific position 

limits and through the enforcement of exchange position accountability rules, though necessary 

and beneficial, may not sufficiently guard against potential market disruptions. 

For these reasons, the Commission is proposing to establish reporting market-specific 

Federal speculative position limits for futures and option contracts in certain energy commodities

and aggregate position limits that would apply across economically similar contracts, regardless 

of whether such contracts are listed on a single or on multiple reporting markets, to curb the 

impact of disruptive excessive speculation.

IV. Exemptions and Account Aggregation

The Commission’s current regulatory framework for Federal speculative position limits 

consists of three elements, (i) the levels of the Commission-set speculative position limits

(discussed above), (ii) certain exemptions from the limits (e.g., for hedging, spreading or 

arbitraged positions), and (iii) the policy on aggregating related accounts for purposes of 

applying the limits. 

Commission regulation 150.3, headed “Exemptions,” lists certain types of positions that 

may be exempted from (and thus may exceed) the Federal speculative position limits delineated 

in regulation 150.2. In particular, under regulation 150.3(a)(1), bona fide hedging transactions, 

as defined in Commission regulation 1.3(z), may exceed Commission-set position limits.49

 49 Commission regulation 1.3(z) provides:

 The 
21

 

“Bona fide hedging transactions and positions – (1) General definition. Bona fide hedging 

transactions and positions shall mean transactions or positions in a contract for future delivery on 

any contract market, or in a commodity option, where such transactions or positions normally 

represent a substitute for transactions to be made or positions to be taken at a later time in a 

physical marketing channel, and where they are economically appropriate to the reduction of 

risks in the conduct and management of a commercial enterprise, and where they arise from:

(i) The potential change in the value of assets which a person owns, produces, manufactures, 

processes, or merchandises or anticipates owning, producing, manufacturing, processing, or 

merchandising,

(ii) The potential change in the value of liabilities which a person owns or anticipates incurring, 

or

(iii) The potential change in the value of services which a person provides, purchases, or 

anticipates providing or purchasing.

Notwithstanding the foregoing, no transactions or positions shall be classified as bona fide

hedging unless their purpose is to offset price risks incidental to commercial cash or spot 

operations and such positions are established and liquidated in an orderly manner in accordance 

with sound commercial practices and, for transactions or positions on contract markets subject to 

trading and position limits in effect pursuant to section 4a of the Act, unless the provisions of 

paragraphs (z) (2) and (3) of this section and §§1.47 and 1.48 of the regulations have been 

satisfied.

(2) Enumerated hedging transactions. The definitions of bona fide hedging transactions and 

positions in paragraph 

(z)(1) of this section includes, but is not limited to, the following specific transactions and 

positions:

(i) Sales of any commodity for future delivery on a contract market which do not exceed in 

quantity:

(A) Ownership or fixed-price purchase of the same cash commodity by the same person; and

(B) Twelve months' unsold anticipated production of the same commodity by the same person 

provided that no such position is maintained in any future during the five last trading days of that 

future.

(ii) Purchases of any commodity for future delivery on a contract market which do not exceed in 

quantity.

(A) The fixed-price sale of the same cash commodity by the same person;
22

first two parts of the bona fide hedging definition include a general definition of bona fide

hedging (see paragraph (z)(1)) and a listing of certain enumerated hedging transactions in the

agricultural commodities that are currently subject to Federal position limits (see paragraph 

(z)(2)). Paragraph (z)(3) of the definition provides flexibility to the Commission in granting 

exemptions by permitting additional transactions to be recognized as bona fide hedging upon a 

trader’s request, made in accordance with the application provisions of Commission regulation 

1.47. Regulation 1.47 requires a person seeking a bona fide hedge exemption under regulation 

1.3(z)(3) to provide the Commission with various information that will, among other things, 

 

(B) The quantity equivalent of fixed-price sales of the cash products and by-products of such 

commodity by the same person; and

(C) Twelve months' unfilled anticipated requirements of the same cash commodity for 

processing, manufacturing, or feeding by the same person, provided that such transactions and 

positions in the five last trading days of any one future do not exceed the person's unfilled 

anticipated requirements of the same cash commodity for that month and for the next succeeding 

month.

(iii) Offsetting sales and purchases for future delivery on a contract market which do not exceed 

in quantity that amount of the same cash commodity which has been bought and sold by the 

same person at unfixed prices basis different delivery months of the contract market, provided 

that no such position is maintained in any future during the five last trading days of that future.

(iv) Sales and purchases for future delivery described in paragraphs (z)(2)(i), (ii), and (iii) of this 

section may also be offset other than by the same quantity of the same cash commodity, provided 

that the fluctuations in value of the position for future delivery are substantially related to the 

fluctuations in value of the actual or anticipated cash position, and provided that the positions in 

any one future shall not be maintained during the five last trading days of that future.

(3) Non-enumerated cases. Upon specific request made in accordance with §1.47 of the 

regulations, the Commission may recognize transactions and positions other than those 

enumerated in paragraph (z)(2) of this section as bona fide hedging in such amount and under 

such terms and conditions as it may specify in accordance with the provisions of §1.47. Such 

transactions and positions may include, but are not limited to, purchases or sales for future 

delivery on any contract market by an agent who does not own or who has not contracted to sell 

or purchase the offsetting cash commodity at a fixed price, provided that the person is 

responsible for the merchandising of the cash position which is being offset.” 17 CFR 1.3(z).
23

“demonstrate that the purchases and sales are economically appropriate to the reduction of risk 

exposure attendant to the conduct and management of a commercial enterprise.”50

In addition to regulation 150.3(a)(1)’s bona fide hedging exemption, regulation 150.3(a) 

includes two other exemptions from the Federal speculative position limits. Regulation 

150.3(a)(3) exempts “spread or arbitrage positions between single months of a futures contract 

... outside of the spot-month, in the same crop year ...” Subject to various conditions, regulation 

150.3(a)(4) exempts positions “[c]arried for an eligible entity as defined in regulation 150.1(d), 

in the separate account or accounts of an independent account controller, as defined in regulation 

150.1(e) ...” Eligible entities include mutual funds, commodity pool operators and commodity 

trading advisors. Entities claiming this exemption are required, upon call by the Commission, to 

provide information supporting their claim that the account controllers for these positions are 

acting independently.

 

Also, in order to achieve the intended effect of the Federal speculative position limits, 

Commission regulation 150.4, headed “Aggregation of positions,” requires the Commission and 

the exchanges to treat multiple accounts subject to common ownership or control as if they are 

held by a single trader. Such accounts are typically considered to be under a common ownership 

if one or more traders have a 10% or greater financial interest in the accounts and do not 

otherwise qualify for an exemption from aggregation, such as the independent account controller 

exemption discussed above. The aggregation standards are applied in a manner calculated to 

aggregate related positions. For example, each participant with a 10% or greater financial 

interest in an account must aggregate the entire position of that account – not just the 

participant’s fractional share – together with other positions that the participant may 

 

50 17 CFR 1.47(b)(2).
24

independently hold. Likewise, a commodity futures or option contract pool comprised of many 

traders is allowed only to hold positions as if it were a single trader. The Commission also treats 

positions that are not commonly owned, but are traded pursuant to an express or implied 

agreement, as a single aggregated position for purposes of applying the Federal speculative 

position limits. Exceptions to the aggregation standards exist for certain pool participants, such 

as limited partners and shareholders that cannot exercise control over the positions of the pool. 

V. Bona Fide Hedge Exemptions

Prior to 1974, the CEA included a limited statutory hedging definition that applied only 

to agricultural commodities. When the Commission was created in 1974, the Act’s definition of 

commodity was expanded. At that time, Congress was concerned that the limited hedging

definition, even if applied to newly regulated commodity futures, would fail to accommodate the 

commercial risk management needs of market participants that could emerge over time. 

Accordingly, Congress, in section 404 of the Commodity Futures Trading Commission Act of 

1974, repealed the statutory definition and gave the Commission the authority to define bona fide

hedging.

The Commission exercised this authority in 1977 by adopting regulations 1.3(z) and 

1.47.

51 Those regulations have remained unchanged since 1977. By the mid 1980s, new 

concerns had emerged. Under the Commission’s definition, bona fide hedge transactions 

“normally represent a substitute for transactions to be made or positions to be taken at a later 

time in a physical marketing channel,” and are “economically appropriate to the reduction of 

risks in the conduct of a commercial enterprise.”52

 

51 42 FR 42748 (August 24, 1977).

 This aspect of the hedging definition proved 

to be ill fitted to the economic realities of financial futures. Portfolio managers utilize the

52 17 CFR 1.3(z)(1).
25

financial futures markets to add incremental income to managed assets, to manage overall risk, 

or to rebalance a portfolio. Indeed, futures market positions are often acquired entirely as an 

alternative to cash market transactions (in view of the 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. 

In 1986, in response to concerns raised in testimony regarding the constraints 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 reexamine its approach to speculative position limits and its definition of 

hedging.53 Specifically, the Committee 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 

...”54

 

53 House Committee on Agriculture, Futures Trading Act of 1986, H.R. Rep. No. 624, 99th

Cong., 2d Sess. 44-46 (1986).

 The Committee Report singled out four categories of trading and positions that the 

Commission should recognize as non-speculative: (i) “risk management” trading by portfolio 

managers as an alternative to the concept of “risk reduction;” (ii) futures positions taken as 

alternatives to, rather than as temporary substitutes for, cash market positions; (iii) other 

positions acquired to implement 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 assets and 

liabilities to ensure that portfolio assets will be sufficient to fund the payment of liabilities), and 

54 Id. at 46.
26

portfolio duration (altering the average maturity of a portfolio’s assets); and (iv) certain options 

trading, in particular the writing of covered puts and calls.55

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

CFTC reauthorization legislation, also directed the Commission to reassess its interpretation of 

bona fide hedging.56 The Commission heeded Congress’s recommendation, and its staff issued 

interpretive statements directing that risk management exemptions be included as speculative 

position limit exemptions in addition to the existing exemptions for hedging, arbitrage and 

spreading.57

The next significant change in trading patterns and practices in derivatives markets 

involved an influx of new traders into the market seeking exposure to commodities as an asset 

class through passive, long-term investment in commodity indexes as a way of diversifying 

portfolios that might otherwise be limited to equities and debt instruments.

 The interpretive statements recognized new types of “risk reducing” and “risk 

shifting” strategies in financial futures (including “dynamic asset allocation strategies”) as falling 

within the bona fide hedging category. 

58

 

55 Id.

 New market 

participants included commodity index traders (including pension and endowment funds, as well 

as individual investors participating in commodity index-based funds or trading programs) and

56 Senate Committee on Agriculture, Nutrition and Forestry, Futures Trading Act of 1986, S. 

Rep. No. 291, 99th Cong., 2d Sess. at 21-22 (1986). Specifically, the Senate Committee directed 

the Commission to consider “whether the concept of prudent risk management [should] be 

incorporated in the general definition of hedging as an alternative to this risk reduction 

standard.” Id., at 22.

57 See, Clarification of Certain Aspect of the Hedging Definition, 52 FR 27195 (July 20, 1987); 

Risk Management Exemptions from Speculative Position Limits Approved under Commission 

Regulation 1.61, 52 FR 34633 (September 14, 1987).

58 The argument has also been made that commodities act as a general hedge of liability 

obligations that are linked to inflation.
27

swap dealers seeking to hedge price risk from OTC trading activity (frequently opposite those 

same commodity index traders).

The development of the OTC swaps industry, over which the Commission generally has 

no regulatory authority, is related to the exchange-traded futures and options industry in that a 

swap agreement59 can either compete with or complement regulated commodity futures and 

options trading.

60 Market participants often enter into OTC swap agreements because, unlike 

more standardized futures contracts, they can be customized to match particular hedging or price 

exposure needs. Swap dealers, often affiliated with a bank or other large financial institution, act 

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

seeking to gain price exposure. Swap dealers, in turn, utilize the more standardized futures 

markets to manage the residual risk of their swaps book.

61

In accordance with the above-discussed Congressional recommendations, market 

developments, and the Commission’s recognition of a risk management exemption for financial 

futures, beginning in 1991, the Commission staff extended the concept of risk management 

exemptions from speculative position limits by granting bona fide hedge exemptions, in various 

agricultural futures markets subject to Federal speculative position limits, to a number of swap 

dealers who were seeking to manage price risks on their books arising from swap dealing 

 In addition, some swap dealers also 

deal directly in the merchandising of physical commodities.

 

59 A swap agreement is typically a privately negotiated exchange of one asset or cash flow for 

another asset or cash flow. In a commodity swap, at least one of the assets or cash flows is 

related to the price of one or more commodities.

60 The bilateral contracts that swap dealers create can vary widely, from terms tailored to meet 

the needs of a specific customer, to relatively standardized contracts.

61 Because swap agreements can be highly customized, and the liquidity for a particular swap 

contract can be low, swap dealers may also use other swap agreements and physical market 

positions, in addition to futures, to offset the residual risks of their swap book. 
28

activities. The first such hedge exemption involved J. Aron, a large commodity merchandising 

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

firm, through an affiliate, wished to enter into an OTC swap transaction with a qualified 

counterparty (a large pension fund) involving an index based on the returns afforded by 

investments in exchange-traded futures contracts on certain non-financial commodities meeting 

specified criteria.62

The futures positions J. Aron required to cover its exposure on the swap agreement’s 

agricultural component would have been in excess of certain Federal speculative position limits. 

Accordingly, the firm requested, and the staff granted, a hedge exemption for those futures 

positions, that offset risks directly related to the OTC swap transaction.

 The commodities making up the index included contracts in certain 

agricultural commodities subject to Federal speculative position limits. As a result of the swap, 

J. Aron would have, in effect, been going short the index. In order to protect itself against this 

risk, the firm planned to establish a portfolio of long futures positions in the commodities making 

up the index, in such amounts as would replicate its exposure under the swap transaction. By 

design, the index did not include contract months that had entered the delivery period and J. 

Aron, in replicating the index, stated that it would not maintain futures positions based on indexrelated swap activity into the spot month (when physical commodity markets are most vulnerable 

to manipulation and attendant price fluctuations). With this risk mitigation strategy, the firm’s 

composite return on its futures portfolio would have offset the net payments that the dealer 

would have been required to make to the pension fund counterparty.

 

62 The commodities comprising such indexes may include the agricultural commodities subject 

to Federal speculative position limits, as well as energy commodities, metals and world 

agricultural commodities (e.g., coffee, sugar, and cocoa).
29

Subsequently, the Commission staff granted a number of similar hedge exemptions, 

pursuant to delegated authority, in other cases where the futures positions clearly offset risks 

related to swap agreements or similar OTC positions involving both individual commodities and 

commodity indexes. These non-traditional “hedges” were all subject to specific limitations to 

protect the marketplace from potential ill effects. The limitations required: (i) the futures 

positions to offset specific price risk; (ii) the dollar value of the futures positions to be no greater 

than the dollar value of the underlying risk; and (iii) the futures positions to not be carried into 

the spot-month.

63

In 2006, Commission staff issued two no-action letters involving another type of indexbased trading.64

 

63 72 FR 66097, at 66099 (November 27, 2007).

 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 differed from the futures positions taken by the swap dealers who 

had earlier received exemptions. The swap dealer positions were taken to offset OTC swaps 

exposure that was directly linked to the price of an index. For that reason, Commission staff 

granted hedge exemptions to those swap dealer positions. On the other hand, in the index fund 

positions described in the no-action letters, the price exposure resulted from a promise or 

obligation to track an index, rather than from holding an OTC swap position whose value was

directly linked to the price of an index. Commission staff believed that this difference was 

significant enough that the index fund positions would not qualify for a hedge exemption. 

Nevertheless, 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 

64 CFTC Letter 06-09 (April 19, 2006); CFTC Letter 06-19 (September 6, 2006).
30

required: (i) the positions to be passively managed; (ii) the positions to be unleveraged (so that 

financial conditions should not trigger rapid liquidations); and (iii) the positions to not be carried 

into the delivery month.

Prompted by concerns regarding the growing market presence of swap dealers and 

commodity index traders who use futures markets to manage risks related to OTC trading 

activity, in June and July of 2008, CFTC staff issued a special call for information from swap 

dealers and index traders. Based upon information collected from its special call, the 

Commission published on September 11, 2008, a “Staff Report on Commodity Swap Dealers 

and Index Traders with Commission Recommendations” (the “September 2008 Report”). Most 

relevant to the Commission’s proposed rulemaking is the Report’s recommendation that the 

Commission consider the elimination of bona fide hedge exemptions for swap dealers and the 

creation of a new, limited risk management exemption for the activities of swap dealers and 

commodity index traders.

65

 

65 The Report also made a number of other recommendations for Commission action, including: 

(1) Removing swap dealers from the commercial category in the Commitments of Traders 

Reports (“COT Reports”) and creating a new swap dealer classification for reporting purposes; 

(2) Developing and publishing a new periodic supplemental report based on OTC swap dealer 

activity; (3) Creating a new CFTC Office of Data Collection dedicated to the collection and 

publication of COT Report data; (4) Establishing more detailed reporting standards for large 

traders; and (5) Conducting a review of swap dealers’ futures trading activity to ensure that it is 

sufficiently independent of any affiliated commodity research. The Commission has largely 

addressed the Report’s recommendations regarding COT Reports. The Commission has been 

publishing a new Disaggregated COT Report (“DCOT Report”) for twenty-two different 

physical commodity markets since September 4, 2009 and expanded the DCOT Report to the 

remaining physical markets on December 4, 2009. The Commission also began publishing on 

September 4, 2009 a new quarterly report of Index Investment Data which shows for swap 

dealers and index funds their index investments in commodity markets in terms of notional 

values and equivalent futures positions. The Commission continues to study the viability of the 

September 2008 Report’s other recommendations regarding the creation of an Office of Data 

Collection, the establishment of more detailed reporting standards for large traders and a review 

of the relation of swap dealers’ futures trading and commodity research activities. September 

2008 Report, at 6.

 
31

In March of 2009, the Commission published a “Concept Release on Whether to 

Eliminate the Bona Fide Hedge Exemption for Certain Swap Dealers and Create a New Limited 

Risk Management Exemption from Speculative Position Limits.”66

In response, the Commission received letters from 30 commenters, including futures 

exchanges, agricultural trade associations, financial industry trade associations, money 

management firms (including swap dealers), other market participants and various other 

interested parties. The comments were about equally divided between those who favored 

eliminating the bona fide hedge exemption for swap dealers (or restricting the exemption to 

positions offsetting swap dealers’ exposure to traditional commercial market users) and those 

who favored retaining the swap dealer hedge exemption in its current form, or some variation 

thereof.

 The concept release 

reviewed the underlying statutory and regulatory background, as well as relevant regulatory 

history and marketplace developments, and posed a number of questions designed to help inform 

the Commission’s decision as to: (i) whether to proceed with the recommendation to eliminate 

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

management exemption; and (ii) if so, what form the new limited risk management exemptive 

regulations should take and how they might be implemented most effectively.

67 Similar views on hedge exemptions were also expressed at the Commission’s Energy 

Hearings in July and August 2009.

68

 

66 74 FR 12282 (March 24, 2009).

 As discussed below, the proposed regulations would not 

67 The comments are available for review on the Commission’s website at 

http://www.cftc.gov/lawandregulation/federalregister/federalregistercomments/2009/09-

004.html.

68 Also in August 2009, Commission staff withdrew CFTC Letters 06-09 and 06-19, which had 

granted staff no-action relief to two index funds (with passively managed positions) from 

complying with the Federal speculative position limits otherwise applicable to futures and option 

contracts in wheat, corn and soybeans. 
32

recognize futures and option transactions offsetting exposure acquired pursuant to swap dealing 

activity as bona fide hedges. Accordingly, swap dealers would not be allowed to seek bona fide

hedge exemptions for such positions. Instead, however, upon compliance with several 

conditions including reporting and disclosure obligations, the proposed regulations would allow 

swap dealers to seek a limited exemption from the proposed speculative position limits for the 

major energy contracts.

VI. The Proposed Regulations

A. Overview

The proposed regulations seek to implement an integrated speculative position limit 

framework for exchange listed natural gas, crude oil, heating oil, and gasoline futures and option 

contracts. In addition to identifying the affected energy contracts with particularity, the proposed 

regulations would establish aggregate and exchange-specific speculative position limits, 

including provisions relating to exemptions from the proposed limits and related application and 

reporting requirements. The proposed regulations provide position limit exemptions for bona 

fide hedging transactions, certain swap dealer risk management transactions, and positions that 

remain, in their totality, in compliance with the applicable limits once option contracts that

comprise a portion of a trader’s overall position are delta-adjusted by a demonstrably appropriate 

risk factor. The proposed regulations key the setting of position limits to deliverable supplies 

and open interest. In addition, they seek to apply position limits to a set of readily identifiable 

contracts. By doing so, the proposed regulations intend to establish an objective and 

administerial process for fixing specific position limits and identifying the contracts to which 

they apply without relying on the Commission’s exercise of discretion.
33

As discussed in detail below, the proposed spot-month limits generally are a function of 

the estimated deliverable supply for physically-settled contracts. The logic behind limiting 

positions based on deliverable supply is readily apparent since, for example, traders with 

sufficiently large positions can squeeze shorts and thereby distort the price of the deliverable 

commodity. In contrast, the proposed (non-spot) single-month and all-months-combined 

position limits would limit positions to a specific percentage of overall trading activity as 

represented by open interest. As such, the link between open interest and the proposed non-spotmonth position limits may not be as readily apparent as the link between spot-month limits and 

estimated deliverable supply. 

To illustrate how a formula based on open interest would restrict the ability of any single 

trader to disrupt market operations through the acquisition and liquidation of large speculative 

positions, it may be helpful to consider a framework in which there are no exemptions from 

position limits and there exists a single contract with an open interest level of 1,000 contracts.

With these simplifications in place, a position limit that is set at 10% of open interest, given an 

assumed open interest level of 1,000 contracts, would be 100 contracts (i.e., 10% of 1,000 

contracts). Thus, the position limit, at the assumed open interest level of 1,000 contracts, would 

mean that there must, at a minimum, be 10 independent long and 10 independent short traders.69

 

69 The concept of independence is important because the positions of a group of traders acting 

pursuant to a common plan would be aggregated as if the positions were traded by a single 

person.

 

If there were 9 traders on either side of the market, then at least one trader would necessarily 

hold more than 100 contracts. That trader would hold such positions in violation of the 

contract’s position limit. 
34

Alternatively, if the position limit is set at a lower percentage of the contract’s assumed 

open interest level of 1,000 contracts, then the minimum number of independent traders needed 

as market participants would be higher. For example, a position limit that is set at 2.5% of the 

assumed open interest level of 1,000 contracts would be 25 contracts (i.e., 2.5% of 1,000 

contracts). Accordingly, the minimum “size of the trading crowd” under this scenario would be 

40 long and 40 short traders (40 traders each with 25 contract positions would equal the given 

open interest level of 1,000 contracts). Therefore, position limits that are formulaically set as a 

percentage of open interest can prevent any single trader from acquiring excessive market power 

if structured properly as one part of a comprehensive speculative position limit framework. 

B. Identifying Referenced Energy Contracts

As proposed, the speculative position limits would apply only to referenced energy 

contracts. Proposed regulation 151.1 defines referenced energy contracts to mean one of four 

enumerated contracts – the NYMEX Henry Hub natural gas contract, the NYMEX Light Sweet 

crude oil contract, the NYMEX New York Harbor No. 2 heating oil contract, and the NYMEX 

New York Harbor gasoline blendstock (RBOB) contract – and in addition, any other contract 

that is exclusively or partially based on the referenced contracts’ commodities and deliverable at 

locations specified in the proposed regulations. Basis contracts and diversified commodity index

futures that are based on such contracts’ commodities, however, would not be considered to be 

referenced energy contracts and, therefore, would not be subject to the proposed speculative 

position limits. 

Basis contracts, as defined in proposed regulation 151.1, are futures or option contracts 

that are cash settled based on the difference in price of the same commodity (or substantially the 
35

same commodity)70 at different delivery points. These basis contracts have been excluded by the 

Commission from the speculative position limits because they price the difference between the 

same commodity in two different locations and not the underlying commodity itself.

71 Similarly, 

contracts based on diversified commodity indexes, defined in proposed regulation 151.1 as 

commodity indexes that are comprised of contracts in energy as well as non-energy 

commodities, are excluded because they may not involve a separate and distinct exposure to the 

price of a referenced energy contract’s commodity.72

C. Determining Aggregate All-Months-Combined and Single-Month Position Limits

 

The current Federal speculative position limits of regulation 150.2 apply only to specific 

futures contracts (and on a futures-equivalent basis) specific option contracts. Historically, all 

trading volume in a specific contract tended to migrate to a single contract on a single exchange. 

Consequently, speculative position limits that applied to a single contract and options thereon

effectively applied to a single market. The current speculative position limits of regulation 150.2 

for certain agricultural contracts follow this approach. 

In 2005, when the Commission last amended the agricultural speculative position limits 

of regulation 150.2, it codified the Commission’s practice of grouping positions in a limited set 

of contracts on the same exchange with substantially identical terms for the purpose of applying 

 

70 A commodity may be considered “substantially the same,” for instance, if it is of the same 

grade and quality. If a commodity meets an underlying referenced energy contract’s deliverable 

grade and quality specifications, then such commodity presumptively is substantially similar. 

71 It should also be noted that, although a grade may be substantially similar to a referenced 

energy contract’s commodity, this is not sufficient to render a futures or option contract a 

referenced energy contract. In order to be included as a referenced energy contract, a 

substantially similar commodity must also be deliverable at a referenced energy contract’s 

delivery point(s). 

72 Examples of diversified commodity indexes include the S&P/Goldman Sachs Commodity 

Index, the Thomson Reuters/Jefferies CRB Index and the Dow Jones–UBS Commodity Index. 
36

the Federal agricultural speculative position limits.73 This limited grouping of positions 

extended only to regular and mini-sized contracts on the same exchange, such as the CBOT Corn 

and Mini-Corn futures contracts, and did not extend to contracts that were cash settled to 

physically delivered contracts. At that time and subsequently in 2007 (in a notice of proposed 

rulemaking that was subsequently withdrawn), the Commission considered but refrained from 

adopting additional position grouping requirements for the agricultural contracts enumerated in 

regulation 150.2.74

With the advent of look-alike energy contracts that are listed on different registered 

entities and contracts that are based on other contracts in an attempt to isolate different energy 

price risks, most prominently contracts traded at NYMEX and ICE, applying a speculative 

position to a specific energy contract, and its smaller sized counterpart, if any, without 

consideration of other directly or highly related contracts could result in applying a position limit 

only to a very limited segment of a broader regulated market. Accordingly, the proposed 

regulations would, for positions outside the spot month, apply the proposed Federal speculative 

position limits aggregately on and across reporting markets to capture a broader segment of the 

open interest that comprises the market for the referenced energy contracts.

 

Proposed regulation 151.2(b)(1) would establish aggregate all-months-combined and 

single-month speculative limits for positions held outside the spot month. The proposed 

framework premises its limits on open interest levels, and would establish speculative position 

limits aggregately, that is, across contracts of different classes on a single exchange and across 

all reporting markets listing the same referenced energy contracts. As defined in proposed 

 

73 70 FR 24705 (May 11, 2005).

74 See, 70 FR 12621 (March 15, 2005); 72 FR 65483 (November 21, 2007)
37

regulation 151.1, contracts of the same class outside of the spot month include all referenced 

energy contracts (including option contracts on a futures-equivalent basis) on a single reporting 

market that are based on the same commodity and settled in the same manner. As proposed, 

NYMEX’s crude oil financial calendar spread option, last day financial futures and options 

thereon, and light sweet crude oil e-mini contracts, as cash-settled NYMEX contracts, would all 

be grouped together as contracts of the same class. NYMEX’s physically-settled light sweet 

crude oil contract, however, would be in a different class because the contract is physicallysettled as opposed to being a financial futures contract like the contracts listed above. Similarly, 

ICE’s natural gas SPDC, although financially-settled and related to NYMEX’s natural gas 

contracts, would be in a different class because it is on a different exchange. As discussed more 

fully below, categorizing the referenced energy contracts in this manner allows for the 

application of aggregate and class-specific speculative position limits and permits for the netting 

of positions as appropriate.

In fixing aggregate all-months-combined and single-month position limits across contract 

classes, that is, for related contracts of different classes on and across the exchanges, the 

Commission would initially identify the referenced energy contracts that are based on the same 

commodity but that constitute a distinct class of contracts because, for example, they are cashsettled as opposed to physically-settled, or because they are listed on different reporting markets. 

The Commission next would calculate each class’s average combined futures and delta-adjusted 

option month-end open interest for all months listed on a reporting market during the most recent 

calendar year as the first reference point (“class single-exchange gross open interest value”). 

The proposed regulations would subtract the open interest generated from spread 

contracts, as defined in regulation 151.1, from the class single-exchange gross open interest 
38

value to arrive at a “class single-exchange final open interest value.” Proposed regulation 151.1 

would define spread contracts as either a calendar spread contract or an inter-commodity spread 

contract.75

 

75 More specifically, proposed regulation 151.1 defines “calendar spread contracts” as contracts 

that are settled based on the difference between the settlement prices in one expiring month of a 

referenced energy contract and another month’s settlement price for the same referenced energy 

contract. The proposed regulations would define “inter-commodity spread” contracts as 

contracts that are based on the price difference between the settlement price of a referenced 

energy contract and another commodity contract. An example of a calendar spread contract is 

the NYMEX Crude Oil Calendar Spread Financially Settled Option Contract (WA). This 

contract represents an option to assume positions in two different NYMEX Light Sweet crude oil 

futures contracts distinguished by opposite positions in different delivery months. An example 

of an inter-commodity spread representing the price difference between two referenced 

commodities would be the NYMEX heating oil crack spread swap futures (HK) contract, which 

represents the price difference between two referenced energy contracts, the NYMEX New York 

Harbor No. 2 heating oil futures settlement price minus the NYMEX Light Sweet crude oil 

futures settlement price. A different example of an inter-commodity spread would be the 

NYMEX Mars (Argus) vs. WTI spread calendar swap (YX) which represents the Mars midpoint 

price from Argus Media minus the NYMEX Light Sweet crude oil futures first nearby contract 

month settlement price.

 Open interest generated from spread contracts, as defined in proposed regulation 

151.1, is not included in the class single-exchange final open interest value because spread 

contracts may be indicative of nominal commodity price exposures. Traders on both sides of 

spread contracts, as defined by the proposed regulations, hold a single position composed of two 

highly correlated legs. Therefore, open interest from such contracts may be excluded from the 

base open interest value that is used to calculate speculative position limits. Although excluded 

from the class single-exchange final open interest value that, as discussed below, is used to set 

the aggregate all-months-combined and single-month position limits, such contracts, unlike basis 

contracts and contracts based on diversified commodity indexes, are nonetheless referenced 

energy contracts and therefore are attributable to traders for the purposes of determining a 

trader’s compliance with, for example, the proposed single-month speculative position limits.
39

The following table lists the contracts, grouped by class, which would be used to 

determine a class’s single-exchange final open interest value as described above: 

Contract List Without Spread 

Contracts

Class of 

Contract Contract Name

Contract 

Code

Spotmonth 

Conversion 

Factor 

Relative to 

Referenced 

Energy 

Contract

Individual 

Month 

Conversion 

Factor 

Relative to 

Referenced 

Energy 

Contract

All Months 

Combined 

Conversion 

Factor 

Relative to 

Referenced 

Energy 

Contract 

Crude 

Oil / 

Physical 

Delivery 

/ 

NYMEX

Light Sweet Crude Oil 

Futures CL 1 1 1 

Light Sweet Crude Oil 

Option LO

0 1 1 

Crude 

Oil / 

CashSettled / 

NYMEX

Crude Oil Financial Futures WS 1 1 1 

Crude Oil Last Day 

Financial Futures 26

1 1 1 

Crude Oil Option on 

Calendar Strip 6F

0 1 12 

Crude Oil Option on 

Quarterly Futures Strip 6E

0 1 3 

Daily Crude Oil Option CD 0 1 1 

E-mini Crude Oil Futures QM 1/2 1/2 1/2 

NYMEX Crude Oil 

Backwardation/Contango 

(B/C) Index XK

0 1/5 1/5 

NYMEX Crude Oil MACI 

Index XC 0 1/5 1/5 

NYMEX Crude Oil MinuteMarker Calendar Month 

Swap Futures 4T

1 1 1 

NYMEX Crude Oil MinuteMarker Futures 6C

1 1 1 

WTI Average Price Option AO 0 1 1 

WTI Calendar Swap Futures CS 1 1 1 

WTI Look-Alike Option LC 0 1 1 
40

Gasoline 

/ 

Physical 

Delivery 

/ 

NYMEX

RBOB Gasoline Futures RB 1 1 1 

RBOB Gasoline Option OB

0 1 1 

Gasoline 

/ Cash-

Settled / 

NYMEX

E-mini RBOB Gasoline 

Futures QU 1/2 1/2 1/2 

NYMEX RBOB Gasoline 

Minute-Marker Calendar 

Month Swap Futures 5T

1 1 1 

NYMEX RBOB Gasoline 

Minute-Marker Futures 6R

1 1 1 

RBOB Gasoline Average 

Price Option RA

1 1 1 

RBOB Gasoline BALMO 

Swap Futures 1D

1 1 1 

RBOB Gasoline Calendar 

Swap Futures RL

1 1 1 

RBOB Gasoline Financial 

Futures RT 1 1 1 

RBOB Gasoline Last Day 

Financial Futures 27 1 1 1 

RBOB Gasoline Look-Alike 

European Option RF 0 1 1 

Heating 

Oil / 

Physical 

Delivery 

/ 

NYMEX

Heating Oil Option OH 0 1 1 

New York Harbor No. 2 

Heating Oil Futures HO

1 1 1 

Heating 

Oil / 

Cash-

Settled / 

NYMEX

E-mini Heating Oil Futures QH 1/2 1/2 1/2 

Heating Oil Average Price 

Option AT

1 1 1 

Heating Oil BALMO Swap 

Futures 1G 1 1 1 

Heating Oil Calendar Swap 

Futures MP

1 1 1 

Heating Oil Financial 

Futures BH 1 1 1 

Heating Oil Last Day 

Financial Futures 23

1 1 1 

Heating Oil Look-Alike 

Option LB 0 1 1 
41

NYMEX Heating Oil 

Minute-Marker Calendar 

Month Swap Futures 7T

1 1 1 

NYMEX Heating Oil 

Minute-Marker Futures 6H

1 1 1 

Natural 

Gas / 

Physical 

Delivery 

/ 

NYMEX

Henry Hub Natural Gas 

Futures NG 1 1 1 

Henry Hub Natural Gas 

Option ON

1 1 1 

Natural 

Gas / 

CashSettled / 

NYMEX

Daily Natural Gas Option KD 0 1 1 

E-mini Henry Hub Natural 

Gas Penultimate Financial 

Futures NP

 1/4 1/4 1/4 

E-mini Natural Gas Futures QG 1/4 1/4 1/4 

Henry Hub Natural Gas Last 

Day Financial Futures HH

1 1 1 

Henry Hub Natural Gas Last 

Day Financial Option E7

1 1 1 

Henry Hub Natural Gas 

Look-Alike Option LN

1 1 1 

Henry Hub Natural Gas 

Penultimate Financial 

Futures HP

1 1 1 

Henry Hub Natural Gas 

Swap Futures NN 1/4 1/4 1/4 

Natural Gas Option on 

Calendar Futures Strip 6J

0 1/4 3 

Natural Gas Option on 

Summer Futures Strip 4D 0 1/4 1 3/4

Natural Gas Option 

on Winter Futures Strip 6I 0 1/4 1 1/4

Natural 

Gas / 

CashSettled / 

ICE Henry Hub Natural Gas 

Swap H 1/4 1/4 1/4 

Once a class single-exchange final open interest value is determined, under the proposed 

regulations, the Commission would sum this value for all related classes on and across all 

reporting markets to arrive at an “aggregated market open interest value” as a third reference 
42

point for each of the four referenced energy contracts. The proposed regulations would establish 

an all-months-combined aggregate position limit that is fixed by the Commission at 10% of the 

aggregated open interest value discussed above, up to 25,000 contracts, with a marginal increase 

of 2.5% thereafter.76

The proposed regulations would set the single-month aggregate position limit at twothirds of the position limit fixed for the all-months-combined aggregate position limit. This 

means that the aggregate all-months-combined position limit level would be 150% of the 

aggregate single-month position limit level. As previously discussed, in 2005 the Commission 

increased the all-months-combined Federal speculative position limits and reset the single-month 

levels to approximate the then existing ratio between all-months-combined and single-month 

levels (i.e., arriving at the single-month limits by setting them at about two-thirds of the relevant 

all-months-combined limits). The proposed regulation’s reliance on this approach for 

determining single non-spot-month limits is therefore consistent with prior Commission 

determinations.

As proposed, the intent of the aggregate position limits is to permit for the netting of 

positions in a referenced energy contract’s different classes on a single exchange and across the 

exchanges for the purpose of determining compliance with the aggregate all-months-combined 

and aggregate single-month speculative position limits. Accordingly, no trader would be 

permitted to hold net long or net short referenced energy contract positions that, when combined 

with net long or net short positions in the same referenced energy contract on another exchange, 

 This proposed formula is similar to the formula provided in current 

regulation 150.5(c). 

 

76 Proposed regulation 151.2(e)(3) provides that the result of the formula is rounded up to the 

nearest one hundred to calculate the level of the limit.
43

would exceed the aggregate all-months-combined and aggregate single-month speculative 

position limits.

D. Single-Exchange Limits

In order to prevent the excessive concentration of positions in a particular class of 

contracts, for each reporting market separately, the proposed regulations would also establish an 

all-months-combined position limit that would apply specifically to contracts of the same class at 

the lower of the aggregate position limit for a referenced energy contract or 30% of a class’s 

single exchange final open interest value. Accordingly, for the purpose of applying these 

exchange and class-specific speculative position limits, netting would only be permitted between 

contracts of the same class. 

For each reporting market separately, the proposed regulations also would establish a 

single-month position limit for contracts of the same class that would be two-thirds of the allmonths-combined position limit fixed for that class of contracts. Thus, the single-month limit on 

each reporting market for a class of contracts would be no greater than 20% of a class’s single 

exchange final open interest value (i.e., two-thirds of 30% of a class’s single exchange final open 

interest value). 

Proposed regulation 151.2 also establishes a minimum position limit for a reporting 

market of 5,000 contracts or 1% of the aggregated open interest value, whichever is greater. The 

Commission notes that the 5,000 contract level is consistent with its guidance on acceptable 

practices for exchanges setting all-months-combined position limits for newly listed energy 

contracts in current regulation 150.5(b)(3). Levels set by reference to the 1% of aggregated open 

interest value and the 5,000 contract limit are intended to give newly listed contracts or contracts 

with low open interest the opportunity to attract liquidity. The concentration of positions held by 
44

a single trader on a particular reporting market, such as a market marker,77

In addition to the above mentioned position limits, as proposed, a trader’s positions in 

contracts of the same class in a single month on a reporting market, measured on a gross basis, 

would be limited to no greater than two times the all-months-combined class position limit fixed 

for that reporting market. A limit on a trader’s gross positions in a single month would serve to 

prevent sudden or unreasonable fluctuations or unwarranted changes in commodity prices that 

could arise from traders holding large positions that would otherwise net out (e.g., offsetting 

positions in last trading day and penultimate contracts of the same class for the same month) for 

the purpose of applying the class single-month position limits

given the minimal 

impact that such trading may have on commodity prices, is acceptable because such levels 

promote innovation and competition. 

The following table groups contracts by the classes in which they would be included 

under the proposed regulations:

Contract List with Spread Contracts

Class of 

Contract Contract Name

Contract 

Code

Spotmonth

Conversion 

Factor 

Relative to 

Referenced 

Energy 

Contract

Individual 

Month 

Conversion 

Factor 

Relative to 

Referenced 

Energy 

Contract

All Months 

Combined 

Conversion 

Factor 

Relative to 

Referenced 

Energy 

Contract 

Crude 

Oil / 

Physical 

Delivery 

/ 

NYMEX

Light Sweet Crude Oil 

Futures CL 1 1 1 

Light Sweet Crude Oil 

Option LO 0 1 1 

Heating Oil Crack Spread 

Option HC -1 -1 -1 

 

77 A market maker is a trader that quotes both a buy and a sell price in an attempt to profit from 

the spread.
45

RBOB Gasoline Crack 

Spread Option RX-1 -1 -1 

WTI Calendar Spread 

Option WA 1 1 0 

Crude 

Oil /

Cash-

Settled / 

NYMEX

Crude Oil Financial 

Calendar Spread Option 7A 1 1 1 

Crude Oil Financial Futures WS 1 1 1 

Crude Oil Last Day 

Financial Futures 26 1 1 1 

Crude Oil Option on 

Calendar Strip 6F 0 1 12 

Crude Oil Option on 

Quarterly Futures Strip 6E 0 1 3 

Daily Crude Oil Option CD 0 1 1 E-mini Crude Oil Futures QM 1/2 1/2 1/2 

Gulf Coast No. 2 (Platts) 

Crack Spread Swap Futures RD-1 -1 -1 

Gulf Coast No. 6 Fuel Oil 

(Platts) Crack Spread Swap 

Futures MG-1 -1 -1 

Gulf Coast ULSD (Argus) 

Crack Spread Swap Futures CF-1 -1 -1 

Gulf Coast ULSD (Platts) 

Crack Spread Swap Futures GY-1 -1 -1 

Gulf Coast Unl 87 (Argus) 

Crack Spread Swap Futures CK-1 -1 -1 

Gulf Coast Unl 87 (Platts) 

Crack Spread BALMO 

Swap Futures 1J-1 -1 -1 

Gulf Coast Unl 87 (Platts) 

Crack Spread Swap Futures RU-1 -1 -1 

Heating Oil Crack Spread 

Average Price Option 3W-1 -1 -1 

Heating Oil Crack Spread 

BALMO Swap Futures 1H-1 -1 -1 

Heating Oil Crack Spread 

Swap Futures HK-1 -1 -1 

Mars (Argus) vs. WTI 

Spread Calendar Swap 

Futures YX-1 -1 -1 

Mars (Argus) vs. WTI 

Spread Trade Month Swap 

Futures YV-1 -1 -1 
46

New York Harbor Residual 

Fuel (Platts) Crack Spread 

Swap Futures ML-1 -1 -1 

New York Ultra Low Sulfur 

Diesel (ULSD) Crack 

Spread Swap YU-1 -1 -1 

NYMEX Crude Oil 

Backwardation/Contango 

(B/C) Index XK 0 1/5 1/5 

NYMEX Crude Oil MACI 

Index XC 0 1/5 1/5 

NYMEX Crude Oil Minute-

Marker Calendar Month 

Swap Futures 4T 1 1 1 

NYMEX Crude Oil Minute-

Marker Futures 6C 1 1 1 

RBOB Gasoline Crack 

Spread Average Price 

Option 3Y-1 -1 -1 

RBOB Gasoline Crack 

Spread BALMO Swap 

Futures 1E-1 -1 -1 

RBOB Gasoline Crack 

Spread Swap Futures RM-1 -1 -1 

WTI Average Price Option AO 0 1 1 

WTI Calendar Swap Futures CS 1 1 1 

WTI Look-Alike Option LC 0 1 1 

WTS (Argus) vs. WTI 

Spread Calendar Swap 

Futures FF-1 -1 -1 

WTS (Argus) vs. WTI 

Spread Trade Month Swap 

Futures FH-1 -1 -1 

Gasoline 

/ 

Physical 

Delivery 

/ 

NYMEX

RBOB Gasoline Futures RB 1 1 1 

RBOB Gasoline Option OB 0 1 1 

RBOB Gasoline Calendar 

Spread Option ZA 1 1 0 

RBOB Gasoline Crack 

Spread Option RX 0 1 1 

Gasoline 

/ Cash-

Settled / 

NYMEX

Chicago Unleaded Gasoline 

(Platts) vs. RBOB Gasoline 

Spread Swap Futures 3C-1 -1 -1 

E-mini RBOB Gasoline 

Futures QU 1/2 1/2 1/2 
47

Group Three Unleaded 

Gasoline (Platts) vs. RBOB 

Spread Swap A8-1 -1 -1 

Gulf Coast Gasoline (OPIS) 

vs. RBOB Gasoline Spread 

Swap Futures 4F-1 -1 -1 

Gulf Coast Unl 87 (Argus) 

Up-Down Swap Futures UZ-1 -1 -1 

Gulf Coast Unl 87 (Platts) 

Up-Down BALMO Swap 

Futures 1K-1 -1 -1 

Gulf Coast Unl 87 (Platts) 

vs. RBOB Gasoline Spread 

Swap Futures RV-1 -1 -1 

Los Angeles CARBOB 

Gasoline (OPIS) Spread 

Swap Futures JL-1 -1 -1 

New York Harbor Conv. 

Gasoline (Platts) vs. RBOB 

Gasoline Swap Futures RZ-1 -1 -1 

NY RBOB (Platts) vs. 

NYMEX RBOB Gasoline 

Spread Swap Futures RI-1 -1 -1 

NYMEX RBOB Gasoline 

Minute-Marker Calendar 

Month Swap Futures 5T 1 1 1 

NYMEX RBOB Gasoline 

Minute-Marker Futures 6R 1 1 1 

RBOB Gasoline Average 

Price Option RA 1 1 1 

RBOB Gasoline BALMO 

Swap Futures 1D 1 1 1 

RBOB Gasoline Calendar 

Swap Futures RL 1 1 1 

RBOB Gasoline Crack 

Spread Average Price 

Option 3Y 1 1 1 

RBOB Gasoline Crack 

Spread BALMO Swap 1E 1 1 1 

RBOB Gasoline Crack 

Spread Swap Futures RM 1 1 1 

RBOB Gasoline Financial 

Futures RT 1 1 1 
48

RBOB Gasoline Last Day 

Financial Futures 27 1 1 1 

RBOB Gasoline Look-Alike 

European Option RF 0 1 1 

RBOB Gasoline vs. Heating 

Oil Swap Futures RH 1 1 1 

Heating 

Oil / 

Physical 

Delivery 

/ 

NYMEX

New York Harbor No. 2 

Heating Oil Futures HO 1 1 1 

Heating Oil Option OH 0 1 1 

Heating Oil Calendar Spread 

Options FA 1 1 0 

Heating Oil Crack Spread 

Option HC 0 1 1 

Heating 

Oil / 

Cash-

Settled / 

NYMEX

Chicago ULSD (Platts) vs. 

Heating Oil Spread Swap 5C-1 -1 -1 

E-mini Heating Oil Futures QH 1/2 1/2 1/2 

Group Three ULSD (Platts) 

vs. Heating Oil Spread Swap 

Futures A6-1 -1 -1 

Gulf Coast Jet (Argus) Up-

Down Swap Futures JU-1 -1 -1 

Gulf Coast Jet (OPIS) vs. 

Heating Oil Spread Swap 

Futures W7-1 -1 -1 

Gulf Coast Jet (Platts) Up-

Down BALMO Swap

Futures 1M-1 -1 -1 

Gulf Coast Jet (Platts) vs. 

Heating Oil Spread Swap 

Futures ME-1 -1 -1 

Gulf Coast Low Sulfur 

Diesel (LSD) (Platts) Up-

Down Spread Swap Futures YL-1 -1 -1 

Gulf Coast ULSD (Argus) 

Up-Down Swap Futures US-1 -1 -1 

Gulf Coast ULSD (OPIS) vs. 

Heating Oil Spread Swap 

Futures 5Q-1 -1 -1 

Gulf Coast ULSD (Platts) 

Up-Down Spread Swap 

Futures LT-1 -1 -1 

Gulf Coast ULSD (Platts) 

Up-Down Swap Futures 1L-1 -1 -1 
49

Heating Oil Arb : NYMEX

Heating Oil vs. ICE Gasoil HA 1 1 1 

Heating Oil Average Price 

Option AT 1 1 1 

Heating Oil BALMO Swap 

Futures 1G 1 1 1 

Heating Oil Calendar Swap 

Futures MP 1 1 1 

Heating Oil Crack Spread 

Average Price Option 3W 1 1 1 

Heating Oil Crack Spread 

BALMO Swap Futures 1H 1 1 1 

Heating Oil Crack Spread 

Swap Futures HK 1 1 1 

Heating Oil Financial 

Futures BH 1 1 1 

Heating Oil Last Day 

Financial Futures 23 1 1 1 

Heating Oil Look-Alike 

Option LB 0 1 1 

Los Angeles CARB Diesel 

(OPIS) Spread Swap Futures KL-1 -1 -1 

Los Angeles Jet (OPIS) 

Spread Swap Futures JS-1 -1 -1 

Los Angeles Jet Fuel (Platts) 

vs. Heating Oil Spread Swap 

Futures MQ-1 -1 -1 

NY Jet Fuel (Argus) vs. 

Heating Oil Spread Swap 

Futures 5U-1 -1 -1 

NY Jet Fuel (Platts) vs. 

Heating Oil Swap Futures 1U-1 -1 -1 

NY ULSD (Platts) vs. 

NYMEX Heating Oil Spread 

Swap Futures UY-1 -1 -1 

NYMEX Heating Oil 

Minute-Marker Calendar 

Month Swap Futures 7T 1 1 1 

NYMEX Heating Oil 

Minute-Marker Futures 6H 1 1 1 

RBOB Gasoline vs. Heating 

Oil Swap Futures RH-1 -1 -1 
50

ULSD (Argus) vs. Heating 

Oil Spread Swap Futures 7Y -1 -1 -1 

Natural 

Gas / 

Physical 

Delivery 

/ 

NYMEX

Henry Hub Natural Gas 

Futures NG 1 1 1 

Henry Hub Natural Gas 

Option ON 1 1 1 

Henry Hub Natural Gas 

Calendar Spread Options IA 1 1 0 

Natural 

Gas / 

CashSettled / 

NYMEX

Daily Natural Gas Option KD 0 1 1 

E-mini Henry Hub Natural 

Gas Penultimate Financial 

Futures NP 1/4 1/4 1/4 

E-mini Natural Gas Futures QG 1/4 1/4 1/4 

Henry Hub Natural Gas Last 

Day Financial Futures HH 1 1 1 

Henry Hub Natural Gas Last 

Day Financial Option E7 1 1 1 

Henry Hub Natural Gas 

Look-Alike Option LN 1 1 1 

Henry Hub Natural Gas 

Penultimate Financial 

Futures HP 1 1 1 

Henry Hub Natural Gas 

Swap Futures NN 1/4 1/4 1/4 

Henry Natural Gas Financial 

Calendar Spread Option G4 1 1 0 

Natural Gas Option on 

Calendar Futures Strip 6J 0 1/4 3 

Natural Gas Option on 

Summer Futures Strip 4D 0 1/4 1 3/4 

Natural Gas Option 

on Winter Futures Strip 6I 0 1/4 1 1/4 

Natural 

Gas / 

CashSettled / 

ICE Henry Hub Natural Gas 

Swap H 1/4 1/4 1/4 

E. Spot-Month Classes of Contracts

An energy contract that is in its spot month, pursuant to industry practice and as defined 

in proposed regulation 151.1, is a futures contract that is “next to expire during that period of 
51

time beginning at the close of trading on the trading day preceding the first day on which 

delivery notices can be issued to the clearing organization of a registered entity.”78

F. Determining and Complying with the Proposed Spot-Month Limits

 In practice, 

the spot-month for the major energy contracts generally is three days in duration. In view of the 

heightened potential for manipulation, corners, squeezes as well as excessive speculation during 

this concentrated period of time, only those contracts that expire on the same day would be 

deemed to be contracts of the same class under the proposed regulations. This would mean that, 

for example, during the spot month, a cash-settled last trading day contract would not be in the 

same class as a cash-settled penultimate contract. The most significant impact of defining a class 

of contracts in a narrower manner during the spot-month is to prohibit the netting of spot-month 

contracts that expire on different days for the purpose of applying the proposed speculative 

position limits. By way of example, a trader that is 4,000 contracts long in a cash-settled last 

trading day contract, and 4,000 contracts short in a cash-settled penultimate contract on the same 

exchange in a referenced energy contract, would be subject to spot-month position limits for 

each contract and would not be deemed to be holding a flat position. In contrast, outside the spot

month, each leg of this spread would be considered to be in the same class and therefore subject 

to netting for the purpose of applying the proposed class all-months-combined and single-month 

position limits.

 

78 For a contract that does not allow trading concurrently with the issuance of delivery notices, 

spot-month means “the futures contract next to expire during that period of time beginning at the 

close of trading on the third trading day preceding the last trading day.” For a contract that cashsettles based on the price of one or more physically-delivered contracts, spot-month means “the 

period of time that is the spot-month for such physically-delivered contracts.” The Commission 

intends the spot-month for options on futures contracts to be the same period of time as for the 

underlying futures contract. 
52

For physically-delivered contracts, a spot-month position limit would be fixed by the 

Commission at one-quarter of the estimated deliverable supply for a spot-month class of 

contracts. This proposed formula is consistent with current regulation 150.5(b) and the 

Acceptable Practices for Core Principle 5, in Appendix B to part 38, and the Commission’s 

Guideline No. 1, in Appendix A to part 40. Proposed regulation 151.2(d) would require a 

reporting market listing physically-delivered contracts to submit to the Commission an estimate 

of deliverable supply for its contracts by December 31st of each calendar year. The 

Commission, in setting the spot-month limits, would take into consideration the estimates of 

deliverable supply provided by the reporting markets and would base its own determination of 

deliverable supply on data submitted by the reporting markets unless the Commission has a basis 

for questioning the accuracy of the submitted data, in which case the Commission would derive 

its own estimates of deliverable supply.

For cash-settled contracts based on the prices of physically-delivered futures contracts, 

the proposed regulations would establish a default spot-month position limit equal to that of the 

cash-settled contract’s physically-delivered counterpart. The proposed regulations would allow a 

trader to acquire or hold positions in a spot-month class of contracts, pursuant to reporting 

market rules specifically implemented to address such positions, that is five times greater than 

the default spot-month limit upon satisfying certain conditions. A trader would be permitted to 

hold positions under this conditional-spot-month limit only if that trader does not hold a position 

in any physically-delivered referenced energy contract to which its cash-settled positions are 

linked in the spot month and satisfies the reporting requirements of proposed regulation 20.00.

Proposed regulation 20.00 sets forth reporting requirements for persons that would 

acquire positions in a referenced energy contract pursuant to the conditional-spot-month position 
53

limit of proposed regulation 151.2(a)(2). Specifically, this regulation would require such persons 

to file a completed CFTC Form 40 and Part A of new CFTC Form 404. CFTC Form 40, among 

other things, facilitates the Commission’s identification of the persons controlling the trading of 

an account. Part A of new CFTC Form 404 would collect information on: a trader’s spot and 

forward positions priced in relation to the relevant referenced energy contract or the contract’s 

underlying commodity; the trader’s spot and forward positions in contracts priced to a cash 

market index that includes quotations or prices for spot or forward contracts in the referenced 

energy contract’s underlying commodity; the trader’s positions in swaps priced in relation to the 

referenced energy contract or the contract’s underlying commodity; and the trader’s positions in 

other physically or financially settled contracts related to the trader’s positions held pursuant to 

the conditional-spot-month position limit. The collection of this information would facilitate the 

Commission’s surveillance program with respect to detecting and deterring trading activity that 

may tend to cause sudden or unreasonable fluctuations or unwarranted changes in the prices of 

the referenced energy contracts and their underlying commodities during the spot-month.

G. Exemptions and Related Requirements

1. Bona Fide Hedges

Proposed regulation 151.3(a) would establish three exemptions for the following 

transactions and positions: (i) bona fide hedging transactions generally consistent with 

paragraphs (1) and (2) of regulation 1.3(z); (ii) swap dealer risk management transactions outside 

of the spot-month that are held to offset risks associated with certain swap agreements; and (iii) 

positions that would be in compliance with the speculative position limits when adjusted by an 

appropriate contemporaneous risk factor.
54

As proposed, a reporting market may establish an exemption process for traders holding 

positions in proprietary accounts that are shown to be bona fide hedging positions consistent 

with, but that may differ from (to the extent such differences are consistent with commercial 

activity in the physical energy markets), paragraphs (1) and (2) of regulation 1.3(z). As is 

currently the case for traders seeking exemptions from exchange-set spot-month position limits 

applicable to the referenced energy contracts, the Commission intends for traders seeking such 

bona fide hedging transactions to apply to a reporting market for exemptions from the applicable 

spot and non-spot-month limits. The Commission would audit this process to ensure that the

reporting markets act appropriately in reviewing and acting on trader bona fide hedge exemption 

requests. In this manner, the Commission would also enable a reporting market to act 

expeditiously on exemption requests.

Under the proposed regulations, traders holding positions pursuant to a bona fide hedge 

exemption would generally be prohibited from also trading speculatively. If bona fide hedging 

positions outside the spot month exceed twice an otherwise applicable all-months-combined or 

single-month position limit, then such traders would also be prohibited from holding positions as 

swap dealers. In contrast, however, traders holding positions in the spot-month pursuant to a 

bona fide hedge exemption would not be prohibited from holding positions speculatively outside 

the spot month. The intent of this proposed exception is to not affect liquidity generated by 

speculative trading outside the spot month that would otherwise be prohibited by virtue of a 

trader’s need to invoke a hedge exemption to exceed the lower spot-month position limits.

These “crowding out” provisions would restrict a trader controlling large positions used 

for hedging from also entering into large speculative positions or large swap dealer risk 

management positions. The proposed regulations would not impede a trader’s ability to engage 
55

in bona fide hedging in any way, but would limit a trader’s ability to acquire swap dealer risk 

management positions or speculative positions when that trader holds very large positions 

pursuant to a bona fide hedge exemption. 

Proposed regulation 20.01 sets forth reporting requirements for persons that would 

acquire positions pursuant to the bona fide hedge exemption of proposed regulation 151.3(a)(1). 

Specifically, this section would require such persons to file a completed CFTC Form 40 and Part 

B of new CFTC Form 404. Part B of CFTC Form 404 would collect information on: the 

quantity of stocks owned of the commodity that underlies the relevant referenced energy contract 

and its products and by-products; the ownership of shares of an investment vehicle that holds or 

owns the referenced energy contract or the commodity that underlies the referenced energy 

contract and its products and by-products; the quantity of fixed price purchase and sale 

commitments on the relevant referenced energy contract’s commodity; and, for anticipatory 

hedging transactions, annual sales or requirements for the preceding three complete fiscal years 

and anticipated sales or requirements of such commodity for the period hedged. For cross-hedge 

positions, traders would be required to report the relevant commercial activity in terms of the 

actual or anticipated quantity of the cross-hedged commodity, and on a converted basis,

equivalent positions in the relevant referenced energy contract. The Commission notes that this 

proposed data collection is consistent with data currently collected in grain and cotton markets 

using CFTC Forms 204 and 304, respectively, pursuant to part 19 of the Commission’s 

regulations.

2. Swap Dealers

Swap dealers can perform an important economic function by taking on risks to 

accommodate the specific hedging and risk management needs of various customers. Swap 
56

dealers often are able to aggregate and standardize these otherwise particularized risks, and in 

turn, enter into commodity futures and option contracts to manage them. Accordingly, under the 

regulations as proposed, swap dealers may apply to the Commission for an exemption from the 

proposed speculative position limits for positions held outside of the spot month to manage the 

risks associated with swap agreements entered into to accommodate swap customers. Proposed 

regulation 151.1 would define “swap agreement” to have the same meaning as in current 

Commission regulation 35.1(b)(1).79

The proposed swap dealer exemption would be limited to twice an applicable all-monthscombined or single non-spot month speculative position limit. Further, traders would be 

required to aggregate positions held as swap dealer risk management transactions with net 

speculative positions for the purpose of determining compliance with the proposed Federal 

speculative position limits. As with bona fide hedgers that hold positions in excess of the 

proposed limits, swap dealers holding large positions pursuant to the proposed swap dealer 

exemption would be unable to also take on positions as speculators. In effect, this proposed 

“crowding out” provision would restrict a trader controlling a large position used for swap risk 

management from also entering into large speculative positions.

 Proposed regulation 151.1 would also define “swap dealer” 

to mean “any person who, as a significant part of its business, holds itself out as a dealer in 

swaps, makes a market in swaps, regularly engages in the purchase of swaps and their resale to 

customers in the ordinary course of a business, or engages in any activity causing the person to 

be commonly known in the trade as a dealer or market maker in swaps.”

Proposed regulation 1.45 sets forth the application procedure for swap dealers that would 

seek an exemption from the proposed Commission-set speculative position limits. Specifically, 

 

79 17 CFR 35.1(b)(1).
57

this regulation would require a person to file a completed CFTC Form 40, an initial application 

and an annual update to certify that the person remains a swap dealer, as defined in proposed 

regulation 151.1. The exemption would require the applicant to consent to the publication of the 

fact that such person received a swap dealer exemption from the Commission. Such publication 

would be made only once a year and would not include the identity of a swap dealer that first 

received an exemption within the six calendar months preceding a publication. Furthermore, the 

publication would not include any information that would disclose the specific commodities for 

which the swap dealer has sought an exemption. In this regard, the Commission reiterates that it 

will protect all proprietary information in accordance with the Freedom of Information Act and 

part 145 of the Commission’s regulations, headed “Commission Records and Information.” In 

addition, the Commission emphasizes that section 8(a)(1) of the Act strictly prohibits the 

Commission, unless specifically authorized otherwise by the Act, from making public “data and 

information that would separately disclose the business transactions or market positions of any 

person and trade secrets or names of customers.”80

Proposed regulation 20.02 sets forth reporting requirements for persons who would 

receive a swap dealer limited risk management exemption pursuant to proposed regulation 

151.3(a)(2). Specifically, the proposed regulation would require swap dealers to file monthly a 

completed Form 404 Part C with the Commission and with any registered entity on which the 

swap dealer’s referenced energy contract positions are listed. The monthly report would include, 

for each day, swap positions based upon the commodity underlying the referenced energy 

contracts that are held in proprietary and customer accounts and a summary of dealing and 

trading activity in swaps based upon the commodity underlying the referenced energy contracts. 

 

80 See 7 U.S.C. 12(a)(1).
58

Furthermore, proposed regulation 20.02 would require the swap dealer to file a supplemental 

report whenever it establishes a larger position in referenced energy contracts than previously 

reported. In addition to the above reporting requirements, traders that receive a swap dealer 

limited risk management exemption must also maintain complete books and records relating to 

their swap dealing activities (including transaction data) and make such books and records, along 

with a list of counterparties to customer swap agreements that support and substantiate the need 

to offset swap agreement risks on reporting markets, available to the Commission upon request.

3. Exemptions for Delta-Adjusted Positions

The Commission understands that option risk factors continuously change with 

movements in the price of an underlying futures contract. As the price of the underlying futures 

contract changes, a trader offsetting the risk of an options position through a delta-neutral 

position in the underlying futures contract may need to adjust the futures position substantially 

on an intra-day basis to maintain a risk neutral position. As currently defined in regulation 

150.1, delta-neutrality is recognized by reference to the previous day’s risk factor. Proposed 

regulations 151.3 and 20.03 would set forth the exemption and reporting requirements for 

persons whose positions would have exceeded the Federal speculative position limit for a

referenced energy contract when adjusted by the previous day’s risk factors (deltas), but that 

would not exceed such a limit when positions are calculated using an appropriate 

contemporaneous risk factor. The reporting requirements, as proposed, would include the 

submission of complete position data to demonstrate that such positions remained within an

otherwise applicable speculative position limit when adjusted by an appropriate and 

contemporaneous risk factor.

H. Account Aggregation
59

Proposed regulation 151.4 would establish account aggregation standards specifically for 

positions in referenced energy contracts. Under the proposed standards, the Federal position 

limits in referenced energy contracts would apply to all positions in accounts in which any 

person, directly or indirectly, has an ownership or equity interest of 10% or greater or, by power 

of attorney or otherwise, controls trading. Proposed regulation 151.4 includes a limited 

exemption for positions in pools in which a trader that is a limited partner, shareholder or similar 

person has an ownership or equity interest of less than 25% unless the trader in fact controls 

trading that is done by the pool. Proposed regulation 151.4 would also treat positions held by 

two or more persons acting pursuant to an express or implied agreement or understanding the 

same as if the positions were held by, or the trading of the positions were done by, a single 

person. Accordingly, the proposed regulations would aggregate positions in accounts at both the 

account owner and controller levels. 

In contrast to the disaggregation exemptions of current regulations 150.3(a)(4) and 150.4, 

eligible entities (such as mutual funds, commodity pool operators and commodity trading 

advisors) and futures commission merchants will not be permitted to disaggregate positions 

pursuant to the independent account controller framework established in part 150 of the 

Commission’s regulations. The current account disaggregation exceptions for the agricultural 

contracts enumerated in regulation 150.2, may be incompatible with the proposed Federal 

speculative position limit framework, however, and used to circumvent its requirements. 

The proposed framework sets high position levels that are at the outer bounds of the 

largest positions held by market participants, permits for the netting of positions across reporting 

markets and within contracts of the same class and in addition, includes a conditional-spot-month 

limit for cash-settled contracts and exemptions for bona fide hedgers, swap dealers and delta-
60

adjusted positions. Accordingly, an exemption, such as the eligible entity exemption, that would 

allow traders to establish a series of positions each near a proposed outer bound position limit,

without aggregation, may not be appropriate. Instead, proposed regulation 151.4 would establish 

a clear general account aggregation standard and a clear exception thereto for passive pool 

participants and similar investors. 

VII. The CME Group’s Proposal

In a concept paper published in September of 2009, the CME Group suggested an 

alternative position limit framework that would require each reporting market to set position 

limits separately without inter-exchange aggregation.

81

The CME Group also suggested that each reporting market set a single-month limit at 

10% of the first 25,000 contracts of that reporting market’s open interest with a 5% marginal 

increase for open interest in excess of 25,000 contracts at that reporting market. The CME 

Group suggested that the all-months-combined limit be set at 150% of the single-month limit and 

suggested establishing a flexible concentration limit in deferred-month contracts. Under the 

 The single-month and all-monthscombined limits, under the CME’s proposal, would apply collectively to physically-delivered 

contracts and cash-settled contracts on a referenced energy commodity, including spread 

positions within the same contract. The level of the limits would be based on the collective open 

interest of the lead month (i.e., the month with the highest level of open interest) in such 

contracts at that reporting market. 

 

81 See, “Excessive Speculation and Position Limits in Energy Derivatives Markets,” CME 

Group, at page 10, http://www.cmegroup.com/company/files/PositionLimitsWhitePaper.pdf.
61

CME’s proposed approach, a suggested concentration limit of 25% of open interest would be 

applicable in a single month that has developed liquidity.82

With respect to applying aggregate limits, the CME Group suggested that the CFTC 

establish and enforce an aggregate limit across all reporting markets, conditioned on the CFTC 

gaining authority to impose limits on OTC trading and on the CFTC developing a means to 

minimize the impact of potential transfers of trading to foreign jurisdictions or the physical 

markets. With respect to the aggregation of positions, the CME Group proposed that the 

aggregation standards of Commission regulation 150.4 apply to the aggregate limits.

By way of comparison, the Commission’s proposed limits would apply aggregately 

across all exchanges that list a referenced energy contract and separately to physically-delivered 

contracts and cash-settled contracts that are listed by a particular reporting market. The 

Commission’s proposed class-based limits would prevent the establishment of excessively large 

positions in a single class and, thereby, would reduce the potential for price distortions.

Also, by way of contrast to the CME Group’s approach, the level of limits proposed by 

the Commission would be based on the sum of the open interest in all months, rather than only 

the lead month’s open interest as proposed by the CME. By using the entire open interest, the 

Commission’s proposal would avoid creating an incentive for traders to shift open interest into 

the lead month in an attempt to increase the level of the limits. Furthermore, rather than 

considering only a reporting market’s open interest, the Commission’s proposal would establish 

limit levels that reflect both aggregated open interest on all reporting markets and open interest 

on an individual reporting market. This tiered approach would provide an opportunity for small 

markets to grow, while establishing a prudential all-months limit for a class of contracts of no 

 

82 The concept paper did not specify a method to determine when a contract month had 

developed liquidity.
62

more than 30% of a reporting market’s open interest in a class of contracts as defined in 

proposed regulation 151.1. The class limit, as proposed by the Commission, would be capped at 

a formula-determined level based on the open interest in all reporting markets in a referenced 

energy contract. The 30% level was selected in light of the expected opportunity for arbitrage 

across classes and the cap was set using the traditional all-months position limit formula in 

regulation 150.5(c)(2).

As discussed previously, the Commission’s proposal first establishes an all-monthscombined limit, then sets a single-month limit at two-thirds of the level of that all-monthscombined limit. This is the same ratio between limits if first established in a single-month limit, 

as proposed by the CME, and then multiplied by 150% to arrive at an all-months-combined 

position limit. This two-thirds ratio, as proposed by the Commission, is therefore the same ratio 

that is proposed by the CME Group and consistent with the ratio between the single-month 

limits and the all-month-combined limits in the existing Federal agricultural positions limits 

which range from a low of 61% to a high of 77%. The table below provides a comparison of 

position limits as they would be set under the proposed Commission and CME Group approaches 

to establishing speculative position limits:

Proposed Federal speculative position limits for referenced energy 

contracts:

Referenced 

Energy Contract

Class of 

Contract

All-MonthsCombined (AMC) 

Average Open 

Interest

(January 2008 -

December 2008) AMC Limit 

Single-month 

Limit 

NYMEX Light 

Sweet Crude Oil

NYMEX 

Physical 

Delivery

 

2,881,901 

 

98,100 

 

65,400 

NYMEX CashSettled 

963,871 

 

98,100 

 

65,400 
63

Aggregate

Limit

 

3,845,772 

 

98,100 

 

65,400 

NYMEX New 

York Harbor 

Gasoline 

Blendstock 

(RBOB)

NYMEX 

Physical 

Delivery

 

252,564 

 

9,000 

 

6,000 

NYMEX CashSettled 

29,306 

 

8,800 

 

5,900 

Aggregate

Limit

 

281,870 

 

9,000 

 

6,000 

NYMEX New 

York Harbor No. 

2 Heating Oil

NYMEX 

Physical 

Delivery

 

254,442 

 

10,100 

 

6,800 

NYMEX CashSettled 

73,996 

 

10,100 

 

6,800 

Aggregate

Limit

 

328,438 

 

10,100 

 

6,800 

NYMEX Henry 

Hub Natural Gas

NYMEX 

Physical 

Delivery

 

1,236,257 

 

132,700 

 

88,500 

NYMEX CashSettled 

3,088,239 

 

132,700 

 

88,500 

ICE CashSettled 

904,754 

 

132,700 

 

88,500 

Aggregate

Limit

 

5,229,250 

 

132,700 

 

88,500 

Proposed Energy Speculative Limits by CME 

Group

Reference Energy 

Contract Exchange

Average Lead 

Month Open 

Interest

(January 2008 -

December 2008) 

All-MonthsCombined 

Limit

Single-month

Limit

NYMEX Light 

Sweet Crude Oil NYMEX

 

841,607 

 

65,000 

 

43,400 

NYMEX New York 

Harbor Gasoline 

Blendstock (RBOB) NYMEX

 

107,439 

 

10,000 

 

6,700 
64

NYMEX New York 

Harbor No. 2 Heating 

Oil NYMEX

 

98,977 

 

9,300 

 

6,200 

NYMEX Henry Hub 

Natural Gas

NYMEX

 

505,220 

 

39,800 

 

26,600 

ICE 

 

124,860 

 

11,300 

 

7,500 

VIII. Request for Comment

The Commission requests comment on all aspects of this proposal, and particularly 

requests comments on the following issues and responses to the following questions:

1. Are Federal speculative position limits for energy contracts traded on reporting markets

necessary to “diminish, eliminate, or prevent” the burdens on interstate commerce that 

may result from position concentrations in such contracts? 

2. Are there methods other than Federal speculative position limits that should be utilized to 

diminish, eliminate, or prevent such burdens?

3. How should the Commission evaluate the potential effect of Federal speculative position 

limits on the liquidity, market efficiency and price discovery capabilities of referenced 

energy contracts in determining whether to establish position limits for such contracts? 

4. Under the class approach to grouping contracts as discussed herein, how should contracts 

that do not cash settle to the price of a single contract, but settle to the average price of a 

sub-group of contracts within a class be treated during the spot month for the purposes of 

enforcing the proposed speculative position limits? 

5. Under proposed regulation 151.2(b)(1)(i), the Commission would establish an allmonths-combined aggregate position limit equal to 10% of the average combined futures 

and option contract open interest aggregated across all reporting markets for the most 
65

recent calendar year up to 25,000 contracts, with a marginal increase of 2.5% of open 

interest thereafter. As an alternative to this approach to an all-months-combined 

aggregate position limit, the Commission requests comment on whether an additional 

increment with a marginal increase larger than 2.5% would be adequate to prevent 

excessive speculation in the referenced energy contracts. An additional increment would 

permit traders to hold larger positions relative to total open positions in the referenced 

energy contracts, in comparison to the proposed formula. For example, the Commission 

could fix the all-months-combined aggregate position limit at 10% of the prior year’s 

average open interest up to 25,000 contracts, with a marginal increase of 5% up to 

300,000 contracts and a marginal increase of 2.5% thereafter. Assuming the prior year’s 

average open interest equaled 300,000 contracts, an all-months-combined aggregate

position limit would be fixed at 9,400 contracts under the proposed rule and 16,300 

contracts under the alternative. 

6. Should customary position sizes held by speculative traders be a factor in moderating the 

limit levels proposed by the Commission? In this connection, the Commission notes that 

current regulation 150.5(c) states contract markets may adjust their speculative limit 

levels “based on position sizes customarily held by speculative traders on the contract 

market, which shall not be extraordinarily large relative to total open positions in the 

contract...”

7. Reporting markets that list referenced energy contracts, as defined by the proposed 

regulations, would continue to be responsible for maintaining their own position limits

(so long as they are not higher than the limits fixed by the Commission) or position 

accountability rules. The Commission seeks comment on whether it should issue 
66

acceptable practices that adopt formal guidelines and procedures for implementing 

position accountability rules.

8. Proposed regulation 151.3(a)(2) would establish a swap dealer risk management 

exemption whereby swap dealers would be granted a position limit exemption for 

positions that are held to offset risks associated with customer initiated swap agreements 

that are linked to a referenced energy contract but that do not qualify as bona fide hedge 

positions. The swap dealer risk management exemption would be capped at twice the 

size of any otherwise applicable all-months-combined or single non-spot-month position 

limit. The Commission seeks comment on any alternatives to this proposed approach. 

The Commission seeks particular comment on the feasibility of a “look-through” 

exemption for swap dealers such that dealers would receive exemptions for positions 

offsetting risks resulting from swap agreements opposite counterparties who would have 

been entitled to a hedge exemption if they had hedged their exposure directly in the 

futures markets. How viable is such an approach given the Commission’s lack of 

regulatory authority over the OTC swap markets?

9. Proposed regulation 20.02 would require swap dealers to file with the Commission 

certain information in connection with their risk management exemptions to ensure that 

the Commission can adequately assess their need for an exemption. The Commission 

invites comment on whether these requirements are sufficient. In the alternative, should 

the Commission limit these filing requirements, and instead rely upon its regulation 18.05 

special call authority to assess the merit of swap dealer risk management exemption 

requests?
67

10. The Commission’s proposed part 151 regulations for referenced energy contracts would 

set forth a comprehensive regime of position limit, exemption and aggregation 

requirements that would operate separately from the current position limit, exemption and 

aggregation requirements for agricultural contracts set forth in part 150 of the 

Commission’s regulations. While proposed part 151 borrows many features of part 150, 

there are notable distinctions between the two, including their methods of position limit 

calculation and treatment of positions held by swap dealers. The Commission seeks 

comment on what, if any, of the distinctive features of the position limit framework 

proposed herein, such as aggregate position limits and the swap dealer limited risk 

management exemption, should be applied to the agricultural commodities listed in part 

150 of the Commission’s regulations.

11. The Commission is considering establishing speculative position limits for contracts 

based on other physical commodities with finite supply such as precious metal and soft 

agricultural commodity contracts. The Commission invites comment on which aspects of 

the current speculative position limit framework for the agricultural commodity contracts 

and the framework proposed herein for the major energy commodity contracts (such as 

proposed position limits based on a percentage of open interest and the proposed 

exemptions from the speculative position limits) are most relevant to contracts based on 

other physical commodities with finite supply such as precious metal and soft agricultural 

commodity contracts. 

12. As discussed previously, the Commission has followed a policy since 2008 of 

conditioning FBOT no-action relief on the requirement that FBOTs with contracts that 

link to CFTC-regulated contracts have position limits that are comparable to the position 
68

limits applicable to CFTC-regulated contracts. If the Commission adopts the proposed 

rulemaking, should it continue, or modify in any way, this policy to address FBOT 

contracts that would be linked to any referenced energy contract as defined by the 

proposed regulations?

13. The Commission notes that Congress is currently considering legislation that would 

revise the Commission’s section 4a(a) position limit authority to extend beyond positions 

in reporting market contracts to reach positions in OTC derivative instruments and FBOT 

contracts. Under some of these revisions, the Commission would be authorized to set 

limits for positions held in OTC derivative instruments and FBOT contracts.83

14. Under proposed regulation 151.2, the Commission would set spot-month and all-monthscombined position limits annually.

 The 

Commission seeks comment on how it should take this pending legislation into account 

in proposing Federal speculative position limits.

a. Should spot-month position limits be set on a more frequent basis given the 

potential for disruptions in deliverable supplies for referenced energy contracts? 

b. Should the Commission establish, by using a rolling-average of open interest 

instead of a simple average for example, all-months-combined position limits on a 

more frequent basis? If so, what reasons would support such action? 

15. Concerns have been raised about the impact of large, passive, and unleveraged long-only 

positions on the futures markets. Instead of using the futures markets for risk 

transference, traders that own such positions treat commodity futures contracts as distinct 

 

83 See, e.g., the Over-the-Counter Derivatives Markets Act of 2009 (OCDMA), H.R. 3795, 111th

Congress, 1st Session (2009). OCDMA would also abolish the DTEF, ECM and ECM-SPDC 

market categories.
69

assets that can be held for an appreciable duration. This notice of rulemaking does not 

propose regulations that would categorize such positions for the purpose of applying 

different regulatory standards. Rather, the owners of such positions are treated as other 

investors that would be subject to the proposed speculative position limits.

a. Should the Commission propose regulations to limit the positions of passive long 

traders?

b. If so, what criteria should the Commission employ to identify and define such 

traders and positions?

c. Assuming that passive long traders can properly be identified and defined, how 

and to what extent should the Commission limit their participation in the futures 

markets?

d. If passive long positions should be limited in the aggregate, would it be feasible 

for the Commission to apportion market space amongst various traders that wish

to establish passive long positions?

e. What unintended consequences are likely to result from the Commission’s 

implementation of passive long position limits?

16. The proposed definition of referenced energy contract, diversified commodity index, and 

contracts of the same class are intended to be simple definitions that readily identify the 

affected contracts through an objective and administerial process without relying on the 

Commission’s exercise of discretion.

a. Is the proposed definition of contracts of the same class for spot and non-spot 

months sufficiently inclusive? 
70

b. Is it appropriate to define contracts of the same class during spot months to only 

include contracts that expire on the same day?

c. Should diversified commodity indexes be defined with greater particularity? 

17. Under the proposed regulations, a swap dealer seeking a risk management exemption 

would apply directly to the Commission for the exemption. Should such exemptions be 

processed by the reporting markets as would be the case with bona fide hedge exemptions 

under the proposed regulations? 

18. In implementing initial spot-month speculative position limits, if the notice of proposed 

rulemaking is finalized, should the Commission:

a. Issue special calls for information to the reporting markets to assess the size of a 

contract’s deliverable supply;

b. Use the levels that are currently used by the exchanges; or

c. Undertake an independent calculation of deliverable supply without substantial 

reliance on exchange estimates?

IX. Related Matters

A. Cost Benefit Analysis 

Section 15(a) of the Act requires the Commission to consider the costs and benefits of its 

actions before issuing new regulations under the Act. Section 15(a) does not require the 

Commission to quantify the costs and benefits of new regulations or to determine whether the 

benefits of adopted regulations outweigh their costs. Rather, section 15(a) requires the 

Commission to consider the cost and benefits of the subject regulations. Section 15(a) further 

specifies that the costs and benefits of new regulations shall be evaluated in light of five broad 

areas of market and public concern: (1) Protection of market participants and the public; (2) 
71

efficiency, competitiveness, and financial integrity of the market for listed derivatives; (3) price 

discovery; (4) sound risk management practices; and (5) other public interest considerations. 

The Commission may, in its discretion, give greater weight to any one of the five enumerated 

areas of concern and may, in its discretion, determine that, notwithstanding its costs, a particular 

regulation is necessary or appropriate to protect the public interest or to effectuate any of the 

provisions or to accomplish any of the purposes of the Act.

The proposed regulatory framework for positions in the referenced energy contracts, as 

defined by the proposed regulations, would impose certain compliance costs on Commissionregulated exchanges and traders that hold large positions in the referenced energy contracts. In 

addition to the compliance costs that are directly related to the proposed regulations, the 

proposed position limits and their concomitant limitation on trading activity could impose certain 

general but significant costs. The proposed position limits could cause unintended consequences 

by decreasing liquidity in the markets for the referenced energy contracts, impairing the price 

discovery process in these markets, and pushing large positions to trading venues over which the 

Commission has no direct regulatory authority.

Based on data received by the Commission’s large trader reporting system, the 

Commission believes the proposed position limits would accommodate the normal course of 

speculative positions in markets for the referenced energy contracts. Commission data indicates 

that possibly ten traders, including traders that hold positions pursuant to exchange-approved 

bona fide hedge exemptions, could be affected by the proposed limits. For the reasons discussed 

below, the Commission anticipates that the compliance costs associated with the proposed limits 

and their impact on the efficiency of the markets for the referenced energy contracts would be 

minimal. 
72

The proposed spot-month position limits, although applicable to a class of contracts and 

across reporting markets, are consistent with current exchange-set spot-month position limits that 

have been implemented and enforced by NYMEX and ICE pursuant to DCM and ECM-SPDC 

core principles and Commission guidance. In addition, both NYMEX and ICE implement 

position accountability rules for positions outside the spot month and routinely monitor and 

solicit reports from large traders. The affected exchanges and large traders therefore are 

accustomed to an existing compliance system for large positions and the processing of hedge and 

spread exemptions from exchange-set spot-month position limits. In addition, a significant 

portion of the affected traders are currently subject to the Commission’s large trader reporting 

system and should have compliance systems in place to accommodate any new potential 

regulatory requirements. For these reasons, the compliance costs associated with the proposed 

limits should be minimal. 

Section 4a(a) has identified excessive speculation that causes unwarranted fluctuations in 

the price of a commodity as an undue burden on commerce. Accordingly section 4a(a) of the 

Act gives the Commission the ability to establish a position limit framework as a prophylactic 

measure against sudden or unreasonable price fluctuations or unwarranted price changes in 

accordance with the purposes and findings of the Act. The Congressional endorsement of the 

Commission’s prophylactic use of speculative position limits extends to any commodity and 

does not require a specific finding of an extant undue burden on interstate commerce.

A primary intent of the proposed position limit framework is to prevent a single trader or 

several traders from acquiring large or concentrated positions that may cause unwarranted, 

sudden or unreasonable fluctuations in the price of energy commodities. The Commission is 

concerned that concentrated positions at or near the proposed limits may directly lead to market 
73

disruptions causing unwarranted, sudden or unreasonable fluctuations in the price of energy 

commodities.

Another concern regarding the existence of large speculative positions is the possibility 

for disruption across markets or trading platforms listing similar or linked products. Because 

individual markets have knowledge of positions only on their own trading platforms, it is 

difficult for them to assess the full impact of a trader’s activities. In recognition of this, the 

proposed framework also would apply to trading done in linked and economically similar 

contracts across markets. The Commission notes that it has the unique capacity for monitoring 

trading and implementing remedial measures across interconnected futures and option markets in 

the referenced energy contracts. The position limits, as proposed, are purposefully set at the 

outer bounds of the levels that speculators are likely to acquire in order to avoid disrupting or

interfering with beneficial trading activity. Still, the proposed regulations are intended to fully 

achieve the prophylactic purpose of section 4a(a) of the Act.

B. The Regulatory Flexibility Act 

The Regulatory Flexibility Act (RFA), 5 U.S.C. 601 et seq., requires that agencies 

consider the impact of their regulations on small businesses. The requirements related to the 

proposed amendments fall mainly on registered entities, exchanges, futures commission 

merchants, clearing members, foreign brokers, and large traders. The Commission has 

previously determined that exchanges, futures commission merchants and large traders are not 

“small entities” for the purposes of the RFA.84

 

84 47 FR 18618 (April 30, 1982).

 Similarly, clearing members, foreign brokers and 

traders would be subject to the proposed regulations only if carrying or holding large positions. 

Accordingly, the Chairman, on behalf of the Commission, hereby certifies, pursuant to 5 US.C 
74

605(b), that the actions proposed to be taken herein would not have a significant economic 

impact on a substantial number of small entities.

C. Paperwork Reduction Act 

Certain provisions of the proposed regulations would result in new collection of 

information requirements within the meaning of the Paperwork Reduction Act of 1995 (“PRA”). 

The Commission therefore is submitting this proposal to the Office of Management and Budget 

(“OMB”), along with proposed new CFTC Form 404, for review in accordance with 44 U.S.C.

3507(d) and 5 CFR 1320.11. 

The title for this proposed collection of information is “Regulation 1.45 and Parts 20 and 

151—Position Limit Framework For Referenced Energy Contracts” (OMB control number 

3038-NEW).

If adopted, responses to this collection of information would be mandatory. The 

Commission will protect proprietary information according to the Freedom of Information Act 

and 17 CFR part 145, headed “Commission Records and Information.” In addition, the 

Commission emphasizes that section 8(a)(1) of the Act strictly prohibits the Commission, unless 

specifically authorized by the Act, from making public “data and information that would 

separately disclose the business transactions or market positions of any person and trade secrets 

or names of customers.”85

Under the proposed regulations, reporting markets listing, and market participants 

trading, the referenced energy contracts would be subject to the position limit framework 

established by proposed part 151 and the application and reporting requirements of proposed 

regulation 1.45 and part 20. Proposed regulation 1.45 sets forth the application procedure for 

 

85 7 U.S.C. 12(a)(1).
75

swap dealers that would seek an exemption from the proposed Commission-set Federal 

speculative position limits for referenced energy contracts. Proposed part 20 would require 

similar reports from persons holding large positions under the proposed conditional-spot-month 

position limit, as bona fide hedgers, as swap dealers, and as traders with certain delta-adjusted 

positions. The Commission estimates that affected traders, as a result of their diversified 

business structure, would be subject to most or all of the requirements and exemptions of 

proposed regulation 1.45 and parts 20 and 151.

Should the proposed regulations be adopted, the total number of traders that would be 

subject to the regulations is estimated at 10, with each providing an estimated 20 reports to the 

Commission at an estimated compliance time of four hours per response. Accordingly, the 

Commission estimates the aggregate annual burden that would be imposed by the regulations, as 

proposed, to be 800 hours. The Commission specifically notes that the estimated annual burden 

provided on the affected exchanges and traders is in addition to, and does not include, costs 

incurred from compliance with other regulatory and operational requirements. The Commission 

invites the public and other Federal agencies to comment on any aspect of the reporting and 

recordkeeping burdens discussed above. 

Pursuant to 44 U.S.C. 3506(c)(2)(B), the Commission solicits comments in order to: (i) 

evaluate whether the proposed collections of information are necessary for the proper 

performance of the functions of the Commission, including whether the information will have 

practical utility; (ii) evaluate the accuracy of the Commission's estimate of the burden of the 

proposed collections of information; (iii) determine whether there are ways to enhance the 

quality, utility, and clarity of the information to be collected; and (iv) minimize the burden of the 
76

collections of information on those who are to respond, including through the use of automated 

collection techniques or other forms of information technology.

You may submit your comments directly to the Office of Information and Regulatory 

Affairs, by fax at (202) 395-6566 or by e-mail at OIRA-submissions @omb.eop.gov. Please 

provide the Commission with a copy of your comments so that we can summarize all written 

comments and address them in any subsequent notice of rulemaking. Refer to the Addresses 

section of this notice for comment submission instructions to the Commission. You may obtain 

a copy of the supporting statements for the collection of information discussed above by visiting 

RegInfo.gov. OMB is required to make a decision concerning the collection of information 

between 30 to 60 days after publication of this notice. Consequently, a comment to OMB is most 

assured of being fully considered if received by OMB (and the Commission) within 30 days after 

the publication of this notice of proposed rulemaking.

List of Subjects 

17 CFR Part 1

Brokers, Commodity futures, Consumer protection, Reporting and recordkeeping requirements.

17 CFR Part 20

Commodity futures, Reporting and recordkeeping requirements.

17 CFR Part 151

Position limits, Bona fide hedge positions, Spread exemptions, Energy commodities.

In consideration of the foregoing, pursuant to the authority contained in the Commodity 

Exchange Act, the Commission hereby proposes to amend chapter I of title 17 of the Code of 

Federal Regulations as follows:

PART 1 – GENERAL REGULATIONS UNDER THE COMMODITY EXCHANGE ACT
77

1. The authority citation for part 1 is revised to read as follows:

Authority: 7 U.S.C. 1a, 2, 5, 6, 6a, 6b, 6c, 6d, 6e, 6f, 6g, 6h, 6i, 6j, 6k, 6l, 6m, 6n, 6o, 

6p, 7, 7a, 7b, 8, 9, 12, 12a, 12c, 13a, 13a–1, 16, 16a, 19, 21, 23, and 24, as amended by Title XIII 

of the Food, Conservation and Energy Act of 2008, Pub. L. No. 110-246, 122 Stat. 1624 (June 

18, 2008).

2. Add §1.45 in part 1 to read as follows:

§ 1.45. Application for a swap dealer exemption. 

(a) Persons seeking an exemption from the speculative position limits established by the 

Commission for referenced energy contracts under §151.2 of this chapter, pursuant to an 

exemption for swap dealers under §151.3(a)(2) of this chapter, shall:

(1) File an initial application for an exemption and, thereafter, update such application 

annually, as the Commission shall require;

(2) Provide as part of the application, all information required by the Commission, 

including but not limited to:

(i) A completed Form 40 along with the information required under §18.04 of this 

chapter;

(ii) A certification that the person is a swap dealer as defined in §151.1 of this chapter; 

and

(iii) Specific consent to having their name published on the Commission’s website 

(http://www.cftc.gov) as having received a swap dealer exemption from the speculative position 

limits; provided however, that such list shall be published no more than once annually, that no 

publication of the name of a swap dealer shall be made earlier than six calendar months 

following the date on which the exemption was granted, and that such publication shall not 
78

disclose the related commodities in which the person is swap dealer or any other information 

provided by the swap dealer to the Commission that would be inconsistent with section 8(a)(1)

of the Act; and 

(3) Comply with the reporting requirements of §20.02 of this chapter.

(b) Form, manner and time of filing. 

(1) An application under paragraph (a) of this section shall be submitted in the format and 

in the manner and within the time specified by the Commission. 

(2) The Commission hereby delegates, until such time as the Commission orders 

otherwise, to the Director of the Division of Market Oversight and to such members of the 

Commission’s staff acting under the Director’s direction as the Director may designate, the 

authority to specify the format, manner and time period for applications to be submitted under 

paragraph (a) of this section. The Director may submit to the Commission for its consideration 

any matter that has been delegated in this paragraph. Nothing in this paragraph prohibits the 

Commission, at its election, from exercising the authority delegated in this paragraph.

3. Add part 20 to read as follows:

PART 20 – REPORTS IN CONNECTION WITH POSITIONS IN REFERENCED 

ENERGY CONTRACTS

Sec.

20.00 Conditional-spot-month position limit.

20.01 Bona fide hedging.

20.02 Reports from swap dealers. 

20.03 Delta-adjusted positions.

20.04 Form, manner and time of filing.
79

Authority: 7 U.S.C. 1a, 2, 2a, 4, 6a, 6c, 6f, 6g, 6i, 6k, 6m, 6n, 7, 7a, 12a, 19 and 21, as 

amended by Title XIII of the Food, Conservation and Energy Act of 2008, Public Law 110–246, 

122 Stat. 1624 (June 18, 2008).

§ 20.00 Conditional-spot-month position limit.

(a) Information required. All persons that acquire positions in a referenced energy 

contract pursuant to the conditional-spot-month position limit of §151.2(a)(2) of this chapter 

shall submit to the Commission a Form 40 and provide the information required under §18.04 of 

this chapter.

(b) Additional cash and derivatives position data. All persons subject to paragraph (a) of 

this section shall also submit the following position data, net long or short, on Part A of Form 

404:

(1) The trader’s cash positions in contracts priced at a fixed price differential (including a 

zero differential) to the referenced energy contract or the contract’s underlying commodity;

(2) The trader’s cash positions in contracts priced to a cash market index that includes 

quotations or prices for spot or forward contracts in the referenced energy contract’s underlying 

commodity;

(3) The trader’s positions in cleared or bilateral swap agreements with a fixed price 

differential (including zero) to the referenced energy contract or the contract’s underlying 

commodity; and

(4) Positions in any other physically or financially settled contracts that are economically 

related to the trader’s positions that are acquired pursuant to the conditional-spot-month position 

limit.

§ 20.01 Bona fide hedging.
80

(a) Information required. All persons that acquire positions in a referenced energy 

contract pursuant to the bona fide hedge exemption of §151.3(a)(1) of this chapter shall submit to 

the Commission a Form 40 and provide the information required under §18.04 of this chapter.

(b) Additional information on cash market activities. All persons subject to paragraph (a) 

of this section shall also submit the following information on Part B of Form 404:

(1) The quantity of stocks owned of the commodity that underlies a referenced energy 

contract and its products and by-products;

(2) The quantity of fixed price purchase commitments open in such commodity and its 

products and by-products; 

(3) The quantity of fixed price sale commitments open in such commodity and its 

products and by-products;

(4) For unsold anticipated commercial services or output directly connected to producing, 

transporting, refining, merchandising, marketing, or processing a commodity underlying a 

referenced energy contract:

(i) Annual sales of such services or output for the three complete fiscal years preceding 

the current fiscal year; and

(ii) Anticipated sales of such services or output for the period hedged; and

(5) For unfilled anticipated requirements:

(i) Annual requirements of such commodity for the three complete fiscal years preceding 

the current fiscal year; and

(ii) Anticipated requirements of such commodity for the period hedged.

(6) The shares of an investment vehicle, including, but not limited to, exchange-traded 

funds, registered investment companies, commodity pools and private investment companies, 
81

that holds or owns a referenced energy contract or the commodity that underlies a referenced 

energy contract and its products and by-products.

(c) Conversion methodology. Persons engaged in the hedging of commercial activity that 

does not involve the same quantity or commodity as the quantity or commodity associated with 

positions in referenced energy contracts shall furnish this information both in terms of the actual 

quantity and commodity used in the trader’s normal course of business and in terms of the 

referenced energy contracts that are sold or purchased. In addition, such persons shall explain 

the methodology used for determining the ratio of conversion between the actual or anticipated 

cash positions and the trader’s positions in referenced energy contracts.

§ 20.02 Reports from swap dealers. 

(a) Initial reports. Persons who have received a swap dealer exemption pursuant to 

§151.3(a)(2) of this chapter from the speculative position limits established by the Commission 

for referenced energy contracts under §151.2 of this chapter shall provide on Part C of Form 404 

to the Commission, and to any registered entity on which the swap dealer’s referenced energy 

contract positions are listed, a monthly report including:

(1) Swap positions based upon the commodity underlying the referenced energy contracts 

separately for proprietary and customer accounts on a daily basis; and

(2) A daily summary of dealing and trading activity in swaps based upon the commodity 

underlying the referenced energy contracts.

(b) Supplemental reports. Whenever the risk management requirements of a swap dealer 

require it to increase its positions in referenced energy contracts from levels justified by 

information provided in its initial application under §1.45 of this chapter or the swap dealer’s 

most recent report submitted under this section, the swap dealer shall file, on the business day 
82

following the date on which such positions were acquired, a supplemental report in compliance 

with the requirements of paragraph (a) of this section that supports the increase in position levels.

(c) Recordkeeping. Traders that receive a swap dealer exemption under §151.3(a)(2) of 

this chapter shall maintain complete books and records relating to their swap dealing activities 

(including transactional data) and make such books and records, along with a list of 

counterparties to customer swap agreements that support and substantiate the need to offset swap 

agreement risks on reporting markets, available to the Commission upon request.

§ 20.03 Delta-adjusted positions.

(a) Information required. All persons with referenced energy contract positions in excess 

of the position limits of §151.2 of this chapter that acquire such positions in reliance on 

§151.3(a)(3) of this chapter shall submit to the Commission a Form 40 and provide the 

information required under §18.04 of this chapter.

(b) Additional information. In addition, such persons shall provide the following on Part 

D of Form 404:

(1) A certification that their positions, in whole or in part, are in excess of the applicable 

limits as a result of the application of a futures-equivalent calculation that adjusts option 

positions by the previous day's risk factor, or delta coefficient; and

(2) Complete position data that demonstrates that the application of a contemporaneous 

risk factor, or delta coefficient, renders the trader compliant with the position limits of §151.2 of 

this chapter on an adjusted basis. 

§ 20.04 Form, manner and time of filing.

Unless otherwise instructed in this part or by the Commission or its designee, the Forms 

and information required to be filed under this part shall be submitted at such time and in a form 
83

and manner specified by the Commission. The Commission hereby delegates, until such time as 

the Commission orders otherwise, to the Director of the Division of Market Oversight and to 

such members of the Commission’s staff acting under the Director’s direction as the Director 

may designate, the authority to specify the format, manner and time period within which the 

Forms and information required to be filed under this part shall be submitted to the Commission. 

The Director may submit to the Commission for its consideration any matter that has been 

delegated in this paragraph. Nothing in this paragraph prohibits the Commission, at its election, 

from exercising the authority delegated in this paragraph.

4. Add part 151 to read as follows:

PART 151 – FEDERAL SPECULATIVE POSITION LIMITS FOR REFERENCED 

ENERGY CONTRACTS

Sec.

151.1 Definitions.

151.2 Position limits for referenced energy contracts.

151.3 Exemptions for referenced energy contracts.

151.4 Aggregation of positions.

Authority: 7 U.S.C. 1a, 2, 2a, 4, 6a, 6c, 6f, 6g, 6i, 6k, 6m, 6n, 7, 7a, 12a, 19 and 21, as 

amended by Title XIII of the Food, Conservation and Energy Act of 2008, Public Law 110–246, 

122 Stat. 1624 (June 18, 2008).

§ 151.1 Definitions.

As used in this part –
84

Basis contract means a futures or option contract that is cash settled based on the 

difference in price of the same commodity (or substantially the same commodity) at different 

delivery points;

Calendar spread contract means a futures or option contract that represents the difference 

between the settlement prices in one month of a referenced energy contract and another month’s 

settlement price for the same referenced energy contract;

Contracts of the same class mean referenced energy contracts (including option contracts 

on a futures-equivalent basis) on a single reporting market that are based on the same commodity 

and delivered in the same manner (cash-settled or physically-delivered), provided however, that 

during their spot month, contracts shall be considered contracts of the same class if, in addition, 

such contracts expire on the same trading day;

Diversified commodity index means a commodity index with price components that 

include energy as well as non-energy commodities, provided however, that futures and option 

contracts based on a diversified commodity index that incorporates the price of a commodity 

underlying a referenced energy contract’s commodity which are used to circumvent the 

speculative position limits, shall be considered to be referenced energy contracts for the purpose 

of applying the position limits of §151.2 of this chapter;

Inter-commodity spread contract means a futures or option contract that is based on the 

price difference between a referenced energy contract and another commodity contract;

Referenced energy contract means a physically-delivered or cash-settled futures or option 

contract, other than a basis contract or contract on a diversified commodity index, that is a:

(1) New York Mercantile Exchange Henry Hub natural gas contract (NG), or any other 

natural gas contract that is exclusively or partially based on a trading unit of 10,000 million 
85

British thermal units (mmBtu) of natural gas delivered at the Henry Hub pipeline interchange in 

Erath, Louisiana;

(2) New York Mercantile Exchange Light Sweet crude oil contract (CL), or any other 

crude oil contract that is exclusively or partially based on a trading unit of 1,000 U.S. barrels of 

light sweet crude oil delivered at the Cushing crude oil storage complex in Cushing, Oklahoma;

(3) New York Mercantile Exchange New York Harbor No. 2 heating oil contract (HO), 

or any other heating oil contract that is exclusively or partially based on a trading unit of 1,000 

U.S. barrels of No. 2 fuel oil delivered at an ex-shore facility in New York Harbor;

(4) New York Mercantile Exchange New York Harbor gasoline blendstock (RBOB) 

contract, or any other gasoline contract that is exclusively or partially based on a trading unit of 

1,000 U.S. barrels of reformulated gasoline blendstock for oxygen blend delivered at an ex-shore 

facility in New York Harbor; or

(5) Fraction or multiple of the contracts described in paragraphs (1) through (4) of this 

section, so that when viewed on a fractional basis or as a multiple, such contract is based on the 

same commodity in equivalent trading units;

Reporting market means a reporting market as defined in §15.00 of this chapter;

Spot month means:

(1) For a contract that allows trading concurrently with the issuance of delivery notices, 

the futures contract next to expire during that period of time beginning at the close of trading on 

the trading day preceding the first day on which delivery notices can be issued to the clearing 

organization of a registered entity;
86

(2) For a contract that does not allow trading concurrently with the issuance of delivery 

notices, the futures contract next to expire during that period of time beginning at the close of 

trading on the third trading day preceding the last trading day; or

(3) For a contract that cash-settles based on the price of one or more physically-delivered 

contracts, the period of time that is the spot-month for such physically-delivered contracts; 

Spread contract means either a calendar spread contract or an inter-commodity spread 

contract; 

Swap agreement means a swap agreement as defined in §35.1(b)(1) of this chapter; 

Swap dealer means, solely for the purposes of this part and §1.45 and part 20 of this 

chapter, any person who, as a significant part of its business, holds itself out as a dealer in swaps, 

makes a market in swaps, regularly engages in the purchase of swaps and their resale to 

customers in the ordinary course of a business, or engages in any activity causing the person to 

be commonly known in the trade as a dealer or market maker in swaps;

Unless specifically defined otherwise, the terms defined in §150.1 of this chapter shall 

have the same meaning as they do in that section.

§ 151.2 Position limits for referenced energy contracts.

(a) Spot-month position limits. Except as otherwise authorized in §151.3, no person may 

hold or control positions in contracts of the same class when such positions, net long or net short, 

are in excess of:

(1) For physically-delivered contracts, a spot-month position limit, fixed by the 

Commission at one-quarter of the estimated spot-month deliverable supply; or

(2) For contracts that cash settle based on prices of physically-delivered contracts, a

conditional-spot-month position limit, fixed by the Commission at one-quarter of the estimated 
87

spot-month deliverable supply, provided that, a trader may, if permitted by reporting market 

rules adopted to implement this paragraph, acquire or hold spot-month positions equal to the 

product of the above specified level and the spot-month multiplier of five if the trader does not 

hold positions in spot-month physically-delivered referenced energy contracts and the trader 

complies with the reporting requirements of part 20 of this chapter.

(b) All-months-combined and single-month limits. Except as otherwise authorized in 

§151.3, no person may hold or control positions in a referenced energy contract when such 

positions, net long or net short, are in excess of:

(1) Aggregate position limits:

(i) An all-months-combined aggregate position limit, across reporting markets, fixed by 

the Commission at 10% of the open interest of that referenced energy contract aggregated across 

all reporting markets up to an open interest level of 25,000 contracts with a marginal increase of 

2.5% of aggregated open interest thereafter; or

(ii) A single-month aggregate position limit that is two-thirds of the position limit fixed 

pursuant to paragraph (b)(1)(i) of this section.

(2) Reporting market position limits:

(i) For a reporting market, an all-months-combined position limit for contracts of the 

same class that is the lower of the aggregate position limit for a referenced energy contract under 

paragraph (b)(1)(i) of this section or, for contracts of the same class, 30% of a class’s average 

combined futures and delta-adjusted option month-end open interest for the most recent calendar 

year on that reporting market; or

(ii) For a reporting market, a single-month position limit for contracts of the same class 

that is two-thirds of the position limit fixed pursuant to paragraph (b)(2)(i) of this section, 
88

provided however, that such positions shall not be greater than two times the level of the position 

limit fixed pursuant to paragraph (b)(2)(i) of this section on a gross basis.

(c) Minimum position limit. The position limits of §151.2(b)(2)(i) shall be replaced by 

an all-months-combined position limit, fixed by the Commission at the greater of 5,000 contracts 

or 1% of the open interest aggregated across all reporting markets, if the resulting position limit 

calculated under this paragraph is higher than an otherwise applicable position limit. 

(d) Deliverable supply. 

(1) Reporting markets listing physically-delivered referenced energy contracts are 

required to submit to the Commission an estimate of deliverable supply by the 31st of December 

of each calendar year. 

(2) The estimate submitted under paragraph (d)(1) of this section shall be accompanied 

by a description of the methodology used to derive the estimate along with any statistical data 

supporting the reporting market’s estimate of deliverable supply. 

(3) The Commission shall base its fixing of spot-month position limits on the estimate 

provided under paragraph (d)(1) of this section unless the Commission determines to rely on its 

own estimate of deliverable supply. 

(4) The Commission may base its initial fixing of spot-month position limits solely on its 

own estimates of deliverable supply.

(e) Calculation of limits for the purposes of this section. 

(1) For the purpose of calculating positions under this section, referenced energy option 

contracts that do not settle into futures contracts shall be included in any calculation on a futuresequivalent basis and treated as futures contracts under the provisions of this section.
89

(2) Open interest shall be calculated by combining the month-end futures open interest 

and the open interest in its related option contract, on a delta-adjusted basis, for all months listed 

on a reporting market during the most recent calendar year.

(3) In determining or calculating all levels and limits under this section, a resulting 

number shall be rounded up to the nearest hundred. 

(4) For the purpose of calculating position limits under this section, referenced energy 

contracts that are spread contracts, as defined by §151.1, shall be excluded from any calculation 

of open interest.

(f) Administrative process for fixing and publishing position limits. 

(1) The Commission shall fix the spot-month position limits (and estimates of deliverable 

supply) and the all-months-combined position limits under §151.2, aggregately across all 

reporting markets and separately for each reporting market, by January 31st of each calendar 

year, provided that, the initial fixing of position limits may occur on a different date.

(2) The Commission hereby delegates, until such time as the Commission orders 

otherwise, to the Director of the Division of Market Oversight and to such members of the 

Commission’s staff acting under the Director’s direction as the Director may designate, the 

authority to fix the position limits to be established pursuant to paragraph (f)(1) of this section. 

The Director may submit to the Commission for its consideration any matter that has been 

delegated in this paragraph. Nothing in this paragraph prohibits the Commission, at its election, 

from exercising the authority delegated in this paragraph.

(3) The fixed position limits shall be published on the Commission’s website 

(http://www.cftc.gov) and shall become effective on the 1st day of March immediately following 

the fixing date (or 30 complete calendar days following an initial fixing of position limits under 
90

this part if such fixing is on a date other than the 31st of January) and shall remain effective until 

the last day of the immediately following February. 

§ 151.3 Exemptions for referenced energy contracts.

(a) Positions that may exceed limits. The position limits set forth in §151.2 may be 

exceeded to the extent that such positions are:

(1) Upon application to a reporting market for an exemption, positions (other than 

positions that are held to offset risks associated with swap agreements under paragraph (a)(2) of 

this section) held in a proprietary account (as defined in §1.3(y) of this chapter) shown to be 

bona fide hedging transactions, as defined and approved by a reporting market in a manner 

consistent with, but that may differ from (to the extent that such differences are consistent with 

commercial activity in the physical energy markets), §§1.3(z)(1) and (2) of this chapter, provided 

that:

(i) Traders holding positions outside the spot month, and traders holding spot-month 

positions with respect to spot-month positions only, that are greater than or equal to a position 

limit set under §151.2 pursuant to a bona fide hedge exemption shall not also hold or control 

positions speculatively; and 

(ii) Traders holding positions that are greater than or equal to twice a position limit set 

under to §151.2 pursuant to a bona fide hedge exemption shall not also hold or control positions 

pursuant to an exemption under paragraph (a)(2) of this section; 

(2) Upon application under §1.45 of this chapter, swap dealer risk management 

transactions outside of the spot month that are held to offset risks associated with swap 

agreements, which are entered into to accommodate swap customers and are either directly 

linked to the referenced energy contracts or the fluctuations in value of the swap agreements are 
91

substantially related to the fluctuations in the value of the referenced energy contracts, and which 

do not exceed twice the applicable speculative position limits in all-months-combined or in any 

single non-spot-month, provided that traders holding positions under this paragraph shall not also 

hold or control positions speculatively when such the trader's total positions are greater than or 

equal to a position limit set under to §151.2; or

(3) Subsequently demonstrated, in a report to be filed on the calendar day following the 

acquisition of such positions pursuant to part 20 of this chapter, to be below an applicable 

position limit once option contracts that are a part of a trader’s overall position are adjusted by a 

contemporaneous risk factor or delta coefficient for such options. 

(b) Other exemptions. The position limits set forth in §151.2 of this chapter may be 

exceeded to the extent that such positions remain open and were entered into in good faith prior 

to the effective date of any rule, regulation, or order that specifies a limit. 

(c) Call for information. Upon call by the Commission, the Director of the Division of 

Market Oversight or the Director's designee, any reporting market issuing, or any person 

claiming, an exemption from speculative position limits under this section must provide to the 

Commission such information as specified in the call relating to the positions owned or 

controlled by that person, trading done pursuant to the claimed exemption, the futures, options, 

over-the-counter, or cash market positions that support the claim of exemption, and the relevant 

business relationships supporting a claim of exemption.

§ 151.4 Aggregation of positions.

(a) Positions to be aggregated. The position limits set forth in §151.2 of this chapter shall 

apply to: 
92

(1) All positions in accounts in which any person, directly or indirectly, has an ownership 

or equity interest of 10% or greater or, by power of attorney or otherwise, controls trading; or

(2) Positions held by two or more persons acting pursuant to an expressed or implied 

agreement or understanding the same as if the positions were held by, or the trading of the 

positions were done by, a single person.

(b) Positions in pools. Positions in pools in which a trader that is a limited partner, 

shareholder or similar person has an ownership or equity interest of less than 25% need not be 

aggregated with other positions of the trader unless such person, by power of attorney or 

otherwise, controls trading that is done by the pool.

Issued by the Commission this _______ day of January, 2010, in Washington, DC.

_________________________

David Stawick

Secretary of the Commission