II 

★(Star Print)

Calendar No. 882 

110TH CONGRESS 

2D SESSION S. 3268 

To amend the Commodity Exchange Act to prevent excessive price speculation 

with respect to energy commodities, and for other purposes. 

IN THE SENATE OF THE UNITED STATES 

JULY 15, 2008 

Mr. REID (for himself, Mr. DURBIN, Mr. DORGAN, Mrs. MURRAY, Mr. SCHUMER, Mr. CASEY, Ms. MIKULSKI, Mr. CARPER, Ms. KLOBUCHAR, Mr. 

BROWN, Mr. CARDIN, Mr. LEAHY, Mr. MENENDEZ, Mr. REED, Mr. LAUTENBERG, Mr. WYDEN, Mr. JOHNSON, and Mr. DODD) introduced the 

following bill; which was ordered read the first time 

JULY 16, 2008 

Read the second time and placed on the Calendar 

A BILL 

To amend the Commodity Exchange Act to prevent excessive 

price speculation with respect to energy commodities, 

and for other purposes. 

1 Be it enacted by the Senate and House of Representa2 tives of the United States of America in Congress assembled, 

3 SECTION 1. SHORT TITLE; TABLE OF CONTENTS. 

4 (a) SHORT TITLE.—This Act may be cited as the 

5 ‘‘Stop Excessive Energy Speculation Act of 2008’’. 


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1 (b) TABLE OF CONTENTS.—The table of contents of 

2 this Act is as follows: 

Sec. 1. Short title; table of contents. 

Sec. 2. Definition of energy commodity. 

Sec. 3. Speculative limits and transparency of off-shore trading. 

Sec. 4. Authority of Commodity Futures Trading Commission with respect to 

certain traders. 

Sec. 5. Working group of international regulators. 

Sec. 6. Elimination of manipulation and excessive speculation as cause of high 

oil, gas, and energy prices. 

Sec. 7. Large over-the-counter transactions. 

Sec. 8. Index traders and swap dealers. 

Sec. 9. Disaggregation of index funds and other data in energy markets. 

Sec. 10. Additional Commodity Futures Trading Commission employees for improved enforcement. 

Sec. 11. Working Group on Energy Markets. 

Sec. 12. Study of regulatory framework for energy markets. 

Sec. 13. Collection and analysis of information on energy commodities. 

Sec. 14. National natural gas market investigation. 

Sec. 15. Studies; reports. 

Sec. 16. Expedited procedures. 

3 SEC. 2. DEFINITION OF ENERGY COMMODITY. 

4 (a) DEFINITION OF ENERGY COMMODITY.—Section 

5 1a of the Commodity Exchange Act (7 U.S.C. 1a) is 

6 amended— 

7 (1) by redesignating paragraphs (13) through 

8 (34) as paragraphs (14) through (35), respectively; 

9 and 

10 (2) by inserting after paragraph (12) the fol11 lowing: 

12 ‘‘(13) ENERGY COMMODITY.—The term ‘energy 

13 commodity’ means— 

14 ‘‘(A) a petroleum product; and 

15 ‘‘(B) natural gas.’’. 

16 (b) CONFORMING AMENDMENTS.— 


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1 (1) Section 2(c)(2)(B)(i)(II)(cc) of the Com2 modity Exchange Act (7 U.S.C. 

3 2(c)(2)(B)(i)(II)(cc)) is amended— 

4 (A) in subitem (AA), by striking ‘‘section 

5 1a(20)’’ and inserting ‘‘section 1a(21)’’; and 

6 (B) in subitem (BB), by striking ‘‘section 

7 1a(20)’’ and inserting ‘‘section 1a(21)’’. 

8 (2) Section 13106(b)(1) of the Food, Conserva9 tion, and Energy Act of 2008 is amended by striking 

10 ‘‘section 1a(32)’’ and inserting ‘‘section 1a’’. 

11 (3) Section 402 of the Legal Certainty for 

12 Bank Products Act of 2000 (7 U.S.C. 27) is amend13 ed— 

14 (A) in subsection (a)(7), by striking ‘‘sec15 tion 1a(20)’’ and inserting ‘‘section 1a’’; and 

16 (B) in subsection (d)— 

17 (i) in paragraph (1)(B), by striking 

18 ‘‘section 1a(33)’’ and inserting ‘‘section 

19 1a’’; and 

20 (ii) in paragraph (2)(D), by striking 

21 ‘‘section 1a(13)’’ and inserting ‘‘section 

22 1a’’. 


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1 SEC. 3. SPECULATIVE LIMITS AND TRANSPARENCY OF OFF2 SHORE TRADING. 

3 Section 4 of the Commodity Exchange Act (7 U.S.C. 

4 6) is amended by adding at the end the following: 

5 ‘‘(e) FOREIGN BOARDS OF TRADE.— 

6 ‘‘(1) IN GENERAL.—The Commission may not 

7 permit a foreign board of trade to provide to the 

8 members of the foreign board of trade or other par9 ticipants located in the United States, or otherwise 

10 subject to the jurisdiction of the Commission, direct 

11 access to the electronic trading and order matching 

12 system of the foreign board of trade with respect to 

13 an agreement, contract, or transaction in an energy 

14 commodity that settles against any price (including 

15 the daily or final settlement price) of 1 or more con16 tracts listed for trading on a registered entity, un17 less— 

18 ‘‘(A) the foreign board of trade— 

19 ‘‘(i) makes public daily trading infor20 mation regarding the agreement, contract, 

21 or transaction that is comparable to the 

22 daily trading information published by the 

23 registered entity for the 1 or more con24 tracts against which the foreign board of 

25 trade settles; and 


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1 ‘‘(ii) promptly notifies the Commission 

2 of any change regarding— 

3 ‘‘(I) the information that the for4 eign board of trade will make publicly 

5 available; 

6 ‘‘(II) the position limits, specula7 tion limits, and position accountability 

8 provisions that the foreign board of 

9 trade will adopt and enforce; 

10 ‘‘(III) the position reductions re11 quired to prevent manipulation; and 

12 ‘‘(IV) any other area of interest 

13 expressed by the Commission to the 

14 foreign board of trade; and 

15 ‘‘(B) the foreign board of trade (or the for16 eign futures authority that oversees the foreign 

17 board of trade)— 

18 ‘‘(i) adopts position limits (including 

19 related hedge exemption provisions), specu20 lation limits, or position accountability pro21 visions for speculators for the agreement, 

22 contract, or transaction that are com23 parable to the position limits (including re24 lated hedge exemption provisions), specula25 tion limits, or position accountability proviVerDate Aug 31 2005 00:22 Jul 23, 2008 Jkt 069200 PO 00000 Frm 00005 Fmt 6652 Sfmt 6201 E:\BILLS\S3268.PCS S3268

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1 sions adopted by the registered entity for 

2 the 1 or more contracts against which the 

3 foreign board of trade settles; 

4 ‘‘(ii) has the authority to require or 

5 direct market participants to limit, reduce, 

6 or liquidate any position the foreign board 

7 of trade (or the foreign futures authority 

8 that oversees the foreign board of trade) 

9 determines to be necessary to prevent or 

10 reduce the threat of price manipulation, 

11 excessive speculation, price distortion, or 

12 disruption of delivery or the cash settle13 ment process; and 

14 ‘‘(iii) provides information to the 

15 Commission regarding the extent of legiti16 mate and nonlegitimate hedge trading in 

17 the agreement, contract, or transaction 

18 that is comparable to the information that 

19 the Commission determines to be necessary 

20 to publish the commitments of traders re21 port of the Commission for the 1 or more 

22 contracts against which the foreign board 

23 of trade settles. 

24 ‘‘(2) EXISTING FOREIGN BOARDS OF TRADE.— 

25 Paragraph (1) shall not be effective with respect to 


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1 any agreement, contract, or transaction in an energy 

2 commodity executed on a foreign board of trade to 

3 which the Commission had granted direct access 

4 permission prior to the date of enactment of this 

5 subsection until the date that is 180 days after the 

6 date of enactment of this subsection.’’. 

7 SEC. 4. AUTHORITY OF COMMODITY FUTURES TRADING 

8 COMMISSION WITH RESPECT TO CERTAIN 

9 TRADERS. 

10 (a) IN GENERAL.— 

11 (1) RESTRICTION OF FUTURES TRADING TO

12 CONTRACT MARKETS OR DERIVATIVES TRANSACTION

13 EXECUTION FACILITIES.—Section 4(b) of the Com14 modity Exchange Act (7 U.S.C. 6(b)) is amended by 

15 inserting after the first sentence the following: ‘‘The 

16 Commission may adopt rules and regulations requir17 ing the maintenance of books and records by any 

18 person that is located within the United States (in19 cluding the territories and possessions of the United 

20 States) or that enters trades directly into the trade 

21 matching system of a foreign board of trade from 

22 the United States (including the territories and pos23 sessions of the United States).’’ 


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1 (2) EXCESSIVE SPECULATION AS A BURDEN ON

2 INTERSTATE COMMERCE.—Section 4a of the Com3 modity Exchange Act (7 U.S.C. 6a) is amended— 

4 (A) in subsection (e), in the second sen5 tence— 

6 (i) by striking ‘‘this Act for any per7 son’’ and inserting ‘‘this Act for (1) any 

8 person’’; and 

9 (ii) by inserting after ‘‘to section 

10 5c(c)(1)’’ the following: ‘‘, and (2) any per11 son that is located within the United 

12 States (including the territories and pos13 sessions of the United States) or that en14 ters trades directly into the trade matching 

15 system of a foreign board of trade from 

16 the United States (including the territories 

17 and possessions of the United States) to 

18 violate any bylaw, rule, regulation, or reso19 lution of any foreign board of trade or for20 eign futures authority fixing limits on the 

21 amount of trading that may be carried out 

22 or positions that may be held under any 

23 contract of sale of an energy commodity 

24 for future delivery or under any option on 

25 such contract or energy commodity, that 


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1 settles against any price (including the 

2 daily or final settlement price) of 1 or 

3 more contracts listed for trading on a reg4 istered entity’’; and 

5 (B) by adding at the end the following: 

6 ‘‘(f) CONSULTATION.—Before taking any action 

7 under subsection (e), the Commission shall consult with 

8 the appropriate— 

9 ‘‘(1) foreign board of trade; and 

10 ‘‘(2) foreign futures authority.’’. 

11 (3) VIOLATIONS.—Section 9(a) of the Com12 modity Exchange Act (7 U.S.C. 13(a)) is amended 

13 by inserting ‘‘(including any person trading on a for14 eign board of trade)’’ after ‘‘Any person’’ each place 

15 it appears. 

16 (4) EFFECT.—No amendment made by this 

17 subsection limits any of the otherwise applicable au18 thorities of the Commodity Futures Trading Com19 mission. 

20 SEC. 5. WORKING GROUP OF INTERNATIONAL REGU21 LATORS. 

22 Section 4a of the Commodity Exchange Act (7 U.S.C. 

23 6a) (as amended by section 4(a)(2)(B)) is amended by 

24 adding at the end the following: 


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1 ‘‘(g) WORKING GROUP OF INTERNATIONAL REGU2 LATORS.—Not later than 90 days after the date of enact3 ment of this subsection, the Commission shall convene a 

4 working group of international regulators to develop uni5 form international reporting and regulatory standards to 

6 ensure the protection of the energy futures markets from 

7 nonlegitimate hedge trading, excessive speculation, manip8 ulation, location shopping, and lowest common dominator 

9 regulation, each of which pose systemic risks to all energy 

10 futures markets, countries, and consumers.’’. 

11 SEC. 6. ELIMINATION OF MANIPULATION AND EXCESSIVE 

12 SPECULATION AS CAUSE OF HIGH OIL, GAS, 

13 AND ENERGY PRICES. 

14 Section 4a of the Commodity Exchange Act (7 U.S.C. 

15 6a) (as amended by section 5) is amended by adding at 

16 the end the following: 

17 ‘‘(h) ELIMINATION OF EXCESSIVE SPECULATION

18 AND NONLEGITIMATE HEDGE TRADING AS A CAUSE OF

19 HIGH OIL, GAS, AND ENERGY PRICES.— 

20 ‘‘(1) DEFINITION OF LEGITIMATE HEDGE

21 TRADING.— 

22 ‘‘(A) IN GENERAL.—The term ‘legitimate 

23 hedge trading’ means the conduct of trading 

24 that involves transactions by commercial pro25 ducers and purchasers of actual physical petroVerDate Aug 31 2005 00:22 Jul 23, 2008 Jkt 069200 PO 00000 Frm 00010 Fmt 6652 Sfmt 6201 E:\BILLS\S3268.PCS S3268

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1 leum and energy commodities for future deliv2 ery and the direct counterparties to such trades 

3 (regardless of whether the counterparties are 

4 commercial producers or purchasers). 

5 ‘‘(B) INCLUSION.—To the extent a com6 mercial producer or purchaser of an actual 

7 physical energy commodity for future delivery 

8 trades with an intermediary (referred to in this 

9 subparagraph as an ‘initial trade’), each subse10 quent trade by the intermediary arising solely 

11 due to the initial trade and that directly results 

12 from such initial trade (referred to in this sub13 paragraph as a ‘follow-on trade’) shall be con14 sidered to be the conduct of ‘legitimate hedge 

15 trading’ if each follow-on trade executed by the 

16 intermediary is— 

17 ‘‘(i) done proximate to the initial 

18 trade; and 

19 ‘‘(ii) in the aggregate, economically 

20 the same in size and substance as the ini21 tial trade. 

22 ‘‘(2) IDENTIFICATION OF LEGITIMATE HEDGE

23 TRADING.—In carrying out this Act, the Commission 

24 shall distinguish between— 

25 ‘‘(A) legitimate hedge trading; and 


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1 ‘‘(B) all other trading in energy commod2 ities. 

3 ‘‘(3) TYPE OF TRADING.—Notwithstanding any 

4 other provision of this Act, the Commission shall 

5 modify (or delegate any appropriate entity to mod6 ify) such definitions, classifications, and data collec7 tion under this Act as are necessary to ensure that 

8 all direct and indirect parties and counterparties to 

9 all trades in the energy commodities market are 

10 clearly identified for all purposes as engaging in— 

11 ‘‘(A) legitimate hedge trading; or 

12 ‘‘(B) any other type of trading. 

13 ‘‘(4) ELIMINATION OF EXCESSIVE SPECULA14 TION.— 

15 ‘‘(A) IN GENERAL.—Notwithstanding any 

16 other provision of this Act, the Commission 

17 shall review all regulations, rules, exemptions, 

18 exclusions, guidance, no action letters, orders, 

19 and other actions taken by or on behalf of the 

20 Commission (including any action or inaction 

21 taken pursuant to delegated authority by an ex22 change, self-regulatory organization, or any 

23 other entity) regarding all energy futures mar24 ket participants or market activity (referred to 


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1 in this subsection individually as a ‘prior ac2 tion’) to ensure that— 

3 ‘‘(i) legitimate hedge trading is pro4 tected and promoted; and 

5 ‘‘(ii) excessive speculation is elimi6 nated. 

7 ‘‘(B) PRIOR ACTION.— 

8 ‘‘(i) IN GENERAL.—The Commission 

9 shall consider modifying or revoking the 

10 application after the date of enactment of 

11 this subsection of any prior action taken 

12 by the Commission (including any prior ac13 tion taken pursuant to delegated authority 

14 by any other entity) with respect to any 

15 trade on any market, exchange, foreign 

16 board of trade, swap or swap transaction, 

17 index or index market participant or trade, 

18 hedge fund, pension fund, and any other 

19 transaction, trade, trader, or petroleum or 

20 energy futures market activity unless the 

21 Commission affirmatively determines that 

22 such prior action will protect and promote 

23 legitimate hedge trading and does not per24 mit or encourage excessive speculation. 


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1 ‘‘(ii) REVOCATION.—In carrying out 

2 this subparagraph, the Commission shall 

3 consider modifying or revoking the results 

4 of each prior action that, in whole or in 

5 part, has the direct or indirect affect of 

6 limiting, reducing, or eliminating the filing 

7 of any report or data regarding any direct 

8 or indirect trade or trader, including the 

9 filing of large trader reports. 

10 ‘‘(C) SPECULATIVE POSITION LIMITS AP11 PLICABLE TO NONLEGITIMATE HEDGE TRADING

12 IN ENERGY COMMODITIES AND DERIVATIVES.— 

13 ‘‘(i) SPECULATIVE POSITION LIM14 ITS.— 

15 ‘‘(I) IN GENERAL.—Not later 

16 than 30 days after the date of enact17 ment of this subsection, the Commis18 sion shall impose, by rule, regulation, 

19 or order, speculative position limits on 

20 trading that is not legitimate hedge 

21 trading. 

22 ‘‘(II) APPLICATION.—The Com23 mission shall apply the limits imposed 

24 under subclause (I) to any person who 

25 executes accounts, agreements, or 


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1 transactions involving an energy com2 modity for the own account of the 

3 person and to any person for whom 

4 an agent in fact or substance executes 

5 accounts, agreements, or transactions 

6 involving an energy commodity, on a 

7 registered entity or in covered over8 the-counter trading. 

9 ‘‘(ii) ADVISORY GROUP.— 

10 ‘‘(I) IN GENERAL.—Not later 

11 than 30 days after the date of enact12 ment of this subsection, the Commis13 sion shall convene an advisory group 

14 primarily consisting of commercial 

15 producers and purchasers of actual 

16 physical energy commodities for fu17 ture delivery. 

18 ‘‘(II) RECOMMENDATIONS.—Not 

19 later than 60 days after the date on 

20 which the advisory group is convened 

21 under subclause (I), and annually 

22 thereafter, the advisory group shall 

23 submit to the Commission rec24 ommendations regarding an appro25 priate level for position limits— 


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1 ‘‘(aa) that are designed for 

2 traders or entities that are not 

3 legitimate hedge traders; and 

4 ‘‘(bb) to replace the position 

5 limits imposed by the Commis6 sion under clause (i)(I). 

7 ‘‘(III) APPLICABILITY OF

8 FACA.—The advisory group shall be 

9 subject to the Federal Advisory Com10 mittee Act (5 U.S.C. App.). 

11 ‘‘(iii) REVIEW OF RECOMMENDA12 TIONS.—Not later than 270 days after the 

13 date of enactment of this subsection, the 

14 Commission shall— 

15 ‘‘(I) analyze and review the rec16 ommendations submitted by the advi17 sory group under clause (ii)(II); and 

18 ‘‘(II) submit to the appropriate 

19 committees of Congress a report de20 scribing each recommendation (includ21 ing each modification to the statutory 

22 authority of the Commission that the 

23 Commission determines to be nec24 essary to effectuate each recommenda25 tion). 


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1 ‘‘(iv) RULEMAKING.— 

2 ‘‘(I) IN GENERAL.—Not later 

3 than 18 months after the date of en4 actment of this subsection, the Com5 mission shall promulgate a final rule 

6 that establishes speculative position 

7 limits— 

8 ‘‘(aa) for any person en9 gaged in nonlegitimate hedge 

10 trading of an energy commodity; 

11 and 

12 ‘‘(bb) that are consistent 

13 with this Act. 

14 ‘‘(II) EFFECTIVE DATE.—The 

15 final rule described in subclause (I) 

16 shall take effect on the date that is 30 

17 days after the date on which the Com18 mission promulgates the final rule. 

19 ‘‘(v) DEVELOPMENT OF METHOD20 OLOGY.— 

21 ‘‘(I) IN GENERAL.—Not later 

22 than 180 days after the date of enact23 ment of this subsection, the Commis24 sion shall propose a methodology to 

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1 tive position limits at the control enti2 ty level for all nonlegitimate traders of 

3 energy commodities— 

4 ‘‘(aa) on designated contract 

5 markets; 

6 ‘‘(bb) on derivatives trans7 action execution facilities; and 

8 ‘‘(cc) in over-the-counter 

9 commodity derivatives. 

10 ‘‘(II) REPORT.—Not later than 

11 180 days after the date of enactment 

12 of this subsection, the Commission 

13 shall submit to the appropriate com14 mittees of Congress a report that con15 tains— 

16 ‘‘(aa) any recommendations 

17 regarding any additional statu18 tory authority that the Commis19 sion determines to be necessary 

20 for the imposition of the specula21 tive position limits described in 

22 subclause (I); and 

23 ‘‘(bb) a description of the 

24 resources that the Commission 

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1 plement the speculative position 

2 limits. 

3 ‘‘(D) MAXIMUM LEVEL OF SPECULATIVE

4 POSITION LIMITS.— 

5 ‘‘(i) IN GENERAL.—In establishing 

6 speculative position limits under this sec7 tion (including subparagraph (C)(iv)), the 

8 Commission shall set the limits at the max9 imum level practicable— 

10 ‘‘(I) to ensure sufficient market 

11 liquidity for the conduct of legitimate 

12 hedging activities; 

13 ‘‘(II) to ensure that price dis14 covery is not disrupted; 

15 ‘‘(III) to protect and promote le16 gitimate hedge trading; 

17 ‘‘(IV) to minimize nonlegitimate 

18 hedge trading; and 

19 ‘‘(V) to eliminate excess specula20 tion. 

21 ‘‘(ii) EFFECT.— 

22 ‘‘(I) IN GENERAL.—Nothing in 

23 this subparagraph modifies the spot 

24 month position limitation of 3,000 


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1 contracts that is designed to prevent a 

2 corner or squeeze at the delivery date. 

3 ‘‘(II) COMMISSION ACTION.—If 

4 the Commission sets position limits 

5 under clause (i) that are different 

6 from the spot month position limit de7 scribed in subclause (I), the Commis8 sion shall include in the report re9 quired under subparagraph (C)(v)(II) 

10 an analysis describing the reasons for 

11 the position limits.’’. 

12 SEC. 7. LARGE OVER-THE-COUNTER TRANSACTIONS. 

13 Section 2 of the Commodity Exchange Act (7 U.S.C. 

14 2) is amended by adding at the end the following: 

15 ‘‘(j) OVER-THE-COUNTER TRANSACTIONS.— 

16 ‘‘(1) DEFINITIONS.—In this subsection: 

17 ‘‘(A) COVERED OVER-THE-COUNTER

18 TRANSACTION.—The term ‘covered over-the19 counter transaction’ means an over-the-counter 

20 transaction the reporting of which is required 

21 by the Commission as the result of a determina22 tion made under paragraph (3)(C). 

23 ‘‘(B) COVERED PERSON.—The term ‘cov24 ered person’ means a person that enters into a 

25 covered over-the-counter transaction. 


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1 ‘‘(C) MAJOR MARKET DISTURBANCE.—The 

2 term ‘major market disturbance’ means any 

3 disturbance in a commodity market that dis4 rupts the liquidity and price discovery function 

5 of that market from accurately reflecting the 

6 forces of supply and demand for a commodity, 

7 including— 

8 ‘‘(i) a threatened or actual market 

9 manipulation or corner; 

10 ‘‘(ii) excessive speculation; 

11 ‘‘(iii) nonlegitimate hedge trading; 

12 and 

13 ‘‘(iv) any action of the United States 

14 or a foreign government that affects a 

15 commodity. 

16 ‘‘(D) MARKET DISTURBANCE.—The term 

17 ‘market disturbance’ shall be interpreted in ac18 cordance with section 8a(9)). 

19 ‘‘(E) OVER-THE-COUNTER TRANS20 ACTION.—The term ‘over-the-counter trans21 action’ means a contract, agreement, or trans22 action in a petroleum or energy commodity that 

23 is— 

24 ‘‘(i) entered into only between persons 

25 that are eligible contract participants at 


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1 the time the persons enter into the agree2 ment, contract, or transaction; 

3 ‘‘(ii) not entered into on a trading fa4 cility; and 

5 ‘‘(iii) not a sale of any cash com6 modity for deferred shipment or delivery. 

7 ‘‘(2) COMMISSION OVERSIGHT AUTHORITY.— 

8 ‘‘(A) IN GENERAL.—In the case of a major 

9 market disturbance, as determined by the Com10 mission, the Commission may require any trad11 er subject to the reporting requirements de12 scribed in paragraph (3) to take such action as 

13 the Commission considers to be necessary to 

14 maintain or restore orderly trading in any con15 tract listed for trading on a registered entity, 

16 including— 

17 ‘‘(i) the liquidation of any over-the18 counter transaction; and 

19 ‘‘(ii) the fixing of any limit that may 

20 apply to a market position involving any 

21 over-the-counter transaction acquired in 

22 good faith before the date of the deter23 mination of the Commission. 

24 ‘‘(B) JUDICIAL REVIEW.—Any action 

25 taken by the Commission under subparagraph 


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1 (A) shall be subject to judicial review carried 

2 out in accordance with section 8a(9). 

3 ‘‘(3) REPORTING; RECORDKEEPING.— 

4 ‘‘(A) IN GENERAL.—The Commission shall 

5 require each covered person to submit to the 

6 Commission a report— 

7 ‘‘(i) at such time and in such manner 

8 as the Commission determines to be appro9 priate; and 

10 ‘‘(ii) containing the information re11 quired under subparagraph (B) to assist 

12 the Commission in detecting and pre13 venting potential price manipulation of, or 

14 excessive speculation in, any contract listed 

15 for trading on a registered entity. 

16 ‘‘(B) CONTENTS OF REPORT.—A report re17 quired under subparagraph (A) shall contain— 

18 ‘‘(i) information describing large trad19 ing positions of the covered person ob20 tained through 1 or more over-the-counter 

21 transactions that involve— 

22 ‘‘(I) substantial quantities of a 

23 commodity in the cash market; or 


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1 ‘‘(II) substantial positions, in2 vestments, or trades in agreements or 

3 contracts relating to the commodity; 

4 ‘‘(ii) any other information relating to 

5 each covered over-the-counter transaction 

6 carried out by the covered person that the 

7 Commission determines to be necessary to 

8 accomplish the purposes described in sub9 paragraph (A); and 

10 ‘‘(iii) information distinguishing legiti11 mate hedge trading from nonlegitimate 

12 hedge trading. 

13 ‘‘(C) DETERMINATION OF COVERED OVER14 THE-COUNTER TRANSACTIONS.— 

15 ‘‘(i) IN GENERAL.—The Commission 

16 shall identify each large over-the-counter 

17 transaction or class of large over-the18 counter transactions the reporting of which 

19 the Commission determines to be appro20 priate to assist the Commission in detect21 ing and preventing potential price manipu22 lation of, or excessive speculation in, any 

23 contract listed for trading on a registered 

24 entity. 


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1 ‘‘(ii) MANDATORY FACTORS FOR DE2 TERMINATIONS.— 

3 ‘‘(I) IN GENERAL.—In carrying 

4 out a determination under clause (i), 

5 the Commission shall consider the ex6 tent to which each factor described in 

7 subclause (II) applies. 

8 ‘‘(II) FACTORS.—The factors re9 quired for carrying out a determina10 tion under clause (i) include wheth11 er— 

12 ‘‘(aa) a standardized agree13 ment is used to execute the over14 the-counter transaction; 

15 ‘‘(bb) the over-the-counter 

16 transaction settles against any 

17 price (including the daily or final 

18 settlement price) of 1 or more 

19 contracts listed for trading on a 

20 registered entity; 

21 ‘‘(cc) the price of the over22 the-counter transaction is re23 ported to a third party, pub24 lished, or otherwise disseminated; 


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1 ‘‘(dd) the price of the over2 the-counter transaction is ref3 erenced in any other transaction; 

4 ‘‘(ee) there is a significant 

5 volume of the over-the-counter 

6 transaction or class of over-the7 counter transactions; and 

8 ‘‘(ff) there is any other fac9 tor that the Commission deter10 mines to be appropriate. 

11 ‘‘(D) RECORDKEEPING.—The Commission, 

12 by rule, shall require each covered person— 

13 ‘‘(i) in accordance with section 4i, to 

14 maintain such records as directed by the 

15 Commission for a period of 5 years, or 

16 longer, if directed by the Commission; and 

17 ‘‘(ii) to provide such records upon re18 quest to the Commission or the Depart19 ment of Justice. 

20 ‘‘(4) PROTECTION OF PROPRIETARY INFORMA21 TION.—In carrying out this subsection, the Commis22 sion may not— 

23 ‘‘(A) require the real-time publication of 

24 any proprietary information; 


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1 ‘‘(B) prohibit the commercial sale or li2 censing of any real-time proprietary informa3 tion; and 

4 ‘‘(C) except as provided in section 8, pub5 licly disclose any information relating to any 

6 market position, business transaction, trade se7 cret, or name of any customer of a covered per8 son. 

9 ‘‘(5) APPLICABILITY.—Notwithstanding sub10 sections (g) and (h), and any exemption issued by 

11 the Commission for any energy commodity, each 

12 over-the-counter transaction shall be subject to this 

13 subsection. 

14 ‘‘(6) SAVINGS CLAUSE.—Nothing in this sub15 section modifies or alters— 

16 ‘‘(A) the guidance of the Commission; or 

17 ‘‘(B) any applicable requirements with re18 spect the disclosure of proprietary informa19 tion.’’. 

20 SEC. 8. INDEX TRADERS AND SWAP DEALERS. 

21 Section 4 of the Commodity Exchange Act (7 U.S.C. 

22 6) (as amended by section 3) is amended by adding at 

23 the end the following: 


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1 ‘‘(f) INDEX TRADERS AND SWAP DEALERS.—Not 

2 later than 60 days after the date of enactment of this sub3 section, the Commission shall— 

4 ‘‘(1) routinely require detailed reporting from 

5 index traders and swap dealers in markets under the 

6 jurisdiction of the Commission; 

7 ‘‘(2) reclassify the types of traders for regu8 latory and reporting purposes to distinguish between 

9 index traders and swaps dealers; 

10 ‘‘(3) review the trading practices for index trad11 ers in markets under the jurisdiction of the Commis12 sion— 

13 ‘‘(A) to ensure that index trading is not 

14 adversely impacting the price discovery process; 

15 and 

16 ‘‘(B) to determine whether different prac17 tices or regulations should be implemented; and 

18 ‘‘(4) ensure, to the maximum extent prac19 ticable, that the reports required under this sub20 section distinguish between legitimate and nonlegiti21 mate hedge trading.’’. 


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1 SEC. 9. DISAGGREGATION OF INDEX FUNDS AND OTHER 

2 DATA IN ENERGY MARKETS. 

3 Section 4 of the Commodity Exchange Act (7 U.S.C. 

4 6) (as amended by section 8) is amended by adding at 

5 the end the following: 

6 ‘‘(g) DISAGGREGATION OF INDEX FUNDS AND

7 OTHER DATA IN ENERGY MARKETS.—The Commission 

8 shall disaggregate and make public monthly— 

9 ‘‘(1) the number of positions and total value of 

10 index funds and other passive, long-only positions in 

11 energy markets; and 

12 ‘‘(2) data on speculative positions relative to 

13 bona fide physical hedgers in those markets.’’. 

14 SEC. 10. ADDITIONAL COMMODITY FUTURES TRADING 

15 COMMISSION EMPLOYEES FOR IMPROVED 

16 ENFORCEMENT. 

17 Section 2(a)(7) of the Commodity Exchange Act (7 

18 U.S.C. 2(a)(7)) is amended by adding at the end the fol19 lowing: 

20 ‘‘(D) ADDITIONAL EMPLOYEES.—As soon 

21 as practicable after the date of enactment of 

22 this subparagraph, the Commission shall ap23 point at least 100 full-time employees (in addi24 tion to the employees employed by the Commis25 sion as of the date of enactment of this sub26 paragraph)— 


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1 ‘‘(i) to increase the public trans2 parency of operations in energy futures 

3 markets; 

4 ‘‘(ii) to improve the enforcement of 

5 this Act in those markets; and 

6 ‘‘(iii) to carry out such other duties as 

7 are prescribed by the Commission.’’. 

8 SEC. 11. WORKING GROUP ON ENERGY MARKETS. 

9 (a) ESTABLISHMENT.—There is established a Work10 ing Group on Energy Markets. 

11 (b) COMPOSITION.—The Working Group shall be 

12 composed of— 

13 (1) the Secretary of Energy (referred to in this 

14 section as the ‘‘Secretary’’); 

15 (2) the Secretary of the Treasury; 

16 (3) the Chairman of the Federal Energy Regu17 latory Commission; 

18 (4) the Chairman of Federal Trade Commis19 sion; 

20 (5) the Chairman of the Securities and Ex21 change Commission; 

22 (6) the Chairman of the Commodity Futures 

23 Trading Commission; and 

24 (7) the Administrator of the Energy Informa25 tion Administration. 


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1 (c) CHAIRPERSON.— 

2 (1) INITIAL CHAIRPERSON.—The Secretary 

3 shall serve as the Chairperson of the Working Group 

4 for the 1-year period beginning on the date of enact5 ment of this Act. 

6 (2) ROTATION OF CHAIRPERSONS.—For each 1- 

7 year period following the period described in para8 graph (1), each individual described in subsection 

9 (b) shall serve as the Chairperson of the Working 

10 Group in the order corresponding to which the indi11 vidual is described in that subsection. 

12 (d) PURPOSE AND FUNCTION.—The Working Group 

13 shall— 

14 (1) investigate the effect of speculation in en15 ergy commodities on energy prices and the energy 

16 security of the United States; 

17 (2) recommend to the President and Congress 

18 laws (including regulations) that may be needed to 

19 prevent excessive speculation in energy commodities 

20 to prevent or minimize the adverse impact of high 

21 energy prices on consumers and the economy of the 

22 United States; and 

23 (3) review energy security considerations posed 

24 by developments in international energy markets. 


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1 (e) ADMINISTRATION.—The Secretary shall provide 

2 the Working Group with such administrative and support 

3 services as may be necessary for the performance of the 

4 functions of the Working Group. 

5 (f) COOPERATION OF OTHER AGENCIES.—The heads 

6 of Executive departments, agencies, and independent in7 strumentalities shall, to the extent permitted by law, pro8 vide the Working Group with such information as the 

9 Working Group requires to carry out this section. 

10 (g) CONSULTATION.—The Working Group shall con11 sult, as appropriate, with representatives of the various 

12 exchanges, clearinghouses, self-regulatory bodies, other 

13 major market participants, consumers, and the general 

14 public. 

15 SEC. 12. STUDY OF REGULATORY FRAMEWORK FOR EN16 ERGY MARKETS. 

17 (a) STUDY.—The Working Group established under 

18 section 11(a) shall conduct a study to— 

19 (1) identify the factors that affect the pricing of 

20 crude oil and refined petroleum products, including 

21 an examination of the effects of market speculation 

22 on prices; and 

23 (2) review and assess the roles, missions, and 

24 structures of relevant Federal agencies, examine 

25 interagency coordination, and identify and assess the 


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1 gaps that need to be filled for the Federal Govern2 ment to effectively oversee and regulate markets 

3 critical to the energy security of the United States. 

4 (b) ELEMENTS OF STUDY.—The study shall in5 clude— 

6 (1) an examination of price formation with re7 spect to crude oil and refined petroleum products; 

8 (2) an examination of relevant international 

9 regulatory regimes; and 

10 (3) an examination of the degree to which 

11 changes in energy market transparency, liquidity, 

12 and structure have influenced or driven abuse, ma13 nipulation, excessive speculation, or inefficient price 

14 formation. 

15 (c) REPORT AND RECOMMENDATIONS.—Not later 

16 than 1 year after the date of enactment of this Act, the 

17 Secretary of Energy shall submit to the appropriate com18 mittees of Congress a report that— 

19 (1) describes the results of the study; and 

20 (2) provides options and the recommendations 

21 of the Working Group for appropriate Federal co22 ordination of oversight and regulatory actions to en23 sure transparency of crude oil and refined petroleum 

24 product pricing and the elimination of excessive 

25 speculation. 


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1 (d) AUTHORIZATION OF APPROPRIATIONS.—There 

2 are authorized to be appropriated such sums as are nec3 essary to carry out this section. 

4 SEC. 13. COLLECTION AND ANALYSIS OF INFORMATION ON 

5 ENERGY COMMODITIES. 

6 (a) ACCURATE AND COMPLETE INFORMATION ON

7 ENERGY PRODUCING COMPANIES.—Section 205(h)(1) of 

8 the Department of Energy Organization Act (42 U.S.C. 

9 7135(h)(1)) is amended by adding at the end the fol10 lowing: 

11 ‘‘(C) INFORMATION ON ENERGY-PRO12 DUCING COMPANIES.—Notwithstanding any 

13 other provision of law, the head of each Federal 

14 department or agency shall provide to the Ad15 ministrator, on the request of the Adminis16 trator, such information as the Administrator 

17 may require to identify each energy-producing 

18 company.’’. 

19 (b) ENHANCED DATA ON OWNERSHIP OF CRITICAL

20 ENERGY COMMODITIES.—Section 205 of the Department 

21 of Energy Organization Act (42 U.S.C. 7135) is amended 

22 by adding at the end the following: 

23 ‘‘(n) COLLECTION OF INFORMATION ON OWNERSHIP

24 OF ENERGY COMMODITIES.— 


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1 ‘‘(1) IN GENERAL.—To ensure transparency of 

2 information with respect to critical energy infra3 structure and product ownership in the United 

4 States, the Administrator shall collect on a weekly 

5 basis information identifying the ownership of all 

6 commercially held oil and natural gas inventories in 

7 the United States. 

8 ‘‘(2) COMPANY-SPECIFIC DATA.—The informa9 tion shall include company-specific data, including— 

10 ‘‘(A) volumes of product under ownership; 

11 and 

12 ‘‘(B) storage and transportation capacity 

13 (including owned and leased capacity). 

14 ‘‘(3) PROTECTION OF PROPRIETARY INFORMA15 TION.—Section 11(d) of the Energy Supply and En16 vironmental Coordination Act of 1974 (15 U.S.C. 

17 796(d)) shall apply to information collected under 

18 this section. 

19 ‘‘(o) MONTHLY REPORTING ON ENERGY COMMODITY

20 TRANSACTIONS.— 

21 ‘‘(1) IN GENERAL.—In accordance with para22 graph (2), to improve the ability to evaluate the en23 ergy security of the United States, any person hold24 ing or controlling energy futures contracts or energy 

25 commodity swaps (as defined in section 202 of the 


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1 Energy Policy and Conservation Act) at a level to be 

2 determined by the Secretary for which the under3 lying energy commodity is physically delivered within 

4 the United States shall report on a monthly basis, 

5 with respect to the energy commodities and the by6 products of the energy commodities— 

7 ‘‘(A) the quantity of physical stocks owned; 

8 ‘‘(B) the quantity of fixed price purchase 

9 commitments open; 

10 ‘‘(C) the quantity of fixed price sales com11 mitments open; 

12 ‘‘(D) the physical storage capacity owned 

13 or leased; and 

14 ‘‘(E) such other information as the Sec15 retary determines is necessary to provide ade16 quate transparency with respect to entities that 

17 control critical energy assets in the United 

18 States. 

19 ‘‘(2) USE OF DATA.—Any data collected under 

20 paragraph (1) shall not be made public in a manner 

21 that is inconsistent with this Act. 

22 ‘‘(p) FINANCIAL MARKET ANALYSIS OFFICE.— 

23 ‘‘(1) ESTABLISHMENT.—There shall be within 

24 the Energy Information Administration a Financial 

25 Market Analysis Office, headed by a director, who 


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1 shall report directly to the Administrator of the En2 ergy Information Administration. 

3 ‘‘(2) DUTIES.—The Office shall be responsible 

4 for analysis of the financial aspects of energy mar5 kets. 

6 ‘‘(3) ANALYSES.—The Administrator of the En7 ergy Information Administration shall take analyses 

8 by the Office into account in conducting analyses 

9 and forecasting of energy prices.’’. 

10 (c) CONFORMING AMENDMENT.—Section 645 of the 

11 Department of Energy Organization Act (42 U.S.C. 7255) 

12 is amended by inserting ‘‘(15 U.S.C. 3301 et seq.) and 

13 the Natural Gas Act (15 U.S.C. 717 et seq.)’’ after ‘‘Nat14 ural Gas Policy Act of 1978’’. 

15 SEC. 14. NATIONAL NATURAL GAS MARKET INVESTIGA16 TION. 

17 (a) IN GENERAL.—Not later than 30 days after the 

18 date of enactment of this Act, in order to ensure the integ19 rity of natural gas markets, the Federal Energy Regu20 latory Commission (referred to in this section as the 

21 ‘‘Commission’’) shall commence an investigation into the 

22 role of financial institutions in natural gas markets, in23 cluding— 

24 (1) trends in investment in natural gas storage, 

25 transportation capacity, and pipeline infrastructure; 


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1 (2) factors contributing to potential effects on 

2 wholesale natural gas prices, including the mecha3 nisms covered by physical natural gas supply con4 tracts; 

5 (3) the character and number of positions held 

6 in related financial markets; and 

7 (4) any international considerations the Com8 mission considers relevant. 

9 (b) ASSESSMENT.—The Commission may include in 

10 the investigation an assessment of real-time market dy11 namics during the 2008 winter heating season. 

12 (c) REQUIRED DATA.—Each Federal department and 

13 agency shall comply with any request from the Commis14 sion for records, papers, and information in the possession 

15 of the department or agency relating to any agreement, 

16 contract, or transaction for the sale of an energy com17 modity for future delivery in interstate or foreign com18 merce, or any energy commodity swap. 

19 (d) REPORTS.—Not later than 270 days after the 

20 date of enactment of this Act, the Commission shall sub21 mit to the Committee on Energy and Natural Resources 

22 of the Senate and the Committee on Energy and Com23 merce of the House of Representatives a report on the 

24 findings, conclusions, and recommendations of the inves25 tigation conducted under this section. 


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1 (e) ADDITIONAL INVESTIGATIONS.—On an annual 

2 basis and during any other period the Commission deter3 mines necessary, the Commission shall— 

4 (1) conduct an investigation that is similar to 

5 the investigation required under subsections (a) 

6 through (c); and 

7 (2) submit to the Committee on Energy and 

8 Natural Resources of the Senate and the Committee 

9 on Energy and Commerce of the House of Rep10 resentatives a report on the findings, conclusions, 

11 and recommendations of the investigation. 

12 (f) AUTHORIZATION OF APPROPRIATIONS.—There 

13 are authorized to be appropriated such sums as are nec14 essary to carry out this section. 

15 SEC. 15. STUDIES; REPORTS. 

16 (a) STUDY RELATING TO INTERNATIONAL REGULA17 TION OF ENERGY COMMODITY MARKETS.— 

18 (1) IN GENERAL.—The Comptroller General of 

19 the United States shall conduct a study of the inter20 national regime for regulating the trading of energy 

21 commodity futures and derivatives. 

22 (2) ANALYSIS.—The study shall include an 

23 analysis of, at a minimum— 

24 (A) key common features and differences 

25 among countries in the regulation of energy 


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1 commodity trading, including with respect to 

2 market oversight and enforcement standards 

3 and activities; 

4 (B) variations among countries with re5 spect to the use of position limits, account6 ability limits, or other thresholds to detect and 

7 prevent price manipulation, excessive specula8 tion, or other unfair trading practices; 

9 (C) variations in practices regarding the 

10 differentiation of commercial and noncommer11 cial trading; 

12 (D) agreements and practices for sharing 

13 market and trading data among regulatory bod14 ies and among individual regulators and the en15 tities that the bodies and regulators oversee; 

16 and 

17 (E) agreements and practices for facili18 tating international cooperation on market over19 sight, compliance, and enforcement. 

20 (3) REPORT.—Not later than 1 year after the 

21 date of enactment of this Act, the Comptroller Gen22 eral shall submit to the appropriate committees of 

23 Congress a report that— 

24 (A) describes the results of the study; 


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1 (B) addresses the effects of excessive spec2 ulation and energy price volatility on energy fu3 tures; and 

4 (C) provides recommendations to improve 

5 openness, transparency, and other necessary 

6 elements of a properly functioning market in a 

7 manner that protects consumers in the United 

8 States. 

9 (b) STUDY RELATING TO EFFECTS OF NONCOMMER10 CIAL SPECULATORS ON ENERGY FUTURES MARKETS AND

11 ENERGY PRICES.— 

12 (1) STUDY.—The Comptroller General of the 

13 United States shall conduct a study of the effects of 

14 noncommercial speculators on energy futures mar15 kets and energy prices. 

16 (2) ANALYSIS.—The study shall include an 

17 analysis of, at a minimum— 

18 (A) the effect of increased amounts of cap19 ital in energy futures markets; 

20 (B) the impact of the roll-over of positions 

21 by index fund traders and swap dealers on en22 ergy futures markets and energy prices; and 

23 (C) the extent to which each factor de24 scribed in subparagraphs (A) and (B) and non25 commercial speculators— 


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1 (i) affect— 

2 (I) the pricing of energy com3 modities; and 

4 (II) risk management functions; 

5 and 

6 (ii) contribute to economically efficient 

7 price discovery. 

8 (3) REPORT.—Not later than 2 years after the 

9 date of enactment of this Act, the Comptroller Gen10 eral shall submit to the appropriate committees of 

11 Congress a report that describes the results of the 

12 study. 

13 (c) REPORTS OF COMMODITY FUTURES TRADING

14 COMMISSION.— 

15 (1) IN GENERAL.—The Commission shall sub16 mit to Congress— 

17 (A) not later than 60 days after the date 

18 of enactment of this Act, a report that describes 

19 in detail the actions the Commission has taken, 

20 is taking, and intends to take to carry out this 

21 subsection (including any recommended legisla22 tive changes that are necessary to carry out this 

23 subsection); and 

24 (B) not later than 45 days after the date 

25 described in subparagraph (A) and every 45 


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1 days thereafter until the date of implementation 

2 of this subsection, an update on the report re3 quired under subparagraph (A). 

4 (2) ADDITIONAL EMPLOYEES OR RESOURCES.— 

5 Not later than 60 days after the date of enactment 

6 of this Act, the Commission shall submit to Con7 gress a report that describes the number of addi8 tional positions and resources that the Commission 

9 determines to be necessary to carry out this sub10 section (including the specific duty of each addi11 tional employee). 

12 SEC. 16. EXPEDITED PROCEDURES. 

13 (a) IN GENERAL.—Subject to subsection (b), the 

14 Commodity Futures Trading Commission (referred to in 

15 this section as the ‘‘Commission’’) shall use emergency 

16 and expedited procedures (including any administrative or 

17 other procedure as appropriate) to carry out this Act (in18 cluding the amendments made by this Act). 

19 (b) REPORT.—If the Commission decides not to use 

20 the procedures described in subsection (a) in a specific in21 stance, not later than 30 days after the date of the deci22 sion, the Commission shall submit to Congress a detailed 

23 report that describes in each instance the reasons for not 

24 using the procedures. 


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Calendar No. 882 

110TH CONGRESS 

2D SESSION S. 3268 

A BILL 

To amend the Commodity Exchange Act to prevent 

commodities, and for other purposes. excessive price speculation with respect to energy 

JULY 16, 2008 

Read the second time and placed on the Calendar 


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