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Background—Controversy over Final RuleAll sides criticized the CFTC since it first proposed to establish position limits for certain commodity futures and swaps pursuant to Section 737 of Dodd-Frank. The CFTC adopted the Final Rule with a controversial 3–2 vote and finalized certain parts on an interim final basis. For background on the Final Rule, see CFTC Finalizes Rule on Position Limits, Bloomberg Law Reports® – Derivatives Law, Vol. 2, No. 24 (Nov. 18, 2011). High-profile industry associations have since challenged the Final Rule in court, but the CFTC rejected their motion for a stay of its effective date. The comment letters described below provided another opportunity for these industry associations and others to convince the CFTC to reconsider and reshape certain provisions of the Final Rule.
Interim Final RuleThe CFTC adopted spot-month limits for cash-settled derivatives contracts using the same methodology it applied to physical delivery contracts. The Final Rule sets position limits initially at existing designated contract market (DCM) levels and during the second phase of implementation, limits would be based on 25 percent of estimated deliverable supply. (Cash-settled natural gas contracts have a limit of five times the level of the limit for the physical delivery of other covered commodities.)
Comment LettersSome of the commenters approved of the Final Rule, including the interim final provisions, or asked the CFTC to impose even stricter limits; many re-iterated that the Final Rule should be withdrawn until further studies are completed and, at the very least, position limits for cash-settled derivatives contracts should be significantly less restrictive. — Arguments in Support of Position Limits The CME Group Inc. (CME), which includes four separate derivatives exchanges (including the Chicago Mercantile Exchange and the New York Mercantile Exchange), argued that a "policy of higher spot-month limits for cash-settled contracts in any linked market is contrary to the long-standing joint policy of the [CFTC] and the exchanges." CME went on to analyze the definition of "deliverable supply," which it believes should be updated by the CFTC, and supply estimates should be increased meaningfully. CME calculated that, given these increased supply estimates, spot-month limits set at 25 percent for both physical delivery and cash-settled contracts would provide sufficient liquidity for bona fide hedgers in both markets. CME concluded that "[it] can think of no reason why parasitic cash-settled contracts require or deserve a higher spot-month limit than the principal physical delivery price discovery contract on which they are based." Better Markets, Inc. (Better Markets), an independent industry organization, submitted two comment letters. In its first submission, Better Markets argued that the CFTC did not go far enough in establishing position limits on market participants operating primarily in cash-settled derivatives markets. It emphasized the need to prevent excessive speculation and "the ancillary harms that excessive speculation can cause: destruction of the hedging environment and distortion of the price discovery function." Better Markets recommended that the CFTC target commodity index traders who—according to its extensive study submitted as an annex to the comment letter—represent a "class of harmful participants." Better Markets argued that these index funds systematically distort price curves because their speculative trades do not reflect fundamental supply and demand factors, which should properly be determining price curves. Better Markets' second submission addressed the question of the interim final spot-month limits. It argued that the current one-to-one ratio between physically settled and cash settled contracts is appropriate and useful in virtually eliminating the risk of classic market manipulation, if not necessarily in preventing excessive speculation. However, Better Markets argued that under a position limit system where a particular trader is allowed to hold both a physically- and a cash-settled position during any given spot month, it makes no sense to have a higher ratio for gas contracts. Therefore, it recommended that the CFTC avoid widening the ratios for any commodity swap contracts. — Financial Industry Remains Critical The International Swaps and Derivatives Association (ISDA) together with the Securities Industry and Financial Markets Association (SIFMA) reiterated that they "remain deeply concerned with the [Final Rule], and disagree with premises upon which the [CFTC] has based its adoption of the Final Rule." They also specifically criticized the interim final spot-month position limits for cash-settled contracts. ISDA and SIFMA demanded that the CFTC withdraw the interim final position limits until "after it has collected and analyzed the data needed to make the statutorily required finding" that (1) excessive speculation exists, (2) limits are necessary to prevent the burden caused by such speculation, and (3) the position limits imposed are appropriate." The industry associations submitted expert declarations in support of their position to "further substantiate the significant, immediate, and unjustified costs that will result from the [Final Rule]." The Futures Industry Association submitted almost identical arguments, stating that "withdrawal of the [Final Rule] is the only action that will ensure the [CFTC] does not impair liquidity, efficient price discovery, and the ability of market participants to hedge against risk at a particularly fragile time for the U.S. economy." Similarly, the Alternative Investment Management Association (AIMA), representing hedge funds, argued that while positions taken in physically-settled contracts are likely to have some form of direct impact on the market price of the underlying commodity, a position taken in a cash-settled contract "would not be expected, in any meaningful or significant way, to increase or decrease" market prices. AIMA also recommended that the CFTC perform additional market studies and cost-benefit analyses of the Final Rule and, if it concluded that limits are necessary, then it should determine an appropriate ratio higher than the current one-to-one ratio. DisclaimerThis document and any discussions set forth herein are for informational purposes only, and should not be construed as legal advice, which has to be addressed to particular facts and circumstances involved in any given situation. Review or use of the document and any discussions does not create an attorney-client relationship with the author or publisher. To the extent that this document may contain suggested provisions, they will require modification to suit a particular transaction, jurisdiction or situation. Please consult with an attorney with the appropriate level of experience if you have any questions. Any tax information contained in the document or discussions is not intended to be used, and cannot be used, for purposes of avoiding penalties imposed under the United States Internal Revenue Code. Any opinions expressed are those of the author. The Bureau of National Affairs, Inc. and its affiliated entities do not take responsibility for the content in this document or discussions and do not make any representation or warranty as to their completeness or accuracy.©2014 The Bureau of National Affairs, Inc. All rights reserved. Bloomberg Law Reports ® is a registered trademark and service mark of The Bureau of National Affairs, Inc.
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