Position Limits Regulation
|FINAL RULE: Position Limits for Futures and Swaps approved at CFTC Open Meeting, October 18, 2011. However, on September 28, 2012, a U.S. Federal Court threw out the CFTC position limits rules, forcing the commission to consider redrafting the rules. The CFTC held a meeting Nov. 5, 2013 to consider a new proposal. View the November 2013 position limits proposal and the 2013 re-proposed rule on aggregation of positions.|
|Interim and Final Rule||VACATED BY COURT ORDER||Re-proposed Rule Issue||Comment Deadline (reopen February 26, 2015)|
|November 18, 2011||September 28, 2012||November 5, 2013||March 28, 2015|
Position limits are intended to protect futures markets from excessive speculation that could cause unreasonable or unwarranted price fluctuations and are sometimes referred to as "speculative position limits", or "speculative limits". The Commodity Exchange Act (CEA) authorized the CFTC to impose limits on the size of speculative positions in futures markets.
The CFTC issued its final rules on position limits in October 2011. Compliance for spot month positions was to become effective on October 12, 2012, but in September 2012, a U.S. District Court vacated the rule and remanded it back to the CFTC. Though the commission initially filed an appeal of the ruling, it opted instead to withdraw the appeal and redraft a proposed rule, which was approved on November 5, 2013. The proposal entered the Federal Register on December 12, 2013, but the comment period has been reopened three times in 2014. 
The Commodity Exchange Act (CEA) authorized the Commodity Futures Trading Commission to impose limits on the size of speculative positions in futures markets. Core Principle 5, of Section 5(d) of the CEA, requires designated contract markets to adopt speculative position limits or position accountability for speculators, where necessary and appropriate, to reduce the potential threat of market manipulation or congestion, especially during trading in the delivery month. Hedge positions as defined by the CFTC and exchanges, are generally exempt from position-limit requirements, but they are not exempt from CFTC and exchange reporting requirements.
Section 737 of the Dodd-Frank Act mandated that the CFTC "limit the amount of positions, other than bona fide hedging positions, that may be held by any person with respect to physical commodity futures and option contracts in exempt and agricultural commodities traded on or subject to the rules of a designated contract market (DCM), as appropriate." 
At an open meeting on December 16, 2010, the CFTC proposed a rule regarding the setting of position limits for derivatives participants, but the meeting adjourned with no vote. The discussion continued at the CFTC open meeting on January 13, 2011 where the proposal passed 4-1. 
At its October 18, 2011 open meeting, the CFTC issued its final rules on position limits for futures and swaps. The final rule established speculative position limits for 28 physical commodity futures contracts, and futures and swaps that are "economically equivalent" to those contracts. These include grain and livestock futures, energy and precious metals, with separate limits set for spot month (generally, 25 percent of deliverable supply), and non-spot-month (generally, 10 percent of open interest in the first 25,000 contracts and 2.5 percent thereafter). Note: this final rule was vacated by court order and subsequently re-proposed HERE.
On June 13, 2016, the CFTC proposed certain exemptions for position limits for derivatives. The CFTC proposed new alternative processes for designated contract markets (‘‘DCMs’’) and swap execution facilities (‘‘SEFs’’) to recognize certain positions in commodity derivative contracts as nonenumerated bona fide hedges or enumerated anticipatory bona fide hedges, as well as to exempt from federal position limits certain spread positions, in each case subject to Commission review. 
Position Limits Regulation Timeline
- In early 2010, The Commodity Futures Trading Commission held discussions on energy position limits. CFTC Chairman Gary Gensler said the agency is considering setting limits on energy contracts to limit disproportionate energy speculation. If the rule is put into place, it will apply to trading on regulated futures exchanges, derivatives transaction execution and electronic trading facilities. 
- In a late-July 2010 interview with Reuters, CFTC Commissioner Bart Chilton said a new speculative position limit regime will also apply to metals and soft agricultural commodities, in addition to the energy market limits proposed in January. The regulator will use new authority granted in the Dodd-Frank Act to apply curbs to "all commodities of finite supply," Chilton said.
- In November 2010, CFTC's Gensler said the regulator would take up the issue of position limits at its December 1, 2010 meeting.
- In December, 2010, the CFTC began deliberation of position limits for derivatives at its December 16, 2010 open meeting. The issue was tabled until the following meeting, which was held on January 13, 2011.
- In January 2011, the CFTC issued a proposed rule to establish position limits on futures contracts and some swaps in agriculture, energy and metals markets. In a speech from CFTC Chairman Gary Gensler in February 2011, he stated that "The proposed rule covers 28 commodities and includes one position limits regime for the spot month and another for single-month and all-months combined. Under the proposal, spot month limits would be set based on deliverable supply. Single-month and all-months-combined limits would be set using a formula based on data to be collected on the total size of the swaps and futures market."
- At its July 7, 2011 open meeting, the CFTC issued its final rule on position reports for physical commodity swaps. This rule is designed, in part, to assist the commission as it contemplates final rules on position limits.
- In September and October 2011, the CFTC canceled two meetings in which it had planned to finalize position limits rules. It was widely speculated that the commission did not have the necessary votes to pass the regulation, and that the extra time was needed to deliberate over the final details. On September 19, 2011, a draft of the final rules on position limits was leaked to the press.
- On October 11, 2011, the CFTC announced that the position limits final rules would be considered at an open meeting October 18, 2011.
- At its open meeting October 18, 2011, the commission approved final rules on position limits. The effective date for spot month positions and non-spot "legacy contracts" (grains and oilseeds with existing position limits) will be sixty days after the term “swap” is further defined under the Dodd-Frank Act. Other non-spot months will have position limits phased in subsequent to a one-year study by the commission of open interest in those markets.
- On December 12, 2011, the International Swaps and Derivatives Association (ISDA) and the Securities Industry and Financial Markets Association (SIFMA) made a motion before the CFTC for a stay of the effective date of the position limits rules pending judicial review. On January 3, 2012, the commission denied the motion. To view the ISDA/SIFMA position, and the commission's denial, click HERE.
- After the CFTC denied the motion for a stay of the effective date, ISDA and SIFMA filed a motion with the U.S. Court of Appeals on January 9, 2012, arguing that the CFTC used "flawed analysis," failed to consider costs and benefits, and that a majority of commissioners believed it to be unnecessary, but that one commissioner held a "mistaken view that Congress required it." The case was dismissed by the appeals court, who said it first required a lower court ruling. On February 7, 2012, ISDA and SIFMA refiled the suit in U.S. District court, requesting a delay of the rule while the rule is being challenged.
- On February 15, 2012, the CFTC Office of the Inspector General released the results of an investigation into alleged impropriety by commission staff during the position limits rulemaking process. The IG found no evidence to support the claims.
- On May 18, 2012, the CFTC proposed a modification to the aggregation provisions that would allow "any person with a greater than 10 percent ownership or equity interest in an entity to disaggregate the owned entity’s positions, provided there are protections and firewalls in place to ensure trading decisions are made independently of one another."
- On August 13, 2012, the final swap product definitions rules. This set in motion the compliance calendar for several Dodd-Frank-related, rules including position limits. The compliance date for spot-month position limits was set at October 12, 2012. The compliance date for non-spot month position limits will be set after a period of data collection.
- On September 28, 2012, a federal judge ruled in favor of ISDA and SIFMA, that the position limits rule should not be imposed because the CFTC did not first take steps to determine whether such limits were "reasonable and appropriate. For more on the court decision, click HERE.
- On November 15, 2012, the CFTC appealed the September 28 court decision.
- On November 5, 2013, the CFTC approved re-proposed position limits rules at an open meeting. The previous week, the commission dropped its appeal to the previous position limits rules. The proposal entered the Federal Register on December 12, 2013.
- On June 19, 2014, the CFTC held a staff roundtable on position limits and aggregation of positions. Specifically, the roundtable focused on hedging by commercial entities, certain spot-month position limits rules, aggregation by affiliated entities and aggregation for identical trading strategies. The CFTC reopened the comment period until August 4, 2014.
- The CFTC reopened the Position Limits Regulation - Comment Letters file a number of times, most recently in December 2014 and February 2015. Its latest comment deadline is March 28, 2015.
- A supplemental proposal on aggregation of positions was published in the Federal Register in September 2015, and a comment deadline was set for November 13, 2015.
- In February 2016, the CFTC Energy and Environmental Markets Advisory Committee (EEMAC) released a report on the CFTC's position limits proposal saying the rule as proposed is unnecessary, could harm liquidity and would create numerous practical challenges. To read the report, click HERE.
- On June 13, 2016, the CFTC proposed certain exemptions for position limits for derivatives.
Position Limits Proposed Rule, November 5, 2013
On November 5, 2013, the CFTC approved a proposed rule that would impose position limits on 28 physical commodity futures contracts, and futures and swaps that are "economically equivalent" to those contracts. These include:
- Grain and livestock futures (corn, wheat, oats, rice, the soy complex, milk, coffee, sugar, cocoa, cattle and hogs);
- Energy (crude oil, heating oil, natural gas and gasoline; and
- Metals (gold, silver, copper, platinum and palladium.
Also approved at the November 5 meeting was a proposed rule on aggregation of positions, which the commission deems necessary in order to prevent affiliated companies from sidestepping position limits rules by distributing positions among affiliates.
- Judge throws out CFTC's position limits rule. Reuters. Retrieved on October 2, 2012.
- Speculative Limits. CFTC. Retrieved on December 17, 2008.
- Final Regulations on Position Limits for Futures and Swaps. CFTC. Retrieved on October 18, 2011.
- Guide Futures and Options, pg 228. The Institute for Financial Markets. Retrieved on July 29,2009.
- CFTC: Position Limits for Derivatives: Certain Exemptions and Guidance. CFTC. Retrieved on August 3, 2016.
- CFTC To Meet On Energy Position Limits on January 14. MarketWatch. Retrieved on February 25, 2010.
- CFTC's Chilton sees broader position limit rule. Reuters. Retrieved on July 30, 2010.
- CFTC sets sweeping rule timelines as clock ticks. Reuters. Retrieved on November 18, 2010.
- Testimony of CFTC Chairman Gary Gensler Before The House Committee on Financial Services. Mondovisione. Retrieved on March 2, 2011.
- CFTC sets out new market manipulation rules. Finextra. Retrieved on July 8, 2011.
- Exclusive: CFTC lacks votes on position-limit plan. Reuters, via Yahoo News. Retrieved on September 30, 2011.
- Factbox: CFTC draft outlines final position-limit rule. Reuters. Retrieved on September 30, 2011.
- CFTC to Hold Open Meeting to Consider Two Final Rules and One Proposed Amendment. CFTC Press Room. Retrieved on October 14, 2011.
- Wall Street Groups Seek Delay of CFTC Position Limits Rule. Business Week. Retrieved on January 23, 2012.
- Wall Street Groups Seek to Delay CFTC Rule Limiting Speculation. Bloomberg. Retrieved on February 8, 2012.
- CFTC Approves Notice of Proposed Rulemaking Regarding Regulations on Aggregation for Position Limits for Futures and Swaps. CFTC. Retrieved on May 21, 2012.
- CFTC Rule Restraining Speculation Rejected by U.S. Judge. Bloomberg. Retrieved on September 28, 2012.
- US futures regulators appeal position limits decision. CNBC. Retrieved on November 15, 2012.
- CFTC in new bid to impose position limits. Financial Times. Retrieved on November 5, 2013.
- Statement of Support by Chairman Gary Gensler: Aggregation Provisions for Limits on Speculative Positions. CFTC. Retrieved on November 5, 2013.