1.Short
title; table of contents
(a)This Act may be cited
as the Prevent Excessive Speculation
Act
.
(b)The table of
contents of this Act is as follows:
Sec. 1. Short title; table of
contents.
Sec. 2. Definition of energy
and agricultural 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. Position limits for
energy and agricultural commodities.
Sec. 7. Over-the-counter
transactions.
Sec. 8. Index traders and swap
dealers.
Sec. 9. Disaggregation of index
funds and other data in energy and agricultural markets.
Sec. 10. Additional Commodity
Futures Trading Commission employees for improved enforcement.
2.Definitions of
energy and agricultural commodity
(a)Definition of
energy commoditySection 1a of the Commodity Exchange Act (7
U.S.C. 1a) is amended—
(1)by redesignating
paragraphs (13) through (34) as paragraphs (14) through (35), respectively;
and
(2)by inserting
after paragraph (12) the following:
(13)The term energy commodity means—
(A)crude oil;
(B)natural gas;
(C)coal;
(D)gasoline, heating oil, diesel fuel,
and any other source of energy derived from coal, crude oil, or natural
gas;
(E)electricity;
(F)ethanol and any other fuel derived
from a renewable biomass;
(G)any commodity that results from the
management of air emissions, including but not limited to greenhouse gases,
sulfur dioxide, and nitrogen oxides; and
(H)any other substance that is used as a
source of energy, as the Commission, in its discretion, deems
appropriate.
.
(b)Definition of
Agricultural CommoditySection 1a of the Commodity Exchange Act
(7 U.S.C. 1a) is amended—
(1)by redesignating
paragraphs (1) through (35) as paragraphs (2) through (36), respectively;
and
(2)by inserting a
new paragraph (1) as follows:
(1)The term agricultural commodity means any
commodity specifically described in paragraph
(5).
.
(c)
(1)Section
2(c)(2)(B)(i)(II)(cc) of the Commodity Exchange Act (7 U.S.C.
2(c)(2)(B)(i)(II)(cc)) is amended—
(A)in subitem (AA),
by striking section 1a(20)
and inserting section
1a(21)
; and
(B)in subitem (BB),
by striking section 1a(20)
and inserting section
1a(21)
.
(2)Section
13106(b)(1) of the Food, Conservation, and Energy Act of 2008 is amended by
striking “section 1a(32)” and inserting “section 1a”.
(3)Section 402 of
the Legal Certainty for Bank Products Act of 2000 (7 U.S.C. 27) is
amended—
(A)in subsection
(a)(7), by striking section 1a(20)
and inserting section
1a
; and
(B)in subsection
(d)—
(i)in
paragraph (1)(B), by striking section 1a(33)
and inserting
section 1a
; and
(ii)in
paragraph (2)(D), by striking section 1a(13)
and inserting
section 1a
.
3.Speculative
limits and transparency of off-shore tradingSection 4 of the Commodity Exchange Act (7
U.S.C. 6) is amended by adding at the end the following:
(e)
(1)The Commission may not permit a foreign board of trade to
provide to the members of the foreign board of trade or other participants
located in the United States, or otherwise subject to the jurisdiction of the
Commission, direct access to the electronic trading and order matching system
of the foreign board of trade with respect to an agreement, contract, or
transaction in an energy commodity that settles against any price (including
the daily or final settlement price) of one or more contracts listed for
trading on a registered entity, unless—
(A)the foreign board
of trade—
(i)makes public
daily trading information regarding the agreement, contract, or transaction
that is comparable to the daily trading information published by the registered
entity for the one or more contracts against which the agreement, contract or
transaction traded on the foreign board of trade settles; and
(ii)promptly
notifies the Commission of any change regarding—
(I)the information
that the foreign board of trade will make publicly available;
(II)the position
limits and position accountability provisions that the foreign board of trade
will adopt and enforce;
(III)the position
reductions required to prevent manipulation; and
(IV)any other area
of interest expressed by the Commission to the foreign board of trade;
and
(B)the foreign board
of trade (or the foreign futures authority that oversees the foreign board of
trade)—
(i)adopts position
limits or position accountability provisions for the agreement, contract, or
transaction that are comparable to the position limits or position
accountability provisions adopted by the registered entity for the one or more
contracts against which the agreement, contract or transaction traded on
foreign board of trade settles;
(ii)has the
authority to require or direct market participants to limit, reduce, or
liquidate any position the foreign board of trade (or the foreign futures
authority that oversees the foreign board of trade) determines to be necessary
to prevent or reduce the threat of price manipulation, excessive speculation,
price distortion, or disruption of delivery or the cash settlement process;
and
(iii)provides
information to the Commission that is comparable to the information that the
Commission determines to be necessary to publish the commitments of traders
report of the Commission for the one or more contracts against which the
agreement, contract or transaction traded on the foreign board of trade
settles.
(2)Existing
foreign boards of tradeParagraph (1) shall not be effective with
respect to any agreement, contract, or transaction in an energy commodity
executed on a foreign board of trade to which the Commission had granted direct
access permission prior to the date of enactment of this subsection until the
date that is 180 days after the date of enactment of this subsection.
(3)No contract of sale of a commodity for future delivery
traded or executed on or through the facilities of a board of trade, exchange
or market located outside the United States for purposes of subsection (a)
shall be void, voidable or unenforceable and no party to such contract shall be
entitled to rescind or recover any payments made with respect to such contract
based upon the failure of the foreign board of trade to comply with any
provision of this
Act.
.
4.Authority of
commodity futures trading commission with respect to certain traders
(a)
(1)Restriction of
futures trading to contract markets or derivatives transaction execution
facilitiesSection 4(b) of the Commodity Exchange Act (7 U.S.C.
6(b)) is amended by inserting after the first sentence the following: “The
Commission may adopt rules and regulations requiring the maintenance of books
and records by any person that is located within the United States (including
the territories and possessions of the United States) or that enters trades
directly into the trade matching system of a foreign board of trade from the
United States (including the territories and possessions of the United
States).”
(2)Commission
authority over tradersSection 4 of the Commodity Exchange Act (7
U.S.C. 6) is amended by adding at the end the following:
(e)The Commission
shall have authority under this Act to require or direct a person located in
the United States, or otherwise subject to the jurisdiction of the Commission,
to limit, reduce, or liquidate any position on a foreign board of trade to
prevent or reduce the threat of price manipulation, excessive speculation,
price distortion, or disruption of delivery or the cash settlement process with
respect to any contract listed for trading on a registered entity.
(f)Before
taking any action under subsection (e), the Commission shall consult with the
appropriate—
(1)foreign board of
trade; and
(2)foreign futures
authority.
.
(3)Section
9(a) of the Commodity Exchange Act (7 U.S.C. 13(a)) is amended by inserting
“(including any person trading on a foreign board of trade)” after “Any person”
each place it appears.
(4)No
amendment made by this subsection limits any of the otherwise applicable
authorities of the Commodity Futures Trading Commission.
5.Working group of
international regulatorsSection 4a of the Commodity Exchange Act (7
U.S.C. 6a) (as amended by section 4(a)(2)(B)) is amended by adding at the end
the following:
(g)Working Group
of International RegulatorsNot later than 90 days after the date
of enactment of this subsection, the Commission shall invite regulators of
foreign boards of trade to participate in a working group of international
regulators to develop uniform international reporting and regulatory standards
to ensure the protection of the energy and agricultural futures markets from
excessive speculation, manipulation, and other trading practices that may pose
systemic risks to energy and agricultural futures markets, countries, and
consumers.
.
6.Position limits
for energy and agricultural commoditiesSection 4a of the Commodity Exchange Act (7
U.S.C. 6a) is amended—
(1)in subsection
(a)—
(A)by inserting
“(1)” after “(a)”; and
(B)by adding after
and below the end the following:
(2)In accordance
with the standards set forth in paragraph (1) of this subsection and consistent
with the good faith exception cited in subsection (b)(2), with respect to
energy and agricultural commodities, the Commission, within 90 days after the
date of the enactment of this paragraph, shall issue a proposed rule, and
within 180 days after issuance of such proposed rule shall adopt a final rule,
after notice and an opportunity for public comment, to establish limits on the
amount of positions that may be held by any person with respect to contracts of
sale for future delivery or with respect to options on such contracts or
commodities traded on or subject to the rules of a contract market or
derivatives transaction execution facility, or on an electronic trading
facility with respect to a significant price discovery contract.
(3)In establishing
the limits required in paragraph (2), the Commission shall set limits—
(A)on the number of
positions that may be held by any person for the spot month, each other month,
and the aggregate number of positions that may be held by any person for all
months; and
(B)to the maximum
extent practicable, in its discretion—
(i)to diminish,
eliminate, or prevent excessive speculation;
(ii)to deter and
prevent market manipulation, squeezes, and corners;
(iii)to ensure
sufficient market liquidity; and
(iv)to ensure that
the price discovery function of the underlying cash market is not distorted or
disrupted.
(4)In addition to
the position limits for energy and agricultural commodities that the Commission
establishes under paragraph (2), the Commission may require or permit a
contract market, derivatives transaction execution facility, or electronic
trading facility with respect to a significant price discovery contract, to
establish and enforce position accountability, as the Commission determines may
be necessary and appropriate to accomplish the objectives set forth in
paragraph (3)(B), provided that the number of positions that may be authorized
under position accountability may not exceed the position limits established
under paragraph (2).
(5)Nothing in this
section shall require the Commission to revise any position limit for an
agricultural commodity that is in effect on the date of enactment of this
Act.
.
7.Over-the-counter
transactionsSection 2 of the
Commodity Exchange Act (7 U.S.C. 2) is amended by adding at the end the
following:
(j)Over-the-Counter
Transactions
(1)In
this subsection:
(A)The term ‘covered person’ means a person that enters into
an over-the-counter transaction that is required to be reported under paragraph
(3)(C).
(B)Over-the-counter
transactionThe term ‘over-the-counter transaction’ means a
contract, agreement, or transaction in an energy or agricultural commodity that
is—
(i)entered into only
between persons that are eligible contract participants at the time the persons
enter into the agreement, contract, or transaction;
(ii)not entered into
on a trading facility; and
(iii)not a sale of
any cash commodity for delivery.
(2)Authority in
major market disturbances
(A)In the case of a major market disturbance, as determined
by the Commission, the Commission may require any trader subject to the
reporting requirements described in paragraph (3) to take such action as the
Commission considers to be necessary to maintain or restore orderly trading in
any contract listed for trading on a registered entity, including—
(i)the liquidation
of any futures contract; and
(ii)the fixing of
any limit that may apply to a market position involving any over-the-counter
transaction acquired in good faith before the date of the determination of the
Commission.
(B)The term ‘major market disturbance’ means any
disturbance in a commodity market that disrupts the liquidity and price
discovery function of that market from accurately reflecting the forces of
supply and demand for a commodity, including—
(i)a
threatened or actual market manipulation or corner;
(ii)excessive
speculation; and
(iii)any action of
the United States or a foreign government that affects a commodity.
(C)The term
market disturbance shall be interpreted in a manner consistent
with section 8a(9).
(D)Any action taken by the Commission under subparagraph (A)
shall be subject to judicial review carried out in accordance with section
8a(9).
(3)
(A)The Commission shall require each covered person to
submit to the Commission a report—
(i)at such time and
in such manner as the Commission determines to be appropriate; and
(ii)containing the
information required under subparagraph (B) to assist the Commission in
detecting and preventing potential price manipulation of, or excessive
speculation in, any contract listed for trading on a registered entity.
(B)A report required under subparagraph (A) shall
contain—
(i)information
describing large trading positions of the covered person obtained through one
or more over-the-counter transactions that involve—
(I)substantial
quantities of a commodity in the cash market; or
(II)substantial
positions, investments, or trades in agreements or contracts relating to the
commodity; and
(ii)any other
information relating to over-the-counter transactions required to be reported
under subparagraph (C) carried out by the covered person that the Commission
determines to be necessary to accomplish the purposes described in subparagraph
(A).
(C)Over-the-counter
transactions to be reported
(i)The Commission shall identify each large over-the-counter
transaction or class of large over-the-counter transactions the reporting of
which the Commission determines to be appropriate to assist the Commission in
detecting and preventing potential price manipulation of, or excessive
speculation in, any contract listed for trading on a registered entity.
(ii)Mandatory
factors for determinations
(I)In carrying out a determination under clause (i), the
Commission shall consider the extent to which each factor described in
subclause (II) applies.
(II)The
factors required for carrying out a determination under clause (i) include
whether—
- (aa)a
standardized agreement is used to execute the over-the-counter
transaction;
- (bb)the
over-the-counter transaction settles against any price (including the daily or
final settlement price) of one or more contracts listed for trading on a
registered entity;
- (cc)the price of the
over-the-counter transaction is reported to a third party, published, or
otherwise disseminated;
- (dd)the price of the
over-the-counter transaction is referenced in any other transaction;
- (ee)there is a
significant volume of the over-the-counter transaction or class of
over-the-counter transactions; and
- (ff)there is any
other factor that the Commission determines to be appropriate.
(iii)The Commission shall periodically conduct a review, but
not less than once every 2 years, to determine whether to initiate a rulemaking
to include any additional transactions or classes of transactions or to exclude
any transactions or classes of transactions from the reporting requirements of
this paragraph.
(D)The Commission may permit any report required to be
reported under paragraph (A) by—
(i)a
member of a derivatives clearing organization; or
(ii)only one of the
persons entering into the transaction, provided that each person entering into
the transaction or transactions has notified the Commission, in the manner
specified by the Commission, that one of the persons to the transaction or
transactions has assumed, on behalf of the other person to the transaction, the
legal obligations for such other person to submit reports under this section,
including liabilities for failure to file such reports in accordance with the
Commission’s regulations. Any notification provided under this paragraph shall
be effective in imposing such legal obligations and liabilities upon such
person.
(E)The
Commission, by rule, shall require each covered person—
(i)in accordance
with section 4i, to maintain such records as directed by the Commission for a
period of 5 years, or longer, if directed by the Commission; and
(ii)to provide such
records upon request to the Commission or the Department of Justice.
(4)Position limits
for over-the-counter transactionsUpon review of the information
reported to the Commission under paragraph (3), or following a major market
disturbance as determined by the Commission under paragraph (2), the Commission
may establish, after due notice and opportunity for hearing, by rule,
regulation, or order, such limits on the amount of trading in over-the-counter
transactions as the Commission determines are necessary and appropriate to
accomplish one or more of the following objectives with respect to any contract
listed for trading on a registered entity—
(A)diminish,
eliminate, or prevent excessive speculation;
(B)deter and prevent
market manipulation, squeezes, and corners;
(C)ensure sufficient
market liquidity; and
(D)ensure that the
price discovery function of the underlying cash market is not distorted or
disrupted.
(5)Protection of
proprietary informationIn carrying out this subsection, the
Commission may not—
(A)require the
publication of any proprietary information;
(B)prohibit the
commercial sale or licensing of any proprietary information; and
(C)except as
provided in section 8, publicly disclose any information relating to any market
position, business transaction, trade secret, or name of any customer of a
covered person.
(6)Notwithstanding
subsections (g) and (h), and any exemption issued by the Commission for any
energy or agricultural commodity, each over-the-counter transaction shall be
subject to this subsection.
(7)Nothing in this subsection modifies or alters—
(A)the guidance of the Commission; or
(B)any applicable requirements with respect
the disclosure of proprietary information.
(8)Bona fide
hedging transaction review
(A)The Commission shall
review and revise the definition of bona fide hedging transaction in subsection
(c) of Section 4a of the Commodity Exchange Act (7 U.S.C 2(h)(2)(A)) as the
Commission determines is necessary and appropriate to ensure that the commodity
markets effectively perform their risk management and price discovery
functions.
.
8.Index traders
and swap dealersSection 4 of
the Commodity Exchange Act (7 U.S.C. 6) (as amended by section 3) is amended by
adding at the end the following:
(f)Index Traders
and Swap DealersNot later
than 60 days after the date of enactment of this subsection, the Commission
shall—
(1)routinely require detailed reporting from
index traders and swap dealers in markets under the jurisdiction of the
Commission;
(2)reclassify the types of traders for
regulatory and reporting purposes to distinguish between index traders and
swaps dealers; and
(3)review the trading practices for index
traders in markets under the jurisdiction of the Commission—
(A)to ensure that index trading is not
adversely impacting the price discovery process; and
(B)to determine whether different practices or
regulations should be
implemented.
.
9.Disaggregation
of index funds and other data in energy and agricultural marketsSection 4 of the Commodity Exchange Act (7
U.S.C. 6) (as amended by section 8) is amended by adding at the end the
following:
(g)Disaggregation
of Index Funds and Other Data in Energy and Agricultural
MarketsThe Commission shall disaggregate and make public
monthly—
(1)the number of
positions and total value of index funds and other passive, long-only positions
in energy and agricultural markets; and
(2)data on
speculative positions relative to bona fide physical hedgers in those
markets.
.
10.Additional
commodity futures trading commission employees for improved
enforcementSection 2(a)(7) of
the Commodity Exchange Act (7 U.S.C. 2(a)(7)) is amended by adding at the end
the following:
(D)As soon as practicable after the date of enactment of
this subparagraph, the Commission shall appoint at least 100 full-time
employees (in addition to the employees employed by the Commission as of the
date of enactment of this subparagraph)—
(i)to increase the
public transparency of operations in energy futures markets;
(ii)to improve the
enforcement of this Act in those markets; and
(iii)to carry out
such other duties as are prescribed by the
Commission.
.