[Senate Hearing 110-670]
[From the U.S. Government Publishing Office]


                                                        S. Hrg. 110-670
 
                       SPECULATIVE INVESTMENT IN 
                             ENERGY MARKETS 

=======================================================================

                                HEARING

                               before the

                         SUBCOMMITTEE ON ENERGY

                                 of the

                              COMMITTEE ON
                      ENERGY AND NATURAL RESOURCES
                          UNITED STATES SENATE

                       ONE HUNDRED TENTH CONGRESS

                             SECOND SESSION

                                   TO

    RECEIVE TESTIMONY ON RECENT ANALYSES OF THE ROLE OF SPECULATIVE 
                      INVESTMENT IN ENERGY MARKETS

                               __________

                           SEPTEMBER 16, 2008


                       Printed for the use of the
               Committee on Energy and Natural Resources

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               COMMITTEE ON ENERGY AND NATURAL RESOURCES

                  JEFF BINGAMAN, New Mexico, Chairman

DANIEL K. AKAKA, Hawaii              PETE V. DOMENICI, New Mexico
BYRON L. DORGAN, North Dakota        LARRY E. CRAIG, Idaho
RON WYDEN, Oregon                    LISA MURKOWSKI, Alaska
TIM JOHNSON, South Dakota            RICHARD BURR, North Carolina
MARY L. LANDRIEU, Louisiana          JIM DeMINT, South Carolina
MARIA CANTWELL, Washington           BOB CORKER, Tennessee
KEN SALAZAR, Colorado                JOHN BARRASSO, Wyoming
ROBERT MENENDEZ, New Jersey          JEFF SESSIONS, Alabama
BLANCHE L. LINCOLN, Arkansas         GORDON H. SMITH, Oregon
BERNARD SANDERS, Vermont             JIM BUNNING, Kentucky
JON TESTER, Montana                  MEL MARTINEZ, Florida

                    Robert M. Simon, Staff Director
                      Sam E. Fowler, Chief Counsel
              Frank Macchiarola, Republican Staff Director
               Karen K. Billups, Republican Chief Counsel
                                 ------                                

                         Subcommittee on Energy

                BYRON L. DORGAN, North Dakota, Chairman

DANIEL K. AKAKA, Hawaii              LISA MURKOWSKI, Alaska
RON WYDEN, Oregon                    LARRY E. CRAIG, Idaho
TIM JOHNSON, South Dakota            RICHARD BURR, North Carolina
MARY L. LANDRIEU, Louisiana          JIM DeMINT, South Carolina
MARIA CANTWELL, Washington           BOB CORKER, Tennessee
ROBERT MENENDEZ, New Jersey          JEFF SESSIONS, Alabama
BERNARD SANDERS, Vermont             JIM BUNNING, Kentucky
JON TESTER, Montana                  MEL MARTINEZ, Florida

   Jeff Bingaman  and Pete V. Domenici are Ex Officio Members of the 
                              Subcommittee

























                            C O N T E N T S

                              ----------                              

                               STATEMENTS

                                                                   Page

Cantwell, Hon. Maria, U.S. Senator From Washington...............     6
Craig, Hon. Larry E., U.S. Senator From Idaho....................    10
Domenici, Hon. Pete V., U.S. Senator From New Mexico.............     7
Dorgan, Hon. Byron L., U.S. Senator From North Dakota............     1
Eagles, Lawrence, Global Head of Commodity Research, JP Morgan 
  Chase, New York, NY............................................    35
Gheit, Fadel, Managing Director and Senior Energy Analyst, 
  Oppenheimer & Co. Inc., New York, NY...........................    50
Harris, Jeffrey, Chief Economist, Commodity Futures Trading 
  Commission.....................................................    29
Masters, Michael W., Managing Member/Portfolio Manager, Masters 
  Capital Management, LLC, Saint Croix, VI.......................    10
McCullough, Robert F., Jr., Managing Partner, McCullough 
  Research, Portland, OR.........................................    16
Murkowski, Hon. Lisa, U.S. Senator From Alaska...................     3
Newsome, James, Director, CME Group, New York, NY................    42
Salazar, Hon. Ken, U.S. Senator From Colorado....................     9
Sanders, Hon. Bernard, U.S. Senator From Vermont.................     9

                                APPENDIX

Responses to additional questions................................    71

 
                       SPECULATIVE INVESTMENT IN 
                             ENERGY MARKETS

                              ----------                              


                      TUESDAY, SEPTEMBER 16, 2008

                               U.S. Senate,
                            Subcommittee on Energy,
                 Committee on Energy and Natural Resources,
                                                    Washington, DC.
    The subcommittee met, pursuant to notice, at 2:30 p.m. in 
room SD-366, Dirksen Senate Office Building, Hon. Byron L. 
Dorgan presiding.

 OPENING STATEMENT OF HON. BYRON L. DORGAN, U.S. SENATOR FROM 
                          NORTH DAKOTA

    Senator Dorgan. The hearing will come to order. This is a 
hearing of the Senate Energy and Natural Resources Committee, 
the Subcommittee on Energy. The purpose of the hearing today is 
to discuss speculative investment in energy markets.
    After yesterday's news about what is happening in our 
financial markets in this country it is interesting to come and 
unsettling, I suppose, to come to a hearing and discuss 
fundamentals, discuss supply and demand, to discuss markets and 
have people analyze for us what is happening. I recall chairing 
a hearing in the Commerce Committee, a couple of hearings in 
the Commerce Committee with respect to Enron. I don't make a 
connection to Enron in this committee hearing.
    But I make a connection to the soothing words provided to 
us for over a long period of time with respect of what was 
happening to wholesale electricity prices on the West Coast. 
Those of us who raised questions about it were told, you don't 
know what you're talking about. You're nuts. This is supply and 
demand. For God's sake, why don't you get educated? Get a life.
    I recall chairing hearings in the Senate Commerce Committee 
and Ken Lay, the CEO of Enron came to testify. Jeffrey Skilling 
came to testify and at the end of what we then knew was that it 
was a criminal enterprise on the West Coast, at least in part.
    Dramatic manipulation occurred there. Some speculation, but 
also manipulation occurred in those markets. All along the way 
those of us that were concerned about that and raising issues 
were told, you know what? You're way out in left field. This is 
the market that's working.
    Sometimes the market doesn't work so well. Sometimes people 
try to pervert and manipulate the market. Sometimes speculators 
break the market. There are times when markets don't work very 
well. It's why we have regulators, regulatory authority.
    The regulators, to me, are very much like referees. I don't 
know of any other method of the allocation of goods and 
services that is better than the marketplace than the free 
market. It is a wonderful, wonderful mechanism to allocate 
goods and services.
    But there are times when it needs a referee. The referee 
ought to be wearing the striped shirt and blowing a whistle to 
call the fouls. When referees don't exist or when referees 
exist and are willfully blind, then things break down.
    Now let me talk just for a moment about this hearing. It's 
interesting to me that the price of oil and gas has moved very 
rapidly up and now more recently moved down about a third of 
the way. We are told by some that, well, you know what? This is 
supply and demand that has caused all of this.
    From July to July, in a 1-year period, the price of oil and 
gasoline doubled. When asked, why? The regulator says 
repeatedly, not just once or twice or four times, but six or 
eight times. It is the market system of supply and demand. It 
is the fundamentals.
    Yet there's no one in this room today who can describe to 
me what has changed with respect to the fundamentals that would 
cause a doubling of the price of oil and gas in that 12-month 
period. No one, I'm convinced, will be able to tell us the 
reason for that change. The reason I'm pretty confident that no 
one will be able to tell us the reason is that we've had these 
discussions and hearings and opportunities before and there's 
no information that exists that describes a change in 
fundamentals that justifies a doubling of the price.
    Now the American people paid that price. Some industries 
are on the brink of collapse as a result of that price. It 
caused an enormous burden for this country's economy to see the 
price double. Now begin to recede some.
    There are some who say to us, you know what? We believe 
it's the market working and keep your hands off it and just 
stay out of the way, would you? You don't understand it. It's 
complicated and you don't have the capacity to understand.
    There are others of us who remember lessons we should have 
learned in the past. We insist on trying to understand what has 
happened. My own belief, I might say, is that I believe 
relentless, unbelievable excess speculation exists in this 
marketplace.
    I think there is much of the market that no one can see. I 
believe the regulator has testified in this room that he didn't 
have the ability to see that market very clearly or very 
effectively. But notwithstanding the fact he couldn't see it, 
he believed that the fundamentals of supply and demand are what 
was driving the market.
    I profoundly disagree with that as do some others. But 
we'll have a discussion today with six witnesses. Three I 
think, who have one view and three who have a different view. 
In some cases the views will intersect. I think it will be an 
interesting hearing. I hope we will learn from this hearing.
    We have a vote that will start at 3 o'clock today. So I 
believe it is only one vote. It's my intention to take a very 
brief recess which should take no more than about 10 minutes 
for me to go to the floor to cast the vote and come right back 
because I do want to proceed through this hearing.
    You know, let me just say again, the reason for the concern 
about this issue is oil is not like just some other issue. This 
economy runs on oil. The futures market for this commodity was 
established, I believe in 1936. The establishment of that even 
included a proviso dealing with the issue of excess speculation 
because there has always been concern about the potential of 
that happening and what we should do to deal with it.
    I think that this is a very, very important time for us to 
try to understand what has happened. I think what happened 
yesterday on Wall Street leads me to the same conclusion on a 
broader basis about other issues. But this issue has plenty 
impact on this country's economy, a very big impact on this 
country's economy. We ought to figure out what on earth is 
happening? What can we do about it? What should we do about it? 
How do we set it straight?
    So I want to thank all of the witnesses who have come here 
today to testify from very different points of view. I will 
speak more about some of the issues, the Commodity Futures 
Trading Commission, among others, later today as we get into 
some questioning, but I want to call on the Ranking Member, 
Senator Murkowski. Then I'll call on Senator Cantwell and 
Senator Domenici. I'm hoping we can have a relatively brief 
opening comments and then begin with the witnesses.
    Senator Murkowski.

        STATEMENT OF HON. LISA MURKOWSKI, U.S. SENATOR 
                          FROM ALASKA

    Senator Murkowski. Thank you, Mr. Chairman. I appreciate 
you again having this very important hearing. I thank the 
witnesses for their attendance here today. You note that we 
have about an evenly divided, one on one side, one on the 
other.
    This is what I understand, at least in the energy 
committee, this is our third time that we've had an opportunity 
to discuss the topic in just the past 10 months. It was back in 
April, most recently. We heard from several of the experts that 
said, well speculation was playing a small role, if any role, 
at all.
    Then we also heard from some of the witnesses who contended 
that speculation was indeed a very significant factor. From a 
policymaking perspective, you look at that and say, ok, we've 
got conflicting viewpoints here. We need to gather more 
information. We need to really figure it out.
    You're back here again. Again, we've got a table that is 
divided. In the past 2 weeks now, we have seen two new reports 
on speculation that have been released. One concludes that 
speculation played a large role in increasing the crude oil 
prices. The other report does not.
    I do appreciate the fact that we have the authors of those 
that were involved in that report here today. So that you can 
walk us through how we can arrive at these differing 
conclusions. Mr. Chairman, I don't want to take too much time 
this afternoon, because I too, want to get to the panel.
    But I do want to just very quickly reiterate a couple of 
comments I had made at one of our last hearings and talking 
about those factors that come into play when we're talking 
about crude oil prices. I do believe, as you, that speculation 
does play a role. I'm a co-sponsor of legislation that would 
improve the data collection, enhance the market transparency, 
provide the CFTC with the resources and the authority.
    I think we all recognize that that will benefit. But I'm 
one of those who believes that the speculation piece is one of 
the pieces, but it's not the piece in the puzzle. It's not the 
whole puzzle. It is one aspect of it.
    We had a very interesting Senate wide Energy summit last 
Friday. Several of the Senators used that opportunity to ask 
questions about speculation. Many of the experts that were 
gathered there repeatedly reaffirmed that there was another 
factor. It was the factor of supply and demand that they felt 
was of much greater consequence.
    So again, we've got, we do have the issue of supply and 
demand on the table. That is part of the components when we 
look at price. Look at what has happened worldwide that 
influences what we see between the supply of oil and the demand 
for it, on the demand side, increases in consumption in China 
and India.
    Dr. Yergin spoke to the demand shock. That the oil markets 
didn't anticipate when those two countries, China and India, 
are essentially adding consumption in terms of about a million 
barrels per day that we just didn't anticipate. How do you 
factor that in?
    On the supply side the disruptions that we've seen whether 
it's Nigeria's production, Iraq's production level, the fact 
here in the United States that our production levels have been 
at their lowest that we have seen since the end of World War 
II. We recognize that supply and demand, I recognize, that 
supply and demand play an incredible when we look at pricing. 
We also recognize that there are other factors in play.
    I would like to, at this hearing, look to just that one 
piece of the puzzle. We could have a whole hearing on is it 
supply, is it demand, is it market speculation? I think the 
purpose today is to talk about the market speculation piece.
    So while I have much more that I would like to add. In 
deference to my colleagues and the fact that we've got a vote 
coming up, I will hold at this point in time and look forward 
to the opportunity to question our witnesses. Thank you, Mr. 
Chairman.
    [The prepared statement of Senator Murkowski follows:]
  Prepared Statement of Hon. Lisa Murkowski, U.S. Senator From Alaska
    Thank you, Chairman Dorgan. And I want to thank our witnesses for 
agreeing to be here today--some of you for the second time--to share 
your views on speculation.
    This will be the third hearing we have held on this topic in the 
past 10 months. Late last year, and again in April, we heard from 
several experts who told us that speculation was playing a small role, 
if any role at all, in increasing crude oil prices--and we also heard 
from witnesses who contended that speculation was a significant factor. 
From a policymaking perspective, these conflicting statements made it 
clear that we needed to gather more information to find out what was 
really happening.
    In the past week, two new reports on speculation have been 
released. One concludes that speculation played a large role in 
increasing crude oil prices, while the second does not. The authors of 
each report have joined us today, and I look forward to hearing more 
about their findings and recommendations.
    Before we turn to their testimony, I want to reiterate some of the 
comments I initially made last December. I do believe that speculation 
factored into crude oil price increases earlier this year. Along with 
more than 40 of my Republican colleagues, I am a co-sponsor of 
legislation that would improve data collection, enhance market 
transparency, and provide the CFTC with the resources and authority it 
needs to ensure our commodity markets function appropriately.
    But I also believe that speculation is just one piece of a larger 
and more complicated puzzle. This became even clearer last Friday, when 
our committee hosted a Senate-wide energy summit. Several Senators used 
the occasion to ask questions about speculation. In response, the 
experts before us repeatedly affirmed that another factor, supply and 
demand, was of much greater consequence.
    So before we spend the next few hours discussing speculation, I ask 
my colleagues to stop, and consider for a moment, just a few of the 
events that have led to an imbalance between the supply of oil and 
demand for it.
    First, on the demand side, we have seen significant increases in 
consumption in China and India. Every year, those two countries use an 
additional one million barrels per day. Dr. Daniel Yergin called this a 
``demand shock'' that oil markets did not anticipate, and were not 
prepared for.
    There have been significant disruptions on the supply side as well. 
In the first half of this year, up to 40 percent of Nigeria's 
production was taken offline as a result of unrest and strife. Iraq's 
production levels are just now returning to their pre-war levels. Here 
in America, production has declined to its lowest level since the end 
of World War II.
    Since our hearing in April, of course, the price of oil has 
declined substantially--last night, it closed at __ per barrel. The 
Ranking Member of our committee, Senator Pete Domenici, asked about 
this at the summit. The witnesses on our first panel pointed first and 
foremost to supply and demand. As global economic growth has slowed 
down, demand for oil has softened. With prices at record levels, new 
prospects have been brought online throughout the world, including the 
Thunder Horse field in the Gulf of Mexico. Alternative fuels are making 
up an increasingly larger share of our fuel supply, and continued 
improvements in technology are allowing us to do more with less.
    To be fair, speculation was not categorically ruled out as a 
possible factor. But the CFTC's new staff report has shed additional 
light on this issue. Some of its findings are particularly revealing.
    First, that: ``While there was an increase in the net notional 
value of commodity index business in crude oil futures, it appears to 
be due to an appreciation of the value of existing investments caused 
by the rise in crude oil prices and not the result of more money 
flowing into commodity index trading.''
    And then: ``As crude oil prices were increasing during the period 
December 31, 2007 to June 30, 2008, the activity of commodity index 
traders in crude oil during this period reflected a net decline of 
futures equivalent contracts.''
    In fact, of the 550 swap clients whose trading data for June 30 was 
analyzed, the CFTC concluded that 35 positions would have exceeded the 
speculative limits of their markets--and most would have been in excess 
by a small amount. In the crude oil market, it appears that only six 
noncommercial investors were above NYMEX accountability levels--and two 
were on the short side.
    It is thoroughly established that supply and demand, not 
speculation, was the principal driver of record oil prices in the first 
part of this year. Despite having heard this from our nation's top 
energy experts, and despite a new report from the agency that is in 
charge of regulating our futures markets, some continue to claim that 
supply and demand is nothing more than a myth. To me, this is simply 
astonishing. Even the authors of the second report we are here to 
discuss, ``The Accidental Hunt Brothers--Part 2,'' seem to acknowledge 
that supply and demand has played at least as great a role as 
speculation.
    I understand the allure of blaming speculators for high oil prices. 
But having reviewed the new report from the CFTC, and having listened 
to the witnesses at last week's summit, it is clear that the single 
most important issue that we can focus on as this Congress comes to a 
close is supply and demand.
    The energy challenges we face are the result of global forces, and 
if we want to pay less at the pump, we must produce more of our own 
energy. It's time to adopt an ``all of the above'' approach to energy 
policy. In part, this will require greater oil and gas production here 
at home.
    For today, however, our focus remains on a small piece of that 
larger puzzle. As the CFTC staff report makes clear, we do have some 
work to do in this area. I look forward to hearing from our witnesses, 
and to working with the CFTC to make sure it has the resources and 
authority it needs to be successful going forward.

    Senator Dorgan. Thank you.
    Senator Cantwell.

        STATEMENT OF HON. MARIA CANTWELL, U.S. SENATOR 
                        FROM WASHINGTON

    Senator Cantwell. Thank you, Mr. Chairman. I'll be brief. 
Thank you for holding this hearing.
    I want to welcome Dr. McCullough for being here, I'm sorry, 
Robert McCullough for being here from the Pacific Northwest. I 
first became familiar with his work when he exposed the smoking 
guns of Enron's manipulation of the electricity market. So I 
look forward to hearing what he has to say in his research 
about the speculation in the futures market.
    Mr. Chairman, I think that we've had many hearings now on 
various committees here that really is pointing to the fact 
that the CFTC's inability or unwillingness to look at the 
regulatory framework is now really clear to us from everything 
from credit default swaps to the derivatives market for oil 
futures. It's causing us a problem. We need to have a more 
aggressive response.
    When the American economy has been on this economic roller 
coaster of soaring gas prices and housing market bus, we've had 
a CFTC who's done, I think, very little or really been asleep 
at the switch when it comes to these key oversight, regulatory 
issues. The importance of all of this is not lost on me or our 
economy. Just this last week Alaska airlines announced lay offs 
of hundreds of people, in fact, going to have a major impact in 
our area and again, because of high gas prices.
    We've seen this deregulated financial market grow from 
about $13 billion in 2003 to $317 billion today, an 
unbelievable growth in expansion in all this time, you know 
when oil went from $27 a barrel to $147 a barrel. So I know 
that the McCullough report and the Masters report are talking 
about how smart money rushed into these markets. Now as we are 
looking at shining a bright light, some of them are leaving the 
market. I want to make sure that we have markets that are 
properly policed.
    Mr. Chairman we are going to talk about supply and demand. 
But if I could just put up one chart* because the thing that I 
think is most interesting here is that while supply and demand 
have been relatively steady since 1997 growing at a small 
increase all the way to 2008. We can see at about the time that 
dark markets started to exist. It may not be the only issue, 
but dark markets started to exist. Oil started flowing in and 
in oil futures we saw this incredible run up in price.
---------------------------------------------------------------------------
    * Chart has been retained in subcommittee files.
---------------------------------------------------------------------------
    So for almost, you know, the better part of the last 
several years, we have seen an incredible price spike. So I 
want to make sure that we do our job, that we are doing the 
oversight of the agencies that need to do their job. We learned 
from FERC that they didn't do the proper oversight of the 
electricity markets. I want to make sure that we don't continue 
to make the same mistakes as it relates to the oil markets.
    I thank the chair.
    Senator Dorgan. Senator Cantwell, thank you very much.
    Senator Domenici.

   STATEMENT OF HON. PETE V. DOMENICI, U.S. SENATOR FROM NEW 
                             MEXICO

    Senator Domenici. Mr. Chairman, I was just going to ask 
isn't that inaccurate? Didn't it start to come down? You don't 
have the price coming down on that chart?
    Senator Cantwell. I will gladly celebrate the fact that 
oversight, I think, by us has chased a lot of money since July 
out of the market and the price has dropped fifty cents a 
gallon.
    [Laughter.]
    Senator Cantwell. So I will get that chart for you. I will 
show you. I think Mr. McCullough will prove that it's the one 
thing that has impacted price is the discussion by Congress and 
its oversight.
    Senator Dorgan. Let me just make a point. The full 
committee has normally recognized the chairman and the ranking 
member for an opening statement. For those that have just 
arrived, I would like very much if we could just have opening 
statements for a minute or so a piece beyond Senator Murkowski 
and myself and then get to the witnesses because we're going to 
have a vote starts about 3 o'clock. So with your cooperation, I 
would appreciate it very much.
    Senator Domenici.
    Senator Domenici. Is that, you said those that arrived 
late. Do I, even though I arrived a long time ago, fit within 
the 1-minute rule? It's alright if I do.
    Senator Dorgan. Why don't you start?
    Senator Domenici. Alright. I'll try. Look, I had a 
statement prepared, but since I've been at so many meetings on 
this subject and haven't found any concrete evidence from any 
witness that's credible on the subject of manipulation--not 
speculation, but whether speculators manipulated--I won't use 
my statement.
    But I will say one thing. Since there is a statement made 
by one of the witnesses, Mr. Masters, who's first and perhaps 
will speak first, I want to comment on his report.
    He issued a report that was analyzed by an economist named 
Dr. Verleger, a rather prominent and I would have to say 
Democratic economist--he was a White House employee in the 
Carter Administration. I just want to say, just so everyone 
understands that even when you write a report people don't 
necessarily conclude that your report is right.
    Dr. Verleger describes the report by one of our witnesses 
as false: ``The Accidental Hunt Brothers-Act 2, by Michael W. 
Masters and Adam K. White is the worst example of junk economic 
analysis published in a very long time. The authors demonstrate 
nothing in the article. It is devoid of any intelligent 
content. One can make a stronger case for a rooster's crow 
causing the sun to rise. Their report is an utter and complete 
perversion of what we teach in economics.''
    Now all I wanted to do was to tell you, Mr. Masters, that 
there are some economists, even those whose hair has grown gray 
compared to yours, having worked in the Carter White House, who 
don't think your report is very accurate. There's another 
person who is currently the president of Goldman Sachs who used 
this report before another Senate committee. He used the report 
of Dr. Verleger as an analysis of your report and its validity.
    So I think I'm in good shoes with the president of Goldman 
Sachs, Mr. Cohn, who used the report. I think I read well. 
Although I didn't read it as well as I should because on the 
rooster crowing, that's the whole punch line. I botched that 
up.
    [Laughter.]
    Senator Domenici. He says it's a stronger case for a 
rooster's crow causing the sun to rise. That's the way it was 
written. I just read it wrong.
    Having said that, I never would have thought of such a good 
explanation, but I did read a little bit more about your 
holdings and where you had investments, Mr. Masters. I think 
you would feel very much at home sitting at the table with the 
airline executives--every one of them has come and said there's 
been manipulation. You have most of your holdings in the 
airline industry. If you don't you can tell the committee that.
    I can't stay here all afternoon. But I want to say, thank 
you, Mr. Chairman, for the hearing. I believe, having looked at 
what they have to say, that they're all excellent witnesses. I 
think they're being very honest and some of them are being very 
careful.
    But I don't think, as a whole, there's any unanimous course 
coming up here saying that we have another Enron on our hands. 
That the oil price growth is equivalent to or even similar to 
the Enron situation of which our Senator from the West Coast so 
valiantly worked on and would so much like to make oil and gas 
equate with. She has been unable to do that, even with her 
sincere effort.
    Senator Dorgan. Senator Domenici, you have----
    Senator Domenici. Thank you, Mr. Chairman.
    Senator Dorgan. You have planted a number of time bombs 
here that will explode after you leave.
    Senator Domenici. Yes.
    [Laughter.]
    Senator Dorgan. But Mr. Masters will be able to speak for 
himself. I'll be recognizing him in a moment. I actually raised 
the Enron issue. I indicated when I raised it that I wasn't 
suggesting there was an Enron activity here.
    What I was suggesting is those of us who raised the 
questions about the manipulation of wholesale prices on the 
West Coast, which we now know was stealing billions, over $10 
billion and $20 billion from West Coast consumers. We were told 
by everybody, including people on this committee just back off. 
There's nothing going on here. This is the market system.
    So I raise it only to say that this is the market and the 
fundamentals and we've heard all that before. Whatever the 
facts are we'll get on the table today from this panel. But I 
was in fact, the one that raised the point of Enron. I chaired 
the hearings of Mr. Lay and Mr. Skilling and others. My 
colleague from the West Coast had a lot to do with this as 
well.
    But I'm not a stranger to the issue. I'm not a stranger to 
being told that, get out of the way. You need to understand the 
market. The market is working.
    In my judgment the reason we're having these hearings is 
the run up double in the price of oil in 1 year from July to 
July is not justified by the fundamentals. I think what has 
happened here is a casino like society has developed with 
intense reckless speculation that has imposed an enormous 
burden on this country in a way that I think is unfair. But 
having said all that I say to those who have come in late, 
again, I'm going to recognize the two on each side, just a 
second. The two on each side, if you can give us a minute each, 
then we'll go to the witnesses.
    Let me start with Mr. Salazar then go to Senator Craig and 
so on.

          STATEMENT OF HON. KEN SALAZAR, U.S. SENATOR 
                         FROM COLORADO

    Senator Salazar. Mr. Chairman, I am interested in hearing 
from the witnesses so I'll submit my statement for the record.
    Senator Sanders has to preside at 3 o'clock. So with----
    Senator Dorgan. With your permission, Senator Sanders and 
then Senator Craig.
    [The prepared statement of Senator Salazar follows:]
   Prepared Statement of Hon. Ken Salazar, U.S. Senator From Colorado
    Thank you Subcommittee Chairman Dorgan and Ranking Member Murkowski 
for holding today's hearing on the impact of speculation on energy 
markets.
    Although the price of oil dipped below $100 a barrel yesterday for 
the first time in many months, the role of speculation in the price 
run-up of crude earlier this year is still prominent in our minds. As 
much as some would like to dismiss this episode as a bad dream it is 
our duty to understand exactly how and why prices spiraled as they did 
and why they are still so high today. I believe speculation played a 
significant role in driving up the price of oil and I believe we are 
duty-bound to ensure this does not happen again. Certainly the strength 
of the dollar has played an important role in these price movements as 
well. I am looking forward to hearing from the experts called to 
testify today their explanations for the spike and recent decline of 
energy prices.
    These are uncertain times for our economy. Families and businesses 
are still suffering under the weight of high energy prices. We are all 
disturbed by the recent failures of some of our nation's largest 
financial institutions. When it comes to stabilizing our economy, 
volatility in energy commodity markets is something we should eliminate 
from the equation, to the greatest extent we can. As I have said 
before, ensuring a rational and open crude oil market is a matter of 
national and economic security. I look forward to advancing this 
discussion during today's hearing.
    Thank you, Mr. Chairman.

  STATEMENT OF HON. BERNARD SANDERS, U.S. SENATOR FROM VERMONT

    Senator Sanders. I apologize to the panel. I've got to 
preside. I hope I'm not late.
    I happen to think this issue and the issues that we're 
raising in terms of speculation is of enormous significance. 
The truth of the matter is is that in 2000 when you have people 
say, when you look at speculation we're paranoid. We're into 
conspiracy theory.
    Hey look at recent history in the last decade. What was 
Enron about? What the chairman was just saying is what people 
were talking about Enron, the Enron folks were saying it's 
supply and demand. In 2004, BP, formerly British Petroleum, 
artificially increased propane prices. They cornered that 
market. Then in 2006, the Amaranth hedge fund was responsible 
for artificially driving up natural gas prices until they 
collapsed.
    What we have seen in January of this year oil was at $95 a 
barrel, in July it was $145 a barrel. Now it is, last heard, 
$92 a barrel. Does supply and demand play a role? Sure it does.
    But does anyone think that that type of fluctuation is just 
supply and demand or market fundamentals? I don't think so. I 
think we're on to something. I think we've got to press this 
issue.
    Senator Dorgan. Senator Craig.

        STATEMENT OF HON. LARRY E. CRAIG, U.S. SENATOR 
                           FROM IDAHO

    Senator Craig. Thank you very much. I just happened to 
click the television before I came out. Oil could hit 90 today. 
I guess we'll call that manipulating it downward. While some 
oil experts were saying that as soon as the world economy 
softened, and it has softened, and as soon as ours softened, 
the market would head down. It's headed down.
    Mr. Chairman, I would only suggest one thing. Please, don't 
allow this committee to redefine manipulation as speculation or 
anybody buying stocks, bonds and other kinds of derivatives 
today in hoping they might go up would become a manipulator of 
the market. Thank you. Thank you for the hearing.
    Senator Dorgan. I don't believe that description exists 
from this committee.
    Senator Craig. We'll try to keep it that way.
    Senator Dorgan. Senator Corker.
    Senator Corker. Mr. Chairman, I'll think all of us come to 
this hearing with--from our own insights and biases and I just 
as soon go to the witnesses and listen to them and ask 
questions. So thank you.
    Senator Dorgan. Senator Corker, thank you very much. Let me 
again thank all of the witnesses. We'll begin with Mr. Masters.
    Mr. Masters is the Managing Member or the Portfolio Manager 
of Masters Capital Management. Mr. Masters, thank you for being 
with us. You may proceed. Let me say to all six and I will not 
repeat it, that your entire statements will be made a part of 
the permanent committee record and we will encourage you to 
summarize.

  STATEMENT OF MICHAEL W. MASTERS, MANAGING MEMBER/PORTFOLIO 
   MANAGER, MASTERS CAPITAL MANAGEMENT, LLC., SAINT CROIX, VI

    Mr. Masters. Thank you, Senator. Perhaps I'll be able to 
address the allegations from the Senator on those issues at 
some point after my statement. Thank you, Chairman Dorgan and 
members of this committee. I appreciate the opportunity to 
address this committee on the role of speculative investment in 
the energy markets.
    WTI crude oil prices rose dramatically in 2008, from $95 
per barrel in January to $145 per barrel in July. Then fell 
just as dramatically back to around $95 per barrel today. It is 
becoming very difficult for reasonable people to explain a $50 
spike followed by a $50 drop relying exclusively upon supply 
and demand rationale or a weak dollar hypothesis as their only 
explanations.
    In the first quarter of 2008 EIA was forecasting that 
supply would exceed demand over the next 12 months. Despite 
this fact WTI crude oil prices rose substantially. Oil prices 
continued to rise into July at which point the EIA revised 
their forecast and suggested that demand would outstrip supply. 
But within a week, the WTI crude oil price began its 
precipitous drop.
    It is important to note that during the first 6 months of 
2008 actual worldwide inventories for crude oil were 
essentially flat. According to the inventory data, supply and 
demand were in balance during this time period. It is certainly 
reasonable to conclude that supply and demand cannot fully 
explain crude oil's dramatic rise and fall during 2008.
    Many people believe that the level of U.S. dollar has had a 
significant impact on oil prices. This line of reasoning 
maintains that countries whose currencies are strengthening vis 
a vie the dollar will demand more oil because the price they 
pay for oil falls when the U.S. dollar falls. In 2008, the U.S. 
dollar index never weakened by more than 7 percent. Yet the 
price of WTI crude oil climbed by as much as 50 percent.
    Clearly a 7 percent weakening in the U.S. dollar cannot 
fully explain a 50 percent increase in WTI crude oil prices. 
Without question supply and demand fundamentals and a weakened 
dollar have played some part in the rise and fall of crude oil 
prices. But it is difficult to believe that they fully explain 
the tremendous volatility that we have seen.
    Our research took data from the CFTC Commodity Index CIT 
report and used that data to estimate how much money was 
allocated to the commodity indexes. With these numbers we were 
able to estimate how many WTI futures contracts were held by 
index speculators each week. By focusing on the change in the 
number of contracts we were able to estimate the inflows and 
outflows of the major commodity indexes.
    From January 1 to May 27, index speculators poured over $60 
billion into commodity indexes. As Chart One illustrates, this 
led to the purchase of about 187 million barrels of WTI crude 
oil futures. We believe this buying pressure contributed 
greatly to the $33 per barrel increase in the WTI crude oil 
price during this time period.
    Then from May 27 to July 15, there were multiple hearings 
held in both Houses of this Congress focused on the effect of 
large speculators were having on food and energy prices. There 
were several pieces of legislation introduced that were 
designed to crack down on excessive speculation. In addition 
the CFTC announced multiple initiatives and investigations with 
the stated intent of determining what role speculators played 
in oil's rapid price rise.
    It appears likely that many of these index speculators were 
concerned enough by what was occurring in Washington to pull 
their money out of commodity index investments. Despite the 
claims that they were passive, buy and hold or long term 
investors, beginning on July 15 index speculators led a mass 
stampede for the exits pulling out approximately $39 billion 
from the GSCI. As chart 2 shows this resulted in the selling of 
about 127 million barrels of WTI crude oil futures between July 
15 and September 2, we believe this dramatic selling pressure 
contributed greatly to the $29 oil price drop during those 7 
weeks.
    The bottom line is when index speculators pour large 
amounts of money into the commodity markets and buy large 
amounts of futures contracts, prices go up. When they pull 
large amounts of money out, prices go down. These large 
financial players have become the primary source of the 
dramatic and damaging volatility seen in oil prices.
    Congress needs to pass legislation re-establishing 
reasonable and rigid speculative position limits at the control 
entity level that apply to all commodities across all markets 
including the over the counter swaps markets. Further Congress 
should take action to ban or severely restrict the practice of 
commodity index replication because of the damage it does to 
the price discovery process of the commodities futures markets. 
Thank you.
    [The prepared statement of Mr. Masters follows:]
  Prepared Statement of Michael W. Masters, Managing Member/Portfolio 
       Manager, Masters Capital Management, LLC., Saint Croix, VI
    Thank you, Chairman Dorgan and Members of this committee. My name 
is Michael Masters and I appreciate the opportunity to appear before 
you today to address the role of speculative investment in the energy 
markets. Last Wednesday, Adam White and I released two reports that 
address this topic. I will provide hard copies of both reports to your 
staffs and if more copies are needed, they can download the reports at 
www.accidentalhuntbrothers.com.
    The first report, entitled ``The Accidental Hunt Brothers,'' is a 
comprehensive report that deals generally with two problems facing the 
commodities futures markets: excessive speculation and Index 
Speculation. It encompasses information from my May and June 
testimonies before Congress as well as additional research we 
performed. It was not written for academics, but is meant to be easy to 
understand for people conversant with these topics.
    I want to draw your attention to two chapters within the report. 
Chapter Three presents all the evidence that we have compiled 
indicating that institutional investors have had a large impact on 
commodity prices. Chapter Seven deals with legislative solutions where 
we argue that Congress should act to impose reasonable and rigid 
speculative position limits (at the control entity level) across all 
commodities in all markets, including the over-the-counter (OTC) swaps 
market. In addition we encourage Congress to ban or severely restrict 
the practice of commodity index replication because it consumes 
liquidity, increases price volatility and damages the price discovery 
function of the commodities futures markets.
    The second report, entitled ``The Accidental Hunt Brothers--Act 2'' 
looks at dollars allocated to commodity index trading strategies in 
2008 and the effects that those dollars have on West Texas Intermediate 
(WTI) crude oil futures contracts.
    This afternoon I would like to briefly summarize those findings for 
you.
    WTI crude oil prices rose dramatically in 2008 from $95 per barrel 
in January to $145 per barrel in July. Since then, oil prices have 
fallen just as dramatically to their current levels of around $100 per 
barrel. Economists are now struggling to explain this massive 
volatility strictly in terms of supply and demand fundamentals.
    How can one explain a $50 spike in prices within a few months time 
followed by a $45 drop in prices just a few months later? Can supply 
and demand or a weak dollar really explain the roller coaster ride that 
oil prices have been on?
        supply and demand do not fully explain oil's price moves
    The U.S. Energy Information Administration (EIA) is charged with 
developing forecasts of supply and demand for the United States and the 
rest of the world. When supply exceeds demand then world inventories 
grow and vice versa. Chart 1* shows the EIA's monthly forecasts for oil 
inventories on a 12-month forward-looking basis. This is their 
professional estimate of what supply and demand will do worldwide over 
the next 12 months.
---------------------------------------------------------------------------
    * Charts have been retained in subcommittee files.
---------------------------------------------------------------------------
    In the first quarter of 2008 the EIA was forecasting that supply 
would exceed demand over the next 12 months. Despite this fact, WTI 
crude oil prices rose substantially. Oil prices continued to rise into 
July, at which point the EIA was forecasting that demand would outstrip 
supply (a bullish sign). A week later WTI crude oil began its 
precipitous drop.
    It is important to note that during the first six months of 2008, 
actual worldwide inventories for crude oil were essentially flat--they 
barely changed. Therefore, supply and demand were in balance during 
this time period. Clearly, supply and demand cannot fully explain crude 
oil's dramatic rise and fall during 2008.
     u.s. dollar weakness does not fully explain oil's price moves
    Many people believe that the U.S. dollar has had a significant 
impact on oil prices. This line of reasoning maintains that countries 
whose currencies are strengthening vis-a-vis the dollar will demand 
more oil because the price they pay for oil falls when the U.S. dollar 
falls.\1
\---------------------------------------------------------------------------
    \1\ Crude oil is priced in U.S. dollars around the world.
---------------------------------------------------------------------------
    Chart 2 shows how the U.S. Dollar Index performed (on a percentage 
basis) compared with the U.S. dollar price of WTI crude oil. Chart 2 
also adjusts the WTI crude oil price, taking into account the weakness 
in the U.S. dollar, in order to show what non-U.S. consumers would have 
to pay for crude oil.
    In 2008 the U.S. dollar never weakened more than 7%, yet the price 
of WTI crude oil climbed by as much as 50%. For a non-U.S. consumer 
prices peaked at 43% above their January 1st level. Clearly, a 7% 
weakening in the U.S. dollar cannot come close to fully explaining a 
50% increase in WTI crude oil prices.
    Without question, supply and demand fundamentals and a weakening 
dollar have played some part in the rise and fall of crude oil prices, 
but it is difficult to believe that they fully explain the tremendous 
volatility we have seen. In seeking to identify other factors that 
might further explain this volatility, we turned our attention to the 
trading patterns of Index Speculators.\2
\---------------------------------------------------------------------------
    \2\ An Index Speculator is an institutional investor such as a 
pension fund, university endowment or sovereign wealth fund that 
allocates money to a commodity index replication strategy.
---------------------------------------------------------------------------
  index speculation is a major cause of the dramatic movement in oil 
                                 prices
    We took data from the Commodities Futures Trading Commission's 
(CFTC) Commodity Index Trader (CIT) report and used that data to 
estimate how much money was allocated to the Standard & Poor's Goldman 
Sachs Commodity Index (S&P-GSCI) and the Dow Jones AIG Commodity Index 
(DJ-AIG).\3\ With these numbers, we were able to estimate how many WTI 
futures contracts were held by Index Speculators each week and 
therefore how many contracts were bought and sold as a result.\4
\---------------------------------------------------------------------------
    \3\ The S&P-GSCI and DJ-AIG account for between 85% and 95% of the 
total investment in commodity index replication strategies.
    \4\ The methodology for how we calculate these estimates can be 
found at the back of my May 20th Senate testimony as well as in the 
Appendix of our large report ``The Accidental Hunt Brothers.''
---------------------------------------------------------------------------
         january 1, 2008 to may 27, 2008: oil prices skyrocket
    From January 1st to May 27th, Index Speculators poured over $60 
billion into commodity indices. As Chart 3 illustrates, this led to the 
purchase of about 187 million barrels of WTI crude oil futures. This 
buying pressure contributed greatly to the $33 per barrel increase in 
the WTI crude oil price.
        may 27, 2008 to july 15, 2008: congress threatens action
    Then, from May 27th to July 15th, there were multiple hearings held 
in both houses of Congress focused on the effect that speculators were 
having on food and energy prices. There were several pieces of 
legislation introduced that were designed to crack down on speculation. 
In addition, the Commodities Futures Trading Commission (CFTC) 
announced multiple initiatives and investigations with the stated 
intent of determining what role speculators played in oil's rapid price 
rise.
    Those who advocate in favor of Index Speculators' participation in 
the commodities futures markets highlight the ``passive,'' ``buy and 
hold,'' ``long term'' nature of their investment strategy. In spite of 
their stated intentions, it appears likely that many of these 
speculators were concerned enough by what was occurring in Washington 
to pull their money out of commodity index investments.
         july 15, 2008 to september 2, 2008: oil prices plummet
    Beginning on July 15th,\5\ Index Speculators led a mass stampede 
for the exits, pulling out approximately $39 billion from the S&P 
Goldman Sachs Commodity Index.\6\ As Chart 4 shows, this resulted in 
the selling of about 127 million barrels of WTI crude oil futures 
between July 15th and September 2nd. This dramatic selling pressure 
contributed greatly to the $29 oil price drop during those seven 
weeks.\7
\---------------------------------------------------------------------------
    \5\ July 15th was a significant date because many Institutional 
Investors make portfolio allocation decisions on a quarterly basis. 
July 15th was the first day in the 3rd quarter following the index 
``roll period.''
    \6\ The Dow Jones--AIG commodity index did not experience outflows 
during this period; it actually experienced a nearly $7 billion inflow. 
But because the S&P-GSCI is 40% WTI crude and the DJ-AIG is only 16% 
WTI crude there were a net 127 million barrels sold.
    \7\ When Index Speculators liquidate positions they sell all the 
commodities futures in the index. As a result 22 out of the 25 
commodities in the index dropped in price right along with oil.
---------------------------------------------------------------------------
    Our findings have been corroborated by a series of research reports 
by Lehman Brothers that reached similar conclusions. In a July report, 
Lehman estimates that $98 billion was poured into commodity indices 
from 2006 to June 2008.\8\ And in an August report they estimate that 
from June to August, $42.6 billion was liquidated by Index 
Speculators.\9
\---------------------------------------------------------------------------
    \8\ ``Index Inflows and Commodity Price Behavior,'' Daniel Ahn, et 
al., Lehman Brothers, July 31, 2008, p.11.
    \9\ ``Punctured Balloon,'' Daniel Ahn, et al., Lehman Brothers, 
August 22, 2008, p. 1.
---------------------------------------------------------------------------
    When Index Speculators pour large amounts of money into the 
commodities markets and buy large amounts of futures contracts, prices 
go up. When they pull large amounts of money out prices go down. These 
large financial players have become the primary source of the dramatic 
and damaging volatility seen in oil prices.
 the cftc's new report on commodity swaps dealers and index traders\10
\---------------------------------------------------------------------------
    \10\ ``Staff Report on Commodity Swap Dealers & Index Traders with 
Commission Recommendations,'' Commodity Futures Trading Commission, 
September 2008. http://cftc.gov/stellent/groups/public/@newsroom/
documents/file/cftcstaffreportonswapdealers09.pdf
---------------------------------------------------------------------------
    Having based our analysis upon the CFTC's CIT data, we eagerly 
anticipated the release of their report on commodity swaps dealers and 
index traders, hoping to find richer and more revealing data. We were 
greatly encouraged when they announced their special call and their 
intent to ask for much more granular and detailed disclosures. 
Unfortunately, after reading their report we are greatly disheartened 
because it represents a step backward rather than a step forward. In 
fact, the report raises more questions than it answers.
    Our concerns center on three different areas: transparency, 
accuracy and consistency.
Transparency
    With regard to our first concern--transparency--our understanding 
is that the CFTC sent out 43 letters, with two single-page forms 
attached, asking for summary information of each swaps dealer and index 
trader's gross long and gross short positions broken down by index 
``brand'' (S&P-GSCI, DJ-AIG, etc.) and within each ``brand'' by 
individual commodity. They also requested gross long and gross short 
positions for single commodity transactions broken down by 
``commercial,'' ``non-commercial,'' and ``intermediaries.'' These one-
page forms are to be submitted monthly by the 43 swaps dealers and 
index traders that received them.
    For the sake of transparency, we are perplexed as to why the CFTC 
has released such a miniscule fraction of the data they collected.

   Why have they not released the data on the different 
        ``brands'' of indices or the breakdown within the indices of 
        all 33 commodity positions?
   Why has the CFTC only released data for three of the last 
        nine months?
   Why have they released none of the data on single-commodity 
        transactions, which might reveal the actions of non-Index 
        Speculators?
   Why has the CFTC only revealed net figures rather than the 
        gross long and gross short positions that they were provided 
        with?

    At least with the Commitment of Traders Report, the CFTC included 
long and short information. Net figures, by their very nature, do not 
tell the whole story. Net positions are only meaningful when viewed in 
conjunction with gross long and gross short positions. Net position 
data does not provide any information about price trends.\11
\---------------------------------------------------------------------------
    \11\ People who advocate ``net positions'' believe that short 
positions offset long positions. These are the same people who like to 
say, ``for every buyer there is a seller,'' as if that explains 
something about price movement. By definition, there has been a seller 
and a buyer for every transaction in history, but the question is ``at 
what price?'' Financial markets allocate based on price. If there are 
more buyers than there are sellers at a certain price level then the 
price will increase until every buyer is paired off with a seller.
---------------------------------------------------------------------------
    It is this apparent unwillingness to provide even a basic level of 
disclosure that has caused us to question the CFTC's commitment to 
transparency.
Accuracy
    Our second concern is accuracy. As one example, the CFTC data shows 
that the notional value of index investments in Cotton grew from $2.6 
billion to $2.9 billion during the March 31, 2008 to June 30, 2008 
timeframe. That is an 11.5% increase. However, the price of cotton only 
grew by 3%. That means that money had to flow into cotton during the 
2nd quarter in order to make up the difference. This would result in an 
increase in the futures equivalent position in cotton. Instead, the 
CFTC data shows it unchanged.
    We have identified several other apparent inconsistencies and 
inaccuracies. Perhaps if the CFTC releases a new report with more 
detailed and granular data, then these issues can be resolved. We note 
that the CFTC states in their report that

          . . . as a result of the survey limitations, there may be a 
        margin of error in the precision of the data which will improve 
        as the staff continues to work with the relevant firms and to 
        further review and refine the data.

    I hope that as the new CFTC data is further refined, we will see 
much more detailed disclosure to help the public discern if, in fact, 
there are discrepancies in the data. Until that time, the question 
remains as to whether or not commodity swaps dealers and index traders 
submitted truly accurate data and whether or not it was compiled 
accurately by the CFTC.
Consistency
    Our final concern centers on the lack of consistency between the 
CIT data that CFTC has been releasing to the public for more than two 
years and this new data that they just released. There are vast 
differences between the two data sets.
    Using Corn as an example, the newly released data says that on 
March 31, 2008, index traders held 362,000 contracts. However, the 
April 1, 2008 CIT report shows them with a net position of 439,000 
contracts--a difference of 77,000 fewer contracts in the new report 
compared to the CIT data.
    On the flip side, the newly released data for Wheat shows that 
index traders held 194,000 contracts on June 30, 2008. However, the CIT 
report from July 1, 2008 shows them with a net position of 
approximately 178,000 contracts--a difference of 16,000 more contracts 
in the new report compared to the CIT data.\12
\---------------------------------------------------------------------------
    \12\ The new CFTC report lists the notional index investment in 
Wheat at $8.7 billion and the price of Wheat on June 30, 2008 closed at 
$8.435. Therefore, one would expect the futures equivalent position 
size to be equal to 206,000, not 194,000. If the 194,000 figure should 
in fact be 206,000, then that would mean a difference of 28,000 
contracts instead of 16,000 contracts.
---------------------------------------------------------------------------
    In 29 out of 36 data points, the index trader position size in the 
CFTC's CIT report is significantly larger than the position sizes 
implied in their new report. The new data is self-reported by commodity 
swaps dealers based on the notional value of their OTC derivatives 
outstanding, while the CIT data showed existing commodity swaps 
dealers' positions on the exchanges. One must question the accuracy of 
the self-reporting done by the swaps dealers.
    With this new report, the CFTC challenges the validity of its own 
CIT data. The CFTC has been releasing the CIT data for over two years, 
and financial professionals rely upon that data for their analysis of 
the markets. If the CFTC is saying that the old data is not accurate 
and should be replaced with this new data, it would be natural for 
people to question whether the new data is, in fact, any more accurate 
than the old data.
    For the reasons that we have outlined, we are seriously concerned 
about this new data set. In his dissent, Commissioner Chilton repeated 
similar concerns, saying

          I am concerned that, while I believe the staff did a 
        tremendous amount of work in a short period of time, the agency 
        may not have received the type of comprehensive data sets 
        needed to make reliable analyses and conclusions. . . . Absent 
        compelling evidence, I believe that the most responsible course 
        of action is to refrain from making conclusions or declarative 
        statements based upon such limited and unreliable data.

    In our opinion, it would be a mistake to replace the existing CIT 
data with this new data that is less transparent, less accurate and 
less consistent. If the CFTC believes that the CIT data is truly 
inaccurate, then they should issue a press release and remove it from 
their website immediately. As it stands right now the general public 
cannot tell which, if any, of the CFTC's data sets are reliable.
Conclusion
    Excessive speculation and Index Speculation in the commodities 
futures markets are two problems that are not going to be resolved 
until Congress takes action.
    Congress needs to pass legislation re-establishing reasonable and 
rigid speculative position limits at the control entity level that 
apply to all commodities across all markets including the over-the-
counter swaps markets. Further, Congress should take action to ban or 
severely restrict the practice of commodity index replication because 
of the damage it does to the commodities futures markets.
    If Congress fails to act, then our commodities futures markets will 
remain excessively speculative and extremely volatile. There currently 
is nothing to prevent Index Speculators from pouring more money back 
into these markets and driving prices to new highs.

    Senator Dorgan. Mr. Masters, you have a right to respond to 
two things Senator Domenici said. One he asked about your 
holdings and so on which suggested that your testimony relates 
to your holdings. The second point was Dr. Verleger. Do you 
wish to respond to that? I'll give you 2 minutes to do that 
before we go on.
    Mr. Masters. Sure, thank you, Senator. With respect to our 
holdings, we have held many transportation positions. They're 
certainly not all of our portfolio. They are a small component 
of the portfolio.
    We've held these positions in many cases, on and off, since 
the beginning of 2000. The transportation names have been the 
area we feel like we have some expertise in, and we have 
consistently had positions.
    Also during the last 12 months, we have had significant 
energy positions as well, so the idea on the long side. So the 
idea that we're coming up here to testify to alter our 
portfolio performance is quite frankly, ridiculous. Senator, 
you well know how hard it is to do anything up here, to pass 
any legislation, to get anything done in both chambers of 
Congress. The idea that I would come up here and try to alter 
my portfolio's performance by changing congressional 
legislation and then getting the President to sign a law is 
outlandish. It's just not true. That's clearly not the reason 
that I came up here.
    With respect to Mr. Verleger, Mr. Verleger is entitled to 
his opinion. I happen to disagree with his conclusions. He 
disagrees with my conclusions.
    Senator Dorgan. Mr. Masters, thank you very much. Next we 
will hear from Mr. Robert McCullough, the Managing Partner of 
McCullough Research in Portland, Oregon. Mr. McCullough, 
welcome. You may proceed.

   STATEMENT OF ROBERT F. MCCULLOUGH, JR., MANAGING PARTNER, 
               MCCULLOUGH RESEARCH, PORTLAND, OR

    Mr. McCullough. Thank you, chairman. Thank you, Senators. I 
was here 6 years ago commenting on regulatory indifference and 
market anomalies. Obviously it was a pretty crazy thing to say. 
In retrospect we've collected over $10 billion in settlements 
and had many convictions.
    The fact of the matter is there are mistakes so seductive 
we make them again and again and again. Free enterprise is the 
best system on the planet. But it works best when it is 
transparent. If you can't see what's going on, we make terrible 
mistakes.
    The right answer here is we have to fix the CFTC reporting. 
They have to have the staff. They have to have the powers. Most 
of all they have to have the reports.
    The report they issue, that we all read every week and I 
thank you Dr. Harris. I read it carefully. It started out in 
1924, showed up in its basic form now in the early 1960s.
    Quite bluntly this is the moral equivalent of an antique 
bought on Ebay. We need something more similar to the FERC 
Electric Quarterly Report so we can actually address the 
questions Senator Domenici raised. At the moment I don't know 
the answers.
    We lost 2 percent of the world oil production 3 days ago. 
The price of oil has gone down 10 percent or more over the last 
3 days. This is the wrong answer. We need to get to the facts.
    Now the first chart I put up there was the price chart. We 
all know that by heart. In fact because it was built on Friday, 
it's now out of date.
    The point of the matter is all that supply and demand study 
from the EIA is that red line at the bottom. The smartest 
people we know, who are working their tails off, were dead 
wrong all summer. Good news is the prices have almost caught up 
with their forecast. They look a lot smarter today than they 
did last week.
    Let's turn to the next chart. This chart shows net 
withdrawals. Now this is actually the distillation of supply 
and demand. On July 3, on a daily settlement price we hit a 
peak. In July the EIA tells us that we were withdrawing more 
oil from our stockpiles than we were in the previous month.
    Supply and demand, which many of us have taught in college, 
there's something wrong with this chart. The fact of the matter 
is the prices should have gone up in July, not down. Now do we 
know all of the facts? No, we do not even accumulate a quarter 
of the facts we'd like to bring to this committee. But this is 
not a pleasing chart. This leads us to a concern with what's 
happening.
    Can we move to the next chart? Ok, now this is a pretty 
interesting one. As I said I go through Dr. Harris' work very 
carefully. The CFTC Commitment of Trader's report tells us 
whether non-commercial interests are increasing or decreasing. 
We can calculate their net long position. In other words, are 
they betting on the future price of oil?
    Interestingly enough they're net long position went 
effectively to zero before the peak. Now does this bother me? 
Yes, it does. I hate press ants. If a stockbroker tells me he 
can predict the future I fire him. There are a lot of people 
who did a pretty good job here. They were diminishing their 
position as the price increased. They were out when the price 
collapsed.
    Do I know whether that meant manipulation? I don't. But I 
do know that by coincidence in July, we identified one player, 
Vitol. We discovered that they 25 percent of the long 
positions, non-commercial, long positions.
    We also know that they say on their website they move 1.4 
billion barrels of oil. By the way, I believe someone made a 
comment of one million barrels a day. Vitol alone, dwarfs that. 
This is what we know as an all accomplished. This is someone 
who can execute market power.
    Do we have any evidence that they're bad guys? Absolutely 
not. Do we know that we have a market power position when one 
guy is that big? Yes.
    Let's turn to the last chart. Now just to raise the Enron 
issue, this is a chart you haven't seen. You would have had to 
lasted through the years of litigation to see it. This is 
Enron's net position on the West Coast. You'll notice that they 
drew their forward position to zero just before the prices 
returned to market prices.
    When we see something wrong going on, we would expect to 
see omniscience. But it's not really omniscience, it's because 
in oligopoly a player could execute enough to change the prices 
and take unfair profits. Bottom line, we need an oil quarterly 
report.
    Thank you very much.
    [The prepared statement of Mr. McCullough follows:]
  Prepared Statement of Robert F. McCullough, Jr., Managing Partner, 
                   McCullough Research, Portland, OR
    Thank you for the invitation to testify today.
    Six years ago, I appeared before this Committee to discuss market 
pricing anomalies and regulatory indifference. Some mistakes are so 
seductive that we feel impelled to make them again and again. Today, I 
am discussing the same topic as before, probably with many of the same 
actors and similar facts. At the heart of the matter is transparency--
markets that function in secrecy easily fall victim to manipulation. My 
testimony today is based on a report issued by my firm on August 5, 
which we have updated and reissued today.
    Energy price regulation in the United States is now divided 
haphazardly into three agencies: the Federal Energy Regulatory 
Commission (FERC), the Federal Trade Commission (FTC), and the 
Commodity Futures Trading Commission (CFTC). A fourth agency located in 
the Department of Energy, the Energy Information Administration (EIA), 
is in charge of collecting data and making forecasts.
    The events in the oil markets over the past nine months make it 
clear that none of these agencies or the nation's policy-makers 
currently have enough information to make informed decisions.
    On January 2, 2008 the price of West Texas Intermediate (WTI) crude 
was $99.64 a barrel. Both NYMEX forwards and the EIA's Short Term 
Energy Outlook predicted July prices in the range of $80 to $90 a 
barrel--a gradual decline for the immediate future. The predictions 
were off by 50%. This would be understandable if a major dislocation in 
supplies had occurred, but there was no such dislocation.
    Instead, by July 3, 2008, the price of WTI crude crested at 
$145.31. Facile explanations published in the media include surging 
demand for oil in China and India, faltering global sup-plies, and 
expectations of dramatic changes in the Middle East.
    The irony is that if any of these explanations were correct, the 
price of oil would have re-mained at high levels. Yet in the following 
four months, oil has gradually dropped close to and even below $100. 
The EIA's forecast, which explicitly considers Chinese and Indian 
consumption, global supplies, and a host of other factors, was 
hopelessly inaccurate by mid-summer. It is now looking fairly good.
    A careful review of the fundamentals does not explain why the price 
of oil increased by 50% in the first six months of this year and then 
fell by 50% in the next three months. Supply and demand stayed in rough 
balance over the first nine months of 2008.
    The obvious conclusion from the fundamentals is that prices should 
have continued upwards in July, not declined precipitously.
    When the standard explanations fail, this is a strong indication 
that we are driving ahead of our headlights. A scientist in this 
situation views this as a wonderful opportunity when theo-ries are 
disproved by the facts. This is the case in the July price spike.
    As Senator Cantwell said last week, eighty percent of Americans 
believe that speculators are manipulating the price of oil. Clearly, 
they are reacting to the same inconsistencies between prices and 
explanations that bring us here today.
    While the CFTC market surveillance efforts are both arcane and 
insufficient, it does publish an interesting document on a weekly basis 
called the Commitments of Traders Report (CoT). The first such reports 
date back to 1924 and the Grain Futures Administration. The CoT was 
introduced in 1962 and it has a vintage feel--using old-fashioned 
terminology and unique statistics to cover a large subset of U.S. 
forward markets. Among the markets is WTI Sweet Crude on the NYMEX.
    This is a surprising chart. It shows that speculators, or non-
commercial traders in CFTC terminology, reduced their net position to 
zero on the NYMEX as the price of oil soared. This traders' behavior 
illustrated is troubling. In July 2001, Hunter Shively, an Enron 
natural gas trader, showed similar prescience in a scheme to set prices 
on the NYMEX Henry Hub forward market. Eventually, the CFTC discovered 
his manipulation and prosecuted Shively.
    A similar, though less well-documented exploit was conducted by 
another Enron trader, Timothy Belden, in the electricity markets on the 
West Coast during the Western Market Crisis of 2000-2001. Indeed, the 
chart of Enron's forward positions and market prices during the 
infamous ``California crisis'' is almost identical to the chart above.
    The mechanics of such exploits, called Spot Forward Gambits, is to 
create a large enough change in spot prices so that the forward curve 
reacts to the new information. This effect is called a ``curve shift'' 
and is a common characteristic in many forward markets. Once the 
forward curve has shifted, traders can liquidate their position at 
favorable prices. Since the profits in the forward market can dwarf the 
losses in the spot market, the net effect can be quite favorable for 
the traders.
    Such exploits are only possible when market players hold market 
power--generally as a result of oligopoly or monopoly. In mid-July, a 
reclassification of the trader, Vitol, revealed that such oligopoly 
power is present in the NYMEX. Vitol held more than 25% of the for-ward 
positions in sweet crude on July 15, 2008.
    The resemblance of the July 3, 2008 oil price spike to earlier spot 
forward gambits is troub-ling. Even more troubling is that data on WTI 
Crude spot and forward prices gathered by FERC, the FTC, the CFTC, and 
at the EIA is too insufficient to determine whether the price of oil 
was manipulated. Even more disturbing, last week's CFTC report that 
minimized the effects of speculation on oil prices chose to stop its 
analysis in June, prior to the price spike.\1
\---------------------------------------------------------------------------
    \1\ See, for example, the discussion of crude trading on page 4 of 
the September 11, 2008 Staff Report on Commodity Swap Dealers & Index 
Traders with Commission Recommendations.
---------------------------------------------------------------------------
    Today, a double standard exists for data reporting and publishing. 
For example, electricity market data is published in FERC's Electric 
Quarterly Reports (EQR). Unlike the CFTC's weekly CoT, the EQR contains 
all transactions by market participants, right down to locations, 
quantities, and prices.
    When market results look anomalous, the correct response is to 
assemble and publish data so questions of market power and market 
manipulation can be directly addressed. A good first step would be to 
create an Oil Quarterly Report with the same level of detail as EQR. An 
Oil Quarterly Report should include spot and forward trades for 
bilateral transactions, and at both NYMEX and ICE. This data would 
allow policy-makers to proceed on the basis of facts.
    Thank you. This completes my comments.

    [Charts have been retained in subcommittee files.]
                               Attachment
Date: September 16, 2008

To: McCullough Research Clients

From: Robert McCullough

Subject: Seeking the Causes of the July 3, 2008 Spike in World Oil 
Prices (Updated)

    Over the past two years the price of oil has roughly doubled. The 
increase has surprised both the markets and official forecasters such 
as the Energy Information Administration. This is a situation where the 
savviest traders and the most sophisticated modelers have equally 
failed to predict the rapid increase.\1\*
---------------------------------------------------------------------------
    \1\* July 2008 NYMEX oil futures settled on June 1, 2006 traded for 
$70.95 a barrel. The contemporaneous EIA forecast predicted a lower 
price $67.00 per barrel at the end of their forecast period.
---------------------------------------------------------------------------
    Although an intense public debate has emerged concerning the causes 
of the price increase, to date little substantive work has been 
undertaken. There are three reasons: first, a steady climb in oil 
prices does not provide a good basis for most econometric modeling; 
second, data is scarce and difficult to interpret; and third, three 
different federal agencies share inconsistent mandates concerning oil 
prices. More bluntly, we have the wrong tools; we lack even the most 
elementary data; and no one agency is clearly in charge.
    While medical symptoms may be uncomfortable to the patient, they 
are useful tools for the internist. The price spike of July 3, 2008 was 
so sharp that it provides an opportunity to seek causes. A central 
advantage in reviewing June and July of this year is that the 
traditional explanations for oil price increases, such as exchange 
rates, storms, or major geopolitical events, were absent. Relatively 
little happened in June and July of 2008 in any of these areas. Even 
more significantly, the forward price curves followed the spike in spot 
prices in lockstep. On June 2, 2008 the price of oil on the NYMEX was 
$128.43 a barrel for December 2016. By July 3, the price for December 
2016 had increased to $142.18 a barrel. By the end of July it had 
fallen to $117.67 a barrel. By September 14, the price had slipped just 
below $100 a barrel.
    What happened in June 2008 that raised the forward prices of oil so 
significantly? What happened later in July that caused the forward 
price of oil for deliveries years in the future to fall even more 
precipitously?
    Pundits are quick to point to increases in demand in India and 
China or blame price increases on the arrival of ``peak oil.'' While 
they have the ability to extrapolate from minimal data, economists tend 
to check the facts. Monthly data on national and in-ternational 
production and consumption is published by the Energy Information 
Administration as part of its short term forecast.\2\ Despite the 
pundits' opinions, the supply demand balance in the U.S. appears to 
have had little relationship to the price of oil this summer.
---------------------------------------------------------------------------
    \2\ See http://www.eia.doe.gov/emeu/steo/pub/contents.html for 
detailed monthly data on oil and other energy sources.
---------------------------------------------------------------------------
    The following chart shows the relationship--or rather, absence of 
relationship--between the reduction in U.S. crude inventory and spot 
prices.
    The U.S. continued to draw down its inventory of oil to meet 
current needs until the end of August, even though prices began to drop 
in early July. More puzzling, prices dropped throughout July even 
though the drawdown of inventories in the U.S. was at the greatest 
level in July--the exact opposite of what economic theory would lead us 
to predict.
    All available evidence indicates that the price spike of July 3 was 
a form of market failure most likely due to the significant 
concentration in the energy sector in recent years. There is no 
evidence that a significant long term change in oil consumption or 
production took place in June and then faded away in July. The events 
this summer are eerily similar to Enron spot forward gambits in natural 
gas and electricity, specifi-cally the timing of profit-taking which 
appears to show considerable prescience.
                                  oil
    The U.S. is both the single largest consumer and a major domestic 
and international producer. Traditionally, the ``seven sisters'' 
(Exxon, Mobile, Gulf, Socal, Texaco, Shell, and BP) long dominated the 
industry. Five of the seven were U.S. companies. Industry consolidation 
has reduced the number of sisters to five. Exxon, Mobile, Gulf, Socal, 
and Texaco have all merged or been acquired over the past decade. 
Today, we are down to five sisters, three of them U.S. based.\3
\---------------------------------------------------------------------------
    \3\ The Energy Information Administration has produced an excellent 
history of industry consolidation in the oil business. This has been 
reproduced as Appendix A to this report.
---------------------------------------------------------------------------
    Oil is a storable commodity. In economic theory this means that 
market participants can choose to sell oil today or wait for a better 
market tomorrow. The Organization of Petroleum Exporting Countries 
(OPEC) exploits this facet of the oil market by setting production 
targets, spacing out the production of oil over time.
    A purely theoretical analysis of oil can be likened to the 
consumption of a prime, irreplaceable vintage of wine. The consumer 
calculates the benefit of opening the bottle after considering a desire 
to hold a reserve against a future need. In a perfect world, forward 
prices would reflect long term expectations of supply, technology, and 
demand. The relationship between spot and forward prices would reflect 
the time value of money.
    In practice, the theoretical model asks too much of real consumers, 
producers, and traders. Technology changes the rules frequently. 
Reserves are difficult to evaluate and consumers change their 
preferences continuously. Substitutes for oil were not even considered 
possible until the past few years. Today, ethanol comprises an 
increasingly large proportion of retail gasoline for most drivers in 
the U.S.
    In practice, oil's fundamentals are well known. New markets for 
gasoline like those in the Far East have appeared. The emergence of 
China and India as major consumers is no longer news. While price 
shocks such as changes in OPEC policy, civil unrest in Nigeria, or 
major storms that disrupt production in the Gulf of Mexico cannot be 
easily predicted, longer term impact are well understood. Thus, we are 
unsurprised to find that spot prices are more volatile than prices in 
longer term markets.
    Because oil is so important, forward markets for oil are critical 
to the operation of the economy. The two most significant forward 
markets are the New York Mercantile Exchange (NYMEX) and the 
Intercontinental Exchange (ICE). Due to the two so-called ``Enron 
loopholes'', only NYMEX is fully regulated by the Commodity Futures 
Trading Commission (CFTC). Forward trades also take place in the over 
the counter markets that are also unregulated by the CFTC.\4
\---------------------------------------------------------------------------
    \4\ For a detailed discussion of the Enron loopholes see my 
testimony entitled ``Regulation and Forward Markets Lessons from Enron 
and the Western Market Crisis of 2000-2001'', May 8, 2006, http://
www.mresearch.com/pdfs/191.pdf
---------------------------------------------------------------------------
    Concerns about the efficiency of the market include the 
increasingly important role of speculators. In theory, speculators add 
liquidity to forward markets by taking risks that producers and 
consumers may not wish to accept. In practice, it is possible that a 
sufficiently large speculative position will change forward prices and 
even affect spot prices. In 2006, the hedge fund, Amaranth, had 
accumulated a massive position in March and April natural gas futures. 
From evidence collected by later investigations, Amaranth was 
attempting to support a significant differential in forward prices by 
repeated intervention in the market. Amaranth failed, but its impact on 
the relatively large North American natural gas markets has created 
fears that larger and better-funded entities could effectively set 
forward prices.
    The U.S. government has regulated commodity trading since the 
1930s. Responsibility for oil is split haphazardly among the Federal 
Energy Regulatory Commission (FERC), which has authority over 
pipelines, the Federal Trade Commission (FTC) which operates the Oil 
and Gas Industry Initiatives, and the CFTC which views oil as one small 
part of a large portfolio of commodities. The responsibility for 
forecasting and understanding the oil markets lies with the Energy 
Information Administration. As noted above, no one agency has a clear 
mandate to accumulate data, oversee mar-kets, and evaluate factors that 
affect consumers.
    The CFTC regulates part of the forward market in oil. FERC has 
traditionally fo-cused on electricity and natural gas. The FTC's Oil 
and Gas Industry Initiatives fo-cuses more on mergers and relies upon 
OPIS, a market data firm, and the EIA for data.\5\ The EIA accumulates 
some data and issues periodic forecasts. This disorga-nized approach 
makes it difficult to obtain consistent data and even harder to deter-
mine the cause of price increases.
---------------------------------------------------------------------------
    \5\ See http://www.ftc.gov/ftc/oilgas/gas--price.htm for a 
description of collection efforts.
---------------------------------------------------------------------------
                           the current debate
    An intense debate currently rages over the causes of recent price 
increases. An amaz-ing degree of misinformation fuels the debate. For 
example, one often reads that the increase in the price of oil is due 
to the decline of the dollar relative to the euro. While exchange rates 
are a small factor, the U.S. does not buy oil from the European Union, 
so the exchange rates relative to Europe are not a significant factor. 
The market basket of currencies used by the ten major nations that 
provide oil to the U.S. has not changed markedly over time.
    Overall, the U.S. dollar has only declined 10% relative to the 
currencies of its primary oil suppliers.
    However, shifts in world consumption are a significant factor. A 
wealthier world consumes more oil. An analysis of the impacts of 
international demand is a central part of every recent EIA forecast, 
but regardless of the attention paid to China and other growing markets 
for oil each EIA forecast has significantly under-run actual oil 
prices.
    The January 2008 EIA forecast, for example, predicted a steady fall 
in oil prices in 2008, even after a detailed consideration of 
international demand.\6
\---------------------------------------------------------------------------
    \6\ Short Term Energy Outlook, January 8, 2008, page 9.
---------------------------------------------------------------------------
    As noted above, the forward markets have done little better. The 
NYMEX prices for January 8, 2008 also did not predict a sharp increase 
in the price of oil.
    While the EIA's forecast looked extremely poor by July, in 
September it began to look quite a bit better. Of course, the 
difference was the gradual reduction in the July 3, 2008 price spike.
    The detailed components of the EIA's forecast including oil 
production and con-sumption have been relatively accurate. The EIA 
overestimated consumption, relative to actual August data, by 1.6%. An 
offsetting forecast error underestimated production in August by .8%. 
While these are relatively good forecasts of the world oil market, they 
would not normally appear to explain a forecasting error of 26.72% in 
crude oil prices.
    Another side of the debate blames the price increases on excess 
speculation. As yet, there is relatively little data accumulated on the 
significance of excess speculation in the market for petroleum. As 
noted above, forward oil markets are subject to partial market 
surveillance. The one document that offers some insight into the 
forward market for oil at the NYMEX is an outdated and not easily 
interpreted report known as the ``Commitments of Traders Report.''\7\ 
If speculators have taken a commanding position by purchasing large 
forward positions in oil, it is virtually impossible to detect given 
the CFTC's current powers and procedures.
---------------------------------------------------------------------------
    \7\ http://www.cftc.gov/marketreports/commitmentsoftraders/
index.htm
---------------------------------------------------------------------------
    Still others debate that banks and hedge funds have gambled on the 
forward oil market, bidding up the price of forward contracts. Their 
impact on spot prices is not easy to understand unless speculators have 
either colluded with producers or their activities are obvious enough 
that the producers are restricting spot sales in order to sell the oil 
later at higher prices. This argument does not fit with the facts of 
the July 3 price spike which took place soon after Saudi Arabia 
announced a significant increase in oil production.\8\ (The logical 
impact of the production increase would have been a reduction in the 
forward curve for oil.)
---------------------------------------------------------------------------
    \8\ Saudis offer to boost oil production, USA Today, June 23, 2008.
---------------------------------------------------------------------------
    A better model for the July 3 price spike would appear to be the 
Enron market manipulation of the Henry Hub forward market on July 19, 
2001.\9\ In this case Enron purchased a large quantity of spot gas and 
took advantage of the price increase to sell at an artificial price in 
the forward markets. Enron's positions dramatically exceeded the levels 
that would provide legitimate economic hedges.
---------------------------------------------------------------------------
    \9\ U.S. CFTC v. Enron Corporation and Hunter Shively, Complaint 
for Injunctive and Other Equitable Relief and Civil Monetary Penalties 
Under the Commodity Exchange Act, March 11, 2003.
---------------------------------------------------------------------------
    There is a strong possibility that the high level of concentration 
in the spot and forward oil markets have made the market strategies of 
the principal market participants more significant than fundamentals at 
least in the short term. This is consistent both with the inability of 
forecasters and traders to foresee major market movements and also 
explains the very tight correlation between spot and forward prices.
                 what did happen in june and july 2008?
    As noted above, the most significant change in fundamentals, the 
decision by Saudi Arabia to increase oil production in July, took place 
immediately before the price spike. The most important events over this 
two-month period were:

 
 
 
 
3-Jun                                       Senator Cantwell chairs a
                                             Senate Commerce Committee
                                             hearing on oil market
                                             manipulation and federal
                                             authorities. Experts,
                                             including George Soros,
                                             testify that the CFTC has
                                             been slow to react to the
                                             energy crisis and that
                                             speculation could be adding
                                             as much as 20%-50% to the
                                             price of oil per barrel.
13-Jun                                      Fourth fall in US reserves
                                             pushes up oil prices
17-Jun                                      US Air Transport Association
                                             asks Congress to impose new
                                             restrictions on ``rampant
                                             oil speculation''
17-Jun                                      Iranian President Mahmoud
                                             Ahmadinejad tells OPEC
                                             meeting in Isfahan the rise
                                             in oil consumption is lower
                                             than the growth in
                                             production; certain powers
                                             are controlling the prices
                                             in a fake way for political
                                             and economic gains; blames
                                             weakening of the US dollar
18-Jun                                      Bush calls for end to US
                                             offshore drilling ban
19-Jun                                      Movement for the
                                             Emancipation of the Niger
                                             Delta blows up Chevron
                                             pipeline; Chevron declares
                                             force majeure, halts output
                                             by 120,000 bpd; attacks
                                             Shell's offshore Bonga
                                             oilfield
20-Jun                                      China raises raise petrol
                                             and diesel prices by more
                                             than 16% to reduce the gap
                                             with soaring international
                                             oil prices; Organization of
                                             Islamic Conference meeting
                                             in Kampala says, ``If we
                                             (the Islamic world) produce
                                             the bulk of the oil, why
                                             can't we be party to
                                             deciding what is a fair and
                                             equitable price? Unless
                                             OPEC returns to arrest the
                                             situation, mankind will
                                             cross the border of self
                                             destruction.''
23-Jun                                      Saudi Arabia hosts summit
                                             attended by 36 nations in
                                             Jeddah; announces plans to
                                             increase output by more
                                             than 200,000 bpd to 9.7
                                             million starting in July
23-Jun                                      Movement for the
                                             Emancipation of the Niger
                                             Delta announces ceasefire
23-Jun                                      Congressman Stupak holds
                                             eight-hour hearing on
                                             energy market speculation;
                                             experts testify that the
                                             explosion of speculation in
                                             the oil futures market
                                             could be driving up prices
                                             from $20 to $60 per barrel
26-Jun                                      EIA sees $70/b average crude
                                             price by 2015
26-Jun                                      By 402 to 19, the House by-
                                             passes legislation to
                                             direct the CFTC to use its
                                             emergency powers to take
                                             immediate action to curb
                                             speculation in energy
                                             market
27-Jun                                      Senate Republicans object to
                                             Unanimous Consent to pass
                                             the House-passed emergency
                                             powers legislation
30-Jun                                      Russian oil exports fell
                                             5.3% to 757mln bbl in Jan.-
                                             May; world oil prices drop
                                             on unex-pected US stockpile
                                             rise
9-Jul                                       House Agriculture Committee
                                             holds three hearings on
                                             increasing CFTC authority
9-Jul                                       Iran test-fires nine
                                             missiles, including ones
                                             capable of hitting Israel
15-Jul                                      OPEC revises 2008 world oil
                                             demand forecast to 1.20
                                             percent from 1.28 percent,
                                             citing an economic slowdown
                                             and high fuel prices
15-Jul                                      Majority Leader Reid
                                             introduces the Stop
                                             Excessive Energy
                                             Speculation Act of 2008
15-Jul                                      Federal Reserve Chairman Ben
                                             Bernanke tells Senate
                                             Banking Committee that the
                                             US economic downturn would
                                             prove more persistent, and
                                             potentially more severe,
                                             than initially thought
22-Jul                                      Iran's Oil Minister Gholam
                                             Hossein Nozari says that it
                                             is unnecessary for OPEC to
                                             change the current output
22-Jul                                      US Senate invokes cloture on
                                             the motion to proceed to
                                             debate on Reid's Stop
                                             Excessive Energy
                                             Speculation Act of 2008
24-Jul                                      CFTC Charges Optiver Holding
                                             BV, Two Subsidiaries, and
                                             High-Ranking Employees with
                                             Manipulation of NYMEX Crude
                                             Oil, Heating Oil, and
                                             Gasoline Futures Contracts
24-Jul                                      House Agriculture Committee
                                             reports the Commodity
                                             Markets Transparency and
                                             Accountability Act of 2008
25-Jul                                      US Senate fails to invoke
                                             cloture on the Commodity
                                             Markets Transparency and
                                             Accountability Act of 2008
30-Jul                                      House fails to pass the
                                             Commodity Markets
                                             Transparency and
                                             Accountability Act of 2008
                                             on a required 2/3 vote on
                                             suspension of the rules
30-Jul                                      White House announces its
                                             opposition to legislating
                                             new position limits to be
                                             devel-oped by the CFTC
 


    While many of these events might affect the price of oil, some of 
them are more likely to affect long term markets rather than spot 
transactions. Congressional hearings, for example, presage changes in 
national policy that will most likely take place at a later date. Civil 
unrest in Nigeria and production decisions by Saudi Arabia are more 
likely to have short term impacts. Arguably, the most significant event 
during this period was the Saudis' June decision to unilaterally 
increase production in July. However, immediately following this 
announcement, prices increased. As one trader remarked when the price 
fell sharply after July 3, ``No news is good news, or in this case, no 
news is bearish news.''\10
\---------------------------------------------------------------------------
    \10\ Oil Drops Sharply, Associated Press, July 8, 2008.
---------------------------------------------------------------------------
    To test the statistical significance of these events on the price 
of oil, we have developed two different models:

 
 
 
 
Spot:                                       A regression using EIA
                                             weekly data and events with
                                             short term impacts to
                                             explain spot prices
Forward:                                    A regression using spot
                                             prices and longer term
                                             events to explain forward
                                             prices.
 


    Time series data, especially from complex markets with unobserved 
variables, can be difficult to interpret and analyze. A central 
assumption of classical linear regression is that the error terms are 
independent and identically distributed. This is seldom the case in 
economic time series.
    Fortunately, time series analytical methods provide reasonable 
tools that can show useful results for a variety of economic time 
series that possess a particular kind of non-standard error 
distribution. Among the most useful of these methods employs the 
Generalized Autoregressive Conditional Heteroskedastic time series 
model (GARCH).
    We considered a model for spot oil prices that used refinery 
utilization and U.S. petroleum stockpiles as fundamentals. It also 
included proxy variables for three short term events: the unrest in 
Nigeria until the ceasefire announcement, the Saudi pro-duction 
increase announcement, and the change in Chinese retail petroleum 
pricing.
    The statistical results for the model are excellent overall with 
significance far better than the .01 level. Unfortunately, the proxy 
variables for the three short term events are not significant at any 
acceptable level. In the careful language of the statistician, we 
cannot reject the hypothesis that these announcements had no impact on 
spot oil prices. The results are reproduced in Appendix B.
    The forward model used spot prices as a fundamental and the Saudi 
announcement, the Russian production report, and the period between 
introduction and the failure to pass the Commodity Markets Transparency 
and Accountability Act of 2008. The high degree of correlation between 
NYMEX forward contracts makes results for dif-ferent delivery periods 
largely unnecessary. In this study we used forward contracts for 
delivery in December 2016.
    The results for the second regression were also highly significant. 
As before, the proxy variables for the Saudi production increase and 
Russian production news were insignificant. The proxy for the short-
lived Commodity Markets Transparency and Accountability Act of 2008 was 
highly significant. Interestingly, this was the only va-riable that 
would have affected excess speculation as opposed to supply and demand 
fundamentals.\11
\---------------------------------------------------------------------------
    \11\ No alternative specifications of these models were analyzed. 
This decision was not made lightly. Statistical tests are based on the 
submission of a specific hypothesis for testing. Repeated testing of 
alternative hypothes-es is a practice almost certain to eventually 
stumble on an apparently significant result.
---------------------------------------------------------------------------
    One conclusion to be drawn from these statistics is that the news 
stories cited by pundits to explain the dramatic spike in oil prices 
have little or no explanatory power. While we can construct a 
sufficiently complex explanation to explain any result, we have very 
little evidence that explains the massive spike that occurred on July 
3. A second conclusion is that the best forecast for future prices in 
2016 is the daily spot price today. This is likely to occur only if the 
daily spot price has more information than any set of fundamentals.
                           pivotal suppliers
    Paul Samuelson taught generations of undergraduates, ``It takes 
more than the existence of a competitor to create perfect 
competition.'' As a general rule, a competitive market will require 
more excess capacity than the market share of the largest market 
participant. Stated more directly, a market where supply and demand are 
in close balance, with no quickly available substitutes, is in danger 
of seeing non-economic pricing if one supplier can withhold enough to 
create a temporary shortage. As we also learned in college, the student 
with the car gets to choose the movie.
    The economic term for markets where the decisions of one supplier 
can set prices is called monopoly or oligopoly. The supplier with the 
ability to set prices is called the pivotal supplier.
    We should, but we do not, have data to help determine whether we 
currently have one or more pivotal suppliers in the oil markets. We do 
know that if pivotal suppliers exist, the market decisions of the 
pivotal supplier will be more important than changes in fundamentals. 
Like the grocery consumer in a small town with few choices, the best 
forecast of the pivotal suppliers' strategy is the current price. If 
the pivotal suppliers are aggressively setting high prices, a wise 
trader would forecast this state of affairs to continue to dominate the 
market for the immediate future.
    A trader who based its forward price quotes on fundamentals would 
quickly go bankrupt in the face of a pivotal supplier. A sudden 14% 
price increase unmatched by market fundamentals means that the market 
strategy has changed. An intelligent trader would factor the market 
strategy into long term prices. This is exactly the behavior that 
occurred during the July 3 price spike.
    If data on spot market transactions was routinely collected and 
reported, as it is in other energy markets, we would be able to check 
whether there is evidence of increasing market concentration. If well 
head price data was routinely collected and reported, we could check 
whether the increased prices were being paid directly to oil producers 
or to pivotal suppliers in the U.S. market.
    We can glean some information about market concentration and 
markups relative to well head prices from CFTC and industry sources. 
The information is not sufficient to conclusively answer the question, 
but it is interesting enough to propose the need for additional 
investigation by the FTC, the CFTC, or the EIA.
    As mentioned above, the CFTC provides a weekly Commitments of 
Traders Report CoT). A recent report (July 29, 2008) is reproduced 
below.


    The report is neither user-friendly nor substantially detailed. The 
last block of data in the report shows the degree to which the four 
largest traders dominate the ``long'' or supply positions. In the July 
29, 2008 report the top four traders held 32.8% of the long positions.
    One of the problems with this report is that the measure of 
concentration used by the CFTC differs from the standard measure in use 
by the FTC, the U.S. Department of Justice and the FERC. While one is 
not necessarily superior, the more widely used Herfindahl-Hirschman 
Index (HHI) has the virtue of being more readily compre-hended.\12
\---------------------------------------------------------------------------
    \12\ A simple explanation of the HHI can be found at http://
www.usdoj.gov/atr/public/testimony/hhi.htm
---------------------------------------------------------------------------
    While it is possible to translate the Commitments of Traders data 
into the HHI, it is not possible to get a specific value. The best that 
can be accomplished from the CFTC data is a range where, 
mathematically, the actual HHI will be found. The fol-lowing chart 
shows the HHI range for NYMEX crude since 2005.
    Neither the low nor the high HHI bounds are close to the U.S. 
Department of Justice guidelines for a concentrated industry. In fact, 
given the lack of reporting outside of the NYMEX, a substantial degree 
of market concentration could occur that would never show up in the 
Commitment of Traders Report. It is significant, however, that the HHI 
appears to be increasing over time, with a significant increase in July 
2008. In the worst case, it is mathematically possible that one trader 
could hold as much as one quarter of the open long positions on the 
NYMEX from the data reported at the CFTC. If so, this trader would have 
a commanding position and could well be a pivotal supplier.
    A pivotal supplier would also have the ability to increase oil 
prices above the well head prices paid to suppliers. Recent statements 
by OPEC representatives clearly appear to indicate that they have some 
concerns in this direction.\13\ Supplier production and pricing is not 
transparent. Saudi Arabia, the world's largest producer, provides 
relatively little data and the Venezuelan government's estimates of 
crude oil well head receipts differ markedly from the EIA's estimates 
for Venezuela.
---------------------------------------------------------------------------
    \13\ See for example the comments of OPEC Secretary General 
Abdullah al-Badri on June 24, 2008 reported in OPEC president sees no 
easing of oil prices, Xinhua News Agency, June 28, 2008.
---------------------------------------------------------------------------
    Though the data indicates an increasing differential, Venezuelan 
crude is a very dif-ferent product from U.S. crude, so a number of 
alternative explanations could be made for the differential.
                                 vitol
    On July 18, 2008, the CFTC reassigned Vitol from commercial to non-
commercial status. An unusual opportunity to analyze the impact of a 
single trader on the CoT Report took place recently when the CFTC 
reclassified a single firm from Commercial to Non-Commercial. The 
reclassified report indicates that the trader held 144,856 open 
interests. These positions are classified as ``spread positions'' since 
they represent long positions in one contract and corresponding short 
positions in another contract. Since the total open positions in the 
NYMEX crude market is only 1,249,914, it indicates that this trader has 
more than 10% of the NYMEX market. More significantly, Vitol had 25% of 
the long positions owned by non-commercial interests (the CFTC's term 
for speculators).
    There is no evidence that Vitol was involved in any suspicious 
activities. The evidence only shows that the levels of concentration 
are significantly higher than those suggested by the CoT report. It is 
also worth noting that Vitol's physical deliveries of oil are 1.4 
billion barrels of oil, a vast amount, considering that U.S. oil 
imports in 2007 were 4.9 billion barrels. Although CFTC reports do not 
indicate which contracts were held by Vitol, the scale of its positions 
was larger than all but two of the NYMEX contracts in sweet crude:
    This corroborates the HHI calculations above that a substantial 
degree of concentration may be present in the NYMEX forward markets.
                        the market risk premium
    The enormous increase of speculation over the last few years has 
coincided with an increase in the price of commodities. A metaphor 
might be real estate: if speculators buy up attractive shorefront 
property in order to profit from a projected price increase, they will 
hoard a scarce commodity and increase the price of the property. This 
is not a bad metaphor, but it is not entirely correct. The key 
difference is that a forward contract for oil does not actually tie up 
physical oil before delivery. A contract for future supply is simply a 
promise to provide 1,000 barrels at a set price on a given date. Most 
market participants plan to sell or ``offset'' the contract before 
delivery. In theory, a perfectly workable forward market might be very 
large compared to the spot market and still not raise prices, as long 
as the market is characterized by the rules of perfect competition 
(many suppliers, many consumers, transparency, and freedom of entry and 
exit). To make the real estate metaphor more precise, imagine that the 
speculator proposes selling a promise to supply beach property at a 
given price at a future date. This promise would not tie up beach 
property or cause a shortage in the short run.
    Of course, the central question is ``what price?'' When you buy 
insurance, the insurance company figures the risk it is insuring 
against and then adds a profit to cover its risks. This is the risk 
premium. The offering price for a forward contract is equal to the 
forecasted price plus a risk premium.
    Many students (and some traders, in my experience) are surprised to 
learn that risk premiums can be positive or negative. This appears 
counterintuitive until they realize that since they view themselves as 
customers of the insurance company, they almost always see a positive 
risk premium.
    An example of how such premiums can vary involves a farm and a 
bakery. The farmer is always ``long'' on wheat. While the farmer is 
unlikely to run out of wheat, he faces an uncertain future in terms of 
price. He would be happy to offer to exchange his wheat for a fixed 
price even if he has to take a small loss against his best guess of 
future prices. In selling his forward contract, he is willing to accept 
a negative risk premium. The bakery has the opposite problem since it 
must know the cost of the bread it plans to bake. The baker is happy to 
pay a positive premium over the expected price to be able to plan 
ahead. When the farmer and the baker meet to set the price of their 
forward contract, the final risk premium will be set by haggling. A 
savvy farmer might well receive a positive risk premium simply because 
he is a better negotiator or, vice versa, the baker might enjoy the 
upper hand.
    What happens if the two cannot agree? They can call their brokers 
at the Chicago Board of Trade and place orders for their forward 
contracts in the wheat market. Their orders, and thousands of others, 
will show up in the trading pit where a price will be hammered out by 
the willingness of speculators--non-commercial traders in the parlance 
of the CFTC--to take risks in the future price of wheat.
    Speculators carry a portfolio of risks. When possible, they will be 
hedged against a similar commodity. Since not all risks can be hedged, 
the speculator will end up with a Value At Risk (VAR) that it must be 
willing to accept in exchange for a profit. If the VAR is large, the 
speculator will require a larger profit. If demand for a specific 
contract is high, the speculator will end up with a large unhedged 
position, its VAR will expand enormously, and it will either demand a 
much larger risk premium or withdraw from further trading in that 
commodity.
    In the Western Market Crisis of 2000-2001 the VAR became so large 
that all of the speculators abandoned the NYMEX forward markets on the 
West Coast. Halfway through the crisis, open interests on both NYMEX 
exchanges went to zero. Interestingly, Enron and others offered a 
negative risk premium at the height of the crisis--they sold forward 
contracts at less than the expected price. We now know that this was 
because their own forecasts recognized that the crisis would not last 
long and they needed to sell their forward contracts before the rest of 
the market discovered that prices had been manipulated.
    A simple rule of thumb for estimating risk premiums is to compare 
the forward contract prices with the actual spot prices in the month of 
delivery. Since forecast errors tend to cancel out over time, the 
residual, positive or negative, is the risk premium. Unfortunately, 
this simple technique works poorly where spot and forward prices are 
increasing over a long period. Given the past two years in the WTI 
crude market, this rule of thumb estimate is unworkable.
    In a perfect world, we could view the difference in prices from the 
EIA Short Term Forecast and the NYMEX forward curve to estimate the 
risk premium. As mentioned above, the forward price is equal to the 
forecast plus the risk premium. Unfortunately, the EIA forecast lacks 
substantial credibility. Over the past seven months, the EIA has 
apparently calibrated its forecasts to spot. While this avoids 
recognition that EIA's analysis of fundamentals is not matching spot 
prices, it also reveals a lack of precision in the estimating process:
    While the EIA forecasts are not perfect, they do allow us to 
compare the forecasted prices with the NYMEX forward curve. According 
to economic theory, the forecast is the actual price expectation. The 
NYMEX forward curve is the price traders require to take a forward 
position. The difference between the two is an estimate of the risk 
premium. These risk premiums range from $11.00 to a negative $4.00. It 
is suggestive, although not definitive, that the risk premium 
calculated in this fashion has fallen during the same period in 2008 
where the substantial long positions were liquidated by the non-
commercial traders.\14
\---------------------------------------------------------------------------
    \14\ There are more sophisticated tools. One approach is to see if 
the variance of forward price estimates increases or decreases the 
forward curve. Statistically, the term for this is GARCH in Mean. While 
the mathematics can be complex, the explanation is simple. If the 
relationship between spot and forward prices becomes difficult to 
forecast, this will increase the VAR and require a larger risk premium.
      This approach does not allow numerical results for small 
datasets: significant amounts of data are required to perform the 
calculations. The results from the beginning of January 2008 to the end 
of July 2008 indicate that the risk premium has become negative over 
this period.
---------------------------------------------------------------------------
    Overall, non-commercial market participants liquidated their long 
positions in 2008. As they liquidated their positions, the risk premium 
fell approximately $30 per barrel.
                          spot forward gambits
    In July of 2001, Hunter Shively, a mid-level Enron gas trader, 
initiated an exploit to manipulate Henry Hub natural gas futures on the 
NYMEX. The CFTC complaint provides a blueprint on how to conduct a spot 
forward gambit:

          B. The Manipulative Scheme

                  23. On or about July 19, 2001, Shively, with the 
                assistance of at least one other Enron natural gas 
                trader, engaged in a scheme which manipulated prices in 
                the HH Spot Market, and had a direct and adverse affect 
                on NYMEX Henry Hub August 2001 Futures, including 
                causing prices in NYMEX Henry Hub Futures to become 
                artificial.
                  24. Defendants' manipulative scheme involved a plan 
                among Enron traders to purchase an extraordinarily 
                large amount of HM Spot Market natural gas within a 
                short period of time (the ``Manipulative Scheme'').
                  25. Defendants effectuated their Manipulative Scheme 
                through a variety of acts and practices that were 
                intended to, and did, manipulate prices in the HH Spot 
                Market. NYMEX August 2001 Henry Hub Futures were 
                affected by Defendants' Manipulative Scheme as well, 
                including causing NYMEX Henry Hub Futures prices to 
                become artificial.
                  26. Enlisting the assistance of the East Desk Enron 
                trader who managed the HH Spot Markel on EOL, 
                Defendants bought a very large amount of natural gas in 
                the HH Spot Market in a very short period of time, 
                approximately fifteen minutes, in the morning of July 
                19, 2001, causing prices to rise artificially.
                  27. Immediately following the prearranged buying 
                spree, Enron began unwinding its HH Spot Market 
                position and prices declined in that market. Prices in 
                the HH Spot Market declined in the first ten minutes 
                while Enron unwound its position.
                  28. Before Shively implemented the scheme, other 
                Central Desk traders learned that Shively was going 
                over to the East Desk to bid up the HH Spot Market. The 
                head of Enron's NYMEX desk was also informed of 
                Shively's plan. Later, at some point during Enron's HH 
                Spot Market trading, an Enron trader indicated to the 
                Central Desk that the East Desk was ``bidding up'' the 
                HH Spot Market. Shortly thereafter, a trader at the 
                Central Desk stated that the East Desk was going to 
                sell the HH Spot Market.
                  29. To ensure the participation of the Enron East 
                Desk trader who managed the HH Spot Market on EOL, 
                Shively agreed to cover any trading losses that trader 
                incurred by participating in the Manipulative Scheme.
                  30. On or about July 19, 2001, to cover the losses of 
                that East Desk trader, Shively directed that over 
                $80,000 be transferred from an administrative trading 
                account he controlled to the trading account of the 
                Enron East Desk trader who agreed to participate in the 
                Manipulative Scheme.
                  31. Shively acted in the scope of his employment in 
                carrying out and directing the conduct of other Enron 
                employees in furtherance of the Manipulative 
                Scheme.\15
\---------------------------------------------------------------------------
    \15\ Docket H-03-909 CFTC Complaint, March 12, 2003, pages 5-6.

    A similar, though less well-documented exploit was conducted by 
Timothy Belden in the winter of 1999. Enron's senior west coast trader 
gradually accumulated a portfolio for forward contracts. His position 
was so large that it became the dominant risk position for the entire 
corporation. While this speculative position would have appeared 
foolhardy based on the fundamentals (even Enron's own forecasts 
indicated that it was a foolish speculation), it was not nearly as 
speculative as it appeared. Belden's trading position showed 
prescience. His liquidation of his long position was even more 
prescient since he sold his inventory just before the California energy 
crisis ended in June 2001. We now know his prescience was no more or 
less than the product of his market manipulation efforts. If FERC's 
Electric Quarterly Report had been in existence in 1999, Belden's 
dramatic gamble would have been detected quite early and the Western 
Market Crisis might well have been averted.
    In summary, a powerful case can be made for market power, not 
fundamentals, as a contributing factor to the oil price spike on July 
3, 2008. The spike has the following characteristics that cast doubt on 
fundamentals and speculation as causes:

          1. Short duration, reflecting no specific supply disruption 
        or increase in demand.
          2. Events in June, to the degree they were present, should 
        have lowered the prices in July, not increased them.
          3. A large speculative position was liquidated just before 
        the spike.
          4. Long term prices followed the very brief spike in lockstep 
        fashion.
          5. Evidence exists, both anecdotally and statistically, for 
        increased concentration in the NYMEX long positions.
          6. Evidence exists that may indicate an increasing 
        differential between some well head receipts and market prices.

Five Recommendations
          1. The FTC and the CFTC should accumulate data on spot and 
        forward markets for oil that will allow the identification of 
        market shares. If supply and de-mand are tight, this is exactly 
        the situation where economic theory would pre-dict the 
        existence of pivotal suppliers. Given the probability that 
        market par-ticipants have a very good idea of the market shares 
        and pricing, there is no logical public policy reason why this 
        information should not be accumulated and provided to 
        regulators and decision-makers.
          2. The current chaotic state of CFTC market surveillance 
        should be corrected. At the moment, the department store 
        detective only watches one exit. This is worse than useless 
        because it provides the illusion of market surveillance while 
        allowing sufficient room for any offender to escape 
        observation.
          3. The Commitments of Traders reports should be expanded to 
        incorporate the same concepts and measures used elsewhere in 
        the industry. Specifically, the report should provide HHI for 
        both NYMEX and ICE. It is important to include data on forward 
        trades in the OTC transactions. In sum, we will only be able to 
        detect the influence of excess speculation if we have the 
        measure of the entire market, not just a portion.
          4. The CFTC should adapt FERC's detailed Electric Quarterly 
        Report to oil transactions. It is logical that reports for 
        electricity would be useful in evaluating the situation in oil.
          5. The EIA should develop a methodology for reporting well 
        head prices for the ten largest suppliers to the U.S. This 
        report should be issued on the same frequency as other EIA 
        reports so that regulators and decision-makers can make 
        contemporaneous judgments concerning price spikes.

    [Charts and appendixes A and B have been retained in subcommittee 
files.]

    Senator Dorgan. Mr. McCullough, can you do that chart one 
more time? I missed the front part of your explanation. I'm 
sorry.
    Mr. McCullough. May I stand?
    Senator Dorgan. Yes, please.
    Mr. McCullough. This chart took hundreds of hours of 
investigated research. We were able to reproduce Enron's net 
position through the crisis. In the course of the fall of 1999, 
long before anyone worried about electricity in the Northwest, 
Enron--advanced electric position. They bought so much forward 
from a single largest risk element--was West Coast Electricity.
    Over the course of the crisis when they said it would take 
two to 4 years to resolve. Instead they drew their position 
down by April. In fact they went negative on April 1, 2001, 
when the prices weren't deep. Soon afterwards the price 
collapsed.
    They were either omniscient or guilty. We now know after 6 
years of litigation and many convictions, they were guilty. 
This is a pattern that concerns me. We need to be able to 
determine whether we're seeing similar behavior in oil. Thank 
you.
    Senator Dorgan. Mr. McCullough, Vitol, as my understanding, 
is a foreign company. Where is it based?
    Mr. McCullough. Switzerland. It's privately held. So 
there's almost no data on Vitol publicly available. In fact the 
only way I knew it was Vitol is I read the Washington Post.
    Senator Dorgan. Alright. Thank you very much. Next we will 
hear from Jeff Harris, the Chief Economist from the Commodity 
Futures Trading Commission. My understanding is the Commodity 
Futures Trading Commission has sent a North Dakotan down to 
testify, is that correct?
    Mr. Harris. Yes, that's right.
    Senator Dorgan. That's rather underhanded.
    [Laughter.]
    Senator Dorgan. Mr. Harris is the Chief Economist and where 
are you from in North Dakota originally?
    Mr. Harris. In the heart of Walsh County, Park River.
    Senator Dorgan. Thank you very much, Dr. Harris for being 
with us. You may proceed.

STATEMENT OF JEFFREY HARRIS, CHIEF ECONOMIST, COMMODITY FUTURES 
                       TRADING COMMISSION

    Mr. Harris. Thank you. Good afternoon, Chairman Dorgan and 
Ranking Member Murkowski and other distinguished member. My 
name is Jeffrey Harris and I am testifying today as the Chief 
Economist of the CFTC and not on behalf of the Commission. But 
we actually do have hard data on these subjects.
    I appreciate the opportunity to testify in front of you 
about the CFTC's recently released staff report on commodity 
swap dealers and index traders. In response to questions about 
the role of index traders in our markets, the CFTC announced in 
May that it would be using its special call authority to gather 
new and detailed information from swap dealers on the amount of 
index trading occurring in our markets. Last week the CFTC 
released its staff report which compiled substantial 
information on index futures and other transactions that are 
being conducted through swap dealers.
    The special call was intended to capture all commodity 
index trading for activity for month end dates beginning 
December 31, 2007, through June 30, 2008, and continuing 
thereafter. Staff analyzed key commodities including crude oil, 
corn, wheat and cotton in this report. While the preliminary 
survey results represent the best data currently available 
about swap dealers and commodity index trading, there are 
limitations to this data due to the time and resource 
constraints and the complexity in the amount of data that we 
received.
    With that in mind, the CFTC staff report found that on June 
30, 2008, the total amount of commodity index trading, both 
over the counter and on exchange activity stood at $200 
billion. Of this amount $161 billion was tied to commodities 
traded on U.S. markets that are regulated by the CFTC. For 
NYMEX crude oil the net notional amount of commodity index 
investment rose from about $39 billion in December to about $51 
billion in June, an increase of more than 30 percent.
    However this rise appears to have resulted from the 
increase in the price of oil which rose from approximately $96 
to $140 per barrel over the same period. Measured in 
standardized futures contracts equivalent these figures 
amounted to an 11 percent decrease in the aggregate positions 
of commodity index traders during this 6-month period from 
approximately 408,000 contracts to 363,000 contracts. We're 
looking at the types of entities that are investing in 
commodity indexes.
    Not surprisingly, staff found a significant percentage of 
these index investments were held by pension funds, endowments 
and other large institutions. The CFTC staff survey also 
revealed that 9 percent of the commodity index trader's 
investments, excuse me, were held by several large sovereign 
wealth funds, primarily located in North America, Europe and 
Asia. Staff also looked to determine whether the clients of 
swap dealers were putting on over the counter and exchange 
positions that would have exceeded exchange position limits or 
accountability levels in crude oil. Looking at our most recent 
report of June 30, the survey data identified 35 of these 
instances in 13 markets, out of 550 different clients trading 
at more than 30 of the markets analyzed.
    In light of the preliminary data and the findings, the 
Commission made several recommendations that include enhanced 
transparency, increased reporting and information and improved 
controls and practices used to oversee the markets while 
keeping the futures markets competitive, open and on U.S. soil. 
In addition to the special call in analysis, the Office of the 
Chief Economist continues to examine and analyze trading in the 
regulated futures markets. My staff played a central role in 
producing the July 2008 interim report on crude oil, working 
with the inter agency task force on commodity markets which did 
not find evidence to support the view that non-commercial 
trading has been systematically driving price changes in the 
crude oil market.
    CFTC staff continues to analyze the markets utilizing 
detailed agency data that includes positions of various groups 
of traders that includes index traders, hedge funds and other 
non-commercial entities. In the market for crude oil we 
witnessed a significant run up in prices through mid July 2008, 
as we know, with prices falling substantially through the past 
2 months. The chart that I included in my testimony displays 
this price pattern along with net price positions or net 
positions, excuse me, of the commercial entities, swap dealers 
who bring index fund positions to these markets and speculators 
in the crude oil futures markets.
    As displayed in the chart while oil prices were rising 
dramatically during the first half of 2008. The net speculative 
positions were actually decreasing. This pattern mirrors the 
data that we've collected through our special call to swap 
dealers and commodity index traders, showing that commodity 
index net long positions in NYMEX crude oil contracts fell by 
11 percent during the same 6-month interval.
    My staff continues to analyze the markets to work with the 
interagency task force on commodity markets. I expect that we 
will update and supplement the analysis that we provided in the 
interim report on crude oil in the next few weeks. Thank you 
for the opportunity to appear before you today to discuss the 
CFTC's economic analysis and staff report on commodity swap 
dealers and index traders. I'd be happy to answer any questions 
you might have. Thanks.
    [The prepared statement of Mr. Harris follows:]
   Prepared Statement of Jeffrey Harris, Chief Economist, Commodity 
                       Futures Trading Commission
    Chairman Dorgan, Ranking Member Murkowski, and other Subcommittee 
Members, thank you for inviting me to testify before the Energy 
Subcommittee. My name is Jeffrey Harris and I am the Chief Economist at 
the Commodity Futures Trading Commission (CFTC or Commission). I am 
testifying today in my capacity as Chief Economist and not on behalf of 
the CFTC. My testimony today will focus on the CFTC's staff report on 
the commodity swap dealers and index traders issued Thursday September 
11, 2008.
    The CFTC recognizes that a secure, reliable, and sustainable energy 
future is of great importance to the American people. We are acutely 
aware that high commodity prices have been, and continue to be, painful 
for American consumers. We are also aware that speculative activity can 
affect the price discovery and risk management roles of the markets we 
regulate. With that context, let me summarize what the Commission is 
doing to insure that the markets that we regulate are serving the 
public interest.
    The CFTC continuously monitors and analyzes trading in the markets 
we regulate. We collect and analyze data on a daily basis, and monitor 
positions, price movements and activity in these markets. The CFTC data 
includes positions and trading of noncommercial traders like hedge 
funds and other managed money traders. As noted in the Interim Report 
on Crude Oil produced by the Interagency Task Force on Commodity 
Markets, staff did not find evidence from this data to support the view 
that noncommercial trading has been systematically driving price 
changes in the crude oil market.
    Despite these findings, the CFTC continues to analyze the data for 
evidence of such a connection. During the last year, the CFTC has been 
systematically reviewing satellite markets that complement and compete 
with the centralized and regulated futures markets in the United 
States, in order to determine whether satellite markets are having an 
impact on regulated futures markets. As you know, a combination of 
Congressional and Commission action has resulted in increased 
regulation of trading on exempt commercial markets and increased 
transparency and reporting of trading on foreign boards of trade that 
seek access to trade contracts linked to any U.S. regulated contract.
    More recently, the agency has been reviewing the role of swap 
dealers and index traders and whether their connection to the futures 
markets is having an impact on the price of commodities. In May, the 
CFTC announced that it would use its special call authority to gather 
new and detailed data from swap dealers on the amount of index trading 
occurring in the OTC markets. Last week, the CFTC released its staff 
report, which compiled substantial information on index funds and other 
transactions that are being conducted through swap dealers.
          cftc report on swap dealer and index trader activity
    The staff report represents a survey of swap dealers and commodity 
index funds to better characterize their activity and understand their 
potential to influence the futures markets. This type of a compelled 
survey relating to off-exchange activity is unprecedented, but the 
growth and evolution in futures market participation and growing public 
concern regarding off-exchange activity supported the need for this 
extraordinary regulatory inquiry.
    In June 2008, Commission staff initiated a special call to futures 
traders, which included 43 request letters issued to 32 entities and 
their sub-entities. These entities include swap dealers engaged in 
commodity index business, other large swap dealers, and commodity index 
funds. The special call required all entities to provide data relating 
to their total activity in the futures and OTC markets, and to 
categorize the activities of their customers for month-end dates 
beginning December 31, 2007 through June 30, 2008, and continuing 
thereafter. The scope of the survey attempts to answer the following 
questions:

   How much total commodity index trading is occurring in both 
        the OTC and on-exchange markets?
   How much commodity index trading is occurring by specific 
        commodity in both the OTC and on-exchange markets?
   What are the major types of index investors?
   What types of clients utilize swap dealers to trade OTC 
        commodity transactions?
   To what extent would the swap clients have exceeded position 
        limits or accountability levels had their OTC swap positions 
        been taken on exchange?

    The preliminary survey results represent the best data currently 
available to the staff and the results present the best available 
snapshot of swap dealers and commodity index traders for the relevant 
time period. However, as a result of the survey limitations, there may 
be a margin of error in the precision of the data, which will improve 
as the staff continues to work with the relevant firms and to further 
review and refine the data. As entities continue to provide monthly 
data to the Commission in response to their ongoing obligation to 
comply with the special call, Commission staff will continue to examine 
the data, refine the specific requests, and further develop the 
analysis.
                                findings
    In analyzing the total OTC and on-exchange positions for index 
trading, the report focuses on three quarterly snapshots--December 31, 
2007, March 31, 2008, and June 30, 2008--and has thus far revealed the 
following data:

   Total Net Commodity Index Investments: The estimated 
        aggregate net amount of all commodity index trading (combined 
        OTC and on-exchange activity) on June 30, 2008 was $200 
        billion, of which $161 billion was tied to commodities traded 
        on U.S. markets regulated by the CFTC. Of the $161 billion 
        combined total, a significant amount of the OTC portion of that 
        total likely is never brought to the U.S. futures markets.
   Net Notional Index Values vs. Total Notional Market Values: 
        For comparison purposes, the total notional value on June 30, 
        2008 of all futures and options open contracts for the 33 U.S. 
        exchange-traded markets that are included in major commodity 
        indexes was $945 billion--the $161 billion net notional index 
        value was approximately 17 percent of this total.

    --The total notional value of futures and options open contracts on 
            June 30, 2008 for NYMEX crude oil was $405 billion--the $51 
            billion net notional index value was approximately 13 
            percent of this total.
    --The total notional value of futures and options open contracts on 
            June 30, 2008 for CBOT wheat was $19 billion--the $9 
            billion net notional index value was approximately 47 
            percent of this total.
    --The total notional value of futures and options open contracts on 
            June 30, 2008 for CBOT corn was $74 billion--the $13 
            billion net notional index value was approximately 18 
            percent of this total.
    --The total notional value of futures and options open contracts on 
            June 30, 2008 for ICE-Futures US cotton was $13 billion--
            the $3 billion net notional index value was approximately 
            23 percent of this total.

   Crude Oil Index Activity: While oil prices rose during the 
        period December 31, 2007 to June 30, 2008, the activity of 
        commodity index traders during this period reflected a net 
        decline of swap contracts as measured in standardized futures 
        equivalents.

   During this period, the net notional amount of commodity 
        index investment related to NYMEX crude oil rose from about $39 
        billion to $51 billion--an increase of more than 30 percent. 
        This rise in notional value, however, appears to have resulted 
        entirely from the increase in the price of oil, which rose from 
        approximately $96 per barrel to $140 per barrel--an increase of 
        46 percent.
   Measured in standardized futures contract equivalents, the 
        aggregate long positions of commodity index participants in 
        NYMEX crude oil declined by approximately 45,000 contracts 
        during this 6 month period--from approximately 408,000 
        contracts on December 31, 2007 to approximately 363,000 
        contracts on June 30, 2008. This amounts to approximately an 11 
        percent decline.

   Types of Index Investors: Of the total net notional value of 
        funds invested in commodity indexes on June 30, 2008, 
        approximately 24 percent was held by ``Index Funds,'' 42 
        percent by ``Institutional Investors,'' 9 percent by 
        ``Sovereign Wealth Funds,'' and 25 percent by ``Other'' 
        traders.
   Clients Exceeding Position Limits or Accountability Levels: 
        On June 30, 2008, of the 550 clients identified in the more 
        than 30 markets analyzed, the survey data shows 18 
        noncommercial traders in 13 markets who appeared to have an 
        aggregate (all on-exchange futures positions plus all OTC 
        equivalent futures combined) position that would have been 
        above a speculative limit or an exchange accountability level 
        if all the positions were on-exchange. These 18 noncommercial 
        traders were responsible for 35 instances of either exceeding a 
        speculative limit or an exchange accountability level through 
        their aggregate on-exchange and OTC trading that day. Of these 
        instances:

   8 were above the NYMEX accountability levels in the natural 
        gas market;
   6 were above the NYMEX accountability levels in the crude 
        oil market;
   6 were above the speculative limit on the CBOT wheat market;
   3 were above the speculative limit on the CBOT soybean 
        market; and
   12 were in the remaining 9 markets.

    These combined positions do not violate current law or regulations 
and the amounts by which each trader exceeded a limit or level were 
generally small. However, there are a few instances where a 
noncommercial client's combined on-exchange futures positions and OTC 
equivalent futures positions significantly exceeded a position limit or 
exchange accountability level.
    In light of the preliminary data and findings, the Commission made 
the following preliminary recommendations.
                      preliminary recommendations
          1. Remove Swap Dealer from Commercial Category and Create New 
        Swap Dealer Classification for Reporting Purposes: In order to 
        provide for increased transparency of the exchange traded 
        futures and options markets, the Commission has instructed the 
        staff to develop a proposal to enhance and improve the CFTC's 
        weekly Commitments of Traders (COT) Report by including more 
        delineated trader classification categories beyond commercial 
        and noncommercial, which may include at a minimum the addition 
        of a separate category identifying the trading of swap dealers.
          2. Develop and Publish a New Periodic Supplemental Report on 
        OTC Swap Dealer Activity: In order to provide for increased 
        transparency of OTC swap and commodity index activity, the 
        Commission has instructed the staff to develop a proposal to 
        collect and publish a periodic supplemental report on swap 
        dealer activity. This report will provide a periodic ``look 
        through'' from swap dealers to their clients and identify the 
        types and amounts of trading occurring through these 
        intermediaries, including index trading.
          3. Create a New CFTC Office of Data Collection with Enhanced 
        Procedures and Staffing: In order to enhance the agency's data 
        collection and dissemination responsibilities, the Commission 
        has instructed its staff to develop a proposal to create a new 
        office within the Division of Market Oversight, whose sole 
        mission is to collect, verify, audit, and publish all the 
        agency's COT information. The Commission has also instructed 
        the staff to review its policies and procedures regarding data 
        collection and to develop recommendations for improvements.
          4. Develop ``Long Form'' Reporting for Certain Large Traders 
        to More Accurately Assess Type of Trading Activity: The 
        Commission has instructed staff to develop a supplemental 
        information form for certain large traders on regulated futures 
        exchanges that would collect additional information regarding 
        the underlying transactions of these traders so there is a more 
        precise understanding of the type and amount of trading 
        occurring on these regulated markets.
          5. Review Whether to Eliminate Bona Fide Hedge Exemptions for 
        Swap Dealers and Create New Limited Risk Management Exemptions: 
        The Commission has instructed staff to develop an advanced 
        notice of proposed rulemaking that would review whether to 
        eliminate the bona fide hedge exemption for swap dealers and 
        replace it with a limited risk management exemption that is 
        conditioned upon, among other things: 1) an obligation to 
        report to the CFTC and applicable self regulatory organizations 
        when certain noncommercial swap clients reach a certain 
        position level and/or 2) a certification that none of a swap 
        dealer's noncommercial swap clients exceed specified position 
        limits in related exchange-traded commodities.
          6. Additional Staffing and Resources: The Commission believes 
        that substantial additional resources will be required to 
        successfully implement the above recommendations. The CFTC 
        devoted more than 30 employees and 4000 staff hours to this 
        survey, which the Commission is now recommending to produce on 
        a periodic basis. Other new responsibilities will also require 
        similar additional staff time and resources. Accordingly, the 
        Commission respectfully recommends that Congress provide the 
        Commission with funding adequate to meet its current mission, 
        the expanded activities outlined herein, and any other 
        additional responsibilities that Congress asks it to discharge.
          7. Encourage Clearing of OTC Transactions: The Commission 
        believes that market integrity, transparency and availability 
        of information related to OTC derivatives are improved when 
        these transactions are subject to centralized clearing. 
        Accordingly, the Commission will continue to promote policies 
        that enhance and facilitate clearing of OTC derivatives 
        whenever possible.
          8. Review of Swap Dealer Commodity Research Independence: 
        Many commodity swap dealers are large financial institutions 
        engaged in a range of related financial activity, including 
        commodity market research. Questions have been raised as to 
        whether swap dealer futures trading activity is sufficiently 
        independent of any related and published commodity market 
        research. Accordingly, the Commission has instructed the staff 
        to utilize existing authorities to conduct a review of the 
        independence of swap dealers' futures trading activities from 
        affiliated commodity research and report back to the Commission 
        with any findings.

    In sum, this special call data and analysis has given the CFTC a 
snapshot of the OTC market. While the report's findings are useful and 
instructive, the data collection and analysis need to continue if the 
agency is to get a clearer, moving picture of this vast marketplace. 
The Commission's recommendations include enhanced transparency, 
increased reporting and information, and an overall modernization of 
several rules, regulations and practices used to oversee the markets. 
These changes will improve controls while ensuring that our futures 
markets remain competitive, open, and on U.S. soil.
 office of chief economist recent analysis of crude oil markets using 
                           large trader data
    In addition to the special call data and analysis, the Office of 
the Chief Economist (OCE) continues to examine and analyze trading in 
the regulated futures markets. OCE staff played a central role in 
producing the July 2008 Interim Report on Crude Oil, working with the 
Interagency Task Force on Commodity Markets. Utilizing the detailed 
data included in the CFTC's Large Trader Reporting System, we continue 
to monitor and analyze various groups of traders, including index 
traders, hedge funds, and other non-commercial traders.
    In the market for crude oil, we have witnessed a significant run-up 
in prices through mid-July 2008, with prices falling substantially 
during the past two months. Figure 1* below displays this price pattern 
along with the net positions of commercial entities, swap dealers (who 
bring index fund positions to these markets), and speculators in the 
crude oil futures markets. As displayed in Figure 1, while oil prices 
were rising dramatically during the first half of 2008, net speculative 
positions have been largely falling. This pattern mirrors the data 
collected by the special call to swap dealers and commodity index funds 
showing that commodity index net long positions in NYMEX crude oil 
contracts declined by approximately 11 percent during this same six-
month interval.
---------------------------------------------------------------------------
    * Graphic has been retained in subcommittee files.
---------------------------------------------------------------------------
    The Office of the Chief Economist continues to work with the 
Interagency Task Force on Commodity Markets and expects to update and 
supplement the findings produced in the July 2008 Interim Report in the 
near future.
                               conclusion
    The CFTC is working hard to protect the public and the market users 
from manipulation, fraud, and abusive practices in order to ensure that 
the futures markets are working properly. Thank you for the opportunity 
to appear before you today to discuss CFTC efforts in ensuring the 
integrity of the futures markets. I would be happy to answer any 
questions you may have.

    Senator Dorgan. Dr. Harris, thank you very much for your 
testimony. The vote has started. We will attempt to recess and 
be back in about 10 minutes. So the committee will stand in 
brief recess.
    [Recessed.]
    Senator Dorgan. The subcommittee will come to order. Our 
next witness will be Mr. Lawrence Eagles from JP Morgan. Mr. 
Eagles, thank you for being with us. We would ask you to 
proceed.

    STATEMENT OF LAWRENCE EAGLES, GLOBAL HEAD OF COMMODITY 
            RESEARCH, JP MORGAN CHASE, NEW YORK, NY

    Mr. Eagles. Thank you very much, Mr. Chairman and members 
of the committee. My position in JP Morgan is Global Head of 
Commodity Research and I'm here in replacement of Blythe 
Masters, the Head of JP Morgan's Global Commodities business 
who sends her sincere apologies that she can't make it today.
    My background, I'm a trained economist. I've got over 20 
years experience in commodity research, energy in particular. 
I've recently joined JP Morgan from the International Energy 
Agency in Paris, which is the independent policy advisor to 
OECD governments.
    While I was at the IEA I made the assessment that triggered 
the release of the international emergency all stocks following 
the devastation reeked by Hurricanes Rita and Katrina. I've 
advised OECD governments on financial flows in energy markets. 
I helped to draft the GA communicade on the issue in Osaka this 
year.
    Let me note at the outset that JP Morgan's commodity 
business has no incentive to see energy prices rise nor does JP 
Morgan Chase as a whole benefit from higher energy prices. 
Higher energy prices hurt our customers. They weaken the 
economy and therefore they hurt us.
    We believe that high energy prices are fundamentally a 
result of supply and demand. That said, we strongly support the 
efforts of the CFTC to identify and prosecute anyone found to 
be manipulating the energy markets. Manipulation though, 
shouldn't be confused with a legitimate trading activity.
    Financial commodity hedging on regulated U.S. markets as 
producers and consumers of energy protect themselves from price 
movements. It keeps our energy markets liquid and strong and 
provides vital price transparency. Investors and speculators 
provide the liquidity that enables producers and consumers to 
offset risk and restricting this activity could have adverse 
consequences for the U.S. economy, long term oil supplies and 
could actually end up shifting that activity overseas in more 
lightly regulated markets.
    Today's question is whether passive investment flows have 
caused oil prices to rise. I reject that assertion. First, we 
found no causal relationship between investment flows and 
energy prices.
    No one disputes that the rapid growth of investment flows 
into commodity futures has occurred. But that investment has 
not in fact caused commodity price inflation. There's a very 
strong correlation between the consumption of Tylenol and the 
frequency of headaches, but that doesn't imply causality. If 
passive index investing drives commodity prices higher than all 
prices in a given commodity index should rise at the same time. 
Yet we've observed distinctly different trends between 
commodity subgroups regardless of investment flows.
    Second, we found no evidence of inventory builds that would 
indicate market manipulation. There may be unreported stocks in 
places like China and India. But that's a symptom of a rush to 
achieve supply security. That's not manipulation.
    Because spot markets have to clear regardless of what is 
happening to the futures market, spot markets actually lead 
futures markets and not vice versa. The absence of inventory 
builds supports our assertion that fundamentals of supply and 
demand are driving current fuel prices.
    Third, high oil prices show that the market is working to 
curb demand. Increased energy demands from China, India and the 
Middle East are set against a background of harder to get 
supplies. That's an explosive price combination.
    When you look back at statistics, if you look back over 
history you'll always see supply and demand matching. If you 
get poor supply growth, you'll get poor demand growth because 
supply and demand have to balance. It's prices that tell you if 
there's tightness.
    In developing economies there are often price caps and 
subsidies. So all the necessary de-facto fuel rationing has to 
take place in developed economies where consumers are prepared 
to pay more.
    Fourth, production is getting much more expensive. Recent 
oil findings in Brazil at five kilometers deep and require 
penetration through a vast salt crust. These finds may be huge, 
but getting this oil out of the ground is going to be 
expensive.
    It's going to require significant infrastructure and 
technological hurdles to be overcome. If it costs more to get 
oil out of the ground, we're going to have to pay more at the 
pump and academic work linking oil prices to interest rates, 
therefore no longer holds.
    Fifth, the weak dollar bears some responsibility for the 
rapid oil price increase and that was shown in a recent study 
by the IMF which showed that the impact of the weaker dollar 
could actually cause a greater than one for one increase in the 
price of commodity in the short term. But it is not the only 
explanation.
    Sixth, I think and very importantly we have had severe 
constraints, not just in the upstream, but also in the refining 
sector which is amplified oil price increases. Our use for 
crude oil is in the refined product form. So if the price of 
refined products goes up, the price of crude oil goes up too.
    Recent experience in the diesel market demonstrates this 
relationship. Over the first half of the year, we had almost a 
perfect storm in terms of increase supply issues. It's a vital 
factor. I think it probably explains most of the $50 run up in 
prices earlier this year. But it's poorly understood.
    Finally, Mr. Chairman, in recent months, evidence has 
directly contradicted the assertion that passive investment is 
causing oil prices to rise. The latest CFTC report reveals a 
decline in commodity investment as the oil price continues to 
surge. While price pressures have eased across all commodity 
markets in recent weeks, the reason is no cause for cheer. The 
unifying factor is a broad weakening of economic conditions.
    We fully support efforts to make energy markets more 
transparent and to increase information available about 
commodities themselves. At the same time the CFTC's report 
clearly implies index fund's investors are not to blame for 
recent price increases. Arbitrary changes in fund flows could 
reduce that liquidity, diminish investment and ironically, 
could actually cause increased prices and volatility in the 
future.
    Recent experience indicates we cannot afford to make this 
mistake. Thank you very much. I'm very happy to answer any 
questions that should arise.
    [The prepared statement of Ms. Masters follows:]
Prepared Statement of Blythe Masters, Managing Director, Head of Global 
               Commodities, JP Morgan Chase, New York, NY
                              introduction
    Mr. Chairman and members of the Committee, I am Blythe Masters, 
appearing on behalf of JPMorgan and SIFMA, of which I am the present 
chairman. I am responsible for JP Morgan's Global Commodities business. 
By background, I am a trained economist, with a BA in economics from 
Trinity College, Cambridge in the UK. I appreciate the opportunity to 
present our views on the role of speculative investment in energy 
markets.
          jpmorgan does not benefit from higher energy prices
    Before addressing specifically the conclusions in some of the 
recent analyses, I would like to describe what JPMorgan's Commodities' 
business does, and what JPMorgan as an institution does, to show what 
effect higher energy prices have on our businesses.
    JPMorgan's Global Commodities business provides risk management 
services, develops investor products and makes markets in energy 
products around the world. The business is focused on serving corporate 
clients (including producers and consumers of commodities) as well as 
investor clients. We stand as intermediaries between our clients and 
the markets, and we act as risk managers.
    Rising energy prices have a significant effect on our clients and 
therefore on our business. As prices rise, not only do producers tend 
to hedge less, taking advantage of the favorable price trend, but 
consumers and investors also tend to postpone transacting, not wanting 
to lock in high prices. The effect is that overall business volumes 
decrease and risk increases, which hurts our business. Our Commodities 
business has no incentive to see energy prices rise and in fact 
benefits much more in a lower-priced environment.
    Moreover, JPMorgan Chase overall does not benefit from higher 
energy prices. Our Retail Financial Services business serves millions 
of individual customers in the United States, with branches in 
seventeen states. Our Card Services business has more than 155 million 
cards in circulation, the vast majority in the United States. Our 
Commercial Banking business serves 30,000 clients nationally, including 
corporations, municipalities, financial institutions and not-for-profit 
entities with annual revenue generally ranging from $10 million to $2 
billion. JPMorgan Chase is core to the US economy, and rising energy 
prices result in a weaker economy--consumers struggling to pay for 
gasoline or energy to heat their homes, businesses having to cut back 
on investment, defaults rising. As Jamie Dimon, our Chairman and CEO, 
has stated, ``The weaker the economy gets, the greater the impact could 
be across all our lines of business.'' Higher energy prices hurt our 
customers, weaken the economy and therefore hurt us.
    One of the truly regrettable consequences of the focus on energy 
speculation has been to detract from what we believe is a critical 
issue facing the United States: the development of a long-term energy 
policy. It is because JPMorgan benefits from a strong US economy that 
we strongly support the development of a comprehensive US energy 
policy, one that would reduce our dependence on foreign energy and 
promote the development of alternative energy in an environmentally 
responsible manner. We support the efforts of the CFTC to weed out and 
prevent market manipulation, but we fundamentally believe that high 
energy prices are a result of supply and demand, not excessive 
speculation. I will now turn to our analysis of the role of speculation 
in energy markets.
             the impact of speculators on commodity markets
    What we are addressing here today is the impact of investment flows 
on energy prices, and oil prices in particular. But this debate is not 
exclusively an oil issue. The same arguments are being discussed in all 
the primary commodity markets from corn to copper. These commodities 
form the backbone of the world's industrial and economic system and 
have a disproportionate impact on the finances of low income groups and 
developing nations, understanding the root cause of such price rises is 
extremely important.
    From the prime vantage point that JPMorgan Chase has across a broad 
spectrum of commodity markets, we can see the arguments from many 
different perspectives. And we can see that the arguments are often 
very inconsistent.
 the growth of index fund investment and its impact on commodity prices
    Media and political analysis has often focused on the category of 
investment flows from passive investors, in particular, those 
investments generally categorized as index funds. They have been widely 
blamed for rising prices because they have typically been seen as long-
term buyers of commodities, rather than being on both buy-and sell-
sides of the market as hedge funds and other speculators tend to be.
    No one disputes the rapid growth of investment flows into commodity 
futures--we estimate that the money under management in these commodity 
indices has increased from $10-15 bn in 2003 to $146 bn at the end of 
2007 and $200 bn at the end of June 2008. But we have to be very 
careful in asserting that because commodity prices have risen over the 
same period one has caused the other. There is a strong correlation 
between the consumption of Tylenol and the frequency of headaches but 
that does not imply causality.
    You do not have to scratch too deeply behind these assertions to 
question the validity of the arguments.
    Firstly, if you invest $1mln dollars in a commodity index fund in 
2003 of course you would see the value of your investment increase by 
exactly the same amount as the index it was invested in. Commonsense 
would tell you that before leaping to a conclusion, you need to see 
what the net money flows are after you strip out the capital gain 
associated with these trades. When you do that you find no meaningful 
relationship between the flows of money coming in and the change in the 
oil price.
    Secondly, index funds tend to hold a basket of commodities, so if 
investment money is moving one commodity, it should be moving all 
commodities at the same time. It does not. While there has been a 
general trend for commodity prices to rise, within that you see 
distinctly different trends between commodity sub-groups.
    These two factors together argue strongly that spot commodity 
prices in general are not being driven by fund flows, but fundamentals.
    The linkage between physical and futures markets is also important 
to understand. Some recent analysis confuses a trading link between the 
two with a pricing link.
    Futures markets have a much more important economic role than 
simply allowing the hedging and transfer of risk over different time 
periods. The standardization of commodities traded on futures exchanges 
offers price transparency that cannot be achieved with the multitude of 
grades and delivery locations of the spot commodity market. But the 
concentration of trading in the futures contracts provides a reference 
point which spot traders use as a benchmark. They then price their spot 
commodity as either a premium or a discount to the futures price. That 
links the spot and futures market from a quotation perspective, but 
that does not mean that one determines the other.
    We had a very clear example of this in the oil market in 2006, when 
storage tanks in the US Midwest, the pricing point of WTI, were full up 
due to a combination of increased Canadian pipeline flows, refinery 
shutdowns and the lack of any infrastructure to ship surplus oil out of 
the region. As a result, WTI traded at massive discounts to 
international crudes such as Brent, and US Benchmarks such as Mars and 
Light Louisianna Sweet crude. This is a classic example of how spot 
markets have to clear, regardless of what is happening to the futures 
market--and how spot markets lead futures and not visa versa.
    This is important. High school economics students will be able to 
tell you that if fund flows into commodity markets artificially push 
spot prices above this equilibrium clearing level, you will distort the 
market. That distortion will be manifested in a build in stocks. Where 
was that stockbuild in the oil market between July 2007 and July 2008 
when prices rose from $70 to nearly $150/barrel? Where was it when 
London Metal Exchange stocks were at near zero levels when copper, 
nickel and zinc prices hit record highs? Where was it when we had the 
recent surge in wheat and rice prices, or coal come to that?
    Some observers point out that this argument does not hold if 
traders are secretly holding stocks. But have you seen the size of a 
VLCC--you can't hide one in your back garden. You can't hide an oil 
storage tank or offloading facility either. Yes, in oil we know that 
several countries have been building strategic reserves, and don't 
report the buying, nor do many non-OECD countries report stock levels. 
But that is not an issue for the markets--if they see more physical 
buying and supplies tightening, the price rises. This is not fund flows 
lifting prices, it is not fund flows replicating the Hunt Brothers 
squeezing the silver market. It is however a strong argument for more 
data transparency--which we would fully support.
    High prices are there for a reason--to choke off demand. If the oil 
market is working efficiently and effectively you will never see 
shortages. You will see consumers being priced out of the market, but 
shortages will only occur if there is a sudden supply shock--not a 
structural shift.
    But what if these investment flows are lifting forward prices? What 
does that mean?
    What it does not mean is that the man at the pump is paying more 
for his oil--that is determined by the spot market. Higher forward 
prices should mean more investment: producers can lock in high prices, 
and can guarantee a cash flow. They send a strong signal to consumers 
to invest in energy efficient technology, or to look for substitutes.
    In the oil and metals industry it may take 5-10 years for an 
investment to come to fruition--try hedging that risk in a futures 
market that only had significant liquidity six months forward--as we 
had in oil a decade ago. Now we have futures markets liquid three to 
five years forward. Financial intermediaries such as JPMorgan make 
markets going out a decade or more.
    These fund flows have provided a huge economic service to the US 
and to the world economic system. But are these fund flows distorting 
the futures markets--again, the answer is no. Look at the latest 
medium-term analyses--they show that despite these record high prices, 
and record investments, we will still see crude oil supplies getting 
very tight again in five years time. These high prices are clearly 
justified.
    Look outside of the commodities and you get more evidence that 
index fund flows are not driving commodity prices. Look at commodities 
that are difficult for speculators to access: coal, rice, rubber, minor 
metals, uranium. All of these commodities have seen sharp price rises 
at some point over the past five years--yet they do not appear in the 
main commodity indexes.
    There is a much simpler explanation for a generally rising trend in 
oil prices: strong economic growth in highly populous countries--China 
and India in particular.
    GDP per capita in these countries has risen above the threshold 
level (usually seen around $1000-$2000/capita) where the population 
shifts from a subsistence level to consumer status. As their income 
expands, naturally they want to have access to the same goods as we 
enjoy in the developed world--housing, running water, better and more 
food (more meat) electricity, cars, washing machines and so on. Such a 
rapid expansion requires significant increases in primary commodity 
consumption.
    But supply growth has been poor. The increase in China's oil demand 
since 2003 has required the discovery of new oil supplies roughly the 
equivalent of Iraq, or Libya or Angola. However, this growth in demand 
has come at exactly the same time as the world has struggled to add new 
production capacity. According to the International Energy Agency's 
Medium Term Oil Market Report in July 2008, non-OPEC crude oil supplies 
have been static or in decline since 2004.
    Most of the additional growth has been provided by either OPEC, 
biofuels or Natural Gas Liquids--the latter of which can not be readily 
transformed into the much-in-demand transportation fuels.
    Quite simply, if you do not have the supply, you have to ration 
demand--and in the free market we do this with price. And as the 
government sets the price in many developing countries, it is the 
developed countries that have to cut back. And the higher your income, 
the higher the price needed to curb demand.
    Oil is also getting more expensive to get out of the ground. No one 
would debate that. Yet some analysts point to Hotelling's Rule to imply 
that oil prices are being inflated by fund flows. No academic would 
invoke this if they understood the oil market, no oil market analyst us 
this if they understood the academic debate. Hotelling implies that 
that even if oil is running out, the price of oil should rise by no 
more than the rate of interest. But he was very clear that this rule 
only held true if production costs remain constant. In fact, the 
escalation of production costs has been unprecedented and therefore his 
assessment has no relevance in today's world. There has been a massive 
increase in marginal costs since 2003.
    Recent finds in Brazil are five kilometres deep and require 
penetration through a vast salt crust. These finds may be huge, but 
getting this oil out of the ground will not come cheaply and there will 
be significant infrastructure and technological hurdles to overcome. It 
is not speculation or fear of peak oil which is leading to higher 
prices, but the reality of getting oil out of the ground.
    We don't think fear of peak oil is pushing prices higher, but 
prices are reflecting the higher cost of getting oil out of the ground 
in more and more challenging locations.
    This does not however mean that oil prices stick like glue to the 
marginal cost--currently $70 to $100/barrel at current costs. Marginal 
cost provides a rough estimate of where oil prices should gravitate 
over time. But in the short run, the true marginal cost can be 
determined by the price at which OPEC is willing to take off or add 
oil, the price at which corn ethanol is available, or the availability 
of diesel supplies to a market constrained by ever-tighter product 
specifications, limited flexibility in refining capacity and surging 
diesel demand.
    The weaker dollar has also had an impact. Academics can debate the 
precise mechanism for days, but simplistically, a commodity's price is 
determined by the supply and demand for the commodity not by the 
currency it is denominated in. If the dollar weakens, the value of oil 
has not changed globally, so the price in dollar terms has to increase. 
In fact, a recent study by the IMF showed that the impact of a weaker 
dollar could actually cause a greater than a one-for-one increase in 
the price of a commodity. But the impact is not just on the sales 
price--costs in the oil and other commodity industries are often 
denominated in dollars as well, so a weaker dollar can raise the 
marginal cost of production too. But, regardless of this, oil prices 
have generally risen by much more than the dollar has depreciated, 
highlighting that this is only one background feature of many.
    OPEC has also gained renewed importance in the market. It was slow 
to raise output in 2007 when demand was increasing, and prices only 
started to decline when Saudi Arabia ramped up production in July 2008. 
It has been argued that higher prices are actually leading to less 
investment and supply as producer countries seek to maximize their long 
term revenue flow. That is a possibility, although I would argue that 
the recent decision by Saudi Arabia to increase output sends a clear 
signal that there is also concern about the impact demand destruction 
is having on their future market prospects. But regardless of your 
view, that is a symptom of high prices and political dynamics, not an 
impact from fund flows.
    The oil market has also had problems in the refining sector, which 
have amplified the rise in the oil price. In fact, we believe that the 
tightness in global diesel markets was the key factor behind the oil 
price rally over the past year. It is not a simple mechanism, or one 
that is easy to understand without an in-depth understanding of oil 
market functioning. Many traders and analysts will be able to tell you 
that diesel has been driving the market over the past few years, but 
few will be able to explain the mechanism, but when you think about it 
in first principle terms, it is intuitive.
    Crude oil is not much use to anyone in its raw form--a couple of 
power stations around the world may use it for fuel, but that is it. 
Our use for crude oil is in the refined product form--gasoline, diesel, 
petrochemicals and fuel oil. Each of these refined products is a 
commodity in its own right, with a price determined by the supply and 
demand for that product. If we sum the values of all of these refined 
products we get the price that refiners will be willing to pay for a 
barrel of crude oil. So if the price of refined products goes up, the 
price of crude oil goes up too.
    So if we have strong demand for diesel fuel, but not enough 
refinery capacity or crude supply to meet it, diesel prices will rise, 
and that will raise the value of the product slate, and so the price of 
crude oil rises as well. If the supply of crude oil is too high, 
refiners will make a bigger profit and will store more crude. If the 
supply of crude is tight, their profits will be less, marginal 
producers will cut runs--and there will be less diesel supply.
    In the past year, demand for diesel has been so strong that prices 
have had to rise to record premiums to crude oil to restrain demand. In 
many ways the diesel market has endured a ``perfect storm.''

   Europe is consuming ever-more diesel as tax incentives 
        encourage its consumers to switch to diesel cars.
   A market failure has led to China's teapot refineries being 
        closed down, leading China to seek more diesel from an already 
        tight international market.
   Widespread shortages in the retail market prompted China to 
        order an increase in stock levels ahead of the Olympics.
   Power shortages in South Africa and Chile prompted a surge 
        in diesel for backup generators.
   To cap it all, there was a natural gas pipeline accident in 
        Australia which, again, caused a surge in diesel demand. Only 
        when some of these pressures on the diesel market eased 
        (unfortunately partly due to a spreading global economic 
        slowdown) did oil prices start to decline.

    Importantly, as oil prices embarked on the largest part of this 
surge, commodity index investment declined. It is not just our analysis 
that shows this, but also the most recent and comprehensive analysis by 
the CFTC.
    Similarly, when we look to other markets there has also been an 
easing of pressure. Some of this has been a response to improved 
investment: crop yields have increased, investment is underway in the 
base metals, and international oil companies are reinvesting a greater 
portion of cash flow than would be seen in any other industry.
    Unfortunately, while price pressures have eased in oil (and many 
other commodity markets) the unifying factor is a widening weakening of 
economic conditions. But even as we weather this downturn, we must be 
aware that the fundamentals that underpinned this commodity boom are 
unlikely to completely go away.
    We recognize that there is a need for more information, and we 
fully support efforts to make these markets more transparent. But we 
have to recognize that one of the main areas where we lack fundamental 
information is on commodities themselves. There have been times when 
estimates of the Brazilian coffee crop have fluctuated between 30 and 
50 mln bags; when traders have believed there have been secret 
stockpiles of metal building up around the world, only to see them 
``wiped out'' by a dramatic upward revision to demand. The discrepancy 
between crude oil supply and petroleum product demand has exceeded 1 
mb/d because we only get reliable data 18 months late. We have no idea 
of the true production capacity of many major oil producing countries 
in the world. There is little surprise that pundits jump to the wrong 
conclusions over the drivers of commodity prices.
    Similarly, if we want to regulate markets, we need to know whether 
they are functioning properly from a supply and demand perspective 
first.
    But while we support the need for more transparency, for both 
financial and fundamental data, it is imperative that we recognize the 
benefits that additional liquidity from investment flows provides. 
Commodity producers can now invest in the future with the financial 
tools that will help them mitigate risk and lock in profitable returns. 
Arbitrary changes in fund flows could reduce that new-found liquidity, 
resulting in lower investment and ironically exactly the opposite 
effect that was intended--higher prices in the future.

    [Graphics have been retained in subcommittee files.]

    Senator Dorgan. Mr. Eagles, thank you very much. Next we 
will hear from Dr. James Newsome, the Director, this says 
Director. Are you President?
    Mr. Newsome. No.
    Senator Dorgan. Ok.
    Mr. Newsome. Changed titles, that's all.
    Senator Dorgan. Changed titles. Director of the Commodity 
Mercantile Exchange in New York. Mr. Newsome, thank you for 
being with and you may proceed.

 STATEMENT OF JAMES NEWSOME, DIRECTOR, CME GROUP, NEW YORK, NY

    Mr. Newsome. Thank you, Mr. Chairman. I appreciate the 
opportunity to present the views of the CME Group this 
afternoon. The CME Group is the parent of the CME Incorporated, 
the Board of Trade over the city of Chicago, the New York 
Mercantile Exchange and COMEX. We'll refer to them as the Group 
of Exchanges.
    The CME Group Exchanges are neutral marketplaces. They 
serve the global risk management needs of our customers and 
producers and processors who rely on price discovery provided 
by our competitive markets to make important economic 
decisions. We do not profit from higher crude nor energy 
prices.
    Our congressionally mandated role is to operate fair 
markets, to foster price discovery and the hedging of economic 
risk in a transparent, efficient, self regulated, environment, 
overseen by the CFTC. The CME Group Exchanges offer products in 
all major asset classes including futures at options based on 
interest rates, equity indexes, foreign exchange, agricultural 
commodities, energy, metals and alternative investment 
products.
    Speculators make markets work for the benefit of the 
hedgers and for all who look to efficient markets for the best 
source of price discovery. Our markets operate in a global 
economy. Impediments to legitimate speculative activity on U.S. 
regulated markets will drive trading off exchange and overseas.
    We support proposals to materially improve the enforcement 
capabilities and machinery of the CFTC, especially of cares 
taken to avoid driving trading off of the regulated markets 
into dark pools.
    We support greater transparency through expanded, mandatory 
reporting of energy trading and position information to the 
Commission in accordance with its recent recommendations. 
Additionally, we applaud the Commission's preliminary 
recommendations in the report released last week to encourage 
clearing of OTC transactions, which would effectively provide 
greater transparency and oversight to OTC energy swaps. We are 
also working with the Commission to offer secure, central, 
counter party clearing facilities for other OTC transactions 
which will help control systemic risk in that market and offer 
regulators far greater insight into the positions of market 
participants.
    We believe the disclosure of trading and position 
information to a regulator with sufficient resources to analyze 
and act upon unusual or suspicious activities will deter most 
potential manipulation and assure punishment of those foolish 
enough to attempt a manipulation. This is the philosophy upon 
which our internal market regulation has been based and why it 
has been so successful. We clearly understand that the recent 
surge in the price of many commodities, particularly energy, 
has inspired Congress to look for assurance that the only price 
drivers are legitimate supply/demand factors.
    Some who claim expertise or special mileage have asserted 
that the entire price inflation can be laid at the door of 
speculators and/or passive index funds that have invested 
billions in commodity contracts. However, these arguments are 
flawed. Specifically, Mr. Masters' claim that buy and hold 
index traders poured more than $60 billion into the major 
commodity indexes in January through May of this year resulting 
in the purchase of approximately 187 barrels of WTI crude oil 
futures and causing WTI crude prices to soar by nearly $33 a 
barrel as a result of this buying pressure.
    This has been proved false in every material aspect. Our 
careful evaluation of market participants and trading patterns 
are to the contrary as are the findings of the CFTC. The recent 
CFTC report finds that index traders were actually reducing 
their positions in WTI futures contracts and in the OTC futures 
equivalent substitutes at the same time that the price was 
escalating.
    Most every competent economist who has looked at real data, 
rather than using uniformed best guesses and who has applied 
legitimate economic analysis concludes that neither speculators 
nor index funds are distorting commodity prices. We worry that 
legitimate economists will be ignored and that important 
legislation may be shaped by false economics that is profoundly 
flawed in both its methodology and logic.
    Mr. Chairman, we're strong proponents of securing all of 
the relevant information from all sources and fairly testing 
the hypothesis and reconfirming previous academic studies. The 
evidence to date respecting the impact of speculation on index 
trading in energy markets parallels the results we have found 
in our markets. We support the CFTC's continuing efforts to 
improve the quality of data from over the counter sources and 
to assure that a thorough analysis informs any subsequent 
legislative or administrative efforts to deal with the 
uneconomic price inflation.
    Thank you, Mr. Chairman.
    [The prepared statement of Mr. Duffy follows:]
Prepared Statement of Terrence A. Duffy, Executive Chairman, presented 
       by James Newsome, Director, CME Group, Inc., New York, NY
    I am Terrence Duffy, Executive Chairman of Chicago Mercantile 
Exchange Group Inc. (``CME Group'' or ``CME''). Thank you Chairman 
Dorgan and Ranking Member Murkowski for this opportunity to present our 
views.
    CME Group was formed by the 2007 merger of Chicago Mercantile 
Exchange Holdings Inc. and CBOT Holdings Inc. CME Group is now the 
parent of CME Inc., The Board of Trade of the City of Chicago Inc., 
NYMEX and COMEX (the ``CME Group Exchanges''). The CME Group Exchanges 
are neutral market places. They serve the global risk management needs 
of our customers and producers and processors who rely on price 
discovery provided by our competitive markets to make important 
economic decisions. We do not profit from higher food or energy prices. 
Our Congressionally mandated role is to operate fair markets that 
foster price discovery and the hedging of economic risks in a 
transparent, efficient, self-regulated environment, overseen by the 
CFTC.
    The CME Group Exchanges offer a comprehensive selection of 
benchmark products in all major asset classes, including futures and 
options based on interest rates, equity indexes, foreign exchange, 
agricultural commodities, energy, and alternative investment products 
such as weather and real estate. We also offer order routing, execution 
and clearing services to other exchanges as well as clearing services 
for certain contracts traded off-exchange. CME Group is traded on 
NASDAQ under the symbol ``CME.''
    Speculators make our markets work for the benefit of hedgers, 
commercials and for all who look to efficient markets for the best 
source of price discovery. Our markets operate in a global economy; 
impediments to legitimate speculative activity on regulated U.S. 
markets will drive trading off exchange or overseas.
    We unequivocally support proposals to materially improve the 
enforcement capabilities and machinery of the CFTC, especially if care 
is taken to avoid disadvantaging regulated U.S. markets for the benefit 
of dark pools. We support expanding the mandatory reporting of energy 
trading and position information to the Commission in accordance with 
its recent recommendation. We share the view of regulators and 
legislators on the need for greater transparency most famously 
expressed by Justice Louis Brandeis:

          Publicity is justly commended as a remedy for social and 
        industrial diseases. Sunlight is said to be the best of 
        disinfectants; electric light the most efficient policeman.
          --Justice Louis Brandeis, Other People's Money, and How the 
        Bankers Use It, 1933

    We believe that disclosure of trading and position information to a 
regulator with sufficient resources to analyze and act on unusual or 
suspicious activities will deter most potential manipulators and assure 
punishment of those foolish enough to attempt a manipulation when all 
of their actions are visible to the regulator. This is the philosophy 
upon which our internal market regulation has been based and why it has 
been so successful.
    The recent highly promoted declarations that commodity prices are 
being driven by speculators and index funds, rather than the expected 
forces of supply and demand lack any basis in fact or theory. The 
proponents of the plans to eliminate speculators begin with their 
inability to forecast prices based on their understanding of supply and 
demand and jump to the conclusion that their inability to predict price 
movements demonstrates that the market is not operating correctly.
    Most every competent economist who has looked at real data, rather 
than using uninformed, wild guesses, and who has applied legitimate 
economic analysis concludes that neither speculators nor index funds 
are distorting commodity prices. We worry that legitimate economists 
will be ignored and that important legislation may be shaped by 
spurious economics that is so profoundly flawed in its methodology and 
logic that it could be used to prove that lung cancer causes cigarette 
smoking. Expert economists who reviewed the work of Masters, McCullough 
and Eckaus found, among other flaws, that:

   Those authors' unfamiliarity with industry fundamentals 
        resulted in misinterpretation of petroleum statistics;
   The authors confuse the consequence of demand for physical 
        product and demand for derivatives;
   The failure of the McCullough model to forecast oil prices 
        is due to problems in the model, not problems in the market;
   The Masters' model of futures markets is overly simplistic, 
        and does not correspond to any of the hundreds of academic 
        research articles on futures published over the last 50 years. 
        The characterization and measurement of ``excessive 
        speculation'' are arbitrary and meaningless;
   Claims that speculators are the cause of increased 
        volatility misstate volatility trends;
   Master's claim that tough talk from Congress is behind the 
        recent sharp fall in oil prices rests on incorrect facts and 
        borders on the absurd; and
   McCullough consistently conflates speculation and market 
        manipulation to justify his conclusions.

    We are strong proponents of securing all of the relevant 
information from all sources and fairly testing the hypothesis and 
reconfirming previous academic studies. The evidence to date respecting 
the impact of speculation and index trading in energy markets parallels 
the results we have found in our markets. We support the CFTC's 
continuing efforts to improve the quality of data from OTC sources and 
to assure that a thorough analysis informs any subsequent legislative 
or administrative efforts to deal with uneconomic price inflation.
         speculation is essential to efficient, liquid markets
    Fuel and food prices recently bounced to levels that are shocking 
and painful to consumers and the economy. We share the concerns of this 
Committee regarding the impact these prices are having on the daily 
lives of U.S. consumers. Unfortunately, the pressure to reverse rising 
prices has led some to look for a simple causal agent that can be 
neutralized with the stroke of a pen. The favored culprit is the 
traditional villain--speculators. But speculators sell when they think 
prices are too high and buy when they think prices are too low. They 
are not a unified voting block and are on both sides of every market. 
Speculative selling and buying send signals to producers and processors 
that help keep our economy on an even keel. High futures prices for 
corn induced farmers to bring new acreage to market. High forward 
energy prices encourage exploration and new technology to exploit 
existing untapped reserves.
    Futures markets perform two essential functions--they create a 
venue for price discovery and they permit low cost hedging of risk. 
Futures markets depend on short and long term speculators to make 
markets and provide liquidity for hedgers. Futures markets could not 
operate effectively without speculators and speculators will not use 
futures markets if artificial barriers or tolls impede their access. 
Blaming speculators for high prices diverts attention from the real 
causes of rising prices and does not contribute to a solution. The 
publicly available data has been relatively consistent over time in 
demonstrating that speculators in crude oil futures contracts have been 
relatively balanced as between buy and sell positions in the market. 
These data have been ignored by commentators who have wrongly suggested 
that speculators are uniformly on the buy side and are thus pushing 
prices up on that basis. The weight of the evidence and informed 
opinion also confirms that the high prices are a consequence of normal 
supply and demand factors. The Wall Street Journal surveyed a 
significant cross section of economists who agreed that: ``The global 
surge in food and energy prices is being driven primarily by 
fundamental market conditions, rather than an investment bubble . . . 
.''\1
\---------------------------------------------------------------------------
    \1\ Bubble Isn't Big Factor in Inflation, By Phil Izzo (May 9, 
2008; Page A2.)
---------------------------------------------------------------------------
    The traditional production/consumption cycle that has governed 
prices in commodity markets is stressed by the confluence of a number 
of factors.
    David Hightower, author of the Hightower Report, summed up the 
supply/demand situation in corn last year as follows: `` We have 
experienced three consecutive years of record corn production . . . and 
three consecutive years of declining ending reserves. Supply has put 
its best team on the field and demand keeps winning.''
                       masters' analysis is wrong
    The academic work and the contemporaneous explanations of price 
movements in commodities markets have been largely ignored by a few 
vocal critics, who have gained an undue share of attention by making 
sensational claims. In May of this year Michael W. Masters, who 
operates an off-shore equity investment fund in the Virgin Islands and 
who by his own admission has never had any actual experience as a 
futures trader, began a cascade of charges that commodity index funds 
were responsible for unnatural price escalations in commodity markets.
    In particular, his allegations focused on crude oil futures and the 
underlying crude oil market. We have previously provided detailed 
explanations as to how the crude oil futures market and physical market 
interact, how prices are determined, and the common commercial 
practices and activities that comprise these markets. Among other 
things, we have emphasized that crude oil is truly a global commodity 
and that prices in crude oil futures markets are primarily driven by 
the market fundamentals of the far larger physical market for the crude 
commodity. We explained that Mr. Masters was dead wrong. NYMEX had 
repeatedly examined and tested for evidence that would support Masters' 
fundamental thesis about market performance and had consistently found 
that his charges had no basis in fact. NYMEX shared these results in 
its submissions to Congress.
    On September 10th, Mr. Masters updated his so-called ``analysis,'' 
including his allegations about crude oil market participation, price 
determination and performance. On September 11th, the Commodity Futures 
Trading Commission (CFTC) released a detailed report that included 
definitive data and analysis regarding index-long market participation 
in a group of commodities, including crude oil. Unlike Mr. Masters who 
guessed at or simply assumed the facts, the CFTC report by contrast 
provided definitive and unambiguous information as to whether the index 
funds were increasing or decreasing their positions in a manner that 
could support Mr. Masters' claims. In addition, the CFTC report 
provided futures price information that enabled readers to perform the 
equivalent analysis that Mr. Masters purported to perform in reaching 
his conclusions.
    The information the CFTC provided also was sufficient to enable 
readers to evaluate the performance of the methodology Mr. Masters 
purported to perform in reaching his assertions about index-long 
participation in commodities markets. It should be noted that a core 
assumption made by Mr. Masters is that all index trading wherever it 
occurs will inevitably be hedged only on the regulated futures markets. 
The CFTC report, by comparison, is careful to note that its analysis is 
set forth in terms of ``futures-equivalents,'' thus referring to 
activity both on the regulated and transparent futures exchanges as 
well as in less transparent OTC markets. The unambiguous result of the 
CFTC analysis, which is based on the best data available today, and its 
direct implication is that Mr. Masters was wrong about everything; 
about participation by index-longs, about the price impacts from index-
longs, and about how to even count participation by index-longs.

   Mr. Masters asserts in Chart 1 that ``Index Speculators' 
        Stockpile'' of WTI crude oil futures was approximately 520,000 
        contracts on January 1, 675,000 futures contracts on April 1, 
        and 680,000 futures contracts on July 1 (all this year). By 
        contrast, the CFTC's definitive numbers were: 408,000 futures-
        equivalents on December 31, 2007; 398,000 on March 31; and 
        363,000 on June 30. Mr. Masters' claim that futures contracts 
        are ``stockpiled'' is meaningless. He overstates by 27.4% in 
        January and 87.3% by the end of June the number of contracts 
        held by index funds. Mr. Masters is not only disturbingly off 
        the mark, he shows an unmistakable pattern of significant 
        growth through the first half of the year (over 30% growth--
        well over 30 when looking at the early June peak) when the 
        actual trend is significantly downward--11% down. In other 
        words, Mr. Masters is completely lost.
   Mr. Masters emphatically asserts--his ``update'' is devoted 
        to this--that crude oil futures prices follow, virtually in-
        step, the path followed by his asserted (and completely wrong) 
        levels of index-long participation. He shows crude oil price 
        rising by nearly 50% over the same time period and attributes 
        the rise in its entirety to the rise in index-long 
        participation. This is the essence of Mr. Masters' price-
        determination theory and he stresses it in his update: when 
        index-long participation grows, the price rises, and, when 
        index-long participation drops, the price decreases. Mr. 
        Masters uses this theory, one which has been repeatedly 
        disputed by responsible energy market economists as well as by 
        NYMEX in its previous submissions, to explain the rise and fall 
        of crude oil prices during 2008. Mr. Masters expressly 
        attributes the rise in crude oil prices from January to May to 
        increases in long-index positions (which, in fact, did not 
        happen) (2nd bullet point on p.1 ``Update ''). He also 
        expressly attributes the fall in prices from July 15th to 
        September 2nd to reductions in index-long positions (another of 
        his assertions--given his track record, we had better wait for 
        the legitimate information) (p. 4 ``Update ''). The CFTC report 
        allows the reader to apply Mr. Masters' price determination 
        theory to the real long-index participation data. Its report 
        shows that, as long-index participation fell, prices rose. We 
        of course do not intend to claim that the causality runs in 
        this directions--lower long-index participation, higher prices. 
        We just wish to identify the clear, unmistakable and 
        unambiguous factual refutation of Mr. Masters' thesis.
   Mr. Masters asserted in his May 20th Congressional testimony 
        that index-long positions in commodities' markets were equal to 
        $260 billion in March 2008. The CFTC calculated actual notional 
        value of index long positions in commodities' markets to be 
        $168 billion in futures-equivalents, an overstatement by Mr. 
        Masters of a mere 54.7%.
   Even where there appears to be similarity between Mr. 
        Masters' assertions and the CFTC's fact finding, Mr. Masters' 
        ``methodology'' nonetheless results in making sweeping 
        assertions that are the complete opposite of the CFTC's 
        findings. Mr. Masters, for instance asserts that index-long 
        positions increased in value by $60 billion during the first 
        five months of 2008 (``Update . . .'' p. 1 and 3). The 
        Commission reports that long-index investments increased by $54 
        billion between December 31, 2007 and June 30, 2008; not 
        identical but arguably close. But Masters further claims that 
        long-index positions in crude oil increased from 520,000 
        futures equivalent to over 700,000 during that time period (an 
        increase of 34.6%). As was noted above the CFTC clearly states 
        that actual index-long positions in crude oil were reduced from 
        408,000 to 363,000 (a reduction of 11%). Mr. Masters seems to 
        miss the most basic fact--that the value of long positions 
        increase with rising prices. In other words, while the total 
        notional value of futures equivalent positions held by index 
        traders increased during the first six months (from $39 to $51 
        billion), the CFTC report demonstrates that this increase in 
        overall value is entirely due to increases in the price of 
        crude oil rather than to increases in the sizes of positions. 
        Indeed, contrary to claims made by Masters and others, the 
        number of futures-equivalent crude oil positions held by index 
        traders actually declined rather than increased during this 
        period, indeed a decline of approximately 11%.
   The CFTC's data on the individual commodities also strongly 
        suggests the inadequacy of the methodology that Mr. Masters 
        asserts to have employed. (We emphasize that we have made no 
        effort to check the work performed by Masters.) Mr. Masters 
        asserted in his May 20 testimony that 95% of the long-index 
        positions in commodities are tied to either the Standard & Poor 
        Goldman Sachs Commodity Index or the Dow Jones AIG index. When 
        looking at the changing relative value relationships between 
        oil, wheat, corn and cotton summarized on p. 3 of the CFTC 
        report and the changing prices over the three dates, this 
        assertion becomes very dubious. Yet, giving Masters the benefit 
        of the doubt that he properly executed his stated methodology, 
        his methodology strongly appears to be wrong. Therefore, if he 
        performed the methodology right, it is the wrong methodology.
    Mr. Masters has successfully captured a number of headlines by 
        trumpeting the supposedly massive inflow of funds by index 
        traders into the regulated futures markets. Yet, as noted 
        above, index trader positions were actually declining during 
        this period. Moreover, the CFTC report is also helpful in 
        providing some realistic context for the overall level of 
        participation by index traders. Specifically, their report 
        compares the notional value of the futures-equivalents held by 
        index traders to notional values for positions in the regulated 
        futures and options contracts traded on markets regulated by 
        the CFTC. Simply put, the notional index values are relatively 
        modest by comparison. For example, even if one was to assume 
        that somehow 100% of index positions ended up being hedged on 
        futures markets, for NYMEX Crude Oil, this would still 
        constitute only 13% of the total notional value for NYMEX Crude 
        Oil futures and options positions. In this regard, the CFTC 
        notes at the outset of its report that such a result is 
        unlikely due to internal netting of positions by swap dealers.

    Remarkably, given how fundamentally wrong Masters is about all of 
the assertions that can be tested against the CFTC's fact finding--and 
that is the overwhelming majority of Masters' assertions--he never 
offers any room for qualification in any of his ``work.'' Contrast that 
with the work of the community of responsible scholars of energy 
markets who are actual economists and who have analyzed recent price 
behavior in crude oil markets--including Phil Verlager, Dan Yergin, 
Robert Weiner and Craig Pirrong to name several but by no means all--
and each typically identifies in their own analysis where they need to 
perform additional work to fortify their conclusions. In fact, it is 
only fair to contrast it with previous testimony and submission 
provided by the Exchange where, among other things, we identified our 
own efforts to consider and evaluate theories of price influence with 
which we disagreed.
    Mr. Masters is dismissive of oil market fundamentals. He has not 
made any serious effort to uncover the fundamentals. In general, he 
simply asserts that supply and demand have been in balance and that 
there has been no change in world inventories over the first six months 
of 2008. Frankly, we are not even sure what he means by this, but 
whatever he means, he is at odds with both the US Department of 
Energy's Energy Information Administration and the International Energy 
Agency.
    In both of their recent market reports, each agency speaks to 
uncharacteristic changes in OECD inventories during the second quarter 
this year. In its September report, EIA speaks to an over 1 million 
barrel per day drop from the ``average build . . . during this time of 
year'' for OECD countries during the second quarter. Inventory 
information is notoriously complex to ascertain in the world oil 
market. US inventory information is released on a weekly basis and is, 
probably, the most reliable in the world. The IEA reports OECD 
countries' information on a monthly basis. The IEA then revises these 
monthly data, which are reported about six weeks after the fact, in two 
successive monthly reports. The numbers are commonly revised and 
frequently the first revision is one direction while the second 
revision can be in the reverse direction. As for non-OECD cumulative 
inventory information, it is essentially uncertain. EIA indirectly 
reports on it but does so as a residual calculation based on estimates 
for production and consumption (and what it knows about OECD 
inventories), and claims no certainty over it.
    This is why Mr. Masters' dismissive reference to world inventories 
is problematic. Nobody would seriously suggest that they know for a 
certainty current world inventory levels. In addition, though, he is 
factually wrong about what is known. The EIA's current report indicates 
that there were indeed changes in world inventories during the first 
half of the year--600,000 barrels per day decrease during the first 
quarter and 280,000 barrels per day increase during the second quarter. 
In addition, the EIA's data regarding the first half of the year 
inventories were revised in its most recent report as they were in last 
month's report, but each report still indicates that world inventories 
have in fact changed during the first half of the year. (The August EIA 
report indicated that world inventories were drawn down 300,000 barrels 
per day during the first quarter and raised 330,000 barrels per day 
during the second quarter.) The fact that EIA and IEA revise their data 
each month is manifestation of the complexity in even ascertaining the 
correct level of inventories, much the less attempting to understand 
the relationship that may exist between changes in inventory levels and 
changes in price. (It also highlights some of the uncertainty regarding 
core market fundamentals that can have an impact on and be factored 
into price levels.) Mr. Masters does not seem to even understand these 
subtleties let alone address them, which raises additional questions 
respecting his qualifications.
    NYMEX has provided Congress detailed taxonomic descriptions of how 
the futures market interacts with the physical market for oil with 
special emphasis on the role of arbitrage and its corollary impact, 
price convergence. In those submissions, we also explained in detail 
how index-long position taking would impact the oil futures and 
underlying physical crude oil markets. We also provided the results of 
market analyses we performed to examine the impact of financial non-oil 
participants in the futures market as well as to search for evidence of 
price-related impacts from index-long participation in futures or OTC 
markets. The consistent result was that there was no evidence to 
support impacts on price or price volatility by financial non-oil 
participants or by long-index participation in the markets. These 
evaluations began in 2004 and included looking at 2007 through the 
middle of 2008. In the tradition of balanced economic analyses, we can 
only assert that we found no evidence to support these impacts.
    Twice, in recent congressional testimony the CFTC has reaffirmed 
the validity of its own 2005 analysis.\2\ The CFTC's analysis parallels 
the conclusions of many other economists who have also studied the 
issue of causation in the context of speculators and commodity futures 
prices.\3
\---------------------------------------------------------------------------
    \2\ During his appearance before the Senate Appropriations 
Committee on May 7, 2008, CFTC's Acting Chairman Walt Lukken stated 
that the CFTC's recent revisitation of the 2005 CFTC study using more 
current data for energy market trading affirmed the conclusions reached 
in the 2005 study. This conclusion mirrors the views of the majority of 
53 economists surveyed by the Wall Street Journal in May 2008, which 
indicated that the global surge in food and energy prices is being 
driven primarily by fundamental market conditions, rather than an 
investment bubble. Wall Street Journal, May 9, 2008, page A-2. 
Similarly, the US Department of Energy's Energy Information Agency's 
``Short Term Energy Outlook'', published in May 6, 2008, evidenced the 
tightness in world oil markets, with growth in world oil consumption 
outstripping growth in production in non-OPEC nations by over 1 million 
bbls/day, and dramatically increased demand coming from China, India 
and other parts of the developing world.
    \3\ See, for example, Antoshin and Samiei's analysis of the IMF 
research on the direction of the ``causal arrow'' between speculation 
and commodity prices in ``Has Speculation Contributed to Higher 
Commodity Prices?'' in World Economic Outlook (September 2006):
      ``On the other hand, the simultaneous increase in prices and in 
investor interest, especially by speculators and index traders, in 
commodity futures markets in recent years can potentially magnify the 
impact of supply-demand imbalances on prices. Some have argued that 
high investor activity has increased price volatility and pushed prices 
above levels justified by fundamentals, thus increasing the potential 
for instability in the commodity and energy markets.
      What does the empirical evidence suggest? A formal assessment is 
hampered by data and methodological problems, including the difficulty 
of identifying speculative and hedging-related trades. Despite such 
problems, however, a number of recent studies seem to suggest that 
speculation has not systematically contributed to higher commodity 
prices or increased price volatility. For example, recent IMF staff 
analysis (September 2006 World Economic Outlook, Box 5.1) shows that 
speculative activity tends to respond to price movements (rather than 
the other way around), suggesting that the causality runs from prices 
to changes in speculative positions. In addition, the Commodity Futures 
trading Commission has argued that speculation may have reduced price 
volatility by increasing market liquidity, which allowed market 
participants to adjust their portfolios, thereby encouraging entry by 
new participants.''
      Similarly, James Burkhard, managing director of Cambridge Energy 
Research Associates testified to the Senate Energy Committee on April 
3, 2008 that: ``In a sufficiently liquid market, the number and value 
of trades is too large for speculators to unilaterally create and 
sustain a price trend, either up or down. The growing role of non-
commercial investors can accentuate a given price trend, but the 
primary reasons for rising oil prices in recent years are rooted in the 
fundamentals of demand and supply, geopolitical risks, and rising 
industry costs. The decline in the value of the dollar has also played 
a role, particularly since the credit crisis first erupted last summer, 
when energy and other commodities became caught up in the upheaval in 
the global economy. To be sure, the balance between oil demand and 
supply is integral to oil price formation and will remain so. But 'new 
fundamentals'--new cost structures and global financial dynamics--are 
behind the momentum that pushed oil prices to record highs around $110 
a barrel, ahead of the previous inflation-adjusted high of $103.59 set 
in April 1980.''
---------------------------------------------------------------------------
    Neither the CFTC's study nor reference to the supply/demand factors 
driving the market has calmed the critics who demand an easy solution 
to high prices, which they claim can be mandated without cost or 
consequence. This vocal group, which does not include any competent 
agriculture or energy economists, insists that driving index funds and/
or speculators from the markets will bring prices back to the correct 
level.
    The proponents of this plan do not understand the role of 
speculation. They do not understand that there are speculators on both 
the buy and sell sides of the market. Moreover, they fail to grasp that 
imposing artificial costs and constraints on speculation in markets 
regulated by the CFTC is likely to drive prices to artificial levels, 
which can distort future production decisions and cause costly 
misallocation of resources of production. Such constraints also may 
well result in the shift of activity to less regulated and transparent 
markets abroad, which could shift this activity off the CFTC's radar 
screen.
    The proposal to exclude pension funds and index funds from 
participating in commodity futures markets is not constructive. These 
funds use commodity exposure to manage risk in their portfolios. 
Barring them from regulated U.S. futures markets will only push them 
offshore or into over-the-counter trading. Surely Congress does not 
desire to impose a remedy that materially and negatively impacts our 
domestic energy futures markets and produces no compensating public 
policy benefit.
    Regulated futures markets and the CFTC have the means and the will 
to limit speculation that might distort prices or distort the movement 
of commodities in interstate commerce. Acting Chairman Lukken's recent 
testimony before the Subcommittee on Oversight and Investigations of 
the Committee on Energy and Commerce United States House of 
Representatives (December 12, 2007)\4\ offers a clear description of 
these powers and how they are used.
---------------------------------------------------------------------------
    \4\ http://www.cftc.gov/stellent/groups/public/@newsroom/documents/
speechandtestimony/opalukken-32.pdf

          CEA Section 5(d)(5) requires that an exchange, ``[t]o reduce 
        the potential threat of market manipulation or congestion, 
        especially during trading in the delivery month . . . shall 
        adopt position limitations or position accountability for 
        speculators, where necessary and appropriate.
          All agricultural and natural resource futures and options 
        contracts are subject to either Commission or exchange spot 
        month speculative position limits--and many financial futures 
        and options are as well. With respect to such exchange spot 
        month speculative position limits, the Commission's guidance 
        specifies that DCMs should adopt a spot month limit of no more 
        than one-fourth of the estimated spot month deliverable supply, 
        calculated separately for each contract month. For cash settled 
        contracts, the spot month limit should be no greater than 
        necessary to minimize the potential for manipulation or 
        distortion of the contract's or underlying commodity's price.
          With respect to trading outside the spot month, the 
        Commission typically does not require speculative position 
        limits. Under the Commission's guidance, an exchange may 
        replace position limits with position accountability for 
        contracts on financial instruments, intangible commodities, or 
        certain tangible commodities. If a market has accountability 
        rules, a trader--whether speculating or hedging--is not subject 
        to a specific limit. Once a trader reaches a preset 
        accountability level, however, the trader must provide 
        information about his position upon request by the exchange. In 
        addition, position accountability rules provide an exchange 
        with authority to restrict a trader from increasing his or her 
        position.
          Finally, in order to achieve the purposes of the speculative 
        position limits, the Commission and the DCMs treat multiple 
        positions held on a DCM's market that are subject to common 
        ownership or control as if they were held by a single trader. 
        Accounts are considered to be under common ownership if there 
        is a 10 percent or greater financial interest. The rules are 
        applied in a manner calculated to aggregate related accounts.
          Violations of exchange-set or Commission-set limits are 
        subject to disciplinary action, and the Commission, or a DCM, 
        may institute enforcement action against violations of exchange 
        speculative limit rules that have been approved by the 
        Commission. To this end, the Commission approves all position 
        limit rules, including those for contracts that have been self-
        certified by a DCM.
          It is clear that speculation is an important component of the 
        futures markets, but there is a point when excessive 
        speculation can be damaging to the markets. As a result, the 
        CFTC closely monitors the markets and the large players in the 
        markets, in addition to position and accountability limits, to 
        detect potentially damaging excessive speculation and potential 
        manipulative behavior.

                               conclusion
    CFTC-regulated futures markets have demonstrated their importance 
to the economy, the nation's competitive strength and America's 
international financial leadership. We have the means and the power to 
protect our markets against speculative excesses on our markets and are 
committed to doing so.

    Senator Dorgan. Dr. Newsome, thank you very much. We 
appreciate your testimony. Finally we will hear from Mr. Fadel 
Gheit, who is the Managing Director and Senior Energy Analyst 
from Oppenheimer and Company in New York. Mr. Gheit, thank you 
and welcome.

 STATEMENT OF FADEL GHEIT, MANAGING DIRECTOR AND SENIOR ENERGY 
         ANALYST, OPPENHEIMER & CO. INC., NEW YORK, NY

    Mr. Gheit. Thank you for having me. I am not an economist. 
I don't have a portfolio that would benefit from lower oil 
prices.
    I talk to oil companies. I talk to people who invest in oil 
stocks. I do not trade the commodity. My company does not trade 
the commodity. My comments today will reflect my own view, not 
my company's view.
    Oil is unlike any other commodity that we deal with. It is 
has a lot to do with supply/demand. But more it has to do with 
true politics, whether other factors that can not be 
quantified.
    The oil markets are not free markets. Let's not kid 
ourself. With 51 percent of the global supply is controlled by 
a cartel and Russia, there is no free market. It is not a free 
market. We like to think it's free market, but it's not.
    Supply and demand are impacted by government action, taxes 
and subsidies. Oil demand increase only in those countries in 
the last year or so, only in the countries that have subsidized 
oil prices, everywhere else where people paid full price, 
demand declined. But despite that the weakness in the market in 
general oil prices moved up by more than $50 to $148 only to 
collapse to $90 or $95. Oil prices remain inflated and should 
go lower. The fact of the matter if it was not for the 
financial player the decline would have been even steeper.
    Having said that, despite the invasion of Georgia, despite 
the 10-day disruption of oil flow from Harbhajan, which was one 
million barrel per day, despite the two hurricanes, oil prices 
in the state of going up as any trained economist would have 
told you, oil prices actually came down between $15 and $20 
until finally the financial market meltdown which brought oil 
prices lower. Oil companies did not believe in $60 oil, let 
alone $100 oil and then it went to $140, they just threw their 
arms in the air and said, we don't know. We cannot make any 
sense out of that.
    I had a chance 3 years ago to spend long hours talking 
about the oil markets with the Secretary General of OPEC, who 
also happened to be the head of the Economic Analysis for the 
Cartel for 14 years. That was the week of Hurricane Katrina and 
oil prices hit $62. He was very unhappy with the spike in oil 
prices. As he put it, he said, it will kill the goose that lay 
the golden egg. It is not in our best interest to have oil 
prices significantly above $45. That was 3 years ago.
    Last year the Secretary General of OPEC said that the fair 
price of oil should be $55. Our Energy Secretary at the time 
said that energy prices are moved up by speculation, but it 
would help if OPEC increased oil supply. Our own President said 
that I will ask our friends in OPEC to put additional oil on 
the market.
    But despite all this, oil prices moved higher and continue 
to move higher. Then when you have a major investment bank 
predicting that oil prices will end the year at $170. So OPEC 
Secretary General said, I go for that, oil prices should go to 
$171.
    We cannot blame OPEC for the rising oil prices. There is 
plenty of supply as we seen that oil prices basically are 
coming down very sharply because they are not supported by 
market fundamentals. Who gains from higher oil prices? I can 
tell you.
    We pay for every dollar of speculation. We drain our 
resources by $4 billion a year. In my estimation oil prices 
have been inflated by at least $10 in the last 5 years. That's 
$200 billion on the conservative side.
    Self regulated markets do not work. If they worked we 
didn't need an IRS. We don't need a cop to give a traffic 
violation because people obviously, wouldn't do otherwise.
    The bottom line here is that I think oil prices continue to 
reflect a high level of speculation which is needed, but when 
excessive information comes into play, it destroyed the market 
completely. Thank you.
    [The prepared statement of Mr. Gheit follows:]
Prepared Statement of Fadel Gheit, Managing Director and Senior Energy 
             Analyst, Oppenheimer & Co. Inc., New York, NY
    Good afternoon.
    I am here today to share my personal views on the impact of 
speculation on the oil markets. I believe the energy markets in recent 
years have been driven more by speculation than by industry 
fundamentals of supply and demand. Oil prices peaked in July at more 
than $148/b, despite softening demand, to more than double their levels 
a year earlier. Since then, oil prices declined by more than 36% 
despite supply disruptions. Speculation has disconnected oil prices 
from market fundamentals.
    As a managing director of oil & gas research at Oppenheimer & Co. 
Inc., I closely follow the energy markets for the sole purpose of 
advising investors in energy stocks. I do not trade energy future 
contracts or manage investments that could gain from lower energy 
prices. I have no vested interests in declining energy prices, and in 
fact, the energy stocks that I own for many years would decline further 
with lower oil prices.
    I testified on the impact of speculation on oil prices on December 
11, 2007, before the Senate Permanent Subcommittee on Investigations of 
the Committee on Homeland Security and Governmental Affairs and the 
Subcommittee on Energy of the Committee on Energy and Natural 
Resources. Oil prices then averaged $90.02/b, up 47% from $61.22/b a 
year earlier. When I testified before the House Subcommittee on 
Oversight and Investigations of the Committee on Energy and Commerce, 
oil prices closed at $132.57/b, or double the $66.27/b a year earlier. 
Although oil prices are down 36% from their peak in July, and down 1% 
for the year, they are still 43% above the year-ago level.
    Even after the recent decline, I believe that oil prices are still 
inflated and their current levels do not reflect market fundamentals. 
The price decline was a result of selling of oil future contracts by 
financial players on fears of slowing oil demand due to the weak global 
economy and the meltdown in the financial markets. The fact that the 
decline in crude oil prices has continued despite the Russian invasion 
of Georgia, the 10-day disruption of oil production from Azerbaijan due 
to the pipeline explosion of the Turkish pipeline, and the recent 
hurricanes in the Gulf of Mexico, proves that oil prices are inflated 
and that they are disconnected from supply and demand fundamentals.
    Many people believe that the recent drop in oil prices was a result 
of pending legislation allowing more drilling in the U.S. Although we 
should pursue all options, including opening federal land to 
exploration, this is unlikely to have any meaningful impact on our 
dependence on foreign oil for years. I believe energy conservation and 
increased use of alternative energy sources, including renewable 
energy, is a much better strategy and should be a top priority in any 
future energy legislation. However, I think the investigations by the 
Senate and the House have contributed to the recent decline in oil 
prices by exposing the role speculators played in creating the oil 
price bubble.
    I have been an energy analyst for more than 22 years, and spent six 
years before that working for a major oil company. I follow 22 energy 
companies including the majors, the integrated, the independent 
refiners and the domestic oil and gas producers. I communicate 
regularly with the companies I cover, and none of them either publicly, 
or privately, indicated they expected oil prices to reach, let alone 
exceed, $100/b. Some even ridiculed $60/b oil and declared it to be 
unsustainable.
    Only a year ago several OPEC ministers said that the surge in oil 
prices was not due to lack of supply, but due to excessive speculation 
and a weak dollar. OPEC repeatedly said that the ``fair'' price for oil 
is around $55/b. Our Energy Secretary last October agreed with OPEC 
that speculations, not market fundamentals, were the cause of the run-
up in oil prices. That was before he reversed his opinion last June, 
and agreed with the Treasury Secretary that oil prices reflected supply 
and demand fundamentals, not excessive speculation.
    Three years ago, after hurricane Katrina, I had two long 
discussions with the secretary general of OPEC, Dr. Adnan Shehab-Eldin, 
Ph.D, who was also the head of OPEC Economic Analysis for the past 14 
years. He expressed deep reservations about the surge in oil prices to 
$62/b because of its potential negative impact on global economic 
growth, energy demand, and potential energy conservation and switching 
to renewable sources. He believed that OPEC prefers to see oil prices 
closer to $45/b, not $65/b. The unprecedented surge in oil prices was, 
in my opinion, more due to excessive speculation rather than increased 
global demand, a weak dollar, or supply concerns.
    Self-regulated markets don't work, especially when there are huge 
sums of money to be made. There are always people who will try to beat 
the system in markets that are tightly regulated by the government, let 
alone self regulated. I liken self-regulated markets to trying to 
enforce the speed limit without traffic cops or speeding penalties, or 
collecting taxes without filing with the IRS. The self-regulated 
markets are like private clubs making up their own rules. They will 
fight change, but should not be given that option. Government agencies 
should not defend the right of a few to make huge profits at public 
expense.
    Speculation is not illegal, but excessive speculation could result 
in serious economic dislocation. Investors speculate when they buy or 
sell stocks and financial players speculate when they buy or sell 
future oil contracts. Speculators provide the needed liquidity to 
facilitate trading transactions between commercial hedgers who end up 
taking physical delivery of the commodity. But, since financial 
speculators have no intention of taking physical delivery, they usually 
roll over their hedge positions. They generate huge profit if prices 
move in line with their bets, up or down. Excessive speculations, 
however, tend to magnify and exacerbate price movements and create 
volatility that could disconnect prices from market fundamentals as has 
been the case in recent years.
    Oil is unlike any other commodity where prices are usually based on 
supply and demand. That is because the oil markets are not free markets 
since more than half of the world supply is now controlled by OPEC and 
Russia, while demand is impacted by government taxes and subsidies. 
Sharply higher oil prices reduced demand in most countries, except 
where prices are subsidized, like in China, India, and in oil exporting 
and developing countries. High oil prices limited access to new energy 
resources as they strengthened the hand of national oil companies, 
while significantly increasing government take, including royalties, 
taxes, fees, and tariffs. High oil prices remove the incentive for oil 
exporting countries to grant new concessions to international oil 
companies. That explains why high oil prices did not result in 
increased supply and did not fully impact demand.
    I believe the government must regulate the oil markets, and limit, 
not eliminate financial speculation, which is needed to facilitate 
trading transaction by commercial hedgers. The CFTC should raise the 
margin requirement, set trading limits, require transparency, prevent 
conflict of interests, and limit trading to government regulated 
exchanges in compliance with U.S. rules.

    Senator Dorgan. Mr. Gheit, thank you very much for being 
with us today. We appreciate the testimony of all six of you. I 
should mention, Mr. Harris, when I said it was underhanded to 
send a North Dakotan to testify, I only meant that being a 
North Dakotan you had such great credibility that make my job 
more difficult.
    [Laughter.]
    Senator Dorgan. Let me ask you some questions, Mr. Harris, 
then I have questions for the rest of the panelists as well. 
I've read carefully the CFTC reports and the most recent report 
says the following, ``This preliminary report is not able to 
accurately answer and quantify the amount of speculative 
trading occurring in the futures market'' on page two. Was that 
an accurate statement that comes from the report?
    Mr. Harris. Yes, the report was focused on index traders in 
particular. So it wasn't a comprehensive survey of everybody in 
the marketplace.
    Senator Dorgan. But isn't it also the case that previous 
reports by the CFTC, they take the same position. That they are 
not able to accurately answer and quantify the amount of 
speculative trading. The issue of classification of traders is 
what is germane in key here.
    If they're not classified properly you're pretty clearly 
unable to get the result so you can analyze the result. We have 
been told by Mr. Newsome who's testified here that he's not 
able to see much of what exists out there in over the counter 
and elsewhere. So if one isn't able to see much of what exists. 
If the classifications have grown less precise, as you say in 
your report, the classifications have become less precise as 
both groups may be engaged in hedging and speculative activity.
    By the way, the classifications are done by the CFTC. So if 
they're less precise, but done by the CFTC and you can't see 
everything out there, I would understand why you would say that 
you're not able, accurately, to quantify that which is 
speculative. Is that a fair statement?
    Mr. Harris. I think this is one good highlight of this 
recent report that we have. This is the first time we've 
actually dug into the positions of individual traders to look 
beyond the trading that they do on our markets. This is our 
first foray into looking at the over the counter positions 
among different traders.
    So in that regard this marks, sort of the unprecedented 
level of activity that we've dug down into our data to try and 
look at what's behind the position.
    Senator Dorgan. If you look at what's behind the position, 
but you indicate that your classification is a weakness?
    Mr. Harris. The classification----
    Senator Dorgan. Less precise, a weakness.
    Mr. Harris. The classification for instance that Mr. 
Masters used for the supplemental report includes trader 
positions of all types. It includes the positions of all index 
traders, for instance, which might include positions that don't 
relate to index trading. So in that regard if you take that 
data and extrapolate from it, you might be making errors.
    But we've always been pretty clear about what our data is 
and what our data is not. I think part of what we have in our 
recommendations here is some recommendations looking forward to 
try to improve upon that and look at different ways to produce 
data.
    Senator Dorgan. I understand you want to improve upon it 
looking forward, but your chairman has given us very specific 
conclusions repeatedly, over a period of time that he knows 
that this is the fundamentals. This is supply and demand. He's 
continued to insist that over time and doesn't deviate from 
that.
    That's a curious way, it seems to me, for the regulator to 
do its job at a time when you see prices doubling in a year in 
which, I'm going to ask Mr. Eagles in a few moments, he said 
it's supply and demand. I'd like, in fact, I'd like anybody to 
be able to answer this on the panel. What happened in supply 
and demand in 1 year that justified a doubling of the price of 
oil?
    Mr. Harris. I can speak to what I think what our chairman 
was referring to. I believe he's basing that on a lot of the 
research that my office does. What we do and what we have done 
is look at different groups of traders.
    We can look beyond a simple, the commercial, non-commercial 
data that we put out in our commitment of trader's reports. We 
actually break down. Look at hedge funds, specifically. We look 
at index funds now in this particular market. But we've done 
our best job as we can to classify traders as a group, as 
people have mentioned or claimed that they have an impact on 
the market and look for their specific behavior from day to day 
on whether they're buying or selling in the market and driving 
prices one way or the other.
    Senator Dorgan. Mr. Masters, Dr. Harris says that you've 
just thrown everything into a bushel basket here and then added 
it all up. Your response? I mean what you have described----
    Mr. Masters. Sure.
    Senator Dorgan [continuing]. For us is index trading that 
moved a substantial amount of money in, in a dramatic way and 
then just as quickly moved it out. So respond to Dr. Harris, if 
you would.
    Mr. Masters. Thank you. One of the interesting things Dr. 
Harris suggests that there's other things in the report. The 
name of this report is the Commodity Index Trader's Report. So 
why you would name the report the Commodity Index Trader's 
Report and then suggest that there's lots of other entities in 
the report is beyond me.
    But the bigger question here is, is that this is the CFTC's 
data. This isn't our data. We just looked at the data and 
analyzed the data. This is the CFTC's own data.
    The Commodity Index Trader's Report has come out for the 
better part of two and a half years. The Commitment of Trader's 
Report, which is a broader report of which the CIT report is 
the supplement has come out for over two decades. So the idea 
that by doing a survey, a special survey in 60 days of 
different entities around the street and asking them questions. 
Then coming out and suggesting that all of the previous data 
that you've put out for the better part of two and a half years 
may be inconsistent, may be incorrect.
    What is this public supposed to rely on? In fact, it's an 
interesting quandary. We have on the one hand the established 
data set, the CIT report. On the other we have a new survey of 
data. What is the public supposed to rely on?
    In fact, the U.S. Commodity Futures Trading Commission 
submitted this report to all of these swap dealers. On it there 
are numerous questions. In fact, there are questions about 
speculative questions.
    According to the testimony either we didn't get that 
information. They didn't get that information. If they did get 
the information, then they didn't submit it. It's not on the 
record. We don't see any parts of it.
    The----
    Senator Dorgan. I think you made your point on that. I want 
to come back to Dr. Harris in a moment. Mr. Gheit, you've 
described previously what's going on, on the street with the 
big firms. You've described to me and I think also before this 
committee that massive hiring, a bunch of speculators, kind of 
like hogs in a corn crib, a substantial amount of additional 
speculation, making money by trading oil contracts.
    Describe to me what you're seeing. I mean, you're there.
    Mr. Gheit. Basically there's a trend--obviously to find a 
way to make money in the commodities and especially oil was the 
hot thing. I mean there were no checks and balances. There is 
total disconnection from supply and demand fundamentals. There 
were no shortages.
    I talk to oil companies regularly, from the largest of them 
all to the independent EOP companies and not one CEO of any of 
these companies thought that oil prices should be a dollar 
higher than the $60 a year ago. When they saw $100 oil, they 
were absolutely amazed. Obviously when we see $148 oil, they 
said the world has changed.
    But having said that, in my round of talking to hedge 
funds, their biggest worry over the last 3 or 4 months was will 
Congress do something about speculation. They didn't want to 
know anything about supply and demand. That is not, at all, a 
factor in what they do.
    They want to know if there is a cop on the beat and if 
something is going to change. I said, I have no faith that 
anything is going to change.
    Senator Dorgan. Mr. Eagles, you hear Mr. Gheit describing 
what's going on the street. You say, this is supply and demand. 
Why would JP Morgan know that it's supply and demand and the 
folks that run the oil companies, whose future and whose 
success depends on trying to understand supply and demand, know 
much less.
    Mr. Gheit has said and incidentally we've had testimony 
from CEO of Marathon from executives at Exxon and others who've 
said exactly the same thing. So why would they miss the mark so 
much and you describe it as normal supply/demand relationships?
    Mr. Eagles. To describe it as simple supply and demand is 
perhaps exaggerating it slightly. There are a number of many 
complex factors which are going into this. Now first of all I 
should say that if you take a look back at statements from 
OPEC, from the International Energy Agency and many people, 
they've looked to the oil price when it was $18 a barrel and 
said that was far too high. All the way up you can see people 
saying this price is not realistic.
    At the end of each year when we get the consolidated 
financial statements, people have started to see, particularly 
since 2003, a very sharp escalation in the cost of production. 
Now that's not speculation that is pushing that up. That is 
real cost because we've had extreme bottlenecks in the 
industry. We've had underinvestment throughout the 1990s.
    When demand increased these companies simply couldn't get a 
hold of the rigs. They couldn't get hold of the skilled man 
power. They're having to bid up prices.
    Senator Dorgan. But, I'm sorry to interrupt you. I 
apologize. Would you tell us your assessment of July to July or 
June to June, the doubling of that?
    Mr. Eagles. Since July there are a couple of factors here. 
One which was when I was at the International Energy Agency we 
pointed out very rapidly the amount of supply that OPEC was 
providing to the market was going to lead to severe tightness 
in the second half of 2007. They didn't increase output. 
Surprise, surprise, we had a tight market.
    We also had a very sharp weakening of the dollar. We also 
had what I think is probably one of the most important factors 
in that we had a perfect storm in the diesel market.
    Now if you want a prime example of how unresponsive 
consumers are to prices, take a look at the European market 
where they have increased taxes year after year after year 
since the mid 1980s. Yet demand has continued to increase. They 
have been paying at the pump prices of well over $200 a barrel 
for many, many years.
    It has taken very large price increases----
    Senator Dorgan. But you're not sticking with the 1 year. I 
just want to show you something.
    Mr. Eagles. Yes.
    Senator Dorgan. That chart, the red line, shows what's 
happened to prices in that period.
    Mr. Eagles. Yes.
    Senator Dorgan. They've now since come down. The yellow 
line and the dates of the yellow start in May 2007 to May 2008. 
The yellow line represents the EIA assessment, Energy 
Information Agency Assessment of where the price would be.
    In every case that yellow line is almost straight across, 
in some cases a bit down. These are the experts. We spent $100 
million on this agency, by the way. Here's what they thought 
was going to happen to prices. One would expect they would have 
folks that would know what you have in CFTC as well analyzing 
these markets.
    But in every case, the real price of oil completely 
eclipsed what EIA thought was going to happen. They didn't have 
the foggiest idea where there line was going to go. There's 
only, it seems to me that despite all the protestations, 
there's only one possible reason for that. That is that the 
supply and demand relationship that was evaluated with that 
yellow line did not exist with respect to the red line.
    Mr. Eagles. Could I ask you?
    Senator Dorgan. Yes, of course.
    Mr. Eagles. Could I ask you in terms of driving this, one 
thing that we have to appreciate is the tightness in the 
refining sector. We have had a lot of pressure put on the 
diesel market. Now let me just give you an example. If we take 
a very simplistic economic example----
    Senator Dorgan. Are we talking about the 1-year period?
    Mr. Eagles. I'm talking really about the 1-year period. 
Diesel and gasoline have been tight for a long period. The 
gasoline situation started to improve in July last year. But 
the diesel situation has continued to be very tight.
    Senator Dorgan. If that's the case then we need to get new 
people in the EIA because----
    Mr. Eagles. I think----
    Senator Dorgan [continuing]. I assume they would have known 
that as well.
    Mr. Eagles. I think it's fair to say that what happened in 
the diesel market wasn't to be expected. We had a number of 
market failures, a number of market issues. We had in China, we 
have capped prices for diesel and gasoline.
    Senator Dorgan. Right.
    Mr. Eagles. We have free market prices for fuel oil. There 
are refiners buying fuel oil and turn it into low spec diesel. 
The rise in prices put them out of business.
    Suddenly China had to go onto the International market and 
buy a very large amount of diesel. The Europeans have a 
taxation system which encourages them to drive diesel cars.
    Senator Dorgan. But----
    Mr. Eagles. They're continuing to buy more. Then we have 
had outages in Chili, South Africa, Australia, which have 
forced our generators to use diesel.
    Senator Dorgan. But JP Morgan would not have that exclusive 
province to that information. The EIA would have known that. By 
the way, I have another chart.
    I've taken far more time than I should have, but I have 
another chart that shows all that has happened that one would 
have expected to put upward pressure on prices and it has not. 
I want to just say to Dr. McCullough, I have had some questions 
for you. I hope that I can get to them later.
    But I've taken more time than I should have. It seems to 
me, Dr. McCullough, you would look at all this and say, there 
is no way this makes sense. I mean there's no way that there's 
a classic answer of supply and demand that laces it up tight 
and smartly. It just doesn't add up. Is that correct?
    Mr. McCullough. Yes, Chairman. I'm pretty pleased to have a 
chance to respond to Mr. Eagles.
    The fact of the matter is I don't think we should fire the 
EIA. I went back and reviewed the EIA forecast and detailed 
against what really happened. I took the January forecast, then 
I went through the actuals all the up to August.
    They were not fools. To the contrary, they did pretty well. 
They did better by the way than I did as a forecaster. They 
were off on consumption by 1.6 percent. They had an error on 
production of 0.8 percent.
    The way they went, those offset each other. They did not do 
a bad job. The fact of the matter is we don't have a clue of 
how that relates.
    Let's talk about tight refineries. Tight refineries mean 
it's hard to actually get gasoline out of the oil. But it 
doesn't put pressure on the oil.
    It's in fact a crimp in the system. If the refinery goes 
down, we will have oil unsold because we won't have any use for 
it. We've had a hundred fanciful explanations.
    As you know, I actually broke down over the summer and 
started testing them statistically. In the main they do a 
terrible job. As I noted, this morning I read every major 
reporter's story on this from Jad Mouawad at the New York Times 
to the Washington Post.
    We lost 2 percent of the world's production because of 
Hurricane Ike. The prices collapsed.
    Senator Dorgan. Dr. McCullough, thank you. I apologize to 
my colleagues. I took more time than I should.
    Senator Murkowski.
    Senator Murkowski. I want to continue with you, Mr. 
McCullough. Because after your testimony you kind of wrapped it 
up and said, you know, part of the answer would be quarterly 
reports. Does that really help us?
    Is that all we need to better understand that we have? You 
can finish your comments there as you answer that question. It 
just doesn't seem to me that it's as easy as this.
    Mr. McCullough. It certainly isn't. Let me note to you on 
the end of 1999 when Enron had some 60 percent of its risk 
capital into one commodity in one location. We didn't know it. 
The CFTC unfortunately stopped including the West Coast energy 
forward markets in the COT at that time.
    By the way, Senator Foyett of your staff had asked why and 
they couldn't find the reason why they did it. They put it back 
in place after Enron went bankrupt. If we had known that this 
major position had taken place out of the blue, the first thing 
we would have done is we would have called the FBI and have 
them ask. It was a huge position, an inexplicable position.
    The reason why it'd be good to have an oil quarterly report 
is I'd love to have this debate with a detailed transaction 
data that post-Enron, I now in electricity. Now is it 
sufficient that we would have real facts in front of us to 
answer the question, clearly not. If all of those facts were in 
front of me, you might say, ok, I now know the answer. It was 
``x.''
    But absent that we're going to sit here and have this, 
frankly, dubious debate because even with my 30 years of 
experience in the energy business I would never have guessed 
that Hurricane Ike would lower the price of oil. I said to a 
staffer at the hotel this morning, shouldn't we have more 
hurricanes. They said in broken English, I think this is wrong 
answer.
    [Laughter.]
    Mr. McCullough. It is the wrong answer. But the fact is we 
don't know. There are very bright people here. I certainly 
respect them all, but we have no data.
    Senator Murkowski. Ok. Let's go to the data and there was 
some, a whole series of recommendations from the staff report. 
Does that get us where we need to go?
    Mr. Newsome, you suggested that you're in agreement with 
these recommendations. That speaks to the transparency aspect 
of it. But it's more than just transparency. It's compiling the 
data, most clearly.
    It seems that we've clearly got gaps on both ends. It's 
probably easier for us to address the transparency side of it 
than to figure out how we compile all this data. Am I correct 
in that?
    Mr. Newsome. We're certainly supportive of the CFTC 
recommendations. But a big component of that, of making that 
transparent, is collecting the data to make it sell.
    Senator Murkowski. Making sure that data in the first place 
is reliable data.
    Mr. Newsome. Absolutely. I think, you know, Mr. Masters 
uses an apples and oranges comparison to confuse people. The 
Commitment of Trader's Report is exchange data that the CFTC 
has collected for a long time.
    The CIT data is index data, particularly in the 
agricultural markets and to use that data to extrapolate what 
he thought would occur in the energy sector to start this whole 
debate 6 months ago. We now know based upon the real data from 
the CFTC that his approach was completely flawed. That in fact 
index speculation in energy did not drive higher energy prices 
because that level was coming down as prices went higher.
    So I think it's important to collect the real data, to use 
real economic analysis, such as the CFTC has started. There's 
still a long way to go, but I think that's the right path.
    Senator Murkowski. Let me ask you, Mr. Masters, do you 
think it was an apples to oranges comparison. If you have had 
that data that we're speaking of, do you think that your 
conclusion would have been different than the report that 
you've issued?
    Mr. Masters. Clearly, I mean we don't consider it an apples 
to oranges data. This is publicly available data that we 
received. It's index trader data.
    All we really did is, you know, calculate the level of 
energy crisis from the index. So we know in an index, we know 
from these accounts, as Dr. Harris described their pension 
funds, institution sovereign wealth funds. By and large the 
vast majority of them follow the index almost with a religious 
fervor. If something false----
    Senator Murkowski. But is that true? I mean are they all 
the same? Can they all be treated the same? Calculated in your 
matrix the same? Or are there differences?
    Mr. Masters. I mean as long as they're going to follow an 
index, that is the case. Because if one component, if you know 
just one component of the index, then you can find out what 
every other component is. To give you an example, if Kansas 
wheat is 1 percent of the Goldman Sachs commodity index and 
that's a billion dollars, then you know the overall index is 
$100 billion. If you know the waiting for crude oil is 40 
percent of that index then it's easy to calculate that there's 
$40 billion in crude oil.
    So we just used the CFTC's data. We calculated it very, 
very straightforwardly. We think it makes a lot of sense.
    The idea that you could go out and do a survey in 60 days 
and find other data that completely contradicts the data that I 
and other people have been relying on. I mean, we're not the 
only ones who came out with this data. Lehman Brothers, last 
week, came out and said, there was a $42 billion outflow. 
Citibank has used it. Goldman Sachs has used it. Lots of 
different other large banks have used this same data and come 
up with similar conclusions.
    Senator Murkowski. Let me ask one last question here. This 
is directed to you, Mr. Gheit. You stated that excess 
speculation can destroy the market completely. I would agree 
with you. So the question is, is some level of speculation ok?
    Mr. Gheit. Absolutely. We need speculation to facilitate 
transactions between commercial hedgers, airlines, the chemical 
companies, the oil companies. You need that. Oil companies need 
to secure their cash-flow so they can invest.
    Senator Murkowski. So how do we make sure that we don't?
    Mr. Gheit. Like anything else you need to grease the wheel, 
but over greasing it, you skid all over the place. Too much of 
a good thing is a bad thing. That's exactly what we have right 
now is the tail is now bigger than the dog. So you don't know 
which is wagging which.
    But the point here is that we have to curb speculation. We 
cannot eliminate it.
    Senator Murkowski. Yes.
    Mr. Gheit. We need body fat. We cannot survive without it. 
Speculation is the body fat. We just can't eliminate it 
completely. We need that.
    Then the notion that it is not speculation. If it's not 
supply and demand and it's not speculation, so what caused the 
run up in oil prices? Obviously something must have caused it.
    Now in this market perception is reality. Speculation 
thrives on perception. There is no supply shortage, hasn't been 
any supply shortages that cause oil prices to move up. All the 
data pointed out that global demand was slowing down.
    As oil prices came down sharply in light of all the events 
that could have pushed oil prices higher. There was certain 
disregard to market fundamentals that the threat to supply, 
that things can go out of hand, didn't matter. Oil prices were 
in a free fall.
    Senator Murkowski. Mr. Chairman, it just speaks to the 
extreme difficulty you have here. If we recognize that we're 
not going to be able to eliminate speculation entirely, nor 
would we want to. But you can't allow it to go too far.
    So I guess it takes us back to part of this solution which 
is a clear understanding as to what we're dealing with and 
openness and the transparency. Again back to data that you can 
actually rely on. Thank you, Mr. Chairman.
    Senator Dorgan. Senator Cantwell.
    Senator Cantwell. Thank you, Mr. Chairman. To go over the 
data point because I do think that this is important if we 
obviously want to have functioning markets. We do have to have 
transparency.
    It seems to me, Mr. McCullough, that you had some concerns 
about the CFTC report because of the date range that they used 
in the analysis and the data that they ended up collecting. 
Could you expand on that?
    Mr. McCullough. The first thing that occurs when you take a 
look at the report, and I'm looking at Dr. Harris, is that it 
goes through June 30. I understand that might have been a 
factor in their data collection, but the issue we're all 
talking about happened between July 3 and July--I think the 
hourly peak in the price was the 14th or the 15th. So we 
actually have the wrong time horizon here.
    I know Mr. Masters has taken some punishment for a fall 
that occurred in the first 6 months. But I'm actually a bit 
more interested in the seventh month. I suspect the solution to 
this is to have an ongoing data collection effort, not a one-
time response to congressional criticisms.
    The fact of the matter is I fell for Mr. Masters when he 
said, look, I'm relying on their report. We need to get those 
reports standard. We need to get them precise. We need to get 
them publicly available.
    Senator Cantwell. But Mr. McCullough, can't all this be 
done in real time and shouldn't it be transparent and shouldn't 
it be available to the public?
    Mr. McCullough. I don't think there's any question we can 
do it in real time. We've got a tremendous amount of capability 
out there. What we need to do is we need to have a systematic 
process and your additional staff to work on it. We need to get 
that information out so we don't have repeated hearings and 
debates in the press about things that should be factually 
clear.
    Senator Cantwell. What was done post Enron in the 
electricity market to improve reporting, particularly between 
the physical market and the futures market?
    Mr. McCullough. Almost everything. When we deregulated 
electricity, FERC is part of its market license, had everyone 
put in a quarterly report. Some of the quarterly reports were 
almost amusing. One was actually turned in after it had been 
left out in the rain. You could see the little raindrops in the 
report. I won't mention the firm, but it was one of the major 
Wall Street banks. Not yours, you'll be glad to know.
    That was useless. After Enron, FERC established a strict 
standard that is accumulated according to well understood 
rules. It is turned in in Excel for those of you who are not 
computer geeks, that is about the easiest data transformation 
method known to man. At that point anyone, anywhere in the 
world can go look up that data. That is a complete set of data.
    If that's good policy for electricity, how can it be bad 
policy for oil?
    Senator Cantwell. What about the discovery of when this 
information was reclassified for Vitol, what you're saying you 
found out through the newspapers instead of through the data 
that was made available. Why should we be concerned about that? 
Why should we be concerned about this large a player in the 
market and not knowing until it was reclassified?
    Mr. McCullough. Fundamentally, as an economist, when you 
teach ECON one or two, you're very worried about the question 
of oligopoly. Paul Samuelson told us we have to have many 
sellers and many buyers. By the way he also told us we have to 
have transparent information.
    If we had the price of oil being set by a half dozen major 
players, oligopolous, we're very concerned. If it's set by 
10,000 dentists, we're perfectly happy. At the moment we really 
have very little to say on this.
    The CFTC COT report uses their own form of market 
concentration. It's not wrong or right. I criticized it a bit 
the other day for not being HHI, the standard used in the rest 
of the regulatory community.
    But the fact of the matter is I was surprised to find what 
a large scale Vitol had. I could have guessed backward that 
some people do have that large position by reverse engineering 
some of their numbers. But the fact of the matter is any trader 
on the floor of the NYMEX has a pretty good idea of who's 
playing. They had that information.
    The only people who didn't have that information are 
sitting in this room. That's the wrong answer.
    Senator Cantwell. But what are the consequences of that 
large trading position, of somebody who controls that large a 
position in the oil market?
    Mr. McCullough. Simply stated an oligopolist has market 
power. He is able to change prices with his decisions.
    Senator Cantwell. To drive the market.
    Mr. McCullough. Yes. You know, Mr. Eagles noted that the 
spot was a leading indicator on force. This is certainly not 
news. But the key here is that Vitol has an enormous spot 
position. This is what they've done traditionally.
    Once we see that they have that enormous position then they 
are able to execute gambits that can move the entire forward 
curve. I've focused several times on Enron. The July 2001 Enron 
exploit at the Henry Hub Natural Gas Market, easily one of the 
most liquid markets in the world, where they ran an F spot out 
in the natural gas market that they were able to change the 
forward curve.
    Then they sold on the forward curve, made enough money that 
they were able to pay off the spot traders who had lost money. 
This is an example of market power. We need the data to be able 
to identify people who are doing this sort of things.
    Now we've no evidence that Vitol could have done it, would 
have done it, but we do know that whenever we see such a large 
position concentrated in a few players, they have the 
potential. We need to test whether the data is supporting that 
potential.
    Senator Cantwell. Isn't this what we saw with Amaranth too? 
Didn't we see a large position in natural gas from a hedge fund 
and was able to drive the market?
    Mr. McCullough. Actually we saw two players fight over the 
setting the price of natural gas. That's exactly the problem. 
Of course the data came out only in the course of the 
congressional investigation.
    Senator Cantwell. Which brings me to the question, Mr. 
Gheit, maybe you can answer. Should we be monitoring the 
unwinding of the commodities market from these big players, 
Lehman and AIG, because of--so we understand exactly what's 
transpiring in the unwinding of these positions?
    Mr. Gheit. Absolutely. But you also have very sophisticated 
products that all the derivatives and things that pulls things, 
so it is not going to be clear enough what else they have 
there. But obviously more transparency would educate us, would 
tell us exactly where they were hiding all of the skeletons.
    But we need more transparency. We need more regulation. We 
don't want to stifle them, but we just want to keep them under 
control.
    Senator Cantwell. Mr. Chairman, I am a big fan of markets 
and markets functioning correctly. We have a Northwest economy 
that has done quite well by people investing in a lot of 
companies there. But we need to have transparency.
    I think Mr. McCullough and Mr. Masters reports show that we 
aren't collecting all the data that we need to collect. The 
data that we are collecting, we aren't even collecting it 
properly that when we aren't collecting the positions and 
understanding who the major players are, that's only half our 
challenge. The other half of the challenge, once you know who 
the major players are, since so many of these individuals are 
now involved in holding physical supply, or taking physical or 
being part of buying physical supply.
    We need to match up the information that we're getting from 
the CFTC with other information from the Energy Information 
Agency and others. I certainly plan on pursuing legislation on 
data collection to make sure that this is very clear and that 
the agencies will work together so that this is not a puzzle 
for the American public and that they know that we are 
protecting the markets and making sure that there is adequate 
transparency in this country so markets can function properly.
    So I thank the chair.
    Senator Dorgan. Senator Akaka.
    Senator Akaka. Thank you very much, Mr. Chairman. It's 
great that this energy committee has been holding hearings on 
this, especially coming from Hawaii. As you know we're 98 
percent dependent on oil. We have the highest prices on oil 
there. On the Island of Molokai we're paying over $5 per gallon 
at the present time, even before that.
    We pay for power there instead about 40 cents per kilowatt 
hour. So we really under stress when the prices rise in a 
country and it impacts Hawaii, especially. For these reasons 
I'm very interested in what our witnesses have to say today. To 
try to get to understand speculation in the oil markets and oil 
is a commodity that we depend on a lot in Hawaii.
    Let me ask this question to Mr. Newsome. I just want to 
receive your evaluation on some of the comments that were made. 
This was taken from an article published in Financial Times, 
September 6, 2008, by Ralph Atkins in Frankfort. This has to do 
with comments that were made by Mr. Trichet, who's the 
president of the European Central Bank at the recent ECB 
conference in Germany where he argued that it was ``reasonable 
conjecture'' that financial investors had distorted commodity 
markets leading to prices above those justified by 
fundamentals, supply and demand factors.
    In particular he said that financial investors encourage 
sellers to accumulate inventories of delayed production so as 
to take advantage of expected higher prices. I'm asking you for 
your comments and your evaluation of the comments of Mr. 
Trichet.
    Mr. Newsome. I would address that a couple of ways, 
Senator. One, particularly in the energy sector, we have seen 
no collection of that underlying physical product that would 
lead us to believe that any one financial players or others are 
trying to manipulate the market.
    Then second, when you talk about markets, you know, there 
are a number of markets, the cash market, the over the counter 
market, the futures market. Certainly I can only speak relative 
to the futures markets because that's what we do. That's what 
we have oversight for.
    The futures markets are the most transparent component of 
the markets in general. The CFTC as well as the exchange has 
the view of all the major players within the market. I don't 
think it should be unusual that the only two entities who have 
access to the exchange information have said since day one, 
that these higher prices were not being driven by speculators. 
I think we have the information coming out now that certainly 
proves that case.
    With regard to over the counter markets, we've also said 
since day one that we think there should be more transparency. 
We've supported transparency of those markets. We were very 
glad to see the CFTC in their report call for that kind of 
transparency in those markets as well.
    Senator Akaka. Let me ask, Mr. McCullough whether you have 
any comments also on that, on Mr. Trichet's comments.
    Mr. McCullough. I grew up on LaSalle Street, so I happen to 
think very highly of the Chicago exchanges. But you know you 
guys don't do spot. So the question of whether we would see a 
spot for a gambit doesn't really show up on your desk.
    When Enron ran the spot for a gambit in 2001, some of that 
showed up on your exchange. But most of it probably didn't. So 
you'll have no doubts using the smartest people around, it's 
sort of hard for you to watch the whole world.
    You know, I'm banging this drum for getting this data in 
front of you, but I need to have Dr. Harris have a full data 
kit. His agency prosecuted that spot for a gambit in July 2001. 
Thank you very much. But they couldn't have done it without the 
full data set.
    Senator Akaka. Yes, Mr. Eagles.
    Mr. Eagles. Could I just mention about one large position 
which actually hasn't been mentioned here at all. That is 
earlier this year when prices hit their peak King Fahd of Saudi 
Arabia basically said, enough is enough and ordered Saudi 
Arabia outside of OPEC to increase output by about 700,000 
barrels a day. From the point that started to hit the market 
prices started to fall. That's a very large increase in supply. 
After this latest OPEC meeting we still have yet to--the only 
comment we've had from Saudi Arabia is that they will continue 
to meet demand for their crude oil.
    It's a very large increase in supply. But I've also, in 
terms of this stock argument that has been mentioned, before 
joining JP Morgan in September, I worked at the International 
Energy Agency. I've been very actively involved in data 
collection on the fundamental side.
    One thing that we do not have is information on stocks in 
round about 45 percent of the consuming world. It is a dramatic 
lack of data that we have. It's extremely important that we try 
to improve transparency, not just on the financial side, but 
also on the fundamental side which I think also echoes Senator 
Cantwell's comments.
    It's really important that we have every single angle of 
this.
    Senator Akaka. Thank you for your responses. Mr. Harris, I 
want to thank the CFTC for their efforts to provide the staff 
report. According to Commissioner Dunn, the data collected from 
this survey highlights the need for greater transparency to 
fully understand the activities of swap dealers and the effects 
that their activities have on the markets.
    Furthermore Commission Chilton recommends providing 
specific statutory authorities allowing the commission to 
obtain both data regarding over the counter transactions that 
may impact exchange traded markets. Collecting this data will 
allow more transparency in the market, of course. But what is 
your evaluation of this proposal and will the increase in 
transparency be useful?
    Mr. Harris. I can perhaps benchmark to Mr. Eagles' comment. 
He mentions that we have no data on 45 percent of the macro 
consumption around the world. The comparative blind spots that 
the CFTC faces minimal when we did our survey for this 
particular swap, it wasn't a mere survey where we picked a 
random event. We surveyed 100 percent of anybody who's trading 
swaps and index traders in our market.
    We then, therefore, got 100 percent participation rate, 
cross referenced all their responses with the actual data we 
put out in our index reports for the Ag commodities. So from 
that standpoint this data in this report is 100 percent 
comprehensive nature of what goes on in index trading in our 
markets. So to that regard, I believe this is a good step to 
sort of dispel some of these myths that may be out there that 
what we don't know might be hurting us in some way.
    In the first 6 months of this year, dispelled a myth that 
index traders were actually driving prices up. These are 
traders that were actually reducing positions in our market. So 
I think the nature of the recommendations we have in the report 
are to that extent. We continue to compile this data. We have 
now gotten into the end of July and end of August data. We 
continue to process that data and analyze that data.
    I think that also points to one of the resource constraints 
that we have. We took more than 40,000 or 4,000 man hours to do 
this report. This took almost 10 percent of our CFTC staff to 
produce this report last month.
    This is not an instantaneously generated report. We have to 
take unprecedented levels of looking at over the counter 
positions, converting those positions into what we would 
consider futures equivalents because the over the counter swap 
market is by definition a swap is a very tailor made security. 
To standardize all those things take quite a bit of manual 
interpretation and analysis to produce a report.
    So we do have strong data. We have comprehensive data. I 
think we plan on continuing collecting data.
    Senator Akaka. Thank you. Mr. Chairman, may I ask another? 
Yes? Thank you.
    I'd like to ask Mr. Gheit. Commissioner Chilton and I 
mentioned Commissioner Chilton in that report he issued a 
dissenting statement on Mr. Dunn's. But Mr. Gheit, Commissioner 
Chilton suggests that at a minimum one of the Administrative 
steps that the CFTC should take is to re-analyze the practice 
of issuance of non-commercial hedge exemptions.
    What are your thoughts on the current practice of issuing 
non-commercial hedge exemptions? Should there be a special 
category of hedge trade that differentiates the business done 
to facilitate commercial traders like airlines and speculative 
traders like hedge funds?
    Mr. Gheit. What I suggested 6 months ago is that we have 
two schemes. One for the commercial hedgers, should be the 5 
percent. But non-commercial hedgers, the national players which 
are needed to facilitate transaction, we should have them up to 
50 percent.
    We should also put trading limit. Suppose the market knew 
only 10 percent or 15 percent of the financial players of the 
total volume. We cannot make it 300 percent or 400 percent or 
500 percent.
    So therefore we will need speculators. But we don't need 
too much speculation because they will control, ultimately will 
control the market. You cannot have self regulated market that 
will behave when there are billions of dollars at stake. It's 
impossible.
    The street is in the business of making money, not making 
friends.
    Senator Akaka. Mr. McCullough, would you care to make any 
comment on that?
    Mr. McCullough. You know I'm not smart enough to.
    Senator Akaka. Alright.
    Mr. McCullough. So I'll hold my peace on something that I'm 
not an expert on.
    Senator Akaka. Thank you. Thank you very much, Mr. 
Chairman.
    Senator Dorgan. Senator Akaka, thank you very much. I'm 
going to come back just to a couple of additional questions. 
Dr. Harris, again the report that you issued states this 
preliminary survey is not able to accurately answer and 
quantify the amount of speculative trading occurring in the 
futures markets. Explain that to me if you would again?
    Mr. Harris. Yes, the report in particular was determined or 
the goal of the report is to quantify the amount of commodity 
index trading in these markets. So my testimony actually 
included data from our large trader reporting system that 
actually does identify every trading position inspected of 
positions. So the testimony and the graph that I provided there 
actually shows that non-commercial speculative positions have 
been coming down all year as well.
    Senator Dorgan. So you are able to accurately answer and 
quantify the amount of speculative trading occurring in futures 
markets?
    Mr. Harris. We have been able to quantify them to the 
extent that we identify a trader and classify them.
    Senator Dorgan. Right.
    Mr. Harris. The report in particular didn't take that 
comprehensive view.
    Senator Dorgan. You indicate but if one is not classifying 
them correctly or your classification system is a quarter 
century old and weak and not particularly applied appropriately 
or monitored appropriately than that would be a problem, 
wouldn't it? So the question I would ask about classification. 
The CFTC has indicated that trader classifications have grown 
less precise over time. The classification system is weak.
    So you appear to say with certainty something that appears 
to me to be not very certain if your classification system is 
weak.
    Mr. Harris. I would say we're not 25 years behind the 
times. This Commitment of Trader's report supplemental that we 
do for index traders was just started as a pilot program a year 
and a half ago. So in that regard although we've seen actually 
quite----
    Senator Dorgan. I understand.
    Mr. Harris [continuing]. A few changes within that 
category. I think that's one of the assessments that we have in 
evaluating that particular report on whether it's providing 
useful information. We've seen that it's been extrapolated into 
other uses. We've provided the report originally for the 
agricultural community to feel better about who's trading in 
their markets, taking one step additional and now we're looking 
at options in the report that we have and recommendations for 
perhaps refining that looking forward.
    Senator Dorgan. But I'm trying to understand, is the 
classification system weak or do you feel?
    Mr. Harris. I would say I'm very confident in the 
classifications that we've made.
    Senator Dorgan. Let me ask the question then about the 
reclassification that was done in July that we discussed 
earlier. Some of us were pretty surprised about that. It 
appeared to me to be buried. A couple enterprising reporters 
dug it out and found it.
    But it was a very substantial reclassification, is that 
correct?
    Mr. Harris. Yes, we reclassified a trader in mid-July. I 
wasn't actually surprised. There's a number of people that 
follow our commitment of trader's reports.
    We put out when we do reclassify traders, an announcement 
in the Commitment of Trader's Reports. So people that were 
following those reports would have had access to that.
    Senator Dorgan. How large a difference in the commercial 
verses speculative break down would that one reclassification 
have made?
    Mr. Harris. The reclassification moved approximately 12 and 
a half percent of open interest from a commercial entity to a 
non-commercial entity.
    Senator Dorgan. So one reclassification affected over 10 
percent of the assessment of what is commercial verses non-
commercial?
    Mr. Harris. In our publicly reported data, yes. I want to 
point out though that the Commission actually had record of 
that reclassification a year prior. So as an entity we were 
doing monitoring and surveillance on that entity that was 
reclassified. So we knew the positions of that entity. We were 
updating that position.
    The surprising nature of that entity actually, the 
reclassified entity was not short in the futures market for 
almost the entire year. So the effect of that actually was to 
move less or more selling pressure into the speculator 
category.
    Senator Dorgan. How did that particular entity get the 
classification that it had before you reclassified it?
    Mr. Harris. The specifics of that I think are market 
surveillance team took on, each trader fills out a form with 
the CFTC and declares themselves the type of trader that they 
deem to be. We follow that and follow up with those and audit 
those particular reports.
    Senator Dorgan. Do you know when that particular trader was 
originally classified?
    Mr. Harris. I do not, no. I do know that August 2007 we 
have record of that particular position moving from one entity 
to another. So the market surveillance was aware of the 
position size.
    Senator Dorgan. Let me ask, you know, let me make a couple 
brief comments if I might. The MERC, NYMEX, the futures market 
itself, all very important elements of having the opportunity 
to hedge risk between producers and consumers of a physical 
product, perfectly reasonable and important to do. So when 
those of us who discuss speculation talk about the evils of 
speculation, speculation is necessary and speculation is a part 
of what makes a market work.
    But excess speculation, there are books written about it by 
the way. I could give you some names of books written about it. 
Unbelievable run up in excess speculation in various markets 
over centuries as a matter of fact, starting with tulip bulbs 
or perhaps even beyond.
    That kind of activity can ruin markets and break markets 
and so the first point I want to make is that this is not about 
whether speculation is an element that is worthy or unworthy. 
We will always have, I mean, someone who wishes to hedge is 
probably going to have someone who wishes to speculate on the 
back end of that hedge of a physical trader. So that's 
important to understand.
    But it's also a case that most people don't understand what 
is at work in the regulatory function here because it is so 
byzantine and complicated. You've issued all these no action 
letters. I mean I've been critically of the CFTC as you know. 
You no doubt have read that. I'm critical of a lot of 
regulators who decided not to be very aggressive in order to 
please the folks that appointed them.
    We're now bearing dramatic results as a result that are 
going to cost this economy a substantial amount of money and 
the American people for that matter as well. The, Dr. Harris 
the reason I have focused on these issues with you is I'm 
reading from a Commissioner Chilton's dissent. He says 
specifically, ``I have expressed doubts regarding the amount 
and type of data received in connection with the special call 
survey.'' I don't have the foggiest idea whether you have good 
data or not. I know one Commissioner expresses reservation 
about what kind of data you've received.
    He points out, which I have known of course, the 
international monetary fund released a report in May saying it 
appears that speculation has played a significant role in the 
run up of oil prices. I don't quote Alan Greenspan often 
because we've had such significant disagreements. But Alan 
Greenspan in August said, ``Financial speculation did play a 
significant part in the rapid increase in oil prices.''
    Yet what I find when you explore this issue you have some 
interests who are determined to say no, speculation didn't 
happen here in any excess degree. This is supply and demand, 
market forces, despite the fact and Dr. McCullough, I used to 
teach a little Economics as well. I would teach freshman in 
college the laws of supply and demand, how the curve works and 
so on.
    What has happened in a number of the charts that you 
showed, Dr. McCullough and some others, what has happened, 
these markets have run in ways that are not explainable given 
traditional supply/demand relationships. So that's why I think 
there's concern here. It is the case, I think, and I feel that 
at the end of today, no one has explained to me the so called 
fundamentals'' or supply and demand relationships that 
justified a doubling of oil prices. The consequences of which 
were very significant for our country.
    No one has described to me any plausible explanation other 
than excess speculation for the doubling of the price of oil. I 
would come back, finally, Dr. Harris. I'll give each of you a 
chance to respond to this, to the EIA chart. The EIA chart, I 
mean, Mr. Eagles, you talked about tight refining and so on.
    As I said we spent $100 million a year for the EIA. They 
got folks that all they do, all day long, is evaluate what's 
going to happen. What are the fundamentals? What's the supply/
demand? What do we expect is going on in the world?
    Then they plot a line and they say that's what we think is 
going to happen. The red line is what really happened. That 
many people can't be that wrong for that long without something 
else explaining it. It just seems to me that's what's at work 
here.
    I just looked at the clock. I have to be somewhere in about 
5 minutes. But if there's someone who won't sleep this evening 
if I don't recognize a final comment, I'd certainly want to 
call on you. Is there someone who needs to say additional----
    Mr. Harris. I'd like to make a comment actually.
    Senator Dorgan. Dr. Harris, yes?
    Mr. Harris. From the CFTC's standpoint, I mean we are on 
the market looking at these positions everyday. It's not for 
lack of trying. I think our Commissioner and our Chairman have 
been very forthcoming in saying we'd like to, sort of, have 
dire consequences for anybody who's found manipulating or doing 
anything nefarious in our markets.
    We continue to do that. We continue to look. This is one 
report that looks deeper than we've ever looked before. We've 
got recommendations in there as an affirmative sort of action 
to be able to try to do more and uncover more, to provide more 
information for the marketplace.
    Senator Dorgan. Dr. Harris you're here on behalf of the 
Commissioners. I appreciate very much your testimony. You've 
been very forthright. I hope you will accept my forthright 
statement.
    I think this has been a weak regulatory function, a very 
weak function. I think in some cases a description of being 
willfully blind in some areas. I don't mean that to injure a 
lot of undoubtedly good, qualified people who work on the staff 
of the CFTC, but I do believe this regulator has a lot to 
answer for. I do.
    Let me say to all of you, some of you've come a long 
distance to be a part of this. I appreciate your contribution 
to the discussion. As you know this discussion will begin 
likely next week on the floor of the Senate as well as we take 
up a good number of energy pieces of legislation.
    So thank you for your time and the work that all of you 
have done. This hearing is adjourned.
    [Whereupon, at 4:40 p.m. the hearing was adjourned.]
                                APPENDIX

                   Responses to Additional Questions

                              ----------                              

       Response of Fadel Gheit to Question From Senator Murkowski
    Question 1. How do you define speculation? And, is there a 
difference between speculation and manipulation?
    Answer. Speculation, in my view, is making a bet on a certain 
outcome not based on complete, correct, or accurate information. 
Speculators buy or sell future oil contracts betting that the price 
will be as they predicted. Speculators do not deliver or receive the 
oil in the contract, but settle their short position on expiration 
date, and usually roll over their long position further. Oil 
speculators are not investors. Future contracts become worthless after 
their expiration date.
    Excessive speculation could lead to market manipulation. When large 
investment banks make oil price predictions, they usually influence the 
future trading and skew the price in line with their predictions. 
Investment banks, which are also large oil traders, clearing houses, 
brokers, and owners of oil assets, face serious conflict of interest 
issues. They can influence oil prices as their price forecast becomes 
self-fulfilling prophecy, which amounts, in our view, to market 
manipulation.
      Responses of Fadel Gheit to Questions From Senator Domenici
    Question 1. What would happen to the price of oil if non-
commercials were not allowed to participate in the market?
    Answer. I believe that barring non-commercial players from trading 
oil futures would more than likely reduce the oil price volatility. It 
would also reduce the daily trading volumes, which would mean less 
revenues and profits for the exchanges. The oil markets operated 
efficiently for years before the exchanges were established and before 
speculators poured huge sums of money, estimated at over $350 billion, 
in oil futures. Given today's advanced telecommunications, I believe 
the oil markets could operate probably more efficiently and with much 
less volatility than in recent months, when future oil contracts held 
by speculators significantly exceeded those held by commercial hedgers.
    Question 2. In your testimony you state that oil prices have 
declined recently despite supply disruptions and conclude that this is 
evidence that speculation has disconnected oil prices from market 
fundamentals. You also state that demand was reduced significantly this 
summer in response to higher oil prices. And that high oil prices 
previously reduced demand in most countries except China, India and 
developing countries.
    Doesn't reduced demand and significantly lower demand expectations 
provide a logical reason for lower oil prices, despite short-term 
supply disruptions?
    Answer. The oil markets are not free markets, since more than 50% 
of the world oil supply is controlled by OPEC and Russia, while demand 
is skewed by taxes, as in the case of the U.S., Western Europe and 
Japan, and by subsidies, as in the case of OPEC, China, India and many 
developing countries.
    Oil prices were in a free fall since their peak above $148/b in 
early July to $92/b two weeks ago, before they turned sharply higher 
after the financial bailout plan was announced, including a $25/b 
surge, the largest ever, on Monday, September 22, 2008. In fact oil 
prices were rising in the first half of the year, despite slowing world 
demand and growing concerns about possible global recession.
    On the other hand, the precipitous drop in oil prices, $56/b, or 
38%, in the nine weeks from mid-July to the third week in September, 
came despite events that caused, or were expected to cause, supply 
disruptions, including:

   The Russian invasion of Georgia
   The shutdown of the Turkish pipeline, after explosion, which 
        disrupted the flow of almost one million barrels of crude oil 
        per day from Azerbaijan for ten days.
   The shutdown of Gulf of Mexico production due to the 
        hurricanes
   Rebels' attack on oil production facilities in the Niger 
        Delta.
                                 ______
                                 
     Responses of James Newsome to Questions From Senator Murkowski
    In your testimony you indicate that CME supports the CFTC's 
recommendations to encourage greater clearing of OTC transactions as a 
means of increasing market transparency and integrity.
    Question 1a. Can you please explain the clearing process and [how] 
this process would enhance market integrity and transparency?
    Answer. Eligible participants who enter into OTC transactions have 
the risk that their counterparty will not satisfy its obligations under 
that contractual agreement. However, by submitting an OTC transaction 
to a clearinghouse, a counterparty to an OTC transaction no longer has 
concerns about the credit risk of its initial counterparty and instead 
can enjoy the guarantee of financial performance offered by the 
clearinghouse. Once a transaction has been accepted for clearing by a 
U.S. futures clearinghouse, which is highly regulated by the CFTC, the 
clearing of that transaction is then subject to CFTC review and 
oversight. Thus, for example, transactions executed in the OTC market 
that are accepted for clearing under the NYMEX ClearPort Clearing 
business service are converted into regulated futures and options that 
are subject to large trader reporting to the CFTC as well as to 
position limits and position accountability levels, which enhances 
market integrity and transparency.
    Question 1b. Would adding a clearing process to the swaps market 
add integrity and transparency?
    Answer. We do believe that greater use of a clearing process for 
swaps would promote both market and financial integrity and would 
increase the transparency of these transactions to the regulator.
    Question 2a. A number of individuals have suggested that a 
persistent flood of net long investors in the commodities markets have 
driven up the prices.
    Does this view accurately reflect the basic principles of futures 
trading-for every buyer there is a seller and for every seller there is 
a buyer?
    Answer. In any transaction, there is a buyer and a seller. What is 
important to understand is that these assertions, which were being made 
by a handful of commentators who were relatively unfamiliar with 
futures markets, were based on theoretical extrapolations and were not 
supported by any actual data. The reality, as definitively established 
by the CFTC ``Staff Report on Commodity Swap Dealers & Index Traders 
with Commission Recommendations,'' is far different. Reviewing data for 
the first six months of 2008, the CFTC staff found that the ``aggregate 
long positions of commodity index participants in NYMEX crude oil 
declined by approximately 45,000 contracts during this 6 month period . 
. .'' (emphasis added.) Based on the data reviewed, this amounted to an 
approximately 11% decline.
    Question 2b. And can you explain how an increase in net long 
positions increased the price of crude oil?
    Answer. As noted above, the premise of a recent increase in net 
long index positions has been soundly refuted by the recent CFTC staff 
report.
    Question 3. Does your CME research indicate a correlation between 
commodity prices and the participation in various markets by hedge 
funds, pension funds and various non-commercial speculators?
    Answer. NYMEX's Research Department has conducted extensive 
analysis on the role of speculators in our energy markets. These 
evaluations began in 2004 and included reviewing data from 2007 through 
to the middle of 2008 for our core crude oil and natural gas futures 
contracts. We found no evidence to support harmful impacts on price or 
price volatility by non-commercial participants. Our analysis instead 
disclosed that non-commercial participants are price takers. In other 
words, they do not initiate movements in price or otherwise set prices, 
but rather follow price movements that are generated by commercials. In 
addition, our data indicate that trading by non-commercials or 
speculators has had a moderating or braking effect on price volatility 
in the products that were the subject of the study.
    Other findings also support our conclusion that speculators are not 
influencing the futures prices. First, non-commercial participants 
historically have represented a smaller percentage of the energy 
futures markets than commercial participants. Second, non-commercial 
participation consistently has been relatively balanced between longs 
(buys) and shorts (sells), so there has not been, for example, a 
disproportionate push on the long side of the market, which would cause 
the price to increase. Third, non-commercials generally are not in a 
position to influence final settlement prices because they do not own 
the physical commodity and therefore, must liquidate their open futures 
positions prior to expiration of trading of the applicable expiring 
contract month.
    Lastly, with hundreds of commercial participants and instantaneous 
price dissemination, any short term ``speculative'' price impact that 
creates a discrepancy between the futures price and the price level 
that would be anticipated on the basis of market fundamentals in the 
underlying physical commodity market would be expected to be met in 
reasonably short order with an equally strong ``commercial'' reaction. 
Thus, if short-term prices in a futures market should happen to move in 
a direction inconsistent with actual market fundamentals, a vast number 
of participants, including energy producers, wholesalers and end-users 
(as well as government agencies) would respond to ensure that prices 
return rapidly to where the industry consensus believes they should be 
to reflect supply and demand fundamentals. Questions from Senator 
Domenici:
     Responses of James Newsome to Questions From Senator Domenici
    In your testimony, you reject Mr. Masters' analysis and conclusions 
that the increase in net long investors has driven up the price of 
crude oil.
    Question 1. Can you summarize the most important defects that you 
see with Mr. Masters' analysis, which in your opinion make his 
conclusions incorrect?
    Answer. As further detailed in our written testimony, earlier this 
year Mr. Masters began a cascade of charges that commodity index funds 
were responsible for unnatural price escalations in commodity markets, 
particularly for crude oil. While Masters is dismissive of market 
fundamentals, we have emphasized that crude oil is truly a global 
commodity and that prices in crude oil futures markets are primarily 
driven by the market fundamentals of the far larger physical market for 
the crude commodity.
    On September 10th, Mr. Masters updated his so-called ``analysis,'' 
including his allegations about crude oil market participation, price 
determination and performance. On September 11th, the CFTC released a 
detailed report that included definitive data and analysis regarding 
index-long market participation in a group of commodities, including 
crude oil. Unlike Mr. Masters who guessed at or simply assumed the 
facts, the CFTC report by contrast provided definitive and unambiguous 
information as to whether the index funds were increasing or decreasing 
their positions in a manner that could support Mr. Masters' claims. In 
addition, the CFTC report provided futures price information that 
enabled readers to perform the equivalent analysis that Mr. Masters 
purported to perform in reaching his conclusions. The information the 
CFTC provided also was sufficient to enable readers to evaluate the 
methodology Mr. Masters purported to perform in reaching his assertions 
about index-long participation in commodities markets.
    The unambiguous result of the CFTC analysis and its direct 
implication is that Mr. Masters was wrong about everything; about 
participation by index-longs, about the price impacts from index-longs, 
and about how to even count participation by index-longs. Mr. Masters 
has successfully captured a number of headlines by trumpeting the 
supposedly massive inflow of funds by index traders into the regulated 
futures markets. Yet, as detailed in the CFTC report, index trader 
positions were actually declining during this period.
    Question 2. In your opinion, does the fact that a vast majority of 
speculators do not take physical delivery of crude oil, make a 
difference in how Congress should view the impact of speculators in the 
commodity markets?
    Answer. To be clear, because speculators lack the wherewithal to 
make or receive delivery of a physical product, no speculator can take 
physical delivery of crude oil on a futures market. On the other hand, 
the vast majority of positions in crude oil held by commercials do not 
go to delivery of the physical oil. Futures markets are structured to 
provide hedging and price discovery services and are not intended to 
provide delivery of the physical product as a routine matter. Perhaps 
the most salient consideration for Congress concerning speculators 
being unable to participate in the delivery process is that speculators 
must sharply reduce their open positions as the termination of trading 
approaches in an expiring contract month. Consequently, speculators 
have a reduced ability to have any impact on the determination of the 
final settlement price for the expiring contract month.
    Question 3a. Some view swap dealers as illegitimate users of the 
CFTC's hedge exemption.
    How do you view swap dealers with regard to their use of the hedge 
exemption?
    Answer. Swap dealers do have legitimate market price risk exposure 
as a result of their swap activity. Consequently, we do believe that 
the CFTC was warranted in permitting swap dealers to apply for hedge 
exemptions for their corresponding futures positions on CFTC-regulated 
exchanges, while preserving the discretion of exchanges to review such 
applications on an individualized case-by-case basis.
    Question 3b. In your opinion, are swap dealers fairly characterized 
as commercial, non-commercial, or some other type of market 
participant?
    Answer. As noted in the recent CFTC staff report, swap dealers 
serve an important market role by acting as market makers both to 
commercials and to speculators who are seeking to enter into swap 
transactions. We agree with the CFTC report that the lines between 
commercial and non-commercial have been blurring in recent years, 
including with respect to the role of swap dealers. Thus, as noted in 
that report, a number of swap dealers now have acquired physical 
facilities and thus have the wherewithal to participate in transactions 
in the physical cash commodity market. Accordingly, we believe that 
there may be merit in further delineating the traditional categories 
that have been used by the CFTC in its Commitment of Traders reports.
    Question 4. Do you agree with the CFTC's recent report that 
recommends that we do not have enough data to draw hard and fast 
conclusions about how to best categorize swap dealers for the purpose 
of the exemption?
    Answer. The CFTC staff collected an enormous amount of data in 
connection with their report. Our understanding is that the real 
difficulty in categorizing swap dealers may be less a matter of the 
quantify of the data but rather that a good number of swap dealers are 
involved in a variety of transactions and thus may not fit neatly into 
the traditional commercial and non-commercial categories that have been 
used by the CFTC for its Commitment of Traders Reports to the public. 
We believe that the CFTC's preliminary recommendation calling for more 
delineated trader classification categories has some merit and warrants 
further study.
       Responses of James Newsome to Questions From Senator Akaka
    You testified that transparency and disclosure of trading and 
position information to a regulator will deter manipulation of the 
market. Commissioner Chilton recommends providing specific statutory 
authorities allowing the commission to obtain data regarding Over-The-
Counter (OTC) transactions that may impact exchange-traded markets. 
Going a step further, this data will link a bank's hedge to a swap, 
thereby allowing more transparency.
    Question 1. What is your evaluation of this proposal?
    Answer. In calling for additional data to be obtained regarding OTC 
transactions, Commissioner Chilton's proposal is similar to several of 
the preliminary recommendations suggested by the CFTC in its recent 
report. We believe that it is useful to consider a number of approaches 
regarding the data to be obtained and regarding the use of such data in 
making OTC activity more transparent to regulators, and we are 
committed to working with Congress to promote transparency of OTC 
transactions to the CFTC.
    Question 2. In his testimony, Mr. Gheit recommended that non-
commercial hedgers should have a five percent margin, whereas non-
commercial hedgers should have 50 percent. Do you think these margins 
are adequate? If not, why? What margins do you propose?
    Answer. In recent weeks, there has been tremendous upheaval in the 
financial markets. The stock market has declined by more than 12% in a 
very short period and, as has been widely reported, a number of large 
and reputable investment firms have gone out of business or have been 
acquired by another financial institution. Yet, U.S. futures 
clearinghouses have performed extremely well throughout this demanding 
period. So we have serious concerns about mandates being imposed by 
Congress that would interfere with and undermine the core purpose of 
margins in futures markets, which is to ensure the financial integrity 
of transactions executed on or subject to the rules of U.S. futures 
exchanges.
    As to Mr. Gheit's statement, we understand the question to be 
whether non-commercials should have significantly higher margin levels 
than commercials. Given the figures that he is suggesting, we question 
whether Mr. Gheit understands that futures margins serve as performance 
bonds and thus provide a distinctly different function from that 
provided by securities margins. Regardless of the intention underlying 
Mr. Gheit's suggestion, the clear result would be to harm U.S markets 
by pushing volume and liquidity to less transparent and less regulated 
markets overseas. Consequently, by reducing liquidity on U.S.-regulated 
markets, if Congress actually followed through on Mr. Gheit's proposal, 
the ironic result would be that price volatility would actually 
increase.
                                 ______
                                 
   Responses of Robert F. McCullough, Jr., to Questions From Senator 
                               Murkowski
    Question 1. In your report you mention that Enron's market 
manipulation of the Henry Hub futures market in 2001 might be a 
relevant model to understanding the increase in crude oil prices. But 
the Enron case was a situation of manipulation. In your opinion, is 
there a significant difference between market manipulation and 
excessive speculation?
    Answer. ``Excessive speculation'' is a term that doesn't have a 
very solid definition, nor is it a phrase used in the literature. When 
investors base their expectations on the premise that price increases 
will continue forever, this certainly seems excessive.
    Given the current absence of data on spot and forward markets in 
oil, it is not possible to determine if the problem is manipulation or 
unbridled enthusiasm by speculators. There are reasons to be concerned 
that it might be the former. In tulip bubbles http://en.wikipedia.org/
wiki/Tulip_mania speculators tend to hold their positions through the 
boom and the bust. In the Enron-created price excursions during the 
Western Market Crisis of 2000-2001, Enron liquidated its positions 
before the bust.
    A similar story played out in the NYMEX non-commercial positions in 
2008. All in all, non-commercial speculators showed a suspicious 
prescience concerning the unforecasted oil price spike on July 3, 2008. 
Their prescience was all the more surprising since the EIA forecasts of 
supply and demand for the same period were accurate.
    The situation with Hurricane Ike on September 13, 2008 is no more 
reassuring. Prices fell as the hurricane took out 1.3 million barrels 
per day in the Gulf and increased when oil and gas production was 
returned to service (see graph). These anomalies would appear to go 
beyond speculative enthusiasm and verge upon market manipulation.
    Question 2. In your opinion what regulatory policies need to be 
implemented to assure the competitive workings of energy derivative 
markets, including those that are not regulated under the Commodities 
Exchange Act?
    Answer. Thank you for this question. We have had 160 years of 
experience with spot and forward market abuses at the Chicago Board of 
Trade.
    First, shifting from open pit to electronic trading reduces 
transparency. Open pit trading provides a great deal of trading 
information to market participants. The information is asymmetric--it 
benefits exchange members more than the general public--but it is 
available. Attempts to corner the market such as the one that we 
suspect occurred on Monday, September 15 are more difficult in an open 
pit venue because traders can quickly guess where the problem lies.
    Since electronic trading is here to stay, it is important to make 
sure that everyone sees the transaction data. This includes the public, 
decision-makers such as yourselves, and regulators. A good template for 
transaction data transparency can be found in the FERC's Electric 
Quarterly Report (EQR). You can find a detailed description of the 
report and its methodology at http://www.ferc.gov/docs-filing/eqr/com-
order.asp. If the CFTC, etc. had such a weapon in its arsenal, the 
debate on the causes of the recent price spikes would be moot.
    Insiders often argue that transparency is contrary to the public 
interest because it makes collusion easier; and secrecy is needed to 
prevent predatory pricing. Neither argument is justified by history or 
economic analysis. In opaque markets such as the electricity market 
operated by the Province of Alberta, Enron simply gave its market data 
to its fellow conspirators. Making the transaction data secret does 
nothing to prevent conspirators from sharing their data. It only makes 
detection of collusion more difficult.
    Predatory pricing is just as illusory. Most financial transactions 
such as forward markets have no secret cost structure to use in a 
predatory pricing scheme. Where there is production data that might be 
useful in competitors pricing, the market participants are free to keep 
the data to themselves. Their transactions, however, do not identify 
their production costs. Thus I emphasize. . . 
    If transparent transaction data is good policy for electricity, it 
is clearly good public policy in oil, where market concentration and 
inexplicable price changes raise significant doubts that the market is 
functioning efficiently.
    I also believe that one regulatory agency needs to be given the 
mandate to collect all of the data and regulate all of the relevant 
markets. As Lawrence Eagles, of J.P. Morgan Chase said during your 
September 16 hearing, spot markets lead forward markets. Asking the 
CFTC to regulate forward markets without access to spot transaction 
data makes the commission unable to successfully fulfill its 
responsibilities. Posting two policemen on one beat is fine if they 
work together. At the moment, four police walk this beat--the CFTC, the 
FTC, FERC, and the EIA--with inconsistent powers, mandates, and 
information. Their current reports are contradictory and confusing.
    Since the start of the runup in oil prices, EIA forecasts have been 
accurate as to quantities (imports, exports, consumption, and 
international demand) but are wildly inaccurate in terms of prices. If 
there is no problem with oil markets, as the CFTC claims, the EIA is 
incompetent. If the EIA is correct, the CFTC and the FTC are 
incompetent. This is a terribly ineffective solution for market 
surveillance.
    The Enron loopholes of the 1990s must be closed. If the CFTC is to 
regulate forward exchanges it must regulate all transactions. A simple 
solution would be to make forward contracts enforceable only if 
reported to the CFTC. There are many precedents for solutions of this 
type in the U.S. economy from patent law to land ownership. The CFTC 
must be given explicit powers over ICE and the OTC markets.
    Response of Robert F. McCullough, Jr., to Question From Senator 
                                Domenici
    Question 1. In your report, you state that there is a need for more 
reliable data and analytical tools to accurately determine the link 
between market fundamentals and speculation. In your opinion, does Mr. 
Masters' September 10th report change your assertion that there is a 
lack of data to support a conclusion that speculation has been the 
primary factor in the increase in crude oil prices?
    Answer. Market surveillance in the oil markets suffers from a 
paucity of data. Part of the problem is the confusion of missions. None 
of the four police on the beat have a clear and complete mandate or 
access to even minimal levels of data.
    A case in point is the successful corner of the oil market on 
September 15 now under investigation by the CFTC. Such corners occur 
when a market is sufficiently concentrated that one or more players can 
make it impossible for forward contract holders to fulfill their 
contracts. The outcome was a short-lived $25/barrel spike in oil 
prices. Since the October contracts settled at the high price, the 
speculation raised oil prices for a substantial share of U.S. 
consumers. Moreover, the spike adds to an already high level of 
volatility. The CFTC did not know the crisis was coming, nor could it 
have known because the commission has no spot data. It only has partial 
data from ICE and effectively no data from over the counter markets.
    On the other hand, electricity market participants file quarterly 
reports describing all of their transactions. So we have the market 
with a high level of risk with little or no data for market regulators 
and the market with a lower level of manipulation risk with extensive 
data for regulators. It is very possible that the problems in the oil 
market may be the result of inadequate regulatory surveillance and the 
absence of market data.
    Michael Masters's report uses a poorly designed and documented CFTC 
data set to match speculative positions to price changes. At the 
hearing he was severely criticized for relying on this official CFTC 
source. As I remember, Senator Domenici, you were a primary critic. Mr. 
Masters' conclusions mirrored my own, which relied upon a different 
CFTC data source--the Commitments of Traders report. I think an honest 
answer is that this is a case of ``[i]n the land of the blind, the one-
eyed king is blind.'' The CFTC report is poorly designed and 
documented. But it is important to understand that this is all of the 
data the CFTC had until the CFTC report released two weeks ago. Even 
that report was fragmentary and incomplete--ending the month before the 
price spike.
    The question is not whether speculation is bad: speculation is a 
reasonable economic function. The question is whether something was 
wrong with a massive run-up in oil prices this year when fundamentals 
did not remotely provide an explanation for the increase. Mr. Masters's 
work would indicate one possible explanation. With additional data it 
might well be possible to determine if his hypothesis is correct.
    It is important to note that something beyond pure speculation is 
at work, here. During last week's hearing I noted several times that 
the loss of production from Gulf of Mexico drilling rigs was actually 
correlated with a fall in prices. On Monday, as you are aware, about a 
third of the rigs had returned to service, but oil saw an unprecedented 
25% increase. This clearly indicates that policy makers, such as 
yourself, will have work ahead of them in upcoming days.
    It would be very wrong to choke off your investigation before 
assembling all of the data. Today we only have scarce data and 
insufficient manpower, with the result that our ``speculative'' debates 
suffer from inadequate research.
                                 ______
                                 
  Responses of Michael W. Masters to Questions From Senator Murkowski
    Question 1. In your report you discuss the Hunt Brothers attempt to 
corner the silver market, which they tried to do by buying physical 
silver and storing it in a warehouse. i.e. they stockpiled or hoarded 
the commodity. Do you have any evidence that speculators are hoarding 
or stockpiling physical crude oil, or any physical commodities for that 
matter?
    Answer. My understanding of the Hunt Brothers attempts to corner 
the silver market was that they purchased futures contracts in very 
large quantities and took physical delivery against those contracts. By 
accumulating physical silver in addition to their silver futures 
contracts they were able to reduce the deliverable supply and corner 
the market. In doing so this made their large futures position even 
more valuable. Silver prices rose from around $10 to about $50 and when 
the COMEX and CFTC intervened in the silver futures market to force the 
Hunt Brothers to stop accumulating silver futures at that point the 
price of silver (both futures and physical) dropped back to $10 within 
a few weeks.
    I do not have any evidence that proves speculators are hoarding or 
stockpiling physical commodities nor am I in a position to gather such 
evidence as a private citizen. We turned over to the House Energy 
Committee and the CFTC marketing documents from Credit Suisse that 
detail investments in commodities like iron ore which do not have 
liquid futures contracts. In order to hedge these investments, Credit 
Suisse and other swaps dealers would need to buy physical commodities 
and hold them or contract with physical suppliers for the purchase of 
physical commodities.
    Index Speculators do not have to purchase physical commodities in 
order to influence and inflate physical commodity prices. The CFTC 
states on its website that ``In many physical commodities (especially 
agricultural commodities), cash market participants base spot and 
forward prices on the futures prices that are ``discovered'' in the 
competitive, open auction market of a futures exchange.'' (``The 
Economic Purpose of Futures Markets and How They Work--Price Discovery 
or Price Basing,'' Commodities Futures Trading Commission Website, 
http://www.cftc.gov/educationcenter/economicpurpose.html) Platts, which 
is the leading pricing service for the energy industry, describes it 
this way: ``In the spot market, therefore, negotiations for physical 
oils will typically use NYMEX as a reference point, with bids/offers 
and deals expressed as a differential to the futures price. (``Platts 
Oil Pricing and Market-on-Close Methodology Explained--A 
Backgrounder,'' Platts, A Division of McGraw Hill Companies, July 2007, 
page 3. http://www.platts.com/Resources/whitepapers/index.xml) So when 
futures prices go up then physical prices for grain and energy also go 
up because physical prices of these commodities are based off of 
futures prices.
    Question 2. How do you explain the rapid increase in prices of 
commodities that are not traded on futures exchanges or over-the-
counter markets, such as iron ore (up over 200% since 2001), rice (up 
over 400% since 2001) and even onions, which are legally prohibited 
from being traded on exchanges in the U.S. but still are significantly 
up in price this year?
    Answer. Economists refer to this phenomenon as either the 
``substitution effect'' or the ``crosselasticity of demand.'' It says 
simply that if the price of something rises then consumers will shift 
consumption to alternatives, which then leads to an increase in the 
price of the alternatives. So if the price of aluminum goes up then 
manufacturers will choose to substitute steel for aluminum. If the 
price of natural gas goes up then some power plants will choose to burn 
coal to heat the steam that turns the turbines. If grain prices rise 
then people will consume more rice, which will cause these prices to 
rise.
    These relationships are so strong and established that even though 
there is not an existing futures market the people who trade these 
physical commodities are actively aware of where the substitute 
commodities are trading on the futures exchange and adjust prices 
accordingly. In addition, as I mentioned in my answer to question 1, 
there are investors attempting to invest in non-exchange traded 
commodities such as iron ore.
   Responses of Michael W. Masters to Questions From Senator Domenici
    Question 1. In your opinion, do commodities markets require both 
physical hedgers and speculators to function properly?
    Answer. Commodities futures markets were created by and exist for 
physical hedgers. If physical hedgers are not part of the commodities 
futures markets then the markets lose their legitimacy.
    Speculators are also a necessary part of the commodities futures 
markets and that is why I have never argued for the elimination of 
speculation. Speculation is needed in adequate amounts. Too little 
speculation and there will be insufficient liquidity and bid-ask 
spreads will reflect this. Too much speculation and the opportunity 
exists for speculative bubbles to form. That is why we need sufficient 
liquidity but not unlimited liquidity.
    What I have advocated is that speculative position limits apply to 
every market participant in every market that trades derivatives based 
on U.S. commodities. So for instance, I believe that speculative 
position limits are necessary in West Texas Intermediate Crude Oil for 
speculators on NYMEX, ICE and in the over-thecounter swaps markets.
    I agree with the findings of Congress in the 1936 Commodity 
Exchange Act that determined that speculative position limits were 
necessary to protect the commodities futures markets from excessive 
speculation. I see my proposals as simply updating that 1936 Act to 
reflect the modern world we live in.
    Question 2. On the futures exchanges, every buyer has to be paired 
with a seller. In your opinion, from whom were the speculators buying 
earlier this year, and to whom have they been selling?
    Answer. Unfortunately, because I do not have access to the same 
data that the Commodities Futures Trading Commission has access to, I 
am not able to truly determine who is a speculator and who is a 
physical hedger. The reason is that swaps dealers trade with both 
speculators and physical hedgers but they are classified in the 
Commitments of Traders report as ``commercial'' which until recently 
was thought to equate to ``physical hedgers.'' So all of the 
speculation that is taking place through swaps dealers is masked as 
``commercial.'' The CFTC has acknowledged this problem and proposed to 
report a separate swaps dealer category in the COT reports but 
unfortunately that still does not solve the problem because we do not 
know what portion of a swaps dealers positions corresponds to 
speculators and what portion corresponds to physical hedgers. 
Compounding this problem is the fact that we have no COT data on the 
ICE and we have no data on the over-thecounter swaps markets.
    It is for this reason that we have focused on the actions of one 
subgroup of speculators, the index speculators, which we can track to 
some extent using the CFTC's Commodity Index Trader reports. We do not 
know who these index speculators were buying from and selling to for 
the abovementioned reasons but we feel confident given their size that 
their actions had an impact on the marketplace.
                                 ______
                                 
    Responses of Jeffrey Harris to Questions From Senator Murkowski
    Question 1. Some have recommended that an increase in position 
limits is the key to preventing excessive speculation in the futures 
market. What are CFTC current rules on position limits? And can you 
explain the effects of these limits on the market?
    Answer. Most physical delivery and many financial futures and 
option contracts are subject to speculative position limits. Section 
4a(a) of the Commodity Exchange Act (``Act'') provides that, for the 
purpose of diminishing, eliminating, or preventing sudden or 
unreasonable fluctuations or unwarranted changes in the price of a 
commodity, the Commission may impose limits on the amount of 
speculative trading that may be done or speculative positions that may 
be held in contracts for future delivery. Pursuant to this authority, 
the Commission has established specific limits for several markets 
(corn, oats, wheat, soybeans, soybean oil, soybean meal, and cotton), 
which are set out in Federal regulations (CFTC Regulation 150.2).
    Furthermore, Section 5(d)(5) of the Act requires designated 
contract markets to establish position limits or accountability 
provisions to reduce the potential threat of market manipulation or 
congestion where necessary and appropriate. The Commission has adopted 
``Acceptable Practices'' for the establishment of exchange-set limits 
(Appendix B to Part 38 of the CFTC's regulations). Violations of 
exchange-set limits are subject to exchange disciplinary action. 
Violations of exchange speculative limit rules that have been certified 
by an exchange or approved by the Commission are subject to enforcement 
action by the Commission.
    Finally, as part of the 2008 Farm Bill Congress recently added 
Section 2(h)(7) to the Act, which includes a requirement that Exempt 
Commercial Markets establish position limits or accountability 
provisions for contracts that the Commission has determined perform a 
significant price discovery function. The Commission is currently in 
the midst of a rulemaking to implement these amendments.
    Under CFTC Regulation 150.2 speculative limits for the listed 
agricultural markets are set for the spot month, all months and all 
months combined levels. Speculative limits in physical delivery markets 
are generally set at a more strict level during the spot month (the 
month when the futures contract matures and becomes deliverable). 
Stricter limits in the spot month are important because that is when 
contracts may be more vulnerable to price fluctuation caused by 
abnormally large positions or disorderly trading practices. The 
Commission's Acceptable Practices specify that spot month levels for 
physical delivery markets should be based upon an analysis of 
deliverable supplies and the history of spot month liquidations, and 
should be set at a level no greater than 25 percent of estimated 
deliverable supplies. For cash-settled markets, spot month position 
limits should be set at a level no greater than necessary to minimize 
the potential for manipulation or distortion of the contract and the 
underlying commodity price.
    Guidance for the establishment of speculative position limits in 
individual non-spot months and in all-months-combined typically is 
found in Commission Regulation 150.5. In particular, the level is based 
on an ``open interest formula'' calculated as 10% of the average 
combined futures and delta-adjusted option month-end open interest for 
the most recent calendar year up to 25,000 contracts, with a marginal 
increase of 2.5% thereafter.
    Question 2a. The CFTC data reports the actual positions and trades 
of swap dealers and their clients.
    Mr. Harris, can you give the committee a sense of how you collected 
this data and how this data will improve the reporting of these 
positions. How will this improve your regulatory oversight and better 
inform investors?
    Answer. As detailed in the recent ``Staff Report on Commodity Swap 
Dealers & Index Traders with Commission Recommendations,'' the 
Commission used its `special call' authority (Reg. 18.05) to compel 
large swap dealers and index funds to provide information on index 
trading and OTC swaps tied to U.S. futures markets. The responders have 
an on-going obligation under the special call to file these data 
monthly, and if resources become available, the Commission will be able 
to add market transparency about the amount (notional value and 
equivalent futures contracts) of index trading. These efforts will 
better inform investors compared to our existing supplemental report to 
the Commitments of Traders report, which covers only 12 agricultural 
markets and is a less accurate representation of index trading. DMO
    Question 2b. What does this data tell us about the trading behavior 
/ trading positions of swaps dealers?
    Answer. It shows that swap dealers and index funds, in aggregate, 
were reducing long positions in the crude oil futures market as prices 
(and notional values) were moving sharply higher in the first six 
months of 2008. It also shows that significantly more than half of the 
clients for crude oil swaps are commercials in the physical market.
     Responses of Jeffrey Harris to Questions From Senator Domenici
    Question 1. Does the CFTC have data that indicates a correlation 
between commodity prices and the participation in various markets by 
hedge funds, pension funds, and various non-commercial speculators?
    Answer. The Commission has price and position data for all 
categories of participants in commodity markets, including those you 
mention. On May 22, 2008 we presented an analysis of the correlations 
between prices and participant positions for a number of agricultural 
products. The CFTC has also been working with an Interagency Task Force 
that includes the Federal Reserve, the Securities and Exchange 
Commission, the Department of Agriculture, and the Department of Energy 
on a comprehensive study that analyzes this price and position data. In 
July, the Task Force decided to accelerate the crude oil portion of 
that study in order to provide the public with greater transparency on 
the factors underlying the high prices that were seen at that time. The 
reports are attached in their entirety. Both studies found little 
evidence to support the proposition that the position changes of 
traders classified as noncommercial were systematically causing price 
changes. OCE
    Question 2. In the first half of 2008, we saw a dramatic increase 
in the price of crude oil, but there has been a decrease in net 
speculative positions. Can you please explain how such a reduction 
would normally be expected to impact prices?
    Answer. The theory of supply and demand dictates that prices can 
rise with an increase in demand or decrease in supply. We know that the 
supply of futures contracts (the open interest of futures combined with 
options on futures) was growing in the crude oil markets during the 
first half of 2008. Although overall demand for futures positions was 
rising, as you note demand from commodity index funds (speculators, to 
some) was falling over the same period of time. In this regard, a 
reduction in demand might be expected to result in lower prices.
    However, as skeptics of the theory, we also test whether changes to 
net speculative positions affect price changes.\1\ The specific 
procedure we apply is a test for ``Granger Causality'' which seeks to 
determine if events in one period predict events in a subsequent 
period. In crude oil, we tested whether position changes by various 
categories of traders could predict price changes for the following 
day. We found no evidence that non-commercial or other speculative 
position changes preceded price changes during the first half of 2008 
or in the years prior. As our report indicates, there are limitations 
to this test, the most important being that the price changes could 
come on the same day as the position changes rather than the following 
day. Nevertheless, we are working to improve our data in order to 
conduct the same test to determine the intra-day price effects from 
position changes.
---------------------------------------------------------------------------
    \1\ This is a summary of the Interim Report of our Interagency Task 
Force. The full report is attached.
---------------------------------------------------------------------------
    We note that some have argued that demand for futures contracts is 
the same as demand for crude oil. This is simply not true. As noted 
above, the supply of futures contracts was increasing during the first 
half of 2008, but that says nothing about the actual supply of crude 
oil. Similarly, demand for futures contracts only indicates demand for 
hedging risk in the crude oil market, and does not indicate demand for 
crude oil as a product. Since the aggregate supply of and demand for 
crude oil is not affected by futures positions, the theory of supply 
and demand predicts that futures trading will have no impact on crude 
oil prices. OCE
    Question 3. The CFTC's staff report makes several recommendations 
for swap dealers and index traders. What effects will these 
recommendations have on trading in futures commodity markets?
    Answer. The Report makes eight recommendations. These are listed 
below.

          1. Remove Swap Dealers from the Commercial Category and 
        Create a New Swap Dealer Classification for Reporting Purposes: 
        In order to provide for increased transparency of the exchange 
        traded futures and options markets, the Commission has 
        instructed the staff to develop a proposal to enhance and 
        improve the CFTC's weekly Commitments of Traders Report by 
        including more delineated trader classification categories 
        beyond commercial and noncommercial, which may include at a 
        minimum the addition of a separate category identifying the 
        trading of swap dealers.
          2. Develop and Publish a New Periodic Supplemental Report on 
        OTC Swap Dealer Activity: In order to provide for increased 
        transparency of OTC swap and commodity index activity, the 
        Commission has instructed the staff to develop a proposal to 
        collect and publish a periodic supplemental report on swap 
        dealer activity. This report will provide a periodic glance at 
        swap dealers and their clients while simultaneously identifying 
        the types and amounts of trading that occur through these 
        intermediaries, including index trading.
          3. Create a New CFTC Office of Data Collection with Enhanced 
        Procedures and Staffing: In order to enhance the Agency's data 
        collection and dissemination responsibilities, the Commission 
        has instructed its staff to develop a proposal to create a new 
        office within the Division of Market Oversight, whose sole 
        mission is to collect, verify, audit, and publish all the 
        agency's COT information. The Commission has also instructed 
        the staff to review its policies and procedures regarding data 
        collection and to develop recommendations for improvements.
          4. Develop ``Long Form'' Reporting for Certain Large Traders 
        to More Accurately Assess Type of Trading Activity: The 
        Commission has instructed staff to develop a supplemental 
        information form for certain large traders on regulated futures 
        exchanges that would collect additional information regarding 
        the underlying transactions of these traders. This would 
        provide a more precise understanding of the type and amount of 
        trading occurring on these regulated markets.
          5. Review Whether to Eliminate Bona Fide Hedge Exemptions for 
        Swap Dealers and Create New Limited Risk Management Exemptions: 
        The Commission has instructed staff to develop an advanced 
        notice of proposed rulemaking that would review whether to 
        eliminate the bona fide hedge exemption for swap dealers and 
        replace it with a limited risk management exemption that is 
        conditioned upon, among other things: 1) an obligation to 
        report to the CFTC and applicable self regulatory organizations 
        when certain noncommercial swap clients reach a certain 
        position level and/or 2) a certification that none of a swap 
        dealer's noncommercial swap clients exceed specified position 
        limits in related exchange-traded commodities.
          6. Additional Staffing and Resources: The Commission believes 
        that a substantial amount of additional resources will be 
        required to successfully implement the above recommendations. 
        The CFTC devoted more than 30 employees and 4000 staff hours to 
        this survey, which the Commission is now recommending to 
        produce on a periodic basis. Other new responsibilities will 
        also require similar additional staff time and resources. 
        Accordingly, the Commission respectfully recommends that 
        Congress provide the Commission with funding adequate to meet 
        its current mission, the expanded activities outlined herein, 
        and any other additional responsibilities that Congress asks it 
        to discharge.
          7. Encourage Clearing of OTC Transactions: The Commission 
        believes that market integrity, transparency, and availability 
        of information related to OTC derivatives are improved when 
        these transactions are subject to centralized clearing. 
        Accordingly, the Commission will continue to promote policies 
        that enhance and facilitate clearing of OTC derivatives 
        whenever possible.
          8. Review of Swap Dealer Commodity Research Independence: 
        Many commodity swap dealers are large financial institutions 
        engaged in a range of related financial activity, including 
        commodity market research. Questions have been raised as to 
        whether swap dealer futures trading activity is sufficiently 
        independent of any related and published commodity market 
        research. Accordingly, the Commission has instructed the staff 
        to utilize existing authorities to conduct a review of the 
        independence of swap dealers' futures trading activities from 
        affiliated commodity research. This will be reported back to 
        the Commission with any findings.

    Recommendations 3 and 6 address staffing needs so as to enable the 
Commission to fulfill its greatly increased responsibilities.
    Recommendations 1, 2 and 4 focus on increasing transparency by 
making improvements on the reporting of the positions carried by 
commodity index funds. My office views these transparency improvements 
as very important. Though our analyses thus far have found no price 
impact from index activity, we do feel that a more informed marketplace 
will be better equipped to discern information-based trades from those 
that mimic the various commodity indices. Improved transparency 
benefits market participants, observers and policy makers alike.
    Recommendation 5 seeks additional information. Many have questioned 
the hedge exemptions afforded to swap dealers, arguing that these 
exemptions undermine speculative limits that would otherwise limit the 
positions undertaken by commodity index traders. The Commission is 
leaving no stones unturned as it investigates this policy issue.
    Like others, recommendation 7 contributes to transparency by 
establishing a central point for the collection of information about 
commodity swaps. This enables more rapid determination of the extent of 
swaps positions, as well as who holds these positions . This would 
substantially improve our surveillance capabilities. In addition, the 
futures industry has long recognized the benefits from centralized 
management of credit risk. Among those benefits is the enhancement of 
liquidity. When questions arise regarding counterparty ability to pay, 
markets can seize up. A central clearinghouse enables positions to be 
transferred or terminated much more rapidly.
    Recommendation 8 also seeks additional information but is primarily 
putting the industry on notice. The rapid growth of commodity index 
funds raises the prospect that fund operators might become able to 
front run customer orders. The Commission takes this concern seriously 
and is informing industry participants that it will be looking for and 
prosecuting such activity.
       Response of Jeffrey Harris to Question From Senator Akaka
    Question 1. Mr. McCullough testified that there should be an Oil 
Quarterly Report, comparable to the FERC's Electric Quarterly Report 
that contains all transaction by market participants, down to 
locations, quantities, and prices. This Oil Quarterly Report should 
include spot and forward trades for bilateral transactions, at both 
NYMEX and ICE. He feels that having this data ``would allow policy-
makers to proceed on the basis of facts.'' Would it be possible to 
compile this type of report? If not, what should be done to improve the 
transparency in the market?
    Answer. FERC's Electric Quarterly Report (EQR) and the transparency 
provisions of Section 23 of the Natural Gas Act contribute to market 
transparency in their respective wholesale physical markets. It is 
important to emphasize that the EQR and the proposed report on natural 
gas include only physical trades, not futures or financial swaps. Thus, 
they exclude transactions performed or cleared on the NYMEX or cleared 
by ICE. In terms of transparency required for regulation and oversight, 
the CFTC has access to all the futures and cleared swaps transaction 
data from NYMEX and ICE Futures Europe. Provisions proposed for 
Significant Price Discovery Contracts (SPDC) will address some 
information shortcomings already identified by CFTC staff. Furthermore, 
as a result of the special call, the Commission is now collecting 
information on related OTC positions held by large futures traders.
    In terms of providing the public more information on futures and 
swaps, a comprehensive quarterly report of the type FERC publishes is 
not feasible, but the Commission is (per its Recommendation #2) in the 
process of developing a new periodic report based upon the information 
that it is receiving from swap dealers and index funds who are large 
futures traders.
                                 ______
                                 
    Responses of Lawrence Eagles to Questions From Senator Murkowski
    Question 1. In your testimony you mention that there is a link 
between the physical and futures markets. Could you please explain this 
link and its importance? And how if any it is this related to the price 
of crude oil?
    Answer. A prime reason for the creation of futures markets was to 
add price transparency to a murky physical market characterized by 
prices ``posted'' by producers or OPEC pricing. With hundreds of crude 
grades available, all with different delivery points, sulphur content 
and product yield properties, there was little liquidity in individual 
crudes--which in turn increased the potential for price manipulation 
and price volatility.
    The introduction of a standardized futures contract provided a 
focus for trading activity, and therefore greater price discovery. 
Traders of individual crudes are offering their physical material for 
sale at a premium or discount to this futures price when making a 
transaction.
    It is this link that has led to the misperception that futures 
prices can dictate the level of physical prices.
    However, while it is always possible that there could be a day-to-
day influence, basic economics shows it is not possible for futures 
prices to push oil prices away from the price that matches supply and 
demand, without distorting the market.
    This is because the spot physical market has to clear. If futures 
markets were pushing prices to artificially high levels, then either 
physical demand would be reduced, leading to a stock build, or the 
premium of futures prices would be at such a level that it created a 
risk-free opportunity to hold stocks (thus artificially inflating 
demand and building stocks).
    There is a further relationship--in WTI, the contract is physically 
deliverable. Any speculator holding crude oil futures to expiry has to 
deliver the crude oil into Cushing, Oklahoma, the delivery point for 
NYMEX futures. Again, futures prices have to gravitate back to the 
realities of physical supply and demand.
    This is why, when crude oil prices rose from $70/bbl to nearly 
$150/bbl, it is important to note that crude oil stocks were drawn down 
during the first part of the move, and then only rose by around 1/3 of 
the seasonal norm during the second quarter, when stocks are typically 
seasonally replenished.
    The price was also exaggerated by a series of serious disruptions 
which caused a surge in diesel demand.
    Further, futures prices were predominantly below physical prices 
for most of this period, and futures prices were never, at any point 
over this period, at a level that would have offered the risk-free 
financing of physical stock holdings that would have been needed to 
declare that futures prices were pushing physical crudes higher.
    (Note, while I was working at the International Energy Agency in 
Paris, we warned in the first half of 2007 on many occasions that low 
levels of OPEC production would lead to tight crude markets--so to see 
prices rise when the markets tightened was no surprise. OPEC raised 
production in November 2007, but strong demand kept stocks low through 
to the spring. Despite further opportunities early in 2008, OPEC left 
output unchanged. It was only when prices rose above $135/bbl did they 
raise output. That being said, we believe the extreme tightness in the 
diesel market contributed as much to the tightness in the oil price as 
crude oil tightness).
    Question 2. In your opinion would driving speculators out of the 
market have any unintended consequences?
    Answer. Yes.
    It would dry up liquidity, creating more volatility in the market 
(the spike in crude prices on the expiry of WTI is an example of the 
sort of trading that can occur when there are only a few parties 
trading crude oil prices, albeit exaggerated by the extreme 
difficulties in delivering crude in the aftermath of Hurricane Ike).
    Greater pricing power would be given to producers.
    Producers and consumers would find it harder to hedge their risks--
a factor that could reduce the financing available to producers for new 
exploration and production, which could in turn lead to lower supplies 
in future years--a critical issue when the world needs 2.5 mb/d of new 
oil every year just keep output steady.
    Speculative limits would prevent the natural growth of the futures 
markets.
    Question 3. What type of energy regulation, or oversight, would be 
either most damaging, or most beneficial?
    Answer. Improved transparency of both financial markets and supply 
and demand fundamentals is critical to the understanding of market 
action. The CFTC was unable to draw any conclusions about the impact of 
investment funds on oil prices until it engaged in a thorough data call 
and more precise classification of financial positions. Importantly, 
after intense analysis it concluded that during the period that crude 
prices rose to $150/bbl, fund flows actually declined. While such data 
collection comes at a large cost for financial institutions, it is 
important.
    Other non-US futures exchanges should be encouraged to offer 
similar transparency and regulators should exchange data and conduct 
cross market analyses.
    The slow pace of release of fundamental data (outside of the US) 
also means that it takes time for a full understanding of market 
fundamental positions to emerge. In particular, relatively accurate 
European supply and demand data is only available two months after the 
event. Data from many developing countries is incomplete and with very 
little inventory information--often it is only available 18 months 
later. Given the importance of stocks in providing a supply cushion and 
in setting price levels, full transparency is vital.
    All producers should be encouraged to adopt transparent pricing 
mechanisms.
    However, regulators need to know if a distortion in commodity 
markets is evolving through higher fund flows. While each of the 
following events below could be caused by market fundamentals, if they 
are simultaneously true, then warning lights should be triggered.

   Simultaneously rising prices and rising inventories
   Absence of obvious factor that encourages hoarding (eg: war 
        in producer country, shortage diesel/gasoline)
   Futures prices at sufficient premium to spot prices to 
        encourage stock building
   Positive causality between large fund flows and prices

    Market functioning would be harmed by the following:

   Banning or permanently restricting speculative flows. This 
        would reduce liquidity and therefore could distort price 
        discovery, increase price volatility and limit the time frame 
        in which producers (and consumers) could hedge risk. This could 
        ultimately lead to lower future production and supply 
        tightness.
   Speculative limits: Same effects as above, but in addition, 
        this could force regular portfolio rebalancing, which could 
        increase volatility and could shift trading volumes overseas--
        thus reducing oversight and damaging the US economy.
   Speculative limits could limit the natural growth of the US 
        futures business.
     Response of Lawrence Eagles to Question From Senator Domenici
    Question 1. Could you please explain the difference between the 
spot price and futures price in the market? And the impact that 
Hurricane Ike has had on these prices?
    Answer. Spot prices are the price agreed for a physical 
transaction. The spot market has to ``clear'' each day, with prices 
being set at the level at which buyers and sellers are prepared to 
take/make delivery of physical crude.
    Futures prices are set by the buying and selling of paper contracts 
for the future delivery of a commodity. The contracts are traded on a 
registered exchange and are for a standardized grade and quantity of a 
physical commodity (or financial instrument). There is no fixed supply 
of futures contracts, so as long as a buyer and a seller can be found, 
a new contract can be created. As there is always a buyer and seller 
for each contract, these contracts offer a zero sum gain. Many futures 
contracts offer the opportunity to settle the contract by delivering 
the physical commodity to a pre-specified destination. The futures 
contract then becomes a spot contract.
    By 3 October, the crude oil supply losses caused by Hurricanes Ike 
and Gustav totaled a cumulative 36.7 mb. However, with a cumulative 
loss of 89.5 mb of refining capacity also shut by the hurricanes, the 
net impact was, ironically to reduce the demand for crude oil by more 
than the crude oil supply loss. Refining outages however tightened the 
product markets, albeit with the mitigating impacts of both a sharp 
drop in US demand and the announcement by the International Energy 
Agency that it was standing ready to act if the disruption was serious 
enough.
    The hurricanes also coincided with the financial crisis, which 
prompted distressed selling of physical and futures positions, 
restricted credit availability and raised concerns of a global 
recession.
    The hurricanes were also a major factor in the unprecedented price 
spike on the expiry of the NYMEX WTI October futures contract. Low 
crude oil stocks in the US Midwest were exacerbated by delivery 
difficulties following the hurricane.

                                    

      
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