[Senate Hearing 113-501, Volume 1]
[From the U.S. Government Publishing Office]



                                                        S. Hrg. 113-501


                    WALL STREET BANK INVOLVEMENT
                       WITH PHYSICAL COMMODITIES

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

                                HEARINGS

                               before the

                PERMANENT SUBCOMMITTEE ON INVESTIGATIONS

                                 of the

                              COMMITTEE ON
               HOMELAND SECURITY AND GOVERNMENTAL AFFAIRS
                          UNITED STATES SENATE

                    ONE HUNDRED THIRTEENTH CONGRESS


                             SECOND SESSION

                               __________

                             VOLUME 1 OF 2

                               __________

                        NOVEMBER 20 and 21, 2014

                               __________

         Available via the World Wide Web: http://www.fdsys.gov

                       Printed for the use of the
        Committee on Homeland Security and Governmental Affairs
           


                          

                                                       S. Hrg. 113-501

                      WALL STREET BANK INVOLVEMENT
                       WITH PHYSICAL COMMODITIES

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

                                HEARINGS

                               before the

                PERMANENT SUBCOMMITTEE ON INVESTIGATIONS

                                 of the

                              COMMITTEE ON
               HOMELAND SECURITY AND GOVERNMENTAL AFFAIRS
                          UNITED STATES SENATE

                    ONE HUNDRED THIRTEENTH CONGRESS


                             SECOND SESSION

                               ----------                              

                             VOLUME 1 OF 2

                               ----------                              

                        NOVEMBER 20 and 21, 2014

                               ----------                              

         Available via the World Wide Web: http://www.fdsys.gov

                       Printed for the use of the
        Committee on Homeland Security and Governmental Affairs
        
                                ______

                     U.S, GOVERNMENT PRINTING OFFICE 

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                          Washington, DC 20402-0001     
        
        

       
     COMMITTEE ON HOMELAND SECURITY AND GOVERNMENTAL AFFAIRS

                  THOMAS R. CARPER, Delaware, Chairman
CARL LEVIN, Michigan                 TOM COBURN, Oklahoma
MARK L. PRYOR, Arkansas              JOHN McCAIN, Arizona
MARY L. LANDRIEU, Louisiana          RON JOHNSON, Wisconsin
CLAIRE McCASKILL, Missouri           ROB PORTMAN, Ohio
JON TESTER, Montana                  RAND PAUL, Kentucky
MARK BEGICH, Alaska                  MICHAEL B. ENZI, Wyoming
TAMMY BALDWIN, Wisconsin             KELLY AYOTTE, New Hampshire
HEIDI HEITKAMP, North Dakota

                  Gabrielle A. Batkin, Staff Director
               Keith B. Ashdown, Minority Staff Director
                     Laura W. Kilbride, Chief Clerk


                PERMANENT SUBCOMMITTEE ON INVESTIGATIONS

                     CARL LEVIN, Michigan, Chairman
MARK L. PRYOR, Arkansas              JOHN McCAIN, Arizona
MARY L. LANDRIEU, Louisiana          RON JOHNSON, Wisconsin
CLAIRE McCASKILL, Missouri           ROB PORTMAN, Ohio
JON TESTER, Montana                  RAND PAUL, Kentucky
TAMMY BALDWIN, Wisconsin             KELLY AYOTTE, New Hampshire
HEIDI HEITKAMP, North Dakota

            Elise J. Bean, Staff Director and Chief Counsel
                     Tyler Gellash,  Senior Counsel
       Henry J. Kerner, Minority Staff Director and Chief Counsel
                Michael Lueptow, Counsel to the Minority
                     Mary D. Robertson, Chief Clerk
                 Patricia R. Hogan, Publications Clerk
                 
                 
                            C O N T E N T S

                                 ------                                
Opening statements:
                                                                   Page
    Senator Levin................................................ 1, 95
    Senator McCain............................................... 7, 98
    Senator Portman..............................................    23
    Senator Baldwin..............................................    33

                               WITNESSES
                      Thursday, November 20, 2014

Christopher Wibbelman, President and Chief Executive Officer, 
  Metro International Trade Services LLC, Allen Park, Michigan...    10
Jacques Gabillon, Head, Global Commodities Principal Investment 
  Group, Goldman Sachs and Co., London, England..................    11
Jorge Vazquez, Founder and Managing Director, Harbor Aluminum 
  Intelligence LLC, Austin, Texas................................    56
Nick Madden, Senior Vice President and Chief Supply Chain 
  Officer, Novelis Inc., Atlanta, Georgia........................    57
Simon Greenshields, Global Co-Head of Commodities, Morgan 
  Stanley, New York, New York....................................    68
Gregory A. Agran, Co-Head, Global Commidities Group, Goldman 
  Sachs and Co., New York, New York..............................    69
John Anderson, Co-Head, Global Commodities Group, JPMorgan Chase 
  and Co., New York, New York....................................    71

                       Friday, November 21, 2014

Saule T. Omarova, Professor of Law, Cornell University, Ithaca, 
  New York.......................................................    99
Chiara Trabucchi, Principal, Industrial Economics, Incorporated, 
  Cambridge, Massachusetts.......................................   101
Hon. Daniel K. Tarullo, Member, Board of Governors of the Federal 
  Reserve System, Washington, DC.................................   119
Larry D. Gasteiger, Acting Director, Office of Enforcement, 
  Federal Energy Regulatory Commission, Washington, DC...........   120

                     Alphabetical List of Witnesses

Agran, Gregory A.:
    Testimony....................................................    69
    Prepared statement...........................................   274
Anderson, John:
    Testimony....................................................    71
    Prepared statement...........................................   277
Gabillon, Jacques:
    Testimony....................................................    11
    Prepared statement with an attached chart....................   142
Gasteiger, Larry D.:
    Testimony....................................................   120
    Prepared statement...........................................   325
Greenshields, Simon:
    Testimony....................................................    68
    Prepared statement...........................................   268
Madden, Nick:
    Testimony....................................................    57
    Prepared statement...........................................   164
Omarova, Saule T.:
    Testimony....................................................    99
    Prepared statement...........................................   282
Tarullo, Hon. Daniel K.:
    Testimony....................................................   119
    Prepared statement...........................................   313
Trabucchi, Chiara:
    Testimony....................................................   101
    Prepared statement...........................................   302
Vazquez, Jorge:
    Testimony....................................................    56
    Prepared statement...........................................   148
Wibbelman, Christopher:
    Testimony....................................................    10
    Prepared statement...........................................   139

                                APPENDIX

Report by the Permanent Subcommittee on Investigations Majority 
  and Minority Staff entitled ``Wall Street Bank Involvement With 
  Physical Commodities,'' November 20 and 21, 2014...............   341

                              EXHIBIT LIST
                                VOLUME 1

 1. a. GGlobal LME Aluminum Stocks, chart prepared by the 
  Permanent Subcommittee on Investigations.......................   816
    b. GMetro Freight Incentives, chart prepared by Goldman 
  Sachs. [Source: Goldman Sachs Counsel letter to the Permanent 
  Subcommittee on Investigations, GSPSICOMMODS00046232, included 
  in Exhibit 39].................................................   817
    c. GAluminum Tonnage Shipped (Metro Warehouse (Detroit) to 
  Metro Warehouse (Detroit)), chart prepared by Goldman Sachs. 
  [Source: Goldman Sachs Counsel letter to the Permanent 
  Subcommittee on Investigations, PSI-GoldmanSachs-20-000002]....   818
    d. GGoldman Employees Who Served As Metro Board Members, 2009 
  to 2014, chart prepared by the Permanent Subcommittee on 
  Investigations.................................................   819
    e. GAluminum Merry Go Round Transactions, chart prepared by 
  the Permanent Subcommittee on Investigations...................   820
    f. GDetroit Queue and Platts MW Aluminum Premium, chart 
  prepared by the Permanent Subcommittee on Investigations.......   821
    g. GWentworth Ownership Structure, chart prepared by the 
  Permanent Subcommittee on Investigations.......................   822
    h. GOverview of North America Gas, Power and PI Assets, as of 
  03/31/2011, chart prepared by JPMorgan. [FRB-PSI-623097, 
  included in Exhibit 58]........................................   823
    i. GJPMorgan internal email, dated October 2010, re: Please 
  sir! mor BCR!!!!...............................................   824
    j. GExcerpts from 2013 CNR Financial Statement, prepared by 
  CNR. [GSPSICOMMODS00046374, included in Exhibit 17]............   825
    k. GQueue Length, chart prepared by the Permanent 
  Subcommittee on Investigations.................................   826

Documents Related to Goldman Sachs/General:

 2. GExcerpts of Goldman Sachs responses to questions from the 
  Federal Reserve on 4(o) Commodities Activities, dated May 26, 
  2011, re: 1997 v. 2010 physical commodity activities. [FRB-PSI-
  200600-602, 608-610]...........................................   827
 3. GExcerpts from Goldman Sachs Presentation, Federal Reserve 
  Bank of New York Discovery Review: Global Commodities - US 
  Natural Gas & Power, dated March 2010, (Financial vs. Physical 
  Trades FY 2009). [FRB-PSI-400006, 008].........................   833
 4. GGoldman Sachs Presentation, Global Commodities, Presentation 
  to the Board of Directors of The Goldman Sachs Group, Inc., 
  dated October 2011, including Metro, CNR and Cogentrix 
  highlights. [FRB-PSI-700011-030]...............................   835
 5. GExcerpts from Goldman Sachs Memorandum, dated July 2012, re: 
  Firmwide Client and Business Standards Committee Meeting, (... 
  Merchant Banking include CNR, Metro and Vale. ... *** ... 
  Nufcor - treated as part of firm's own activities). [FRB-PSI-
  200984, 994-996, 998-1001, 1004, 1006-007].....................   855
 6. GGoldman Sachs Memorandum to the Federal Reserve, dated July 
  2013, re: commodity-related activities, including 
  environmental/catastrophic risk. [FRB-PSI-201245-268]..........   866
 7. GGoldman Sachs Presentation, Global Commodities & Global 
  Special Situations Group, Presentation to the Board of 
  Directors of The Goldman Sachs Group, Inc., dated September 
  2013, including Metro and CNR (short coal hedge) highlights. 
  [FRB-PSI-400077-098]...........................................   889
 8. GConsolidated Holding Company Report of Equity Investments in 
  Nonfinancial Companies - FR Y-12, dated June 30, 2014, prepared 
  by The Goldman Sachs Group, regarding its merchant banking 
  investments. [FRB-PSI-800013-016]..............................   910

Documents Related to Goldman Sachs Involvement with Uranium:

 9. GGoldman Sachs New Product Memorandum, dated December 2008, 
  re: Uranium Trading. [FRB-PSI-400039-052]......................   914
10. GGoldman Sachs Physical Commodity Review Committee: Meeting 
  Minutes, dated May 2013, re: enriched uranium (UF6). [FRB-PSI-
  400053-055]....................................................   928
11. GNufcor - Structure Chart, prepared by Goldman Sachs. 
  [GSPSICOM-MODS00046240]........................................   931
12. GExcerpts from Goldman Sachs counsel letter to the 
  Subcommittee, dated October 2014, re: Nufcor, attached chart, 
  Nufcor Uranium Utility Supply Contracts at the time of the 
  Nufcor Acquisition (June 30, 2009)). [PSI-GoldmanSachs-21-
  000001-010 and GSPSICOMMODS00046532-533].......................   932

Documents Related to Goldman Sachs Involvement with Coal:

13. GCNR Structure Chart, prepared by Goldman Sachs. 
  [GSPSICOMMODS-00046318]........................................   944
14. GExcerpt from Coalcorp Mining Inc., Notice of Special Meeting 
  of Shareholders to be Held on February 11, 2010 and Management 
  Information Circular. [PSI-CI-01-000001-003, 019-020, 025-028].   945
15. GGoldman Sachs submission to the Federal Reserve, Report of 
  Changes in Organizational Structure - FR Y-10, dated April 
  2010, re: CNR. [GSPSICOMMODS00046301-303]......................   954
16. GExcerpt from C.I. Colombian Natural Resources I SAS and J. 
  Aron & Company Marketing Agreement, dated September 2011. 
  [GSPSI-COMMODS00046496-501, 509]...............................   957
17. GExcerpt from C.I. Colombian Natural Resources I S.A.S, 
  Financial Statements for the years ended on the 31st of 
  December of 2013 and 2012 and Statutory Auditor's Report, dated 
  March 2014. [GSPSICOM-MODS00046366-367, 369, 373-376, 382-383, 
  391-395].......................................................   964
18. GGoldman Sachs counsel letter to the Subcommittee, dated 
  October 2014, re: CNR and Nufcor. [PSI-GoldmanSachs-19-000001-
  009]...........................................................   978
19. GGoldman Sachs counsel letter to the Subcommittee, dated 
  November 2014 (... J. Aron acted as the exclusive marketing and 
  sales agent for CNR.). [PSI-GoldmanSachs-25-000001-003]........   987
20. GGoldman Sachs Metals & Mining, Background to Environmental 
  and Social Due Diligence, last updated 2012. [FRB-PSI-300221-
  230]...........................................................   990

Documents Related to Goldman Sachs Involvement with Aluminum:

21. GExcerpt from Goldman Sachs counsel letter to the 
  Subcommittee, dated October 2014, including chart, Aluminum 
  Tonnage Shipped (Metro Warehouse (Detroit) to Metro Warehouse 
  (Detroit)). [PSI-GoldmanSachs-20-000001-002]...................  1000
22. a. GInvoice List of Glencore Ltd. and Red Kite Master Fund 
  Limited. [GSPSICOMMODS00046871-872]............................  1002
    b. GGlencore Ltd. invoice to Metro International Trade, dated 
  June 21, 2013, in the amount of $9,909,280.66. 
  [GSPSICOMMODS00046873].........................................  1004
    c. GGlencore Ltd. invoice to Metro International Trade, dated 
  June 21, 2013, in the amount of $402,190.77. 
  [GSPSICOMMODS00046874].........................................  1005
    d. GGlencore Ltd. invoice to Metro International Trade, dated 
  September 24, 2013, in the amount of $321,105.33. 
  [GSPSICOMMODS00046875].........................................  1006
    e. GRed Kite Master Fund Limited invoice to Metro 
  International Trade, dated November 13, 2012, in the amount of 
  $5,735,700. [GSPSICOMMODS00046876].............................  1007
    f. GRed Kite Master Fund Limited invoice to Metro 
  International Trade, dated December 20, 2012, in the amount of 
  $632,720. [GSPSI-COMMODS00046877]..............................  1008
    g. GRed Kite Master Fund Limited invoice to Metro 
  International Trade, dated January 28, 2014, in the amount of 
  $2,932,731.43. [GSPSI-COMMODS00046878].........................  1009
    h. GRed Kite Master Fund Limited invoice to Metro 
  International Trade, dated January 28, 2014, in the amount of 
  $14,084,464.63. [GSPSICOMMODS00046879].........................  1010
23. GWarrant Finance Agreement, DB Energy Trading LLC and Metro 
  International Trade Services LLC, dated September 2010. 
  [GSPSICOMMODS-0047434-447].....................................  1011
24. GExcerpt from Goldman Sachs Presentation, MITSI Holdings LLC, 
  Board of Directors Meeting, dated December 2012, slide entitled 
  Overview Off-warrant Deals, re: Red Kite deals. 
  [GSPSICOMMODS00009348].........................................  1025
25. GMetro internal email, dated November 2012, re: Detroit Ali - 
  off warrant storage deal. [GSPSICOMMODS00046684-686]...........  1026
26. GGlencore/Metro email exchange, dated April 2013, re: New 
  Deal 09 Glencore Detroit (... all 91,000 mt for Glencore 
  scheduled to ship outbound in May/June will do so as scheduled 
  but will go to other Metro locations in Detroit (we of course 
  decide) and remain off warrant until June/July 2013 at which 
  point the material will be rewarranted.). [PSICOMMODS00046687-
  691]...........................................................  1029
27. GCharts related to last Red Kite deal and Glencore deal, 
  prepared by Metro for LME in 2014. [GSPSICOMMODS00046666-683]..  1034
28. GMetro internal email, dated December 2010, re: Montreal (... 
  blocking others. *** ... Q management.). [GSPSICOMMODS00047422]  1052
29. GMetro internal email, dated February 2012, re: Stemcor 12 kt 
  to Detroit (... queue management.). [GSPSICOMMODS00047423-429].  1053
30. GMetro internal email of Michael Whelan, dated June 2013, re: 
  Resignation (I have some questions and concerns regarding the 
  Chinese Wall Policy that is in place which regulates the 
  interaction between Metro International, its customers, and J 
  Aron. This morning's confrontation was extremely questionable.) 
  [GSPSICOMMODS00047430].........................................  1060
31. GMetro International Trade Services (2011-2013) and (2014), 
  charts regarding agreements of sharing physical premiums. 
  [GSPSICOMMODS-00046531, 46630].................................  1061
32. GGoldman Sachs chart, Metro International Trade Services, 
  Management Brief, June 2011 (Extraordinary income from 
  counterparties sharing physical premium with Metro ...). 
  [GSPSICOMMODS00009668].........................................  1063
33. GLME counsel letter to the Subcommittee, dated November 2014 
  (... while the LME would view such behavior as a contravention 
  of the ``spirit'' of the relevant requirements, it may be 
  difficult to argue that it constituted a contravention of the 
  ``letter'' of those requirements.). [LME_PSI0002459-462].......  1064
34. GAluminum Users Group Memorandum, dated October 2012 (The 
  LME's terminal market model ... is broken.). [PSI-
  AlumUsersGroup-01-000010-012]..................................  1068
35. GGoldman Sachs Presentation to Firmwide Client and Business 
  Standards Committee, Metro International Trade Services, dated 
  August 2011, including slide entitled, Metro Financial Summary. 
  [FRB-PSI-707486-500]...........................................  1071
36. a. GGoldman Sachs Presentation, MITSI Holdings LLC, Board of 
  Directors Meeting, dated December 2011, including slide 
  entitled Current Deal Pipeline. [GSPSICOMMODS00009287-309].....  1086
    b. GGoldman Sachs Presentation, MITSI Holdings LLC, Board of 
  Directors Meeting, dated March 2012, including slides entitled 
  Current Deal Pipeline and Overview Off-warrant Deals. 
  [GSPSICOMMODS-00009423-449]....................................  1109
    c. GGoldman Sachs Presentation, MITSI Holdings LLC, Board of 
  Directors Meeting, dated December 2012, including slides 
  entitled Current Deal Pipeline and Overview Off-warrant Deals. 
  [GSPSICOMMODS-00009332-353]....................................  1136
    d. GGoldman Sachs Presentation, MITSI Holdings LLC, Board of 
  Directors Meeting, dated March 2013, including slides entitled 
  Current Deal Pipeline and Metro's Annual Financial Performance. 
  [GSPSICOMMODS-00009355-377]....................................  1157
37. GLondon Metal Exchange (LME) document listing Terms and 
  conditions applicable to all LME listed warehouse companies, 
  dated April 2014. [LME_PSI0001406-427].........................  1178
38. a. GConflict Management Procedures Between Metro and Other GS 
  Businesses and Personnel, Policy Issued To: Global Commodities 
  Sales and Trading, Global Commodities Principal Investment, 
  Metro Board Members, Metro Management and Staff, dated February 
  2010. [FRB-PSI-602457-471].....................................  1200
    b. GInformation Barrier Policy: Metro and Other GS Businesses 
  and Personnel, For: Global Commodities Sales and Trading, 
  Global Commodities Principal Investments, Metro Board Members, 
  Metro Management and Staff, dated March 2014. 
  [GSPSICOMMODS00004059-076].....................................  1215
39. GExcerpt from Goldman Sachs counsel letter to the 
  Subcommittee, dated September 2014, including table listing 
  Total Annual Freight Allowance Paid by Metro and Annual Freight 
  Allowance Paid by Metro to J. Aron. [PSI-GoldmanSachs-15-000001 
  and GSPSICOMMODS00046232-233]..................................  1233
40. GExcerpts from Goldman Sachs counsel letter to the 
  Subcommittee, dated August 2014, including list of authorized 
  Goldman Sachs employees given access to confidential 
  information. [PSI-GoldmanSachs-17-000001 and 
  GSPSICOMMODS00046225-226]......................................  1236

Documents Related to Morgan Stanley/General:

41. GMorgan Stanley Presentation, Global Commodities Overview, 
  dated May 2009. [FRB-PSI-618889-908]...........................  1239
42. GMorgan Stanley Presentation, Morgan Stanley Commodities, 
  Business Overview, dated February 2013, prepared for the 
  Permanent Subcommittee on Investigations. [PSI-MorganStanley-
  01-000001-027].................................................  1259
43. GConsolidated Holding Company Report of Equity Investments in 
  Nonfinancial Companies - FR Y-12, dated June 30, 2014, prepared 
  by Morgan Stanley, regarding its merchant banking investments. 
  [FRB-PSI-800009-012]...........................................  1286

Documents Related to Morgan Stanley Involvement with Natural Gas:

44. GExcerpt from Morgan Stanley Presentation, Federal Reserve 
  Bank of New York, Morgan Stanley Infrastructure Platform 
  Review, prepared by Morgan Stanley, dated September 2013. [FRB-
  PSI-400321-329, 331 333, 341, 351-352, 365-366]................  1290
45. a. GApplication of Wentworth Gas Marketing LLC for Long-Term 
  Authorization to Export Compressed Natural Gas, submitted to 
  the Department of Energy, Office of Fossil Energy, dated May 
  2014...........................................................  1307
    b. GDepartment of Energy, Office of Fossil Energy, In re 
  Wentworth Gas Marketing LLC, Order Granting Long-Term 
  Authorization To Export Compressed Natural Gas, dated October 
  2014. [PSI-DOE-01-000004-016]..................................  1326
46. GExcerpt from Morgan Stanley Presentation, Morgan Stanley 
  Infrastructure Partners, Overview of Southern Star, dated 
  August 2014. [MS-PSI-00000001-016, 019-020, 023-027, 035, 037].  1339
47. GMorgan Stanley counsel letter to the Subcommittee, dated 
  September 2014, re: ... Morgan Stanley's purchase of the 
  Deutsche Bank natural portfolio and involvement with Wentworth 
  Holdings, LLC. [PSI-MorganStanley-13-000001-009]...............  1364
48. GExcerpt from Morgan Stanley Presentation, Morgan Stanley 
  Infrastructure Partners, Southern Star Follow Up Questions, 
  dated October 2014. [MS-PSI-00000455-460, 465-469, 472-475]....  1373

Documents Related to Morgan Stanley Involvement with Crude Oil:

49. GExcerpts from Morgan Stanley counsel letter to the 
  Subcommittee, dated October 2014, re: early New York oil 
  storage. [PSI-MorganStanley-17-000001-002].....................  1387
50. GExcerpts from Morgan Stanley counsel letter to the 
  Subcommittee, dated June 2013, re: TransMontaigne. [PSI-
  MorganStanley-06-000001-004]...................................  1389
51. GExcerpts from Morgan Stanley counsel letter to the 
  Subcommittee, dated October 2014, re: oil storage data, 
  revenue, and Olco Petroleum Group. [PSI-MorganStanley-19-
  000001-003]....................................................  1393

Documents Related to Morgan Stanley Involvement with Jet Fuel:

52. GExcerpts from Jet Fuel Supply Agreement between Morgan 
  Stanley Capital Group Inc. and United Airlines, Inc. and United 
  Aviation Fuels Corporation, dated September 2003. [PSI-
  UnitedAirlines-01-000003, 013, 016, 020-022]...................  1396
53. GMorgan Stanley counsel letter to the Subcommittee, dated 
  September 2014, re: Emirates. [PSI-MorganStanley-15-000001-004]  1402
54. GEmirates counsel letter to the Subcommittee, dated October 
  2014, re: jet fuel purchases and hedges. [PSI-Emirates-01-
  000001-004]....................................................  1406
55. GEmirates counsel letter to the Subcommittee, dated October 
  2014, re: jet fuel purchases and hedges. [PSI-Emirates-02-
  000001-007]....................................................  1410

Documents Related to JPMorgan Chase/General:

56. a. GNotice to the Board of Governors of the Federal Reserve 
  System by JPMorgan Chase & Co., submitted July 21, 2005, 
  requesting complementary authority for physical commodity 
  activities. [PSI-FederalReserve-01-000004-028].................  1417
    b. GNotice to the Board of Governors of the Federal Reserve 
  System by JPMorgan Chase & Co., submitted November 25, 2008, 
  requesting complementary authority for refining activities. 
  [PSI-Federal Reserve-01-000553-558]............................  1442
57. GFederal Reserve letter to JPMorgan Chase, dated April 20, 
  2009, granting complementary authority, re: refining 
  activities. [PSI-FRB-11-000001-002]............................  1448
58. GJPMorgan Presentation, Global Commodities - Operating Risk, 
  dated April 2011. [FRB-PSI-623086-127].........................  1450
59. GJPMorgan Chase physical inventory positions, 2008-2012. 
  [JPM-COMM-PSI-000015-016]......................................  1491
60. GMerchant Banking Investment in Henry Bath, undated, prepared 
  by JPMorgan. [FRB-PSI-000580-582]..............................  1493
61. GExcerpt from JPMorgan Presentation, Commodities Physical 
  Operating Risk, Update to CIBRC, dated January 2013, with slide 
  entitled Physical Operating Risk Review of Project Liberty. 
  [FRB-PSI-301379, 381]..........................................  1496
62. GConsolidated Holding Company Report of Equity Investments in 
  Nonfinancial Companies - FR Y-12, dated June 30, 2014, prepared 
  by JPMorgan, regarding its merchant banking investments. [FRB-
  PSI-800005-008]................................................  1498
63. GExcerpts from Global & Regional Investment Bank League 
  Tables - 1H2014, dated September 2014, prepared by Coalition 
  Analytics Intelligence. [PSI-Coalition-01-000019-021]..........  1502
64. GJPMorgan Chase counsel letter to the Subcommittee, dated 
  June 2014, re: J.P.Morgan Ventures Energy Corporation (JPMVEC). 
  [PSI-JPMC-11-000001-002].......................................  1505
65. GJPMorgan Chase counsel letter to the Subcommittee, dated 
  October 2014, re: JPMVEC and Project Liberty. [PSI-
  JPMorganChase-14-000001-009]...................................  1507
66. GJPMorgan Chase counsel letter to the Subcommittee, dated 
  October 2014, re: various commodity issues. [PSI-JPMorgan-15-
  000001-008]....................................................  1516

Documents Related to JPMorgan Chase Involvement with Electricity:

67. GPower Plants Owned or Controlled via Tolling Agreements, 
  2008 to present, chart prepared by JPMorgan. [JPM-COMM-PSI-
  000022-025]....................................................  1524
68. GFederal Reserve Bank of New York letter to JPMorgan Chase, 
  dated March 2008, granting 2-year grace period for power plants 
  and other assets acquired from The Bear Stearns Companies Inc. 
  [FRB-PSI-900001-003]...........................................  1528
69. GExcerpts from JPMorgan Presentation, Global Commodities Deep 
  Dive Risk Review, dated October 2009. [FRB-PSI-200634-638, 640-
  642, 644-645, 649-655].........................................  1531
70. a. GNotice to the Board of Governors of the Federal Reserve 
  System by JPMorgan Chase & Co., submitted December 30, 2009, 
  requesting complementary authority for energy management 
  activities. [PSI-FederalReserve-01-000561-567].................  1548
    b. GNotice to the Board of Governors of the Federal Reserve 
  System by JPMorgan Chase & Co., submitted December 30, 2009, 
  requesting complementary authority for tolling activities. 
  [PSI-FederalReserve-02-000012-033].............................  1555
71. GJPMorgan letter to the Federal Reserve, dated February 2010, 
  requesting extension and additional complementary authority. 
  [FRB-PSI-300286-290]...........................................  1577
72. GFederal Reserve letter to JPMorgan Chase, dated June 2010, 
  granting complementary authority regarding power plants. [FRB-
  PSI-302571-580]................................................  1582
73. GJPMorgan Transaction Overview, dated August 2010, regarding 
  purchase of Kinder Morgan Power Plant. [FRB-PSI-300066]........  1592
74. GUndated document prepared by JPMorgan regarding power plant 
  restructuring. [FRB-PSI-300352-353]............................  1593
75. GJPMorgan Presentation, Commodities Operational Risk Capital, 
  dated May 2011. [FRB-PSI-300727-736]...........................  1595
76. GJPMorgan internal email, dated April 2010, re: Resume for 
  Power, attaching resume of John Howard Bartholomew (Identified 
  a flaw in the market mechanism Bid Cost Recovery that is 
  causing the CAISO to misallocate millions of dollars.). [PSI-
  FERC-02-000009-010]............................................  1605
77. GJPMorgan internal email, dated October 2010, re: Please sir! 
  mor BCR!!!! [PSI-FERC-02-000042]...............................  1607
78. GJPMorgan internal email from Francis Dunleavy to Blythe 
  Masters, dated March 2011, re: CAISO update (I will handle it 
  but it may not be pretty.). [PSI-FERC-02-000067]...............  1608

Documents Related to JPMorgan Chase Involvement with Copper:

79. GJPMorgan Presentation, JPM Commodity Capabilities, dated 
  January 2012. [FRB-PSI-200832-865].............................  1609
80. GExcerpt from JPMorgan Presentation, FED/OCC Quarterly 
  Meeting, dated February 2013, including slide entitled, 
  Physical Inventory Limits from FED & OCC. [FRB-PSI-301443, 447]  1639
81. GFederal Reserve email to the Subcommittee, dated October 
  2014, re: treating copper as ``bullion.'' [PSI-FRB-16-000001]..  1641
82. GJPMorgan counsel email to the Subcommittee, dated October 
  2014, re: metals trading desk. [PSI-JPMorgan-16-000001]........  1642
83. GJPMorgan counsel letter to the Subcommittee, dated October 
  2014, re: JPMorgan copper activities. [PSI-JPMorgan-18-000001-
  008 and JPM-COMM-PSI-000064-066]...............................  1643
84. GOCC Interpretive Letter No. 553, dated May 1991, re: 
  treating platinum as bullion. [PSI-OCC-01-000112-113]..........  1651
85. GOCC Interpretive Letter No. 693, dated December 1995, re: 
  treating copper as bullion. [PSI-OCC-01-000135-141]............  1653
86. a. GComment Letter from Senator Carl Levin to the Securities 
  and Exchange Commission, dated, July 2012, re: JPM XF Physical 
  Copper Trust Pursuant to NYSE Area Equities Rule 8.201.........  1660
    b. GComment Letter from Senator Carl Levin to the Securities 
  and Exchange Commission, dated, March 2013, re: JPM XF Physical 
  Copper Trust, Form S-1 Registration Statement..................  1667
87. GComment Letter from law firm representing copper fabricating 
  companies to the Securities and Exchange Commission, dated July 
  2012, re: rule change allowing copper ETF. [PSI-
  VandenbergFeliu_to_SEC(July2012)-000001-005]...................  1682
88. GLME email to the Subcommittee, dated November 2014: re: 
  LME's Public Warrant Banding Report, dated December 15, 2010. 
  [PSI-LME-06-000001]............................................  1687

Documents Related to JPMorgan Chase Involvement with Size 
  Limits:

89. GMethodology for Calculating Capacity Payments for Purposes 
  of 5% Limit, undated, prepared by JPMorgan. [FRB-PSI-300345-
  347]...........................................................  1688
90. GExcerpt from JPMorgan Presentation, FED/OCC/FDIC Quarterly 
  Meeting, dated September 2013, Physical Inventory Limits from 
  FED & OCC. [FRB-PSI-301383, 387]...............................  1691
91. GExcerpt from JPMorgan Chase counsel letter to the 
  Subcommittee, dated October 2014, including chart with 
  inventory levels for copper, platinum, and palladium as of 
  September 28, 2012 held by JPMorgan Chase Bank. [PSI-JPMorgan-
  15-000001 and JPM-COMM-PSI-000048-049].........................  1693
92. GJPMorgan internal email, dated January 2012, re: 
  Consolidated OCC Summary 10 Jan 2012, providing inventory 
  levels for metals held by JPMorgan Chase Bank. [OCC-PSI-
  00000336]......................................................  1696
93. GJPMorgan internal email, dated January 2012, re: 
  Consolidated OCC Summary 19 Jan 2012 (... took further action 
  yesterday to lend 100k tonnes of materials to the market as 
  well as sell 400k tonnes of material to JPMVEC.). [OCC-PSI-
  00000344]......................................................  1697
94. GJPMorgan internal email, dated January 2012, re: 
  Consolidated OCC Summary 19 Jan 2012 (It will not happen again 
  that you learn about it after the fact when it is an issue 
  within our control.). [OCC-PSI-00000340].......................  1698
95. GJPMorgan internal email, dated February 2012, re: 5% Limit 
  Calculation (Following are our current and proposed 
  methodologies for calculating the [OCC] 5% limit.). [OCC-PSI-
  00000324]......................................................  1699
96. GJPMorgan Chase counsel email to the Subcommittee, dated 
  November 2014, (JPMCB's daily aluminum inventory values and the 
  corresponding LME cash price for aluminum.). [PSI-JPMorgan-23-
  000001]........................................................  1700
97. GExcerpt from JPMorgan Chase counsel letter to the 
  Subcommittee, dated October 2014, re: aluminum trades and 5% 
  limit. [PSI-JPMorgan-17-000001-002]............................  1701
98. GExcerpt from JPMorgan Chase counsel letter to the 
  Subcommittee, dated November 2014, re: JPMCB aluminum holdings. 
  [PSI-JPMorgan-19-000001-003]...................................  1703
99. a. GMetro legal counsel letter to LME, dated January 27, 
  2014. [GSPSICOMMODS00046661-665]...............................  1706
    b. GMetro legal counsel letter to LME, dated April 15, 2014. 
  [GSPSICOMMODS00046834-848].....................................  1711
100.a. GResponses of Hon. Daniel K. Tarullo, Federal Reserve 
  System, to supplemental questions for the record from Senator 
  Carl Levin.....................................................  1726
    b. GResponses of Chiara Trabucchi, Industrial Economics, 
  Incorporated, to supplemental questions for the record from 
  Senator Carl Levin.............................................  1735
101.a. GResponses of Gregory A. Agran, Goldman Sachs & Co., to 
  supplemental questions for the record from Senator Kelly 
  Ayotte.........................................................  1739
    b. GResponses of John Anderson, JPMorgan Chase & Co., to 
  supplemental questions for the record from Senator Kelly 
  Ayotte.........................................................  1745
    c. GResponses of Simon Greenshields, Morgan Stanley, to 
  supplemental questions for the record from Senator Kelly 
  Ayotte.........................................................  1751
102.a. GResponses of Jorge Vazquez, Harbor Aluminum Intelligence 
  Unit, LLC, to supplemental questions for the record from 
  Senator Tammy Baldwin..........................................  1754
    b. GResponses of Nick Madden, Novelis, Inc., to supplemental 
  questions for the record from Senator Tammy Baldwin............  1759

                                VOLUME 2

103. GDocument Locator List and documents cited in footnotes to 
  ``Wall Street Bank Involvement With Physical Commodities,'' the 
  Report released in conjunction with the Subcommittee hearing on 
  November 20 and 21, 2014. The Document Locator List provides 
  the Bates numbers or a description of the documents cited in 
  the Report and the hearing record page number where the 
  document can be located. Not included are documents related to 
  Subcommittee interviews, which are not available to the public, 
  and widely available public documents..........................  1763
 
                      WALL STREET BANK INVOLVEMENT

                       WITH PHYSICAL COMMODITIES

                              ----------                              


                      THURSDAY, NOVEMBER 20, 2014

                                   U.S. Senate,    
              Permanent Subcommittee on Investigations,    
                    of the Committee on Homeland Security  
                                  and Governmental Affairs,
                                                    Washington, DC.
    The Subcommittee met, pursuant to notice, at 9:34 a.m., in 
room SD-106, Dirksen Senate Office Building, Hon. Carl Levin, 
Chairman of the Subcommittee, presiding.
    Present: Senators Levin, Pryor, Baldwin, McCain, and 
Portman.
    Staff present: Elise J. Bean, Staff Director and Chief 
Counsel; Mary D. Robertson, Chief Clerk; Tyler Gellasch, Senior 
Counsel; Adam Henderson, Professional Staff Member; Angela 
Messenger, Detailee (GAO); Joel Churches, Detailee (IRS); Ahmad 
Sarsour, Detailee (FDIC); Tom McDonald, Law Clerk; Tiffany 
Eisenbise, Law Clerk; Tiffany Greaves, Law Clerk; Ken Reidy 
(Sen. Baldwin); Henry J. Kerner, Staff Director and Chief 
Counsel to the Minority; Michael Lueptow, Counsel to the 
Minority; Scott Wittmann, Research Assistant to the Minority; 
Elise Mullen, Research Assistant to the Minority; Kyle Brosnan, 
Law Clerk to the Minority; Christina Bortz, Law Clerk to the 
Minority; Jennifer Junger, Law Clerk to the Minority; Ferdinand 
Kramer, Law Clerk to the Minority; Chapin Gregor, Law Clerk to 
the Minority; and Derek Lyons (Sen. Portman).

               OPENING STATEMENT OF SENATOR LEVIN

    Senator Levin. Good morning, everybody.
    Today, the Subcommittee meets to discuss the product of a 
2-year investigation into Wall Street bank involvement with 
physical commodities. Our 396-page bipartisan Report with 
nearly 800 pages of exhibits provides facts and details that, 
for too long, have been missing from the public debate about 
the growing role of large Wall Street banks in sectors of the 
economy outside of banking--in this case, activities involving 
physical commodities such as oil, metal, coal, and 
electricity--while at the same time trading in financial 
instruments whose value could be affected by a bank's 
involvement with those physical commodities.
    For more than a century, the United States, by law and 
practice, has worked to maintain the separation of banking from 
commerce, directing banks to concentrate on taking deposits, 
transferring funds, and providing credit, and to avoid 
commercial activities like supplying oil, producing 
electricity, or storing aluminum. The principle of separating 
banking from commerce wisely seeks to reduce risk to the 
economy and risk to the integrity of commodity markets.
    Our investigation found that this principle has eroded and, 
predictably, that erosion has increased risk for the economy, 
markets, industry, and consumers. We found that banks--and for 
clarity's sake, I will use that term generically to refer to 
federally insured banks and their holding companies registered 
with the Federal Reserve--we found that banks have vastly 
accelerated their physical commodity activities, and are 
competing directly with commercial businesses that lack the big 
banks' easy access to government-subsidized capital. At the 
same time, these banks have taken on dramatic new risks--risks 
that, because of the size of these banks, fall not just on 
them, but on the larger financial system and, therefore, our 
entire economy. In addition, their activities raise significant 
questions about whether banks are profiting at the expense of 
end-users who must wait longer and pay more for critical raw 
materials. And they give Wall Street the opportunity to use 
valuable non-public information to gain unfair trading 
advantages or to profit from the manipulation of prices.
    Today's hearing will focus on the activities of three major 
banks--Goldman Sachs, JPMorgan Chase, and Morgan Stanley--that 
over the last 10 years have become very active in physical 
commodity markets.
    If you like what Wall Street did for the housing market, 
you will love what Wall Street is doing for commodities. Some 
of the same people who brought us the synthetic mortgage-backed 
security--and with it, the term ``toxic asset'' and the recent 
financial crisis--now dominate the commodities futures markets. 
Producers and end users once held 70 percent of commodities 
futures; by 2011, that had fallen to about 30 percent, with the 
majority of futures held by speculators looking to profit from 
price volatility. This means commodities markets are 
increasingly unable to fulfill their purpose--which is to allow 
end-users, from shipbuilders to beverage companies, and from 
automakers to airlines, to manage their risks.
    These Wall Street banks have stored and sold aluminum, 
operated coal mines and metal warehouses, stockpiled aluminum 
and copper, operated oil and gas storage facilities and 
pipelines, planned a compressed natural gas facility, supplied 
oil refineries, sold jet fuel to airlines, and operated power 
plants. They have acquired staggeringly large positions and 
executed massive trades in oil, metal, and other physical 
commodities. While Wall Street's growing role in physical 
commodities has been discussed and debated, the scope of this 
involvement, and the potential for abuse, have not been widely 
known.
    Those physical commodity activities bring with them many 
risks. Goldman Sachs' involvement with uranium and coal mines 
exposed it to the kinds of environmental and catastrophic-event 
risks that traditional banks do not usually face. Morgan 
Stanley used shell companies in its plans to build a compressed 
natural gas plant, exposing itself then to direct liability 
should disaster strike. The Federal Reserve recently reported: 
``[C]atastrophes involving environmentally sensitive 
commodities may cause fatalities and economic damages well in 
excess of the market value of the commodities involved or the 
committed capital and insurance policies of market 
participants.'' Should a catastrophe occur, it could undermine 
a bank or spur fears that it might fail, sparking a bank run, a 
shut-down of lending, and turmoil in the U.S. economy.
    Wall Street has made legal arguments contending that its 
liability risk is limited and manageable. But at times even the 
banks acknowledge that they could be held liable if they, for 
example, are negligent in managing these activities. And even 
if courts eventually upheld a bank's legal defense, even the 
possibility of liability judgments on the scale of a Deepwater 
Horizon or Exxon Valdez could freeze a bank's access to capital 
and risk a Lehman Brothers-style crisis.
    And there is much more. Bank involvement with physical 
commodities also raises concerns about unfair trading. In some 
cases, banks have been implicated in outright market 
manipulation. JPMorgan recently paid $410 million to settle 
charges by the Federal Energy Regulatory Commission that it 
used manipulative bidding schemes at its power plants to elicit 
$124 million in excessive electricity payments in California 
and Michigan.
    Activities involving physical commodities also give Wall 
Street banks access to valuable non-public information with 
which they can profit in physical and financial commodity 
markets at the expense of other market participants. The banks 
and their regulator, the Federal Reserve, acknowledge as much. 
JPMorgan, in a 2005 application for authority to make physical 
commodities investments, said that its plan would ``provide 
access to information regarding the full array of actual 
[production] and end-user activity in those markets.'' And it 
went on: ``The information gathered through this increased 
market participation will help improve projections of forward 
and financial activity and supply vital price and risk 
management information that JPM Chase can use to improve its 
financial commodities derivative offerings.''
    Similarly, a Morgan Stanley executive publicly spoke of the 
advantage of its involvement in oil storage and pipelines: 
``We're right there seeing terminals filling up and emptying.'' 
And a Fed analysis of Morgan Stanley and Goldman Sachs said the 
banks' physical commodities activities provided ``important 
asymmetrical information--which a market participant without 
physical infrastructure would not necessarily be privy to.''
    Our bipartisan Report contains nine case studies 
illustrating the risks and unfair trading concerns raised by 
bank involvement with physical commodities. Each is worthy of 
its own hearing. Today we will examine activities at three 
banks, and we will highlight one case study in particular, to 
demonstrate how actions taken by a single financial 
institution--in this case Goldman Sachs--in a single 
commodity--aluminum--has given that Wall Street giant the 
ability to affect prices and supplies of that commodity while 
trading in financial instruments related to that commodity.
    In 2010, Goldman Sachs bought a company called Metro 
International Trade Services, which owns a global network of 
warehouses certified by the London Metal Exchange, or LME, the 
world's largest market for trading metals. LME certification 
means that Metro can store metal that has been warranted as 
meeting LME standards for quality and quantity and is approved 
for use in settling LME aluminum trades. Under Goldman's 
ownership, Metro mounted an unprecedented effort to dominate 
the North American market for storing aluminum. By early this 
year, Goldman's warehouses in the Detroit area held nearly 1.6 
million metric tons of aluminum--roughly 25 percent of the 
annual aluminum consumption in North America--and 85 percent of 
the LME-warranted aluminum in the United States.
    Now, why is this important? Because aluminum warehouses 
owned by Goldman, and overseen by a board consisting entirely 
of Goldman employees, manipulated their operations in a way 
that impacted the price of aluminum for consumers, while at the 
same time Goldman was trading in aluminum-related financial 
products.
    Goldman's subsidiary achieved this dominant position 
through aggressive incentives for metal owners to store 
aluminum in its warehouses--incentives that appear to be 
inconsistent with the LME's prohibition on ``exceptional 
inducements.'' One set of incentives involved a series of 
``merry-go-round'' transactions that bottled up millions of 
tons of aluminum and appears to have affected prices for 
businesses and consumers.
    Those merry-go-round transactions first came to the 
public's attention through a 2013 New York Times article. We 
dug into the facts behind the story and uncovered a troubling 
set of practices that included six merry-go-round trades 
involving more than 600,000 metric tons of aluminum.
    To remove LME-warranted metal from an LME warehouse, the 
metal's owner must cancel its warrants and pay any rent or 
storage bills. Then the metal is placed in line for load-out. 
That line is the ``queue'' which you will hear a lot about 
today.
    Until Goldman bought Metro, aluminum in the load-out line 
was shipped from a warehouse in a matter of days or weeks. But 
as you can see from that chart we have up there, Exhibit 1f,\1\ 
since Goldman's acquisition of Metro, the queue to exit the 
Detroit warehouses has gotten longer and longer. In January 
2010, it was about 40 days; by September of this year, it had 
grown to an unprecedented 600 days. Why? Because of actions 
taken by Metro, the Goldman-owned warehouse operator. And what 
difference does it make? A big difference. The price consumers 
must pay for aluminum is made up of the benchmark price set on 
the LME's exchange, plus a regional premium based on regional 
storage and logistics costs. The longer the queue, the higher 
the storage costs, and the higher the storage costs, the higher 
the premium consumers must pay. Statistical analysis shows an 
extremely high correlation between the length of the queue and 
the U.S. premium level.
---------------------------------------------------------------------------
    \1\ See Exhibit No. 1f, which appears in the Appendix on page 821.
---------------------------------------------------------------------------
    LME rules require that warehouses each day load out a 
minimum quantity of metal. That minimum was 1,500 metric tons a 
day for large warehouses such as Metro's, until April 2012, 
when it was increased to 3,000 metric tons. Goldman's 
warehouses have treated the LME minimum as a maximum, shipping 
no more than the minimum. In addition, Metro formed a single 
exit line for all 28 of its Detroit-area warehouses combined, 
and decreed that the daily minimum applied to that single exit 
line.
    Now, the merry-go-round deals increased the length of the 
queue and clogged the exit line. In most of the merry-go-round 
deals, the metal owner agreed to cancel warrants on a large 
amount of aluminum and put that metal in the exit queue. When 
the owner got to the front of the line, it loaded out its metal 
onto trucks, but the metal did not leave the Metro system. 
Instead, the trucks moved the aluminum to a nearby Metro 
warehouse, and the metal owner eventually re-warranted the 
metal. In exchange, Metro paid millions of dollars to the metal 
owners--once when they canceled the warrants and again when 
they re-warranted the metal in another Metro warehouse.
    It is important to understand that the first of these 
deals, reached with Deutsche Bank just 7 months after Goldman 
bought Metro, came after Deutsche Bank simply asked for a 
discount on rent for its aluminum. Nothing prevented Metro from 
simply giving such a discount. Instead, the warehouse proposed 
the convoluted merry-go-round, which effectively gave Deutsche 
Bank the discount it wanted, but with the added benefit to 
Metro and Goldman of adding 100,000 tons of aluminum to the 
exit queue.
    Metro used this same model in several subsequent deals. In 
some deals, metal was loaded onto a truck and shipped a mere 
200 yards to a different warehouse building. Most of the deals 
involved shuffling virtually identical loads of aluminum among 
multiple warehouses, which is why a forklift operator called it 
a ``merry-go-round of metal.'' Because each deal involved 
between 100,000 and 265,000 metric tons of aluminum, loaded out 
at 1,500 and then 3,000 metric tons a day, the net effect was 
that each deal added weeks or months to the queue.
    The lengthening queue had a number of effects. First, it 
boosted revenue at Goldman's warehouses--the more metal stored 
in the warehouses, the more rent and fees.
    The longer queue also affected aluminum prices. The ``all-
in'' price that consumers pay for aluminum has several 
components, but the two major components are the LME Official 
Price, set on LME's exchange, and a regional premium that 
reflects local variations in storage and delivery costs. The 
regional premium in the United States is known as the Midwest 
Aluminum Premium. And as the chart shows, Exhibit 1f,\1\ as the 
queue in Metro's Detroit-area warehouses increased, so did the 
Midwest Premium. As the queue increases, the premium increases.
---------------------------------------------------------------------------
    \1\ See Exhibit No. 1f, which appears in the Appendix on page 821.
---------------------------------------------------------------------------
    Most market participants believe that a higher Midwest 
Premium means higher all-in prices, which means Goldman's 
warehouses are using a tactic that earns the bank higher rents 
at the expense of a wide range of businesses that use aluminum. 
Those businesses include Austal, a company that builds combat 
ships for our Navy and which told the Subcommittee that the 
effects of rising Midwest Premiums have forced it to take 
costly steps that damage not just the company, but cost U.S. 
taxpayers.
    Goldman argues that these market participants are 
incorrect, and that the total price of aluminum was unchanged 
by the merry-go-round deals and the longer queues. It argues 
that as the Midwest Premium rises, the LME price falls. That is 
the Goldman argument. The Midwest Premium rises, the LME price 
falls, so that the all-in price remains unchanged. Again, that 
is not what other market participants say. But even if that 
were true, Goldman's warehouses are still engaged in 
unacceptable manipulation. As the queue-inflated Midwest 
Premium has risen, it has taken up an increasing share of the 
all-in price for aluminum--from just 6 percent of the all-in 
price in 2010 to over 20 percent this year. That increase means 
that the LME price has fallen as a percentage of the all-in 
price, making LME futures a less effective tool to hedge price 
risk.
    Now, in addition to assessing supply and demand, aluminum 
users must try to hedge just how long a load-out queue 
Goldman's warehouses can engineer. What's more, if Goldman's 
theory is correct and the LME price goes down as the premium 
goes up, Goldman has the ability to manipulate the LME price by 
manipulating the Midwest Premium, and then to make trades 
taking advantage of that manipulation. Goldman's ability to 
influence any portion of the price for a key component of the 
industrial economy is simply unacceptable.
    While the LME has rules designed to prevent a situation 
where a warehouse could share valuable confidential information 
with traders, those rules are porous. Under LME rules, Metro 
shares confidential information with more than 50 Goldman 
employees, including top executives who manage Goldman's 
commodities trading, while also sitting on Metro's Board of 
Directors. The Metro Board, which has consisted exclusively of 
Goldman employees, reviewed and approved all significant 
business decisions at Metro, including the merry-go-round 
deals. In other words, a warehouse strategy that materially 
affected the aluminum market was approved by executives of a 
bank uniquely positioned to trade profitably on the effects of 
that strategy. Think about the opportunity for Goldman to 
affect the premium and price at the same time it was trading in 
that metal.
    In fact, the information to which Goldman's top commodities 
executives have access through Metro is so sensitive and 
valuable that LME will not publish it. In a 2013 report, LME 
said it does not publish detailed information on warehouse 
stock and queues because ``the danger is that those merchants 
and trading houses with the most well-staffed analytical 
capabilities will take advantage of the availability of data to 
derive a trading advantage.'' It is hard to think of a trading 
house that better fits that description than Goldman Sachs.
    There is little doubt that if we were talking about the 
stock market, rather than commodities transactions, the use of 
inside information that affects prices would be strictly 
prohibited. But until passage of Dodd-Frank, there were no 
legal prohibitions on using valuable non-public information to 
trade commodities, and even now, regulators' authority to stop 
such abuse is untested.
    So, the potential for abuse is great, and the only 
protections against abuse are company policies against sharing 
information. Given the recent history of banks improperly 
sharing information to manipulate electricity, LIBOR, and 
foreign exchange rates, the reliance on voluntary policies at 
companies that have an economic interest in the opposite 
direction is not enough protection for consumers, to put it 
mildly.
    This concern is especially relevant given Goldman's rapid 
increase in aluminum trading after it acquired Metro. After 
buying Metro in 2010, Goldman's physical aluminum stockpile 
grew from less than $100 million to, at one point, more than $3 
billion, a 30-fold increase. This stockpile also allowed 
Goldman itself to add to the queue at its Metro warehouses, 
where in 2012, Goldman canceled warrants on about 300,000 
metric tons of its own aluminum, adding months to the queue. 
Goldman made a series of massive aluminum trades at the same 
time its warehouses' dealings were pushing the Midwest Premium 
higher, including trades in 2012 involving more than 1 million 
metric tons of metal.
    Goldman contends that it adheres to rules preventing the 
sharing of useful information between its warehouses and its 
traders. That contention is hard to square with the bank's 
stated justification for its involvement in physical 
commodities. In a 2011 presentation to Goldman's board, its 
executives wrote that Goldman's commodities division would 
achieve higher value ``if the business was able to grow 
physical activities, unconstrained by regulation and integrated 
with the financial activities.'' Goldman's goal, in the words 
of its own executives, is to profit in its financial activities 
using the information that it gains in the physical commodities 
business.
    All of these issues and concerns come back to the principle 
of separating banking and commerce. Banks are not supposed to 
be running commercial businesses like warehouses, natural gas 
facilities, or power plants. Those activities open the door to 
higher prices and greater uncertainty for businesses and 
consumers, and to price manipulation and trading based on 
information not available to other market participants. To 
restore confidence in commodity markets as well as reduce risk 
in the banking system, it is time to reduce bank involvement 
with physical commodities and to prohibit the use of non-public 
information in transactions involving commodities that the 
banks themselves control.
    Our Report offers a number of ways to address the issue, 
and the Federal Reserve's possible rulemaking provides a needed 
opportunity to address these problems. Today we will explore 
banks' physical commodity activities and the dangers that 
result. Tomorrow we will hear from additional experts and 
regulators.
    And now I turn to my partner in this bipartisan 
investigation, and my partner in so many other efforts over the 
years, Senator McCain.

              OPENING STATEMENT OF SENATOR McCAIN

    Senator McCain. I thank you, Mr. Chairman, and before I 
begin, I want to say what an honor and privilege it has been to 
serve alongside you in this Subcommittee. Your tireless efforts 
and steadfast dedication to exposing misconduct and abuse by 
financial institutions and government regulators have set a new 
standard for thoughtful and thorough congressional 
investigations.
    Whether the topic was the 2008 financial crisis, Swiss 
banking secrecy, or JPMorgan's ``London Whale'' debacle, 
professionals in the industry and the public at large knew that 
they could count on you to get to the bottom of it with 
authoritative reports and hearings. Your tenacity in uncovering 
wrongdoing sparked significant changes in the financial sector.
    I also commend you on zealously and effectively pursuing 
your investigations in a way that has furthered this 
Subcommittee's long-standing tradition of bipartisanship. We 
may have had our disagreements, but we did not let them get in 
the way of finding common ground in most cases.
    While your retirement may come as a relief to some of those 
on Wall Street, your patience, thoughtfulness, and commitment 
to bipartisanship will be deeply missed on this Subcommittee, 
on the Armed Services Committee, and in the U.S. Senate.
    Today's hearing explores the way in which major banks 
produce, store, and sell physical commodities like aluminum, 
natural gas, and uranium. It sheds light on the little-known 
yet large role that banks play in the commodities markets and 
the risks inherent in those activities. This lack of insight 
into the banks' commodities operations raises concerns about, 
among other things, potential market manipulation and excessive 
risk that could, in extreme circumstances, lead to taxpayer 
bailouts.
    This investigation has shown how, through their commodities 
activities, some of the country's largest financial 
institutions have taken on arguably excessive levels of risk, 
raised suspicions of market manipulation, and potentially 
gained unfair trading advantages.
    JPMorgan, for example, paid fines for energy price 
manipulation relating to its dozens of power plants, I believe 
$410 million. Morgan Stanley has entered the oil industry and 
even supplies several airlines with jet fuel at airports across 
the country. Goldman Sachs has uranium holdings and manages 
coal mines in Colombia. In each of these operations, there are 
dangers of toxic spills, deadly explosions, and other 
disasters. These are not the risks we normally associate with 
banks, whose primary role should be focused on more traditional 
banking activities.
    The American people are all too familiar with costly 
accidents in these industries. For example, BP incurred around 
$40 billion in damages resulting from the Deepwater Horizon oil 
spill. Imaging if BP had been a bank. The losses and the 
liability resulting from the spill would have led to the bank 
failing and another round of taxpayer bailouts. Even if a bank 
survived such a catastrophe, the resulting financial shock 
might hurt ordinary investors and pension holders.
    Similarly, inappropriate activities undertaken by financial 
institutions in commodities markets could lead to unfair 
trading advantages and conflicts of interest for the banks, and 
artificially higher prices for consumers.
    Mr. Chairman, I think you have just outlined that some of 
the activities have already led to artificially higher prices 
for consumers, including aluminum.
    Little is known about these activities, and even less has 
been done to combat some of the biggest concerns about risk and 
manipulation. This warrants oversight by Congress and financial 
regulators as well as potential changes to laws and 
regulations, to curb the dangers to the economy and halt unfair 
practices.
    While Chairman Levin has recommended, and our witnesses may 
offer, some potential solutions in our hearing today, I think 
we should be mindful of unintended consequences. But these 
concerns are serious, and, again, part of it goes back to our 
failure to commit after the catastrophe of 2008 that no 
institution would ever be too big to fail. I do not believe 
that anyone in America believes that these three financial 
institutions before us, that we have reduced them to the state 
where they are not too big to fail.
    I thank you, Mr. Chairman.
    Senator Levin. Thank you very much, Senator McCain, for 
your warm comments, for our long friendship and collaboration 
on so many matters, for your defense of this country, and your 
taking the gavel at the Armed Services Committee is surely 
going to be a very important moment in the future of this 
country and that committee. And your work and your staff's work 
on this Subcommittee has been essential to whatever successes 
we have had in terms of our investigations and recommendations. 
So thank you very much.
    We are going to have a number of votes today at 2 o'clock. 
There could be up to five votes, and my plan is to recess the 
hearing during those votes, which will also allow people time 
to have lunch. That is not what we planned for, but that is 
what the Senate schedule has brought us to. So it is not 
certain but it is likely that we will adjourn for about 90 
minutes--it could be 60 to 90 minutes--at around 1:45.
    We will now call our first panel of witnesses for this 
morning's hearing: Christopher Wibbelman, President and Chief 
Executive Officer of Metro International Trade Services LLC, 
Allen Park, Michigan; and Jacques Gabillon, Head of the Global 
Commodities Principal Investment Group of Goldman Sachs & Co., 
London, England.
    Gentlemen, I appreciate both of you being with us this 
morning. We look forward to your testimony, and as you, I 
think, are already aware of, all witnesses testifying before 
this Subcommittee are required to be sworn, so I would ask you 
now to raise your right hand as I administer the oath.
    Do you swear that the testimony that you will provide to 
this Subcommittee will be the truth, the whole truth, and 
nothing but the truth, so help you, God?
    Mr. Wibbelman. I do.
    Mr. Gabillon. I do.
    Senator Levin. Under our timing system today, at about 1 
minute before a red light comes on you will see the lights 
change from green to yellow. That will give you the opportunity 
to conclude your remarks. And your written testimony will be 
printed in the record in its entirety. We would appreciate your 
limiting your oral testimony to 5 minutes. And, Mr. Wibbelman, 
we will have you go first.

  TESTIMONY OF CHRISTOPHER WIBBELMAN,\1\ PRESIDENT AND CHIEF 
  EXECUTIVE OFFICER, METRO INTERNATIONAL TRADE SERVICES LLC, 
                      ALLEN PARK, MICHIGAN

    Mr. Wibbelman. Thank you, Chairman Levin, Ranking Member 
McCain, and Members of the Subcommittee. My name is Chris 
Wibbelman, and I am the CEO of Metro International Trade 
Services. I have been with Metro since it was founded in 1991 
as a startup company in Michigan, and I have served as its CEO 
since 2006.
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    \1\ The prepared statement of Mr. Wibbelman appears in the Appendix 
on page 139.
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    I was born and raised in Detroit. I attended Detroit public 
schools and graduated from Michigan State University. I have 
worked my entire life in the greater Detroit area, managed and 
ran several businesses. I have also served as Manager of Small 
Business Development for the Greater Detroit Chamber of 
Commerce.
    Metro operated LME warehouses since 1992 when we secured 
approval for Detroit to serve as an eligible LME delivery 
point. Much of Metro's growth occurred following the global 
financial crisis when worldwide consumption of aluminum 
declined and the demand for storage of metal increased.
    Starting in 2008, Metro purchased or leased 5.1 million 
square feet of warehouse space, much of which was unused 
industrial buildings. The process of renovating the industrial 
space and installing rail track and rail sidings created jobs 
when many Detroit residents were out of work or being laid off.
    The first thing to understand about the aluminum 
warehousing business is that it is driven by broader economic 
forces. Given the cyclical nature of this business, from 1994 
to 2001, Metro had virtually no aluminum whatsoever in its 
Detroit warehouses. During that period, we managed the business 
efficiently and remained committed to Detroit. And when the 
aluminum consumption dropped beginning in 2008, Metro was in a 
position to respond rapidly to the needs of aluminum producers.
    I believe that we were instrumental in allowing North 
American smelters to keep producing aluminum during the period 
of collapsing demand.
    The LME rules govern the way in which all LME warehouses 
are operated. These rules are established by the LME and not 
the warehouse companies. One such rule is the amount of metal 
that the LME warehouses must load out each day. When the new 
LME rule increasing the load-out rate was suspended by a court 
in the United Kingdom, Metro announced that it would comply 
with the rule voluntarily, even though it was not required to 
do so. More aluminum has been loaded out of Metro's Detroit 
warehouses than from any other warehouse company in the United 
States. In 2014 alone, we expect to load out approximately 
600,000 metric tons of aluminum.
    The Subcommittee's Report makes repeated references to 
aluminum ``queues,'' and it is important to understand that all 
of the aluminum stored in and out of aluminum warehouses, 80 
percent of it is not subject to any queue. Consumers can 
purchase aluminum from producers or any owner of aluminum that 
is stored in or out of the LME system, and that metal is 
available for immediate outbound shipment.
    It is also important to understand two other aspects of the 
queues.
    First, they are the result of independent decisions of 
owners of metal to realize the relative value of that metal 
compared to other metal. In order to realize that value, the 
owners must remove the metal from Metro's LME warehouse.
    Second, metal owners pay rent for all metal in Metro's 
warehouses, regardless of whether it is in a queue or not. 
Metro's revenues are not dependent on the length of queues.
    The Subcommittee's Report also refers to the July 2013 New 
York Times article you mentioned, which described supposed 
``merry-go-round transactions'' involving the movement of metal 
off-warrant from one warehouse to another. As the article 
itself acknowledged, there is no suggestion that the activities 
violate any laws or regulations. Metro offered its customers 
the opportunity to store metal off-warrant in a different Metro 
warehouse. Such customers had various other options, including 
storing their metal with competing companies, many of which 
have warehouses near to Metro's.
    Metro offered these off-warrant transactions to compete for 
storage of their metal once it was loaded out and it was no 
longer part of the LME system. But it was always up to the 
owner, not Metro, to decide what to do with the metal.
    The metal at issue in these relatively few transactions was 
loaded by Metro at the owner's instructions onto a truck, 
issued a bill of lading, and moved to another location at the 
owner's direction. Once the owner made the choice, the LME 
rules required that Metro follow the owner's instructions and 
treat the metal as loaded out and reduce its LME inventory 
stocks accordingly. The fact that the metal owner moves the 
metal between Metro warehouses in the Detroit area is no 
different under the LME rules than if it moves to an equally 
close non-Metro warehouse.
    I appreciate the opportunity to provide this information 
about Metro's warehouse business, and I hope it will contribute 
to the Subcommittee's understanding.
    Senator Levin. Thank you very much, Mr. Wibbelman.
    Mr. Gabillon.

  TESTIMONY OF JACQUES GABILLON,\1\ HEAD, GLOBAL COMMODITIES 
   PRINCIPAL INVESTMENT GROUP, GOLDMAN SACHS & CO., LONDON, 
                            ENGLAND

    Mr. Gabillon. Chairman Levin, Ranking Member McCain, and 
Members of the Subcommittee, my name is Jacques Gabillon. I 
lead Goldman Sachs' Global Commodities Principal Investment 
Group, or GCPI, and I also serve as chairman of the board of 
directors of Metro.
---------------------------------------------------------------------------
    \1\ The prepared statement of Mr. Gabillon appears in the Appendix 
on page 142.
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    In early 2010, GCPI believed that the Metro warehouse was a 
sound investment because the global recession had reduced 
worldwide demand for aluminum and would increase demand for 
storage. It was a good investment.
    At the time of the investment, customers had already 
deposited over 800,000 tons of aluminum at Metro, and we 
believed that the surplus condition would persist. 
Consequently, Metro was well positioned to continue to realize 
this demand for storage.
    Metro's board of directors sets the general strategy and 
conducts oversight in keeping with standards of good corporate 
governance and the requirements of the Bank Holding Company 
Act. The board has always included people from the firm's 
control functions, including the Compliance Department.
    As you know, Metro is subject to the rules of the LME, 
including the minimum amount of metal required to be loaded out 
of warehouses each day. Often the dynamics of this LME system 
are mistaken for the broader aluminum market, which supplies 
most consumer products.
    As a starting point, the price negotiated between many 
sellers and buyers of aluminum in the United States is commonly 
referred to as the ``all-in price.'' The difference between 
this all-in price and the price for an LME warrant is referred 
to as the ``Midwest Physical Premium.'' But one thing is clear: 
The all-in price has actually fallen substantially since 2008. 
Consequently, any suggestion that end users are paying more for 
aluminum because of a higher premium is simply not supported by 
the facts.
    Like every other market, the price of aluminum is 
established through supply and demand, and those trends have 
been unmistakable. There has been a consistent surplus of 
aluminum since 2008, resulting in a large volume that has been 
placed in storage. That is why there has never been a shortage 
of aluminum.
    In addition, there are large quantities of aluminum stored 
outside the LME system. So together with non-queue aluminum, 
there is approximately 9.6 million tons of aluminum to be sold 
for immediate delivery to any user.
    I would like to briefly address the issues of queues. To 
begin with, the length of the queue to remove metal from 
Metro's warehouse is not the result of any action by either 
Goldman Sachs or Metro. General economic confidence and 
availability of credit improved, making off-warrant storage a 
more attractive alternative. This occurred not only in Detroit, 
but also in another major city for metal warehousing, 
Vlissingen in the Netherlands.
    One more thing occurred at the time. The LME changed its 
rule to double the minimum load-out requirement from 1,500 to 
3,000 tons per day. The Subcommittee should know that when the 
LME doubled the minimum load-out requirement, the result was 
actually longer, not shorter, queues. And most importantly, 
based on the reports we have provided to the Subcommittee, 
these queues do not drive the all-in price that consumers pay.
    On a related issue, we have provided a significant amount 
of information to the Subcommittee on the issue of incentives. 
Operators may offer an up-front payment on future rent 
collections to customers who place metal on warrant in their 
warehouses. In other instances, operators offer discounted rent 
to customers who agreed to store their metal for specific 
durations. These incentives are similar to those offered by 
landlords, such as offering one month's free rent to attract a 
tenant or reducing rent for a tenant who signs a long-term 
lease.
    Metro has offered both of these incentives, consistent with 
the LME rules and industry practice. The inducements that have 
been offered result from arm's-length negotiations between 
Metro and a sophisticated customer.
    Finally, I will briefly conclude with a description of the 
information barriers that exist between Goldman Sachs and 
Metro. The LME rules require that an information barrier be 
established between a warehouse company and affiliated trading 
entities. Goldman Sachs has such a barrier in place which not 
only meets, but exceeds, the LME's requirements. We take this 
issue very seriously.
    For example, much of the material that Metro generates and 
distributes to its board is not actionable for a trader and, in 
any event, is dated and sanitized to remove the names of 
counterparties. Regular reviews by Goldman Sachs personnel and 
outside auditors have not found a single instance where 
confidential Metro information went to the metals trading 
personnel of Goldman Sachs.
    Mr. Chairman and Senators, in the many hours we have spent 
with the Subcommittee staff, we have described the market 
fundamentals that dictate price and availability, and I look 
forward to continuing that discussion today. Thank you.
    Senator Levin. Thank you very much.
    First, Mr. Wibbelman, you are the Chief Executive Officer 
of Metro. Mr. Gabillon, you were for most of the period an 
executive in Goldman's Global Commodities Principal Investment 
Group, and you were chairman of Metro's board of directors. So 
in the very first board meeting, after Goldman bought Metro in 
2010, the board discussed the incentives that Metro would pay 
to attract more aluminum to its warehouses in Detroit.
    If you look at Exhibit 1b,\1\ that is a chart which was 
sent to us by Goldman's legal counsel on the total amount of 
freight incentives or allowances paid by Metro in each year 
from 2010 to 2013. You will see that each year after Goldman 
acquired Metro, Metro paid more and more cash incentives to 
attract aluminum to its Detroit warehouses, going from about 
$36 million to over $128 million. That does not count expanding 
rent discounts and other incentives, so that is an increase of 
about 350 percent over just a few years for freight allowances.
---------------------------------------------------------------------------
    \1\ See Exhibit No. 1b, which appears in the Appendix on page 817.
---------------------------------------------------------------------------
    Are those figures accurate? Were those allowances and 
subsidies increased as shown on that chart?
    Mr. Gabillon. I do not recognize exactly the numbers.
    Senator Levin. Are they approximately right?
    Mr. Gabillon. But the trend is correct and is a reflection 
of the evolution of the aluminum markets.
    Senator Levin. Now, Mr. Wibbelman, you told the 
Subcommittee that after Goldman acquired Metro, you generally 
had to run all your major decisions by Metro's board or a board 
subcommittee. That was made up totally of Goldman people. Did 
you consult with Mr. Gabillon and the board before increasing 
Metro's incentives?
    Mr. Wibbelman. So, Senator, I had a level of authority for 
incentives at various time periods, and that would be adjusted 
by the board of directors. And then as circumstances changed, 
that would be occasionally reviewed from time to time or it 
would be--we would make a specific request on a specific case 
basis, and it would be either approved by the Commercial 
Subcommittee or it would----
    Senator Levin. Of the board?
    Mr. Wibbelman. Of the board, or it would not.
    Senator Levin. So as to whether you consulted with Mr. 
Gabillon and the board before increasing Metro's incentives, 
the answer, I take it, is generally yes, although you had some 
authority between those approvals. Is that correct?
    Mr. Wibbelman. Yes.
    Senator Levin. So basically it was a joint decision to go 
ahead with this program and these incentives, is that correct?
    Mr. Wibbelman. Well, Senator, if I might, you know, the 
market itself at that point in time was, you know, incredibly 
dynamic and unique, and so, you know, it was--at that point in 
time, we were evaluating really a wave of surplus metal that 
was making itself available to us. And Metro was trying to 
respond operationally in order to be able to receive it all, 
and that is----
    Senator Levin. You were giving incentives to bring more 
into your warehouse. Is that correct?
    Mr. Wibbelman. Incentives have been a part of our business 
for the 23 years----
    Senator Levin. I understand, but the amount of the 
incentives dramatically increased. Is that correct?
    Mr. Wibbelman. Because the magnitude of the metal also 
increased.
    Senator Levin. Did the amount of the incentives 
dramatically increase?
    Mr. Wibbelman. They increased over the full 5-year period 
of time.
    Senator Levin. As shown on that chart?
    Mr. Wibbelman. Yes.
    Senator Levin. And that was a joint decision, was it, 
between you and the board and the board subcommittee?
    Mr. Wibbelman. Generally, yes.
    Senator Levin. OK. Now, if you look at Exhibit 1d,\1\ this 
is a list of Metro board members, and this was supplied to us 
by Goldman's legal counsel. Are these all Goldman employees? Is 
that correct?
---------------------------------------------------------------------------
    \1\ See Exhibit No. 1d, which appears in the Appendix on page 819.
---------------------------------------------------------------------------
    Mr. Wibbelman. Not currently anymore, no.
    Senator Levin. They were?
    Mr. Wibbelman. At the time of their service, yes.
    Senator Levin. And, Mr. Gabillon, did Mr. Wibbelman talk to 
you personally as well as to other board members about 
increasing the amount of freight incentives that Metro would 
pay to attract metal to its Detroit warehouses? Did you have 
personal conversations with Mr. Wibbelman about that?
    Mr. Gabillon. Yes, we had many conversations in the context 
of the board, yes.
    Senator Levin. About that subject?
    Mr. Gabillon. Yes.
    Senator Levin. And then the board members approved these 
increased amounts generally. Is that correct?
    Mr. Gabillon. I think there were many times where we did 
not approve an increase.
    Senator Levin. You disapproved an increase?
    Mr. Gabillon. Yes, there were many times where we kept the 
level of approval constant.
    Senator Levin. OK. But when there were increased amounts, 
the board generally approved them. Is that correct?
    Mr. Gabillon. Yes, that is correct.
    Senator Levin. Now, we are going to spend some time talking 
about LME warrants, queues, and so I want to explain this as 
clearly as I can. The LME is the world's largest metals 
exchange, and when you buy a future contract on the LME, in a 
fixed period of time you can settle the contract by paying 
money and taking delivery of warrants, which are documents that 
convey actually legal title to specific lots of metal that are 
stored in an LME-approved warehouse. In aluminum, these lots of 
metal are 25 metric tons or about 2,200 pounds. And when an 
owner of the metal wants to take physical possession of the 
metal, the owner has to cancel the warrants and get in the exit 
line or queue to leave the warehouse.
    But the LME warehouses only have to load out a specific 
amount of metal every day. For the largest warehouses, it used 
to be 1,500 metric tons. It was raised to 3,000 metric tons. So 
for warehouses that store hundreds of thousands or millions of 
tons, if an owner of a lot of aluminum cancels his warrants at 
once, it can dramatically increase the queue, making everyone 
else stay in the warehouse and continue paying rent longer.
    But that is not the only thing. As we will learn more about 
later, the length of that queue impacts the prices of metal and 
related financial products. It is highly correlated to the 
premium, and that premium, when added to the LME price, is the 
so-called all-in price.
    Mr. Wibbelman, beginning shortly after Goldman bought Metro 
and over the next few years, Metro entered into what became six 
deals that involved owners of metal being paid incentives by 
Metro for waiting in the queue, moving metal from one Metro 
warehouse to another, and re-warranting. And I am going to call 
them ``merry-go-round deals.'' That is what a forklift operator 
called them.
    Mr. Wibbelman, you told the Subcommittee that Metro had 
never done deals like that prior to being acquired by Goldman. 
Is that correct?
    Mr. Wibbelman. Yes, but I do not think it was anything to 
do with Goldman as to why that was not the case, Senator.
    Senator Levin. I understand. But before you were acquired 
by Goldman, you never entered deals like that. Is that correct?
    Mr. Wibbelman. Yes, but there was never a market dividend 
like that either.
    Senator Levin. OK. Now, before doing this new type of deal, 
did you consult with Mr. Gabillon or others at Goldman?
    Mr. Wibbelman. Yes.
    Senator Levin. And did you consult with Goldman employees 
on Metro's board before finalizing each of these deals?
    Mr. Wibbelman. Yes.
    Senator Levin. So it was a joint decision to go ahead.
    Mr. Wibbelman. Yes, I think it----
    Senator Levin. Is that fair to say?
    Mr. Wibbelman. I would say that there was an alignment of 
understanding about the deals. Probably some of those deals I 
might have had the authority to execute without formal written 
authority, and other ones I did not, but all of them were 
thoroughly vetted.
    Senator Levin. And jointly decided upon. Is that correct?
    Mr. Wibbelman. Yes.
    Senator Levin. OK. Now, this is what happened on 1 day, 
December 27, 2013. Workers at eight of Metro's warehouses were 
rapidly shuffling about 5.5 million pounds of aluminum between 
Metro's warehouses. Workers at a warehouse in Detroit on East 
McNichols Road were busy shipping out ten truckloads of 
aluminum, which is more than 860,000 pounds, to a warehouse on 
Lynch Road. The Lynch Road warehouse workers were busy shipping 
17 truckloads of aluminum, totaling about 1.4 million pounds, 
right back to East McNichols Road.
    Now, if that were not enough, three other warehouses, on 
Lafayette Street, Pennsylvania Road, and 22d Street, shipped 
millions of pounds of aluminum to three other nearby warehouses 
located at East Nine Mile Road, Ecorse Road, and West 
Jefferson.
    Now, when you look at these deals and look at the 
specifics, this is what happened. Look at Exhibit 1c.\1\ This 
was provided by Metro's legal counsel. It shows that as of 
January of this year, over 600,000 metric tons of metal were 
moved between Metro warehouses in Detroit. All of those 600,000 
tons, if you look at Exhibit 1c, came from just those six deals 
that you identified. Is that correct? First of all, look at 
Exhibit 1c and do you agree--this was provided, again, by Metro 
legal counsel--that all 600,000 of those tons came from just 
those six deals that we have talked about. Is that correct?
---------------------------------------------------------------------------
    \1\ See Exhibit No. 1c, which appears in the Appendix on page 818.
---------------------------------------------------------------------------
    Mr. Wibbelman. Yes.
    Senator Levin. Now, the merry-go-round deals required Metro 
to organize and pay for thousands of truck shipments between 
its own warehouses, pay millions of dollars in incentives to 
its warehouse customers. We have details on the incentive 
payments for just two of those six deals, but those invoices 
alone show Metro owing two warehouse customers, Red Kite, which 
is a hedge fund, and Glencore a total of about $37 million. And 
Exhibit 22a\2\ is an invoice summary of just the most recent 
two deals.
---------------------------------------------------------------------------
    \2\ See Exhibit No. 22a, which appears in the Appendix on page 
1002.
---------------------------------------------------------------------------
    Can you tell us first, Mr. Wibbelman, how much Metro paid 
for the first four deals? We know it was about $37 million in 
subsidies and incentives for the two that I have mentioned, but 
just for the first four, do you know what that total is?
    Mr. Wibbelman. I do not know what that total is, Senator.
    Senator Levin. The two deals alone that we are talking 
about required 6,500 truckloads of aluminum to be shuttled 
between Metro's Detroit warehouses. Do you know how many 
thousands of trucks Metro had to arrange and pay for under the 
previous four deals, Mr. Wibbelman?
    Mr. Wibbelman. I do not know that, Senator.
    Senator Levin. That is OK. These deals were so important 
that they were taken to Metro's board of directors for 
approval.
    Now, they were not in a formalized contract. Is that 
correct? These deals did not result in a formalized contract?
    Mr. Wibbelman. Overwhelmingly, none of our deals takes 
place on a formal contract.
    Senator Levin. All right. There was an effort at a formal 
contract, was there not, with Deutsche Bank?
    Mr. Wibbelman. If a customer wants to have a contract, we 
will look at it and talk about whether we need to have one or 
not. But our deals are settled incrementally over time.
    Senator Levin. That is fine.
    Mr. Wibbelman. So we tend not to need them.
    Senator Levin. And Deutsche Bank wanted one?
    Mr. Wibbelman. They provided one.
    Senator Levin. And signed it?
    Mr. Wibbelman. And signed it.
    Senator Levin. And you did not?
    Mr. Wibbelman. I do not believe it was countersigned.
    Senator Levin. And why?
    Mr. Wibbelman. I think they just decided they did not need 
it.
    Senator Levin. Oh, they did not want it, Deutsche Bank?
    Mr. Wibbelman. I do not have that recollection at this 
time. It was not a material component of whether the deal took 
place. We knew we would not have had to make any of our 
payments if it had not been executed like it was supposed to.
    Senator Levin. Now, we only have the details on the last 
two of these deals, but, again, the six deals involved Metro 
arranging and paying for thousands of trucks to move over 
600,000 metric tons of aluminum from one warehouse to another. 
In one case, the aluminum was moved from one warehouse to 
another about 200 feet away.
    Now, was the point of all these truckloads shifting metal 
from one warehouse to another Metro warehouse to enable Metro 
to claim it was meeting the LME daily minimum load-out rule 
that said that a warehouse had to load out a minimum of 1,500 
pounds, later 3,000 pounds a day, while at the same time 
ensuring that virtually no metal actually left the Metro 
system?
    Mr. Wibbelman. Well, Senator, I mean, it starts with the--
--
    Senator Levin. Was that the point of it, is my question.
    Mr. Wibbelman. I am trying to answer. It starts with the 
recognition of the customer that the metal that is available 
within the Metro system is of relatively better value than any 
other metal it can purchase. And, typically, for example, in 
the first deal that you mentioned, the owner wanted to own 
metal and finance it for a duration of time. And the way for 
them to capture that was to own the metal, and once they owned 
the metal, the way for them to protect their value was to put 
it in the queue and plan to take it out.
    Senator Levin. They could have continued to own the metal 
and leave it in the warehouse. Is that correct?
    Mr. Wibbelman. They could have, but it would have cost them 
more, and so they chose not to do that.
    Senator Levin. And you gave them a subsidy to go through 
this rinky-dink merry-go-round system. They could have----
    Mr. Wibbelman. Well, Senator, we do not----
    Senator Levin. You could have given them a subsidy, a 
discount, and leave it in the warehouse, could you not?
    Mr. Wibbelman. Well, you can--Senator, we are a commercial 
business, right?
    Senator Levin. Is that right? You could have given them a 
discount and left it in the warehouse.
    Mr. Wibbelman. Yes.
    Senator Levin. But you moved it to another warehouse, 
sometimes 200 feet across, and the result of that was it stays 
in your warehouse but it also lengthens the queue. Were you 
aware of the fact that the queue would be lengthened when they 
did what you arranged for them to do?
    Mr. Wibbelman. We did not arrange for it, right? The 
customer chose to do it----
    Senator Levin. No, but the customer was also paid to do it.
    Mr. Wibbelman. The customer was paid----
    Senator Levin. By you.
    Mr. Wibbelman. In the event that they moved it to another 
warehouse and then chose to warrant it later. They did not have 
to make that choice, and they did not.
    Senator Levin. They were paid by you, were they not, they 
were paid by you to keep that in your warehouse?
    Mr. Wibbelman. That was a choice they made.
    Senator Levin. Would they be penalized if they did not do 
it under the contract?
    Mr. Wibbelman. Well, it was a contract where they--what 
they did is they, by freedom of contract, chose to agree on an 
economic set of conditions.
    Senator Levin. And under that contract, was there a penalty 
if they did move to another warehouse other than yours? Was 
there a penalty?
    Mr. Wibbelman. Well, we presumed that we would get a 
revenue stream in order to provide the incentives we provide, 
and if they chose a different route, they were effectively 
going to refund us back that amount.
    Senator Levin. Mr. Wibbelman, I am asking you a very direct 
question. You gave them an incentive to, first of all, de-
warrant, right? They would have to then go to the head of the 
queue, and then you gave them an incentive in a contract, in an 
agreement to go to another warehouse, sometimes a few hundred 
feet away, and join another queue. Is that correct?
    Mr. Wibbelman. No, because they had many options, Senator. 
They had the option----
    Senator Levin. Not under the contract they did not.
    Mr. Wibbelman. Yes, they did. They had the option----
    Senator Levin. They could break the contract.
    Mr. Wibbelman. They can break the contract.
    Senator Levin. OK. That is not much of an option for most 
business people to break----
    Mr. Wibbelman. That was the----
    Senator Levin. Wait a minute. Let me finish. That is not 
much of an option for most business people. You say they had 
the freedom to break the contract. You entered a contract 
which, if they lived up to it, required them to move, sometimes 
a few hundred feet, their metal to another Metro warehouse. You 
paid them to do that, and then there was a penalty if they did 
not under that contract. They had the freedom to break the 
contract. Most business people do not consider that a choice.
    Mr. Wibbelman. Well, Senator, they set the contract up in 
the beginning----
    Senator Levin. Did you not? Were you not a party to that 
contract?
    Mr. Wibbelman. Of course. I am one part. The other party is 
the counterparty.
    Senator Levin. Of course.
    Mr. Wibbelman. And so that was the agreement----
    Senator Levin. But under the contract--let us be clear--you 
insisted in that contract that they would pay a penalty if they 
did not put their metal into another Metro warehouse. You paid 
them a subsidy to do that, and there was a penalty if they did 
not do that. Is that correct under that contract?
    Mr. Wibbelman. That was correct, but it was also in 
response to costs that we incurred or revenues that we did not 
receive. So we were effectively trying to get a reimbursement 
for things that we would otherwise have been able to receive or 
expenditures were made.
    Senator Levin. And you could have given them an incentive 
to stay in the original warehouse, could you not? You could 
have kept them there with a discount? Is that correct?
    Mr. Wibbelman. Yes, we could----
    Senator Levin. You were allowed to do that.
    Mr. Wibbelman. We could have given them anything, but 
commercially, as a business, that is not what we choose to do.
    Senator Levin. No. But you chose instead to do this in a 
way which, will you agree, lengthened the queue?
    Mr. Wibbelman. So we----
    Senator Levin. I am just asking you. Was the effect of this 
to lengthen the queue?
    Mr. Wibbelman. Senator, anyone that cancels a warrant in a 
warehouse for that moment adds to the queue. But it could have 
been any--remember, there are tons of other warehouses.
    Senator Levin. I am just getting a direct answer from you, 
if I can. The effect of this arrangement was that the queue was 
lengthened. Is that correct? It is a simple, direct question. 
And you are under oath. Was the effect of that to lengthen the 
queue?
    Mr. Wibbelman. If they chose to cancel their warrants-----
    Senator Levin. Not if they chose. Did the contract 
provide----
    Mr. Wibbelman. Yes, but if they chose that, they had to 
actually obtain warrants and cancel them, and that was 
something that was their choice.
    Senator Levin. This is warranted metal in your warehouse.
    Mr. Wibbelman. Yes, but the warrants are freely floating 
title documents.
    Senator Levin. Of course.
    Mr. Wibbelman. They have to go find one, right?
    Senator Levin. I understand.
    Mr. Wibbelman. And once they find it, they have to actually 
cancel it.
    Senator Levin. I want to get a straight answer from you, if 
I can.
    Mr. Wibbelman. I am trying to give you them.
    Senator Levin. OK, but let me go through this. You entered 
into a contract which required the counterparty, is that not 
correct--if they lived up to the contract----
    Mr. Wibbelman. Yes, if they chose to.
    Senator Levin. If they chose to live up to a contract, do 
not most people you deal with honorably live up to their 
contract?
    Mr. Wibbelman. But it was always their option.
    Senator Levin. To cancel--to not live up to the contract?
    Mr. Wibbelman. It was always if you do it, then you will 
get the incentive.
    Senator Levin. The contract you entered into required them 
to immediately cancel their warrants. Is that correct?
    Mr. Wibbelman. I do not recall that it was a requirements 
contract. I recall it was an optional contract, an option.
    Senator Levin. Well, we will get into the words of the 
contract and which you did not want to put in writing, but we 
do have one contract that is in writing. And I just want to 
sum--just get to the bottom line. The contract which you 
entered into required them, if they lived up to the contract--
--
    Mr. Wibbelman. Which they did not have to do, right?
    Senator Levin. Let me just finish this. If they live up to 
the contract, they were required to immediately cancel the 
warrants, move the metal to another warehouse, and the result 
of that is to lengthen the queue. Is that accurate? If they 
lived up to the contract.
    Mr. Wibbelman. If they made all those choices, which they 
did not have to make by the contract, in my recollection.
    Senator Levin. If they lived up to the contract, is my 
question.
    Mr. Wibbelman. My recollection is that the contract was an 
option contract where they had the option to do it.
    Senator Levin. The option to enter the contract?
    Mr. Wibbelman. They had the option--they never had to 
cancel the metal in the first place.
    Senator Levin. OK. Senator McCain.
    Senator McCain. Remarkable. Mr. Wibbelman, it used to take 
40 days for Metro to remove aluminum from its warehouses for 
its clients. Now it takes over 600 days. How do you explain 
that?
    Mr. Wibbelman. Senator, that is a recognition of the 
relative value of the metal that is in Metro's warehouses 
compared to any other metal that exists in the LME system or 
with any other private owner in the world, and that is--what 
happens is those warrants are canceled when someone perceives 
it as being a value, a relative value.
    Senator McCain. That has to do with the time that it takes 
to remove aluminum from a warehouse?
    Mr. Wibbelman. Well, the LME system, Senator, is a seller's 
choice contract. So, in other words, if someone sells metal, 
they get to pick which warrant that they want to surrender in 
satisfaction of that contract.
    Senator McCain. Someone wants Metro to remove aluminum from 
its warehouse, a client does. Now it takes over 600 days, and 
it used to take 40 days. And you are saying that has to do with 
the nature of the contract?
    Mr. Wibbelman. No. Well, I am saying that it is a 
reflection of the fact that the London Metal Exchange price 
moves in relation to the relative value of the available 
warrants that are freely floating in the market.
    Senator, if I can explain----
    Senator McCain. Mr. Gabillon, Metro's warehouses are 
approved by the London Metal Exchange. Isn't it true that LME 
raised concerns about the merry-go-round scheme in your 
warehouse operations? Is it true that they raised concerns 
about it?
    Mr. Gabillon. First, Senator, if I may, we do not call them 
``merry-go-round transactions'' for a very precise reason. We 
refer to them as ``off-warrant transactions'' because that is 
what Metro offers to its customers.
    Senator McCain. I am just asking, is it true or not true, 
yes or no, that LME raised concerns about your warehouse 
operations?
    Mr. Gabillon. They started an investigation on a very 
specific point, yes.
    Senator McCain. Mr. Gabillon, over 50 Goldman employees 
received confidential information about Metro's warehousing 
operations. So, therefore, they have access to commercially 
valuable non-public information. And Goldman, as we know, has 
other interests, including trading. What procedures does 
Goldman have or do you have to ensure that its traders do not 
have access to commercially sensitive information?
    Mr. Gabillon. So we have a very precise system, and as I 
said in my opening statement, we take that very seriously. So 
if I can describe briefly, as you know, it is an LME 
requirement to have an information barrier between a warehouse 
company and affiliated trading companies. So right at the 
acquisition time, we put in place a procedure that actually 
goes beyond the LME requirements on a couple of levels, and 
effectively restrict to a very small list, not the 50 people 
you mentioned but I believe it is 8 people right now. We 
receive some sanitized, aggregated information, which are 
really the people in my team and some of my superiors that 
represent the shareholders of Metro, because you will relate to 
that. But Metro is owned 100 percent by Goldman Sachs, and it 
is actually consolidated in the Goldman Sachs Group, so this 
means that we need--we have a need for information.
    So some of the people you referred to--and I believe the 
number is well below 50 currently, constitute of people that 
receive non-commercial information, primarily financial 
information, and they sit in our Financial Control Department. 
They will also sit in our Legal and Compliance Department. 
There are also some people that actually sit in the E-Mail 
Surveillance Group, and that's the information received.
    Then we have this policy where all this information is 
restricted to that very small group of people, and nothing goes 
to the metal sales and trading people. We have a segregated 
room, and we have email surveillance which is perfected by our 
Compliance Department. And I would say in the last 5 years, 
since acquisition, we never had a breach of that policy.
    Senator McCain. How would you know that, Mr. Gabillon? 
Don't Goldman employees oversee the operations of your 
warehousing business? How would you know whether they used that 
information or not?
    Mr. Gabillon. I am not sure what you meant by Goldman Sachs 
people oversees the----
    Senator McCain. Goldman employees have access to sensitive 
information about your operations, right? Because they own it, 
and I think that is legitimate. What confidence do we have that 
they do not share it with the other aspects of Goldman's 
operations, which they could use to their advantage?
    Mr. Gabillon. We have two levels. We have the system that I 
described, and nothing has ever come up, so we have email 
surveillance which has confirmed----
    Senator McCain. So nothing has ever come up is the answer 
to the fact that they have access to sensitive information 
which could give them an advantage in their other operations. 
So nothing has ever come up so it is OK?
    Mr. Gabillon. No, I would say two things. One, they do 
not--metal and sales trading people do not have access to any 
of the Metro information. Even myself as chairman of the board, 
the data I get from the Metro people for the perfecting of 
the--as a shareholder----
    Senator McCain. Is there a prohibition from them sharing 
operation----
    Mr. Gabillon. Yes, there is.
    Senator McCain. There is?
    Mr. Gabillon. There is under our policies, yes.
    Senator McCain. And how do we know that that is enforced?
    Mr. Gabillon. OK. So the second thing I was going to say, I 
believe 2\1/2\ years ago the LME introduced a further 
requirement on the information barriers which would require 
Metro to have a third-party certification of the information 
barrier policy. This audit has been performed twice by PwC, and 
twice Metro has passed successfully, the fact that no 
information, no confidential information went to metal trading 
people at Goldman Sachs. So that is a third-party certification 
which might give you additional comfort.
    Senator McCain. Well, I am glad you have that confidence. 
Unfortunately, we have seen time after time instances where 
that is not necessarily true, and to me it sets up a 
relationship which could over time lead to manipulation, and 
because you have had no complaint does not mean necessarily 
that that is the case.
    Mr. Chairman, I have no more questions.
    Senator Levin. Thank you.
    Senator Portman, are you ready? I can go, or you, either 
way.
    Senator Portman. Mr. Chairman, I will go ahead if that is 
OK.
    Senator Levin. Sure. Senator Portman.

              OPENING STATEMENT OF SENATOR PORTMAN

    Senator Portman. And I apologize. I was on the floor 
talking about one of Senator McCain's and your favorite 
topics--in fact, I mentioned you--which is the issue in Ukraine 
and what is going on with Russia. But I am happy to be here, 
and I appreciate your holding the hearing, which gives us an 
opportunity to explore the role that banks play in the 
commodities markets.
    Since Gramm-Leach-Bliley was enacted, banks have had this 
legal authority to engage in physical commodity activities, and 
I know that many end users of commodities think that the banks' 
involvement in this area has been beneficial. I know 
municipalities in my State of Ohio have told me that. The 
natural gas market is an example for them where they think it 
has been helpful.
    Nevertheless, I agree this is a responsible use of our 
oversight responsibilities to revisit that decision by Gramm-
Leach-Bliley periodically and to ensure that banks are using 
that authority in responsible ways that do not threaten the 
security of our financial system.
    The focus of this panel is on how one particular bank, 
Goldman Sachs, has used its authority under Gramm-Leach-Bliley 
to participate in the market for a particular commodity, so 
this is, as I understand it, focused on one particular issue, 
and that is aluminum. Specifically, Goldman used its authority 
to purchase a company called Metro that warehouses aluminum. I 
understand the aluminum market is characterized by two types of 
warehouses: One are warehouses governed by the rules 
established by the London Metals Exchange, known as the LME 
warehouses, and then those not governed by LME rules, known as 
the non-LME. Metro's LME warehouses are the focus, as I 
understand it, of this Subcommittee's inquiry today, and I also 
understand that aluminum owners have three basic options for 
what they do with their metal. They can sell it to end users. 
They can store it for sale later. If they choose to store it, 
they can do so in LME warehouses or in non-LME warehouses.
    So my questions, I guess, are more about how does this all 
work? If you could just explain to me--and I know some of this 
discussion has already occurred, although we had somebody 
monitoring the hearing earlier who said that some of these 
issues have not come out yet, so let me ask some specific 
questions.
    Describe for us how the aluminum warehousing system really 
works. Why do aluminum owners warehouse their metal at all? How 
do they decide whether to use an LME warehouse or a non-LME 
warehouse?
    And let me go ahead and give you the second question that I 
have, which is: Since 2008 it seems that aluminum owners have 
increasingly chosen to warehouse their metal instead of selling 
all of it under the physical market. This has resulted in 
rising warehouse inventories, particularly at LME warehouses. 
Can you explain why? Why are these warehouse inventories, 
particularly LME inventories, increasing over the last several 
years? In some cases, these inventories have risen 
dramatically.
    So how do aluminum owners decide where they are going to 
put their metals, LME or non-LME? And why, since 2008, have we 
seen the increasing inventories?
    Mr. Wibbelman. Well, Senator, the London Metal Exchange 
operates as a futures market, and it is a market unto itself. 
It can be interacted with by the consumers if they choose to do 
that, but it has provided itself a market by which producers 
could continue to produce metal during periods when the demand 
was collapsing.
    So following the global financial crisis, for example, 
since that point in time, Metro has received into Detroit 3.6 
million metric tons of metal, and that really acts as a 
strategic stockpile and a buffer stock, which really gives the 
consumers a chance to have some alternative sources of metal.
    Now, they have not entered the warehouse to take metal out 
directly very often, but what has happened is Metro has been 
shipping metal out in great quantity--600,000 tons a year for 
the last several years--and that metal goes to the particular 
owners. And those owners have a choice. They can put it back 
onto the LME. They can put it back--they can sell it to 
consumption, or they can store it off-warrant in off-warrant 
storage areas.
    And so what the LME system has done is essentially allow us 
to create a strategic stockpile within North America, a large 
one. And so that is why the argument about pricing. I mean, 
Metro's activities have done really, I think, nothing but 
amplify the competitive options that people have had, when you 
are talking about 3.6 million metric tons that really might 
never have been produced in the first place. And really it was 
only when the LME system rules were under some revision that 
smelters started to really amplify their shutdowns, for 
example, in your State.
    And so really the LME system has been quite vital for 
producers to be able to have a predictable customer when no 
customer exists in the physical consumption world.
    Senator Portman. Mr. Gabillon, any additions to that?
    Mr. Gabillon. Yes, maybe I will just add one thing, because 
you asked a question about whether people decide to store on 
the LME or not on the LME.
    Senator Portman. Right.
    Mr. Gabillon. I think to put things in context--and I think 
it is relevant to the earlier debate that took place on those 
off-warrant transactions. In the LME, you are under rules set 
by the LME, but you have a lot of benefits that are attached to 
it because you have what we call liquidity, which is, each 
metal is described as a warrant, and there is a trading place 
where you can buy and sell futures contracts that will deliver 
on these warrants.
    So if you want to be, for instance, a financier and you 
want to finance your metal, you will find that if you own metal 
under the LME, meaning stored in an LME-approved warehouse's 
warrant, banks will give you a lot of financing, you will have 
a lot of liquidity, because if your collateral needs to be 
foreclosed, it will be very easy for the bank to foreclose on 
it and then sell it into the market. And so that is under the 
contract of the LME.
    Of course, the downside of that, the LME has to have rules, 
so, for instance, the minimum load-out rules and when you can 
take it, and you might have to wait.
    Senator Portman. But customers are willing to have those 
restrictions in order to get the benefits, including more 
liquidity?
    Mr. Gabillon. Yes. And when we say ``customer,'' I think we 
should try to be a bit more precise. The other thing I would 
say of this LME warehousing system, it is not a supply storage 
system. It is an LME warehouse system that has been built and 
established to support the LME as a marketplace. So not a lot 
of people would use that. Producers would use that as a market 
of last resort when it happened in 2008 because suddenly there 
was a collapse of demand, and the only people that could 
actually buy this aluminium and finance it, to your point, was 
on the LME. But that is easy to deliver onto. If you buy onto 
the LME, for instance, it is actually the seller that decides 
which ones they are going to deliver. So they could be in 
Malaysia, they could be in Rotterdam, or they could be in 
Detroit. You do not know in advance. So people generally have 
not used the LME to provide.
    Then if you are storing off-warrant, very quickly, which is 
part of what our customers sought to do in the past, you are 
taking much more risk because you are on your own, if you like. 
You are storing metal in a warehouse somewhere. There are no 
rules, right? It is a bit more difficult to get financing. You 
need to organize the logistics.
    Senator Portman. And more exposure.
    Mr. Gabillon. And more exposure because most of the people 
are storing aluminum, and that is something we have not gone 
through yet. It is a bit more complicated, but when people own 
the commodity, most of the time they would have hedged it. If 
you have done all of that on the LME, again, your risk is very 
reduced because if something happened, you can just wait and 
deliver your LME warrant. If you are doing that in a field, 
though, in a warehouse which is far from an LME delivery point, 
you run a lot of risk between the two, and it is more 
complicated, and that is why banks are reluctant. So people 
always have to decide between those two, and right after the 
financial crisis, there was not a lot of confidence, funding 
was difficult, so that is why all this material went onto the 
LME. And now as the situation has improved, that is why the LME 
metal is trying to get out. Sorry for the long answer.
    Senator Portman. As the economy began to pick up--one of 
the questions I have, just hearing you all--what percent of the 
market does this particular warehouse and this company 
represent? The Goldman investment is in Metro, I take it. Do 
you have other warehouses? You are the Goldman guy, right?
    Mr. Gabillon. We own 100 percent of Metro. That is it. It 
is a bit difficult to answer the question about market share 
because it does vary over time. So as I said, at the beginning 
of the financial crisis, all this metal went onto the LME, and 
not a lot of metal was stored outside. If you look at it 
today----
    Senator Portman. What percent of aluminum is in this 
warehouse today, the Metro warehouse?
    Mr. Gabillon. Today it is about a million.
    Mr. Wibbelman. About a million.
    Mr. Gabillon. A million tons, and the annual market for 
aluminum is about 50 million tons, and probably observers of 
this market would tell you you probably have something like 12 
million tons being stored on the planet right now. It is 
difficult--we know about the LME because it is publicized, but 
what is outside, we do not have the data.
    Senator Portman. Are you saying 2 percent? Are you saying 
50 and 1?
    Mr. Gabillon. Two percent of production; 2 percent of 
annual production is stored right now in Metro.
    Senator Portman. OK. And what percent of the aluminum that 
is stored is in your warehouses?
    Mr. Gabillon. Then it would be 1 versus 12, so 8 percent.
    Senator Portman. One of the things that the Subcommittee 
staff Report indicates is that the LME warehousing facilities 
at Metro affected price movements for aluminum in the United 
States. It sounds like it is about 8 percent of the stored 
aluminum. In your opinion, do LME warehousing practices have a 
meaningful effect on the physical price of aluminum? If not, 
what other factors influence that price?
    Mr. Wibbelman. Senator, I would say that there are a lot of 
actors in the marketplace, and so you have what producers 
choose to do, if they continue to produce metal or not. You 
have got financiers. We have been operating in a zero interest 
rate environment lately, and so the people who are owning metal 
are often owning it because the returns on--the safe returns on 
owning metal and deploying their capital into metal create a 
return of between 5 and 8 percent for many of these 
institutions and trades. That is why a lot of these 
institutions have wanted to own metal and were willing to buy 
metal in order to do it. It is because they are looking at the 
difference between a 0-or a 1-percent return versus a 5-or 8-
percent return during this whole 5-year period at various 
times.
    Senator Portman. So how do you respond to the concern that 
the way you have stored the product at Metro affects pricing? 
What is your response to that specific concern?
    Mr. Gabillon. Well, Senator, I think as we discussed, there 
are two parts in what we call the all-in price, which is the 
price paid by customers. We have the LME price, which it is 
called the LME price because it is the price on the LME, so it 
is affected by LME rules, clearly. And then you have the 
physical premium. So as the physical premium has gone up, the 
LME price has actually gone down. And if you may, we have a 
graph which we think is pretty relevant, if we could show it to 
you.
    Senator Portman. My time is up, so it is up to the 
Chairman.
    Senator Levin. Sure, if you want to.
    Senator Portman. Yes, let us see the chart if you have one.
    Mr. Gabillon. I will start to describe it, but you are 
going to have it in one second.
    Senator Portman. And while we are getting the chart, what 
is the comparison to what goes on, say, in the Asian market, 
the Japanese market, for instance, where there is a significant 
amount of aluminum used, or the European market?
    Mr. Gabillon. Well, I think if you look globally, you will 
see it is not perfect in timing. But the markets tend to be 
reacting at the same time, so if you wanted to look at those 
equivalents of the physical premium in the United States and in 
Europe and in Asia, you would say that they have all risen at 
the same time. And part of the reason is also because the LME 
price--we have talked a lot about the United States here, but 
the LME price is a global price, because as I said, when you 
deliver aluminum on the LME, you decide where you can deliver 
it. So people are always calculating which metal to deliver 
when, and the LME price, if you think about the LME price 
today, it probably reflects much more the situation in 
Vlissingen in the Netherlands than it did. But at another point 
in time it would be different, so you have a constant 
evolution.
    If you look at this chart we have provided,\1\ just to put 
it in context, it is between the beginning of 2007 to very 
recently. The light blue curve is what we call the aluminum 
all-in price, and you could see that it was quite elevated 
before the financial crisis. Then it went down a lot. And then 
it has been moving--we have a kind of trend line. It has been 
moving down over the last of those years. And then we have 
represented as one example of what has been going on the LME, 
what we call the aluminum queue calculated in this, which 
reflects something which is well known to observers, that those 
queues have risen. Actually, they actually started to fall off 
quite a lot this year, and you can see when everything is said 
and done, you can see that actually there is no correlation 
between the increase of the queue and the all-in price that is 
paid by customers in the United States.
---------------------------------------------------------------------------
    \1\ See chart provided by Mr. Gabillon, which appears in the 
Appendix on page 147.
---------------------------------------------------------------------------
    So we know it is complicated. There are many factors. At 
times it varies, the dynamic varies. A lot of the people that 
actually observe those markets, including us, sometimes get it 
very wrong. But when everything is said and done, you can see 
that there is no correlation. So we do not believe that the LME 
rules impact the all-in price for customers.
    Senator Portman. And of all those factors--and you say it 
is complicated--you would say that the economy would be the No. 
1 factor, in other words, the demand in the economy?
    Mr. Gabillon. On the all-in price, definitely. If you see 
again this graph, you can see that the all-in price went down 
pretty much a lot until the end of last year. And actually, it 
is only this year, with the combination of increased demand, in 
particular in the United States, and also a lot of smelters 
closures in the United States and in Europe in response to 
those prices, that the situation has started to shift, and now 
the aluminum all-in price is starting to rise at a time where 
the queues are very limited.
    Actually, if you look at it specifically in 2014, you would 
see that at the beginning of the year, even if you think about 
the physical premium itself, it started the year at 250, 
finished the year at--currently we are at 500. For instance, 
the queue in Detroit has actually been reduced a lot during the 
same period. So that is why I am trying to say when it is 
complicated, at times the correlations change. But overall we 
think this graph summarizes the situation.
    Senator Portman. If the EU economy were growing right now 
and the U.S. economy having picked up some steam recently, you 
would see this light blue line going back to here it was 
probably in early 2008?
    Mr. Gabillon. I mean, it is always difficult to speculate, 
but that is not impossible.
    I think the other thing which is starting to drive that 
price is as smelters have closed here, the North American 
sector needs to import aluminum, in particular, to the United 
States, and, therefore, they need to import it from abroad, and 
that has higher transportation costs and most of the production 
increase is in China these days.
    Senator Portman. OK. I have additional questions, Mr. 
Chairman, but I do not want to take your time.
    Senator Levin. Thank you.
    Just while we are on that point, I think most experts in 
the field will say there is a relationship, by the way, between 
queue length and the price that people pay for aluminum. But we 
are going to--and that is an important argument, but to me, an 
equally important argument is whether there is a relationship 
between queue length and what you call and everyone else calls 
the ``premium.'' Would you acknowledge there is a 
relationship--and this is something Senator Portman was getting 
to, I think. Is there a relationship, a direct correlation, in 
fact, a very high correlation between queue length and premium? 
Just, yes, is there a high correlation?
    Mr. Wibbelman. Senator, what I would say is that when the 
premium goes up, the value of the available metal within 
Metro's warehouses becomes more attractive, and so then people 
look for it and try to cancel warrants, and then, therefore, it 
becomes a longer queue. So I think it is just a question of 
cart before the horse.
    Senator Levin. No, my question is: Is there a direct, high 
correlation between queue length and premium?
    Mr. Gabillon. Senator, I would say if you look at 2014, I 
would say no.
    Senator Levin. In general, is there a high correlation, yes 
or no?
    Mr. Gabillon. First, correlation does not mean causality.
    Senator Levin. I did not say it meant causality. I did not 
ask you causality. I asked you correlation.
    Mr. Gabillon. If you ask me as a statistician, including 
the data up to today, I would say the correlation is not great, 
no.
    Senator Levin. OK. Then that is a major argument here. If 
you can say there is no correlation between premium and the 
length of the queue, then you are in a very different 
mathematical world than most of the mathematicians that look at 
this. OK?
    By the way, on your chart, when there was a big jump in the 
queue length, what happened there? Weren't there a whole lot of 
cancellations right there?
    Mr. Gabillon. So there were----
    Senator Levin. Can you give me a yes or a no to that 
question?
    Mr. Gabillon. Yes, cancellation drives queue, so yes, there 
were a lot of cancellations.
    Senator Levin. That is, as far as I am concerned, the most 
important six words I have heard yet this morning. 
Cancellations drive the queue, and we all ought to remember 
that. OK? And then if there is a correlation between the queue 
and the premium, which most statisticians will say there is, 
then you have the important connection between the premium and 
the queue. And if the queue is driven by cancellations and if 
your contracts require cancellations--which they do if they are 
living up to--at that point you have your contracts requiring 
cancellations. In order to get discounts, you have to cancel 
the warrants, which in turn drives the queue, which in turn is 
correlated to the premium. And the premium is, by your 
argument, just part of the all-in price. You say it does not 
affect the all-in price. Most of the users will say it sure 
does. But that is an argument that we will take up with every 
panel as to whether or not the premium, if it goes up, leads to 
higher all-in prices. You folks differ with most users on that 
issue, but in terms of the premium--the premium is clearly an 
important part of the all-in price, and your actions are 
directly correlated to the premium, because you are driving the 
queue, as you just pointed out, and the queue has a direct 
correlation to the premium.
    Now, that is not just the price of aluminum we are talking 
about, folks. This is also the transactions in aluminum which 
Goldman are involved in, because the premium--there are 
transactions based on premium. And if you are right that if the 
premium goes up, the other part of the price will go down--that 
is what your argument is--you are saying then that the LME 
price will go down if the premium goes up. There are huge 
amounts of aluminum-related transactions that are based on the 
LME price.
    So if your argument is right and, again, most users 
disagree with your argument, and I think most experts would 
disagree with your argument, and we are going to hear from some 
of those on the next panel. But if your argument is right, two 
things then are affected: First, the premium, if it goes up, 
there are financial transactions based on that premium; second, 
your argument, the premium goes up, LME price goes down because 
there is no effect on the all-in price. At that point the 
effect on the LME price by the increase in the premium is part 
of your argument. You are saying premium is up, LME price has 
to go down, because the all-in price is the same. That is your 
argument. At that point, now driving the queue, which is 
obviously driven by cancellations, and the queue correlation to 
the premium is directly affected to the LME price, by your 
argument.
    Again, most people do not agree with your argument. Most 
people that use aluminum believe that when you increase the 
premium, which is what the queue does--forget causation, it is 
correlated, the length of the queue to the premium is 
correlated, that is what most mathematicians will say in a very 
high way, you are having a very significant impact on LME price 
and--and this is significant for Goldman, because this is what 
I believe it is mainly about for Goldman, are the financial 
transactions, because their impact on the queue by what they do 
with cancellations--and that is what these contracts are about. 
These contracts are about you must cancel. That is in the 
contract. I know, they do not have to live up to the contract. 
I understand that. They can violate the contract. But most 
people do not enter into contracts to violate them. And so if 
they live up to the contract, under the words of the contract 
you must immediately cancel, which means the queue goes up, 
cancellations drive the queue, you just said it. And the 
relationship, the correlation between the length of the queue 
at that point and the premium is a direct correlation. And at 
that point, under your own argument, it seems to me you lose a 
very significant other argument, and that is the relationship 
here between premium and the LME price.
    So I do not know if Senator Portman wants to go on. I have 
a lot of additional questions, but the issue, Senator, which we 
have just been talking about is the relationship between the 
premium and the queue, and there is a high correlation. This is 
the all-in price. They are arguing here that the all-in price 
is not driven by queue length, because their argument is that 
if the queue length goes up, the LME price--excuse me, if the 
premium goes up, the LME price goes down, because the all-in 
price stays the same. But it is the premium issue which is the 
issue here as well as the effect of the queue on the all-in 
price. But there is not much doubt in most statisticians' minds 
and beliefs that there is a direct, high correlation between 
the length of the queue and the premium.
    I know their argument, and I have heard it. Most of the 
people that we are going to hear from do not agree with the 
argument that the length of the queue does not have any effect 
on the all-in price, on the price of aluminum. But even if they 
are right--and most people disagree with it--where they are 
clearly wrong by almost any statistical analysis is the fact 
that there is a high correlation between the premium and the 
length of the queue. And once that is true, if, as they argue, 
the all-in price is made up of two components--one the premium, 
the other one the LME price--then the LME price is affected by 
the premium going up or down, and at that point the LME price 
is very significant in terms of financial transactions.
    So this chart is very much disagreed with, again, by most 
users, including the auto industry, which is using aluminum, 
which is a big, big problem with the way in which aluminum 
prices are set.
    Senator Portman. You are part of this, too, so I will get 
back to you. But they care a lot about the all-in price.
    Senator Levin. They do.
    Senator Portman. I am admitting I am no expert in the 
aluminum market, but why is the premium so important as 
compared to the price? And is this a matter of--you say 
correlation. Does that mean causation? And are there other 
things that could explain that correlation?
    Senator Levin. Well, when you look at their chart, that big 
line jump right there, is when there was a whole bunch of 
cancellations of warrants. The queue went up, including the 
ones we are talking about today. Many of them, right at that 
big jump right there. And this is the queue length. And so, 
again, the high correlation becomes critical because under 
their contracts, for instance, that Deutsche Bank had to 
immediately cancel warrants--under all their contracts. If we 
are talking about these six contracts, all the warrants had to 
be immediately canceled. That immediately caused the queue to 
increase. You can see it with that huge jump right there. And 
so the queue increases, and then the question is: Is there a 
correlation between the length of the queue and the premium? 
And there is a high correlation at that point. And the premium 
is a big, growing part of the all-in price, by the way. It used 
to be 5 percent of the all-in price. A few years ago, the 
premium was 5 percent of the all-in price. It is now over 20 
percent of the all-in price.
    Senator Portman. Let me just ask you gentlemen about that. 
The question I just asked a second ago is does correlation mean 
causation? And what else would you think, assuming you agree 
with the correlation, would be the causation? Is it the LME 
rules? What is your sense of that?
    Mr. Gabillon. So if I may, first, to come back to our 
graph, that is not the theory, with just the observation of 
this, I think everybody can conclude from that graph.
    If we go back to the precise point of premium versus 
cancellation--and, again, I appreciate it is complicated--there 
is effectively--that is a factor. The queue is a factor in the 
premium, and there is a simple fact, which is if you receive a 
warrant on the LME and there is a long queue in front of you, 
the owner of that warrant is going to have to pay the storage 
fee for that period of time. So as that period goes, the LME 
price will go down. That is the various effect of the premium.
    Now, when we say queue--and this is where it gets a bit 
more complicated--it depends which queue you are talking about. 
So there is a period of time where maybe for a few days--the 
queue in Detroit was the longest in the LME system, and then 
that might have a bigger impact. But there was a period when, 
if you look at it today, the queue on aluminum is not the 
longest in Detroit. It is actually in Vlissingen. And this is a 
global market. This is a global contract. In the LME you do not 
have a contract in United States, a contract in Europe, a 
contract in Asia. You have one global contract, and everything 
is priced out. So right now the queue in Vlissingen has 
probably a bigger impact than any other queues in the world. So 
that works like this. At another period it might be different, 
and that is why the correlation can vary from time to time. 
And, yes, I mean with correlation, we can have people fighting 
all the time. But there are periods where it is different, and 
so the correlation exists at that time. And sometimes, as Mr. 
Wibbelman said, it is the other way around. When premium--when 
you look back at why cancellations started to happen, it is 
because the premium was starting to go up. That was a signal to 
the market, which is take that metal which is on-warrant, 
cancel it, and bring it outside. So sometimes it works both 
ways. That is why the correlation-causality is more complicated 
than that. And this market is complicated, and people disagree 
all the time. That is what makes markets.
    I will give you one anecdote how complicated it is, and 
Senator Levin referred to it when he showed us the big increase 
in cancellations in Detroit. By the way, if you had the chart 
of other parts of the LME system, you would see there was an 
even bigger cancellation a few weeks before that event, and 
that event happened when the LME, after doing an independent 
report on queues, reached the conclusion, had a consultation, 
and implemented the rule to double the load-out from large 
warehouses like ours, with a view to reduce queues. The impact 
on the market was that queue did not shorten, but queues became 
longer as a result of that.
    So that is an example of how even when you have the best 
brains that have studied this market, you look at it and try to 
understand what drives what and when, it is not that simple.
    So I appreciate that, it is a very complicated issue of 
correlation between premium and things, but I think it is more 
complicated than that.
    Senator Portman. By the way, the LME rules under which 
Metro operates, are these rules that if you were to sell the 
warehouse, which I understand you are thinking of doing, that 
the new owners would also operate under?
    Mr. Gabillon. That is correct.
    Senator Portman. And who might the new owners be if you 
sold the warehouse?
    Mr. Gabillon. We are running a sales process right now, and 
we have a variety of interest from companies in Europe, Russia, 
and China. There is a variety of them right now.
    Senator Portman. You think it would be a foreign owner? I 
do not mean to probe here, but I will.
    Mr. Gabillon. I think it is possible, yes.
    Mr. Wibbelman. Even if it is not a foreign owner, it is 
safe to say that the center of gravity of the business 
generally is going to move from the United States to Europe or 
to Asia, and essentially it is because the competitive 
environment that Metro operates in. I mean, all of the other 
warehouse company owners are essentially unregulated traders 
that operate in those areas, and so they are able to do things 
to acquire metal for their own warehouse companies, which will 
essentially create strategic stockpiles elsewhere or within 
those companies.
    Senator Portman. So if it is not owned by a bank or 
Goldman, it is likely to be owned by a trading company. And let 
me just be clear: Is that trading company going to be living 
under the same LME rules or not?
    Mr. Wibbelman. It will not have all the banking 
restrictions if it is not a bank, right? So it will not 
necessarily have that type of restriction. Many of the 
companies that own LME warehouse companies, the parent 
companies, are trading conglomerates in some cases, and they 
essentially, source metal for their own warehouse company, and 
the profit will go up vertically into the same ownership 
structure. I mean, Metro has been run from a profit center 
basis, completely separately from Goldman. In other words, we 
act maybe as counterparties occasionally, but not as a unified, 
vertical structure.
    Senator Portman. Thank you, Mr. Chairman. I have, 
unfortunately, another appointment I cannot miss, and I 
appreciate your testimony, gentlemen, and thank you, Mr. 
Chairman, for letting me come and indulging me with the time.
    Senator Levin. Thank you very much, Senator Portman.
    Let us now start with the Deutsche Bank contract under 
which they were required to cancel their warrants, the first 
one. Now, that deal was in September 2010, just a few months 
after Goldman acquired Metro, and it involved Deutsche Bank and 
100,000 metric tons of aluminum. Here is what Deutsche Bank 
told us: That in September of----
    Senator Baldwin.

              OPENING STATEMENT OF SENATOR BALDWIN

    Senator Baldwin. Thank you, Chairman Levin. I actually 
wanted to start by thanking you for your leadership of this 
Subcommittee. I remember our first meeting together as I became 
a new Senator and you talking about the importance and the 
power of the gavel of this particular Subcommittee, and you 
have wielded it so much in the interest of the American people, 
and I deeply, deeply appreciate your work and leadership on 
this Subcommittee.
    I also want to thank you for holding today's hearing. I am 
greatly concerned about the role that financial institutions 
are playing in physical commodities markets, and particularly 
aluminum, because I have heard about this issue from 
manufacturers all across my home State of Wisconsin, from 
breweries that use aluminum in their cans to Mason jar 
manufacturers to heavy trucks, and if you are making a product 
with aluminum in it, you know this issue very well.
    The fundamental basis for any well-functioning commodity 
futures market is that futures and cash converge, and I think 
we have seen a massive disconnect in the aluminum market, and 
today's Report identifies the reason.
    Mr. Chairman, because I know you have probed during this 
first panel into the relationship between the queue and the 
premium, my real interest is asking some questions of the 
second panel. I know it is going to be a little while before 
they come. I wanted to come here today to note my concerns. I 
hope to be back to ask my questions of the second panel. If 
that is not possible, I am going to leave my questions with you 
for the record, but I do not have any questions right now of 
this panel.
    I thank the Chairman for your indulgence in allowing me to 
thank you and state my interests in this issue.
    Senator Levin. We are always happy to indulge colleagues 
who want to thank me. Believe me, it is----
    [Laughter.]
    Senator Levin. Thank you, Senator Baldwin, for your great 
involvement in so many issues involving consumers, as well as 
this one, and for your comments about me. I very much 
appreciate them.
    Let us get to the Deutsche Bank deal again. This was 
September 2010. It was just a few months after Goldman acquired 
Metro. It involved 100,000 metric tons of aluminum. Deutsche 
Bank told us that in September 2010 it entered into 
negotiations with Metro seeking cheaper rent for the metal that 
it was storing at Metro warehouses in Detroit.
    The LME told the Subcommittee that no LME rule prevented 
Metro from giving Deutsche Bank a rent discount for LME 
storage. So Metro could just give, if they had decided to, 
Deutsche Bank the discounted rent while still on-warrant in the 
first warehouse. Is that correct? You had the power to do that?
    Mr. Wibbelman. We could do that, yes.
    Senator Levin. And Metro has given rent discounts for LME-
warranted metal in the past. Is that correct?
    Mr. Wibbelman. Yes.
    Senator Levin. Metro did not do that here. Metro instead 
proposed that Deutsche Bank cancel warrants on its 100,000 
metric tons of aluminum ``as soon as possible.'' Cancel 
warrants as soon as possible, and then wait in the queue; when 
it got to the head of the queue, send its metal from one set of 
Metro warehouses to another. After a brief period, Deutsche 
Bank would then re-warrant the metal at the new warehouses.
    Again, Mr. Wibbelman, why not just let Deutsche Bank stay 
in the first warehouse and give it a cheaper rent?
    Mr. Wibbelman. Well, I mean, we are a commercial business, 
and we evaluate every commercial opportunity independently, 
according to what is in the best interests of our commercial 
position. In that case, I can tell you that Deutsche Bank had 
the optionality to move the metal out or not move the metal 
out. And, in fact, they did not move a great deal of the metal 
out. They left it in the warehouse and re-warranted it in place 
because it was commercially more viable for them to do that.
    Senator Levin. How many tens of thousands of tons did they 
move to a different Metro warehouse?
    Mr. Wibbelman. My recollection was of the 100,000 tons, 
they moved 70,000 metric tons, and they did not move 30,000 
metric tons, and they re-warranted all the stock in--whether 
having left the warehouse or not having left the warehouse.
    Senator Levin. Exactly. It was important to you, however, 
that they move to another warehouse. Is that correct?
    Mr. Wibbelman. Well, they wanted the optionality----
    Senator Levin. Was it important to you that you required 
them to cancel the warrants as part of this deal?
    Mr. Wibbelman. Senator, the issue for them----
    Senator Levin. I am just asking you if it was important to 
you.
    Mr. Wibbelman. I am trying to explain that the issue is 
that if they do not put the metal in the queue, Metro having at 
that point, for example--I am just guessing--a million tons of 
metal in storage, then someone else could cancel metal, and 
that they could then jump ahead of them and make their metal 
less valuable. So the LME rules actually----
    Senator Levin. I am just asking a simple question. Was it 
important to you? And is that why it was in the contract that 
they cancel the warrants?
    Mr. Wibbelman. Metro was going to make the same amount of--
--
    Senator Levin. So it was not important to you?
    Mr. Wibbelman. So it was--we gave them an option to do it.
    Senator Levin. I am just asking you whether or not, if they 
live up to the contract, did they have to cancel warrants? That 
is all. It is a pretty simple question.
    Mr. Wibbelman. Yes, I would say that the--what we were 
doing was we were providing them options for once the metal 
left the warehouse, if that is what they chose to do, and that 
was the basis of the contract.
    Senator Levin. I take it you are not going to answer the 
question as to whether or not it was important to you that they 
cancel the warrants.
    Mr. Gabillon. Maybe I can try----
    Senator Levin. No.
    Mr. Wibbelman. I am trying to answer the question, Senator. 
I am sorry. I think it was probably not important to me 
personally whether it happened----
    Senator Levin. Not personally. I am talking about the 
company. You paid them to move 70,000 tons, did you not? You 
gave them a discount. Is that correct?
    Mr. Wibbelman. We gave them some discounts if they moved 
it.
    Senator Levin. Right.
    Mr. Wibbelman. But it was their choice.
    Senator Levin. It was not their choice whether to cancel or 
not?
    Mr. Wibbelman. Yes, it was. They owned the metal.
    Senator Levin. No, but wait a minute. If they lived up to 
the contract, they had to cancel. Once they sign a contract, is 
it not true that, to live up to that contract, they had to 
cancel the warrants? Yes or no.
    Mr. Wibbelman. It was not a requirements contract, it did 
not require them to cancel metal. If they wanted to achieve 
the--if they wanted to put it back on warrant from a different 
warehouse, then they would----
    Senator Levin. Take a look at Exhibit 23,\1\ would you, 
please? Page 5, Section 3.1: ``. . . the Parties agree that 
[Deutsche Bank] will request the maximum number of Slots and 
place the Goods or part of the Goods off-warrant as soon as 
possible thereafter . . .'' That means cancel the warrants, 
doesn't it? Does that mean cancel the warrants?
---------------------------------------------------------------------------
    \1\ See Exhibit No. 23, which appears in the Appendix on page 1011.
---------------------------------------------------------------------------
    Mr. Wibbelman. Cancellation would be required for that, 
yes.
    Senator Levin. OK. The parties agree that they would ``as 
soon as possible thereafter,'' obviously ``dependent on 
existing demand for slots.'' But, nonetheless, as soon as 
possible. And then they canceled, and look what happened to the 
queue. See that big jump in the queue? That is what happened 
when they canceled the warrants. Do you think there is a 
correlation there between canceling warrants and the length of 
the queue?
    Mr. Wibbelman. Oh, if they cancel, there is definitely--the 
queue would lengthen until the metal ships out, until some of 
the metal shipped out. That is right.
    Senator Levin. OK. So I am glad we finally got to that 
point, that there is a correlation between canceling the 
queue--canceling the warrants and queue length. That is 
progress.
    Let us keep going then with Deutsche Bank. The contract was 
signed by Deutsche Bank, not by Metro. Did it reflect the 
agreement that was reached between you?
    Mr. Wibbelman. I mean, it was--my recollection is this was 
written by Deutsche Bank. It was signed and sent over by them, 
and that it was never executed, and----
    Senator Levin. You mean never signed by you?
    Mr. Wibbelman. Yes.
    Senator Levin. You do not mean executed.
    Mr. Wibbelman. Well, it was never signed by me or executed 
by us, yes.
    Senator Levin. It was not executed. Didn't you live up to 
this contract?
    Mr. Wibbelman. Well, I do not--sir, I cannot tell you that 
these terms were----
    Senator Levin. Did you live up to a contract with Deutsche 
Bank which was like this contract?
    Mr. Wibbelman. No question, generally speaking, this type 
of thing took place, yes.
    Senator Levin. Not this type. This thing took place.
    Mr. Wibbelman. So the reason, sir, why we do not have 
contracts is because how Metro's business operates is it is 
basically a timeline.
    Senator Levin. OK. Let me go back. That is not my question. 
Basically this contract was executed. Is that correct? This 
agreement was executed?
    Mr. Wibbelman. I can tell you that the amount of tons that 
were contemplated when this contract was sent across ultimately 
did get canceled, and some of it did ship out.
    Senator Levin. OK. And did you live up to the section that 
said that Deutsche Bank would have to pay $65 per metric ton if 
it sold the metal instead of moving it to another Metro 
warehouse and re-warranting? Was that part of the deal?
    Mr. Wibbelman. They did not ultimately sell any of the 
metal.
    Senator Levin. No, I know. But would they have had to--was 
there a penalty here? Come on, let us just get to it. The 
section says Deutsche Bank would have to pay--this is Section 
3.8--$65 per ton if it sold the metal instead of moving it to 
another Metro warehouse. Am I reading it right? Was that part 
of the deal?
    Mr. Wibbelman. So generally we do have break fees to our 
agreements, yes. If they agree to do----
    Senator Levin. I am not talking about generally. Was that 
part of the deal with Deutsche Bank?
    Mr. Wibbelman. I cannot recall specifically, Senator, I am 
sorry to tell you, but I would not doubt that it was not part 
of the deal. I just cannot tell you for certain that it was.
    Senator Levin. OK. You have no recollection as to whether 
that was part of the deal or not?
    Mr. Wibbelman. I do not know, Senator, if it was actually 
ultimately invoiced and paid out that way.
    Senator Levin. I am not talking about ultimately invoiced. 
I am talking about the deal.
    Mr. Wibbelman. It was perhaps a term contemplated by this 
agreement. Again, I do not know if it was followed through 
upon.
    Senator Levin. That would be a $6.5 million penalty for 
100,000 tons of aluminum.
    Now, if Deutsche Bank broke the agreement to send the metal 
to a Metro warehouse, then Deutsche Bank would have to pay $65 
a ton. That is not free metal to me, by the way. You may want 
to talk about as free metal, then you may want to talk about 
choice. But when you enter into a contract, a business 
contract, you have given up choice. You can break the contract. 
That is always a choice. You could run a red light. You have 
got a choice. You made a deal. I do not know why you want to 
suggest you did not make a deal. You are in business. You made 
a deal.
    Mr. Wibbelman. Absolutely. Yes, we did.
    Senator Levin. And part of that deal with that they would 
cancel warrants as soon as possible, and as you point out, 
finally, there is a direct relationship between canceling 
warrants and queue length. And most statisticians will tell 
you--and they will in the next panel--there is a direct 
correlation between the length of the queue and the premium. 
That may not always be true, by the way. Maybe that is not true 
every day or every year, but it is generally true. There is a 
correlation between queue length and premium. Why? Because the 
longer the queue length, the more rent that is going to be 
paid, and that is part of the premium, is how much rent do you 
have to pay on top of what the LME price is. That is what the 
premium is all about. It is cost of storage.
    So Deutsche Bank did not pay any penalty here because, 
after canceling warrants for all 100,000 tons, Deutsche Bank 
ended up keeping 30,000 warrants, as you pointed out, in the 
original warehouse and re-warranting it, and they sent about 
70,000 tons into other Metro warehouses, and they re-warranted 
it.
    Now, let us talk about correlation. The contract, or the 
``deal''--let me put it in your words--was dated September 15, 
2010. Is that correct?
    Mr. Wibbelman. Yes.
    Senator Levin. Thanks. And then on September 20, 2010, 
Deutsche Bank canceled warrants for 100,000 metric tons 
pursuant to the deal.
    Now, would you say that you had some influence over the 
cancellation by entering into a deal which required them to 
cancel if they lived up to the deal?
    Mr. Wibbelman. Well, I think there were incentives that 
they were trying to capture, but those incentives were not all 
Metro. Some of those incentives were what the market was 
offering in terms of its ability to capture a higher interest 
rate on the capital it deployed, plus whenever Deutsche Bank 
would enter into a transaction like that, they would gain the 
optionality. They would have this metal, and then if the market 
moved in any direction or another, they would be able to take 
advantage of that movement. And so, for example, when the 
market must have moved in some way where they decided not to 
ship, for example, the 30,000 tons and to put it back on-
warrant within its existing location, they probably did that in 
exchange of some market movement, I am guessing.
    Senator Levin. Did that contract have an effect on 
cancellations?
    Mr. Wibbelman. Certainly I would say that their choice to 
take advantage----
    Senator Levin. No. Did the agreement----
    Mr. Wibbelman. We were providing a solution----
    Senator Levin. I am talking about did the agreement itself 
provide for cancellations. Did the deal say if they lived up to 
it. I know they did not have to.
    Mr. Wibbelman. We are part of the market. We are part of 
the LME's market, and I believe that this contract was--allowed 
Deutsche Bank to have solutions to its--to the problems that 
come with its----
    Senator Levin. I am sure that is why Deutsche Bank signed 
the contract, because they were given some money to keep the 
warehouse there and they were penalized if they did not keep 
the metal in the warehouse. OK.
    Now let me go back to my question. Did the agreement have a 
provision that related to cancellations? I will read it to you 
again if you want.
    Mr. Wibbelman. Any----
    Senator Levin. Not any, this one. The deal that you made 
with Deutsche Bank?
    Mr. Wibbelman. It is a condition precedent for them to 
cancel the warrants should they want to have the option of the 
incentives we were offering. That is right.
    Senator Levin. Did it have a provision relative to 
cancellations?
    Mr. Wibbelman. It talked about----
    Senator Levin. Not talked. Come on. They do not talk. 
Contracts, written things, do not talk. You talk.
    Mr. Wibbelman. OK. Again, Senator----
    Senator Levin. I am trying to get you to just acknowledge 
what is obvious. This contract had a provision saying that if 
they lived up to the contract and if they exercised the options 
and all the rest, that they would cancel as soon as possible.
    Mr. Wibbelman. That is right, as long as it is with the 
``if.''
    Senator Levin. Of course. You never have to live up to a 
contract. You can pay a penalty. Or you cannot live up to it--
you can create a reputation for yourself that you do not live 
up to contracts. You do not have to obey a red light. You could 
go through a red light.
    Now, did you enter into a deal with them?
    Mr. Wibbelman. Certainly there was a deal that took place.
    Senator Levin. And did that deal, if lived up to, relate to 
cancellations?
    Mr. Wibbelman. If they did cancel the metal, then, yes----
    Senator Levin. No. Did it say they would cancel as soon as 
possible?
    Mr. Wibbelman. Sir, I am trying to tell you that was the 
contract that they wrote, that we----
    Senator Levin. I do not care who wrote it. Did you agree to 
it? You did not sign it. Did you agree to a deal?
    Mr. Wibbelman. We had a deal. There is no question about 
that.
    Senator Levin. Well, you had a deal. You did not agree to 
the deal?
    Mr. Wibbelman. Yes, our deal was conditional. If they chose 
to----
    Senator Levin. No. Did you have a deal?
    Mr. Wibbelman. Yes, we had a deal.
    Senator Levin. Did you agree to the deal?
    Mr. Wibbelman. Yes, we did.
    Senator Levin. Did the deal have a provision that, if lived 
up to, would require cancellations as soon as possible?
    Mr. Wibbelman. The deal was that if they cancel, then we 
will make these payments. But it was their choice to cancel or 
not cancel. We were not going to sue them if they did not. It 
was a regular----
    Senator Levin. Did it say they would cancel as soon as 
possible if they lived up to it and exercised it? Did it have 
that provision? Are the words that I am looking at, am I 
reading them accurately?
    Mr. Wibbelman. Senator, I am just trying to tell you that 
the actual written document does not have as much weight as you 
are imagining and in the way the actual transaction took place.
    Senator Levin. Was it in your interest that they cancel?
    Mr. Wibbelman. I mean, they had to cancel in order to get 
our incentives. That is certainly true.
    Senator Levin. Was it also in your interest that they keep 
the metal in your warehouse and that they cancel?
    Mr. Wibbelman. Well, in our interest, Senator, would be if 
nobody shipped metal out of the warehouse.
    Senator Levin. Did they cancel?
    Mr. Wibbelman. They did cancel.
    Senator Levin. Was it in your interest that they cancel?
    Mr. Wibbelman. No, I do not think it was.
    Senator Levin. So you entered into a deal that said they 
would cancel as soon as possible, but that was not in your 
interest?
    Mr. Wibbelman. Well, remember that the relative bargaining 
power, the owner can cancel with or without our involvement, 
right? So we are trying to give them solutions that involve us 
if they move us, right? And so that is what we were doing. We 
were trying to provide solutions to them in the event that they 
canceled and moved the metal.
    Senator Levin. You are just telling us under oath that you 
did not care whether they canceled or not.
    Mr. Wibbelman. I cannot tell you that it was--I do not know 
if they have----
    Senator Levin. I am asking you. You are telling us under 
oath you did not care if they canceled or not.
    Mr. Wibbelman. Well, I would have to say, Senator, that I 
do not recall then because I cannot tell you with certainty 
that I cared. I can tell you that the intent of the deal was 
that we are providing them with options to move--in the event 
that they moved it.
    Senator Levin. So the Deutsche Bank deal was approved by 
Metro's board of directors, all Goldman employees, that 
explicitly called for Deutsche Bank to cancel warrants for 
100,000 tons of aluminum ``as soon as possible.'' That is the 
agreement.
    Then right afterwards, on September 20, Deutsche Bank 
canceled warrants for 100,000 tons of aluminum. So now let us 
look at the queue. There is the chart on the queue. This is 
what happened when they cancel, that dramatic spike upward in 
the length of the queue, jumped from about 25 days to 120 days. 
That is when Deutsche Bank canceled. A hundred days more now 
the queue is, and the queue is correlated to the premium, and 
the premium is an important part of the price, and unhappily, a 
growing part of the price for aluminum buyers. You at least I 
think have acknowledged now that that spike was a result of 
cancellation. I think you gave us that much acknowledgment. Is 
that correct?
    Mr. Wibbelman. Yes.
    Senator Levin. OK. And just for the record, that chart is 
Exhibit 1k.\1\
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    \1\ See Exhibit No. 1k, which appears in the Appendix on page 826.
---------------------------------------------------------------------------
    Let us look at another deal now, the fourth Red Kite deal. 
Metro told the LME, London Metal Exchange, that the deal was 
approved by a subcommittee of Metro's board on November 1. Was 
that an accurate statement by LME, that the fourth Red Kite 
deal was approved by a subcommittee of your board, which is all 
Goldman employees?
    Mr. Wibbelman. That could be true. I do not have a 
recollection exactly, but it would be----
    Senator Levin. OK.
    Mr. Wibbelman. I would not say it is untrue.
    Senator Levin. Take a look at Exhibit 25,\2\ if you would. 
This is an email, I guess, from Gabriella Vagnini. Is that 
correct?
---------------------------------------------------------------------------
    \2\ See Exhibit No. 25, which appears in the Appendix on page 1026.
---------------------------------------------------------------------------
    Mr. Wibbelman. Yes.
    Senator Levin. She works for Metro?
    Mr. Wibbelman. Worked for Metro.
    Senator Levin. Worked for Metro at the time?
    Mr. Wibbelman. Yes.
    Senator Levin. And this was to someone named Barry Feldman, 
who was at Red Kite. Is that correct?
    Mr. Wibbelman. Yes.
    Senator Levin. And they are a hedge fund in London?
    Mr. Wibbelman. Yes.
    Senator Levin. And it says, ``Dear Barry, I hope this email 
finds you well. Please note, Metro's issued deal number''--
there is a deal number here. There is an agreement. Do you see 
the word ``agreement'' there or ``deal''? Do you see those two 
words?
    Mr. Wibbelman. Yes.
    Senator Levin. And then they lay out the deal between you 
and Red Kite. And if you look down at the bottom of that 
Exhibit 25, it says $36 per metric ton will be paid within 2 
weeks of cancellation. That is a freight allowance, right?
    Mr. Wibbelman. Yes.
    Senator Levin. And that is like a subsidy that you are 
going to pay them if they do what this deal provides for. Is 
that correct?
    Mr. Wibbelman. Yes.
    Senator Levin. OK. And Metro is going to truck this 
material to an off-warrant Metro storage facility in Detroit. 
Is that correct?
    Mr. Wibbelman. Yes.
    Senator Levin. And then at the top of the next page, it 
says Metro will incur the shipping costs. Metro, you guys are 
going to pay the shipping cost to the other warehouse, right?
    Mr. Wibbelman. Yes.
    Senator Levin. And then it says Red Kite cancels 150,000 
metric ton of aluminum in Detroit immediately. That was part of 
the deal?
    Mr. Wibbelman. Should they take up on it, yes.
    Senator Levin. I am saying it was part of the deal. I asked 
you before, part of the deal was you are going to incur 
shipping costs. That is if you accepted the deal, right?
    Mr. Wibbelman. Yes. But what I am trying to explain is that 
there are deals that are conditional. A condition to us paying 
all this stuff is that they do that.
    Senator Levin. Right, exactly. Red Kite cancels 150,000 
metric tons of aluminum immediately.
    Mr. Wibbelman. Yes, because timing is important in these 
transactions.
    Senator Levin. Yes. You wanted immediate cancellation of 
the warrants, right?
    Mr. Wibbelman. Just in order for this economics to apply.
    Senator Levin. Right. That is what you wanted. That was 
part of the deal that you agreed to, right?
    Mr. Wibbelman. Yes.
    Senator Levin. And Red Kite fulfills the requirements to 
get into the queue.
    Mr. Wibbelman. Yes.
    Senator Levin. There is a requirement to get into the 
queue.
    Mr. Wibbelman. Yes, only if they want to cancel and only if 
they want to ship it out.
    Senator Levin. And you are going to incur shipping costs 
only if they ship it out, right.
    Mr. Wibbelman. That is right, yes.
    Senator Levin. So it is like every other part of this deal.
    Mr. Wibbelman. That is right. That is how they all work.
    Senator Levin. Yes, exactly. You have obligations, 
responsibilities, commitments. You are going to pay what you 
call a freight allowance, a subsidy. You will pay it if they do 
these things, and you are going to truck the material. If they 
follow through, you got to follow through. Metro will take care 
of the shipping costs. And they will cancel. Is it not part of 
all one deal here?
    Mr. Wibbelman. Well, it is, Senator, but they have--things 
happen, like just with the----
    Senator Levin. I know things--I am just saying----
    Mr. Wibbelman. With the Deutsche Bank transaction----
    Senator Levin. Is it part of one deal or isn't it?
    Mr. Wibbelman. It is. But it is not to say that that is the 
only path by which this can be fulfilled.
    Senator Levin. No, they cannot----
    Mr. Wibbelman. Right.
    Senator Levin [continuing]. Pursue the deal.
    Mr. Wibbelman. And just like with the Deutsche Bank----
    Senator Levin. And you do not have to pursue the deal 
either, do you?
    Mr. Wibbelman. No. But with the Deutsche Bank transaction, 
for example, they decided not to ship the last amount. That did 
not happen.
    Senator Levin. The 30,000----
    Mr. Wibbelman. Right.
    Senator Levin. I understand. They did not ship 30,000. They 
kept it in your warehouse. I got it.
    Did Red Kite, in fact, cancel 150,000 metric ton of 
aluminum immediately or promptly? Did they do that?
    Mr. Wibbelman. I expect they did.
    Senator Levin. No, not expect. You know whether they did or 
not, don't you?
    Mr. Wibbelman. Senator, there is a long timeline of this 
business activity. I do not have the particular recall of one 
deal at one moment in time, but I do not----
    Senator Levin. Just another 150,000 metric tons of aluminum 
on trucks, hundreds of trucks going back and forth. You do not 
have any memory of the Red Kite at all?
    Mr. Wibbelman. Oh, I have a memory of it.
    Senator Levin. Well, let me refresh your recollection. Take 
a look at the deal, will you? Exhibit 25. You agreed it is all 
one deal?
    Mr. Wibbelman. What page are you on, sir?
    Senator Levin. Page 2. Since you do not have any 
recollection as to what the deal was here with Red Kite, top of 
page 2, ``Red Kite cancels 150,000 [metric tons] of aluminum . 
. . immediately.'' Does that help your recollection?
    Mr. Wibbelman. Sir, can you give me a page number?
    Senator Levin. Sure. Page 2 of Exhibit 25.
    Mr. Wibbelman. This page? OK.
    Senator Levin. Does that refresh your recollection, ``Red 
Kite cancels 150,000 [metric tons] of aluminum in Detroit 
immediately''?
    Mr. Wibbelman. Well, yes, I know that was part of the deal 
if they did it. The only question I am having is, I just do not 
recall that they did it. But I assume that they did.
    Senator Levin. OK. And then it says, ``Red Kite fulfills 
the requirements to get into the queue.'' Does that refresh 
your recollection, that there is a requirement to get into the 
queue?
    Mr. Wibbelman. Well, what that refers to, sir, is that----
    Senator Levin. Not refers to. Does that refresh 
recollection that there was a requirement that they get in the 
queue?
    Mr. Wibbelman. That is not what this says, sir. What this 
is saying is that there are requirements to getting into the 
queue besides just canceling metal. They have to give us 
shipping instructions. They have to provide us with----
    Senator Levin. It is all there.
    Mr. Wibbelman [continuing]. The rental payment, right.
    Senator Levin. With instructions. Yes, it says, ``Red Kite 
fulfills the requirements to get into the queue . . .''
    Mr. Wibbelman. Right.
    Senator Levin [continuing]. ``. . . with shipping 
instructions for maximum appointments asap.''
    Mr. Wibbelman. I am trying to make the distinction----
    Senator Levin. What does ``asap'' mean?
    Mr. Wibbelman. As soon as possible.
    Senator Levin. Get into the queue as soon as possible. I 
agree, with shipping instructions for maximum appointments.
    Mr. Wibbelman. The distinction I was trying to make, 
Senator, is it was not a requirement that they fulfill to get 
into the queue. It was that they had to fulfill requirements 
that Metro generally has in order to get into the queue, right? 
In other words, we had a series of steps which all of these 
businesses have to fulfill in order to get into the queue at 
all.
    Senator Levin. Were they required to get into the queue?
    Mr. Wibbelman. No, they were not required to get into the 
queue. They were required to do it if they wanted to take 
advantage of the economics of this deal, though.
    Senator Levin. In other words, if they wanted to live up to 
the deal, they had to get into the queue? Yes or no.
    Mr. Wibbelman. OK. If they wanted to--they could have 
canceled the deal and not done it.
    Senator Levin. If they wanted to live up to the deal, they 
had to get into----
    Mr. Wibbelman. It was not a requirements deal, sir.
    Senator Levin. I am just asking a very direct question. If 
they were going to live up to this deal, did they have to get 
into the queue?
    Mr. Wibbelman. If they wanted the benefit of our economics 
in this deal, then they had to do that, yes.
    Senator Levin. I do not know how that is any different than 
what I am saying. If they were going to live up to the deal and 
get the benefits that they saw in the deal, they had to get 
into the queue.
    Mr. Wibbelman. Yes. I am just saying it is an option for 
them. They had the choice. You are saying it is a requirement.
    Senator Levin. I am going to keep asking it until you give 
me an answer.
    Mr. Wibbelman. I have given one.
    Senator Levin. In order to have the economic advantages 
that they saw in this deal, and if they were going to live up 
to the deal, they had to get into the queue.
    Mr. Wibbelman. That is right.
    Senator Levin. It took an hour to get there.
    Mr. Wibbelman. You asked it differently.
    Senator Levin. No, not really, because you knew very well 
that people enter deals with the intent to live up to them, and 
they enter deals because there is an economic benefit to them. 
You know that. You are a business person, a very active 
business----
    Mr. Wibbelman. In this case, it was an option deal, right? 
They had the option to take advantage of this or they did not.
    Senator Levin. To enter the deal or not, to live up to the 
deal or not. It is always an option. Break the deal or not. You 
are free in that sense. We are all free to break deals. Not if 
you want to stay in business for very long.
    Now, I think you have already answered this question. You 
paid them $27 million, I believe, is that correct, as part of 
this deal? We can go through the invoice.
    Mr. Wibbelman. Could have been.
    Senator Levin. Does that sound about right?
    Mr. Wibbelman. Could have been. We think of things in 
dollars per metric ton. We do not tend to look at totals too 
much.
    Senator Levin. Do you want to go through these with me? 
Because I can take the time and do it.
    Mr. Wibbelman. No, I will stipulate to your facts.
    Senator Levin. OK.
    Mr. Wibbelman. I am just telling you how it works.
    Senator Levin. That is fine. Now, would you agree with me--
I think you already have, but I better ask it to be sure--that 
for 100,000 tons of metal where warrants are canceled for that 
amount, that at a load-out rate of 3,000 tons a day, that the 
queue would increase from that cancellation? I think you have 
already agreed to that.
    Mr. Wibbelman. Or from any cancellation, yes.
    Senator Levin. Including that one?
    Mr. Wibbelman. Yes.
    Senator Levin. Now, Goldman canceled warrants, its own 
warrants, for over 300,000 metric tons of aluminum in 2012. Do 
you remember that?
    Mr. Wibbelman. I know Goldman has canceled warrants, yes.
    Senator Levin. OK. Assume that for the purpose of 
discussion that they canceled warrants for over 300,000 metric 
tons of aluminum in 2012. You do not dispute that?
    Mr. Wibbelman. No.
    Senator Levin. So with those cancellations by Goldman, did 
Goldman through that action lengthen the queue?
    Mr. Wibbelman. Yes, if they did cancel them, they would 
have lengthened the queue. Any cancellation lengthens the 
queue.
    Senator Levin. I believe in your written testimony today 
that you said that, ``The length of the queue to remove metal 
from Metro's Detroit warehouse is not the result of action by 
either Goldman Sachs or Metro.'' Now, that statement would not 
be true relative to the 300,000 warrants of their own that 
Goldman canceled. Would you agree that your written statement, 
at least that part of it, is not accurate?
    Mr. Wibbelman. What I am trying to say there is that----
    Senator Levin. No, not trying to say. Would you agree that 
as a matter of fact that when Goldman canceled 300,000 
warrants, that it did as a matter of fact increase the length 
of the queue?
    Mr. Wibbelman. Any cancellation increases----
    Senator Levin. My question wasn't any cancellation. You are 
answering any cancellation. My question is Goldman's 
cancellation.
    Mr. Wibbelman. Yes.
    Senator Levin. When Goldman canceled warrants for over 
300,000 metric tons of aluminum in 2012, did that cancellation 
directly lead to the lengthening of the queue?
    Mr. Wibbelman. They occupied spots in the queue and, 
therefore, yes, Senator, it lengthened the queue.
    Senator Levin. So, therefore, you would want to modify your 
statement, which you are free to do, and I am not your lawyer, 
but I would suggest you would be wise to do, that your written 
testimony says that, ``The length of the queue to remove metal 
from Metro's Detroit warehouse is not the result of action by 
either Goldman Sachs or Metro.'' In that case, at least, I 
believe you would want to acknowledge that when Goldman 
canceled the warrants on 300,000 metric tons that it owned, 
that that did have a direct effect on the queue?
    Mr. Wibbelman. Yes.
    Senator Levin. OK. Now, next question. At least one person 
who worked for you was concerned by this type of deal which we 
have been talking about. If you would take a look at Exhibit 
28,\1\ this is an email sent by Mark Askew, who is co-head of 
sales at Metro, a long-time warehouse executive. I believe he 
worked for you, for several years. Is that true so far? Do you 
know who Mark Askew is?
---------------------------------------------------------------------------
    \1\ See Exhibit No. 28, which appears in the Appendix on page 1052.
---------------------------------------------------------------------------
    Mr. Wibbelman. Yes. Your characterization is accurate.
    Senator Levin. OK. In this email, Mr. Askew relays a rumor 
that another trading company had heard about the 100,000-ton 
cancellation and that ``we were blocking others.'' Do you know 
what Mr. Askew meant when he said ``we were blocking others'' 
by that cancellation? I think that is the Deutsche Bank 
cancellation.
    Mr. Wibbelman. Well, sir, at the time it was a rumor by 
another trader at another conference, so I did not think I paid 
much attention to it at the time.
    Senator Levin. All right. So you do not remember seeing it?
    Mr. Wibbelman. Well, I do not say that I did not see it. I 
am just saying that I do not recall having seen it at the time.
    Senator Levin. Do you know what he referred to when he was 
saying ``we were blocking others''?
    Mr. Wibbelman. Well, I think, as you pointed out, that he 
was saying that if there is a cancellation, it would occupy 
spaces in the queue.
    Senator Levin. Does that mean he would be blocking others 
from leaving the queue? Is that what you understand he meant?
    Mr. Wibbelman. No. I mean, the LME system----
    Senator Levin. The answer is no, that is not what you think 
he would mean by that?
    Mr. Wibbelman. I was trying to explain that the LME system 
is effectively a jump ball, whoever gets there first. So it is 
a system where people cancel metal, and the first actor in the 
system is the one that is able to get in the queue.
    Senator Levin. In that same email, Exhibit 28, he uses the 
term ``Q management.'' What does that mean?
    Mr. Wibbelman. Well, I think that at the time we were 
marketing our off-warrant services to our own customers, 
effectively people already in the warehouse. And so what we 
were doing was offering them options on what they would do when 
the metal left the Metro system. And so part of those options 
were that it could be re-warranted. And, remember, at this same 
time, we had a lot of metal that was going to our other off-
warrant competitors. It was leaving Metro and going--again, 
another thousand feet or whatever to Metro competitors who were 
LME warehouses. And so we were just competing for that same 
business.
    Senator Levin. The Deutsche Bank deal was, as we have said, 
the first of six of these merry-go-round deals, and the next 
four were with Red Kite. As we indicated, that is the hedge 
fund in London. It took place in 2012. They involved a total of 
over 400,000 metric tons. And in each deal, they agreed to 
cancel warrants, wait in the queue, get to the head of the 
queue, transfer the metal from one set of Metro warehouses to 
another, and then re-warrant the deal.
    Each time, if Red Kite did anything other than send the 
aluminum to another Metro warehouse, it had to pay a 
substantial penalty. And in January, February, and March 2012, 
Metro entered into three separate merry-go-round deals with Red 
Kite. In these deals, Red Kite was paid to cancel its warrants, 
join the queue, pay again to re-warrant the aluminum in other 
Metro warehouses.
    Mr. Wibbelman, before entering these deals, did you consult 
with Mr. Gabillon and the Metro board of directors or a board 
subcommittee?
    Mr. Wibbelman. Yes.
    Senator Levin. Would you say then it is fair to say that 
each of these deals was a joint Goldman-Metro decision?
    Mr. Wibbelman. Some of the deals were specifically 
authorized by the subcommittee, and others of the deals were 
sort of vetted and understood. But generally we were aligned on 
the transactions.
    Senator Levin. So is it fair to say these basically 
followed a joint Goldman-Metro decision?
    Mr. Wibbelman. Yes.
    Senator Levin. OK. Now, the fourth and the last Metro deal 
with Red Kite was on November 5. It called for Red Kite to 
start canceling warrants ``immediately.'' Red Kite started 
canceling warrants 2 days later, on November 7, and the deal 
ultimately included over 180,000 metric tons of aluminum. The 
invoice, Exhibit 22a,\1\ showed Metro owed Red Kite $26 million 
in payments due under this deal.
---------------------------------------------------------------------------
    \1\ See Exhibit No. 22a, which appears in the Appendix on page 
1002.
---------------------------------------------------------------------------
    Now, Exhibit 25,\2\ if you will take a look at it, Mr. 
Wibbelman, reflects the terms of the last Red Kite deal. It is 
an email from Metro to Red Kite on November 5. And if you will 
go to the top of page 2, where it says, ``Red Kite will cancel 
150,000 [metric tons] of aluminum . . . immediately.'' And we 
have gone through that word ``immediately,'' and Red Kite will 
cancel, and I think it is pretty obvious you cared if they were 
going to comply, and you finally agreed that if they were going 
to comply with the deal, it was important that they comply with 
the whole deal, and that was that they cancel 150,000 metric 
tons of aluminum immediately. And then they will fulfill the 
requirements as part of this deal ``to get into the queue with 
shipping instructions for maximum appointments asap''--as soon 
as possible.
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    \2\ See Exhibit No. 25, which appears in the Appendix on page 1026.
---------------------------------------------------------------------------
    Now, if you go back to page 1 of that deal, Metro agreed to 
pay Red Kite $36 per metric ton within 2 weeks of cancellation, 
cancellation of the warrants. Metro agreed to pay and 
ultimately did pay, and you have, I think, agreed to that so 
far. Right?
    Mr. Wibbelman. Yes.
    Senator Levin. And Red Kite got in line to leave. Is that 
correct?
    Mr. Wibbelman. Yes, to my recollection.
    Senator Levin. And then when Red Kite canceled, you now, I 
think, have agreed finally that that will lengthen the queue.
    Mr. Wibbelman. Yes.
    Senator Levin. Mr. Wibbelman, at the end of the fourth Red 
Kite deal in December 2012, the queue to leave the Metro 
warehouses in Detroit was about 500 days long.
    Mr. Wibbelman. Yes.
    Senator Levin. Did Red Kite's cancellation of warrants on 
400,000 metric tons of aluminum over the course of the year 
contribute to the length of the queue? I know there were lots 
of cancellations, but did their cancellations contribute to the 
length of the queue?
    Mr. Wibbelman. Any cancellation----
    Senator Levin. Including those.
    Mr. Wibbelman. Including those, yes.
    Senator Levin. Mr. Wibbelman, the LME told us that queues 
were never terribly long nor persistent prior to Metro's 
acquisition by Goldman. Was that accurate, what the LME told 
us?
    Mr. Wibbelman. Yes.
    Senator Levin. And then shortly after Goldman acquired 
Metro, the queue grew from under a month to nearly 2 years. 
Metro has the power, I believe, to load out more metal and 
bring down the queue. Is that correct? You could do that if you 
wanted to? The 3,000 tons is a minimum, not a maximum, right?
    Mr. Wibbelman. Right. We did adjust from 1,500 to 3,000, so 
we presumably could adjust further upward if the LME changed 
the rules, yes.
    Senator Levin. Well, you could do that without LME changing 
the rules.
    Mr. Wibbelman. Yes. But our business model is based on the 
LME rules and our conforming to them.
    Senator Levin. Yes, but you could do that. You are not 
violating the rules by loading out more than 3,000 tons, are 
you?
    Mr. Wibbelman. No, but Ford could sell cars for $2,000 
also. They do not do it.
    Senator Levin. I am not suggesting that--and I do not know 
what Ford's pricing is. What you said may be true, it may be 
not true. I am sure they subsidize some cars and make profit on 
other cars. But that is a different issue. The point here is 
you could load out more than 3,000 tons if you want to, right?
    Mr. Wibbelman. If we adjusted the business, yes, we could.
    Senator Levin. And the queue then is significantly in your 
control, the length of the queue.
    Mr. Wibbelman. We have----
    Senator Levin. You say you have no control over the queue. 
You enter contracts which require people to increase the queue. 
If they live up to the contract----
    Mr. Wibbelman. But there are many other participants in the 
contract that--and in the queue with whom we did not have any 
such contracts.
    Senator Levin. I understand. I am just talking about the 
contracts that you did have, probably hundreds of thousands of 
tons.
    Mr. Wibbelman. But there are also many other pricing 
components in the whole marketplace, other warehouses around 
that have as much as 4.5 million tons of metal that is 
available without going through the queue.
    Senator Levin. Exactly right.
    Mr. Wibbelman. So we are not the only actor.
    Senator Levin. Oh, I know. That is exactly the point, 
without going through a queue, a queue that is very important 
to Goldman. Instead we have these incredible merry-go-round 
deals that I do not know--they never existed before Goldman. Do 
you know of any other warehouse that goes through those kind of 
deals, they move from one warehouse to another, a few hundred 
feet sometimes, pay people to cancel warrants, and then they 
penalize them if they do not do that, if they live up to the 
deal, and then they pay them again to re-warrant at another 
warehouse? Do you know of any other company that does that?
    Mr. Wibbelman. Well, Senator, I do not have visibility into 
what all of my competitors do, but all of the warehouses in the 
LME system are quite close together, generally. Detroit is 
really an exception where we have 1,600 square miles of 
eligible space in the tri-county area. So a lot of these areas 
are in tiny little ports.
    Senator Levin. Mr. Gabillon, in addition to sitting on the 
Metro board, you have a full-time job, I believe, as an 
executive at Goldman Sachs. Is that correct?
    Mr. Gabillon. That is correct.
    Senator Levin. And right now you are head of the Global 
Commodities Principal Investments Group at Goldman?
    Mr. Gabillon. That is correct.
    Senator Levin. And in 2010 you led the analysis to acquire 
Metro. Is that correct?
    Mr. Gabillon. That is correct.
    Senator Levin. And at the time Goldman acquired Metro, 
according to Goldman's records, Goldman owned no physical 
aluminum and in the months leading up to it had less than 
50,000 metric tons of aluminum. And after acquiring Metro, 
Goldman's physical aluminum trading spiked to over 1.5 million 
metric tons in December 2012. Is that true, sound true?
    Mr. Gabillon. I do not know the specific numbers, but that 
sounds the right direction.
    Senator Levin. Sound about right?
    Mr. Gabillon. I do not know the exact numbers, but the 
direction of travel, yes.
    Senator Levin. Well, would you say it sounds about right? I 
know the directions are right, but the direction would be right 
if they moved from 50,000 to 100,000. I am saying here the 
direction, according to Metro, Goldman's physical aluminum 
trading spiked to over 1.5 million metric tons from zero or at 
the most 50,000 metric tons before it bought Metro, and my 
question is: Does that sound about right?
    Mr. Gabillon. That sounds about right, except I do not know 
the numbers, but I believe the metal trading group made some 
hires in 2010 and 2011 that probably resulted into this 
increased business activity, yes.
    Senator Levin. OK. Now, you told the Subcommittee that 
about the time that Metro was acquired by Goldman that Goldman 
hired two aluminum traders that you had referred to them, and 
these were traders that you knew from your years in the 
business with whom--I am sorry. This is to Mr. Wibbelman.
    Mr. Wibbelman. That was my testimony.
    Senator Levin. I misspoke. This is to Mr. Wibbelman. That 
at the time Metro was acquired by Goldman--and let me repeat it 
because I was addressing the wrong witness. I apologize.
    Mr. Wibbelman, you told the Subcommittee that about the 
time Metro was acquired by Goldman that Goldman hired two 
aluminum traders that you had referred to them, traders that 
you knew from your years in this business and with whom you had 
good relationships. Is that true?
    Mr. Wibbelman. Yes, Senator.
    Senator Levin. OK. I want to talk about these information 
barriers that is your policy. LME-approved warehouses acquire 
the following kind of information: Warehouse metal stocks, 
information about the size of those stocks, the current and 
future metal shipments, LME warrant cancellations, warehouse 
queue length information that is not available generally to 
market participants.
    Now, the LME has recognized that traders privy to this kind 
of warehouse information before it becomes available to the 
broader market could use that non-public information to benefit 
their trading strategies, which would gain an unfair advantage 
over the rest of the market and over their counterparties.
    Now, as I said before, this type of information about 
warehouse queues is so sensitive and valuable that the LME will 
not publish it. And in a 2013 report, the LME said it does not 
publish detailed information on warehouse stock in queues 
because ``the danger is that those merchants and trading houses 
with the most well-staffed analytical capabilities will take 
advantage of the availability of data to derive a trading 
advantage.''
    To prevent confidential information from the warehouse from 
improperly flowing to traders, the LME requires warehouses to 
create information barriers. Metro has a policy implementing 
that requirement, and I happen to agree with what I believe 
Senator McCain was driving at before about the potential value 
of that information and how that value is very readily 
available to somebody who could profit from it.
    Now, we have 50 Goldman personnel who have been approved to 
receive confidential information about the warehouse. If you 
will look at Exhibit 40,\1\ pages 2 and 3, those are two lists 
of Goldman personnel who are allowed to receive confidential 
Metro information. Exhibit 40. And that list includes, if you 
look at it, people who trade commodities and who supervise 
commodity traders. Is that right? That is for you, Mr. 
Gabillon.
---------------------------------------------------------------------------
    \1\ See Exhibit No. 40, which appears in the Appendix on page 1236.
---------------------------------------------------------------------------
    Mr. Gabillon. This list includes some people that are 
involved in trading, but not in metal trading.
    Senator Levin. OK. But they are involved in trading?
    Mr. Gabillon. I believe there is one board member who is 
involved in natural gas trading.
    Senator Levin. And that is a commodity?
    Mr. Gabillon. Yes.
    Senator Levin. He is a commodity trader?
    Mr. Gabillon. But he is not a metal trader.
    Senator Levin. Right. Not metal, but he is a commodity 
trader. Now, I do not believe that we should have to rely on 
Goldman employees not sharing this information with other 
Goldman employees, information which is important to the 
economic interest of the company that they work for. I just do 
not think we can rely on a private policy to make sure that 
this does not happen. The stakes here are too great, and it 
ought to be--as far as I am concerned, it should be illegal to 
share this kind of information. It is also unethical, that is 
clear, but when you have a huge economic interest that is on 
the other side of ethical interests, too often the ethical 
interests give way.
    Now, Mr. Wibbelman, in June 2013, Mr. Whelan--that is Mark 
Whelan, I believe--quit. And take a look at Exhibit 30,\1\ 
which is Mr. Whelan's resignation email. And here is what he 
writes. He says: ``I have some questions and concerns regarding 
the Chinese Wall Policy that is in place which regulates the 
interaction between Metro International, its customers, and J 
Aron.'' Now, J. Aron--and I want to finish the email, and then 
I will tell you who J. Aron is. But he says: ``I have some 
questions and concerns regarding the . . . Policy that is in 
place which regulates the interaction between Metro . . ., its 
customers, and J Aron.'' And then he goes on to say, ``This 
morning's confrontation was extremely questionable.''
---------------------------------------------------------------------------
    \1\ See Exhibit No. 30, which appears in the Appendix on page 1060.
---------------------------------------------------------------------------
    Now, J. Aron is Goldman's leading commodities subsidiary 
that executes its trades. Is that correct, Mr. Wibbelman or Mr. 
Gabillon?
    Mr. Wibbelman. Yes.
    Mr. Gabillon. Yes.
    Senator Levin. OK. And what was the confrontation all 
about, Mr. Wibbelman?
    Mr. Wibbelman. So the trader in the middle of our night 
approached Mr. Gabillon with a complaint effectively about 
Metro in a transaction. But it was referred immediately to 
Goldman Compliance, who investigated the issue, and the issue 
was about Goldman's, J. Aron's trading information. In other 
words, the Chinese Wall Policy is meant to protect information 
from Metro from flowing up to Goldman. This was about J. Aron's 
own trading information, and so it was not really confidential 
information; it was really just flowing in the other direction 
than the policy is intended to block. In other words, Goldman 
could tell people about their own trading positions if they 
chose to.
    Senator Levin. And there is nothing in the Chinese Wall 
Policy, even if it is implemented properly, that stops Goldman 
from sending direction and information to you?
    Mr. Wibbelman. Well, this is about their own business in 
which we were usually conversing.
    Senator Levin. They own you, right?
    Mr. Wibbelman. Yes. But we are owned by the private equity 
side of Goldman, not the trading arm.
    Senator Levin. I understand. Goldman owns you.
    Mr. Gabillon. But I think----
    Senator Levin. No, wait. Goldman owns you. Is that right?
    Mr. Wibbelman. We are owned by a subsidiary of Goldman, 
yes.
    Senator Levin. And there is nothing in even the Chinese 
Wall Policy, if it were implemented, if you could rely on it, 
which affects information flowing from Goldman to you?
    Mr. Wibbelman. That is not what the Chinese Wall Policy is 
intended to do. That is right.
    Senator Levin. And is there anything that prevents 
information coming from Goldman to you?
    Mr. Wibbelman. They have their own confidentiality policies 
about their own information, but that is not what this is 
about.
    Senator Levin. But the Chinese Wall Policy does not stop 
that flow?
    Mr. Wibbelman. It does not.
    Senator Levin. OK.
    Mr. Wibbelman. It is not intended to.
    Senator Levin. Is there anything that stops Goldman from 
giving you direction, saying we want you to do X, Y, and Z? Is 
there anything that stops them from doing that?
    Mr. Wibbelman. So the way that it was set up, Senator, is 
that Metro operates in a silo, and J. Aron operates in a silo, 
and occasionally we have--we do sort of commercial business 
like with any other customer. And so we really do not listen 
much to J. Aron about anything other than their own business.
    Senator Levin. But there is nothing that stops that 
information from flowing?
    Mr. Wibbelman. There is no----
    Senator Levin. There is no policy that stops the 
information from flowing to you?
    Mr. Wibbelman. I do not know about J. Aron's internal 
policies.
    Senator Levin. You do not know about a policy?
    Mr. Wibbelman. Not about their policy----
    Senator Levin. Or Goldman's policy.
    Mr. Wibbelman. So I know about what Metro can----
    Senator Levin. No. I know what Metro can convey in that 
direction. I am talking about the other direction.
    Mr. Wibbelman. Correct. I do not have any visibility into 
that.
    Senator Levin. All right. So the Chinese Wall Policy, even 
if it is not a tissue paper, is a one-way information barrier.
    Mr. Wibbelman. It is, but we are the ones with what is 
supposed to be the confidential information, right? So they 
have information which may or may not be confidential, and that 
is for them to determine.
    Senator Levin. Did Goldman traders routinely talk to Metro 
employees about their metal and about seeking discounted or 
free rent? Is that a routine matter?
    Mr. Wibbelman. It is at least an occasional matter, and at 
various times it has been--we talk to them about their own 
metal or about just their ability to acquire metal, yes.
    Senator Levin. And about discounted or free rent? Have you 
talked to Goldman traders about that?
    Mr. Wibbelman. Have, yes.
    Senator Levin. Goldman approved the freight incentives? The 
freight incentives, the subsidies, that was approved, as you 
said already, by Goldman?
    Mr. Wibbelman. Yes, we had transactions in which there were 
freight incentives involved, yes.
    Senator Levin. All right. And it approved each and every 
one of the six merry-go-round deals and decided not to take 
steps to shorten the queue, when it could have? Goldman can 
shorten that queue anytime it wants. You have already 
acknowledged that. They can load out more. They can tell you to 
load out more. And you have the power to load out more and to 
reduce the queue. At the same time all of this is happening, 
Goldman is trading in aluminum-related financial instruments 
whose prices are impacted by those decisions. If that is not a 
recipe for manipulation, then I have not seen recipes for 
manipulation. It is just vivid. I mean, they are engaged in 
financial transactions involving aluminum. They can change the 
queue and the length of the queue which affects the premium, 
and that premium, even by Goldman's argument, is an important 
part, it is a growing important part, now 20 percent, of the 
all-in price for aluminum. I mean, that is just a recipe, 
again, for the kind of manipulation which--we have to prevent 
that, I believe.
    Now, company policy I know says on a slightly different 
issue, information about your transactions, Mr. Wibbelman, are 
not supposed to go to Goldman. I understand that. But a whole 
bunch of their employees get that information who are engaged 
in trading. Maybe not trading metals. Engaged in trading. And 
just to rely on a company policy in terms of information 
sharing, which is very beneficial and useful to a trader, is 
not good enough for me.
    Do you think we ought to make it illegal for a company to 
be using that kind of non-public information?
    Mr. Wibbelman. Well, Senator, to answer that, I would say 
that one thing you need to do if you do that is to take a look 
at the whole complex of actors in the international system and 
not just banks, because the banks act somewhat commercially, 
and economically they do. But there are other actors that act 
with sovereign interests and as unregulated traders. And they 
also own warehousing companies, and they also have large 
inventories, and they have trading positions, and they act 
vertically.
    So we act separately with intentionally separate economic 
interests, and they act vertically with a lot of cooperation.
    Senator Levin. Well, we cannot protect our economy from 
other--we can, but not in this particular discussion. There are 
other ways of protecting our economy from wrongdoing from other 
countries. But we have to protect our economy from banks----
    Mr. Wibbelman. Well, Senator, what I would say is that----
    Senator Levin. Excuse me. We have to protect our economy 
from banks that engage in huge involvement in commodities which 
can open up some real possibilities about their own health, and 
that means the economy's health. But I am particularly 
interested in this potential here and this reality of 
manipulation, because there is just no doubt that queues were 
affected, influenced, and manipulated in contracts which this 
warehouse company entered into, a warehouse company owned by 
Goldman. There is no doubt that these six deals that we talked 
about, which you obviously welcomed as a warehouse company and 
Goldman approved, had a direct influence, as we can see from 
the chart, on the length of the queue, given the correlation 
between the length of that queue and the premium price of 
aluminum and the importance of that premium price, by 
everybody's measure--even Goldman acknowledges it affects the 
all-in--not the total all-in price, but it affects the size of 
the LME price, because Goldman argues that if the premium price 
goes up, the LME price then goes down. That is Goldman's 
argument. So, therefore, the length of the queue even by 
Goldman's argument has an impact on how the pieces of that 
price, that all-in price, come together. And Goldman is trading 
on those pieces.
    Mr. Wibbelman. Senator, I would say one thing, and that is 
that----
    Senator Levin. You do not have to--you can respond. I will 
give you a minute. But I am talking about Goldman here.
    Mr. Gabillon. Senator, can I----
    Senator Levin. We will give you a chance to respond.
    Mr. Gabillon. Thank you.
    Mr. Wibbelman. I would just like to say one thing, which is 
that there are, as I mentioned, many international actors in 
the system and you have to give us credit--Metro credit for 
having brought in 4.6 million metric tons of aluminum into the 
system, and that created, again, a buffer stock for these 
consumers without which they would have only a single source of 
supply, the actual producers of metal. Someday those producers 
might only be in Russia, right?
    And so we brought a strategic stockpile into the United 
States. I mean, China has an actual entity which actually 
collects strategic stockpile----
    Senator Levin. The issue is not whether you bring a 
strategic stockpile into the United States. The question is the 
rules of the game relative to that strategic stockpile, and we 
cannot allow that stockpile to be used to manipulate a premium 
on aluminum. We cannot allow that because that premium, in the 
eyes of most, affects the price of aluminum, and even in the 
eyes of Goldman affects the LME price, because Goldman argues 
the LME price goes down as the premium goes up, and that means 
that the overall price, the all-in price is not affected by 
these kinds of maneuvers.
    OK. If Goldman is right, then they still have this huge 
potential to use the queue length in order to affect the 
premium, and they deal in these premiums, and they deal in the 
LME price in their financial transaction side. That is what we 
cannot allow. I do not have any problem in your business 
gaining more aluminum. It is the way in which Goldman is using 
this product, this particular facility.
    Mr. Gabillon. So, Senator, if I may, sir?
    Senator Levin. Yes.
    Mr. Gabillon. So we are absolutely aware of the risk that 
you mentioned, and this is why we have all those information 
barriers. And as I mentioned earlier, we do not rely only on 
the Goldman Sachs surveillance that takes place. PwC has 
audited the information barriers twice in the last--it is now a 
requirement under the LME rule. It has happened twice already. 
It is going to happen every year going forward. And all those 
audits have been successfully passed.
    Our information barrier policy goes above and beyond the 
LME. I am responsible on the board. I see all the information. 
There is no confidential information that goes to those 50 
people.
    Senator Levin. You do not mean that there is no 
confidential information that goes to those 50 people. Those 50 
people get confidential information.
    Mr. Gabillon. No. I think most of the 50 people here are in 
our financial control and compliance and legal to actually help 
the risk--to control the risk on this company.
    Senator Levin. Are they all allowed to get that 
confidential----
    Mr. Gabillon. No, they are not. Compliance conveyed--even 
the information I receive, Senator, is not actionable as a 
trader. It is delayed, it is sanitized, it is aggregated. It is 
not per location. It is all controlled. We have a system in 
place on that.
    Senator Levin. Different people get that information in 
different real time. Is that correct?
    Mr. Gabillon. Not real time----
    Senator Levin. No. Some of those 50 people get it in real 
time.
    Mr. Gabillon. No, nobody ever gets----
    Senator Levin. Are they allowed to get it in real time?
    Mr. Gabillon. No, they are not.
    Senator Levin. OK. We are going to take that up later.
    Mr. Gabillon. We are up here to discuss it. The other point 
I would make----
    Senator Levin. OK. I want to go back to one thing that Mr. 
Wibbelman said, by the way, when you say you are a reasonable 
source of supply, with a 600-day wait----
    Mr. Wibbelman. But people are choosing to cancel warrants 
during that time because they perceive the relative value, 
right? Here is the issue. The other warehouses in the world, 
the metal is not available without the consent of the seller, 
right?
    Senator Levin. Of course.
    Mr. Wibbelman. The difference was Metro's warehouses really 
from day one, the metal has been freely available, and that is 
what has been giving people the chance to make a value decision 
on whether it has been worthwhile or not to cancel.
    Senator Levin. Is it freely available with a 600-day wait? 
Is that aluminum available?
    Mr. Wibbelman. Those are the warrants at that time that 
were in circulation. If you would trade on the LME----
    Senator Levin. I am just asking, is that aluminum freely 
available? That is all I am asking.
    Mr. Wibbelman. It is available to own, and they make a 
decision----
    Senator Levin. Not own. To get.
    Mr. Wibbelman. It was available to get, but----
    Senator Levin. Not was. Is.
    Mr. Wibbelman. Well, the warrants were available to get.
    Senator Levin. Not warrants. Is the aluminum available?
    Mr. Wibbelman. But they generally know that, and then they 
do not----
    Senator Levin. I am asking, is that aluminum, which is 
subject to a 600-day wait, available? That is all I am asking. 
And the answer is no, that aluminum is not.
    Mr. Wibbelman. It is relatively more available than the 
metal in all of the other warehouses where the seller does not 
want to sell.
    Senator Levin. Well, it is more available--if you cannot 
buy it anywhere else, then it is more available if there is no 
other aluminum you can buy. I am just asking you----
    Mr. Wibbelman. What I am saying is there are a lot of 
actors in the system, and they have big stockpiles of metal, 
and they are not selling.
    Mr. Gabillon. I think Mr. Wibbelman refers to all the other 
warehouses in the LME system that are not flowing at all, not 
even with a queue with no flows.
    Senator Levin. Fine. If you cannot buy aluminum anywhere 
else, that is fine. I am just asking whether aluminum with a 
600-day wait is freely available. That is all I am asking. And 
the answer is no, that aluminum is not. It is a 2-year wait. 
That is the answer. It is the obvious answer. That is OK. I am 
not going to get even obvious answers. I understand that.
    Here is what we have, and I am going to wind up here. 
Goldman acquires a business, and everything changes, and that 
is Metro's business we are talking about. Metro had not ever 
paid enormous freight incentives before. They had paid some, 
but they went up in a huge way, the amount of freight 
incentives, subsidies. Metro had never entered a merry-go-round 
deal before. These were unique. It had never had enormous 
queues before. A couple of Metro salespeople who had been in 
the company for a decade quit after raising concerns about 
these practices.
    Now, here is where Goldman sits in all this. Goldman is in 
the catbird seat. It controlled or had a say over every 
variable about Metro and through Metro. It impacted aluminum 
prices, current and future. It impacted the premium. It 
impacted the LME price by Goldman's argument. Other people will 
argue--and we will hear from them--that it directly also had an 
impact on the all-in price, but even by Goldman's argument, 
again, it impacted the LME price. And I think it is clear that 
I am not a statistician--every statistician says there is a 
huge correlation between the length of that queue and the 
premium.
    Goldman employees had a say over how much incentives Metro 
would pay to attract aluminum, and they approved previously 
unprecedented levels of incentives. They had a say and agreed 
to the merry-go-round deals. They approved them to keep 
aluminum in the warehouses, block the exits, and that resulted 
in longer queues and higher premiums.
    Goldman itself--and this one is now undisputed, by the way, 
undisputed, even with these witnesses. Goldman canceled 
warrants and lengthened the queue. Goldman could have shortened 
the queue that it helped create by directing Metro to load out 
more metal, but it did not. All the while Goldman is engaging 
in its own trading of financial instruments related to 
aluminum, including trading in futures contracts.
    We thank you. We thank you for your cooperation with the 
Subcommittee, by the way. Both of your companies have been 
cooperative with the Subcommittee in terms of providing 
information to us, and we appreciate that, and we will now move 
to our second panel.
    Mr. Gabillon. Thank you.
    Senator Levin. We will now call our second panel of 
witnesses for today's hearing: Jorge Vazquez, Founder and 
Managing Director, Harbor Aluminum Intelligence Unit LLC, 
Austin, Texas; and Nick Madden, Senior Vice President and Chief 
Supply Chain Officer, Novelis Inc., Atlanta, Georgia. We very 
much appreciate both of you being with us today. We look 
forward to your testimony.
    According to our rules, everyone who testifies in front of 
us is sworn in, so we would ask you both to please stand and 
raise your right hand. Do you swear that the testimony you will 
provide to this Subcommittee will be the truth, the whole 
truth, and nothing but the truth, so help you, God?
    Mr. Vazquez. I do.
    Mr. Madden. I do.
    Senator Levin. Your written testimony will be made part of 
the record in its entirety. The red light will come on in front 
of you about 5 minutes from now. We would ask that you try to 
limit your oral testimony to 5 minutes, if you could, and 
before that red light comes on, there would be a light change 
from green to yellow about a minute before the end of the 5 
minutes.
    So, Mr. Vazquez, why don't you go first, and then Mr. 
Madden.

 TESTIMONY OF JORGE VAZQUEZ,\1\ FOUNDER AND MANAGING DIRECTOR, 
        HARBOR ALUMINUM INTELLIGENCE LLC, AUSTIN, TEXAS

    Mr. Vazquez. Thank you. Good afternoon, Chairman Levin, 
Senator McCain, and other Members of the Subcommittee. Thank 
you for your invitation to provide my views on areas related to 
aluminum warehousing and market premiums.
---------------------------------------------------------------------------
    \1\ The prepared statement of Mr. Vazquez appears in the Appendix 
on page 148.
---------------------------------------------------------------------------
    I would like to summarize my opinions in the following four 
points:
    Since 2010, the North American aluminum consumer has lacked 
an efficient market of last resort to go to. Harbor estimates 
that North America will end 2014 with an aluminum production 
deficit of 2.4 million tons of aluminum. Although 1 million 
tons of metal is stored in LME Detroit, an aluminum consumer 
who would like to source metal from these warehouses faces a 
load-out waiting time of 665 days. As a reference, prior to 
2010, waiting times averaged less than 2 weeks. This long 
waiting time of 665 days and the capital requirements to source 
the metal out from these warehouses makes it prohibited for the 
consumer to effectively use the LME as a backup. This is taking 
place as North America is experiencing a growing aluminum 
deficit.
    A critical mass of metal was allowed to be formed in 
Detroit Metro. This has created unprecedented effects. By 
January 2009, as a result of the aluminum market surplus 
generated by the economic crisis, LME Detroit had accumulated 
342,000 tons of aluminum in its warehouses. Baltimore had also 
the same volume, but diluted among survival warehousing 
companies.
    This concentration of metal in one warehousing company gave 
Metro the ability to offer more warehouse incentives than any 
other company, the ability to outbid the aluminum consumer, and 
the start of a self-feeding cycle that allowed the company to 
permanently increase the metal stored in its warehouses in 
spite of a growing market deficit.
    One month after Detroit's critical mass and dominance 
position was established, Goldman Sachs acquired Metro. When 
Goldman acquired Metro, LME Detroit had an equivalent of less 
than 44 days of a load-out queue. Five months later, LME 
Detroit started to experience ongoing massive and unprecedented 
cancellations which lengthened the queue to an unprecedented 
waiting time of 702 days by May of this year.
    In my view, the lengthening of Detroit's queue to 
unprecedented waiting times has impacted market premiums, the 
all-in price of aluminum, and the aluminum consumer. While the 
logistical cost to source metal from Russia and the Middle 
East, North America's main aluminum suppliers, has remained 
stable since 2009, the cost of sourcing metal from LME Detroit 
has increased more than tenfold.
    As the cost of sourcing metal from LME Detroit increased, 
so did the reference point for consumers, traders, and 
producers to negotiate with. As a result, the Midwest Premium 
is today ten times higher than what it was in 2009.
    Harbor estimates that the lengthening queue in Detroit has 
cost the North American aluminum manufacturer at least $3.5 
billion since 2011. There are warehouse practices that may pose 
a conflict of interest.
    Paying warehouse incentives to attract metal is a standard 
and historical practice. What is certainly not a common 
practice, however, is when LME warehouse operators offer and 
pay an incentive to warehouse customers to cancel metal and 
wait in the queue. That practice poses serious conflicts of 
interest because incentivizing the lengthening of load-out 
queues can materially impact market premiums.
    Thank you.
    Senator Levin. Thank you. And, by the way, if you would 
just spend a minute telling us what Harbor Aluminum does, what 
is your role and goal?
    Mr. Vazquez. I am the Founder and Managing Director of 
Harbor Aluminum, which is an independent, privately owned 
consulting firm that specializes in analyzing the aluminum 
industry and its various markets, and in providing market 
intelligence to our customers. We serve over 300 clients along 
the entire supply chain in every region of the world.
    Senator Levin. Thank you.
    Mr. Madden, we will hear from you next..

 TESTIMONY OF NICK MADDEN,\1\ SENIOR VICE PRESIDENT AND CHIEF 
      SUPPLY CHAIN OFFICER, NOVELIS INC., ATLANTA, GEORGIA

    Mr. Madden. Chairman Levin, and Ranking Member McCain, I 
very much appreciate this opportunity to speak to you today and 
to answer your questions.
---------------------------------------------------------------------------
    \1\ The prepared statement of Mr. Maddin appears in the Appendix on 
page 164.
---------------------------------------------------------------------------
    My name is Nick Madden, and I am the Senior Vice President 
and Chief Supply Chain Officer of Novelis. Our company is 
headquartered in Atlanta. We are the world's leader in aluminum 
rolling and recycling, and we are also the largest buyer of 
aluminum in the world, with a buy of about 3 million tons. I am 
responsible for that, and I have been in the industry for 36 
years.
    For the last 3\1/2\ years, Novelis has been very public in 
our advocacy to restore normal functioning to the market, 
specifically around the London Metal Exchange warehouse 
practices. The warehouse issue is having a profoundly negative 
impact on our customers' businesses, and our customers include 
some of the most famous brands in the world, with beverage 
companies like Coca-Cola and Anheuser-Busch, automakers like 
Ford, General Motors, Chrysler, and BMW, and consumer 
electronics manufacturers like Samsung and LG.
    As an aluminum roller, we seek to keep ourselves neutral to 
movements in the London Metal Exchange price. But last year, 
our Asian operations took a $40 million hit as a result of this 
issue.
    The consequences are equally serious for consumers in the 
United States. Supply and demand in the aluminum market has 
been completely upended in recent years, and since 2010, when 
the banks and trading companies bought into the warehouses, 
aluminum premiums have tripled. Now premiums are at the highest 
levels ever in history, and last year this was coincident with 
inventories being at the highest level ever in history. It is 
an unprecedented situation in the history of the global 
aluminum market.
    So for companies like us--we are an aluminum converter--we 
have three key issues:
    First, inflated premiums. We estimate that consumers around 
the world--and this is a conservative estimate--are paying at 
least $6 billion a year more than they should be.
    The second is supply chain risk. If I buy metal from 
Detroit today, I have to wait until September 2016 to pick it 
up.
    And then, finally, price exposure. With the premium now at 
20 percent not 5 percent of the all-in price, we can no longer 
manage price risk effectively.
    But the most serious issue is the inflated cost. Whether it 
is for a truck or a smartphone or a beverage can, the American 
consumer ultimately will pay the price, and we liken this to a 
hidden tax on the price of today's aluminum products.
    All this is happening at a time when the aluminum industry 
is in actually a very healthy situation. We see strong growth 
around the world, but the most exciting growth is in the 
automotive sector, specifically in North America. And my 
company has invested $400 million to meet that growth and added 
375 highly skilled jobs in our plant in Oswego, New York.
    So you can imagine our frustration when we see threats to 
the supply chain and to the competitiveness of aluminum as a 
result of what appears to us to be an engineered squeeze in our 
market. While the LME has finally begun to act, progress is 
slow, and the situation on the ground gets worse every day.
    So what is the fix? Because I know everything cannot be 
fixed today, but if I had a magic wand and could make things 
improve, there are three things that we would like to see 
happen which we think would benefit our company, our industry, 
and the American consumer.
    The first of those is banks and trading companies should 
not be allowed to own warehouses.
    Second, we need to clarify the scope of the CFTC to ensure 
that there is no vagueness over its coverage of the warehousing 
attachment to the LME market.
    And, third, warehouses should not be allowed to charge rent 
once a warrant has been canceled, and we believe if you 
implement that, the incentive for this whole problem would 
disappear overnight.
    So, again, as the world's largest buyer of aluminum and on 
behalf of Novelis, I thank you for this opportunity and would 
be very happy to answer questions.
    Senator Levin. Well, thank you both for coming and for your 
testimony. It is very powerful testimony.
    Mr. Madden, I think you perhaps have already answered this, 
but I am going to ask a question in a way that perhaps you 
could expand a bit on what your testimony is. I think as a 
result of our investigation and Report probably you have 
learned for the first time about the participants and 
circumstances behind some of the warrant cancellations at the 
Metro warehouses in Detroit since 2010 that contributed to the 
hugely longer queue, including some of those merry-go-round 
trades, the large cancellations by Goldman and JPMorgan as well 
as Metro's premium-sharing arrangements. And on a practical 
level, you have given us some of the impact already on your 
customers and on you.
    Were you surprised when you heard about these practices?
    Mr. Madden. I was kind of surprised, but not entirely. I 
would say it equated with our worst fears of what could be 
happening, because this behavior of massive cancellations is 
unprecedented. And you asked that question earlier. I know of 
no occurrence in history at the aluminum--since the LME started 
trading in 1978, which is when I started working in the 
industry, I know of no precedent. So, yes, this surprised--the 
actual activity surprised us. But am I completely--something 
strange was going on, but it was very opaque to us because all 
these transactions happened in a non-reported way.
    Senator Levin. Well, were you horrified by what you saw?
    Mr. Madden. Well, it makes us look naive; being the biggest 
buyer in the world, we did not know this was going on. But we 
do believe that the activity was definitely prolonging the 
queue, and we do believe absolutely that there is a direct 
linkage between the premium and the queue, and, therefore, we 
think this issue--and this is what we have been kind of talking 
publicly about for the last 3\1/2\ years, that the issue around 
Detroit--and now it has moved to Vlissingen in Europe as well--
is pushing up premiums to levels never seen in history.
    Senator Levin. Now, Mr. Vazquez, if you can tell us in your 
judgment the relationship--two relationships: First, between 
the length of the queue in a warehouse and the premium, what is 
the relationship between the premium and the so-called all-in 
price? Those two things, first between the queue and the 
premium, and then between the length of the queue and the 
overall all-in price. Sometimes I call it ``market price.'' I 
guess it is somewhat different from market price, but for most 
intents and purposes, market price.
    Mr. Vazquez. Our work, our mathematical work, our empirical 
tests are really clear to indicate that queue length determines 
or impacts greatly the premium. And not only there is a strong 
correlation between the length of the queue and the premium, 
but there is causation, meaning mathematically, 
econometrically, the queue causes the premium. And the reason 
for that is that----
    Senator Levin. When you say ``causes''----
    Mr. Vazquez. Yes, causes.
    Senator Levin. It is a part of the premium.
    Mr. Vazquez. Yes.
    Senator Levin. Or has a direct relationship to the length?
    Mr. Vazquez. Yes. It is both, yes. Not only there is a 
correlation, because sometimes there are two variables that may 
be correlated, but they are not really--one does not cause the 
other. But in the case of the queue and in the case of the 
premium, not only there is correlation but there is causation, 
meaning----
    Senator Levin. Why is that?
    Mr. Vazquez. Because the premium is the full logistical 
cost of sourcing metal. When a consumer or a buyer looks to buy 
metal, they have three options: They can go to the trader, they 
can go to the smelter, or they can go to the LME. How much it 
costs to move the metal all the way from the smelter to the 
consumer plant is an important factor behind the premium.
    The full logistical cost of moving metal from the trader's 
warehouse to the consumer's warehouse also impacts the premium. 
And the full cost of buying a warrant, canceling the warrant, 
paying storage fees, paying the FOT charge, which means how 
much you pay to load out the metal and put it in a truck, and 
then from there to your own warehouse, to the consumer 
warehouse, is another important logistical cost.
    So the combination of these logistical costs determine the 
premium. So the backup that the consumer has is the LME. That 
is the market of last resort. If the trader or the producer is 
charging too much in terms of premium, the consumer can go to 
the LME and source the metal himself, paying storage. But if 
the backup has a prohibitive cost, if the queue is so long that 
you have to pay, like today, 665 days of rent, then the trader 
and the producer know that your option is not really an option, 
and it is too expensive. So the point of reference, the point 
of negotiation goes up.
    In the past, when queues were less than 2 weeks or were 
less than 30 days, the consumer, whenever they were negotiating 
with the trader and the producer, said, ``You want to charge me 
so much for premium? Forget it. I can go to the warehouse and 
source it myself. And the equivalent cost is such that it is 
cheaper than what you are charging me.''
    So the consumer has always used the LME as a leverage, as a 
point of reference when negotiating with the producer and the 
trader. But if you take that away, then the trader and the 
producer can charge at least what is the cost for the consumer 
to load out the metal from the LME warehouse into his plant. So 
that is the backup that the consumer has.
    Senator Levin. Goldman is arguing that when the premium 
goes up, the LME price goes down because the all-in price will 
always be about the same. That is their argument. If you buy 
it----
    Mr. Vazquez. Senator, evidence tells us the opposite. Why 
the opposite? There is no clear, robust empirical data that 
tells us that the LME moves inversely to the premium. They move 
in tandem. There is no--the LME price impacts the all-in price. 
The premium impacts the all-in price. There is no objective 
data, analysis, that tells us that the LME falls when the 
premium goes up. Quite the opposite.
    Senator Levin. Before I turn it over to Senator McCain, do 
you agree with that, Mr. Madden?
    Mr. Madden. I do.
    Senator Levin. That the argument of Goldman that when the 
premium goes up, the LME price goes down because the all-in 
price always stays about the same--you just do not buy that?
    Mr. Madden. No, I do not. I can think of a parallel in 
history, so the last time we saw stocks at the levels we have 
today was in the early 1990's after the collapse of the Soviet 
Union, and lots of metal flooded out of Russia into the United 
States, and so on. At that point the LME price was down at 
$1,070 a ton at the low point. And the Midwest Premium was 
between 0 and half a cent. So when the demand is very weak or 
there is so much oversupply, you would expect both the premium 
and the underlying price to be weak. What we have today is, as 
I said, the highest stocks in history, and, therefore, one 
would expect the fundamentals are not great. But we have the 
highest premiums ever in history. There is no parallel, there 
is no time ever in the history of this market that we have seen 
a Midwest Premium of 23 cents, and historically it ranged from 
0 to 7 cents a pound. So this is a whole new phenomenon that we 
are trying to get to grips with.
    Senator Levin. Thank you. Senator McCain.
    Senator McCain. So as a followup, it probably would not be 
possible, could it, unless one company or corporation had 85--
as Goldman Sachs does, controlled 85 percent of the LME 
aluminum in the United States. I do not see how you can draw 
any other conclusion. Is that yours?
    Mr. Vazquez. Yes, it is. See, it is really difficult to 
move the LME price, to manipulate the LME. But the volumes that 
move the premium, 100,000 tons under current conditions can 
move the premium. It is much easier to move the premium than to 
move the LME price. And if you have 85 percent of the volume 
that is in North America within LME warehouses, well, that is 
an interesting data point to observe.
    Senator McCain. Something that really is startling about 
this to me that has really made an impression during the course 
of this hearing: Why would anyone that is interested in service 
to the customer and a product at the lowest price, why would 
that organization, in this case Metro, pay its clients to move 
metal from one Metro warehouse into another warehouse, which 
sometimes is a mile away? What could possibly logically, if you 
are trying to do any--impose any efficiencies, why would you 
want to pay people so that you can move it from one warehouse 
to another? Please, maybe for the record, you can explain that 
practice, which I think is called ``merry-go-round deals.'' 
Maybe you, Mr. Madden?
    Mr. Madden. Yes, I mean, I read about this first in David 
Kocieniewski's article in the New York Times, and I honestly 
did not really understand what he was saying at that point. And 
now I see it in black and white, I understand. And I can only 
assume that if it was my business, I want to keep hold of that 
metal in any way I can because it is generating rent. But I 
also have to satisfy the LME obligation.
    Now, this is my theory because I do not actually know 
exactly what the driver is, but my theory would be if I make 
metal move out at the LME rate but it does not really move out, 
it just goes somewhere else, and then ultimately gets re-
warranted, I have retained control of that pool of metal and, 
therefore, I can continue to count on rent provided there is a 
queue. And so if I can then----
    Senator McCain. So you are going to make--even though you 
are paying your client to move their product from one warehouse 
to another, you are still going to make more money that would 
be more than the amount you are paying your client. And so 
ultimately all that cost is borne by the consumer sooner or 
later.
    Do you want to add to that, Mr. Vazquez?
    Mr. Vazquez. Yes, the reason why there is an incentive for 
a warehousing company to make sure that the metal comes back to 
the LME warehouse that they operate is because they can make 
more money off of it. And, of course, they want to keep the 
critical mass of metal because having the critical mass of 
metal keeps this business model going on.
    Senator McCain. That is why you want 85 percent of the 
supply. If that was not the case, then obviously this practice 
would be non-productive.
    Now, again for the record--and let us assume that there are 
some complexities here--there is now a 670-day waiting time 
from the time that a consumer orders the product, the aluminum, 
to the time that it would get to that consumer. Is that 
correct?
    Mr. Vazquez. Correct.
    Senator McCain. One more time, explain how that has 
ballooned from--what was it, 30 days? I think something like 
that. Explain to me how that happens for the record, again. I 
apologize if it is repetitious, but it is staggering to think 
that 600 days would elapse between the time you order something 
that is in a warehouse in the United States of America and it 
gets to the consumer or the user.
    Mr. Vazquez. Well, the size of the cancellations are 
completely unprecedented. And, the size of the exit door is too 
small compared to the size of the volume of the metal in the 
warehouse. That is the second reason. And the third reason, in 
my opinion, is that the system was not designed to make sure 
that no critical mass of metal could be concentrated in one 
warehousing company without having the proper exit door if the 
time for need for that metal came. So that is my reflection. 
That is my opinion. The exit door was not appropriate, the 
system was not appropriate to make sure this did not happen.
    Senator McCain. And, obviously, the LME does not seem to 
feel it necessary to take some action, apparently.
    Mr. Madden, do you want to add anything to that?
    Mr. Madden. Yes, I would be happy to. So we have talked to 
the LME a lot. I am a member of the LME Aluminum Committee, and 
the Physical Market Committee which was introduced very 
recently when they changed the rules, and I see, too, a shift 
change in the LME leadership. So the business was acquired at 
the end of 2013--2012, excuse me, by the Hong Kong Exchange. 
Prior to that, it was owned by--and I think it was mentioned 
earlier. It was owned by the members. So, for instance, some of 
the investment banks that are talking here today and tomorrow 
were actually significant shareholders of the LME with 
shareholdings of around 10 percent each.
    So the company was kind of regulating, managing itself, so 
a major change in a policy--like we were pressing for them to 
move the load-out rate to 9,000 or 10,000 tons a day for a 
warehouse like Detroit. They were very reluctant to move it. In 
the end, they conducted an inquiry by European Economics. They 
got recommendations, and they chose to take what I would say is 
one of the softer options. We then became--complained about it 
in the press and so on. So they were extremely slow to react.
    Since the changeover, I see a complete change of mind-set 
for them because the new investors have paid a lot of money for 
that exchange, and its reputation is being dragged through the 
mud. It is losing credibility all the time because of this loss 
of convergence in the market in the physical delivery points 
like Vlissingen and Detroit.
    So I see a kind of energy now developing in the LME to 
change rules, but when they do try and make a move, they get 
sued. So they tried to introduce a new load-out rate which 
would more equalize the inputs and outputs, which today would 
not make any difference, in all honesty, but in the future we 
would be less likely to see this recur. But Rusal, an aluminum 
company--because what a lot of people do not realize is that 
one of the major beneficiaries of this are the aluminum 
producers themselves as well as the banks and the trading 
companies. Rusal sued them because they tried to block the 
change. And I think the LME's mind-set now is it is really 
difficult for us to introduce new rules because whatever we do, 
there is going to be a stakeholder with some vested interest 
who is going to take action against us.
    Senator McCain. So what is your recommendation? I think 
this problem has been pretty graphically demonstrated, Mr. 
Chairman. What is your fix? We will start with you, Mr. 
Vazquez.
    Mr. Vazquez. I think the exchange needs help, needs a 
higher authority to help the exchange make sure----
    Senator McCain. What about the SEC getting involved?
    Mr. Vazquez. I just think that we need a higher authority. 
It could be the solution, because I do see a change in attitude 
from the exchange, a clear change of attitude, a positive 
change of attitude. But it seems to me that they lack the 
authority to move as fast and as decisively and effectively as 
I think they should.
    Senator McCain. Well, is one of the answers that no one 
entity should control 85 percent of the supply? For the record.
    Mr. Vazquez. Yes.
    Senator McCain. Mr. Madden.
    Mr. Madden. Yes, I agree with Jorge. I think the LME needs 
help. It needs regulatory help to help it implement what I know 
it believes to be healthy changes in the market and probably 
the most--the one I mentioned which I think is the most helpful 
is to ban the charging of rents once a warrant is canceled, or 
at least within some reasonable period, 30 days.
    Senator McCain. Don't you think there is a regulation that 
if someone is moving a commodity from one warehouse to another 
and paying the owner of that commodity in order to do so, 
doesn't this border on manipulation of the market?
    Mr. Madden. It is difficult to comment because it is kind 
of new information. I think it is a day old. But it is an 
extremely imaginative approach to maintaining a profitable 
warehouse company, is to not allow stuff to leave. I think they 
are able to take advantage of the LME rules. They are able to 
use the minimum rate as a maximum.
    Senator McCain. And it eventually drives the price of 
aluminum up.
    Mr. Madden. Absolutely.
    Senator McCain. Which then drives up the cost of anything 
in an aluminum container.
    Mr. Madden. Absolutely.
    Senator McCain. So we are really talking about who really 
pays the price here is the consumer.
    Mr. Madden. Ultimately.
    Senator McCain. Well, I want to thank you for your 
testimony. I think it has been extremely helpful, Mr. Chairman, 
and it made this situation, I think, a lot more clear for the 
record. And I thank the witnesses.
    Thank you, Mr. Chairman.
    Senator Levin. Thank you.
    Now, in addition to the warehouse company, with these 
merry-go-rounds, maintaining and increasing the amount of metal 
in the warehouse company, getting rent, storage fees, that is 
the warehouse company's interest. Of course, it is owned by 
Goldman, so if the warehouse company does better, Goldman does 
better in that regard. But I am at least equally interested in 
what the cancellation does in terms of increasing the queue, 
which affects the premium, while Goldman is trading in 
transactions relating to aluminum. That gives them a huge 
opportunity, does it not, Mr. Vazquez?
    Mr. Vazquez. Yes, if you really know the market, you know 
that if you cancel massive amounts of metal, the queue is going 
to lengthen, and you know that premiums are going to go up. So 
if premiums go up and you have metal outside the exchange, 
inside the exchange, or trading derivatives, or just simply 
having a long position, your mark-to-market value of your 
overall position goes up when premiums go up.
    Senator Levin. And is there not something even more potent 
than that, as potent as that is? If you have advance 
information that queues are going to go up and you are engaged 
in trading in derivatives, which are impacted by premiums, if 
you have that advance information and these huge traders like 
Goldman thrive on information, and if they can get advance 
information that queues are going up longer, doesn't that give 
them a huge advantage in terms of their financial transactions 
in the market?
    Mr. Vazquez. Definitely, knowing that there is going to be 
not only a big cancellation but a set of cancellations of 
important volumes, if you know that ahead of time, definitely 
that has a benefit.
    Senator Levin. And when Goldman employees on that board, 
that warehouse board, are involved in decisions on 
cancellations and know there are contracts, which are not 
public, that require cancellations, from the warehouse 
perspective that maintains the amount of metal in the 
warehouse; but from a trader perspective, to know in advance 
that agreements are being entered into, which, if lived up to, 
require cancellations, and that means longer queues, and that 
means greater premiums, is that information not of huge benefit 
to a trading company that deals in derivatives and in futures?
    Mr. Vazquez. I believe so.
    Senator Levin. Do you agree with that, Mr. Madden?
    Mr. Madden. Yes, and it is kind of ironic if you think 
about the theory that they profess, that the all-in price does 
not really change, and, therefore, then you would know to short 
the LME if you are going to increase the queue because the 
higher Midwest Premium would mean the LME had to go down. So 
you are absolutely right. Whatever you believe, if you are 
aware that the queue is going to lengthen, you know the premium 
is going to strengthen.
    But I think the real benefit is, of course, on all the 
other aluminum they own. So there is a rent, but then when they 
crystallize the value of the metal that they own, however, the 
$3 billion worth of metal, because that is where all that value 
is being created, because the value of it is going up all the 
time, because the LME component would be hedged, except the 
only opportunity for price appreciation and value creation will 
be the--it is the mark-to-market of the premium increase.
    Senator Levin. So there is a huge advantage here for 
Goldman. They own a warehouse that is putting in more and more 
aluminum, now what, 75 percent of whatever the LME, total 
aluminum in this country is in Goldman-owned warehouses. Then 
they have advance information about the length of the queue 
because they are approving contracts, working on contracts, 
which will require warrant cancellations, and, therefore, the 
length of the queue will be increased. And they have advance 
information on that.
    And now what you have added, Mr. Madden, is something which 
is pretty potent, too. They own a lot of aluminum. Goldman owns 
a lot of aluminum. And if the price of aluminum is positively 
impacted through all of this, if the price of aluminum itself 
is going to go up through those activities, then they benefit, 
as you call it, mark-to-market, but the value of what they own 
physically is also going up, so they have an advantage in their 
trading world, because they are dealing in derivatives and 
futures and have advance information on things which will 
happen which will affect the price of those derivatives.
    Mr. Madden. That is what I believe.
    Mr. Vazquez. Plus any physical position they may have.
    Senator Levin. There is some evidence here that this 
warehouse company shared premium payments with a metal owner 
when the metal is delivered to the physical market, so that the 
premium payments themselves are shared with the metal owner. Is 
that permitted by the LME, do you know?
    Mr. Madden. I do not know.
    Senator Levin. OK.
    This is Exhibit 32.\1\ This was a page, and I will read it 
to you. If you were here earlier--and I think you were--you 
would have heard me read from this. It is the management brief 
which was supplied to Metro board members, all of whom are 
Goldman employees. And if you look at that management brief 
that was presented, it said the following: ``Extraordinary 
income from counterparties sharing physical premium with 
Metro''--in other words, they were making additional income 
from the counterparties sharing that physical premium, but this 
is something that 13 agreements in the United States Metro 
shared in a fee that was tied to the premium--which would give 
Metro another incentive to lengthen the queue, by the way, if 
that is the case, which it was.
---------------------------------------------------------------------------
    \1\ See Exhibit No. 32, which appears in the Appendix on page 1063.
---------------------------------------------------------------------------
    You have given us, I think, a number of suggestions as to 
how to end this situation. Mr. Madden, I believe you gave us 
three. One was that the CFTC should be able to cover this 
market, I believe. Are you going to weigh in on that with the 
CFTC?
    Mr. Madden. We have already.
    Senator Levin. OK.
    Mr. Madden. And I was pleased that they did take action--I 
cannot remember precisely when--and requested the warehousing 
companies and the producers who have been supplying the trading 
company to freeze correspondence and make it available. So they 
did actually assert themselves.
    Senator Levin. But they have not acted yet except to tell 
people to freeze your correspondence. Is that right?
    Mr. Madden. I do not know what they did subsequently. That 
was not public, yes.
    Senator Levin. OK. I want to ask just a few questions about 
the so-called information barrier requirements. These are not 
law. They are policy, and that means they are left up to the 
companies to implement, and these companies have a financial 
interest which runs the opposite direction from preventing 
themselves from getting information.
    Mr. Vazquez, could a trading company like Goldman that is 
in a position to approve a warehouse company's budget for 
freight incentives or rent discounts use that to improve its 
trading position in transactions relating to aluminum?
    Mr. Vazquez. I believe so.
    Senator Levin. And do you have an opinion on that, Mr. 
Madden?
    Mr. Madden. I mean, it is not where we operate, but I have 
to believe it creates an opportunity.
    Senator Levin. I will not ask you to look at it because I 
will quote from it. I think there has been enough said about it 
already. Exhibit 36d\2\ is a March 2013 packet which was given 
to the Metro board of directors, and here is what it provides. 
It provides projected freight incentives and real discounts. So 
the Metro board of directors is given projections of 
incentives, subsidies, and rent discounts. Is that information 
commercially valuable? Would a trader want to know if you are 
trading in metals?
---------------------------------------------------------------------------
    \2\ See Exhibit No. 36d, which appears in the Appendix on page 
1157.
---------------------------------------------------------------------------
    Mr. Vazquez. Yes, definitely. The more information you 
have, the better for your trading strategy.
    Senator Levin. And the amount of metal coming in or out of 
a warehouse, would that be valuable to a trader?
    Mr. Vazquez. It definitely is something you would like to 
know in terms of trading spreads, and also in terms of trading 
warrants. See, there are different types of metal coming in in 
terms of the purity, the quality of the metal. Knowing from 
what smelter the metal is coming and what trader is bringing 
the metal, it is also information that is valuable to know.
    Senator Levin. Would you agree with that, Mr. Madden?
    Mr. Madden. Yes.
    Senator Levin. Well, we thank you both very much for your 
testimony. It has been very powerful testimony. And where we 
are, we are going to adjourn here for 45 minutes or until after 
the votes are finished in the Senate. We hope it would be no 
later than an hour from now. But where we are at this point in 
the hearing is that what we have seen very clearly is, after 
Goldman bought Metro, the freight incentives tripled; merry-go-
round deals were done for the first time; queues went from 40 
days to 665 days; the premium tripled; Metro profited, Goldman 
profited; and consumers lost out.
    That is where we are at. We will pick this up with our 
third panel at--it is 1:30 now. The votes are now starting at 2 
o'clock. We are going to shoot for 2:45. We are going to 
adjourn until 2:45. I hope everybody will let their Senators 
know and let the public know and all of our witnesses who are 
on the third panel know.
    We thank all of our witnesses. It has been a very useful 
morning and early afternoon. We thank you two specifically for 
coming in to help us.
    Mr. Vazquez. Thank you, Chairman.
    Mr. Madden. Thank you, Chairman.
    [Whereupon, at 1:31 p.m., the Subcommittee adjourned, to 
reconvene at 2:45 p.m., this same day.]
    Senator Levin. We will come back to order, and I would now 
like to call our third panel of witnesses for today's hearing: 
Simon Greenshields, Co-Head of Global Commodities at Morgan 
Stanley, New York; Gregory Agran, Co-Head of Global Commodities 
Group at Goldman Sachs, New York; and John Anderson, Co-Head of 
Global Commodities at JPMorgan Chase, New York.
    We very much appreciate your being with us today and the 
cooperation with this Subcommittee in terms of providing 
information.
    Pursuant to Rule 6, all witnesses who testify before us are 
required to be sworn. So I would ask all of you to please stand 
and raise your right hand.
    Do you swear that the testimony you're about to give will 
be the truth and nothing but the truth; so help you, God?
    Mr. Greenshields. I do.
    Mr. Agran. I do.
    Mr. Anderson. I do.
    Senator Levin. Under our timing system, before the red 
light comes on, you will be seeing a shift from the green light 
to a yellow light, and that will give you an opportunity to 
conclude your remarks.
    Your written testimony will be printed in the record in its 
entirety.
    Please try to limit your oral testimony to 5 minutes.
    Mr. Greenshields, I think we will have you go first.

     TESTIMONY OF SIMON GREENSHIELDS,\1\ GLOBAL CO-HEAD OF 
        COMMODITIES, MORGAN STANLEY, NEW YORK, NEW YORK

    Mr. Greenshields. Thank you, Senator. Chairman Levin and 
Members of the Subcommittee, my name is Simon Greenshields. 
Thank you for this opportunity to be here today.
---------------------------------------------------------------------------
    \1\ The prepared statement of Mr. Greenshields appears in the 
Appendix on page 268.
---------------------------------------------------------------------------
    I am Co-Head of the Commodities Division at Morgan Stanley. 
I am proud to work with an extraordinary group of professionals 
whose experience and expertise has helped to develop an 
industry-leading enterprise.
    Morgan Stanley has been in the commodities market for more 
than 30 years. We are committed to being responsible market 
participants, providing price risk management solutions and 
physical supply services to our clients and counterparties.
    We also believe in a strong regulatory framework and the 
sound management of the full spectrum of risks associated with 
the business.
    At Morgan Stanley, we put safety first, and we are 
dedicated to operating our business in a sound manner.
    I had a brief opportunity to review the Subcommittee's 
Report, and I look forward to studying it at length in the 
coming days.
    We already know that we can learn a lot from the work of 
Congress and the perspectives of our peers and regulators.
    At Morgan Stanley, we are focused on our core strengths--
providing intermediation, risk management and supply services--
where we believe that we can provide the most value to our 
clients.
    We are in the process of exiting some parts of our 
commodities business, particularly the ownership of physical 
assets. We believe that this approach will work best for Morgan 
Stanley and positions us where we think we should be in light 
of the evolving market conditions and regulatory expectations.
    We would also agree with you that regulatory guidance 
should be clear and that oversight should be robust, to ensure 
the risks undertaken in these markets are prudent and 
appropriately mitigated. More reporting and clarification 
through notice and comment rulemaking could also be helpful to 
promote confidence in the overall market.
    At Morgan Stanley, we will not take on the risk of engaging 
in activity unless we fully understand it and we can manage it 
effectively.
    We appreciate and want to be responsive to the feedback we 
receive from our regulators and other key stakeholders, and we 
understand the critical importance of transparency.
    We are in the business because we believe we are adding 
value responsibly. Our clients and counterparties are 
cooperatives, cities and corporations, ranging in size from 
small businesses to global enterprises. We want to help them 
succeed.
    We appreciate the hard work of your staff and look forward 
to responding to your questions.
    Senator Levin. Thank you very much, Mr. Greenshields.
    Mr. Agran.

  TESTIMONY OF GREGORY AGRAN,\1\ CO-HEAD, GLOBAL COMMODITIES 
         GROUP, GOLDMAN SACHS & CO., NEW YORK, NEW YORK

    Mr. Agran. Thank you, Senator. Chairman Levin, Ranking 
Member McCain, and Members of the Subcommittee, my name is 
Gregory Agran, and I am Co-head of the Goldman Sachs 
commodities trading, where I have overall responsibility for 
the firm's trading activities. Commodity trading activities, 
excuse me.
---------------------------------------------------------------------------
    \1\ The prepared statement of Mr. Agran appears in the Appendix on 
page 274.
---------------------------------------------------------------------------
    As you know, for much of modern financial history, a close 
connection has existed between capital markets and commodities. 
The interplay between financial and physical commodity markets 
is crucial to determining the returns that thousands of 
companies earn for their products as well as the risk they bear 
in producing them. By one measure, almost 40 percent of the 
equity capitalization of the S&P 500 index has meaningful 
exposure to commodities.
    A core function for Goldman Sachs is to act as an 
intermediary or market maker for a range of clients. We perform 
this role across markets for interest rate, currency, equity, 
credit and commodity products, each of which we refer to as an 
asset class.
    Many of these transactions are settled financially, in 
which the parties make payment based on the terms of the 
transaction. A certain portion of these transactions are 
settled physically, where one party delivers an asset to the 
other in exchange for a payment.
    Depending on the asset class, the asset that is delivered 
may be a bond, a number of shares, or a specified volume or 
currency or commodity.
    We have been an active market maker in commodities and 
commodity derivatives since 1981. Though these activities 
involve physical commodities, they otherwise mirror our market-
making and purely financial instruments. And it is in this role 
that we serve as a bridge between producers on the one hand, 
and consumers and investors on the other, whose interests and 
exposures offset each other but do not perfectly match.
    Our clients in the commodities business include many of the 
largest companies in the world across virtually every sector. 
Many of these companies, as well as several municipal and trade 
organizations, more than 100 in total, have been outspoken 
about the importance to them of having financial institutions 
participate in the commodity markets, including with respect to 
physical markets.
    Apart from helping clients finance their inventories or 
manage their risk, the Subcommittee staff has focused on 
specific instances in which the firm makes an investment in 
commodity-related areas.
    While this is a relatively small part of our commodities 
business, we do undertake extensive due diligence and risk 
analysis beyond just an analysis of the economic risks. This 
includes examining environmental impacts, legal liability, 
insurance considerations and even whether the business we are 
considering has operated under high standards of compliance.
    I want to briefly address three issues on which the 
Subcommittee staff has focused. While the significance and role 
of these issues are minor in the context of our overall 
commodities activities, I believe it is important to correct 
any misimpressions.
    First, our sales and trading in aluminum are unrelated to 
the firm's ownership of Metro. Metro was never integrated into 
our market-making business, and we maintain a strict 
information barrier between the two.
    Confidential information relating to Metro is not shared 
with Goldman Sachs metal sales and trading personnel. As the 
information we have provided to the Subcommittee confirms, 
there has not been a single instance where confidential 
information went to our metals trading personnel.
    Second, we have provided to you information involving 
uranium trading, a very small part of our business. In 2009, to 
provide a broader array of products to our mining company and 
public utility clients, we acquired Nufcor, a company that had 
acted as a market-maker in uranium and related financial 
derivatives.
    After extensive due diligence, we believed then and remain 
confident now that this activity does not present environmental 
risk to an entity acting in the limited capacity in which we 
act. In this business, our activities are limited to buying and 
selling unenriched uranium and entering into related financial 
derivatives.
    Of course, unenriched uranium is not a harmful radioactive 
substance. Moreover, we do not take physical possession of 
uranium; let alone transport, deliver, or process it.
    Finally, our ownership interest is merely reflected as book 
entries at highly secured depositories that are subject to 
substantial government oversight.
    Notwithstanding these various considerations, given the 
misconceptions about this business, we have decided to manage 
down Nufcor's assets to zero.
    Finally, I would like to address our stand-alone investment 
in CNR, a coal mining investment in Colombia. The acquisition 
of CNR arose from a pre-existing contract to purchase coal over 
a period of time.
    Notwithstanding the Subcommittee's statement regarding CNR, 
since Goldman Sachs made the investment, CNR has achieved the 
highest international standards for environmental and safety 
management and is the only company in the region to have done 
so.
    I would also note that the limited liability protection of 
the investment's corporate structure, together with the 
company's capable management team, ensure that our risk in 
relation to this investment is limited to our invested capital.
    We hope our extensive engagement with the Subcommittee 
staff over these many months has contributed to a greater 
understanding of the role that financial intermediation plays 
in the commodity markets in addition to these areas in which 
you have expressed an interest.
    I look forward to answering your questions today with that 
goal in mind.
    Senator Levin. Thank you very much, Mr. Agran.
    Mr. Anderson.

  TESTIMONY OF JOHN ANDERSON,\1\ CO-HEAD, GLOBAL COMMODITIES 
        GROUP, JPMORGAN CHASE & CO., NEW YORK, NEW YORK

    Mr. Anderson. Thank you, Senator. I am John Anderson, and I 
serve as Co-Head of the Global Commodities Group within 
JPMorgan Chase.
---------------------------------------------------------------------------
    \1\ The prepared statement of Mr. Anderson appears in the Appendix 
on page 277.
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    I am here to discuss the history of JPMorgan's involvement 
in physical commodities and the status of our ongoing 
divestiture of much of that business.
    While some of the topics identified by the Subcommittee may 
not be in my particular area of responsibility or expertise, I 
have attempted to gather the relevant information from others 
at the firm so that my statements today may not reflect my 
personal knowledge but, rather, my attempt to help the 
Subcommittee understand the issues.
    As we sit here today, much of JPMorgan's physical 
commodities assets and business has been sold. Last month, we 
closed on the sale of a large portion of the business to 
Mercuria Energy Group. In addition, the firm has sold and 
continues to sell other portions of the business to different 
buyers.
    Going forward, JPMorgan's commodities business will remain 
focused on a financial derivatives business; its associated 
physical activities will be limited to an exchange warrants 
business in base metals, traditional bank activities involving 
precious metals, and a commodities finance business that may 
involve taking title to physical commodities as the underlying 
collateral to that financing.
    At the outset, I think it would be helpful to explain how 
physical commodities fit into JPMorgan's overall customer 
business.
    The firm manages a customer-driven commodity derivatives 
business. JPMorgan is not a user of, or a speculative investor 
in, physical commodities. But, rather, as a market-maker, 
JPMorgan provides risk management and financing solutions to 
its customers.
    For example, an airline that needs to obtain jet fuel on a 
regular basis and wants to hedge its exposure to fluctuations 
in the price of the fuel. By offering a financial derivative to 
the airline, JPMorgan's commodities business delivers not only 
a hedge against future price fluctuations but also a 
predictability that allows the airline to focus on the safe 
operation of its business. The firm then hedges this exposure.
    JPMorgan's physical commodities business involving energy-
related commodities expanded substantially when, at the behest 
of the government during the height of the financial crisis, 
the firm acquired a varied collection of assets from Bear 
Stearns. With the sudden acquisition of Bear Stearns and the 
later acquisition of RBS Sempra, JPMorgan received ownership 
interests in a small number of power plants and tolling 
agreements.
    Today, JPMorgan has divested or re-tolled all but three of 
these power assets. All three of these remaining power plants 
are passive investments and are being managed by third parties, 
and all three are either currently in the process of being sold 
or marketed for sale.
    I would now like to address in detail two specific issues 
raised by the Subcommittee.
    The first is JPMorgan's compliance with regulatory limits.
    At JPMorgan we operate our commodities business in 
conformity with the applicable rules, and we are in regular and 
ongoing dialog with our regulators about our physical 
commodities business.
    The business is supervised by two primary regulating 
entities--the OCC and the Federal Reserve.
    The OCC oversees the physical commodities activities done 
within the bank. The OCC requires that physical activities be 
only a nominal percentage, 5 percent, of the bank's overall 
commodities activity. These restrictions are designed to ensure 
that the bank only engages in physical commodities activity as 
hedges to its financial customer business and that only a small 
amount of overall activity in the bank is in the physical 
markets.
    The Federal Reserve regulates JPMorgan's physical 
commodities activities in bank holding company subsidiaries, 
outside the bank, and imposes a different 5 percent limit of 
its own. Whereas, the OCC imposes an activity limit, the 
Federal Reserve is focused on limiting the overall market risk 
of the company's physical inventory.
    JPMorgan has never reached the Federal Reserve's limit.
    With regard to the OCC's, and as a result of a large 
client-initiated trade, JPMorgan exceeded this limit in 
December 2011. This was and is the only time that this has 
happened in the roughly 20 years that that limit has been in 
place. JPMorgan immediately took steps to address this and was 
in regular communication with both the OCC and the Federal 
Reserve during this time.
    JPMorgan is and has always been committed to candor and 
transparency with its regulators. At no time has it been 
JPMorgan's intent to misrepresent the relevant facts or 
circumstances or to circumvent the applicable Federal Reserve 
or OCC limits.
    Finally, the Subcommittee has asked about JPMorgan's 
involvement with copper, including the firm's prior plans to 
launch an exchange-traded fund.
    The consideration of issuing a copper ETF was separate and 
apart from JPMorgan's customer-driven physical commodities 
business. JPMorgan did not amass a copper inventory in 
anticipation of the previously proposed ETF nor did it ever 
attempt to do so.
    In no uncertain terms, all of JPMorgan's copper trading is 
related to its customer-driven business, and it does not engage 
in proprietary trading in copper or any other commodity.
    JPMorgan considered, but never launched, a copper ETF, and 
there are no current plans to move forward with this product.
    The safety and soundness of the firm is JPMorgan's No. 1 
priority. We are very proud of the various risk management 
practices we have in place and our capital strength and 
fortress-like balance sheet.
    I am happy to respond to any questions you may have. Thank 
you.
    Senator Levin. Thank you very much, Mr. Anderson.
    Mr. Agran, please turn, if you would, to Exhibit 3.\1\
---------------------------------------------------------------------------
    \1\ See Exhibit No. 3, which appears in the Appendix on page 833.
---------------------------------------------------------------------------
    Exhibit 3 is a Goldman Sachs submission to the Federal 
Reserve that compares Goldman's physical commodities trading to 
its financial commodities trading.
    The document shows that in terms of total commodities 
activity Goldman's physical trading commodity is significantly 
smaller than its financial trading. For example, Goldman's 
crude oil trading is about 0.3 percent physical and 99.7 
percent financial.
    Am I reading that correctly?
    Mr. Agran. Now which page are you on, Senator?
    Senator Levin. Page 2.
    Mr. Agran. Yes, that is correct.
    Senator Levin. So your financial trades relating to 
commodities represent a far greater percentage of your 
commodity activities than the trades of the physical 
commodities themselves.
    Mr. Agran. Both by volume and by revenue, Senator.
    Senator Levin. Now, Mr. Greenshields, would you say that 
Morgan Stanley's breakdown between physical and financial 
trading is similar; it does a lot more financial trading than 
physical trading?
    Mr. Greenshields. Yes, Senator, I would say that is 
accurate.
    Senator Levin. And, Mr. Anderson, what about JPMorgan's?
    Mr. Anderson. Yes, I would agree with that as well.
    Senator Levin. OK.
    Mr. Anderson, take a look at Exhibit 1h\2\ in your book.
---------------------------------------------------------------------------
    \2\ See Exhibit No. 1h, which appears in the Appendix on page 823.
---------------------------------------------------------------------------
    This chart was prepared by JPMorgan in 2011, when it owned 
tolling agreements with 31 power plants across the country and 
it also owned or leased gas storage facilities for about 78 
billion cubic feet of natural gas since it was supplying 
natural gas to a number of those plants.
    Now U.S. banking law is supposed to encourage banks to 
concentrate on the business of banking--taking deposits, moving 
funds, and providing credit.
    And when I look at that network of power plants and natural 
gas storage facilities, however, it strikes me as a vast 
commercial industrial venture, not a banking activity.
    Now I am also struck by the risks involved--multiple sites 
where natural gas leaks, explosions or fires could occur.
    An analysis performed by the Federal Reserve Commodities 
Team in 2012 concluded that JPMorgan, as well as three other 
similar institutions, had insufficient capital and insurance 
allocated to cover potential losses from a catastrophic event. 
It determined that JPMorgan, as well as other financial holding 
companies, were from $1 billion to $15 billion short of what 
was needed to cover losses from a catastrophic event.
    I understand the Federal Reserve contacted JPMorgan to 
discuss how it was calculating the size of the potential losses 
from a catastrophic event and disagreed with assumptions that 
were being used by JPMorgan to a reduced projected total loss 
of $497 million from an oil spill down to a total of $50 
million. That is a 90 percent loss in your estimate compared to 
theirs.
    Has JPMorgan since changed its loss calculation 
methodology, since that report, and allocated more capital and 
more insurance to cover potential losses from a catastrophic 
event?
    Mr. Anderson. Yes, there are lots of questions behind that, 
but I think you are primarily focused on the insurance and 
capital coverage. Is that correct?
    Senator Levin. Yes.
    Mr. Anderson. Yes, so at the time of that Fed report, I 
believe they did feel that the overall institution was not 
carrying enough operational capital against its operational 
risks.
    In terms of specific to commodities, your example of the 
$400 million being diversified down to $50 million for an oil 
spill is correct in how the calculation worked.
    The overall calculation recognized a potential of 4 to 5 
percent--I think it was $490 million you quoted--loss from an 
oil spill liability, which would have been the loss if it had 
been a stand-alone company and actually ended up realizing that 
liability.
    When you then diversified it within the commodities 
business as a whole, and then further within the investment 
bank as a whole, it diversified down to $50 million.
    And I know that sounds like a small number, but this model 
that calculated it is driven by correlation assumptions and 
make sure that there is enough capital held against the largest 
possible event, as well as incremental capital.
    And the largest possible event across the investment bank 
was not in commodities, and I do not have the knowledge 
specifically as to what it was.
    But you followed that up by asking if we had put in 
additional capital since that dialog with the Federal Reserve. 
I know that our operational capital has almost quadrupled since 
that time.
    Senator Levin. Did the Federal examiners tell JPMorgan 
personnel that the methodology should change relative to an oil 
spill?
    Mr. Anderson. Yes, they specifically--most of the 
operational capital was calculated on a historic look-back 
method. So, if you had a loss in a mortgage business, it would 
be taken into account, for example.
    The oil business, because it was new to us, we had no 
historic losses. So we used a forward-looking model and an add-
on approach to add incremental capital to our operational 
capital.
    And the Federal Reserve preferred that we not have a 
forward-looking model, that we use only the historic model.
    Senator Levin. And did you change your methodology relative 
to oil spills after the Federal Reserve asked you to do that?
    Mr. Anderson. Yes, we did.
    Senator Levin. Now take a look, if you would, Mr. Anderson, 
at Exhibit 70b.\1\
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    \1\ See Exhibit No. 70b, which appears in the Appendix on page 
1555.
---------------------------------------------------------------------------
    This is a 2009 application filed by JPMorgan with the 
Federal Reserve, seeking what is called complementary authority 
to enter into tolling agreements with power plants.
    Now pages 7 and 8 is what I will be asking you about.
    Tolling agreements typically involve one party supplying 
fuel to run the power plant, paying its costs, and getting in 
exchange all of the power plant's electricity output, which 
that party would then try to sell for a profit.
    The 2009 application from JPMorgan indicates that its 
subsidiary, JPMorgan Ventures Energy Corporation--and I think 
the acronym for that is JPMVEC. Is that the way you guys 
pronounce it?
    Mr. Anderson. That is correct.
    Senator Levin. JPMVEC booked its electricity in natural 
gases.
    So this is from your own application, and this is what 
JPMorgan wrote:
    ``The complementary activities will further complement the 
existing business by providing JPMVEC with important market 
information.
    ``The ability to be involved in the supply end of the 
commodities markets through tolling agreements provides''--and 
these are key words--``access to information regarding the full 
array of actual producer and end user activity in those 
markets.
    ``The information gathered through this increased 
participation will help improve JPMVEC's understanding of 
market conditions and trends while supplying vital price and 
risk management information that JPMVEC can use to''--and here 
are some more key words--``improve its financial commodities 
derivative offerings.''
    So this application indicates that one of the reasons that 
JPMorgan wanted to get into the power plant business was to 
increase its access to important market information in the 
electricity markets, including information about market 
conditions and trends, and vital price and risk management 
information.
    So far, would you agree with me?
    Mr. Anderson. Yes.
    Senator Levin. And then one of its stated purposes for 
JPMorgan's getting into the power plant business was to obtain 
information that it could use with respect to electricity-
related financial instruments, which are traded in the 
financial markets.
    Is that true? Did I read that correctly?
    Mr. Anderson. I do not know what you are reading now, but I 
would agree with what you said.
    Senator Levin. That was the same line. It was the second 
half of the same line.
    Mr. Anderson. Yes, I agree.
    Senator Levin. OK.
    Now this application is not about getting information on 
JPMorgan's own business, which is usually what is allowed in 
this kind of a situation--to get information from your own 
business, get information on your business.
    This is about getting information about all those power 
plants spread out across the country, as shown in that chart, 
commercially valuable information about electricity production, 
congestion areas and price trends--what you call in that 
application, important market information, information about 
market conditions and trends, and vital price and risk 
management information--that you would then be able to obtain 
commercially valuable, nonpublic information.
    Is that correct?
    Mr. Anderson. I do not know whether that information would 
have been public or not.
    But the point of this application was, yes, to enable us to 
see with more transparency what was happening in energy markets 
so that we could make better prices to our market-making 
business and clients and provide them with incremental 
solutions.
    Senator Levin. And not just better prices but also getting 
that commercially valuable, nonpublic information--and it is 
nonpublic information in those plants before it is made public; 
it is something that you would have if you were managing those 
plants--your traders of financial instruments, could use it, 
that information, to trade electricity-related financial 
instruments like futures, swaps and options in the financial 
markets.
    Is that right?
    Mr. Anderson. This approval was primarily so that we could 
do tolling activities, which is a financial contract on, as you 
said, the output of power from a power plant, which would then 
be the firm's contract and the firm's information, and it could 
then use that flow and that insight into the most accurate 
price to provide the best prices to our market-making client 
franchise.
    Senator Levin. So not just the most accurate price, but it 
would give you an advantage, would it not, being in that 
business, too, in your dealings in financial commodities, the 
derivative offerings that you were involved in?
    You would have nonpublic information to help you in the 
financial commodities derivative offering world that you were 
engaged in. Is that a fair statement?
    Mr. Anderson. Via the tolls we would have private 
information that we could use to provide better services to our 
clients.
    Senator Levin. Not just the tolls but in those deals 
involving tolls, you would gain information which would help 
you to trade electricity-related financial instruments--
futures, swaps, options.
    Mr. Anderson. That is right, just in those tolls.
    If there was any plant ownership associated, that would not 
be shared with traders. It would be held as an independent 
passive investment.
    Senator Levin. What do you mean you would not share it with 
traders? Is there a Chinese wall there?
    Mr. Anderson. Yes, there is a barrier that----
    Senator Levin. Is that in law?
    Mr. Anderson. I believe it is, as part of the merchant 
banking laws, that if you own an investment as a merchant 
banking investment you cannot operate it; you cannot pass 
information between the two organizations.
    Senator Levin. Well, most of these facilities were not 
owned as part of a merchant banking deal. Twenty-four of 27 
were under complementary authority, first of all.
    Mr. Anderson. As tolls, right. Yes.
    Senator Levin. Second, as far as I can tell, there is no 
prohibition on the sharing of information, even for the 
merchant banking operation.
    Mr. Anderson. OK.
    Senator Levin. Should there be?
    Mr. Anderson. Between merchant banking and----
    Senator Levin. And your people were engaged in trading.
    Mr. Anderson. Yes.
    Senator Levin. Should there be a Chinese wall?
    Mr. Anderson. There are Chinese walls. So we have lots of 
internal----
    Senator Levin. No, but in this area, should there be?
    You said there is, and we disagree with you.
    Mr. Anderson. Well, there are internal Chinese walls for 
certain--I thought there were also legal obligations between a 
merchant banking investment and a trading organization.
    Senator Levin. I do not think there is.
    But my question is, in any event, should there be a legal 
prohibition, not just a voluntary policy adopted by a company 
whose economic interest runs in the opposite direction of the 
Chinese wall?
    In other words, the Chinese wall is supposed to be a 
detriment to the use of information. And the use of that 
information is very valuable to the company.
    So, if the Chinese wall is abided by, if there were one, it 
is still voluntary; it is still policy. It is not regulation, 
and it is not law.
    My question is since you thought there was such a wall, in 
any event, and should be such a wall--maybe I am reading too 
much into your words, but I sure believe there ought to be.
    My question to you is should it be legally prohibited to 
share information that is of market relevance between the 
operation of a company and the trading people in your company; 
should there be?
    Mr. Anderson. I, honestly, do not have an opinion.
    I am not a lawyer or a legal expert. So I cannot give you--
--
    Senator Levin. Well, no, but you----
    Mr. Anderson [continuing]. All the facts.
    Senator Levin. You have ethical guides, don't you?
    Mr. Anderson. Absolutely, yes.
    Senator Levin. Should you be able to use that information 
in the trading world? That is the question. That is an ethical 
question.
    Mr. Anderson. No, we should not, and that is why we have 
these internal walls and barriers, to protect from that.
    Senator Levin. And since you should not use it, is there 
any reason why we should not prohibit from being used?
    Mr. Anderson. Again, I cannot comment without having all 
the facts and being an expert in the area.
    Senator Levin. OK.
    Now the same people who get information about the physical 
power plant operations and place bids to supply electricity in 
California, for example, also trade electricity-related 
financial instruments in the futures and swaps financial 
markets.
    In 2013, JPMVEC was named in the FERC settlement agreement, 
charging JPMorgan with engaging in manipulative bidding 
strategies. JPMVEC traders were the ones that designed and used 
the manipulative strategies that produced $124 million in 
excessive electricity payments in California and Michigan that 
JPMorgan then paid back, with penalties and interest, totaling 
$410 million.
    Is that correct?
    Mr. Anderson. That is correct.
    Senator Levin. Now JPMorgan has told us it will take until 
2018, another 4 years, for it to completely exit the power 
plant business.
    Why should it take 3 years?
    Why is it going so slow?
    Mr. Anderson. That is a good question.
    So we remain owners of three power plants today, of the 31 
that were acquired from the Bear Stearns acquisition.
    Since that acquisition, we have been in steady disposition 
mode, and in fact, if you look at a graph of our business, it 
is in a steady decline ever since 2018.
    The three remaining power plans we do have are all in a 
sale process. One is actually contracted to sell today, another 
one should be under contract within the next quarter, and the 
third one, we are hoping next year.
    In terms of beyond next year, you said, we will still be in 
the business through 2008.
    We are out of the business as of last month. We do not 
own--we do not operate or control any of these. We do not have 
a financial interest in any of them.
    They are run--other than these three power plants that are 
still owned and we are trying to sell, but we do not operate 
those. They are run by third parties.
    In terms of the tolls in California that run through 2018, 
it is strictly a financial contract at this point. We have a 
toll that we are long from the original Bear Stearns 
acquisition and offsetting mirror tolls that make us short. So 
we are a credit intermediary in those transactions with no 
financial upside or downside from it other than if there were 
to be a credit default on one side.
    Now we would ideally like those two counterparties to face 
each other and JPMorgan to be able to step out from the middle, 
but they have asked us to stay in the middle as a credit 
sponsor intermediary.
    Senator Levin. Now I believe you told the Federal Reserve 
in 2011 that those three power plants, the ones you owned 
outright, that you would sell those three power plants and that 
they would be sold, I believe if I am reading this correctly, 
by now, essentially.
    Did you have an extension of time from the Federal Reserve 
to sell those three power plants?
    Did they give you an extension of time? Do you remember 
that?
    Mr. Anderson. So at the time of the Bear Stearns 
acquisition, we had a 2-year timeframe given to us by the 
Federal Reserve to hold all of these activities that were new 
to us at the time.
    We then had three possible 1-year extensions.
    Senator Levin. So they did give you extensions.
    Mr. Anderson. So they gave us extensions, yes.
    Senator Levin. Now as we set out in our Report, JPMorgan 
and its bank are subject to limits on the size of their 
physical commodity holdings. These are limits set by their two 
primary regulators--the Federal Reserve and the Office of the 
Comptroller of the Currency, the OCC. And that is a way to 
limit the risks associated with physical commodity activities.
    But by exploiting certain loopholes and using aggressive 
interpretations, often without telling regulators beforehand, 
JPMorgan and its bank have been able to accumulate physical 
commodity holdings far in excess of the limits while claiming 
to stay under the limits.
    To date, the regulators have closed some of the loopholes 
but not others.
    And so take a look, if you would, Mr. Anderson, at Exhibit 
56a.\1\
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    \1\ See Exhibit No. 56a, which appears in the Appendix on page 
1417.
---------------------------------------------------------------------------
    This is an application filed in 2005, asking for 
complementary authority again to engage in physical commodity 
activities, page 22 of that Exhibit 56a.
    And this is what JPMorgan wrote:
    If they were granted complementary authority that it was 
seeking, it ``commits to the board that it will limit the 
amount of physical commodities that it holds at any one time to 
5 percent'' . . . 5 percent . . . ``of its consolidated Tier 1 
capital.''
    No caveats. No loopholes. Just a commitment to limit the 
amount of physical commodities that it holds at any one time.
    Do you see that line?
    Mr. Anderson. Yes, I do.
    Senator Levin. Now take a look, if you would, at Exhibit 
90.\2\
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    \2\ See Exhibit No. 90, which appears in the Appendix on page 1691.
---------------------------------------------------------------------------
    And Exhibit 90 is an excerpt from a document that JPMorgan 
prepared for its quarterly meeting with the Fed. I guess the 
FDIC and the OCC were involved as well.
    So, if you look at page 2 of Exhibit 90, the page is 
entitled Physical Inventory Limits from the Fed and the OCC. It 
then lists various components of JPMorgan's physical commodity 
holdings as of certain dates.
    And in the first column under the date 9/28/12, it shows 
that as of that date JPMorgan had oil holdings worth $3.2 
billion; tolls, which is a reference to the power plants that 
you have been talking about, worth $2 billion; and then some 
other items in a total for JPMVEC--that is your leading 
commodities subsidiary again--a total of $6.6 billion.
    Underneath that, it says its physical inventory as a 
percentage of Tier 1 capital is 4.5 percent.
    Do you see that?
    Mr. Anderson. Yes.
    Senator Levin. So that is what JPMorgan reported to the 
Federal Reserve as its total physical commodity holdings as of 
9/28/2012.
    But that total excluded another number on this chart a bit 
further down, where it says Base Metals Held in Bank and shows 
$8.1 billion. That $8.1 billion of metals in the bank was 
bigger than all of the physical commodities held in other parts 
of the financial holding company, put together, because they 
had totaled $6.6 billion.
    Is that correct?
    Mr. Anderson. You said that we reported $6.6 billion as the 
total of the whole organization's physical commodities. That is 
slightly inaccurate.
    That is what we reported, as it says at the top here, of 
JPMVEC and non-bank subs.
    Senator Levin. OK.
    Mr. Anderson. And then separately, below it, it does report 
base metals in the bank, yes. Correct.
    Senator Levin. Oh, I am going to get to the base metals in 
a minute.
    In the meantime, the $6.6 billion was correct, right?
    Mr. Anderson. Yes.
    Senator Levin. OK.
    Now those numbers, both those numbers, both the $8.1 
billion and $6.6 billion, excluded all copper, platinum, 
palladium, gold, silver and any merchant banking holdings held 
by either the bank or the holding company, which by the way 
were significant in size.
    So to simplify things, we asked your legal counsel for the 
amount of just the copper, platinum and palladium held by 
JPMorgan on September 28, 2012, and we were told that those 
holdings on that date totaled $2.7 billion.
    And when we add up all the three numbers--$6.6 billion, 
$8.1 billion, and $2.7 billion--the total is $17.4 billion, and 
that represents 12 percent of JPMorgan's Tier 1 capital at the 
time.
    So when JPMorgan was holding at least $17.4 billion in 
physical commodities, equal to nearly 12 percent of its Tier 1 
capital, how could JPMorgan claim that it met its commitment to 
keep ``the amount of physical commodities that it holds at any 
one time to 5 percent of its consolidated Tier 1 capital''?
    Mr. Anderson. I think this report is very clear that, yes, 
we reported exactly what was in the VEC and non-bank chain as 
$6.6 billion. That represented 4.5 percent against the limit 
for those entities of 5 percent.
    You know, you are adding $8.1 billion----
    Senator Levin. Well, for those entities, the limit was a 
total limit of physical commodities, wasn't it?
    Mr. Anderson. No, that is not correct.
    Senator Levin. The one I read, didn't I read that 
correctly?
    I asked you if I had read that correctly before--the 
commitment which was made.
    Mr. Anderson. That letter was referring to the non-bank 
chain. So that limit is applicable to the non-bank chain, which 
the Federal Reserve agrees with.
    The OCC has a separate limit that applies to the bank 
chain, and it is a different type of limit entirely. It is an 
activity limit, not an amount of metal you can hold or physical 
inventory you can hold, that might pose a risk to the bank.
    The only way you can hold physical commodities in the bank 
is as a hedge. It cannot be unhedged. You cannot have outright 
positions in it. So it does not pose financial risk to the 
bank.
    It is a separate limit to make sure the bank does not 
migrate beyond a low, minimal level of activity in commodities.
    Senator Levin. In the representation that you made, 
however, in your application here, that I read to you before, 
JPM Chase commits to the board that it will limit the amount of 
physical commodities that it holds at any one time.
    It did not limit it the way you just limited it.
    Mr. Anderson. But the rule is specifically applicable to 
non-bank chain.
    Also, in preparing for today, we talked about the Federal 
Reserve's knowledge of our base metals business and the 
inventory throughout the whole organization. And I know at the 
time, in 2005, they discussed--and they are probably our 
attorneys and maybe business people at the time--with the Fed 
that we had a base metals business in the bank.
    Senator Levin. So you are saying that prior to 2012 the 
Federal examiners knew that JPMorgan Chase was excluding the 
bank from the 5 percent limit. That is what you are 
representing here today?
    Mr. Anderson. I do not know what they knew or not.
    I know we had conversations about it. So I think they 
should have known, yes.
    Senator Levin. Well, I think we will hear tomorrow what we 
have heard already in our investigation; the Fed did not know 
that JPMorgan was excluding its bank's metals until December 
2011, and then it found it out by accident.
    So you have some discussions to hold with the Fed.
    Mr. Anderson. Yes, that is surprising to me.
    As I said, we have open, transparent dialogs with our 
regulators on an ongoing basis and a regular basis.
    I, personally, have participated in quarterly meetings with 
both regulators in the same room for many years now, certainly 
prior to 2012.
    Senator Levin. Well, I think that is an issue which----
    Mr. Anderson. OK.
    Senator Levin [continuing]. They are going to take up with 
you, I hope----
    Mr. Anderson. Yes.
    Senator Levin [continuing]. Because that is not what we 
have been told and it is not what your commitment said.
    Your commitment did not exclude that.
    So you can say they knew it was excluded, but that is not 
what you represented in your commitment.
    And so a number of loopholes here are kind of taking over, 
and they need to be closed if the limit and JPMorgan's 
commitment is going to be an effective safeguard and limit size 
and amount of risk from physical commodity activities.
    Mr. Anderson. OK.
    Senator Levin. Let me ask Mr. Greenshields a few questions 
here.
    This is about Morgan Stanley's effort to construct a plant 
in Texas, designed to produce compressed natural gas that would 
be placed in large containers for export.
    In 2013 and 2014, Morgan Stanley formed three shell 
corporations, all with the name of Wentworth, as is shown in 
that chart that we are putting up here, if we can get the chart 
up.
    But it is also Exhibit 1g \1\ in your book. So you can see 
what chart I am referring to.
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    \1\ See Exhibit No. 1g, which appears in the Appendix on page 822.
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    This is the Wentworth ownership structure. The idea was to 
have Wentworth Companies in charge of the plant-building 
effort.
    Now if you look at Exhibit 45a,\1\ ``Application of 
Wentworth Gas Marketing, LLC for long-term authorization to 
export compressed natural gas.''
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    \1\ See Exhibit No. 45a, which appears in the Appendix on page 
1307.
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    That application was filed by one of the Wentworth 
Companies with the Department of Energy in May 2014. That is 
just 6 months ago or so.
    It was made public by the Department of Energy and became 
the basis of a media report in August, which is when many 
people, including some at the Federal Reserve, learned about 
the venture.
    The application indicates on page 1 that Wentworth Gas 
Marketing is seeking authority to export 60 billion cubic feet 
of compressed natural gas, known as CNG, over a 20-year period.
    Wentworth Gas Marketing, LLC is one of three Wentworth 
Companies formed by Morgan Stanley back in October 2013 and 
April 2014.
    And then on page 3 of that same exhibit, Wentworth's 
``principal place of business'' is listed as Purchase, New 
York. So it is using the same address as the building that 
houses Morgan Stanley's Commodities Division.
    Am I correct so far?
    Mr. Greenshields. You are, Senator. Thank you.
    Senator Levin. Now please look now at Exhibit 47.\2\
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    \2\ See Exhibit No. 47, which appears in the Appendix on page 1364.
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    This is a letter dated 9/19/2014, provided by Morgan 
Stanley's legal counsel, and this is responding to the 
Subcommittee's questions about Wentworth.
    And on page 5 of that exhibit, there is a list of board 
members for the Wentworth entities. And what that shows is that 
all three Wentworth Companies have the same board members, and 
those members are exclusively senior employees from Morgan 
Stanley's Commodities Group.
    Is that correct?
    Mr. Greenshields. That is correct, Senator, yes.
    Senator Levin. Under the column entitled Wentworth Entity 
Position, what is the position a person holds in Wentworth?
    You are listed as the Manager and President of the 
Wentworth entities, and it shows that you are also employed by 
MSCG, which is Morgan Stanley Capital Group, and that your MSCG 
title is Chairman, President and Chief Executive Officer.
    Is that right?
    Mr. Greenshields. That is correct, Senator. Yes.
    Senator Levin. The other board members listed here are the 
Vice President/Chief Operating Officer of Morgan Stanley's 
North American Power and Gas, the Vice President/Global Head of 
Morgan Stanley's Oil Liquids, and the Vice President/Head of 
Morgan Stanley's North American Power and Gas.
    In other words, the senior executives listed as running the 
Wentworth Companies are senior executives in Morgan Stanley's 
Commodities Division.
    Is that correct?
    Mr. Greenshields. That is correct.
    Senator Levin. Now if you will look again at page 5 and at 
page 8 of that same exhibit, it states that none of the three 
Wentworth Companies had employees and that all three rely upon 
the expertise and day-to-day involvement of employees of Morgan 
Stanley. This includes the breadth of the firm, including 
support in legal, tax, risk management and many other areas, to 
carry out the activities.
    Is that correct?
    Mr. Greenshields. That is correct.
    Senator Levin. OK.
    So as of September at least of this year, a couple months 
ago--and maybe things have changed in the last couple months:
    The Wentworth Companies had no employees of their own. All 
of their employees were Morgan Stanley employees. Morgan 
Stanley employees were relied on to carry out Wentworth's day-
to-day activities.
    In addition, Wentworth had no offices of its own. Its only 
offices were the Morgan Stanley Commodities Division's offices 
in Purchase, New York.
    Wentworth's senior executives were the senior executives in 
Morgan Stanley's own Commodities Division.
    And so I hope you would agree that the Wentworth 
Corporations functioned as shell entities and that you and your 
staff were actually overseeing this project and managing the 
business.
    Mr. Greenshields. You are correct, Senator. It is a shell 
subsidiary corporation.
    Senator Levin. So there is no doubt, since Wentworth is a 
shell, that if anything goes wrong it is Morgan Stanley that is 
on the hook.
    Mr. Greenshields. It is correct that if anything went 
wrong.
    I will point out that we are selling this business, and I 
think we have reported that several times.
    In addition, this is not an operational company, Senator. 
Construction has not even begun. The reason it does not have 
any employees is that it really would be very little for these 
employees to do at this point.
    Senator Levin. But, as this, the intention was that you 
were going to sell this at some point.
    In the meantime--the question is whatever liability was 
incurred in the meantime, if and when you sell it--I know that 
is your stated intent now. But nonetheless, if anything goes 
wrong before that happens, if it happens, it is your company, 
Morgan Stanley, that would be on the hook in terms of 
liability.
    Is that correct?
    Mr. Greenshields. Ultimately, we accept full 
responsibility, Senator.
    Senator Levin. OK.
    I would like to talk for a moment, Mr. Greenshields, about 
Southern Star.
    Southern Star, founded in 1904, headquartered in Kentucky, 
it is the primary gas transmission and natural gas storage 
facility provider in certain areas of the Midwest, with 
approximately 6,000 miles of pipeline serving Colorado, Kansas, 
Missouri, Oklahoma, Texas, and Wyoming.
    Its pipeline system has a delivery capacity of 
approximately 2.4 billion cubic feet of natural gas per day, 
and its primary function is delivering gas to local natural gas 
distributors in its service areas.
    I understand that Southern Star is not part of the 
Commodities Division that you head; instead, it is a merchant 
banking investment held through an investment fund called 
Morgan Stanley Infrastructure Partners, or MSIP, located within 
a separate Morgan Stanley business segment called Merchant 
Banking and Real EState Investing Group.
    Infrastructure funds have become very popular at financial 
holding companies. They are being used to purchase commodity-
related businesses all over the country and the world. They 
include power plants, natural gas facilities, hydroelectric 
dams, wind farms, and more.
    And Southern Star is a classic example.
    Morgan Stanley told the Subcommittee that Southern Star is 
100 percent owned by its Infrastructure Fund in which Morgan 
Stanley has only about a 10 percent ownership interest.
    Morgan Stanley presents itself as having only a relatively 
small indirect ownership interest in Southern Star, but in 
fact, the relationship is far closer than that.
    Morgan Stanley gave us a chart showing, ``the complete 
ownership structure chart for MSIP.'' It was a bowl of 
spaghetti showing about 40 boxes and triangles in every 
direction. We are told that virtually all of them were shell 
entities with no employees or offices, just legal structures 
showing who owned what.
    The most important real entity, real in terms of having 
actual employees and offices, is Morgan Stanley Infrastructure, 
Inc., or MSI, which actually manages the investment fund.
    MSI is also a business unit within Morgan Stanley's 
Merchant Banking and Real EState Investing Group.
    MSI currently has about 37 employees, all of whom are 
Morgan Stanley employees. All of them work exclusively on the 
Morgan Stanley Infrastructure Fund's projects.
    So MSI, Morgan Stanley Infrastructure, is run by Morgan 
Stanley employees, sits in Morgan Stanley offices, decides on 
what the Morgan Stanley Infrastructure Fund is going to invest 
in.
    Morgan Stanley is also the largest single investor in the 
Infrastructure Fund, which owns 100 percent of Southern Star, 
which is its largest current investment.
    Now, Mr. Greenshields, when Morgan Stanley says it has only 
a 10 percent indirect interest in Southern Star, that is not 
really the whole story, is it?
    Mr. Greenshields. Senator, as you identified earlier, this 
is on the other side of the wall. I really know very little 
about this investment.
    Senator Levin. All right.
    Morgan Stanley's use of an Infrastructure Fund to raise 
money for and invest in commodity-related businesses like 
Southern Star is not unique. It is too common an approach to 
not take note of.
    But when folks are looking at what financial holding 
companies are doing relative to physical commodities, they too 
often ignore what is going on through an infrastructure or 
other investment fund as if those funds' activities are somehow 
outside of, or apart from, the financial holding company.
    But here, the Morgan Stanley Infrastructure Fund is located 
in Morgan Stanley's offices.
    Do you know if that is true or not?
    Do you know whether or not the Infrastructure Fund is 
located in Morgan Stanley offices?
    Mr. Greenshields. I believe it is, Senator, yes, in 1585.
    Senator Levin. Do you know whether it uses Morgan Stanley 
employees?
    Mr. Greenshields. I believe that there are directors that 
sit on the board, yes.
    Senator Levin. And do you know whether its decisions are 
made by Morgan Stanley employees?
    Mr. Greenshields. I do not know.
    Senator Levin. OK.
    Morgan Stanley has been an active trader in the natural gas 
market for decades. It trades natural gas at the same time it 
has ownership interest in Southern Star, and nonpublic 
information from Southern Star is provided on a regular basis 
to employees in the Merchant Banking and Real EState Investing 
Group.
    In your prepared statement, Mr. Greenshields, you said that 
you were ``not privy to MSIM's investment in Southern Star'' 
because MSIM is separate from the Commodities Division and is 
handled out of a business unit again called Merchant Banking.
    You also said in your prepared statement that Morgan 
Stanley has ``information barriers in place to prevent the 
transfer'' of material nonpublic information between the 
Commodities Division about MSIM's investment.
    Why isn't that information shared?
    Why do you have barriers to prevent the transfer of that 
material nonpublic information?
    Mr. Greenshields. There is no good reason for the 
Commodities Division to have that information, and if there is 
no good reason, we see no need to share it.
    Senator Levin. Well, as I said in my opening statement, the 
opportunity for that information to be shared and used is a 
real one, and banks such as yours are in the position to make 
full use of that information. The only barrier is a self-
imposed barrier, as far as I know.
    Is that true?
    Is that just a self-imposed barrier, or is that imposed by 
law?
    Mr. Greenshields. You are correct, Senator. It is self-
imposed.
    Senator Levin. And so that barrier can be ignored at any 
time, circumvented at any time, pulled down at any time.
    And I just think it is wrong for the public to have to rely 
on a voluntary policy such as that, which is not enforceable 
and which does not have the weight of law behind it because, 
obviously, the use of material nonpublic information by a 
commodities division from information that it got from physical 
commodities operations is simply unacceptable.
    I think you agreed that information should not be used. Is 
that correct?
    Mr. Greenshields. That is correct, Senator. We do not 
believe it should be.
    Senator Levin. And is there any reason why we should not 
put the weight of a regulation or a law behind that?
    Mr. Greenshields. I certainly would not object.
    I think it is something we do anyway, as we stated. So, if 
it were a legal requirement, I do not think Morgan Stanley 
would object.
    Senator Levin. You have no problem with our making sure 
that it becomes a legal requirement?
    Mr. Greenshields. I, personally, do not. I would have to 
check with my lawyers and my managers, but that will be my 
view.
    Senator Levin. Senator McCain.
    Senator McCain. Thank you, Mr. Chairman.
    Mr. Anderson, in 2012, JPMorgan paid Federal regulators 
$410 million to settle charges that it manipulated electricity 
markets in both California and the Midwest.
    And so recently, JPMorgan purchased large stockpiles of 
copper.
    So should we be concerned that you are going to manipulate 
the market the same way that you did with electricity markets 
in both California and the Midwest and paid $410 million to 
settle?
    Mr. Anderson. First, let me say that that whole situation 
was regrettable. And in hindsight, we hold our employees to the 
highest standards both legally and morally, and we believed we 
were operating within the rules.
    That said--or, these employees did--in hindsight, had they 
been in open communication with the FERC and local regulators, 
as we are with the OCC and Fed, we may have been able to avoid 
that whole situation to begin with. So it is clearly 
regrettable.
    In terms of copper, we have not amassed a large position in 
copper. First of all, we do not proprietarily trade copper. We 
have a customer-driven business that we make markets for in 
copper.
    I think the situation you are referring to was in 2010, 
where we built up, via our client franchise, about $1.5 billion 
worth of copper in the December time period, December 2010, 
which was fully hedged.
    So we were very agnostic as to the direction of prices. We 
did not have a financial interest in whether prices went up or 
down at the time.
    Senator McCain. Mr. Agran, Goldman's subsidiary owns and 
operates two coal mines in Colombia.
    Last year, the wives and children of mine workers led 
strikes that completely halted all coal mining operation for 9 
months. It was reported that Goldman's subsidiary requested 
that the Colombian police and military remove the protesting 
women and children.
    And then there is an allegation that in the 9-month labor 
strike that your subsidiary paid protestors $10,000 each.
    Is that true?
    Mr. Agran. Our subsidiary paid former employees of the 
contractor, which was at the heart of the dispute, a settlement 
in order to--so that we could resume work, Senator.
    And we cross-referenced those employees to company 
payrolls, as well to either union or administrative labor 
membership.
    Senator McCain. I guess I have a question for all three of 
you.
    You know most Americans believe that you are financial 
houses that have made a lot of money.
    Clearly, in my view and probably that of most people, you 
are still too big to fail, but that is beside the point.
    And yet, why do you get into businesses like coal mines and 
electricity markets--that, at least in one case, has been 
manipulated--and copper, and all that.
    What is the point, I guess?
    And maybe you can help me out here, beginning with you, Mr. 
Greenshields.
    Mr. Greenshields. Thank you, Senator. That is a very good 
question.
    Morgan Stanley does not invest in coal mines.
    We do participate in the electricity market, both in the 
United States, and also in Europe. We provide market-making 
services in both financial products and physical products. And 
that is our primary business.
    Our primary business is market-making and the provision of 
liquidity, and we are improving--as a result of that, we are 
improving price transparency. So all these things we think are 
good things for our customer base.
    There have been certain circumstances where we have owned 
assets. We are downsizing that, however. We sold TMG, which is 
our storage business, and we are looking to sell other parts of 
our business, including the CNG business.
    But there are times when owning assets allows an entity 
such as Morgan Stanley to provide physical product to its 
customers, and that is the primary reason.
    Senator McCain. Mr. Agran.
    Mr. Agran. Well, similarly, we see the core market-making 
function that we provide in commodities analogous to the 
function we provide in interest rate products, foreign 
currencies or equities. So the basic product of risk 
intermediation is consistent across the asset classes, Senator.
    Senator McCain. So you get into situations such as happened 
at the two Colombian coal mines which I really do not think 
enhanced your image.
    Mr. Agran. I agree. The operational challenges at CNR are 
significant, Senator. That is not an investment that has been 
easy for us to oversee.
    But I think that it is important to recognize that banks 
provide capital. We lend. We underwrite stock and bond 
offerings. And in this situation, we made an investment, but 
ultimately, that is all it is. It is an investment in a coal 
mining company, Senator.
    We are not a coal miner.
    Senator McCain. Mr. Anderson.
    Mr. Anderson. Yes, Senator, market-making in commodities is 
an important service to the market as a whole.
    JPMorgan Chase has literally millions of customers, most of 
which touch or need commodities in some way, shape, or form.
    So to be able to provide them with hedging services, risk 
management services, and risk management advice, makes their 
financial expected outcome more solid. They can count on 
running the business that they are running and not have to 
worry about fluctuations in interest rates or foreign exchange 
or commodities or whatever the asset class happens to be.
    We have highlighted today some very regrettable activities. 
Our business is a people business, and people, unfortunately, 
make mistakes.
    It is important for us to fix those mistakes, to continue 
to emphasize a strong culture and, most importantly probably, 
to be open and transparent, to raise our own mistakes, to talk 
about them and work with our regulators to remediate them.
    Senator McCain. I guess you are the wrong person to ask, 
but it seems to me if you control between 50 and 80 percent of 
all the copper available on the world's leading metal exchange, 
I am not sure that is a good thing--that one corporation, be it 
maybe through a subsidiary, controls somewhere between half and 
four-fifths of the copper that is on the leading metal 
exchange.
    Maybe that is just a comment, but it seems to me if you 
have control of that much of a vital commodity--and copper 
certainly is that--that at least lends itself to a possible 
manipulation of prices.
    I think history shows that when one individual or company 
or corporation owns an overwhelming amount of whatever that is, 
that it does not leave it open to competition or to prevent 
manipulation. I think that is pretty well historically true.
    Mr. Anderson. I would be happy to address that if you want 
me to.
    Senator McCain. Please, go ahead.
    Mr. Anderson. That is a good point.
    I think you are referring to December 2010--the stocks in 
the LME system were quite low relative to global supply.
    So at the time, we did go through the 50 percent threshold, 
which at the time was less than 10 percent of global stocks.
    But it is important to note it was not our position. We 
were neutral in terms of our outright position.
    And it was part of our market-making business, where 
clients were buying a derivative, and the best hedge for the 
firm and the safest hedge for the firm was to buy the inventory 
as a hedge to that derivative.
    And they were only a couple weeks apart.
    So you can see if you go through the timeframe, within 2 
weeks, we delivered against all those short derivatives 
contracts. We delivered our inventory, and we dropped down to, 
I think, around 15 percent.
    But that market is specifically set up to avoid the exact 
situation you described. The LME has lending guidance, and 
their lowest band is any individual that holds more than 50 to 
80 percent of the LME supplies, they are then forced to lend 
into that market and make that copper available.
    The next band is 80 to 90 percent, and then the third band 
is 90 to 100 percent.
    And the lending guidance becomes more punitive the larger 
your position.
    So you are effectively forced to put the metal back into 
the market to make sure that the situation you are concerned 
about will not happen.
    Senator McCain. I thank you. Thank you, Mr. Chairman.
    Mr. Anderson. Thank you.
    Senator Levin. Well, we also saw an additional reason this 
morning, when we saw how the manipulation of a warehouse and 
warehouses holding aluminum, that those activities affect the 
value of the financial commodities that Goldman is trading.
    So, in addition to the holding of 50 percent or 80 percent 
of the copper market, and all that can lead to in terms of 
copper itself, where the action relative to the storage of that 
entity--in this morning's case, aluminum--can directly affect 
the premium paid for that aluminum and where there is trading 
that directly relates to that premium and to that LME price, 
you have a situation now where those two worlds are linked, 
even if that information does not cross that Chinese wall, by 
the way.
    And I am not going to rely on that. I happen to believe we 
have got to have regulations that make that Chinese wall real, 
in law. So it is not a piece of tissue paper that can be easily 
ignored and where it is difficult to prove that it has been 
violated.
    We have to have, I believe, regulations and law.
    And I am glad, Mr. Greenshields, at least speaking for 
yourself, that you would support these Chinese walls, these 
separations, being put into regulation or law.
    And I wonder, Mr. Anderson, whether you would agree with 
Mr. Greenshields on that.
    Mr. Anderson. I certainly believe information barriers are 
critical.
    Senator Levin. Do you think we have to put some law behind 
it or just leave it up to the voluntary policy of companies 
whose financial interests run exactly in the opposite direction 
of the wall?
    Mr. Anderson. I do not think they run in opposite 
directions.
    Senator Levin. Well, sure they do.
    Mr. Anderson. If you violate those----
    Senator Levin. No, not violate, but isn't it clear that 
information is valuable and if you have information about 
shipments of whatever and if your traders have that information 
and, in the case of aluminum if you can directly, by your 
order, by your decision, that you are going to cancel warrants, 
that you effect directly in that case, directly, what the 
premium is going to be, what the line is going to be, which in 
turn is correlated to the premium?
    I mean, that is not a matter of information going through a 
wall. That is a matter of a decision made by a major holder of 
aluminum.
    Don't we have to put some force behind those walls?
    Mr. Anderson. Again, without having all the facts in how it 
would impact the overall organization or the U.S. financial 
system, I do not know that I am qualified to answer.
    I am happy to say the same thing that my colleague did----
    Senator Levin. OK.
    Mr. Anderson [continuing]. That from my perspective and for 
my commodities business that I co-run, I would see no issue 
with that because we abide by the self-imposed ones anyway.
    So if they are legal, that would be fine as well.
    Senator Levin. All right.
    Now, Mr. Agran, let's talk about Goldman's involvement with 
uranium.
    I will not replow anymore than I already have at this 
morning's hearing, but let's talk about uranium.
    In 2009, Goldman purchased a company called Nufcor, which 
bought uranium from mining companies, stored it and sold it to 
nuclear power plants. Nufcor also traded uranium in the 
physical and financial markets. Nufcor was a longstanding, 
well-known company in the field.
    The internal Goldman memorandum that presented the case for 
buying Nufcor--and this is Exhibit 9,\1\ page 2--said that 
Nufcor had six employees and that Goldman would likely reduce 
it to two or three employees.
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    \1\ See Exhibit No. 9, which appears in the Appendix on page 914.
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    None of the employees who worked for Nufcor stayed with the 
company when Goldman bought it. So the company directed its own 
employees to run the business.
    Essentially, Nufcor became a shell operation under the 
complete control of Goldman employees who purchased and traded 
the uranium, entered into new contracts with nuclear power 
plants and dealt directly with the storage facilities.
    Now, by making Nufcor a shell company and using Goldman 
employees to carry out its business activities, did that not 
clearly increase Goldman's potential liability should a 
catastrophic event occur?
    Mr. Agran. Senator, I do not think that is the case.
    Nufcor is a limited liability company, Senator, and our 
market-making entity in uranium. And that affords the 
shareholders of the LLC, as all LLC structures do, certain 
shareholder protections.
    Senator Levin. Well, do you think Goldman is going to be 
liable for----
    Mr. Agran. No, ultimately, I do not, Senator.
    Senator Levin. Do you think when Goldman runs a company the 
way it did--buys the company. Its people--everyone quits at the 
company. Goldman then puts the people in to run the company, 
and then it directs its own employees to run the business of 
the company.
    You think that that limited liability corporation called 
Nufcor is going to protect Goldman from liability of a 
catastrophic incident?
    Mr. Agran. One is on the employee issue. My understanding 
is having no employees does not compromise its status as an 
independent entity and that it is not unusual for LLCs to not 
have employees.
    But if I could, could I give you one example, Senator, of 
how I even think the market sees Nufcor and understands its LLC 
status?
    When we transact with utilities, Senator, it is not 
infrequent that they would ask Goldman Sachs to provide limited 
financial guarantees.
    Senator Levin. I am sure of that.
    Mr. Agran. Well, but what--so what that is showing is that 
the utilities understand that Nufcor--that Goldman is not 
liable to Nufcor.
    So, in some selective cases, we have granted guarantees for 
performance, financial performance on contracts. But we have 
not offered anyone a comprehensive guarantee on Nufcor's 
liabilities.
    Senator Levin. So there are certain circumstances at least 
that you would then accept Nufcor's liabilities. There are 
certain circumstances.
    Mr. Agran. The ones where we financially guaranteed them, 
yes.
    Senator Levin. Mr. Agran, would you please look at Exhibit 
6\1\?
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    \1\ See Exhibit No. 6, which appears in the Appendix on page 866.
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    And on page 6 of that exhibit, Goldman explains to the 
Federal Reserve ``While there is no explicit scenario for 
environmental/catastrophic damage for any business line or 
corporate area, exposure related to participation in commodity 
markets primarily resides in the damage to physical assets risk 
category in Global Commodities.''
    Now here is what you continue to say: ``Global Commodities' 
operation risk loss during storage and transportation of its 
physical commodity assets is limited to the value of those 
assets as catastrophic/environmental risk resides with the 
facility operators.''
    So as recently as July of last year, Goldman had no capital 
allocated for a catastrophic event.
    Is that correct?
    Mr. Agran. That is incomplete.
    If you would like me to elaborate, I can.
    Senator Levin. Yes. I am just saying, do you have capital 
allocated?
    I am not talking about insurance.
    I am talking about capital allocated for a catastrophic 
event. That is my question.
    Mr. Agran. We have capital. Yes, we have operational risk 
capital at the firm, Senator.
    Senator Levin. For catastrophic events?
    Mr. Agran. Would you like me to explain our methodology 
because I think that is the easiest way?
    Senator Levin. Well, if the answer is yes, sure, or no. 
Either way, please explain.
    Mr. Agran. I will explain.
    Senator Levin. Without answering yes or no.
    Mr. Agran. No, we do not have any specific capital. So let 
me explain our methodology and how we arrived at that.
    Senator Levin. All right.
    Mr. Agran. We do a detailed analysis, Senator, including 
scenario analysis around environmental risk.
    And after that analysis, we concluded that the limited 
nature in the way that we engage in these markets and our 
comprehensive insurance program; we were not required to hold 
any additional capital to the $8 billion of operational risk 
capital that we already hold.
    Senator Levin. OK, let's take a look.
    Are you familiar with the concept of negligent entrustment?
    Mr. Agran. Vaguely, yes.
    Senator Levin. Well, can, as far as you know, Goldman be 
found liable if it negligently hires an incompetent operator, 
such as a mining company?
    Mr. Agran. Yes, if we negligently entrust commodity or 
operations, we could be held liable.
    Senator Levin. Or, a nuclear storage facility?
    Mr. Agran. Potentially.
    But, Senator, can I address the nuclear storage facility?
    Senator Levin. Sure.
    Mr. Agran. We are only transactional at six facilities. 
They are all highly regulated for trading unenriched uranium, 
which in your own letter you acknowledge is a nontoxic.
    And we trade it in book entry form.
    We do not take physical possession. We do not transport it. 
We do not process it. We are--our license does not even allow 
us to remove it from the facility if we wanted to.
    Senator Levin. That is OK. You have answered the point 
about negligent entrustment, and that is where the liability 
can come in, even with those limitations.
    Mr. Agran. Well, can I say one more thing on negligent 
entrustment?
    Senator Levin. Sure.
    Mr. Agran. We do have a vendor vetting process, where we 
are sensitive to the fact that negligent entrustment is a 
potential liability to us.
    We have a physical commodity review committee as well as a 
vendor vetting policy, and that allows us to become comfortable 
that we will not fall into that situation.
    Senator Levin. So I know you have vetting processes. That 
is always the case, but sometimes those vetting processes, when 
they fail, then the doctrine of negligent entrustment comes 
into effect.
    So you can be held liable if you negligently entrust 
someone.
    And believe me; if there are catastrophic accidents here, 
cases are going to be made. And then you have got to be in a 
position where you can survive those catastrophic events, and 
you are not in that position.
    But I want to go back to something which Senator McCain 
raised, and that is the coal mines in Colombia, owned by 
Goldman, operated by third parties hired by Goldman's wholly 
operated subsidiaries.
    Goldman's commodities trading arm is an exclusive marketing 
and sales agent for the coal produced by those mines and 
arranges for the sale of 100 percent of the coal. It takes 
about 20 percent for itself and then arranges for the sale of 
the other 80 percent to third parties.
    The mining is done pursuant to operations and plans that 
had to be approved by Goldman's wholly owned subsidiary.
    And are you saying that despite those facts, no 
jurisdiction, not even Colombia, or even a subdivision of such 
jurisdiction or any other country, could find that Goldman's 
wholly owned affiliate has any liability at all in the 
circumstances?
    Is that what you are saying?
    Mr. Agran. My understanding is, yes, the shareholder 
protections that are in place would insulate us from that 
liability.
    Senator Levin. Going back then to one final question and 
then I will end with a comment and then turn it over to Senator 
McCain if he has additional questions.
    Mr. Agran, take a look at Exhibit 4,\1\ if you would, 
please.
---------------------------------------------------------------------------
    \1\ See Exhibit No. 4, which appears in the Appendix on page 835.
---------------------------------------------------------------------------
    Now this is a presentation by the Goldman Commodities 
Division to the Goldman Board of Directors on October 28, 2011.
    At the last page, it says, ``Global Commodities Threat from 
Non-Traditional Competitors'' and then discusses some of 
Goldman's competitors including Glencore.
    And then last bullet point says something very important: 
Goldman Sachs may command valuation multiples for Goldman Sachs 
commodities similar to Glencore if--and here is the comment--
the business was able to grow physical activities unconstrained 
by regulation and integrated with the financial activities.
    And that is one of my major concerns here is the 
integration with financial activities of these commodities 
operations.
    In a formal presentation, it appears to state that its 
object is to integrate physical trading with financial trading.
    Am I reading that wrong?
    Mr. Agran. You are not reading it wrong.
    Senator Levin. I am going to save my closing comment.
    Senator McCain. No.
    Senator Levin. OK.
    When we began this investigation 2 years ago, all three of 
your financial holding companies were heavily involved with a 
wide range of commodity activities from coal mines to power 
plants to natural gas facilities.
    Now each one of you is pulling back somewhat.
    And I am glad that at least two of the three of you are 
pulling back significantly even though we have comments from 
the leadership of Goldman Sachs that these physical commodities 
are important strategic parts of Goldman Sachs' operation. So 
that is a very different kind of an approach than we have heard 
today and earlier than today from Morgan Stanley and from 
JPMorgan Chase.
    This is what the CEO of Goldman, Lloyd Blankfein, was 
quoted in the media as saying: The commodities--he is talking 
about physical commodities--is a ``core, strategic business'' 
for Goldman. A core, strategic business.
    Your other two companies here seem to be pulling back from 
those commodities, and I am glad to hear that.
    In an October 2013, earnings conference call, in response 
to questions from analysts, Goldman's Chief Financial Officer, 
Harvey Schwartz, described commodities as ``an essential 
business for our clients'' and said, ``We have no intention of 
selling our (commodities) business.''
    Again, I am referring to physical commodities.
    At the same time, Goldman has recently sold many of its 
power plants, and it has put up its uranium, coal, and 
warehouse businesses for sale.
    And what are the plans, Mr. Agran, for the physical 
commodity activities?
    Why don't you give us that answer for the record, if you 
would?
    Mr. Agran. Well, I echo the statements of our executives 
for the core market-making activities, Senator. We see those as 
analogous to the other market-making activities we are engaged 
in at the firm.
    As far as purchase of physical assets within the 
commodities business, we have no plans to do that in the 
future.
    Senator Levin. Well, at least two of the three of these 
banks apparently are planning to exit the field, although 
somewhat gradually, that has caused so much concern, which has 
grown so vast, which has created such risk and which creates 
such potential for the manipulation of the financial markets.
    At the same time, we have a lot of questions about Federal 
regulation, as to how it has worked or not worked, relative to 
physical commodities and their relationship to financial 
commodities.
    We are going to hear tomorrow from those regulators to see 
what their reaction is to the current state of the world and 
how they are going to try to make this financial world of ours 
more safe and more fair and less free of the potential of 
manipulation. So we look forward.
    We thank you, our witnesses, all of our witnesses.
    We thank you again for the cooperation of your companies 
with our investigation in terms of providing materials.
    And I just want to ask my colleague, Senator McCain, if he 
has a closing question, and if not, we will stand adjourned 
until tomorrow, with thanks to all of you.
    [Whereupon, at 4:31 p.m., the Subcommittee was adjourned.]


         WALL STREET BANK INVOLVEMENT WITH PHYSICAL COMMODITIES

                              ----------                              


                       FRIDAY, NOVEMBER 21, 2014

                                   U.S. Senate,    
              Permanent Subcommittee on Investigations,    
                    of the Committee on Homeland Security  
                                  and Governmental Affairs,
                                                    Washington, DC.
    The subcommittee met, pursuant to notice, at 9:36 a.m., in 
room SD-106, Dirksen Senate Office Building, Hon. Carl Levin, 
Chairman of the Subcommittee, presiding.
    Present: Senators Levin and McCain.
    Staff present: Elise J. Bean, Staff Director and Chief 
Counsel; Mary D. Robertson, Chief Clerk; Tyler Gellasch, Senior 
Counsel; Adam Henderson, Professional Staff Member; Angela 
Messenger, Detailee (GAO); Joel Churches, Detailee (IRS); Ahmad 
Sarsour, Detailee (FDIC); Tom McDonald, Law Clerk; Tiffany 
Eisenbise, Law Clerk; Tiffany Greaves, Law Clerk; Henry J. 
Kerner, Staff Director and Chief Counsel to the Minority; 
Michael Lueptow, Counsel to the Minority; Elise Mullen, 
Research Assistant to the Minority; Kyle Brosnan, Law Clerk to 
the Minority; Christina Bortz, Law Clerk to the Minority; and 
Chapin Gregor, Law Clerk to the Minority.

               OPENING STATEMENT OF SENATOR LEVIN

    Senator Levin. Good morning, everybody. This is the second 
day of our hearings on Wall Street bank involvement in physical 
commodities. Yesterday, we explored the physical commodity 
activities of three banks--Goldman Sachs, JPMorgan Chase, and 
Morgan Stanley--and heard from bank executives and also from 
experts who helped put those activities in context. Today we 
are going to explore the implications of our findings and how 
to get stronger protections against the abuses, real and 
potential, that could damage the banking industry, commodity 
markets, and in a worst-case scenario, the U.S. economy and 
U.S. taxpayers. We will also focus on how to build stronger 
protections against market manipulation and unfair trading by 
financial institutions with easy access to capital provided by 
the Federal Reserve, that is, by the American taxpayer.
    Yesterday's hearing showed that, in recent years, Goldman, 
JPMorgan, and Morgan Stanley have been heavily involved in a 
wide range of physical commodity activities and businesses, 
including building multi-billion-dollar stockpiles of aluminum, 
copper, oil, and natural gas, and running businesses like power 
plants, oil and gas storage and pipeline companies, and 
commodity warehouses. Now, when I say ``banks,'' by the way, it 
is shorthand to cover both federally insured banks and their 
holding companies.
    The evidence presented yesterday showed those Wall Street 
banks engaging in vast, complex commercial enterprises that are 
eroding the longstanding U.S. principle of separating banking 
from commerce.
    Yesterday's hearing also showed that at the same time the 
Wall Street banks were stockpiling commodities and running 
commodity-related businesses, they were engaging in massive 
transactions to buy and sell those same physical commodities, 
and were also trading commodity-related financial instruments 
like futures and swaps.
    The simultaneous trading of commodities in the physical and 
financial markets raises concerns related to market 
manipulation and unfair trading. In 2013, the Federal Energy 
Regulatory Commission fined JPMorgan $410 million after finding 
that JPMorgan commodity traders used power plants to execute 
manipulative bidding strategies that produced profits for the 
bank at the expense of electricity customers. We will hear more 
about that and other electricity manipulation cases today.
    Yesterday, we also heard about a warehouse company, 
purchased by Goldman Sachs and overseen by a board consisting 
entirely of Goldman employees, that manipulated its warehouse 
operations in a way that impacted the price of aluminum for 
consumers, while at the same time Goldman was trading aluminum-
related financial products. The Goldman-controlled board of 
directors approved the merry-go-round transactions that have 
done much harm to consumers and aluminum markets.
    Yesterday's hearing also disclosed that Goldman employees 
were given access to valuable non-public information from the 
warehouse company related to aluminum, information that could 
have been used to benefit Goldman's aluminum trading. Both the 
warehouse company and Goldman had information barrier policies 
in place at the time, but given the recent history of banks 
improperly sharing information to manipulate electricity, 
LIBOR, and foreign exchange rates, reliance on voluntary 
policies at banks that have an economic interest in ignoring 
those policies is simply not enough protection for consumers.
    Finally, yesterday's hearing disclosed the extent to which 
physical commodity activities like uranium trading, coal 
mining, and oil and gas activities exposed Wall Street banks to 
wide-ranging and unpredictable risks, from natural disasters to 
mechanical malfunctions to labor unrest to volatile commodity 
prices.
    The Subcommittee's investigation and Report are not the 
first to expose the problems associated with Wall Street bank 
involvement with physical commodities. In 2010, the Federal 
Reserve formed its own Commodities Team to conduct a multi-year 
special review of the physical commodity activities of ten 
large banks. That special review found that the ten banks were 
heavily involved in a wide-ranging and expanding set of 
physical commodity activities and generally had insufficient 
capital reserves and insurance coverage. In fact, the review 
determined that four of the banks with the largest physical 
commodity activities, including the three examined by the 
Subcommittee, had shortfalls ranging from $1 billion to $15 
billion to cover potential losses from a catastrophic event. 
Should even one of those banks, embedded in every corner of our 
economy, experience a catastrophic event for which it is 
unprepared, the U.S. banking system could be effected and U.S. 
taxpayers be forced to face another bailout.
    All this activity was occurring despite, as I have 
mentioned, a longstanding separation of banking and commercial 
activities and despite the potential threats to the safety and 
soundness of bank holding companies. The legal arguments 
advanced by the banks to minimize their liability risk are 
questionable and likely to be of little comfort in the event of 
a natural disaster or a catastrophic accident. The Federal 
Reserve should approach those arguments with skepticism and 
make sure that its responsibility to protect the financial 
system from 2008-style shocks remains paramount. Beyond the 
issue of risk, it is urgent that the Federal Reserve also 
consider the implications of these activities for the integrity 
of U.S. commodity markets and the prevention of market 
manipulation and unfair trading by Wall Street banks.
    Today, to address these problems, we are going to hear that 
the Federal Reserve has made a commitment to issue a new 
proposed rule in the first quarter of 2015. That is good news, 
although the 2012 findings of the Federal Reserve's own special 
review, together with our findings, make that rulemaking long 
overdue.
    The Federal Reserve is considering arguments that Wall 
Street banks provide hard-to-replace services in some of these 
areas. But the separation between banking and commerce has 
served markets and our economy quite well for decades. And the 
erosion of that barrier is clearly doing harm today. Any 
discussion of these physical commodities activities must begin 
and end with the need to protect our economy from risk, our 
markets from abuse, and our consumers from the effects of both. 
Wall Street banks with near-zero borrowing costs, thanks to 
easy access to Fed-provided capital, have used that advantage 
to elbow their way into commodities markets. Bad enough that 
this competitive advantage hurts traditional commercial 
businesses; worse that it opens the door to price and market 
manipulation and abusive trading based on non-public 
information.
    Today's hearing will receive testimony from Governor Daniel 
Tarullo, a member of the Board of Governors of the Federal 
Reserve. We will also hear from Larry Gasteiger, the Acting 
Director of Enforcement at the Federal Energy Regulatory 
Commission, who has had to deal directly with bank manipulation 
of the electricity market.
    On our first panel, we will hear from Professor Saule 
Omarova of Cornell University, one of the first legal experts 
to chronicle the rapid and largely underappreciated breakdown 
of the barrier between commercial activity and banking; and we 
will hear from Chiara Trabucchi of Industrial Economics, Inc., 
an expert in the area of financial responsibility and liability 
risk.
    The Subcommittee, based on 2 years of investigation, has 
recommended a series of actions to rein in excessive risk and 
conflicts of interest stemming from Wall Street bank 
involvement in physical commodities. Those recommendations 
include the issuance of a single, comprehensive limit on bank 
holding companies' exposure to physical commodities, no matter 
what authority is used to accumulate those holdings. They also 
include our recommendations narrowing the scope of the Gramm-
Leach-Bliley authorities that allowed the explosion of Wall 
Street involvement in these activities to begin with. And they 
include instituting new safeguards to prevent Wall Street banks 
from using commercially valuable, non-public information 
obtained from their physical commodity activities to manipulate 
markets or to gain unfair trading advantages. The 
Subcommittee's Report and these 2 days of hearings will help 
provide a factual foundation for those and other reforms as the 
Federal Reserve, FERC, and other regulators consider new rules 
to protect businesses, consumers, and the economy.
    On a personal note, it has been a privilege for me to work 
with a staff that not only consistently displays knowledge, 
tenacity, and dedication, but that represents a true example of 
bipartisan cooperation. The staff of this Subcommittee, 
Majority and Minority, have done important and lasting work on 
behalf of the American people, and I am grateful for all that 
they have done.
    I can think of no better partner than Senator John McCain. 
His dedication to energetic, effective oversight is just one of 
his major contributions to the Senate and to our country that 
make working with him so rewarding.
    Senator McCain.

              OPENING STATEMENT OF SENATOR McCAIN

    Senator McCain. Thank you very much, Mr. Chairman. Thank 
you for your kind words.
    Yesterday, we heard about how large financial institutions 
are engaging in manipulative practices in physical commodities 
markets. Over 6 years after the financial crisis, these banks 
still think they are too big to fail. And, indeed, they 
probably are. And they have been taking on new risk that could 
lead to more bailouts by the American taxpayer through shady 
merry-go-round transactions and large purchases in commodities 
markets. These financial institutions have driven up costs for 
end users of materials like aluminum and ultimately hurt 
ordinary consumers.
    The banks could not have engaged in these activities 
without the permission of regulators. The Federal Reserve in 
particular has the power and the responsibility to make 
important changes that would prevent the sorts of abuses that 
have been illustrated in this hearing.
    While the Federal Reserve claims in its written statements 
that it has monitored this situation and explored possible 
actions, it has clearly not done enough to prevent harmful 
commodity activities by the banks. And the persons who 
ultimately are harmed by all of this, of course, is the average 
consumer, the average citizen, who has no knowledge, unless it 
paid attention to this hearing, of the extent of the 
manipulations that have been carried out by the largest 
financial institutions in America and, indeed, probably the 
world.
    I look forward to hearing from the witnesses why the 
Federal Reserve has allowed the problems identified by the 
Subcommittee to fester in our financial system and how it 
intends to fix them going forward.
    I thank you, Mr. Chairman.
    Senator Levin. Thank you very much, Senator McCain.
    And I now would like to call our first panel of witnesses 
for this morning's hearing: Ms. Saule Omarova, a Professor of 
Law at Cornell University, Ithaca, New York; and Ms. Chiara 
Trabucchi, a Principal at Industrial Economics, Incorporated, 
Cambridge, Massachusetts.
    We appreciate both of you being with us today. We look 
forward to your testimony, and pursuant to our rules, all 
witnesses who testify before the Subcommittee are required to 
be sworn, and at this time I would ask both of you please to 
stand and to raise your right hand. Do you swear that the 
testimony you are about to give to this Subcommittee will be 
the truth, the whole truth, and nothing but the truth, so help 
you, God?
    Ms. Omarova. I do.
    Ms. Trabucchi. I do.
    Senator Levin. We will use a timing system today. About a 
minute before the red light comes on, the light will change 
from green to yellow. That will give you an opportunity to 
conclude your remarks. Your written testimony will be printed 
in the record in its entirety. We would appreciate it if you 
could try to limit your oral testimony to 5 minutes.
    Ms. Omarova, we will have you go first.

  TESTIMONY OF SAULE T. OMAROVA,\1\ PROFESSOR OF LAW, CORNELL 
                  UNIVERSITY, ITHACA, NEW YORK

    Ms. Omarova. Chairman Levin and Senator McCain, thank you 
very much for an opportunity to testify here today. My written 
statement and prior writings lay out in sufficient detail my 
views on this subject, so I will keep my remarks to a few key 
points.
---------------------------------------------------------------------------
    \1\ The prepared statement of Ms. Omarova appears in the Appendix 
on page 282.
---------------------------------------------------------------------------
    I will recap briefly why, from the perspective of U.S. 
banking history, policy, and law, such involvement raises 
potentially significant concerns and, therefore, demands 
serious legislative and regulatory attention.
    I will also briefly address some of the main arguments 
against restricting banks' physical commodity activities 
typically advanced by banks themselves, their agents, and 
clients.
    Those advocating the regulatory status quo often claim that 
there is nothing new or special and, therefore, nothing 
problematic about allowing banks to run physical commodity 
operations. These industry advocates tend to sample episodes 
from ancient or medieval European or Asian history to prove 
that banks in general have always been natural commodity 
traders.
    This cherrypicking from foreign countries' distant past, 
however, is irrelevant for purposes of interpreting U.S. 
banking laws and regulations, which are based on the 
longstanding American tradition of keeping banks out of any 
non-banking commercial businesses.
    The principle of separation of banking from commerce has 
always been and continues to be the cornerstone of the U.S. 
banking financial system. This structural separation has been 
traditionally viewed as necessary in order to preserve the 
safety and soundness of the U.S. banking system by shielding 
banks from the risks of commercial activities, to ensure a fair 
and efficient flow of credit in the economy by preventing 
unfair competition, market manipulation, and banks' conflicts 
of interest, and to prevent excessive concentrations of 
financial and economic power.
    Early American bank charters were granted by State 
legislatures and typically prohibited chartered banks from 
dealing in merchandise. In 1825, New York became the first 
State to restrict banks' activities by statute. The National 
Bank Act of 1863 limited federally chartered banks' activities 
to those in the narrow band of ``the business of banking'' 
alone.
    The Bank Holding Company Act of 1956 extended the same 
principle to banks' parent companies, or bank holding 
companies, or BHCs, by generally limiting their activities to 
those closely related to banking.
    The passage of the Bank Holding Company Act marks the 
beginning of the truly relevant history for banks in 
commodities. Since 1956, for any U.S. banking organization, the 
decision to participate in the production, processing, 
transporting, or trading physical commodities, all purely 
commercial activities, has never been just a matter of their 
own or their clients' profitability or convenience. It is first 
and foremost a matter of their legal authority. In order to 
enter the physical commodity supply chain at any point and in 
any capacity, a bank or any bank affiliate has to find a 
specific legal or regulatory authorization to do so. And what 
this means is, that under U.S. law, these types of business 
decisions are deemed too important to be left purely to 
individual banks' managers and owners, and instead are 
fundamentally linked to broad considerations of public policy.
    The Gramm-Leach-Bliley Act of 1999 amended the Bank Holding 
Company Act to allow a subset of bank holding companies, 
financial holding companies, or FHCs, to expand their 
commercial activities subject to certain limits. As we know 
now, since the early 2000's, several large U.S. FHCs have 
availed themselves of these newly created statutory powers to 
grow extensive physical commodity operations.
    As I argued before, this trend undermines the fundamental 
principle of separation of banking from commerce and raises a 
wide range of potentially significant policy concerns with 
safety and soundness of financial institutions, systemic risk, 
potential public subsidy leakage, market integrity, consumer 
protection, the sheer governability of financial institutions, 
regulatory capacity to oversee them, and excessive 
concentrations of financial and economic powers.
    The banking industry, of course, dismisses all of these 
policy concerns as irrelevant. The industry's claims, however, 
are generally familiar. Banks make them every time they object 
to any attempt to regulate their activities. These arguments 
are typically either nonresponsive, nonsensical, or patently 
false.
    For example, the typical nonresponsive argument is that 
banks' commodities trading benefits their clients. Even if it 
were true, that argument completely ignores the fundamental 
question: To what extent those private benefits to individual 
clients stem from banks' access to public subsidy.
    An example of a nonsensical argument is the industry's 
claim that, because nothing bad has happened yet, there is no 
reason to worry that it might happen in the future. And, of 
course, this claim could have been made about the Deepwater 
Horizon accident up until the day it actually happened.
    An example of a patently false claim is an assertion that 
oil drilling is no different from making mortgage loans and 
that banks manage all of these risks perfectly well. In fact, 
oil is different from money, and traditional credit 
intermediation is different from trade intermediation. And 
claims of perfect risk management are questionable without 
specific proof, even with respect to banks' core financial 
activities, let alone things far outside the realm of their 
traditional expertise.
    So these are just a few examples of the banking industry's 
arguments, all of which essentially distract attention from the 
real questions and, in effect, deny the American public the 
answers we deserve. I urge lawmakers and regulators not to lose 
sight of what is really at stake in this important public 
policy debate.
    Thank you very much.
    Senator Levin. Thank you very much, Ms. Omarova.
    Ms. Trabucchi.

    TESTIMONY OF CHIARA TRABUCCHI,\1\ PRINCIPAL, INDUSTRIAL 
       ECONOMICS, INCORPORATED, CAMBRIDGE, MASSACHUSETTS

    Ms. Trabucchi. Chairman Levin and Ranking Member McCain, 
thank you for the invitation to testify in today's hearing. My 
name is Chiara Trabucchi, and I am a Principal with Industrial 
Economics, Incorporated, in Cambridge, Massachusetts. My 
expertise relevant to this matter is in environmental risk 
management and financial assurance frameworks.
---------------------------------------------------------------------------
    \1\ The prepared statement of Ms. Trabucchi appears in the Appendix 
on page 302.
---------------------------------------------------------------------------
    My testimony focuses on the environmental and catastrophic 
event risks that confront businesses involved with physical 
commodity activities as well as mitigating strategies adopted 
by financial holding companies to manage these risks.
    My remarks today address the consequences of these 
companies engaging in commodity-related activities, including 
investments in industrial facilities such as power plants, 
pipelines, natural gas facilities, and refineries.
    Businesses involved with these types of activities face 
specialty or non-standard risks. Incidents documented in the 
public record evidence that activities involving the 
extraction, storage, transport, or refining of natural 
resources can cause several types of injury including, for 
example, human health effects, fatalities, ecological damage, 
property damage, business interruption, or surface/subsurface 
trespass. The means by which injury occurs often vary by 
commodity type; common pathways include pipeline rupture or 
explosion, impoundment failure, mine collapse, contaminant 
release, industrial accident, mechanical failure, or transport 
accident.
    History has shown that catastrophic events involving 
environmentally sensitive commodities can result in incident 
response costs and compensatory damages that exceed the market 
value of the commodity involved; a single environmental or 
catastrophic event can result in billions of dollars in 
incident-related expenditures. In some cases, financial impacts 
can exceed the available capital and financial assurances of 
the businesses involved, resulting in bankruptcy.
    Prudent risk management dictates that firms operating in 
these sectors establish risk mitigation strategies to mitigate 
and minimize the likelihood of an environmental event and, if 
an event should occur, have the financial resources to remain 
financially responsible for their actions.
    By doing so, the firm is better able to assure 
shareholders, whether public or private, that the value of 
their investment will not erode and, with time, will gain 
value. Traditional environmental financial assurance models 
require that risks be mitigated either directly as an expense 
or indirectly through third-party financial instruments, 
including, for example, insurance.
    In an effort to avoid the need for, or minimize the amount 
of, third-party financial assurances or committed capital, 
firms with business ventures in physical commodity markets may 
choose to employ other risk-mitigating strategies.
    One strategy involves reliance on the corporate veil as a 
legal shield. In the context of environmental risk management, 
this strategy involves establishing a series of holding 
companies whereby the facility engaged in activities directly 
related to the physical commodity is separated from the top-
tier parent company by a series of corporate layers. It also 
may involve spinning off the liabilities of a physical 
commodity business into a shell corporation to shield the 
assets of the top-tier parent company. In either case, the 
financial holding company believes itself shielded from legacy 
environmental liabilities or catastrophic events occurring at 
the lower-level subsidiary or affiliate.
    A second mitigating strategy is to engage in physical 
commodity activities in foreign markets with less sophisticated 
environmental regimes than those present in the United States. 
In so doing, the financial holding company believes that it, 
and the U.S. taxpayer, is insulated from environmental risks at 
the foreign subsidiary.
    A third mitigating strategy is to undervalue expected loss 
scenarios. One approach, for example, is to assume that 
ownership of the asset or physical system will transfer to 
another entity prior to an environmental or catastrophic event 
occurring. Merchant banking investments can be held only for a 
limited amount of time. Thus, financial holding companies may 
underestimate the environmental risk exposure because the 
physical asset forms part of its portfolio only on a short-term 
or transitory basis.
    All of these risk-mitigating strategies can contribute to 
moral hazard where the financial holding company believes 
itself insulated from risk and, therefore, may act imprudently 
with respect to the nature and scope of its involvement with 
physical commodity-related activities. The consequential 
impacts of these strategies vary, but may include assigning an 
artificially low risk premium to environmentally risky 
ventures, limiting disclosure of contingent liabilities 
associated with environmental or catastrophic events, and 
delaying or avoiding needed infrastructure improvements. Any 
reluctance to make capital improvements can place the financial 
holding company at potentially greater risk of environmental 
and financial consequences when compared to peers that upgrade 
their infrastructure. It also may yield a short-term 
competitive advantage over market participants who do undertake 
long-term capital investments.
    Further, when the time comes to divest its merchant banking 
investment, the financial holding company may find it 
challenging to find a buyer who is willing to absorb the risk 
profile of potentially long-tailed legacy liabilities.
    To the extent the financial holding company does record a 
probable loss, it may assure only the lost market value of the 
commodities involved and not the expected value of incident 
response costs. Further, the company may argue that even if 
deemed liable for an environmental event, the amount of 
liability is negligible when measured against its overall 
capital structure.
    The failure to recognize the breadth of potential exposure 
arising from its involvement in physical commodity activities, 
coupled with the failure to maintain sufficient financial 
assurances, could compromise the stability of the financial 
holding company and its subsidiary depository institutions. 
This could lead to an inappropriate risk transfer to the public 
in the event the holding company and its non-banking subsidiary 
are unable to meet their financial obligations. To the degree 
the affected company is a global systemically important bank, a 
risk transfer of this sort may send a potentially destabilizing 
shock through the financial markets.
    The financial crisis of 2008 highlighted the speed with 
which a global market contagion can take effect when a large 
corporation undervalues its long-tailed risks.
    Notwithstanding the varying degrees of supervisory 
standards and capital ratios imposed on financial holding 
companies engaged in physical commodity activities, the ability 
of these companies to meet prescribed ratios may be immaterial 
if they have undervalued the long-tailed environmental risk 
exposure of their investments, either because they believe they 
will be legally insulated from liability or because they 
believe they are too big to fail.
    In the event the strength of the capital ratio is diluted 
and risky investments proceed because the potential financial 
consequences of prospective environmental liabilities are 
undervalued, then some or all of an unfunded liability may be 
left for the U.S. taxpayers to bear in the event of an 
environmental or catastrophic event. My written testimony 
further elaborates on these areas.
    I would be pleased to answer any questions. Thank you.
    Senator Levin. Thank you very much, Ms. Trabucchi.
    Professor Omarova, please take a look at a chart, which is 
Exhibit 1h,\1\ and we are going to put the chart, our larger 
version of it, up for everybody to see. This was a chart that 
was prepared by JPMorgan in 2011 when it owned or had tolling 
agreements with 31 power plants across the country, and also 
owned or leased gas storage facilities for about 78 billion 
cubic feet of natural gas since it was supplying natural gas to 
a number of those plants.
---------------------------------------------------------------------------
    \1\ See Exhibit No. 1h, which appears in the Appendix on page 823.
---------------------------------------------------------------------------
    Now, when I look at this network of power plants and 
natural gas storage facilities, it strikes me as a vast 
commercial, industrial venture, not a banking activity. How 
does it strike you?
    Ms. Omarova. Well, it strikes me as actually a terrifying 
picture of what is going on here. As a former banking attorney, 
to me this is precisely what the law did not mean to happen at 
all. This is a financial-industrial conglomerate, and it is not 
just the law itself that seems to be offended by this type of a 
picture. But there is a general expectation among American 
citizens and taxpayers that our banks are doing banking 
business.
    I talk a lot to various people, my friends, who are not 
necessarily banking lawyers; they have no idea about this stuff 
going on. They are nurses, cab drivers, and engineers. And when 
I tell them the research I have been conducting in the past 2 
years, they are invariably shocked. And no matter what JPMorgan 
says about why this type of expansive network of power and 
other commercial activities is absolutely necessary to them in 
order to provide financial services to the people, I think they 
are missing something very important in that core, shared 
intuition that we all have: banks should not be doing this 
stuff.
    Senator Levin. And what about the risks, Ms. Trabucchi?
    Ms. Trabucchi. Well, I think when you have an organization 
that is this diversified where the span of it is across so much 
of the United States, and you are involved in physical 
commodity activities that are highly sophisticated in nature, 
and that result in highly sophisticated degrees of risk, I 
think it is a very dangerous proposition to have that 
consolidated in a portfolio where you have different actors who 
are not necessarily as sophisticated about how to manage those 
risks as they are in their inherent industry, which is finance.
    The environmental risk profile and the financial risk 
profile are inherently different, and so the tools and 
techniques that are used to manage environmental risks are not 
the same as those used to manage financial risk.
    Personally I think that this is a very troubling trend, and 
it is a recent trend. And so to the degree it continues or 
expands, I think the environmental risk profile will grow.
    Senator McCain. Mr. Chairman, could I interrupt a second?
    Senator Levin. Please.
    Senator McCain. As follow-up to that in general, as we see 
this expansion--in one case at one time one of these 
institutions owned 80 percent of the entire supply of copper 
that is traded on the exchanges--am I exaggerating too much 
when I say this is reminiscent of the days of the robber barons 
when the railroads were controlled by one individual? And, 
again, when you corner the world that traded supplies of a 
vital commodity, in that case copper, I was astounded by that. 
Maybe you could respond to that. Am I too alarmed?
    Ms. Omarova. Absolutely not. I am really glad you said 
that. That is precisely that back almost 100 years ago, this 
country was up in arms against: This kind of seamless wedding 
of money and control over raw materials and transportation and 
pure commerce. Right? Because we were worried about the fact 
that people who control money and control raw materials can 
control too much of our society in general. And it does not 
matter that today, in 2014, we appear more sophisticated, we 
have greater technology, and we can say, well, there are all 
these mathematical models that somehow make this picture less 
alarming. Ultimately at its core, it is just as dangerous as it 
was 100 years ago.
    Ms. Trabucchi. From my perspective, again, my background is 
environmental risk management and financial indemnity models. I 
think what is troubling is you have actors who are inherently--
that the public inherently believe are there to provide 
financial credit and to provide--or assist in financial 
assurance. And often those are the actors to whom your 
commodity actors go in order to help assure their risks.
    Now what you have is a combination of--or a concentration 
of activities in one sector, and so they are self-regulating. 
And, in my view, whenever you have self-regulation, it torques 
your risk profile, and you do not have the checks and balances 
necessary to make sure that the financial assurances map to the 
probable risk profile and map to the loss ratios, because the 
sectors are too interconnected.
    So when you are calculating a probable loss ratio and you 
are the one who is going to incur the loss, there is a moral 
hazard that arises. You do not have the incentive to 
appropriately manage your risks because you are also banking 
your own----
    Senator McCain. Because you are not taking the risk.
    Ms. Trabucchi. Well, they would argue they are not taking a 
risk. I think that you are talking to somebody who believes----
    Senator McCain. But that is what I mean. I mean there is no 
risk to them under this----
    Ms. Trabucchi. It is a risk to the U.S. taxpayers.
    Senator McCain. Right.
    Ms. Trabucchi. The presumption is that there is a de facto 
public-private risk-sharing arrangement where the public has 
not necessarily been privy to that the arrangement. And I think 
that is the danger here; the inherent model of environmental 
law, environmental regimes, is to place environmental risk with 
the actor who incurs that risk and ensure that they remain 
financially accountable and financially responsible, not the--
--
    Senator McCain. Which in this case, under their structure, 
they are not responsible.
    Ms. Trabucchi. Well, I think it is a matter for the courts. 
I think if there is an event----
    Senator McCain. Should it be a matter for the courts, or 
should it be unequivocal, the responsibility? And I apologize, 
Mr. Chairman----
    Senator Levin. No. Please.
    Senator McCain. But it raises up just one more question for 
both of you. After the terrible financial collapse of 2008, one 
of the commitments we all made--Republican, Democrat, 
administration, all of us--was that none of these institutions 
would ever again be too big to fail. I would like to ask your 
opinion. Given a lot of the information that we have just seen, 
have we achieved that goal or come to close to it, anywhere 
near it?
    Ms. Omarova. Well, not only did they not become smaller and 
less likely to fail, or come to the brink of failure, and much 
easier to resolve without any public bailouts, but to the 
contrary, particularly in this physical commodities area, they 
have grown much bigger. Not only are they bigger in terms of 
their size, but they have actually made themselves, according 
to them, their own advocates, indispensable not only as 
providers of finance but as providers of coal, jet fuel, oil, 
natural gas, aluminum, copper, and so on and so forth, or at 
least actors in the supply chain that have a lot of control 
over the availability of those raw materials.
    So, in effect, they are acquiring businesses that 
potentially can make them even more important to be bailed out 
or at least to claim they need to be bailed out, should 
anything happen. And it also creates new and unfamiliar, 
unstudied to this day, channels of transmitting risk, systemic 
risk, from finance into these non-financial areas and vice 
versa.
    So now, for example, if it is true that JPMorgan and 
Goldman Sachs are so uniquely indispensable to all of those end 
users out there in the real economy who need jet fuel or 
electricity, and suddenly something bad happens in their 
financial businesses--which usually seems to happen 
periodically--and somehow they are on the brink of a failure 
and there is a question, ``Should we let them fail?'' And 
suddenly policymakers will have to deal with the potential 
impact of letting them fail on those various utilities and 
airlines, and whoever they are.
    And so that to me is another factor to start doubting that 
the problem of ``too big to fail'' is being resolved. I think 
it is being exacerbated.
    Ms. Trabucchi. I think the precept here is they should not 
be allowed to be too big to fail, that when you are talking 
about environmental risk management and financial assurance, 
every actor in every industry in every function that they 
provide, they should remain financially accountable. And there 
are numerous----
    Senator McCain. Do you believe that they are----
    Ms. Trabucchi. Presently too big to fail? As I sit here 
right now, not having done a review of their specific financial 
holdings, I am not prepared to say with certainty one way or 
the other. What I will say is, again, they should not be 
allowed to be too big to fail. They should not be engaged in 
activities that are beyond their risk profile or beyond their 
ability to manage their risk profile. Some of the information 
that I read in the Subcommittee Report suggests that they do 
not know how to analyze or quantify probable loss scenarios, it 
is actually not true. There are industries specifically 
designed to measure and monetize risk. They are choosing not to 
do so. And so to the degree, I think, regulators allow them not 
to, then they are enabling too big to fail, and they do not 
need to do so.
    Senator McCain. Sorry for the interruption, Mr. Chairman, 
but I thought your line of questioning begged these additional 
questions. I thank you, Mr. Chairman.
    Senator Levin. That was very on target.
    As a followup of that, one of the issues here, the 
differences between a regular oil and gas company and the 
financial holding company is their capital ratio. So an oil and 
gas company has a capital ratio on average of 42 percent. 
Financial holding companies have an average capital ratio of 8 
to 10 percent.
    Professor Omarova, tell us, what does that mean? And what 
is the difference? What is the significance of those numbers?
    Ms. Omarova. Well, when we speak of capital ratios, what we 
are really talking about is the amount of financing that a 
particular company raises from its own private owners, from its 
shareholders, as opposed to from creditors. So we are talking 
about leverage.
    So, for a regular oil company or a commodity company that 
you refer to, that ratio, that 42 percent is not necessarily 
dictated by law. It is the market, the free market that 
determines that in order for the creditors to really be willing 
to deal with that company, they want to see more of the 
financing coming from the owners as opposed to other lenders. 
And banks and financial institutions are very different in that 
respect. They can operate, and they are expected frequently to 
operate in their financial businesses, with a lot higher amount 
of leverage. That is why they are regulated.
    But that privilege, what it means is that financial 
institutions, especially banking organizations, get the public 
backup in case something goes wrong, and the creditors are 
still willing to deal with this company with low capital, 
right? Because they know that somehow the U.S. Government will 
back up those liabilities ultimately. And that is a tremendous 
advantage because what it means is that----
    Senator Levin. The advantage to the banks.
    Ms. Omarova. To the bankers, of course. That is why all of 
the banks' clients, for example, are currently, crying that, 
oh, my goodness, if you kick banks out of this business, then 
we will have to deal with less ``creditworthy counterparties.'' 
What that really means is that those counterparties out there 
in the market do not have that kind of public subsidy, because 
banks should not be more creditworthy by market standards. Look 
at their capital levels, 8 percent versus 40 percent, right? 
There is no reason to think that this is a better counterparty 
to deal with but for the public backing that banks enjoy, and 
that is a tremendous advantage over other non-subsidized 
private companies in the market.
    Senator Levin. You made reference to concentration of 
power, and we heard yesterday about a severe concentration of 
power in the aluminum storage market. And here is what has 
happened, and I do not know if you have read the Report, but 
let me try to summarize it.
    Goldman Sachs acquired a large warehouse business in 2010 
called Metro, and after Goldman acquired Metro, Metro tripled 
the incentives that it paid to attract aluminum to its many 
warehouses in the Detroit area. It paid millions of dollars in 
incentives to existing warehouse clients to engage in what we 
call ``merry-go-round deals,'' and here is the way it worked. 
The warehouse clients agreed to cancel what are called 
``warrants.'' These are warrants of the London Metal Exchange. 
This lengthened the queue to get out because if the warrant is 
canceled, you have to then get in line to get your aluminum out 
of the warehouse.
    And then what they did was they canceled their warrants--
they were paid to do this--lengthened the queue to get aluminum 
out of these warehouses, and the result was the following: That 
the line, the queue, to remove metal from these warehouses went 
from 40 days to 665 days, forcing metal owners to wait nearly 2 
years to get their metal out of storage.
    Now, what happened is that Metro built a virtual monopoly 
on the U.S. London Metal Exchange aluminum storage market. They 
captured 85 percent of the market share by 2014. The longer 
lines which resulted requiring that these warrants be canceled 
in order to get the subsidy resulted in and were correlated to 
the tripling of a premium for aluminum. To buy aluminum, you 
have to pay a premium plus a London Metal Exchange cost, but 
the premium is a big part of the price, and a big growing part 
of the price for aluminum.
    So Goldman owns warehouses and is directly involved in a 
decision to increase the line from, again, usually a few days 
to 600 days, which is correlated with a dramatic increase in 
the premium that people pay for aluminum. And at the same time, 
Goldman, through its financial transactions, is involved in the 
price of aluminum, futures for aluminum, swaps for aluminum, 
and they have this information because they are involved in the 
decision and the payment to people to effectively lengthen the 
line by going into queues. And there is a direct correlation 
between a longer line and the premium that is paid for 
aluminum.
    Now, that may sound kind of complicated, and it is. But 
that is the kind of concentration of power that involves market 
manipulation through the use of these warehouse operations. And 
it is information which Goldman not only is privy to, unlike 
anybody else, except the people running the warehouses for 
them, they are creating the situation themselves. It is not 
just knowing of information which affects the value of aluminum 
futures in which they are dealing. They are actually creating 
the situation as well as learning of the situation. And so they 
are involved in these merry-go-round deals, and I guess the 
question--they have obvious informational advantages in their 
derivatives trading operations.
    Now, did you read the Report or is this familiar enough to 
you now that you can give us a reaction to this?
    Ms. Omarova. Well, this is familiar to me enough. Of 
course, no one can ever claim that what Goldman Sachs is 
actually doing within its operations is fully well known to 
them, unless you are part of their operation. And I did not see 
yesterday's Goldman Sachs executives' testimony. I have read 
some reports that indicate that it was an act worth seeing.
    However, this is a very interesting situation that 
exemplifies precisely the dangers from the market integrity 
perspective of allowing large financial institutions that are 
active in creating and trading financial instruments linked to 
prices of commodities, on the one hand, to enter businesses in 
the actual physical commodity supply chain, so that they cannot 
only get some information from these operations but actually be 
able to physically move the prices.
    And, of course, they will tell us--and they probably did 
tell you yesterday--that none of that is happening, everything 
is absolutely cleanly separated, and they are really only doing 
it for the best of the society. But the reality of it is that, 
why would a financial institution, for example, even try to 
become a warehousing company? Until very recently, metals 
warehousing did not look like the kind of hot business that all 
the banks were really getting into, right? There must be a 
reason for them to extend themselves so that they actually own 
warehouses. And the reason is precisely their ability to devise 
and implement much more complex strategies for profiting from 
these prices, not only by extracting rental income from the 
warehousing or even by raising certain aluminum prices in 
certain markets, but also by perhaps engaging in very complex 
financial games around that stuff.
    And once that kind of a game starts determining what is 
happening in the market for aluminum, for example, that really 
distorts the dynamics that have been present for decades and 
centuries. And so everything becomes a lot more difficult to 
understand: Why things are happening the way they are 
happening. And perhaps that is part of the reason why it is so 
difficult for us to argue with Goldman Sachs executives on the 
specifics--``have you manipulated, have you not manipulated?'' 
But if you kind of step away from the specifics and look at 
what exactly is happening, it is quite clear that this is an 
extremely troubling trend, and it should NOT be allowed to 
continue.
    And, for example, the very fact that those ``merry-go-
round'' clients are primarily financial institutions, those 
clients are the clients of Goldman Sachs in its capacity as a 
financial institution. So perhaps if it were not Goldman Sachs 
but some bona fide metals warehousing company that was running 
Metro's warehouses, that company might not have been able to 
create such incentives and to pay that much money to producers 
of aluminum to store aluminum in its warehouses, on the one 
hand, but also to find those types of convenient clients to 
engage in this merry-go-round that they can find because they 
deal with these hedge funds and private equity funds and 
whoever they are.
    And this is a very important factor to keep in mind when we 
think about the concentrations of power and the new forms of 
manipulation that may be taking place there.
    Senator Levin. Thank you.
    Senator McCain.
    Senator McCain. I think I have asked my question, Mr. 
Chairman, but Ms. Omarova raised this: Why would Goldman Sachs 
want to get in the warehouse business? That is a very 
interesting question, and I wonder if they have ever been in 
the warehouse business anywhere else in America.
    I thank you, Mr. Chairman.
    Senator Levin. Thank you. I just have one additional 
question, I guess, of Professor Omarova. Banks have been found 
to have engaged in serious manipulative conduct involving 
things like electricity prices and LIBOR and foreign exchange 
rates and more. Those same banks have access to near-zero 
interest rates to borrow money and lower capital requirements 
that almost any private sector company conducting physical 
commodity activities which do not have that kind of huge 
advantage. So cheaper credit and lower capital requirements 
translate into clear competitive advantages when banks start 
getting into commercial businesses, as you have pointed out, 
like power plants, oil storage facilities, coal mining, and so 
forth.
    Now, since the Federal Reserve is the source of those 
competitive advantages, does it have a responsibility to ensure 
that banks do not use those competitive advantages to engage in 
market manipulation or unfair trading?
    Ms. Omarova. The short answer is yes. The Federal Reserve 
absolutely has the responsibility to ensure that financial 
holding companies through their many commercial subsidiaries or 
otherwise do not conduct activities that are essentially taking 
unfair advantage of their access to a public subsidy system. 
And it is disheartening to me that the Federal Reserve has not 
done so, and even when the Federal Reserve actually was forced 
to publicly state its intent to look into this issue last year, 
in 2013, after some hearings in the Senate, even then their 
focus seems to be mostly on the safety and soundness of the 
financial institutions themselves.
    It is a very important issue, no question about that. But 
it is by no means the sole issue at stake here. The Bank 
Holding Company Act historically was adopted as an anti-
monopoly, antitrust kind of an act, and that spirit of the Bank 
Holding Company Act needs to be upheld today in the face of 
these kinds of activities, these kinds of charts being shown to 
us here. And it is the Federal Reserve's primary responsibility 
to make sure that whenever a financial holding company gets 
into any non-financial business, that the financial company 
produces specific ongoing proof to the Federal Reserve, as our 
agent and a watchdog on behalf of the American taxpayer, that 
the extraordinary step of extending public backup for private 
companies' liabilities, stuff that we do with banking 
institutions, is not extended throughout the economy without 
the American taxpayers knowing about it. That is absolutely an 
important point, and that is precisely the point that to this 
day we have not seen addressed by the regulators or the 
industry.
    Senator Levin. Ms. Trabucchi, the three financial holding 
companies have all told us that they have been careful to set 
up their affairs so that they do not directly own or operate a 
physical commodity facility, and so they cannot be held liable 
for losses. I think Senator McCain asked a question like this 
yesterday about if BP were a bank, I think was the question he 
asked, so let me ask--it is really his question. If BP were a 
bank, what would be the impact on that bank of that oil spill?
    Ms. Trabucchi. Well, thankfully, BP is not a bank If you 
look at BP's recent Fiscal Year end 2013 annual report, you 
will see that they have recorded losses or anticipated losses 
of approximately $43 billion with incident-related expenses to 
date in the realm of approximately $25 billion.
    I think that the challenge you have are these financial 
holding companies believe that the legal shield they have 
instituted through a series of corporate veils, whether that 
corporate veil involves holding companies or shell companies or 
investing in subsidiaries and affiliates in foreign countries, 
that the legal shield is a de facto shield from financial 
responsibility. And I think what the Deepwater Horizon spill 
has shown, as well as several other incidents in the public 
record, is that parent companies do end up becoming financially 
responsible for the activities of their subsidiaries and 
affiliates, not simply because they are liable or not liable, 
but there are many other reasons why they might choose to do 
so.
    So, from a financial perspective, I think it is dangerous 
for financial holding companies to engage in a multiplicity of 
physical commodity-related activities with the presumption that 
there is no risk, and if there is a risk, the legal shield will 
protect them, and if the legal shield does not protect them, 
the amount is negligible and, therefore, not worthy of 
recording on their financials, I think that is a very dangerous 
prospect for the banks, and I think it is a dangerous prospect 
for the U.S. taxpayer. There are numerous other incidents. I 
think Deepwater Horizon is one with which the public is 
familiar. But there are many other environmental and 
catastrophic incidents that are billion-dollar incidents.
    Senator Levin. Now, during our investigation, Ms. 
Trabucchi, we came across some fact patterns which were 
unusual, to put it mildly. We found, for instance, that Morgan 
Stanley had used three shell companies, known as ``Wentworth,'' 
to build a compressed natural gas facility. Those companies had 
no employees or offices of their own. They were managed and run 
by Morgan Stanley employees. They were located in Morgan 
Stanley's Commodities Division's offices in Purchase, New York.
    Does that type of shell arrangement increase the chances 
that Morgan Stanley would be held liable if that plant were 
struck by a disaster?
    Ms. Trabucchi. In my opinion, yes.
    Senator Levin. Now, how about the situation at Goldman 
where it bought a uranium trading company, Nufcor, and the 
employees that ran the business left, Goldman employees took 
over running the business? Does that fact pattern increase 
Goldman's potential liability?
    Ms. Trabucchi. Assuming those employees were involved in 
the direct operation of the facility, then yes.
    Senator Levin. And what about a situation involving 
JPMorgan which directly owns three power plants but in each 
case it contracted with a third party to run the plant? Now, as 
a direct owner--what is your reaction to that?
    Ms. Trabucchi. Under various legal case precedents, if you 
are a direct owner or operator of a facility that has an 
environmental incident, you could be held directly liable for 
the actions of that subsidiary. I think when you are talking 
about contracting the activities, then it becomes a little bit 
more nuanced. And I think that the notion of contracting, 
really again it gets down to direct operations. Was one party 
directing the other party to operate a facility or operate 
activities in a certain fashion that resulted in an 
environmental incident?
    Senator Levin. Ms. Trabucchi, the financial holding 
companies that we have looked at have hundreds of billions, 
sometimes trillions of dollars in assets, and some have claimed 
that even a catastrophic event would not have a significant 
impact on their finances or their stability. But isn't it 
correct that most of those trillions of dollars belong to their 
clients and that almost all banks have capital ratios, again, 
of less than 10 percent, meaning that if disaster strikes, they 
do not have sufficient funds to deal with the fallout?
    Ms. Trabucchi. Yes, I think this is an interesting point 
and an interesting question, because I think that this is an 
area where you can see the most difference between financial 
holding companies operating in physical commodities and actual 
industrial actors who are familiar with the sophisticated 
nature of their commodity and their industry.
    Generally speaking, those actors who are in the physical 
commodity business must comply with very sophisticated 
environmental laws and environmental regimes that require 
financial assurance. And those financial assurance 
instruments--for example, insurance, surety bonds, potentially 
putting in place a trust fund--also allow for self-insurance 
where you can benchmark the strength of your financial 
statements against the facility's risk profile.
    What you need to do is evidence solvency and liquidity, 
which are often multiples of the prospective monetized risk. It 
is not just a measure of the size of the entity.
    So I think the short answer to your question is just 
presuming a capital ratio is sufficient to benchmark financial 
assurance for environmental risk is short-sighted.
    Senator Levin. Exhibit 6,\1\ in that document this is what 
Goldman said to the Federal Reserve----
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    \1\ See Exhibit No. 6, which appears in the Appendix on page 866.
---------------------------------------------------------------------------
    Ms. Trabucchi. I am sorry. Did you say----
    Senator Levin. It is on page 6 of Exhibit 6, and I will 
read it, which may or may not obviate the need to find it in 
that huge book of exhibits.
    Ms. Trabucchi. OK.
    Senator Levin. Here is what Goldman said to the Federal 
Reserve: ``While there is no explicit scenario for 
environmental [or] catastrophic damage for any business line or 
corporate area, exposure related to participation in commodity 
markets primarily resides in the damage to physical assets risk 
category in Global Commodities.''
    Now, then Goldman continued as follows: ``Global 
Commodities' operational risk loss during storage and 
transportation of its physical commodity assets is limited to 
the value of those assets as catastrophic [or] environmental 
risk resides with the facility operators.''
    So as recently as July of last year, in other words, 
Goldman had no capital allocated for a catastrophic event, 
which is what a Goldman executive confirmed in his testimony 
yesterday.
    Do you have a reaction to that?
    Ms. Trabucchi. Well, I think, again, this gets back to this 
concept that they presume the legal shield is strong enough 
that it obviates them from any financial accountability or 
financial responsibility. And as I said, I think incidents, 
recent incidents in the public record evidence that a legal 
shield perhaps is not the best risk management strategy when 
you are working in the physical commodities sector. And I also 
think it is not a reasonable risk management strategy to 
presume no risk or to presume that if there were risk and it 
were monetized, that you are simply too big to fail and, 
therefore, that risk does not need to be assured.
    Senator Levin. Ms. Trabucchi, in your prepared testimony 
you talk about financial holding companies making transitory 
investments in commodity businesses like power plants, natural 
gas facilities, and oil and gas pipelines, and you also 
commented on that in your oral testimony. You point out that 
they plan to hold the investments for only a few years and are 
essentially betting that a catastrophic event will not take 
place while they own or lease the facility. How important, 
again, is that transitory factor?
    Ms. Trabucchi. Well, I actually think it is quite important 
because what we are talking about is forecasting probable loss 
scenarios. And if you are aggressively underestimating the 
length of time over which the loss scenario could arise because 
you believe you will not own the asset or you are only going to 
own the asset for a limited or short period of time, then I 
think what you effectively are doing is undervaluing your risk 
profile and undervaluing the dollar-denominated value that you 
could be required to pay in the event of an incident or to 
offset compensatory damages.
    And so I think the short answer here is that, 
notwithstanding the fact that these are merchant banking 
investments that are for a limited time period, what you really 
need to make sure you do is assess the forecasted probable loss 
scenario over the life of that physical commodity, not just the 
length of time you plan to own it.
    Senator Levin. And if they are making the bet that we just 
described that a catastrophic event will not take place during 
the time that they own or lease a facility, does it mean that 
it is more likely that they will not allocate sufficient 
capital and insurance to cover potential losses?
    Ms. Trabucchi. Yes.
    Senator Levin. And does making that bet also mean that they 
are less willing to dedicate the time, resources, and expertise 
to comply with regulatory requirements and to make expensive 
infrastructure investments that are needed?
    Ms. Trabucchi. I think those sorts of decisions are 
generally made based on cash-flows, and I think to the degree 
they are forecasting cash-flows and they are looking to 
maximize short-term profit targets and maximize investment 
returns--and, again, they do not plan to hold these assets for 
very long--then they are not going to want to make a long-lived 
investment. From their perspective it does not make economic 
sense.
    Senator Levin. And could the failure to make those 
infrastructure and resource investments increase the potential 
for a catastrophic event?
    Ms. Trabucchi. Yes.
    Senator Levin. And could the failure to make those 
infrastructure and resource investments also put pressure on 
its peers to skimp on them as well to the detriment of the 
public?
    Ms. Trabucchi. I do not know that I would say it quite in 
that fashion. I think what happens is their decisions to not 
make those investments put them at a price advantage or a 
competitive advantage over their peers, because, remember, 
their peers are working in highly regulated, highly 
sophisticated regimes where sometimes they have no choice; they 
must make the infrastructure improvement. And so if their peers 
are over here making those improvements, it is imputed in the 
cost of doing business, which influences their price targets, 
and you have another series of actors over here who are not 
operating within the regulatory regime because they believe in 
their legal shield or whatever their risk-mitigating strategies 
are, and they choose not to make those improvements, arguably, 
they are at a competitive advantage. They can work with their 
pricing differently than their peers.
    Senator Levin. All right. And if the peers are not required 
by regulation to make the improvements----
    Ms. Trabucchi. Then, I think you are potentially fostering 
a moral hazard where it is a race to the bottom.
    Senator Levin. And then that would have a negative effect 
on the public.
    Ms. Trabucchi. It would increase the potential likelihood 
of an environmental incident and a catastrophic event, and it 
would also, arguably, increase the potential that there are 
insufficient financial assurances and, therefore, yes, the U.S. 
taxpayer may be left----
    Senator Levin. And in an environmental situation, the 
public would be also worse off in that situation.
    Ms. Trabucchi. Correct. There is also the injury that 
arises that goes beyond simply the financial consequences.
    Senator Levin. OK.
    Senator Levin. Again, this goes, I guess, to Professor 
Omarova. The Gramm-Leach-Bliley Act contains a special 
grandfather clause that Goldman and Morgan Stanley have used to 
greatly expand their physical commodity activities. Section 
4(o) of the act authorizes any company that becomes a financial 
holding company to continue conducting ``activities related to 
the trading, sale, or investment in commodities and underlying 
physical properties'' subject to certain conditions. A broad 
interpretation of this language suggests that if a financial 
holding company were engaged in physical commodities activities 
in a very limited way prior to a certain date in 1997, this 
section would allow them to broaden their activities into all 
aspects of physical commodities. That is a broad 
interpretation.
    The 1999 Senate Banking Committee Chairman offered the 
amendment that formed the basis for Section 4(o) and entitled 
it ``The amendment on grandfathering existing commodities 
activities.'' And the amendment also contained this short 
explanation: ``The above amendment assures that a securities 
firm currently engaged in a broad range of commodities 
activities as part of its traditional investment banking 
activities is not required to divest certain aspects of its 
business in order to participate in the new authorities granted 
under the Financial Services Modernization Act.'' This 
provision grandfathers existing commodities activities.
    Now, a grandfather clause usually protects existing 
conditions from a new rule. Have you ever heard of a 
grandfather clause used to justify completely new activities?
    Ms. Omarova. You are absolutely correct. Grandfathering 
provisions typically are enacted in order to avoid certain 
unnecessary hardships or disruptions of certain existing 
operations--so, mainly in the interest of fairness to the new 
company that suddenly becomes subject to a new regime--and to 
prevent the need for some kind of fire sale of assets. But no 
grandfather provision is usually conceived as a completely 
independent grant of some open-ended, absolutely new privilege 
for a financial institution that becomes now a bank holding 
company to engage in the future in any kind of physical 
commodity activity that is absolutely not allowed under the 
existing law. And that is precisely what a broad and very 
mechanical interpretation of just the language of the statute 
seems to say.
    And I also agree with you that the legislative history of 
this provision clearly shows that it was never meant to be 
something to allow Goldman Sachs and Morgan Stanley to 
essentially move into any physical commodities markets they 
want at any point in the future without any limitations.
    Senator Levin. Professor Omarova, in 2010 the Federal 
Reserve Commodities Team undertook a 2-year in-depth review of 
the physical commodity activities being conducted under the 
grandfather clause at Goldman Sachs and Morgan Stanley, and 
they at that time were the only financial holding companies 
that were using that clause.
    Among other measures, the review compared their activities 
prior to the 1997 trigger date and in 2010, and during that 
review a detailed status report was prepared indicating that 
Goldman Sachs and Morgan Stanley had used the grandfather 
clause to greatly expand their commodity activities and incur 
numerous new risks. And here is part of what the Federal 
Reserve's Commodity Team found. These are long findings, so 
bear with me.
    ``The scope and size of commodity-based industrial 
activities and trading in physical and financial commodity 
markets at Morgan Stanley and Goldman Sachs has increased 
substantially since 1997. There are a large number of new 
commodities traded by these firms today which they did not 
trade in 1997. The new commodities traded today by Morgan 
Stanley number 37 and Goldman Sachs, 35.
    ``Much of the new business conducted by Morgan Stanley and 
Goldman Sachs is in the form of industrial processes involving 
commodities. The expansion of these firms into power 
generation, shipping, storage, pipelines, mining, and other 
industrial activities has created new and increased potential 
liability due to the catastrophic and environmental risks 
associated with the broader set of industrial activities.
    ``And,'' the report went on, ``below are examples of 
industrial processes which are new or greatly expanded today 
from 1997: leasing of ships and ownership of shipping companies 
at Morgan Stanley and Goldman Sachs; new ownership and expanded 
leasing of oil storage facilities at Morgan Stanley; ownership 
of companies owning oil refineries at Morgan Stanley; ownership 
of coal mines and distribution at Goldman Sachs; new ownership 
of power plants at Goldman Sachs and expanded ownership at 
Morgan Stanley; leasing of power generation at Morgan Stanley 
and Goldman Sachs; ownership of retail gasoline outlets at 
Morgan Stanley; ownership of royalty interests from gold mining 
at Morgan Stanley; ownership and development of solar panels at 
Morgan Stanley.
    ``Furthermore,'' it went on, ``the scale of bank 
involvement in industrial commodity processes is not widely 
understood, even within the bank regulatory community. As a 
result, it is possible that losses within the banking sector 
arising from these activities will be surprising.''
    Now, what is your view regarding the extent of 
grandfathered activities continuing, going on, after a report 
like that?
    Ms. Omarova. Well, in my view, this Section 4(o), the 
grandfathering of commodities activities for certain new bank 
holding companies, in practice, of course, the two relevant 
institutions to speak of are Goldman Sachs and Morgan Stanley 
that became subject to these laws in 2008--this section creates 
an enormous loophole, especially if allowed to be interpreted 
so broadly as to permit such an incredible expansion of 
activities beyond what was conceivably contemplated by Congress 
back in 1999 even.
    And so it does not surprise me at all that both Goldman 
Sachs and Morgan Stanley assert that there is absolutely no 
ambiguity in their ability to use this grandfather clause, not 
just to continue what was properly grandfathered but to just do 
anything and everything in that field.
    But it is the Federal Reserve's job to give some clarity on 
this issue, because if we just allow Goldman Sachs and Morgan 
Stanley to be the ultimate judges of what is permitted by this 
language, then, of course, we are going to see their commodity 
empires expand, and that creates also a competitive advantage 
for them vis-a-vis even other financial institutions playing in 
the field.
    Senator Levin. Would you agree that this clause should not 
be given a broad reading?
    Ms. Omarova. Absolutely, I agree with that. It should not.
    Senator Levin. And then if it were challenged in court 
against a narrow reading, which is the one you recommend, 
Congress could then have an opportunity to amend the language. 
Is that correct?
    Ms. Omarova. Well, I think Congress has the opportunity to 
amend the language anytime it wants to, and perhaps it should.
    Senator Levin. Without waiting for the Federal----
    Ms. Omarova. Exactly.
    Senator Levin. Well, let us hope we do not have to do that, 
because we are not so adept at getting things done these days 
either. But the Federal Reserve is in a position where they 
have an obligation----
    Ms. Omarova. Absolutely.
    Senator Levin [continuing]. To give an interpretation to 
this.
    Ms. Omarova. Absolutely.
    Senator Levin. By the way, do you have a view, Ms. 
Trabucchi, on the grandfather clause?
    Ms. Trabucchi. I do not. I actually think Professor Omarova 
captured it well.
    Senator Levin. Professor, as you saw in our Report, one of 
the key findings in our investigation is that there is no 
overall size limit on the amount of physical commodity assets 
that can be held by banks and their holding companies. We also 
uncovered actions taken by JPMorgan to use loopholes, 
exclusions, and valuation techniques to stay under the Fed's 5-
percent limit, even while its physical commodity holdings were 
growing.
    As a result, as of September 28, 2012, JPMorgan had 
physical commodity holdings of at least $17.4 billion, equal to 
nearly 12 percent of its Tier 1 capital. At the same time, it 
was using loopholes and exclusions to report to the Federal 
Reserve that it had $6.6 billion, or 4.5 percent of its Tier 1 
capital. It shows, that discrepancy, just how ineffective the 
current limits are.
    Now, physical commodities may be held under complementary 
authority, in which case they are subject to the 5-percent Tier 
1 capital limit. They are authorized to be held under 
grandfather authority, in which case they are subject to a 
limit of 5 percent of total consolidated assets or under 
merchant banking authority, in which case they are not subject 
to a limit if they comply with the restrictions in that 
authority.
    None of what I have just said counts anything that is held 
in the bank under the authority of the OCC. So copper held as 
bullion is also exempt from any size limits. This seems like a 
patchwork of rules and limits that is subject to manipulation 
and leaves physical commodity activities with no effective 
overall limit.
    Should the Federal Reserve have a single, overarching limit 
to protect the safety and soundness of the banks and their 
holding companies? And do you think that the Federal Reserve 
has the legal authority to do that?
    Ms. Omarova. The findings in the report about the ongoing 
sort of manipulation of all of these limits in different 
provisions of the law are very alarming because they illustrate 
precisely the potential weaknesses of relying exclusively on a 
particular size limit and then creating additional 
opportunities for the financial institution to claim that a 
completely different size limit would apply to the same 
activity, for example. So that way, of course, they could take 
their assets, commodity assets, and put them in different 
little baskets, and then say, well, overall we are OK; but in 
reality it is not OK.
    So I do think that if the Federal Reserve decides to clean 
up its regulatory approach to limit these activities based on 
some kind of size or concentration, for example, then they 
absolutely have to seriously consider imposing one overall size 
limit on all of the assets, no matter under what authority they 
are held.
    Do they have authority to do so? I believe that they do 
because they are--especially after the adoption of the Dodd-
Frank Act in 2010, the Federal Reserve is an important systemic 
risk regulator, and they have enormous powers and a lot of 
flexibility as a regulator to do what needs to be done in order 
to prevent the financial system from the next crisis. And this 
is perhaps one of those instances where such an authority 
should be used in order to strengthen this particular aspect of 
regulation.
    Of course, any size limit, no matter how strictly you set 
it, is only as good as it is complied with, as compliance with 
it, right? So what really is important is that the Federal 
Reserve elevates the level and intensity of its supervisory 
efforts with respect to controlling and monitoring how those 
financial institutions have complied.
    Senator Levin. So you need size limits. You need them that 
do not have a whole bunch of loopholes in them. You need them 
to be enforced. And just, I guess, for you, Ms. Trabucchi, I 
assume that you would agree that size limits are useful to 
reduce risk.
    Ms. Trabucchi. Yes, but I would go one step further, and I 
would say that it cannot just simply be a percentage of the 
total consolidated assets of a financial holding company. It 
needs to be benchmarked against the probable loss scenario and 
the monetized estimate of incident-related expenditures and 
compensatory damages that could arise. And I think it should be 
a multiple, and I also think it should be benchmarked against 
tangible assets--assets that can be actually leveraged to pay 
for the payment--for the expenditures of an event.
    Senator Levin. I just have one final question before we 
turn to our next panel.
    In 2009, in response to the financial crisis, the Federal 
Reserve revamped its organizational structure and created the 
Large Institution Supervision Coordinating Committee, whose 
operating committee created in turn a ``Risk Secretariat.'' The 
Risk Secretariat's mission is to identify key risks affecting 
systemically important financial institutions and provide the 
resources needed to conduct in-depth risk investigations. And 
in one of its first actions, it identified bank involvement 
with physical commodities as an emerging area of risk that 
required review.
    I would assume that you would both agree with that 
assessment. Is that accurate?
    Ms. Trabucchi. I would.
    Ms. Omarova. Yes, absolutely.
    Senator Levin. And that is what your testimony is all 
about, and that is what we are all about in these hearings, is 
to find out what has been going on at the Fed since 2009 when 
they revamped their structure, created that committee, made 
that finding, and what are we going to do as a people and as a 
government to reduce these risks and to take away these 
opportunities for financial manipulation?
    Professor, Ms. Trabucchi, thank you both very much. Thank 
you for the work you do in the private world. Thank you for 
coming here today.
    Ms. Trabucchi. Thank you.
    Ms. Omarova. Thank you.
    Senator Levin. I will now call our second panel: Hon. 
Daniel Tarullo, a Governor on the Board of Governors of the 
Federal Reserve System; and Larry Gasteiger, Acting Director of 
the Office of Enforcement at the Federal Energy Regulatory 
Commission, FERC. We appreciate both of you being with us 
today. We look forward to your testimony. And as you are aware 
of our rules, we ask all of our witnesses to be sworn, and we 
would ask you now to please stand and raise your right hand.
    Do you swear that the testimony you are about to give to 
the Subcommittee will be the truth, the whole truth, and 
nothing but the truth, so help you, God?
    Mr. Tarullo. I do.
    Mr. Gasteiger. I do.
    Senator Levin. We have a timing system, and I think you are 
both aware of it. A minute before the time is up, the red light 
will change from green to yellow and then it will be red. We 
would ask that you try to limit your oral testimony to no more 
than 10 minutes. And, Mr. Tarullo, we are going to ask that you 
go first. And thank you again for being here. We know the kind 
of schedule both of you have, including on the Hill, by the 
way, so thanks so much for being here. Mr. Tarullo, please 
proceed.

   TESTIMONY OF HON. DANIEL K. TARULLO,\1\ MEMBER, BOARD OF 
    GOVERNORS OF THE FEDERAL RESERVE SYSTEM, WASHINGTON, DC

    Mr. Tarullo. Well, thank you, Mr. Chairman. Before 
beginning my testimony, I want to offer a bit of a testimonial 
on what I believe is one of the last occasions on which the 
Chairman will wield the gavel at a Senate hearing.
---------------------------------------------------------------------------
    \1\ The prepared statement of Mr. Tarullo appears in the Appendix 
on page 313.
---------------------------------------------------------------------------
    I first became aware of your energy and commitment in the 
1970's, reading about you in the Detroit papers, when you were 
president of the Detroit City Council and I was a law student 
living in Ann Arbor. I have watched that energy continue 
unabated during your six terms in the Senate right up through 
this set of hearings that includes today's panel. So as you 
retire, let me congratulate you for all your accomplishments 
during those 36 years.
    Senator Levin. Well, thank you so much. You do not look old 
enough to go back to my City Council days, but I am afraid I 
am. Thank you so much.
    Mr. Tarullo. So turning now to the subject of this hearing, 
commodities activities in bank holding companies were not, of 
course, the story of the recent financial crisis. But that does 
not mean that they pose no risks to the safety and soundness of 
bank holding companies. Actually, to a considerable extent, the 
issues surrounding such activities are a product of the crisis 
insofar as large, formerly freestanding investment banks with 
substantial commodities activities were either acquired by or 
converted to bank holding companies in 2008. So even as we 
continue to put in place regulations directed at preventing the 
kinds of solvency and funding troubles that gave rise to the 
crisis, we need also to be forward-looking and address post-
crisis developments that could give rise to future problems.
    I might note in passing that some of these post-crisis 
regulatory changes that we are already in the process of 
enacting--notably, the increases in risk weighting for certain 
activities under new capital requirements--will themselves have 
an effect on commodities activities.
    Supervisory experience with these commodity activities in 
bank holding companies since the disappearance of the five 
larger formerly freestanding investment banks, along with our 
observation of the impact of catastrophic events involving 
certain commodities, led us to begin a broad review of relevant 
regulatory and supervisory policies.
    As is appropriate given our overall mandate for prudential 
supervision, we have focused particularly on the implications 
of various commodities activities for the safety and soundness 
of bank holding companies. We have also revisited the factors 
relevant to determinations made beginning more than a decade 
ago that certain commodities activities should be regarded as 
complementary to financial activities under Section 4(k)(1)(B) 
of the Bank Holding Company Act.
    The Advanced Notice of Proposed Rulemaking that we issued 
early this year sought public comment on these and a range of 
other issues, including activities conducted by bank holding 
companies under the merchant banking authority and Section 4(o) 
grandfathering provision, both of which were added in the 
Gramm-Leach-Bliley Act.
    As you might expect, the ANPR has elicited a considerable 
number of responses from a range of perspectives. We are 
nearing the end of the analysis of these comments and other 
information relevant to the issues raised in the ANPR. So while 
we do not yet have a Board proposal for specific changes in 
regulatory and supervisory policies, I anticipate that we will 
be issuing a Notice of Proposed Rulemaking in the first quarter 
of 2015.
    In closing, I would note that the Report issued by this 
Subcommittee on Wednesday will be an important additional input 
into the final stages of staff analysis and eventual Board 
consideration of policy changes.
    Thank you very much, and after my colleague gets done, I 
would be pleased to answer any questions you might have.
    Senator Levin. Thank you, Governor Tarullo.
    Mr. Gasteiger.

TESTIMONY OF LARRY D. GASTEIGER,\1\ ACTING DIRECTOR, OFFICE OF 
ENFORCEMENT, FEDERAL ENERGY REGULATORY COMMISSION, WASHINGTON, 
                               DC

    Mr. Gasteiger. Mr. Chairman, thank you for inviting me to 
testify today. My name is Larry Gasteiger, and I am the Acting 
Director of the Office of Enforcement of the Federal Energy 
Regulatory Commission. I am pleased to testify regarding the 
Commission's enforcement program and some of its recent 
enforcement actions involving financial institutions.
---------------------------------------------------------------------------
    \1\ The prepared statement of Mr. Gasteiger appears in the Appendix 
on page 325.
---------------------------------------------------------------------------
    The Commission's statutory authority and responsibility to 
investigate market manipulation in FERC-jurisdictional energy 
markets is rooted in the Energy Policy Act of 2005, which I 
will also refer to as ``EPAct 2005.''
    In the aftermath of the Western energy crisis and the 2003 
Northeast blackout, Congress passed EPAct 2005, which broadly 
prohibited market manipulation in FERC-regulated wholesale 
physical natural gas and electric markets, and provided new 
authority to enforce mandatory reliability standards. Congress 
also significantly enhanced the Commission's civil penalty 
authority for violations of FERC rules by increasing maximum 
civil penalties to $1 million per violation per day.
    Since receiving its expanded enforcement authority, the 
Commission has worked hard to buildup its enforcement 
capabilities. Around the time of the Western power crisis, FERC 
had about 20 enforcement staff. Today we have nearly 200 
attorneys, auditors, economists, analysts, and former traders 
working in the Office of Enforcement.
    In the last few years, FERC has enhanced its ability to 
identify price manipulation in both physical and financial 
markets by adding surveillance tools, expert staff, and new 
analytical capabilities. And in 2012, the Commission 
established a dedicated unit for market surveillance and 
analysis in the Office of Enforcement.
    Also in the past year, FERC surveillance and enforcement 
efforts have been enhanced by a new Memorandum of Understanding 
with the Commodity Futures Trading Commission that provides us 
with access to additional highly useful financial data on a 
regular and continuing basis. We have worked hard to 
effectively and efficiently put these resources to good use. 
Since receiving its EPAct 2005 authority, the Commission has 
imposed and collected approximately $902 million in civil 
penalties and disgorgement.
    Some of these enforcement actions have involved financial 
institutions, including JPMorgan, Deutsche Bank, and Barclays. 
I have provided a more detailed description of these cases in 
my written testimony, but, briefly, the JPMorgan case involved 
market manipulation in the California and Midwest energy 
markets and resulted in a settlement requiring JPMorgan to pay 
a combined $410 million in civil penalties and disgorgement in 
July 2013. The settlement resolved the Office of Enforcement's 
investigation into 12 manipulative bidding strategies that 
gamed the markets by creating artificial conditions that would 
cause the system to pay the company inflated rates.
    Enforcement staff also determined that JPMorgan knew that 
the two regional markets where these schemes played out 
received no benefit from making these inflated payments, and 
thus, the company defrauded those market operators by obtaining 
payments for benefits that they did not deliver.
    In our settlement with Deutsche Bank in January 2013, the 
Office of Enforcement determined that Deutsche Bank used 
physical energy transactions to affect congestion levels and 
corresponding energy prices within the California market. It 
carried out this conduct to increase the value of its financial 
contracts in violation of EPAct 2005 and the Commission's anti-
manipulation rule. The disgorgement in that case was $172,000 
with a penalty of $1.5 million.
    Then the Commission's July 2013 order assessing a civil 
penalty in the Barclays case addressed similar conduct to that 
in Deutsche Bank. The Commission found that Barclays engaged in 
manipulative physical trades to benefit corresponding financial 
positions. Though Barclays' physical trading often lost money, 
it nonetheless profited the company overall because its trades 
helped move the index price that set the value of its larger 
financial swaps benefiting position. The Commission imposed 
penalties of $435 million and disgorgement of nearly $35 
million. The Commission's Barclays order is currently under 
review in Federal district court, so that matter is still 
ongoing.
    Another topic the Subcommittee has asked about is whether a 
financial holding company investment with physical energy 
production has affected how those financial institutions 
approach the power plant business. The Commission has not taken 
any view on the participation in its regulated markets by 
financial holding companies versus more traditional energy 
companies like generators or utilities. However, that said, the 
Commission expects financial institutions, like all other 
participants in FERC-regulated markets, to have good compliance 
programs, to transact in a manner that follows market rules in 
letter and spirit, to work cooperatively with grid operators 
and the Commission when there are concerns, and to self-report 
potential violations.
    Everyone has to play by the rules, and encouraging a 
culture of compliance is the goal of our Office of Enforcement. 
It is my hope that the description of the work of the Office of 
Enforcement I have provided demonstrates that the Commission 
takes very seriously its duty to police the energy markets and 
protect consumers. To the extent we have succeeded in our 
mission, it is due to the many talented, dedicated, and 
hardworking staff at the Commission, and it is my honor and 
privilege to work with them, particularly the staff in the 
Office of Enforcement.
    In conclusion, I want to thank the Subcommittee for the 
invitation to testify today, and I look forward to answering 
your questions.
    Senator Levin. Thank you very much, Mr. Gasteiger.
    Mr. Tarullo, let me start with you with a general question 
at the heart of the issue that we have been going at here 
during this 2-year investigation and this 2-day hearing. The 
heart of it is an American tradition, the separation of banking 
from commerce. Not every country takes the approach, but it has 
been central to U.S. banking law and practice since our country 
got started.
    What is your view of the principle? Do you think it is 
important? And why?
    Mr. Tarullo. Well, Senator, as you say, separation of 
banking and commerce certainly since the New Deal reforms has 
been a centerpiece of U.S. financial regulation and prudential 
regulation. And I think traditionally it is thought to have 
served three purposes:
    First is trying to protect the depository institutions and, 
thus, the Deposit Insurance Fund and more generally our payment 
systems from the risks that can be associated with non-
financial activities, with commercial activities, which for 
obvious reasons will not be in the wheelhouse of people whose 
business is making loans and taking deposits.
    The second reason for the separation of banking and 
commerce traditionally has been a concern that, to the degree 
certainly that insured depository institutions were to be 
involved directly or indirectly, there will be some form of 
subsidization of those activities because of the fact that the 
Federal Government provides an insurance service that is not 
available in the private sector.
    A third and closely related reason is a sense that it would 
be unfair to those operating in the commercial sphere, the non-
financial sphere, to have to compete with institutions that did 
have some form of subsidized funding. And so, as you know, Mr. 
Chairman, there is a long line of cases, both under Section 24-
7 of Title XII of the National Banking Act and also under the 
Bank Holding Company Act, trying to draw the line between 
finance and commerce, banking and commerce more generally.
    But I would say that nothing that I have observed in my 
time teaching in this area, writing in this area, and in the 
almost 6 years on the Fed has changed my view that 
fundamentally this has been a sound principle and there is no 
particular reason to digress from it.
    Now, having said that, as you well know, and as many have 
pointed out, in 1999 the Gramm-Leach-Bliley Act poked some 
fairly big holes in that traditional separation, and so part of 
the ongoing issue, which I think is probably raised in your 
Report, is how in the absence of additional legislation one 
can, in a manner consistent with the statute, confine the risks 
of all three sorts that I was just mentioning a moment ago.
    Senator Levin. In 2009, in response to the financial 
crisis, the Fed revamped its organizational structure, created 
the Large Institution Supervision Coordinating Committee, whose 
operating committee created, in turn, a Risk Secretariat, and 
the mission of that Risk Secretariat was to identify key risks 
affecting systemically important financial institutions and 
also to provide the resources needed to conduct in-depth risk 
investigations. And in one of its first actions, it identified 
bank involvement with physical commodities as an emerging area 
of risk that required review, and it set up and funded a 
multiyear review effort by a Federal Reserve Bank of New York 
Commodities Team that dug deep into the facts, producing 
multiple examination reports. And then in October 2012, 2 years 
ago now, it issued a summary report with a number of 
recommendations.
    Can you summarize the risks that were uncovered by that 
special review?
    Mr. Tarullo. Well, I am going to mediate that somewhat, 
Senator, because I am going to summarize what was told to me in 
going through that review. And I might say that I cannot 
remember exactly when the date is, but it was on one of the 
trips I made to New York when I was using the New York Fed as a 
base to do some meetings that some of the people on the New 
York Fed Examination Team asked to meet with me because they 
wanted to present some of the concerns that they had. A lot of 
those concerns revolved around the potential for catastrophic 
risk, which we mentioned in the ANPR and to which I alluded in 
my prepared remarks.
    I think there is a sense--usually when you think about an 
investment or a loan, any sort of asset, whether it is a loan 
or a tradable security or even a piece of property, you tend to 
think in terms of the potential for loss being at maximum 100 
percent of the value of that asset. So if it is a loan, your 
counterparty defaults, you do not get anything back. If it is a 
security, a company goes bankrupt, you do not get anything 
back.
    But in the case of some forms of commodity activities, 
because of the potential for very large tort exposure, the 
potential--or tort-like exposure, the potential losses to a 
firm could far exceed the value of that asset. And I think that 
was at the core of a lot of what the concerns of the people who 
are looking at the potential risks were.
    Again, as I mentioned in my introductory remarks, the big 
changes in 2008 whereby a lot of activities were imported into 
bank holding companies, either by the conversion of the IB into 
a bank holding company or by the acquisition of the investment 
bank, brought in a lot of things that were not traditionally in 
bank holding companies for the reasons that you were mentioning 
in your first question. I came with that as the core of 
concerns, and it is not the only thing that we are concerned 
with, but it has animated our concerns ever since.
    Senator Levin. Now, what our research indicates is that 
overall, with few exceptions over the years, and setting aside 
the issue of gold and silver, banks and their holding companies 
were not very involved with commodities until the 1970's when 
commodity markets for the first time started to get into non-
agricultural commodities. When it was grain and pork bellies, 
the banks were not very interested.
    When the commodities markets got into crude oil and natural 
gas futures, that is when the banks became interested and 
active in physical commodities markets. Is that generally in 
keeping with your understanding?
    Mr. Tarullo. That is in keeping with my understanding. The 
oil crisis and its aftermath did seem to work a big change in 
how people generally thought about commodities trading.
    Senator Levin. And you have made reference to the enactment 
in 1999 of Gramm-Leach-Bliley. Would you agree that what it did 
in creating a category of financial holding companies and 
authorizing them to get into a wider array of activities led to 
a surge in financial holding company involvement with physical 
activities--physical commodities?
    Mr. Tarullo. Sure. So I think it proceeded in a couple of 
steps, Senator. One was just the authorization. Then, of 
course, there was the bankruptcy of Enron, which left a void, 
which some of the institutions thought they could begin to 
fill. And so you did then begin to see more movement into 
trading activities with those complementary determinations that 
I referred to in my prepared remarks.
    But I think the next piece of what cumulatively was a surge 
was the change from the status of the freestanding investment 
banks, which brought a lot of non-trading activities under the 
umbrella of bank holding companies.
    So I would say cumulatively it was a surge. It proceeded in 
a few somewhat distinguishable steps.
    Senator Levin. One of the key issues that has been raised 
in the physical commodities area involves unfair trading and 
market manipulation. In 2005, when JPMorgan filed an 
application with the Federal Reserve requesting complementary 
authority, JPMorgan explained that engaging in physical 
commodity activities would do the following, and these are 
their words: It would position JPMorgan Chase in the supply end 
of the commodities market, which in turn will provide access to 
information regarding the full array of actual producer and 
end-user activity in those markets. The information gathered 
through this increased market participation will help improve 
projections of forward and financial activity, and these are 
the words that strike me as being so prescient, important, and 
disturbing--it will supply vital price and risk management 
information that JPM Chase can use to improve its financial 
commodities derivative offerings.
    So they are going to gain information here that is not 
public information. They are going to gain information that 
they can use to improve its financial commodities derivative 
offering. Access to information will help its trading 
operations, and, again, that is not public information.
    And here is how a 2005 article described Morgan Stanley's 
physical commodity activities in comments by one of its 
leaders, a man named John Shapiro: ``Having access to barges 
and storage tanks and pipelines gives the bank additional 
options to move or store commodities that most energy traders 
do not pursue. And by having its finger on the pulse of the 
business, it hopes to get a more subtle feel for the market, a 
crucial asset to a trader. Being in the physical business tells 
us when markets are oversupplied or undersupplied.''
    ``We are right there, seeing terminals filling up and 
emptying.''
    So, again, it is the trading value. It is a crucial asset 
to the trader if they are in these businesses at the same time.
    And here is what some Federal Reserve examiners noted when 
they were analyzing physical commodity activities by Morgan 
Stanley and Goldman: ``The relationship of the firms''--Morgan 
Stanley and Goldman--``with the wholly and partially owned 
companies is not that of a passive investor. In addition to the 
financial return, these direct investments provide the firms 
with important asymmetrical information on conditions in the 
physical markets such as production and supply demand 
information, etc., which a market participant without physical 
global infrastructure would not necessarily be privy to.''
    Interesting word, ``asymmetrical'' information. I am the 
Chairman of the Armed Services Committee, and we hear that word 
``asymmetrical'' all the time. In a way there are some 
similarities, by the way.
    Finally, we have an excerpt from an October 28, 2011, 
presentation by the Goldman Commodities Division to the Goldman 
Board of Directors, and this is what it says: ``Goldman Sachs 
may command valuation multiples for Goldman Sachs commodities 
similar to Glencore if the business were able to grow physical 
activities''--and here are the key words--``unconstrained by 
regulation and integrated with the financial activities.''
    That is Goldman Sachs' words, which they repeated 
yesterday. I asked about that.
    Do you believe that physical activities and financial 
activities should be integrated? What happened to that Chinese 
wall you guys claim between information that you gain in the 
commodities world and your work in the financial world?
    Now, my concern with all of these statements is that 
financial holding companies want access to physical commodity 
activities primarily so that they obtain access to commercially 
valuable non-public information that they can use when trading 
financial instruments relating to the same commodities--non-
public information relating to those commodities gained by 
these financial firms, which they can then use in the trading 
of financial instruments that are related to those commodities.
    Now, that to me introduces unfair trading advantages, 
market manipulation issues into our commodity markets.
    Yesterday we explored how Goldman's wholly owned warehouse 
company, Metro, contracted with metal owners in its warehouse 
system to artificially inflate a queue, a line of people, who 
are waiting to leave its warehouse and inflate prices of 
aluminum and aluminum-related financial products. That is what 
happens. The premium for aluminum is directly connected to a 
long line to get out of a London Metal Exchange-approved 
warehouse. The longer the line, the greater the rent is paid in 
that warehouse. That rent is part of a premium, and so the 
portion of a cost of aluminum now that is reflected in the 
premium is now up to over 20 percent. It was 5 percent a few 
years ago.
    And so you have a major financial institution, Goldman, 
that directly is involved in a decision to lengthen a line, 
which in turn increases the premium, which is a growing and 
growing part of an aluminum price, and their decision to 
lengthen those lines with that effect is not public, the 
decision, and they are trading in commodities, including 
futures, which are obviously impacted by that non-public 
information, which they can then apparently use.
    Now, the Fed provides certain attractions to financial 
institutions. There are certain advantages that they have. When 
banks are involved in commercial institutions, like power 
plants, storage facilities, coal mining, and aluminum 
warehouses, the Federal Reserve is the source of competitive 
advantages. You provide advantages. Doesn't the Fed have some 
responsibility to ensure that banks do not use those 
competitive advantages to engage in market manipulation? I know 
other regulatory agencies have responsibilities here. Doesn't 
the Fed that provides these advantages to companies have some 
responsibility to make sure that those companies, which have 
these unique advantages, are not engaged in manipulative 
activities?
    Mr. Tarullo. So I would say first, Senator, that a lot of 
the Dodd-Frank Act and associated reforms that we are doing, 
along with other regulatory agencies, are actually designed to 
make sure that holding companies do not have an advantage and 
that the costs of the risks that they may impose on the 
financial system are fully internalized in their own costs of 
doing business.
    I have not had a chance to read the entire Report, but I 
did take the summary and recommendations on the train with me 
the other day, and I was struck by the fact that so many of the 
case studies which you and your staff have investigated so 
thoroughly seem to revolve around the co-activities of trading 
and what I think you usefully described as ``infrastructure,'' 
owning extraction facilities, transportation facilities, and 
the like.
    That seems to create the biggest potential for the kinds of 
activities that you have been referring to, and there I would 
say, first, the interpretation of complementary authority, 
which, as you know, we are revisiting in any case, but even 
under the existing determinations, they explicitly exclude what 
you would describe as the infrastructure. So under that 
authority, there should be no possibility of doing that.
    Under merchant banking authority, it would be my premise 
that the notions of separation of the portfolio investments by 
merchant banking operations from the operations of the bank 
should also in turn mean that there is no commingling of 
managerial and other kinds of information. So that basically 
leaves us with subsection (o), the grandfathered authority, and 
any residual transitional authority that firms may have to 
maintain noncompliant activities during a divestiture period.
    So with divestiture periods running, with the Fed's 
complementary authority excluding such possibility, and with 
some of the other changes that I have been mentioning, I think 
it does come back to this issue of whether 4(o) continues to 
permit exactly the kind of structural circumstance that you are 
concerned with.
    In terms of our oversight, I think I spoke to this in a 
speech rather than testimony not too long ago. The accumulation 
of violations--investigations and in many cases, I think, 
acknowledgment of violations in a variety of non-prudential 
regulatory areas, whether it is LIBOR or forex price fixing or 
mortgages, and some of the things you have raised in 
commodities, the work that FERC did on JPMorgan, suggests that, 
in general, the compliance procedures, mechanisms, expectations 
within firms for abiding by laws, which may not be prudential 
from us, but they are nonetheless from our sibling regulatory 
agencies, are not adequate in many cases.
    And so one of the things that we have been thinking about 
in general, although now specifically in the commodities 
context as well, is how to assure that there are robust 
enforcement and compliance mechanisms within firms to make sure 
that you do not have this kind of transgression of other 
regulatory areas.
    The final thing I would say on this is, I am not an expert 
in commodities law, but, again, as I read the summary of what 
you had produced, I began to wonder whether there is a gap in 
regulation more generally, whether there are some things, such 
as some of the things you describe in some of these case 
studies, that at present no U.S. Government regulatory agency 
has jurisdiction over. I do not know if that is true, but it 
felt to me as though it may be true in a couple of cases where 
there is something that neither the CFTC--it is not energy; it 
is not going to be FERC--nor the SEC is actually able to 
regulate because something is not a future, for example.
    So it could be that you have also uncovered a third agenda, 
which is addressing some of those gaps, whether or not it is 
bank holding companies.
    Senator Levin. Well, one of our recommendations I think 
fits very closely to what you have just been talking about. 
This is a bipartisan recommendation, No. 8 of our Report: 
Financial regulators should ensure that large traders, 
including financial holding companies, are legally precluded 
from using material non-public information gained from physical 
commodities activities to benefit their trading activities in 
financial markets.
    Now, I think that fits very closely with what you just 
said.
    Mr. Tarullo. I think it does, Senator.
    Senator Levin. And Recommendation No. 11 would be or is 
that the Office of Financial Research should study and produce 
recommendations on the broader issue of how to detect, prevent, 
and take enforcement action against all entities that use 
physical commodities or related businesses to manipulate 
commodity prices in the physical and financial markets.
    Will you take a look also at that recommendation and give 
us a reaction to that, if you would?
    Mr. Tarullo. Sure, absolutely.
    Senator Levin. Because as you have just pointed out, it 
just seems like every day there is another example of market 
manipulation, and you mentioned, I believe, interest rates and 
foreign exchange rates and energy prices. Now you can add 
aluminum. And these too-big-to-fail banks that have access to 
the Fed's discount window and near-zero borrowing costs are 
engaging in the manipulation of numerous markets, and each one 
of these falls under the oversight of a different regulator, 
technically. But you are the only constant regulator we have, 
the Federal Reserve, and your willingness to get in to make 
sure that regulations are abided by, even if those regulations 
are regulations of your, as you put it, sibling agencies, could 
be a very important step, because if banks do not do that, then 
their safety and their soundness could be impacted if either 
there is no regulation, which may be the case, as you have just 
referred to, or if the regulations of other agencies either 
have gaps or are not lived up to. So that commitment on your 
part to look at this and to think about that possibility is 
very important.
    We have a situation which is totally unacceptable to me, 
and that is that in the area of commodities, which do not have 
the same regulation as stock, and are not subject to the same 
rules about inside information, for instance, as is true in the 
stock market, with the SEC looking at misuse of inside 
information, that does not exist in the same way, at least, in 
the commodities area. The information used in the commodities 
area was not regulated because that information started a 
hundred years ago with a farmer trying to calculate how big a 
crop he was going to have. That world is totally upside down 
now. Now 70 percent of the transactions are speculative. They 
are not by the end users. It used to be 70 percent of the 
transactions and future contracts were by people who actually 
were going to use something. Now it is 30 percent. So the 
speculators have taken over, which is their right, but it is 
also our right as a government to make sure that information 
which they gain is not misused, just the way we take steps to 
make sure inside information is not misused. And it is very 
important that the Fed become much more aggressive and 
interested in making sure that the possibilities here do not 
become real and that the real abuses are not accepted so that 
the safety and soundness of our banks, for instance, is not 
ultimately at risk, nor is the consumer taken advantage of.
    Mr. Tarullo. Senator, do you want a quick reaction to that?
    Senator Levin. Sure.
    Mr. Tarullo. One of the things that Congress did in the 
Dodd-Frank Act was to substantially both change and give a 
message to agencies for further change on interagency 
cooperation and interagency coordination. The systemic risk and 
financial stability mandates of the Dodd-Frank Act are already 
occasioning the kinds of discussions between the market 
regulators on the one hand and the banking regulators on the 
other that did not take place very often prior to the financial 
crisis. We now have a formal interagency group of regulators 
that can look at gaps in the regulatory structure.
    So my immediate reaction is that it would be a good idea 
for the relevant agencies, including the Fed and OCC because of 
our involvement with banks, but also the market regulators, to 
take a look at exactly this issue of how regulations are 
expected to be complied with throughout an organization and 
whether there are any lacunae in the regulatory structure that 
might bear a recommendation for action.
    Senator Levin. I think it was your study which pointed out 
some numbers as follows, the Fed study: That financial holding 
companies typically have a capital ratio of 8 to 10 percent, 
where oil and gas companies, for instance, have capital ratios 
exceeding 40 percent. The end result of that is that due to 
cheaper financing costs and lower capital ratios, which I have 
just mentioned, financial holding companies can nearly always 
undercut any non-bank competitor.
    Now, we saw examples of that type of unfair competition in 
our investigation. Morgan Stanley used shell companies called 
Wentworth to construct a compressed natural gas plant in direct 
competition with a company called Emera; and where Emera had 
proposed building a compressed natural gas plant to export 
9,000 billion cubic feet of gas per year, Morgan Stanley 
proposed a plant to export 60 billion.
    Senator Levin. I misspoke there. The private company had 
proposed building a plant to export 9,000 cubic feet of gas; 
Morgan Stanley proposed a plant to export 60 billion cubic 
feet.
    Now, I am guessing that Morgan Stanley had a whole lot more 
money than Emera to invest and could do it with less capital 
and less financing costs, and Emera just simply could not 
compete with that, and I am wondering if that is a concern of 
yours, Governor Tarullo.
    Mr. Tarullo. Well, I think what may lie behind some of 
those capital numbers you cite is, again, the concern about 
catastrophic risk and potential risks associated with some of 
these activities.
    A centerpiece of the analytic work that the Fed staff has 
been doing over the past year and a half or so has been on 
precisely that point. And, of course, what that translates into 
is questions about the appropriate risk weights that should be 
assigned to certain kinds of activities. So as you know, in 
Basel III and some of the other changes we have made in capital 
requirements, part of it has just been upping the ratio; part 
of it has been saying, wait a second, there are a lot of asset 
classes that were riskier than existing risk weights would have 
suggested.
    So a key part of our review has been precisely around this 
issue of are risk weights appropriate, reflecting in particular 
the potential for catastrophic loss. And I expect that that is 
the kind of work which will come to fruition in the not too 
distant future.
    Senator Levin. Mr. Gasteiger, let me turn to you for a few 
moments, and then we will have a few more questions as well, 
for Governor Tarullo.
    You have described in your testimony electricity 
manipulation cases involving three financial holding companies: 
Barclays, Deutsche Bank, and JPMorgan. And in each of these 
cases, very different types of manipulative schemes were 
employed.
    Now, one of the messages, I would think, from those cases 
is that there are lots of ways to abuse the system, and 
regulators have to police a lot of different aspects of the 
electricity markets to catch wrongdoing. Would you agree with 
that?
    Mr. Gasteiger. Yes, I would, Mr. Chairman.
    Senator Levin. And where does the manipulation case that 
FERC brought against JPMorgan stack up in terms of significance 
and size of manipulation compared to other cases that FERC has 
brought?
    Mr. Gasteiger. Mr. Chairman, the JPMorgan case would be the 
largest settlement to date that the Commission has gotten under 
its EPAct authority.
    Senator Levin. And it is my understanding that independent 
system operators in California and Michigan had never before 
witnessed the degree of blatant manipulation and gaming 
strategies that JPMorgan used to try to profit from its power 
plants. Is that correct?
    Mr. Gasteiger. I think it is safe to say that the schemes 
particularly in California were more numerous than anything 
that I am aware of having seen before.
    Senator Levin. Is it also true that because of JPMorgan's 
manipulative bidding strategies, the independent system 
operators in California and Michigan had to revise the way they 
allow companies to bid on electricity in California and 
Michigan?
    Mr. Gasteiger. Yes, it is true; several tariff filings had 
to be made to make changes to the markets.
    Senator Levin. And with regard to the JPMorgan 
manipulations that resulted in a $410 million settlement, it 
began with the hiring of one new employee, is that correct, a 
man named John Bartholomew, who advertised in his resume that 
he had identified a ``flaw'' in the market mechanism, make-
whole payments, that is causing CAISO to--is that the way it is 
pronounced, CAISO?
    Mr. Gasteiger. We say CAISO.
    Senator Levin [continuing]. To misallocate millions of 
dollars. In other words, he in essence believed that you could 
profit by gaming the system rather than from selling 
electricity at market rates, and in a matter of hours of 
sending in his resume, the head of JPMorgan's Houston office, 
Mr. Dunleavy, instructed others to get him in ASAP. Is that 
what your investigation found?
    Mr. Gasteiger. Yes, Mr. Chairman, that is correct.
    Senator Levin. And there are two things that I find 
incredible about this: The first is that anyone would advertise 
in a resume that they know about a flaw in the system, 
signaling that they are ready and willing to exploit that flaw; 
and, second, that somebody would hire the person sending that 
signal. The enforcement staff of FERC found that between 2010 
and 2012, JPMorgan engaged in 12 types of improper bidding 
strategies. Is that correct?
    Mr. Gasteiger. That is correct, Mr. Chairman.
    Senator Levin. Is it also true that the FERC staff 
discovered some of these schemes during its investigation and 
brought them to the attention of JPMorgan and that JPMorgan did 
not stop the manipulative activity but instead developed new 
schemes?
    Mr. Gasteiger. That is correct.
    Senator Levin. And in one of these manipulative schemes, 
JPMorgan traders submitted bids that offered to sell 
electricity at rates well below JPMorgan's cost to generate 
electricity, which meant that the offers usually lost money 
when accepted, and JPMorgan was willing to make those 
artificially low offers, sort of like a loss leader, so that it 
could then participate in certain ``make-whole'' payment 
mechanisms that could end up generating payments well in excess 
of the expected losses. Do I have that right so far?
    Mr. Gasteiger. Yes, Mr. Chairman.
    Senator Levin. And those make-whole payments allowed 
generators to be compensated at above-market electricity prices 
to provide an incentive for plant owners to participate in the 
bidding auctions and ensure grid reliability. Is that correct?
    Mr. Gasteiger. Yes.
    Senator Levin. And so JPMorgan used its bidding strategies 
to more than make up for the money it lost at market rates, 
frequently receiving in the end more than twice its costs 
because of the make-whole mechanism.
    Mr. Gasteiger. That is correct.
    Senator Levin. And in the end, JPMorgan's bidding schemes 
caused California and Michigan electricity authorities to pay 
approximately $124 million in excessive payments to JPMorgan.
    Mr. Gasteiger. That is correct.
    Senator Levin. Now, we have an exhibit, which is a copy of 
an email--and we will get you the number of that exhibit in a 
minute. It is a copy of an email that JPMorgan sent to several 
colleagues in the midst of abusive bidding schemes. It contains 
an image of Oliver Twist extending a bowl, and the subject 
line: ``Please, sir, more BCR.'' Now, the BCR refers to the 
make-whole payments that JPMorgan was using to unfairly profit 
from the system. And I got to tell you, it is mighty offensive 
to me that JPMorgan portrays its actions as a joke, comparing 
itself to a poor orphan needing charity when it was ripping off 
consumers. Did that email offend you?
    Mr. Gasteiger. I agree it is a striking image.
    Senator Levin. Is it an offensive use?
    Mr. Gasteiger. I would agree with that characterization.
    Senator Levin. Now, I understand that in connection with 
the CAISO and FERC investigations into JPMorgan's manipulative 
bidding schemes, JPMorgan refused to hand over a number of 
documents, claiming attorney-client privilege, but it later 
turned out they were not privileged at all. Can you describe 
what happened in that regard? And what was the penalty that 
FERC imposed in a response?
    Mr. Gasteiger. There were disagreements between us and 
JPMorgan throughout the course of the investigation over access 
to documents. Ultimately there was a proceeding--this really 
actually dealt more with disagreements that JPMorgan was having 
with the California ISO market monitor with respect to access 
to information as part of its investigation. In a separate 
proceeding that was not directly part of the enforcement 
investigation, the Commission ultimately suspended JPMorgan's 
market-based rate authority for a period of 6 months.
    Senator Levin. Now, all three of the financial holding 
companies that we looked at--JPMorgan, Goldman, and Morgan 
Stanley--were active in power plant activities, using the Fed's 
complementary merchant banking or grandfather authority. Did 
you get a sense, Mr. Gasteiger, that these financial holding 
companies really want to own or operate electric power plants, 
or is it more likely that they are in the business for 
financial gains, for the financial trades end of their 
business, to get non-public information that can assist them in 
their trading operations?
    Mr. Gasteiger. In the limited number of cases that we 
worked on, particularly JPMorgan, clearly they were using the 
ownership in order to engage in the type of market activities 
that we were investigating. And in that particular instance, 
because the units were not themselves profitable, they were 
looking for ways to try and do that, that is what led them to 
develop the schemes that they wound up implementing in CAISO.
    Senator Levin. And what would be the relationship then to 
the financial trading end of their businesses?
    Mr. Gasteiger. Well, because of the ownership of the 
plants, that led them to engage in those financial trading 
activities within those markets.
    Senator Levin. From what you have seen in enforcement cases 
brought by FERC, the financial holding companies have the same 
commitment to understanding and following electricity-related 
regulatory regimes as, say, utility companies that are focused 
on the electricity business, or are they more prone to try to 
game the rules?
    Mr. Gasteiger. Well, Mr. Chairman, we have not undertaken 
any type of a real study, but on the limited sampling that we 
have, certainly as you indicated earlier, as my testimony 
indicates, financial institutions have, in fact, been involved 
in the most significant cases that the Commission has brought 
through its enforcement authority.
    Senator Levin. And would that seem then to fairly imply 
that they do not have the same commitment from that experience 
to following the regulatory regimes that are supposed to govern 
electric utilities as those electric utility companies that are 
focused on the electricity business have? From that limited 
experience, is that a fair statement?
    Mr. Gasteiger. I think one could perhaps draw that 
conclusion.
    Senator Levin. Now, FERC has been active in going after 
manipulation in the electricity markets, and we have not seen 
the same level of activity in other markets, such as for crude 
oil, aluminum, or copper. Now, part of that is that no Federal 
regulatory agency has been assigned explicitly the 
responsibility to prevent price manipulation in the same way as 
FERC, especially in the purely physical markets. But it seems 
to me that FERC's experience in uncovering manipulative schemes 
as well as other enforcement cases that we have seen suggests 
that too many Wall Street financial holding companies are ready 
and willing to engage in market manipulations and will do so 
until they are caught.
    Governor, does the Federal Reserve have authority to bring 
a market manipulation case? Or is that basically for other 
agencies?
    Mr. Tarullo. Market manipulation as such would not be 
within our ambit, Senator, although when one of the other 
regulators with authority is able to bring an enforcement 
action, we are often able to cooperate with them to require 
certain remediation measures in compliance within the firm and, 
where appropriate, to impose penalties on the firm for 
violation of safety and soundness and other compliance 
activities.
    Senator Levin. And if other agencies do not bring 
enforcement action where there is clear evidence that 
enforcement action is appropriate, are you in a position, as 
someone having overall responsibility, to talk to other 
agencies about why enforcement actions against manipulation are 
not taken?
    Mr. Tarullo. Yes, that is right. There are two distinct 
issues. One is if we uncover activity which is arguably--it 
does not even have to be definitely, but arguably a violation 
of law or the regulations of a sibling agency, we absolutely 
will initiate contacts with them. If it is a circumstance in 
which nobody has--people conclude that nobody has authority, 
then it is a somewhat different situation and one that I was 
alluding to earlier where it may be that there need to be some 
recommendations to Congress as to how to fill in some of those 
gaps.
    Senator Levin. We would ask you, Governor, to take a look 
at our recommendations. I do not think we want banks that are 
under your authority and have advantages because of their 
connection to the Fed to engage in manipulative activities. I 
do not think that you want it. I do not think anybody should 
want it. And if there are gaps--and there are--in the way 
manipulative activities are taken out or stopped because there 
is an absence of regulation or a failure of regulation, we 
believe it is essential that those gaps be filled. We cannot 
tolerate what we saw with the Goldman warehouses in Detroit, 
for instance. It is totally intolerable.
    And so if you would take a look at our recommendations in 
the Report and tell us--not now but for the record--in addition 
to what you have just told us, what the Fed might do to help go 
after the manipulation in these banks that have advantages from 
the Fed, we would appreciate it.
    Mr. Tarullo. Of course.
    Senator Levin. Now, one of the most significant things that 
we saw, Governor, in our Report and investigation is that there 
is no overall size limit on the amount of physical commodity 
activities for banks and their holding companies. For instance, 
JPMorgan used loopholes, exclusions, and valuation techniques 
to stay under the Fed's limit. And as a result, in September 
2012, JPMorgan had physical commodity holdings of $17.4 
billion, which was equal to 12 percent of its Tier 1 capital, 
at the same time it told the Fed that it had $6.6 billion, or 
4.5 percent of its Tier 1 capital. The discrepancy between 
those two numbers is stark, and it shows just how ineffective 
the current limits are.
    Physical commodities, as you know by heart, may be held 
under complementary authority, in which case they are subject 
to the 5-percent Tier 1 capital limit; under grandfather 
authority, in which case they are subject to a limit of 5 
percent of total consolidated assets; and under merchant 
banking authority, they have no limit at all, but they are 
governed by the other criteria in that authority. None of this 
counts anything against what is held by the banks under the 
authority of the OCC.
    Now, this would look to me like a problem that seems ready 
for rulemaking. In Section 5(b) of the Bank Holding Company 
Act, the Federal Reserve has broad authority ``to issue such 
regulations and orders as may be necessary to enable it to 
administer and carry out the purposes of this chapter and to 
prevent evasions thereof.'' And the Federal Reserve has used 
its broad powers in the past. It previously had a limit on 
merchant banking activities, which it removed via a rulemaking 
in 2002. It also imposed the 5-percent complementary authority 
limit without statutory direction. So the authority would see 
to be there for the Fed to impose an overarching limit pursuant 
to its broad authority under the Bank Holding Company Act.
    Given the significant differences in the risks posed by a 
4.5-percent interest in commodities versus a 12-percent 
interest, do you believe that the Bank Holding Company Act 
gives the Fed sufficient legal authority should it choose to 
enact it or use it, do you have the authority, should you 
choose to enact an overarching limit on the physical commodity 
holdings of a financial holding company?
    Mr. Tarullo. Let me put aside subsection (o) for a second, 
authority under subsection (o). I think with respect to--and I 
want to give my own current understanding, not having consulted 
with our Legal Division on this, but I would suspect that we do 
have authority to put an overall limit, certainly as we already 
have on complementary, and quite possibly on merchant banking 
activities as well.
    With respect to the broader issue, when you have a Section 
4(o), my initial reaction would be that we probably would not 
have authority to bring down below the congressional 5-percent 
level the amount of activity--and that is 5 percent of assets, 
too--the amount of activity in a Section 4(o)-eligible firm. 
But we could certainly say that we would not allow any more 
than that.
    So, once again the Section 4(o) provision creates a 
different circumstance for those two firms really than for 
anybody else, but more broadly, I think we do have pretty good 
authority.
    Senator Levin. Can you get back to us on the question of 
whether or not you have the authority to put an overall limit 
that would then be the combination of those sub-limits and 
those sub-authorities?
    Mr. Tarullo. Right.
    Senator Levin. Can you check with your Legal Division and 
get back to us?
    Mr. Tarullo. I would be happy to. And as you know, and I 
think it was in the Report. You probably know it even if it is 
not in the Report. The difference between 5 percent of capital 
and 5 percent of assets is huge.
    Senator Levin. And would you also let us know for the 
record whether or not the Fed believes that the Bank Holding 
Company Act provides sufficient authority to place a reasonable 
size limit on a financial holding company's physical commodity 
activities overall to limit the commingling of banking and 
commerce?
    Mr. Tarullo. Sure, we can do that, too.
    Senator Levin. In 1997, the Federal Reserve issued a 
regulation which said in part that bank holding companies can 
treat copper as bullion, treating it the same way as gold and 
silver. But for more than 100 years, commodity markets 
throughout the world have treated copper as a base metal, not a 
precious metal, valued for its uses in industry rather than as 
a medium of exchange like gold or silver. The only thing that 
changed was its regulatory status. Designating copper as 
bullion has made it exempt from size limits that would 
otherwise apply and from reports that are required of financial 
holding companies to be made to the Federal Reserve about the 
dollar value of their physical commodity holdings.
    At the same time, our investigation has shown that JPMorgan 
and Goldman engage in massive copper transactions and actively 
build and reduce their massive copper inventories, which at 
JPMorgan peaked at $2.7 billion and at Goldman reached $2.3 
billion. Now, what is the rationale for exempting copper from 
size limits and commodity holding reporting requirements? How 
is it risk-free?
    Mr. Tarullo. Well, Senator, that was an interesting 
decision, and my understanding--because I asked about it, 
because that was long before I got to the Fed, and what I was 
basically told was it followed on an OCC decision that made a 
similar determination for holdings of copper within national 
banks, and so what it appears to me as is the Fed proceeded to 
say, if they are going to be doing this stuff, we do not want 
to force it into the banks, so permit it in the holding company 
more generally.
    Having said that, I think I cannot offer, again, a Board 
position on this, but I just would observe that I think a 
pretty good case could be made for the proposition that copper 
is different from palladium and copper does seem to be 
basically an industrial metal. And so it is something that 
would bear revisiting, I think.
    Senator Levin. Will you talk to the OCC about the 
possibilities of making a change in that regard?
    Mr. Tarullo. I will.
    Senator Levin. Really, there is huge risk with this kind of 
ownership and inventory at billions and billions of dollars, 
particularly since it has no business in that category. So if 
you will talk to the OCC, we would appreciate it. Will you do 
that?
    Mr. Tarullo. Sure.
    Senator Levin. Now, in 1997, that is covered. A question 
about merchant banking. Gramm-Leach-Bliley indicated that it 
intended to allow merchant banking investments only if they 
were financial in nature. That is where the bank acts as a 
passive investor, does not try to run the company it buys, and 
holds it for resale to make money off the equity investment. 
And I think you have talked about that this morning. That is 
its purpose.
    From what we have seen, it looks like some of these big 
banks are not always following the rules. First, there is a 
lack of information. The merchant banking reports that the Fed 
gets now and makes public has such high level aggregate data 
that they are ineffective as an oversight tool. They do not 
even contain a list of the merchant banking investments at a 
bank, so it is nearly impossible to tell if all the merchant 
banking investments are included.
    So I have two questions. How can a regulator police an 
activity without that kind of basic information? Let me start 
with that one.
    Mr. Tarullo. You cannot do it as it should be done, and I 
think, Senator, that is one of the reasons why the reporting 
issue, again, has been another principal topic of internal 
discussion about the kind of changes we may make.
    Senator Levin. And it is not enough that the additional 
information about these activities just be required. It has got 
to also be made public.
    Mr. Tarullo. As with all reporting, in any changes we make, 
we will look to see what the maximum transparency we can 
provide without encroaching on genuinely business proprietary 
information.
    Senator Levin. That would be helpful. Another issue is the 
issue of whether financial holding companies are getting 
involved in the routine management of the companies that they 
buy. We saw Goldman designate its commodities arm, J. Aron & 
Company, as the exclusive marketing agent for its coal mines, 
selling 100 percent of the coal on a day-to-day basis. It also 
appears Goldman was approving coal mining plans and key 
infrastructure investments. Goldman's ownership of its 
warehouse company, Metro, raises similar concerns.
    So they are exercising a whole lot of management control 
over Metro, as we saw yesterday, and Metro's board is composed 
exclusively of Goldman's employees, and they were approving 
freight incentives and this merry-go-round shenanigans and 
policies related to queue length. So that is a second set of 
issues.
    How do you get at that issue as to whether or not they are 
getting too deeply involved in the day-to-day management of the 
companies that they buy, which is inconsistent with the rules 
of merchant banking?
    Mr. Tarullo. So I think probably two things, Senator. One 
is compliance with current rules and guidance, which is part of 
this overall issue I was referring to earlier. And second is 
the question as to whether we should revisit the actual rules 
and guidance that have been put out. I do not want to get too 
biographical here or autobiographical here, but as you know, I 
was teaching law, teaching banking regulation after Gramm-
Leach-Bliley came out. And as you know from law school, the way 
you teach these things is you give the kids a hypothetical and 
you say, ``OK, where is the line here? And how do you draw the 
line?'' And, not surprisingly, good law students can make the 
arguments on both sides, which suggested to me at the time, and 
I think I have been reminded of this by some of the work that 
your Subcommittee has done, that it may be worthwhile taking a 
look at those merchant banking guidelines, not just for 
commodities but for all activities, actually.
    Senator Levin. We are going to ask you and the Fed to take 
a look at the activities of Goldman and the others that we have 
in our Report, in this merchant banking area. And I cannot 
speak for Senator McCain yet because I have not talked to him 
about this, but I will ask him if he would like to join in a 
letter to you specifically on this issue, which is on top of 
the recommendations which are in our Report.
    Mr. Tarullo. OK.
    Senator Levin. The third set of concerns involves 
enforcement. JPMorgan claims to be holding three power plants 
as merchant banking investments, but only after striking out 
efforts to hold them as complementary activities. So first it 
was supposed to be a complementary activity. Then they shifted 
over to merchant banking as the justification and the 
rationalization for the authority.
    Documents from the Fed indicate that JPMorgan promised in 
2011 to sell all three power plants. Three years later, 
JPMorgan still has all three.
    So, first question, what is your view of how banks have 
been using the merchant banking authority with respect to 
physical commodities?
    Second, what plans, if any, does the Fed have with respect 
to the problems of inadequate information, bank involvement 
with routine management, bank failure to sell merchant banking 
assets, after promising to do so?
    Mr. Tarullo. That, I think, gets at two of the issues that 
you have raised. It sort of combines two things you have 
already raised, Senator. One is the information and reporting, 
and second is the set of expectations around merchant banking 
and the understanding and compliance with the understanding of 
what it means to have a passive investment.
    As you know, there can be legitimate questions with what is 
a passive investment when one is talking about a major action 
that affects the whole value of the investment. But when you 
are talking about information flows back and forth on a routine 
basis, that does not seem to go to the heart of the protection 
of an investment for its own sake, which is supposed to be held 
as sort of a profit-making proposition over time.
    Senator Levin. Finally, Goldman has not allocated any 
capital to cover potential losses from a catastrophic event. 
Their argument is that it does not have capital allocated to 
these physical commodity activities of theirs because it cannot 
be held liable. Goldman says its policies and procedures are 
adequate and that it will always follow them and that no court 
anywhere in the world would find otherwise. Earlier today, we 
had a catastrophic loss expert express grave concerns over 
their assumptions. Should Goldman be allocating capital to 
cover potential losses from a catastrophic event?
    Mr. Tarullo. Actually, Senator, we will look with interest 
at that testimony that you heard this morning, but, again, as I 
mentioned earlier, that issue of the potential exposure is 
really quite central to what we are doing now. And to be 
honest, that is one of the things that has occasioned the most 
analysis and continues to occasion the analysis. And I know the 
Board of Governors, will want some good answers on that as we 
proceed to think about exactly what is going to be in the 
Notice of Proposed Rulemaking next spring.
    Senator Levin. Will you take a look then at the testimony 
of Goldman in that regard in this hearing yesterday?
    Mr. Tarullo. Sure.
    Senator Levin. Because it goes right to what you call a 
central issue.
    Gentlemen, we thank you for your service, for your 
regulatory work, for your appearance here today. We have some 
idea as to what your schedules are, and your appearance, your 
cooperation with the Subcommittee is very much appreciated. So 
go get them.
    Mr. Tarullo. Thank you, Mr. Chairman. And, again, 
congratulations.
    Senator Levin. Thank you.
    [Whereupon, at 12:21 p.m., the Subcommittee was adjourned.]
    
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