The CFTC has released its new position limits proposed rule. It is an improvement on the earlier version, but still lacks a serious logical and empirical basis, try as the agency might to muster up a justification.
It is an improvement primarily for two reasons. First, it has more sensible aggregation standards. Whereas in the 2011 proposed rule, an entity would have to aggregate positions in every entity of which it had a 10 percent or greater stake in order to determine its overall position for the purpose of determining compliance with the limit, now that threshold has been increased to a more reasonable 50 percent.
Second, the new proposal does not include “class limits”. Under the 2011 rule, swaps and futures were treated as different classes, and long positions in one class were not offset against economically equivalent short positions in the other. Thus, a firm could have a zero economic exposure because a swap position was offset by an equivalent futures position, but it could be in violation of the position limit. This made no economic sense, and was likely a surreptitious way of hamstringing swap dealers’ ability to enter into transactions with the massive passives who bother Chilton (and Gensler) so much. Along with many others, I submitted comments criticizing this approach, and lo and behold, it has disappeared. Now position limits are based on net exposures, meaning that a swap dealer can hedge a swap entered into with a customer using futures, in any quantity, without falling afoul of the position limit rule.
Unfortunately, not all nonsensical features of the 2011 proposal have vanished along with the class limits. Most notably, the 2013 proposal not only includes, but extends the scope of, the “conditional limit” on positions held during the last 5 days of the a contract month. Under this provision, the limit on delivery-settled contracts during the last 5 days is 25 percent of the deliverable supply, but the limit on otherwise identical cash-settled contracts is 5 times larger (i.e., 125 percent of deliverable supply).
As I commented in 2011-based on a paper I published in the Journal of Business in 2000-this makes no economic sense. A trader that is long a delivery settled contract can manipulate by standing on excessive deliveries, thereby effectively buying up too much of the deliverable supply. But a trader that is long a cash-settled contract can have the same price impact by buying the same quantity in the cash market. Under the conditional limit rule, the holder of the cash-settled contract can get 5 times the benefit from this price impact as the holder of a delivery-settled one. The logic of the 25 percent of deliverable supply limit implies that the CFTC believes that taking delivery of something less than 25 percent of deliverable supply permits the long with a futures position of 25 percent of deliverable supply to manipulate profitably. This means that the holder of a cash-settled position equal to 125 percent of deliverable supply can manipulate far more profitably.
This rule is passing strange especially considering that the CFTC has filed a manipulation claim against a trading firm-Parnon-that allegedly used cash market purchases to distort futures prices. The strategy that the CFTC finds illegal in Parnon would benefit both cash-settled or delivery-settled contracts. Under the conditional limit rule, the agency provides an incentive for the holders of cash-settled contracts to engage in such strategies.
What’s more, whereas the 2011 rule would have potentially constrained such strategies by limiting ownership of physical supplies by the holder of a cash-settled derivatives position to 25 percent of deliverable stocks, the new rule imposes no such constraint. Instead, it imposes a requirement to report cash market holdings, and hopes that market oversight officials at exchanges will intervene if it looks like a manipulation is in progress.
None of this makes economic sense, and is in fact logically contradictory. What makes it worse is that whereas in the 2011 proposal the conditional limit applied only to natural gas futures, it now applies to all contracts subject to position limits.
A big chunk of the proposal is a long-winded justification of the rule, in an effort to overcome the legal challenges that saw a federal court reject the 2011 proposal. It seems to me that the commission is merely restating the arguments that failed in court, so I don’t really see how this helps.
A couple of things struck me as quite interesting. In both the 2011 and 2013 proposals, the CFTC utilized the Hunt silver case and the Amaranth case as examples of the kind of destabilizing conduct that the rule would prevent. But whereas the 2011 rule argued that large leveraged positions (like those held by the Hunts) posed a threat to market stability, the word “levered” does not appear in the 2013 proposal’s discussion of the kinds of positions that are particularly worrisome.
This is interesting to me, in part, because my criticism of the 2011 rule as over-inclusive focused on the leverage issue. If leverage is the problem, I argued, why impose the rule on unlevered positions, like those held by ETFs (which are fully collateralized) or real money investors? If leveraged positions were the real problem, the rule was over inclusive because it would apply to unlevered positions too. Arguably, this argument had some impact, as all reference to the unique dangers posed by leveraged positions disappeared between 2011 and 2013.
But dropping the argument doesn’t eliminate the problem. The CFTC has not shown how large, unlevered positions with trading decisions made by many individuals (as is the case with ETFs like USO or USNG) pose a threat to market stability in the way the Hunts did, or can cause unwarranted fluctuations in commodity prices.
Relatedly, the 2011 rule argued that position limits would reduce systemic risk. I commented that it is wildly implausible that even a disorderly liquidation of a large position in a small market could destabilize the financial system. Would a disorderly liquidation in the milk futures market really pose a threat to world financial stability? Seriously?
And wouldn’t you know, the 2013 justification does not mention systemic risk.
More generally, the two-two, mind you-cases that the CFTC puts forth to justify its imposition of limits is highly unpersuasive. I regularly use the Hunt case as an example of how speculation can distort prices. Or, should I say, the example. It is pretty much the exception that proves the rule. It occurred over 33 years ago.
Talk about ancient history. When do we get to the part about the Trojan War?
The commission’s analysis, such as it is, of the Amaranth episode relies heavily on a report from the Senate Subcommittee on Investigations. This report in no way demonstrates that Amaranth distorted prices, or that the liquidation of its position when it ran into financial trouble caused unwarranted price fluctuations.
A more plausible story is that Amaranth took a huge bet on natural gas spreads based in large part on a view that 2006 would be another big hurricane season. When September came with no hurricanes, and none in prospect, spreads collapsed and Amaranth lost a lot of money. The loss does not demonstrate that Amaranth distorted spreads, just that it took a big bet on these spreads, and bet wrong.
It’s not the job of the regulators to prevent market participants from losing big, if those big bets do not distort prices, either when they are initiated, or when they are liquidated. (In the event, Amaranth’s positions were assumed-quite profitably-by JP Morgan and Citadel, with no notable dislocation in market prices.)
Moreover, even taking the commission’s view, the two episodes do not support the level of limits it proposes to impose. The 2013 limits (like those proposed in 2013) would limit an individual firm to between 2.5 percent and 10 percent of open interest: the bigger the contract, the smaller the limit as a fraction of open interest.
But the Hunts and Amaranth had around 40-50 percent of the open interest in big contracts-at least 4 times, and arguably close to 20 times the limits the commission has proposed. So even if you could argue that a 40 percent position could distort prices, or result in unwarranted price fluctuations when the position is liquidated, that doesn’t imply that a 10 percent or 5 percent or 2.5 percent of open interest position would. There is thus a huge gap between the sizes of the positions that the CFTC claims, based on historical experience, distort markets, and the sizes of the limits it is proposing.
This is related, in a way, to cost-benefit analysis. The agency is required to compare the costs and benefits of the regulation, but its analysis is perfunctory, at best. In particular, it does not provide a persuasive cost-benefit analysis of any major attribute of the rule, most notably of the size of the limits. It basically adopts a precautionary principle approach: big positions could cause big problems, so they should be constrained as a precaution. It asserts-but does not show-that liquidity will not be unduly restricted as a result. This is insufficient.
Chilton-who has announced his departure-has claimed that the new proposal is immune to legal challenge. I wouldn’t be so sure. Even if the court accepts the verbose arguments relating to the commission’s obligation-or not-to make a finding that the limits are necessary, the agency is still vulnerable on the adequacy of its cost-benefit analysis. Judge Wilkins never ruled on this issue in his 2012 decision, and in my opinion the CFTC is still vulnerable here.
It is not just the cost-benefit trade-off of the rule overall, but the specific choices made. Most notably, the size of the limits needs to be justified better on a cost-benefit basis. Similarly, the conditional limit needs to be so justified: and I’ll say that it is impossible-impossible-to do so, if one is constrained to using, you know, rigorous economics.
The rule is unbelievably long. Five-hundred thirty three double spaced pages. 533. (395 pages excluding appendices and attachments.) I have read most of it, but have to spend more time digesting the bona fide hedging portion of the rule. More on that later.
Oh. There are 846 footnotes: this is where the land mines lurk. And there was much rejoicing. By the lawyers, anyways.