The Commodity Exchange Act of 1936 and The Creation of CFTC

The Commodity Futures Trading Commission (CFTC) was created in 1974 to enforce laws and monitor compliance in commodities and futures trading. Its roots, however, can be traced back to 1936, when the Commodity Exchange Act was established to regulate the grain market and prevent manipulations. The act later expanded to cover all commodities and futures trading activities, leading to the creation of the CFTC. With its first members and chairman selected in 1975, the CFTC began its full operation, dedicated to protecting investors and traders.

What is the CFTC?

The Commodity Futures Trading Commission (CFTC) is a federal government agency that regulates derivatives markets, swaps, futures, and options in the U.S. Anyone who wants to participate in the commodity futures market must be licensed by the CFTC. The agency’s oversight helps ensure fair competition between all market participants and monitors for fraud, market manipulations, and other illegal activities. 

In addition to monitoring the market, the CFTC oversees brokers, commodity pool operators, trading advisers, and other participants. The agency also monitors stakeholders’ activities outside of the market to ensure they act in the best interests of their clients.

The History of CFTC

The Commodity Exchange Act of 1936 established the CFTC, which differs from the 1922 Grain Futures Act, which only regulated the trading of agricultural products. Today, the CFTC regulates all futures, swaps, and some options. Below is a timeline of events and activities that resulted in this independent regulatory agency.

• 1922 — For many decades, agricultural commodities were traded in the U.S., and in 1922, the Grain Futures Act was enacted by the 67th United States Congress. It was a bill to remove obstructions and burdens placed on the interstate grain markets; it helped in regulate transactions on future exchanges.

• 1936 — Commodity Exchange Act of 1936 by the 74th United States Congress required all futures and commodity options to be traded on organized exchanges; it removed the limitation of the 1922 grain future act that was restricted to agricultural commodities.

• 1974 — While the Commodity Exchange Act of 1936 was an improvement, its provisions allowed the trading of options and futures that were not listed. This led to many losses in the early 1970s, and it warranted the Commodity Futures Trading Commission Act of 1974, which created CFTC.

• 1975 — The CFTC was created to monitor the abuse of previous Acts, regulate market activities, and penalize noncompliant participants up to $100,000 per violation.

What Does the CFTC Regulate?

The mission of the CFTC is to promote the integrity, transparency, fairness, and vibrancy of U.S. derivatives markets. To achieve this, the agency enforces rules that protect investors and traders while regulating derivative markets and related entities. Additionally, the CFTC regulates designated contract markets and swap execution facilities to ensure proper market control and surveillance of trading organizations.

What are Derivatives?

Derivatives are financial contracts whose values are derived from underlying assets or groups of assets, such as bonds, stocks, currencies, commodities, and market indices. As future-based contracts, derivatives do not have a fixed value as their value varies with market conditions.

Types Of Derivative Contracts

• Futures — This is a financial contract that the buyer purchases an asset at an agreed price on a specific future date. This type of financial contract is usually traded on exchanges, compared to forward contracts.

• Forward — The only difference between this type of financial contract and Futures Contracts is that they are not traded on public exchanges. Instead, they are over-the-counter (OTC) customized contracts between two parties agreeing to buy or sell at a set price on a future date.

• Options — This financial contract provides the market participant the right to be involved in the buying and selling during price fluctuation, but this participant is not under compulsion to purchase or sell the underlying asset at an agreed price. Options can be of two types; Call or Put. A Call Option gives you the right, but not the obligation, to buy the underlying asset at a specified or agreed-upon price, while a Put Option gives you the right, but not the obligation, to sell the asset at a specified price. For example, to buy or sell an option contract, you must be ready to pay a premium price.

• Swaps — These derivative contracts allow cash flow between two parties. Cash flow agreements are based on uncertain or floating variables, such as interest rate swaps, currency swaps, commodity swaps, etc.

Intermediaries Regulated By CFTC

Intermediaries are another type of entity regulated by the CFTC. These individuals or organizations act as agents or participate in derivative markets on behalf of another person or entity. The following is the list of some of the intermediaries under the purview of the CFTC:

• Futures Commission Merchants (FCMs) — This intermediary accepts buy or sell orders for any commodity to be fulfilled on an agreed-upon future date.
• Floor Brokers (FBs) — These individuals or intermediaries are authorized members of the exchange that execute trades for clients on the exchange floor.
• Introducing Brokers (IBs) — These intermediaries have direct relationships with clients but do not perform actual work like floor traders. Instead, they pass the clients’ orders and the execution to other future merchants.
• Commodity Pool Operators (CPOs) — These are money managers overseeing investors’ or clients’ investments in futures and options contracts.
• Commodity Trading Advisors (CTAs) —  Intermediaries such as this offer clients advice regarding purchasing and selling futures contracts, options contracts, and other financial products.
• Agricultural Trade Option Merchants (ATOMs) — These merchants offer agricultural-related options that are not traded on a public exchange or not traded at all.

What Is the Difference Between the SEC and CFTC?

The SEC and CFTC were created to oversee different financial markets under different laws. The SEC originated from the Securities Exchange Act of 1934 and oversees the securities market, while the CFTC originated from the Commodity Futures Trading Commission Act of 1974 and governs the commodities market.

The CFTC Organization

As a government agency, the CFTC answers to the government and Congress. The President appoints five commissioners, confirmed by the Senate and serving staggered terms of five years. This means that not all commissioners are replaced at once. To avoid partisanship, the President appoints one of these five commissioners to chair the board, and up to three commissioners can be from the same political party at a time.

The Operating Divisions of CFTC

Different operating divisions and offices make up the Commodity Futures Trading Commission. The organization has a chairman and commissioners that oversee the day-to-day running of the derivatives regulatory agency. The chairman, commissioners, and other executive leadership offices, including the head of each division, shape the CFTC’s regulatory and enforcement programs. Below is the list of divisions according to CFTC:

Division of Clearing and Risk (DCR)

The Division of Clearing and Risk (DCR) ensures the financial integrity of all derivative market transactions per the Commodity Exchange Act (CEA). The DCR helps the CFTC meet its statutory responsibility of removing systematic risks in the market. By establishing measures, the DCR eliminates systematic risk from the list of risks investors and traders have to worry about in the derivative market. For example, the DCR oversees Derivatives Clearing Organizations (DCOs), DCO clearing members, Futures Commission Merchants (FCM), and other market participants that open the clearing process to more risk.

Division of Enforcement (DOE)

The DCR has a crucial function of supervising and monitoring market participants. On the other hand, the DOE plays a key role in investigating and prosecuting violations of the CFTC’s regulations and the applicable Commodity Exchange Act (CEA).The potential violations subject to investigation by DOE, according to CFTC, include:

• Fraud
• Disruptive trading practices
• False statements to the commission
• The use of a manipulative or deceptive device
• Misappropriation
• False Reporting
• Price Manipulation
• Account violations
• Illegal off-exchange activity
• Failure to make required reports
• Failure to maintain or produce required records
• Registration and fitness violations
• Failure to comply with business conduct standards
• A registrant’s failure to supervise

The DOE requires evidence and relevant information to substantiate an alleged violation or non-compliance. To gather such information, the DOE and other divisions of the commission may use internally developed tools, methods, and means. Other sources of data gathering include:

• Industry self-regulatory organizations (SROs)
• Other governmental authorities
• Victims
• Self-reports
• Cooperating witnesses
• Whistleblowers
• Customers complaints
• Members of the general public

Market Participants Division (MPD)

The Market Participants Division (MPD) is a recent division that emerged in 2020 after the merger of the Division of Swap Dealer and Intermediary Oversight (DSIO) and the Office of Customer Education and Outreach (OCEO). The MPD’s primary objective is to provide efficient and practical oversight of CFTC registrants while ensuring the public receives sufficient information about the derivative markets regulated by the agency. The division closely monitors the activities of SROs and other intermediaries. Under the MPD’s supervision, other intermediaries in the derivatives market include:

• Futures commission merchants (FCM)
• Retail foreign exchange dealers
• Commodity pool operators
• Commodity trading advisors
• Introducing brokers
• Major swap participants
• Swap dealers

This division is further divided into four branches: Chief Counsel Branch, Financial Requirements Branch, Examinations Branch, and Registration & Compliance Branch. The following are the approaches followed by MPD to achieve its mission:

1. Monitor and inspect the activities of intermediaries and designated self-regulatory organizations.
2. Maintain appropriate standards for the registration of intermediaries.
3. Provide expertise to the Commission in the publicity of its rules.
4. Provide concise and timely interpretations and guidance for intermediaries.

Division of Administration (DA)

The Division of Administration (DA) is responsible for the overall management of the CFTC’s resources, including personnel, technology, finance, security, and operations. It ensures the smooth functioning of all sections of the commission and regulates derivatives markets by providing adequate resources for each program and division. The DA develops and implements administrative policies, tracks and evaluates the performance of each program and division, and manages strategic and innovative initiatives.

Division of Market Oversight (DMO)

This division is the commission’s eye on the market, overseeing the exchanges and facilities used in trading derivatives. It also monitors the health and structure of the derivatives markets. DMO develops rules that help the commission promote an efficient, fair, sound, and vibrant market for all participants. DMO is divided into five branches:

1. The Chief Counsel Branch

The chief counsel branch provides legal advice to the division on law and policy issues.

2. The Compliance Branch

This branch assesses and examines the adequacy of exchange and trading platforms for necessary compliance with the commission’s regulations.

3. The Product Review Branch

This branch reviews new and existing exchange-traded derivatives to ensure compliance with the CEA and the commission’s regulations.

4. The Market Review Branch

The Market Review Branch makes reviews and recommendations to the commission about the applications for registrations.

5. The Market Intelligence Branch

In order to spot new trends that pose potential systemic risks to participants and their funds, this branch monitors the health and structure of the derivatives markets. CFTC reports are also produced by this branch, including reports on the commitment of traders (COT).

Division of Data (DOD)

In 2020, the Division of Data replaced the Market Oversight department, which handled everything related to data for the commission. As a result of this new division, decision-making is more data-driven, thereby increasing its accuracy. It also contributes to policy-making throughout the organization. In addition, the DOD helps the commission ensure that all business or enterprise requirements are data-driven, starting with privacy, security, governance, and industry data standards.

The DOD manages the Commission’s data strategy and governance approaches by creating data architecture and centers that foster analytics, visualization, and data storage. With these resources and data availability, the DOD supports the Commission’s strategic objectives through collaboration with other Divisions and Offices of the Commission. Furthermore, the DOD achieves its goals or missions through some activities with the acronym “CITE,” i.e., Collaborate, Integrate, Train, and Execute.

• Collaborate — The division collaborates with market participants, other divisions of the CFTC, and the general industry to ensure data integrity, honesty, transparency, and confidentiality.
• Integrate — The DOD produces a comprehensive outlook of potential future conditions in the derivative markets, which informs policymaking through data-driven approaches. By merging datasets from the Commission with external sources, the DOD gains a better comprehension of economic and market conditions, leading to informed decision-making.
• Train — The DOD promotes the importance of data in the Commission by training personnel on data topics throughout the Commission. The Commission also manages centers of excellence for data storage and participates in technology advisory groups to determine best practices on data handling.
• Execute — The DOD influences operational software development, analytics, and data visualization throughout the Commission.

The Offices of the CFTC

Along with the six divisions listed above, the CFTC has seven additional offices, making it a minimum of thirteen departments responsible for overseeing and regulating the derivatives market through the CFTC. The following are the offices of CFTC:

Office of the General Counsel (OGC)

The Office of General Counsel (OGC) oversees litigation and provides legal support to the Commission and its programs. In addition, the OGC assists with drafting regulations and preparing them for implementation. The office is also home to several programs, including Freedom of Information Act (FOIA), Privacy, Ethics, Secretariat, Library, Records, and E-discovery, which are essential for the Commission’s operations.

Office of International Affairs (OIA)

The Office of International Affairs (OIA) offers technical support to international market authorities and advises the CFTC on global regulatory issues and initiatives. The OIA also serves as the Commission’s representative in public meetings, including the OTC Derivatives Working Group, the International Organization of Securities Commission, and the OTC Derivatives Regulators Group. Additionally, the OIA plays a vital role in coordinating the Commission’s strategic approach to major foreign jurisdictions’ policies and initiatives.

Office of the Chief Economist (OCE)

The assignment of the OCE of the Commission is to carry out diligent economic research and econometric analysis of the derivatives markets. Through the communication of this research and analysis to market participants, the derivatives market becomes more transparent.

Office of Public Affairs (OPA)

The Office of Public Affairs (OPA) represents the commission in public relations matters. Through various communication mediums, OPA provides accurate, timely, and valuable information so internal and external stakeholders know the commission’s goals.

Office of Minority and Women Inclusion (OMWI)

There is no blind eye turned to issues of equal opportunity for all by the CFTC; it takes such matters seriously. In fact, the Office of Minority and Women Inclusion (OMWI) actively promotes equality in the workplace through civil rights, diversity, and other programs.

Office of Technology Innovation (OTI)

The Office of Technology Innovation (OTI) is the commission’s financial technology innovation center. OTI drives the change and spread of knowledge through innovation, consultation/collaboration, and education (ICE). It also seeks the advancement of useful innovations, collaboration amidst industries, public outreach, and education.

Office of Legislative and Intergovernmental Affairs (OLIA)

OLIA serves as the commission’s official liaison with other federal agencies, Members of Congress, and the administration. The division provides technical assistance on legislative issues, including developing and executing legislative strategies for the OLIA Chairman and the Commission.

The CFTC and Cryptocurrency

Currently, the cryptocurrency community is treading carefully due to the government and regulatory agencies’ indecisiveness. Many users are uncertain about whether the SEC or CFTC has oversight over cryptocurrency, which has created a cloud of uncertainty in the market. Consequently, this uncertainty indirectly impacts the price of different crypto products and causes big financial players to rethink their investments in this emerging market.

The CFTC and SEC were established decades ago, along with the legislation that gave birth to them, predating the advent of the internet. Laws created during that time should not be responsible for regulating technological developments like blockchain, cryptocurrency, and decentralized ecosystems. The crypto industry is in agreement that a new commission should be created for this purpose, which makes perfect sense. By setting up a new commission, specific laws can be created for the digital asset market rather than continuously amending outdated regulations from 1934 or 1974.

While waiting for Congress and concerned regulatory agencies to take action, the CFTC continues to release educational materials to bridge any knowledge gaps for investors and traders. With a new commission in place, applicable laws can be created to regulate the crypto industry properly. This move will create a more stable and secure environment for all market players, boost investors’ confidence and, in turn, drive the growth of the industry.

Conclusion

For many decades, the CFTC has regulated the derivatives market to safeguard investors. This has been achieved through various divisions, offices, and regulations. However, advancements in technology have made trading activities faster and compliance enforcement more complex. The increased speed of trading activities in the derivatives market means that manipulations can be executed at a faster pace and potentially go undetected.

Despite the challenges posed by technological advancements, the CFTC’s presence has brought orderliness to the derivatives market. Market participants are eager to see how the CFTC will manage the markets more efficiently with the advent of new technologies and products. This anticipation is fueled by the expectation that the CFTC will continue to protect investors and maintain the integrity of the derivatives market, even as technology continues to evolve.

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