CFTC Previews a Federal Framework for Some Retail Crypto Asset Transactions

On October 13, 2026, the Commodity Futures Trading Commission (the “CFTC” or the “Commission”) published an Advanced Notice of Proposed Rulemaking (the “ANPRM”) on Regulation Crypto Asset Transactions and Regulation Crypto Asset Markets. The ANPRM outlines a potential federal regulatory framework for crypto asset transactions entered into with, or offered to, retail customers on a leveraged, margined, or financed basis.

The ANPRM includes two related components: Regulation Crypto Asset Transactions (“Regulation CTX”) and Regulation Crypto Asset Markets (“Regulation CAM”). Regulation CTX would interpret how Section 2(c)(2)(D) of the Commodity Exchange Act (the “CEA”) applies to crypto asset transactions, which the Commission refers to as “CTXs.” Regulation CAM would tailor the existing designated contract market (“DCM”), futures commission merchant (“FCM”), and derivatives clearing organization (“DCO”) regimes to CTXs, and would establish a new subcategory of DCM: the crypto asset market (“CAM”), for trading facilities that list only CTXs.

The ANPRM is an important step toward a regulatory framework, but it does not include any proposed rule text or itself establish a new registration category or exemption. The ANPRM’s most consequential premise is its preliminary interpretation that a covered offer of leverage, margin, or financing may cause every qualifying retail crypto asset transaction within the offer’s scope to be treated as a CTX, even if a retail customer declines financing and pays the full purchase price. A fully paid transaction would leave the CTX regime only when actual delivery or another statutory exception applies. That classification could also affect whether state money-transmitter and crypto-licensing requirements continue to apply or are displaced by the CEA’s uniform federal market-regulatory regime for the relevant activity.

Comments are due on or before December 14, 2026. In this Legal Update, we discuss the statutory background, the CFTC’s preliminary views on covered transactions, and the proposed approach to regulating exchanges and intermediaries.

Background

In the ANPRM, the Commission previews its intent to establish “fit-for-purpose” rules for CTX, primarily under its existing authority in Section 2(c)(2)(D) of the Commodity Exchange Act (the “CEA”).

The ANPRM discusses the history of Section 2(c)(2)(D) and the Commission’s approaches to CTX over time. Section 2(c)(2)(D) was added to the CEA by the Dodd-Frank Act in 2010. The ANPRM discusses how Congress enacted the provision to protect retail market participants by preventing a transaction that functions like a futures contract from escaping regulation through drafting. Section 2(c)(2)(D) was intended to correct a perceived loophole based on case law in CFTC v. Zelener, a Seventh Circuit decision that treated rolling retail foreign currency transactions as spot contracts based on their legal form.

Section 2(c)(2)(D), subject to its statutory exceptions, applies to an agreement, contract, or transaction in any commodity that is entered into with, or offered to, a person that is neither an eligible contract participant nor an eligible commercial entity and that is entered into, or offered, on a leveraged or margined basis or financed by the offeror, the counterparty, or a person acting in concert with the offeror or counterparty on a similar basis. In practical terms, the provision addresses leveraged, margined, or financed retail commodity transactions. Notably, the statute reaches transactions that are merely “offered to (even if not entered into with)” on these terms.

The statute contains several exceptions. Among other things, it does not apply to securities or identified banking products. It also does not apply to a contract of sale that “results in actual delivery within 28 days,” or a longer period the Commission sets by rule based on typical commercial practice for the commodity. A separate exception covers contracts that create an enforceable obligation to deliver between a seller and buyer that can make and take delivery in their lines of business.

When Section 2(c)(2)(D) applies, the transaction is treated “as if” it were a futures contract for purposes of CEA Sections 4(a), 4(b), and 4b, which generally means that it must be conducted on or subject to the rules of a DCM. The CFTC refers to this as the “on-exchange requirement” in the ANPRM. The CEA’s FCM registration requirement also expressly reaches persons that solicit or accept orders for these transactions and accept money or property, or extend credit, to margin, guarantee, or secure them.

Section 2(c)(2)(D) applies to transactions in “any commodity.” The CEA defines “commodity” very broadly to include all goods, articles, services, rights, and interests in which futures contracts are or may be dealt. For purposes of the ANPRM, a “crypto asset” is a digital representation of value recorded on a cryptographically secured distributed ledger. The ANPRM states that any such asset other than a payment stablecoin issued by a permitted payment stablecoin issuer could meet the CEA definition of “commodity,” reflecting the exclusion added by the GENIUS Act.¹

One of the exceptions to section 2(c)(2)(D) is the “actual delivery” provision in section 2(c)(2)(D)(ii)(III), which excepts a contract of sale that “results in actual delivery within 28 days or such other longer period as the Commission may determine by rule or regulation based upon the typical commercial practice in cash or spot markets for the commodity involved.” The ANPRM relies on the Ninth Circuit’s 2019 decision in CFTC v. Monex Credit Co. on the actual delivery exception. In Monex, the court held that actual delivery requires some meaningful possession or control by the customer or the customer’s agent and that an internal book entry under the seller’s exclusive control is not enough.² In 2020, the Commission issued interpretive guidance on “actual delivery” for retail virtual currency transactions, which it later withdrew in December 2025, citing technological change and the need to reconsider the framework.

The ANPRM discusses the Commission’s shift in approach to crypto assets, away from case-by-case enforcement and interpretive guidance toward rules that would provide a path for CTXs to trade through registered entities in line with recommendations from the President’s Working Group on Digital Asset Markets. In connection with the ANPRM, Chairman Michael Selig stated it “begins [the Commission’s] process of new rulemakings…to propose a federal crypto asset regulatory market structure using the CFTC’s existing statutory authorities.” The ANPRM also forms part of a broader shift in federal crypto policy following the Senate’s failure to advance the CLARITY Act. That legislation would have established a broader federal framework for digital commodity spot markets. By contrast, the Commission acknowledges that Regulation CTX and Regulation CAM cannot require all crypto assets to trade on CFTC-registered platforms without further congressional action.

The Commission presents the ANPRM as complementary to the SEC’s August 2026 proposed Regulation Crypto Assets, which includes a conditional safe harbor under which certain non-security crypto assets could become freely tradable in secondary markets outside the federal securities laws. These proposals follow other efforts by the CFTC and SEC to harmonize federal oversight of crypto asset markets, such as the issuance of a joint interpretation, the Joint Crypto Asset Taxonomy, classifying crypto assets into five categories.³

Key Takeaways

• A covered offer may sweep in fully paid trades. The ANPRM preliminarily construes the phrase “offered to (even if not entered into with)” to cover a fully paid crypto asset transaction if the customer could have used leverage, margin, or financing under documentation applicable to that transaction, even if the customer does not do so.
• Actual delivery is the principal statutory off-ramp. The ANPRM preliminarily interprets actual delivery for crypto assets by reference to the possession-or-control standard from CFTC v. Monex Credit Co., which recognizes delivery to the customer or the customer’s agent. Depending on the asset, the Commission preliminarily believes actual delivery may require control of the credentials needed to transfer the asset and unfettered access to associated governance or staking rights. The CFTC tentatively believes that many on-chain transactions may satisfy this standard because the asset is delivered directly to the purchaser’s wallet, but on-chain execution alone is not a categorical exemption.
• Regulation CAM would address the intermediate tier between ordinary spot markets and traditional derivatives exchanges. Platforms offering retail leveraged, margined, or financed crypto transactions could seek CAM designation or designation as an ordinary DCM to operate under the contemplated federal framework, with relief from state licensing requirements depending on applicable statutory exemptions and preemption principles. Existing DCMs could list CTXs under their current designations, subject to tailored relief; a CAM would be limited to CTXs. The contemplated CTX model generally would use FCM intermediation and DCO clearing and settlement, with modifications intended to account for the structure and risks of CTXs.
• Integrated models would be permitted, but conflicts to be considered. A CAM could also register as an FCM or DCO, register in both capacities, or affiliate with those entities. The ANPRM recognizes that crypto platforms often combine trading, settlement, custody, and lending functions. It asks how to address conflicts when affiliated entities list assets, extend financing, set margin, custody customer property, and liquidate positions.
• The ANPRM does not contemplate plenary CFTC jurisdiction over spot crypto, and the asserted federal exclusivity depends in part on transaction status. The contemplated federal framework would apply to transactions within the scope of Section 2(c)(2)(D), not to every cash-market trade in a crypto asset that is a commodity. The CFTC preliminarily contends that CTXs conducted on or subject to the rules of a CAM or DCM would fall within a uniform federal market-regulatory regime that displaces conflicting state licensing requirements governing those market functions, such as state money-transmitter licensing. By contrast, a platform could remain under state spot-market regimes for transactions that are not subject to a covered offer, or that qualify for actual delivery or another statutory exception. The classification of a transaction therefore would determine not only whether CFTC registration is required, but also which federal and state requirements apply.

Regulation CTX

Covered offers: The ANPRM states that Section 2(c)(2)(D) reaches an offer of a transaction on a leveraged, margined, or financed basis even if the customer never enters into the offered transaction. The Commission also preliminarily interprets the provision to cover a transaction subsequently executed on a fully paid basis after the customer declines the offered leverage, margin, or financing, provided the other statutory criteria are met and no exception applies. The ANPRM indicates that an offer can be made through onboarding materials, exchange terms, or credit and margin documentation. An offer could apply to a specific transaction or to all transactions available on an exchange, or all transactions through an account, product class, or other class. A platform therefore would need to define carefully which customers, assets, accounts, and transactions are eligible for financing.

Third-party financing: Section 2(c)(2)(D) also reaches financing provided by a person acting in concert with the offeror or counterparty. The ANPRM  states that it preliminarily understands the “acting in concert with the offeror or counterparty on a similar basis” phrase in 2(c)(2)(D)(i)(II) to capture arrangements that the platform facilitates, arranges, or otherwise endorses as covered transactions. Examples include financing whose terms the exchange sets or influences, financing the exchange introduces through marketing or advertising, financing subject to revenue sharing with the exchange, and financing accessed through a platform the exchange operates.

Actual delivery: In the ANPRM, “actual delivery” focuses on whether the customer or the customer’s agent receives meaningful possession or control, following the Monex decision. The Commission states its preliminary belief that, for a crypto asset, possession and control may require holding the credentials, such as the private keys, to the digital wallet address or account associated with the asset. Citing a federal court decision, the Commission noted that a private key works much like a password and gives its holder the ability to transfer the asset.

The Commission also suggested that what counts as possession and control may depend on the asset. Where a crypto asset carries governance rights or the right to participate in staking, the Commission states that actual delivery may require unfettered access to those rights. As examples, this could mean the ability to participate in governance directly and on a disintermediated basis, or the ability to stake without paying fees to an intermediary. The CFTC further asserts that it may regulate the mechanics of delivery (not just whether actual delivery occurred), including the transfer from an exchange to the relevant wallet or account.

Section IV.C(ii) of the ANPRM notes a distinction in Monex between the existence of a lien or security interest and meaningful possession or control. It indicates that onchain transactions may result in actual delivery even when a lien or security interest remains outstanding, provided the buyer or the buyer’s agent obtains meaningful possession or control within the statutory delivery period. An outstanding lien is not, by itself, dispositive. However, Section V.H(iv) uses contrary wording, stating that actual delivery “may not occur” where a lien or security interest remains outstanding. The ANPRM therefore should not be read as conclusively resolving the treatment of all lien-bearing arrangements.

Fully paid, open CTXs: A customer who declines financing and pays in full still may be subject to the CTX regulatory framework if the transaction was subject to a covered offer and remains only on the platform’s internal ledger. The Commission’s preliminary view is that Section 2(c)(2)(D) applies unless a statutory exception is satisfied. After actual delivery, the ANPRM states that the CFTC would retain only its anti-fraud and anti-manipulation authority over the commodity transaction. Taken together with the Commission’s thinking on covered offers and actual delivery, this position could reach a large share of ordinary retail crypto trading. If an exchange offers margin to its customers and holds purchased assets in custody rather than transferring them to customer wallets, its customers’ fully paid trades could be CTXs subject to the on-exchange requirement.

Regulation CAM

As discussed above, Section 2(c)(2)(D) treats covered transactions “as if” they were futures contracts for purposes of Section 4(a), which generally makes them subject to the on-exchange requirement. Regulation CAM is the Commission’s preliminary proposal for a regulatory framework that is tailored to the commercial realities of, and risks posed by, exchanges that deal in CTXs. The discussion below summarizes preliminary concepts presented for comment in the ANPRM.

A new DCM subcategory: An exchange that lists only CTXs could register as a CAM by complying with a tailored set of “CAM Core Principles” implementing the statutory DCM core principles. Existing DCMs could instead list CTXs under their current registration.

FCM intermediation: The contemplated framework would require an FCM to intermediate each CTX, although the ANPRM asks whether direct retail access should be permitted in some circumstances. The Commission would tailor requirements governing segregation, permitted depositories, custody, risk management, net capital, and customer disclosures. Among other things, the ANPRM asks what changes may be needed to FCM rules on segregating customer funds, holding customer funds at permitted depositories, and net capital. Other questions concern a limited-purpose FCM registration, the compatibility of the National Futures Association’s (“NFA”) supervision program, use of the retail foreign exchange dealer capital regime, and the role of introducing brokers.

FCM intermediation also would bring customer-facing CTX activity within Bank Secrecy Act requirements, including anti-money laundering, customer identification, and suspicious activity reporting. The ANPRM notes that the federal money services business framework generally does not apply to a person registered with, and functionally regulated or examined by, the CFTC. That federal treatment supports the proposed distinction between CFTC-regulated intermediaries and ordinary money transmitters, but does not by itself resolve the application of state money-transmission or trust-company laws.

Modified clearing and settlement: The Commission contemplates modified DCO rules to reflect structural differences between a traditional futures contract and a typical CTX. According to the ANPRM, a typical CTX may have two separate pieces: a “spot CTX leg,” which resembles an ordinary cash-market purchase of the crypto asset, and a separate agreement under which the customer borrows part of the purchase price. The Commission noted that the spot leg may settle on the CAM’s own books in a way that substantially reduces the counterparty and credit risks that clearing is designed to address. The ANPRM asks, among other things, whether alternative arrangements could satisfy CEA objectives and whether a DCO should provide a limited guaranty for residual risks in leveraged positions. The clearing structure also matters for insolvency protection: the ANPRM states that CTXs intermediated by an FCM and cleared by a DCO would qualify as “commodity contracts” under the Bankruptcy Code, but asks on what basis uncleared CTXs would qualify. It also asks whether arrangements based on UCC Article 8 could provide an adequate substitute for the protections of the commodity-broker bankruptcy regime and the Commission’s part 190 rules.

Leverage arrangements: Under the contemplated framework, leverage would be available only through arrangements administered by an FCM or an FCM-sponsored qualified banking institution and enumerated in the CAM’s rulebook. The Commission notes that current FCM rules do not permit a customer’s creditor to hold a security interest in assets in an FCM-segregated account and asks whether other persons should qualify as leverage providers, and which financing terms should be treated as abusive.

Integrated registration: According to the ANPRM, crypto firms typically use integrated infrastructures that handle listing, trading, settlement, and custody together, in contrast to firms subject to the futures regime that typically use separate intermediary structures. The CAM proposal contemplates rules under which a CAM could keep that integrated model, with a CAM having the option to operate as a standalone entity, also register as an FCM or DCO, register in both additional capacities, or affiliate with the required intermediaries. The Commission sees potential benefits in transparency, capital efficiency, lower fees, and market resilience. It also asks how to avoid duplicative capital and reporting requirements and how to manage conflicts created by common ownership and control.

Federal and state roles: The Commission presents Regulation CAM as a federal option for platforms that want to offer CTXs under a uniform national market-regulatory framework. Its preemption thesis begins with Section 2(c)(2)(D)(iii), which subjects covered retail commodity transactions to key CEA provisions “as if” they were futures contracts. Those provisions, in turn, impose the on-exchange requirement, while the DCM, FCM, and DCO provisions comprehensively regulate listing, trading, market surveillance, customer assets, clearing, and settlement. On that basis, the Commission preliminarily contends that varying state laws should not govern the operation of trading facilities offering CTXs. For example, the Conference of State Bank Supervisors’ Money Transmission Modernization Act explicitly excludes DCMs and FCMs to the extent they act in those capacities. State money-transmission, crypto-licensing, custody, and property-law requirements therefore would remain relevant to activity outside the CTX framework, including transactions that avoid a covered offer or satisfy the actual-delivery exception.⁴

De minimis exemption:The ANPRM also contemplates an exemption from the requirement to obtain CAM designation based on a facility’s CTX trading volume, the notional amount of its leveraged positions, or both. It requests comment on an appropriate de minimis threshold, but does not establish the threshold or settle how those measures would be combined. No operative exemption is created by the ANPRM. The contemplated relief concerns CAM registration, not an exemption from all CEA requirements.

Securities-law boundary: A crypto asset’s security status may determine whether it can be listed on a CAM. The ANPRM states that CFTC registrants generally may not list derivatives referencing securities. A non-security crypto asset may nonetheless be offered or sold as part of an investment contract, which could limit CAM trading and create overlapping obligations for FCMs that are also SEC-registered broker-dealers. The Commission also asks how non-fungible tokens fit within its jurisdiction.

Next Steps

The ANPRM is a first step for the Commission to solicit feedback and collect information on the proposed architecture of Regulation CTX and Regulation CAM before any potential future action, such as a notice of proposed rulemaking that includes proposed rule text. The ANPRM leaves foundational issues open for comment, but it does discuss at a high level how the statutory DCM Core Principles and existing FCM and DCO regimes could be tailored to CTXs. It also discusses elements of capital, margin, custody, bankruptcy treatment, and conflicts controls without adopting final standards or proposing new CTX-specific numerical capital or margin requirements.

Comments are due on or before December 14, 2026. The Commission requests comment from state-regulated crypto exchanges, DCMs, FCMs, DCOs, financial institutions, technology firms, trade associations, investors, and other interested parties. Because the ANPRM asks broad questions across the market structure, commenters have an opportunity to shape both the scope of Regulation CTX and the design of Regulation CAM.

For more information about the ANPRM or other digital asset regulatory developments, please contact any of the authors or your usual Mayer Brown contact.

¹ The ANPRM further states that payment stablecoins issued by foreign payment stablecoin issuers registered with the Office of the Comptroller of the Currency generally would not meet the CEA definition of “commodity,” although they are not within the same express statutory exclusion.

² For additional background on Monex, Hunter Wise, and the actual-delivery exception, see Mayer Brown’s 2020 analysis, Ninth Circuit Interpretations of “Actual Delivery” and Antifraud Authority Prevails, for the Time Being.

³ ANPRM at 64821-22; Application of the Federal Securities Laws to Certain Types of Crypto Assets and Certain Transactions Involving Crypto Assets, 91 FR 13714 (Mar. 23, 2026); Regulation Crypto Assets, 91 FR 54510, 54553-55 (Aug. 21, 2026), proposed Rule 400. For additional background on securities market-related initiatives, see Mayer Brown’s SEC Innovation Exemption, SEC Proposes New Regulation Crypto Assets, and Joint Interpretation from the SEC and CFTC on Certain Types of Crypto Assets and Certain Transactions Involving Crypto Assets.

⁴ For further discussion, see Mayer Brown’s The Race to Develop Crypto Products is Now a Sprint, But Hurdles Remain: State Law Considerations in the New Crypto World Order.