On June 18, 2026, the Securities and Exchange Commission (SEC) and Commodity Futures Trading Commission (CFTC; together with the SEC, the Commissions) issued a joint request for comment (RFC) on “potential opportunities to further update, clarify and harmonize certain derivatives product definitions and interpretive issues.”¹ The RFC is focused on Title VII of the Dodd-Frank Wall Street Reform Act, which divides jurisdiction over swaps markets between the SEC and CFTC and grants the agencies authority to further define certain statutory terms. The RFC includes 15 questions organized into two sections. The first section is focused on the definitions of “swap” and “security-based swap” (SBS), and the second is focused on alternative compliance (i.e., the ability to rely on compliance with the rules of one agency in order to comply with the rules of the other agency). The agencies issued the RFC as part of a larger initiative to reduce regulatory gaps and provide greater certainty to regulated entities.² Comments are due on or before August 24, 2026.

The RFC is consistent with ongoing efforts to foster regulatory harmony between the SEC and CFTC³ and with prior statements made by commissioners from both agencies calling for regulatory coordination with respect to event contracts, which frequently fall within the definition of “swap.” In September 2025, SEC Chair Paul Atkins and then-Acting CFTC Chair Caroline Pham noted in a joint statement that “[t]he SEC and CFTC should examine opportunities to collaborate to consider where event contracts may be made available to U.S. market participants regardless of where the jurisdictional lines fall.”⁴ The RFC confirms that event contracts continue to be a priority for the agencies while they harmonize SEC and CFTC swaps regulation. The agencies explain that “market participants are raising questions about whether certain event contracts are swaps, SBS, or mixed swaps, or types of instruments that fall within statutory exclusions from the ‘swap’ definition.”⁵

In this client alert, we provide some background on the RFC and some historical context. Then, we note certain issues that may be of interest to market participants. For example, the RFC includes questions regarding the jurisdiction of the SEC over event contracts, as noted above. There are also questions regarding the jurisdiction of the SEC over cash-settled “perpetual” contracts, including perpetual futures, and there are important implications for crypto market participants, particularly those offering “synthetic tokenized securities,” as defined by the recent “SEC Staff Statement on Tokenization.”⁶ The RFC provides an opportunity for market participants to help clarify the jurisdictional divide between the SEC and CFTC and to suggest opportunities for harmonization and increased efficiency.

I. Background on Title VII and the SEC-CFTC Jurisdictional Divide

Title VII of Dodd-Frank amends the Commodity Exchange Act of 1936 (CEA) and the Securities Exchange Act of 1934 (Exchange Act) to establish a comprehensive regulatory framework for swaps and SBSs. In general, the CFTC has jurisdiction over swaps markets and participants in swaps markets under the CEA, and the SEC has jurisdiction over SBS markets and participants in SBS markets under the Exchange Act. The CEA defines “swap” to include any agreement, contract or transaction that satisfies one of six prongs, subject to certain exceptions.⁷ One of the exceptions is for an SBS. An SBS is defined to include any swap that is based on: 

1. an index that is a narrow-based security index (NBSI), including any interest therein or on the value thereof (SBS NBSI Prong); 
2. a single security or loan, including any interest therein or on the value thereof (SBS Single Security Prong); or
3. the occurrence, nonoccurrence or extent of the occurrence of an event relating to a single issuer of a security or the issuers of securities in an NBSI, provided that such event directly affects the financial statements, financial condition or financial obligations of the issuer (SBS Event Contract Prong).⁸

Swaps on broad-based security indexes (BBSIs) are generally within the CFTC’s jurisdiction. There are also “mixed swaps” that contain elements of both a swap and an SBS and are under the concurrent jurisdiction of both the SEC and CFTC.⁹

In 2012, the SEC and CFTC adopted a collection of rules to provide further guidance on the definitions of swap and SBS.¹⁰ The agencies began the rulemaking process in 2010 with an advance notice of proposed rulemaking (ANPRM), which, much like the recent RFC, requested input from market participants on the statutory definitions and relevant legal and economic considerations.¹¹ The agencies followed the ANPRM with a detailed notice of proposed rulemaking and ultimately a series of rules under the CEA and the Exchange Act, along with several joint commission-level interpretations.¹²

Despite the 2012 rules and interpretive guidance, distinguishing among swaps, SBSs and mixed swaps remains challenging for market participants, regulators and courts. The 2023 Archegos Capital Management litigation highlights these jurisdictional fault lines.¹³ Both the SEC and CFTC charged Archegos over total return swaps referencing exchange-traded funds (ETFs) and custom baskets, but the agencies advanced competing theories of jurisdiction. The CFTC argued the swaps were based on BBSIs, while the SEC contended they were SBSs tied to the underlying ETF shares or, in the case of custom baskets, instruments subject to discretionary control by a counterparty. The US District Court for the Southern District of New York ultimately sided with Archegos, dismissing the CFTC’s claims for lack of jurisdiction.¹⁴

Ambiguities in Title VII persist, and even where jurisdiction is clear, overlapping and burdensome requirements remain. The agencies are seeking to harmonize and streamline their regulations.

II. The 2026 RFC

The joint RFC focuses on two core areas: definitional clarity and alternative compliance. Below, we highlight select notable issues from the definitional section that may impact market participants.

• Event contracts and other innovative products: The RFC contains questions regarding event contracts and other innovative products. The Commissions are seeking comment on whether they should issue new or revised rules or interpretations to address recent innovations. For example, with respect to event contracts, the agencies ask whether additional clarity is necessary regarding when an event “directly affects” the financial statements, financial condition or financial obligations of an issuer and is therefore an SBS subject to the SEC’s jurisdiction. The agencies also ask whether there are circumstances in which an event contract that references one or more securities should be considered a “put, call, straddle, option, or privilege” on securities rather than a swap or SBS. Although the RFC does not specifically mention tokenized securities,¹⁵ “synthetic tokenized securities” are likely one of the products prompting questions from the Commissions. In a January “SEC Staff Statement on Tokenized Securities,” SEC staff provided a framework for the classification of tokenized securities.¹⁶ The statement addresses the regulatory status of “synthetic tokenized securities,” which includes any crypto asset that provides synthetic exposure to the underlying security. The statement explains that certain synthetic tokenized securities may be SBSs. Whether a synthetic tokenized security is an SBS is important because SBSs are subject to special statutory and regulatory requirements. Most notably, no person may offer or sell a crypto asset that is an SBS to persons who are not “eligible contract participants” unless a Securities Act registration statement is in effect as to the crypto asset and the transaction is effected on a national securities exchange.¹⁷
• Swaps, SBSs and mixed swaps: The RFC asks whether there is a need for greater clarity regarding the definitions of swap, SBS and mixed swap. There are also more specific questions regarding the SBS NBSI Prong, the SBS Single Security Prong and the SBS Event Contract Prong of the SBS definition. For example, the Commissions are seeking comment on the appropriate characterization of contracts referring to potential changes to the composition of an NBSI, as opposed to changes in the price or value of an NBSI. The Commissions are also asking whether they should revise or clarify the rules that currently provide tolerance periods and grace periods for products referencing securities indexes, where the securities index temporarily moves from broad- to narrow-based or from narrow- to broad-based.
• Exclusions from the definitions of swap and SBS: In addition, there are questions regarding the various exclusions from the definitions of swap and SBS. For example, the RFC notes that futures and security futures are excluded from the definitions of swap and SBS. The agencies are seeking comment on whether there is a need for greater clarity regarding whether a cash-settled perpetual contract referencing an equity security could be treated as a security future rather than an SBS under the Exchange Act. The CFTC previously requested comment on the status of perpetual contracts in CFTC-regulated markets under the CEA.¹⁸ Shortly after the CFTC requested comments, a designated contract market listed the first perpetual commodity futures contract in the United States, and there is pending litigation on whether perpetual commodity futures contracts are appropriately classified as swaps rather than futures.¹⁹ In addition, the RFC asks whether further clarification is needed to distinguish traditional debt securities—such as notes, bonds and other evidences of indebtedness that are excluded from the definition of a swap—from swaps and SBSs. In particular, the agencies seek input on how to treat innovative or structured products that may blur these lines, including whether factors such as issuance under a Trust Indenture Act‑qualified indenture or the existence of a lender‑borrower relationship should be dispositive.

The second section of the RFC is focused on alternative compliance. With alternative compliance, an entity may comply with the requirements of one regulatory regime in order to satisfy the requirements of the other regulatory regime. Below, we highlight select notable issues from the alternative compliance section that may impact market participants.

• “Economically related” or “functionally similar” product classes: The Commissions ask whether there are circumstances where compliance with one commission’s regulatory framework with respect to “economically related or functionally similar product classes” could appropriately satisfy substantially similar requirements of the other commission.
• Limited exemptive authority: The agencies note that while Title VII grants authority to further define certain terms, it also limits the exemptive authority of the Commissions related to swaps and SBSs. In light of the provisions limiting their exemptive authority, the agencies request comment on potential notice registration, tailored rules, rules of procedure, tailored trade reporting rules, deemed filing, or other joint or coordinated approaches to facilitate alternative compliance.

III. Conclusion

The RFC reflects continued coordination of the Commissions, building on their recent memorandum of understanding and signaling a sustained push toward greater alignment. We expect the agencies to continue working together in key areas, including 24/7 markets, portfolio margining, innovation exemptions and decentralized finance.²⁰ Market participants should consider submitting comments, as this is a meaningful opportunity to shape how jurisdictional boundaries and regulatory frameworks evolve and to seek durable clarification in areas of regulatory uncertainty.

Text of the RFC

Request for Comment on Definitional Clarity

The Commissions jointly request public comment on potential ways to draw clearer regulatory lines for agency oversight of innovative products that may implicate the regulatory interests of both Commissions. The Commissions request comment on principled, objective criteria that could be used to provide additional clarity for these products within the Title VII framework. Public input will help the Commissions evaluate potential steps in light of technological developments, accumulated experience, and evolving market practices. 

1. What types of event contracts or other innovative products or product structures that may touch on the regulatory interests of both Commissions have raised interpretive questions for market participants, and how should those questions be resolved? In the context of these innovations, is additional clarification necessary to provide principled, objective criteria for distinguishing between swaps, mixed swaps, SBS, or other securities or instruments that are excluded from the definition of “swap”? What characteristics do event contracts share or not share with other products that may be classified as swaps, mixed swaps, SBS, or other securities or products excluded from the “swap” definition? Taking into account the rules and interpretations the Commissions adopted in the Product Definitions Adopting Release, should the Commissions issue new or revised rules or interpretations to address these innovations?

2. As discussed above, several exclusions from the definition of “swap” are set forth in CEA section 1a(47)(B). Is additional regulatory clarity necessary with respect to application of these exclusions? For example, are there areas where principled, objective criteria could further clarify the definitional lines?

3. Similarly, is there a need for greater clarity regarding the definitional lines between swaps, SBS, and mixed swaps? Is there a need for greater clarity regarding the scope and application of the SBS NBSI Prong, the SBS Single Security Prong, and/or the SBS Event Contract Prong?

4. Is there a need for greater clarity regarding when a swap, option (including any put, call, straddle, option, or privilege), or future is based on “any interest” in a security or group or index of securities, particularly when the swap, option, or future is not based on the value of that security or group or index of securities?

5. Regarding the SBS NBSI Prong, is there a need for additional clarity regarding when a swap is based on “an index that is [an NBSI] including any interest therein or on the value thereof”? Should the Commissions further address the circumstances when a swap does or does not satisfy the SBS NBSI Prong? For example, what additional clarity, consistent with CEA section 1a(35) and Exchange Act section 3(a)(55), might the Commissions provide with respect to the characterization of contracts referring to potential changes to the composition of an NBSI, as opposed to changes in the price or value of an NBSI? The Commissions have adopted rules addressing tolerance periods and grace periods for products referencing securities indexes traded on designated contract markets, swap execution facilities (“SEFs”), foreign boards of trade, security-based SEFs, or national securities exchanges, where the securities index temporarily moves from broad-based to narrow-based or from narrow-based to broad-based. Should the Commissions revise or clarify those rules or provide additional clarity, transition rules, or safe harbors for products that are based on a securities index that transitions between narrow-based and broad-based, or vice versa?

6. Regarding the SBS Single Security Prong, is additional clarity necessary regarding when a swap is based on “a single security or loan, including any interest therein or on the value thereof”? Should the Commissions further address the circumstances when a swap does or does not satisfy the SBS Single Security Prong?

7. Regarding the SBS Event Contract Prong, is additional clarity necessary regarding when an event “directly affects” the financial statements, financial condition, or financial obligations of an issuer? Should the Commissions further address the circumstances when a swap does or does not satisfy the SBS Event Contract Prong? How should any further clarifications relate to the Commissions’ rules and guidance on credit default swaps in the Product Definitions Adopting Release, and should such rules and guidance be revised or clarified?

8. Some event contracts settle by reference to a security or group or index of securities (whether narrow-based or broad-based). While certain of these event contracts may generally fall within the prongs of the “swap” and “security-based swap” definitions described above, there is a statutory exclusion from the definitions of “swap” and “security-based swap” for “any put, call, straddle, option, or privilege on any security, certificate of deposit, or group or index of securities, including any interest therein or based on the value thereof, that is subject to [the Securities Act and the Exchange Act]”. Are there circumstances in which an event contract that references one or more securities should or should not be considered a “put, call, straddle, option, or privilege on” a security or group or index of securities for purposes of the exclusion from the definitions of “swap” and “security-based swap”? Is there a need for greater clarity regarding when an event contract is a “put, call, straddle, option, or privilege” on an “interest” in, or “based on the value” of, “any security…or group or index of securities” (whether narrow-based or broad-based), that is subject to the Securities Act and the Exchange Act and therefore not a swap or SBS? What are the characteristics of event contracts based on a security or index that are swaps or SBS, that distinguish them from options on securities, including in particular binary options that already trade as standardized options on securities on national securities exchanges?

9. Any note, bond, or evidence of indebtedness that is a security as defined in section 2(a)(1) of the Securities Act is excluded from the “swap” definition. In light of innovative products and product structures, but mindful of the existing structured notes market, is there a need to further clarify whether a particular instrument is a note, bond, or evidence of indebtedness that is a security, and thus excluded from the definition of “swap” pursuant to CEA section 1a(47)(B)(vii), as compared to a swap or SBS? For example, what consideration should be given to whether the financial instrument is issued pursuant to an indenture qualified under the Trust Indenture Act of 1939? What consideration should be given to whether the terms of the instrument reflect a lender-borrower relationship? Are there different or additional criteria relevant to distinguishing notes, bonds, and other evidence of indebtedness that are securities from swaps or SBS?

10. Security forwards, if intended to be physically settled at the time the contract is entered into, are excluded from the definitions of “swap” and “security-based swap.” In the Product Definitions Adopting Release, the Commissions declined to provide a bright-line test for determining whether a security forward is intended to be physically settled. In light of innovative products and product structures, should the Commissions provide additional clarity as to the meaning of the phrase “for deferred shipment or delivery, so long as the transaction is intended to be physically settled” in the exclusion from the definition of “swap” set forth in CEA section 1a(47)(B)(ii)? What approach should be taken?

11. Any contract of sale of a commodity for future delivery (or option on such a contract), as well as any security futures product, is excluded from the “swap” definition. Is there a need for greater clarity from the Commissions regarding the treatment of futures, including security futures, in the context of innovative markets? For example, is there a need for greater clarity regarding whether a cash-settled “perpetual” contract referencing an equity security could be treated as a security future? What effects could the introduction of such products have on liquidity formation, price discovery, and hedging activity, particularly with regards to the derivatives and underlying cash equity markets?

Request for Comment on Alternative Compliance

12. Where trading in economically related or functionally similar product classes implicates both SEC and CFTC regulatory interests, are there circumstances in which compliance with one Commission's regulatory framework could appropriately satisfy substantially similar requirements of the other Commission (alternative compliance)? In this case, how should “substantially similar” be viewed? Should it contemplate scope, objectives and/or outcomes of requirements? Supervisory compliance programs? Enforcement authority? Other considerations/standards?

13. Title VII provides that the Commissions may adopt rules to further define terms included in Title VII, but it also limits the exemptive authority of each Commission over certain provisions related to swaps and SBS. In light of these provisions, under what circumstances should the Commissions consider/pursue joint or coordinated notice registration, tailored rules, rules of procedure, tailored trade reporting rules, deemed filing, or other joint or coordinated approaches to facilitate alternative compliance?

14. What considerations should guide surveillance, examination, and enforcement under an alternative compliance approach? How could enhanced sharing of information and data help fulfil the Commissions’ regulatory mandates under an alternative compliance approach? How could the Commissions more effectively coordinate to examine and enforce their regulatory requirements?

15. Under an alternative compliance regime, how could the Commissions best deter market manipulation and trading on material non-public information? What steps should the agencies take to ensure robust surveillance and oversight of cross-market activities?