Introduction: 

On October 5, 2026, the Commodity Futures Trading Commission (“CFTC”) issued an Advanced Notice of Proposed Rulemaking (“ANPRM”¹) regarding its intent to establish a comprehensive regulatory framework for retail commodity transactions involving crypto assets (“CTXs”) and the exchanges that offer trading in CTXs, which the CFTC calls crypto asset markets (“CAMs”).²

While the ANPRM does not include actual rule text – that would follow in a proposed rulemaking – the ANPRM contains two proposed frameworks: (i) Regulation CTX, which would establish when crypto asset transactions fall under the CFTC’s jurisdiction; and (ii) Regulation CAM which would establish a new CFTC-regulated framework for crypto asset trading venues. CFTC Chairman Michael Selig described the ANPRM as “just the beginning . . . of addressing gaps in crypto-asset market structure and creating clear rules of the road for innovators and market participants.”³

Below, we discuss each of the components of the ANPRM in more detail.

Regulation CTX:

Regulation CTX would establish the CFTC's jurisdiction over CTXs. The ANPRM classifies CTXs as transactions falling under Section 2(c)(2)(D) of the Commodity Exchange Act (“CEA” or the “Act”) and therefore as subject to regulation by the CFTC. Section 2(c)(2)(D) gives the CFTC authority over retail commodity transactions (or offers entered into but not accepted) that are leveraged, margined, or financed, “even if not entered into” on one of those bases (a “covered offer”).⁴

Prior to this ANPRM, the CFTC had not utilized formal rulemaking to establish the applicability of this section with respect to the offer of leverage for crypto assets or blockchain technologies, but the agency clarified that it was turning to formal rulemaking as part of Chairman Michael Selig’s push to end “regulation by enforcement.”⁵

Definition of an “Offer”

In Regulation CTX, the CFTC lays out its position that Section 2(c)(2)(D) gives the agency exclusive regulatory authority over “all agreements, contracts, or transactions pursuant to which a retail customer may accept a covered offer to transact on a leveraged, margined, or financed basis, regardless of whether any individual transaction is entered into on one of those bases.”⁶ A covered offer is “established by the provision of documentation that sets forth the terms pursuant to which a customer may execute a CTX. An offeror or counterparty to a CTX could provide such a covered offer, for example, in standard customer documentation such as customer onboarding documents (including those required by law or regulation), exchange terms and conditions, or credit and margin documentation.”⁷ Covered offers may be made with respect to a certain transaction, a class of transactions, or every transaction on the exchange, depending on the documentation provided.

Definition of “Actual Delivery”

Section 2(c)(2)(D)(ii) of the CEA provides an exception from CFTC regulation (except for fraud and manipulation) for transactions with “actual delivery.” The application of Section 2(c)(2)(D)(ii) is mostly based in judicial interpretation and the CFTC accepts the conclusion in Commodity Futures Trading Commission v. Monex Credit Co., 931 F.3d 966 (9th Cir. 2019) that “actual delivery requires the transfer of some meaningful degree of possession or control.” 

In Regulation CTX, the CFTC describes its “preliminary” position that due to the unique nature of crypto assets, “possession and control of a crypto asset may require possession of the credentials (e.g., private key(s)) to the digital wallet address or account associated with such crypto asset.”⁸ Accordingly, a fully paid, open CTX that is only recorded internally by an exchange before actual delivery occurs, would remain subject to CFTC jurisdiction under Regulation CTX. If a CTX “results in the retail customer receiving the title to the purchased crypto asset through a book-entry on the CAM’s internal records,” the transaction does not fall under actual delivery and remains under CFTC jurisdiction pursuant to Regulation CTX.⁹ In the case of a leveraged purchase, the eligible leverage provider (i.e., the FCM) would have custody of the asset in accordance with the Act. However, if the retail customer takes possession of the credentials to the digital wallet address or account, then actual delivery occurs and the transaction falls within the statutory exception in § 2(c)(2)(D)(ii). Thus, the Regulation CTX framework would no longer apply. The majority of CTX transactions are expected to be open CTXs, meaning that the retail customer would not take actual delivery and the CTX would remain under the CFTC’s jurisdiction.¹⁰

The ANPRM's treatment of actual delivery matters because the CFTC has changed course on this issue several times in recent years. The CFTC proposed guidance on actual delivery for virtual currencies in 2017 and finalized it in 2020. In December 2025, the CFTC then withdrew that guidance. The ANPRM is the CFTC's first attempt to replace its  prior positions on actual delivery through a notice-and-comment rulemaking.

Regulation CAM:

The CFTC intends for Regulation CAM to establish a “purpose-built regulatory framework for exchanges and other CFTC registered intermediaries that deal in CTXs.”¹¹ The CFTC acknowledges that, unlike the “intermediary structures” of the firms typically regulated by the CFTC, firms that deal in crypto assets typically have more integrated infrastructures, which Regulation CAM seeks to preserve.¹²

Regulation CAM proposes a “tailored subcategory of DCM designation for trading facilities that only list CTXs.”¹³ These CAMs would comply with a specific set of regulations called the CAM Core Principles that would implement the statutory DCM Core Principles found in Section 5 of the Act in a manner that is applicable to crypto assets. 

Existing DCMs could instead list CTXs under their current designation, and the CFTC asks whether DCMs should be able to selectively adopt elements of the CAM framework. The ANPRM addresses in detail - and requests feedback on - how specific DCM principles would be adapted for CAMs. We discuss the CFTC’s requests for comment about specific DCM core principles that are adapted into the CAM principles in more detail below. 

Regulation CAM also “contemplates the ability of a CAM to also register as an FCM and/or DCO, or permitting the affiliation between a CAM and an FCM and/or DCO.”¹⁴

Trading on a CAM

The ANPRM lays out how the CAM regulatory framework would operate under the CFTC’s jurisdiction. Under the CAM framework, CAMs would list crypto assets for trading. Transactions would become CTXs when a covered offer is made (i.e., leverage is offered in the CAM’s rulebook). A retail customer who wants to trade in CTXs could choose to either (i) execute a fully paid, open CTX without obtaining any financing, or (ii) execute a CTX by obtaining a financing agreement for part of the purchase price pursuant to a leverage arrangement.¹⁵ Only FCMs and qualified banking institutions sponsored by an FCM would be “eligible leverage providers” for CAMs.¹⁶

The CFTC states that its “preliminary“ understanding of the execution of a typical CTX is that the retail customer would receive the title to the underlying crypto asset through a book-entry on the CAM’s internal records. This would not constitute actual delivery. Alternatively, a retail customer could elect to take actual delivery of the purchased crypto asset through possession of the credentials to the digital wallet address or account associated with the asset.¹⁷

Questions Posed by the ANPRM

Crypto trading platforms and other CFTC market participants should carefully review all of the CFTC’s requests for comment in the ANPRM. In addition, as the CFTC continues to provide further guidance on its proposed regulation of CTXs, market participants and crypto trading platforms should closely monitor these developments and consider constructive comments in response to the ANPRM before the filing deadline 60 days after publication in the Federal Register. 

For reference, below are a selection of the key questions posed by the CFTC in the ANPRM.  

The CFTC requests general comments with respect to Regulation CTX, as well as specific feedback on a variety of issues, including:

• The interpretation of “offer,” including whether there is a commercially viable avenue for a firm to not offer CTXs under the CFTC’s exclusive jurisdiction and instead continue to operate under state law frameworks 
• Whether there are novel aspects of offering leverage, margin, or financing for CTXs that should be considered in connection with proposed rulemaking
• The interpretation of “actual delivery,” including how it might be influenced by any particular technological aspects of crypto assets or onchain trading protocols

The CFTC requests general comments with respect to Regulation CAM, as well as  specific feedback on a variety of issues, including:

General Questions about CTXs

• Whether there are factors that make CTXs especially vulnerable to manipulation and what disclosures might be required of CAMs regarding those vulnerabilities
• Whether there are Market disruptions specific to CAMs and how existing market surveillance and trade monitoring would apply specifically to CTXs
• Appropriate position limits and accountability levels for CTXs
• How blockchain technologies could present both innovative methods of compliance and complications for capturing, verifying, retaining, and publishing information related to CTX and CAM trading activity

General Questions about CAMs

• Whether CAMs should be required to have policies and procedures for financial reporting, valuation, and reconciliation of internal ledgers for public blockchain systems.
• Whether the CFTC should consider the 24/7 nature of crypto trading with respect to reporting and recordkeeping requirements
• Ways that trade execution differs for CTXs compared to traditional assets and whether those methods are consistent with the DCM core principles
• Whether blockchain technology could be used for a matching and execution layer of CTXs and what compliance procedures would need to be in place to effectuate such an approach 
• Operational risks and system safeguards that are specific to CAMs and how blockchain utilization and governance risks should be included in that analysis. 
• Whether factors such as validator and client diversity or smart contract or similar programmatic systems should be considered as part of the operational risk assessment. 
• Whether proof-of-reserves mechanisms should be required for CAMs and how blockchain technology can be used to verify customer assets and liabilities.

Logistics of Trading on a CAM

• Which types of entities should be allowed to provide leverage in CTX transactions and whether leverage should be limited to FCMs and sponsored banks as suggested in the ANPRM
• What financing structures should be permitted for CTXs, and what types of financing terms or practices should be treated as abusive
• Whether the current margin regime should be extended to cover CTXs or whether the CFTC should develop a more prescriptive and crypto-specific approach 
• How FCMs and IBs should participate in CAMs and whether retail customers should ever be allowed to trade CTXs without intermediation
• Whether existing FCM rules should be modified or whether a crypto-specific FCM category should be created for FCMs participating in CAMs.
• Whether dually registered FCMs/broker-dealers would face challenges complying with regulations for both the CFTC and the SEC 
• Whether traditional clearing is necessary and appropriate for spot crypto transactions and what alternatives might exist
• How blockchain technologies impact settlement procedures 
• How CAMs should address risks associated with leveraged crypto positions, and how existing regulations can be adapted to fit these transactions 
• If and how the framework should preserve the integrated structures of traditional crypto markets that combine exchange, clearing, custody, and financing functions, and what safeguards are needed if those structures persist
• How a single entity could have multiple registrations with the CFTC in different categories, including a CAM, without conflicts of interest.
• The boundaries of the CAM regulatory framework and which crypto activities should be allowed to take place within that framework. 
• Whether firms that want to continue to operate under the state-by-state spot market regime have commercially viable path to do so within the context of the proposal

WilmerHale’s Blockchain and Cryptocurrency Working Group and our Futures and Derivatives Group have extensive experience with digital asset markets and is actively assessing the potential impacts of the ANPRM for a wide range of clients and interested parties.