On March 24, the Commodity Futures Trading Commission
("CFTC") released its Final Interpretive Guidance on Actual Delivery for
Digital Assets ("Final Interpretation"), addressing
longstanding questions regarding which digital asset transactions
could be deemed "retail commodity transactions" under the
Commodity Exchange Act ("CEA"). The Final Interpretation
comes two years after the CFTC
issued proposed interpretive guidance ("Proposed
Interpretation").
Background
Under the CEA, the CFTC has jurisdiction over "retail
commodity transactions," which are defined to cover the offer
or sale of any agreement, contract, or transaction in any commodity
on a leveraged, margined or financed basis with any retail customer
by any offeror, counterparty, or affiliated person acting in
concert.1 No retail commodity transactions
may be conducted off of a regulated futures exchange, unless the
transaction fits within an exception.
