CFTC Withdraws Guidance on ‘Actual Delivery’ in Crypto Transactions, Leaving Regulatory Void

The statement also pointed to the ongoing work of the President’s Working Group on Digital Asset Markets as a reason for withdrawing the earlier guidance.

“After careful review, the Commission believes that the Final VC Actual Delivery Guidance is likely outdated and thus provides limited value to market participants and, further, may conflict with the ongoing work of the Commission necessary to implement the President’s Working Group’s recommendations,” the statement said.

The CFTC historically has maintained that speculative commodities transactions involving leverage or margin are futures contracts subject to the agency’s jurisdiction. But certain transactions are exempt from regulation under the CEA, including those that result in “actual delivery within 28 days.”

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However, the agency has long struggled to define the term “actual delivery” and has issued evolving interpretive guidance over the years, according to client bulletin by Benesch on the CFTC’s latest move. In 2013, the CFTC issued a “final interpretation” of “actual delivery” in the context of margined, financed or leveraged retail commodity transactions generally. And in 2020, it issued the now-withdrawn “interpretive guidance” setting out the agency’s views on determining whether actual delivery has occurred with respect to virtual currencies.

Related: UK Treasury Eying New Rules for Crypto Firms

Benesch speculates that one reason behind the CFTC’s withdrawal of the 2020 guidance is to clear the field for a new statutory framework for digital asset markets currently being debated in Congress. Notably, the withdrawal statement did not replace the 2020 guidance, perhaps out of concern that any new guidance could become entrenched before a new statutory regime potentially renders it obsolete.

Whether such new statutory framework is forthcoming in the near term, however, is an open question. Action on digital asset market legislation has stalled in the Senate amid partisan differences. According to Decrypt, some crypto industry insiders now view the legislation as far too complicated and touching on too many politically sensitive issues to pass before Congress effectively grinds to a halt ahead of the 2026 midterm elections.

Others see less urgency in is passing market-structure legislation in 2026, per Decrypt. They point to key victories for the industry in new regulations issued by CFTC and the Securities and Exchange Commission (SEC) that will be difficult for a new administration to unravel, even in lieu of new legislation.

“As soon as we get a token safe harbor, it’s over for market structure,” one crypto policy leader told Decrypt, referring to an SEC exemption for crypto projects expected to roll out in January.

For now, however, uncertainty reigns. The prevailing official guidance on whether digital currency transactions are exempt from futures regulation under the “actual delivery” standard has been voided without being replaced and any legislative path forward on clarifying the rule may be blocked at least until 2027.