Retail Commodity Transactions Involving Virtual Currency, 60335-60341 [2017-27421]

Agencies

• Commodity Futures Trading Commission

[Federal Register Volume 82, Number 243 (Wednesday, December 20, 2017)]
[Proposed Rules]
[Pages 60335-60341]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2017-27421]


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COMMODITY FUTURES TRADING COMMISSION

17 CFR Part 1

RIN 3038-AE62


Retail Commodity Transactions Involving Virtual Currency

AGENCY: Commodity Futures Trading Commission.

ACTION: Proposed interpretation; request for comment.

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SUMMARY: The Commodity Futures Trading Commission (the ``Commission'' 
or ``CFTC'') is issuing this proposed interpretation of the term 
``actual delivery'' as set forth in a certain provision of the 
Commodity Exchange Act (``CEA'') pursuant to the Dodd-Frank Wall Street 
Reform and Consumer Protection Act (the ``Dodd-Frank Act''). 
Specifically, this proposed interpretation is being issued to inform 
the public of the Commission's views as to the meaning of actual 
delivery within the specific context of retail commodity transactions 
in virtual currency. The Commission requests comment on this proposed 
interpretation and further invites comment on specific questions 
related to the Commission's treatment of virtual currency transactions.

DATES: Comments must be received on or before March 20, 2018.

ADDRESSES: You may submit comments, identified by RIN 3038-AE62, by any 
of the following methods:
     CFTC website: https://comments.cftc.gov. Follow the 
instructions for submitting comments through the Comments Online 
process on the website.
     Mail: Christopher Kirkpatrick, Secretary of the 
Commission,

[[Page 60336]]

Commodity Futures Trading Commission, Three Lafayette Center, 1155 21st 
Street NW, Washington, DC 20581.
     Hand Delivery/Courier: Same as Mail, above.
     Federal eRulemaking Portal: https://www.regulations.gov. 
Follow the instructions for submitting comments.

Please submit your comments using only one method.
    All comments must be submitted in English or, if not, accompanied 
by an English translation. Comments will be posted as received to 
https://www.cftc.gov. You should submit only information that you wish 
to make available publicly. If you wish the Commission to consider 
information that you believe is exempt from disclosure under the 
Freedom of Information Act (``FOIA''),\1\ a petition for confidential 
treatment of the exempt information may be submitted according to the 
procedures established in Commission Regulation 145.9.\2\
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    \1\ 5 U.S.C. 552.
    \2\ 17 CFR 145.9. Commission regulations referred to herein are 
found at 17 CFR chapter I.
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    The Commission reserves the right, but shall have no obligation, to 
review, pre-screen, filter, redact, refuse or remove any or all of your 
submission from https://www.cftc.gov that it may deem to be 
inappropriate for publication, such as obscene language. All 
submissions that have been redacted or removed that contain comments on 
the merits of the interpretation will be retained in the public comment 
file and will be considered as required under the Administrative 
Procedure Act and other applicable laws, and may be accessible under 
FOIA.

FOR FURTHER INFORMATION CONTACT: Philip W. Raimondi, Special Counsel, 
(202) 418-5717, [email protected]; or David P. Van Wagner, Chief 
Counsel, (202) 418-5481, [email protected]; Office of the Chief 
Counsel, Division of Market Oversight, Commodity Futures Trading 
Commission, 1155 21st Street NW, Washington, DC 20581.

SUPPLEMENTARY INFORMATION: 

I. Background

    With certain exceptions, the CFTC has been granted exclusive 
jurisdiction over commodity futures, options, and all other derivatives 
that fall within the definition of a swap.\3\ Further, the Commission 
has been granted general anti-fraud and anti-manipulation authority 
over ``any swap, or a contract of sale of any commodity in interstate 
commerce, or for future delivery on or subject to the rules of any 
registered entity.'' \4\ The Commission's mission is to foster open, 
transparent, competitive and financially sound markets; and protect the 
American public from fraudulent schemes and abusive practices in those 
markets and products over which it has been granted jurisdiction.
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    \3\ 7 U.S.C. 2(a)(1)(A). The CFTC shares its swap jurisdiction 
in certain aspects with the Securities and Exchange Commission 
(``SEC''). See 7 U.S.C. 2(a)(1)(C).
    \4\ 7 U.S.C. 9(1).
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    Pursuant to CEA section 2(c)(2)(D),\5\ the marketplace for ``retail 
commodity transactions'' is one such area over which the Commission has 
been granted explicit oversight authority.\6\ CEA section 2(c)(2)(D) 
applies to any agreement, contract or transaction in any commodity that 
is entered into with, or offered to (even if not entered into with), a 
person that is neither an eligible contract participant \7\ nor an 
eligible commercial entity \8\ (``retail'') 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.\9\ CEA 
section 2(c)(2)(D) further provides that such an agreement, contract or 
transaction is subject to CEA sections 4(a),\10\ 4(b),\11\ and 4b \12\ 
``as if the agreement, contract or transaction was a contract of sale 
of a commodity for future delivery.'' \13\ The statute, however, 
excepts certain transactions from its application. In particular, CEA 
section 2(c)(2)(D)(ii)(III)(aa) \14\ 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.'' \15\ If no exception is applicable, these retail 
transactions are ``commodity interests'' subject to Commission 
regulations together with futures, options, and swaps.\16\ Under this 
authority, the Commission regulates retail commodity transactions, with 
the exception of contracts of sale that result in actual delivery 
within 28 days.\17\
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    \5\ 7 U.S.C. 2(c)(2)(D).
    \6\ The authority provided to the Commission by CEA section 
2(c)(2)(D) is in addition to, and independent from, the jurisdiction 
over contracts of sale of a commodity for future delivery and 
transactions subject to regulation pursuant to CEA section 19 that 
the CEA has historically granted to the Commission. It is also in 
addition to, and independent from, the jurisdiction over swaps 
granted to the Commission by the Dodd-Frank Act. Further, the 
authority granted under CEA section 2(c)(2)(D) is in addition to, 
and independent of, the Commission's ability to bring enforcement 
actions for fraud or manipulation in connection with swaps, 
contracts of sale of any commodity in interstate commerce, or for 
future delivery on or subject to the rules of any registered entity. 
7 U.S.C. 9(1), 9(3), 13(a)(2); 17 CFR 180.1, 180.2.
    \7\ 7 U.S.C. 1a(18).
    \8\ 7 U.S.C. 1a(17); see also 7 U.S.C. 2(c)(2)(D)(iv).
    \9\ 7 U.S.C. 2(c)(2)(D)(i).
    \10\ 7 U.S.C. 6(a) (prohibiting the off-exchange trading of 
futures transactions by U.S. persons unless the transaction is 
conducted on or subject to the rules of a designated contract 
market).
    \11\ 7 U.S.C. 6(b) (permitting foreign boards of trade 
registered with the Commission with the ability to provide direct 
access to U.S. persons).
    \12\ 7 U.S.C. 6b (prohibiting fraudulent conduct in connection 
with any contract of sale of any commodity in interstate commerce, 
among other things).
    \13\ 7 U.S.C. 2(c)(2)(D)(iii).
    \14\ 7 U.S.C. 2(c)(2)(D)(ii)(III)(aa).
    \15\ The Commission has not adopted any regulations permitting a 
longer actual delivery period for any commodity pursuant to this 
statute. Accordingly, the 28-day actual delivery period remains 
applicable to all commodities, while retail foreign currency 
transactions remain subject to a 2-day actual delivery period 
pursuant to CEA section 2(c)(2)(C).
    \16\ 17 CFR 1.3(yy).
    \17\ In addition, certain commercial transactions and securities 
are excepted pursuant to CEA section 2(c)(2)(D)(ii).
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    The Dodd-Frank Act added CEA section 2(c)(2)(D) to address certain 
judicial uncertainty involving the Commission's regulatory oversight 
capabilities. The Commission has long held that certain speculative 
commodity transactions involving leverage or margin may have indicia of 
futures contracts, subjecting them to Commission oversight.\18\ 
However, judicial decisions emerged that called into question the 
Commission's oversight over certain leveraged retail transactions in 
currencies and other commodities.\19\ In 2008, Congress addressed this 
judicial uncertainty by providing the Commission with more explicit 
authority over retail foreign currency transactions in CEA section 
2(c)(2)(C).\20\ These new statutory provisions established a two-day 
actual delivery exception for such transactions.\21\ Two years later, 
Congress provided the Commission with explicit oversight authority over 
all other ``retail commodity transactions'' in CEA section 
2(c)(2)(D).\22\ As noted,

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these new statutory provisions established an exception for instances 
when actual delivery of the commodity occurs within 28 days.\23\
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    \18\ See In re Stovall, CFTC Docket No. 75-7 [1977-1980 Transfer 
Binder] Comm. Fut. L. Rep. (CCH) ] 20,941, at 23,777 (CFTC Dec. 6, 
1979) (applying traditional elements of a futures contract to a 
purported cash transaction).
    \19\ See, e.g., CFTC v. Zelener, 373 F.3d 861 (7th Cir. 2004); 
CFTC v. Erskine, 512 F.3d 309 (6th Cir. 2008).
    \20\ See Food, Conservation and Energy Act of 2008, Public Law 
110-246, 122 Stat. 1651 (2008).
    \21\ 7 U.S.C. 2(c)(2)(C)(i)(II)(bb)(AA).
    \22\ See Dodd-Frank Wall Street Reform and Consumer Protection 
Act of 2010, Public Law 111-203, 124 Stat. 1376 (2010); see also 
Hearing to Review Implications of the CFTC v. Zelener Case Before 
the Subcomm. on General Farm Commodities and Risk Management of the 
H. Comm. on Agriculture, 111th Cong. 52-664 (2009) (statement of 
Rep. Marshall, Member, H. Comm. on Agriculture) (``If in substance 
it is a futures contract, it is going to be regulated. It doesn't 
matter how clever your draftsmanship is.''); 156 Cong. Rec. S5,924 
(daily ed. July 15, 2010) (statement of Sen. Lincoln) (``Section 742 
corrects [any regulatory uncertainty] by extending the Farm Bill's 
``Zelener fraud fix'' to retail off-exchange transactions in all 
commodities.'') (emphasis added).
    \23\ 7 U.S.C. 2(c)(2)(D)(ii)(III)(aa).
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    In connection with its retail commodity transaction oversight, the 
Commission previously issued a proposed interpretation of the term 
``actual delivery'' in the context of CEA section 2(c)(2)(D), 
accompanied by a request for comment.\24\ In that interpretation, the 
Commission provided several examples of what may and may not satisfy 
the actual delivery exception. After reviewing public comments, the 
Commission issued a final interpretation in 2013 (the ``2013 
Guidance'').\25\
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    \24\ Retail Commodity Transactions Under Commodity Exchange Act, 
76 FR 77670 (Dec. 14, 2011).
    \25\ Retail Commodity Transactions Under Commodity Exchange Act, 
78 FR 52426 (Aug. 23, 2013).
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    The 2013 Guidance explained that the Commission will consider 
evidence ``beyond the four corners of contract documents'' to assess 
whether actual delivery of the commodity occurred.\26\ The Commission 
further noted that it will ``employ a functional approach and examine 
how the agreement, contract, or transaction is marketed, managed, and 
performed, instead of relying solely on language used by the parties in 
the agreement, contract, or transaction.'' \27\ The 2013 Guidance also 
included a list of relevant factors the Commission will consider in an 
actual delivery determination \28\ and again provided examples \29\ of 
what may and may not constitute actual delivery. As per the 2013 
Guidance, the only satisfactory examples of actual delivery involve 
transfer of title and possession of the commodity to the purchaser or a 
depository acting on the purchaser's behalf.\30\ Among other things, 
mere book entries and certain instances where a purchase is ``rolled, 
offset, or otherwise netted with another transaction'' do not 
constitute actual delivery.\31\
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    \26\ Id. at 52,428.
    \27\ Id.
    \28\ ``Relevant factors in this determination include the 
following: Ownership, possession, title, and physical location of 
the commodity purchased or sold, both before and after execution of 
the agreement, contract, or transaction, including all related 
documentation; the nature of the relationship between the buyer, 
seller, and possessor of the commodity purchased or sold; and the 
manner in which the purchase or sale is recorded and completed.'' 78 
FR at 52428.
    \29\ In the 2013 Guidance, Examples 1 and 2 illustrate 
circumstances where actual delivery is made, while Examples 3, 4 and 
5 illustrate circumstances where actual delivery is not made. In 
setting forth the examples, the Commission made clear that they are 
non-exclusive and were intended to provide the public with guidance 
on how the Commission would apply the interpretation. 78 FR at 
52427-28.
    \30\ Id.
    \31\ Id.
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    Within a year after the 2013 Guidance was released, the Eleventh 
Circuit issued an opinion affirming a preliminary injunction obtained 
by the Commission in CFTC v. Hunter Wise Commodities, LLC.\32\ Hunter 
Wise further reinforced the Commission's interpretation of actual 
delivery in the 2013 Guidance. Specifically, the Eleventh Circuit 
recognized that delivery ``denotes a transfer of possession and 
control.'' \33\ Indeed, ``[i]f `actual delivery' means anything, it 
means something other than simply `delivery,' for we must attach 
meaning to Congress's use of the modifier `actual.' '' \34\ 
Accordingly, the Court stated that actual delivery ``denotes `[t]he act 
of giving real and immediate possession to the buyer or the buyer's 
agent'' and constructive delivery does not suffice.\35\ Notably, the 
Eleventh Circuit found that its own holding harmonized with the 2013 
Guidance and recognized that the legislative history behind CEA section 
2(c)(2)(D) also ``complements'' its decision.\36\
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    \32\ CFTC v. Hunter Wise Commodities, LLC, et al., 749 F.3d 967 
(11th Cir. 2014) (hereinafter, Hunter Wise).
    \33\ 749 F.3d at 978-79, (citing Black's Law Dictionary 494 (9th 
ed. 2009)).
    \34\ 749 F.3d at 979.
    \35\ Id.
    \36\ 749 F.3d at 977.
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    Soon after the Hunter Wise decision, the Commission established 
that virtual currency is a commodity as that term is defined by CEA 
section 1a(9).\37\ Subsequently, the Commission brought its first 
enforcement action against a platform that offered virtual currency 
transactions to retail customers on a leveraged, margined, or financed 
basis without registering with the Commission.\38\ In the Bitfinex 
settlement order, the Commission found that the virtual currency 
platform violated CEA sections 4(a) and 4d because the unregistered 
entity ``did not actually deliver bitcoins purchased from them'' as 
prescribed within the actual delivery exception.\39\ Rather, the entity 
``held the purchased bitcoins in bitcoin deposit wallets that it owned 
and controlled.'' \40\
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    \37\ In re Coinflip, Inc., d/b/a Derivabit, and Francisco 
Riordan, CFTC Docket No. 15-29, 2015 WL 5535736, [Current Transfer 
Binder] Comm. Fut. L. Rep. (CCH) ] 33,538 (CFTC Sept. 17, 2015) 
(consent order); In re TeraExchange LLC, CFTC Docket No. 15-33, 2015 
WL 5658082, [Current Transfer Binder] Comm. Fut. L. Rep. (CCH) ] 
33,546 (CFTC Sept. 24, 2015) (consent order).
    \38\ In re BFXNA INC. d/b/a BITFINEX, CFTC Docket No. 16-19 
(June 2, 2016) (consent order) (hereinafter, Bitfinex).
    \39\ Id.
    \40\ Id.
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    After Bitfinex, the Commission received requests for guidance with 
regard to the meaning of the actual delivery exception in the specific 
context of virtual currency transactions. Accordingly, the Commission 
has decided to issue this proposed interpretation and seek public 
comment. The Commission is issuing this proposed interpretation to 
inform the public of the Commission's views as to the meaning of the 
term ``actual delivery'' in the context of virtual currency and to 
provide the public with guidance on how the Commission intends to 
assess whether any given retail commodity transaction in virtual 
currency (whereby an entity or platform offers margin trading or 
otherwise facilitates \41\ the use of margin, leverage, or financing 
arrangements for their retail market participants) results in actual 
delivery, as the term is used in CEA section 
2(c)(2)(D)(ii)(III)(aa).\42\ The Commission requests comment generally 
on this proposed interpretation and further invites comment on specific 
questions, as outlined within this release.
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    \41\ Specifically, CEA section 2(c)(2)(D)(i) captures any such 
retail commodity transaction ``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.''
    \42\ 7 U.S.C. 2(c)(2)(D)(ii)(III)(aa).
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II. Commission Interpretation of Actual Delivery for Virtual Currency

A. Virtual Currency as a Commodity

    As noted previously, the Commission considers virtual currency to 
be a commodity,\43\ like many other intangible commodities that the 
Commission has recognized over the course of its existence (e.g., 
renewable energy credits and emission allowances, certain indices, and 
certain debt instruments, among others).\44\ Indeed, since their 
inception, virtual currency

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structures were proposed as digital alternatives to gold and other 
precious metals.\45\ As a commodity, virtual currency is subject to 
applicable provisions of the CEA and Commission regulations.
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    \43\ In re Coinflip, Inc., d/b/a Derivabit, and Francisco 
Riordan, CFTC Docket No. 15-29, 2015 WL 5535736, [Current Transfer 
Binder] Comm. Fut. L. Rep. (CCH) ] 33,538 (CFTC Sept. 17, 2015) 
(consent order); In re TeraExchange LLC, CFTC Docket No. 15-33, 2015 
WL 5658082, [Current Transfer Binder] Comm. Fut. L. Rep. (CCH) ] 
33,546 (CFTC Sept. 24, 2015) (consent order).
    \44\ See generally Further Definition of ``Swap,'' ``Security-
Based Swap,'' and ``Security-Based Swap Agreement''; Mixed Swaps; 
Security-Based Swap Agreement Recordkeeping, 77 FR 48208 at 48233 
(Aug. 13, 2012) (discussing application of the swap forward 
exclusion to intangible commodities).
    \45\ Nick Szabo, Bit gold, Unenumerated (Dec. 27, 2008), https://unenumerated.blogspot.com/2005/12/bit-gold.html.
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    The Commission interprets the term virtual currency broadly. In the 
context of this interpretation, virtual or digital currency: \46\ 
Encompasses any digital representation of value (a ``digital asset'') 
that functions as a medium of exchange, and any other digital unit of 
account that is used as a form of a currency (i.e., transferred from 
one party to another as a medium of exchange); may be manifested 
through units, tokens, or coins, among other things; and may be 
distributed by way of digital ``smart contracts,'' among other 
structures.\47\ However, the Commission notes that it does not intend 
to create a bright line definition at this time given the evolving 
nature of the commodity and, in some instances, its underlying public 
distributed ledger technology (``DLT'' or ``blockchain'').
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    \46\ The Commission uses the term ``virtual currency'' and 
``digital currency'' interchangeably for purposes of this proposed 
interpretation. However, the Commission acknowledges that the two 
terms may have certain practical differences in other contexts. For 
example, one view is that ``digital currency'' includes fiat 
currencies, while ``virtual currency'' does not. See The Financial 
Action Task Force [FATF], Virtual Currencies: Key Definitions and 
Potential AML/CFT Risks, at 4 (June 27, 2014), https://www.fatf-gafi.org/media/fatf/documents/reports/Virtual-currency-key-definitions-and-potential-aml-cft-risks.pdf. Further, this 
interpretation is not intended to encompass transactions otherwise 
covered by CEA section 2(c)(2)(C) and related Commission 
regulations.
    \47\ One prominent type of virtual currency is cryptocurrency. 
Cryptocurrency is described as ``an electronic payment system based 
on cryptographic proof instead of trust, allowing any two willing 
parties to transact directly with each other without the need for a 
trusted third party.'' Satoshi Nakamoto, Bitcoin: A Peer-to-Peer 
Electronic Cash System (Oct. 31, 2008), https://bitcoin.org/bitcoin.pdf. Transactions are represented by a hash or ``chain of 
digital signatures,'' which takes into account the previous owner 
and the next owner. Given the lack of a centralized authority, 
transaction verification is ``publicly announced'' in a transparent 
ledger ``system for participants to agree on a single history'' of 
transactions. Id. Each transaction moves from one digital wallet to 
another, recognized as ``nodes'' on a distributed ledger network. 
This structure represents one form of DLT or blockchain technology, 
which underlies bitcoin--a widely traded virtual currency.
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B. The Commission's Interest in Virtual Currency

    The Commission recognizes that certain virtual currencies and their 
underlying blockchain technologies have the potential to yield notable 
advancements in applications of financial technology (``FinTech''). 
Indeed, as part of its efforts to facilitate beneficial FinTech 
innovation and help ensure market integrity, the Commission launched 
the LabCFTC initiative.\48\ This initiative provides the Commission 
with a platform to engage the FinTech community and promote market-
enhancing innovation in furtherance of improving the quality, 
resiliency, and competitiveness of the markets overseen by the 
Commission. As such, the Commission is closely following the 
development and continuing evolution of blockchain technologies and 
virtual currencies.
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    \48\ See Press Release, Commodity Futures Trading Commission, 
CFTC Launches LabCFTC as Major FinTech Initiative (May 17, 2017), 
https://www.cftc.gov/PressRoom/PressReleases/pr7558-17.
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    Moreover, since virtual currency can serve as an underlying 
component of derivatives transactions, the Commission maintains a close 
interest in the development of the virtual currency marketplace 
generally. As a practical matter, virtual currency, by virtue of its 
name, represents a digital medium of exchange for goods and services, 
similar to fiat currency.\49\ Over time, numerous centralized platforms 
have emerged as markets to convert virtual currency into fiat currency 
or other virtual currencies. These platforms provide a place to 
immediately exchange one commodity for another ``on the spot.''
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    \49\ Michael J. Casey and Paul Vigna, Bitcoin and the Digital-
Currency Revolution, The Wall Street Journal (Jan. 23, 2015), 
https://www.wsj.com/articles/the-revolutionary-power-of-digital-currency-1422035061 (``Once inside the coffee shop, you will open 
your wallet's smartphone app and hold its QR code reader up to the 
coffee shop's device'' to buy a cup of coffee).
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    Some of these centralized platforms also attempt to cater to those 
that wish to speculate on the price movements of a virtual currency 
against other currencies. For example, a speculator may purchase 
virtual currency using borrowed money in the hopes of covering any 
outstanding balance owed through profits from favorable price movements 
in the future. This interpretation is specifically focused on such 
``retail commodity transactions,'' whereby an entity or platform: (i) 
Offers margin trading or otherwise facilitates \50\ the use of margin, 
leverage, or financing arrangements for their retail market 
participants; (ii) typically to enable such participants to speculate 
or capitalize on price movements of the commodity--two hallmarks of a 
regulated futures marketplace.\51\
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    \50\ As noted earlier, CEA section 2(c)(2)(D)(i) captures any 
such retail transaction ``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.'' The Commission views any 
financing arrangements facilitated, arranged, or otherwise endorsed 
by the offeror or counterparty to satisfy this statutory definition 
for purposes of this interpretation.
    \51\ See, e.g., CFTC v. Int'l Foreign Currency, Inc., 334 F. 
Supp. 2d 305, 310 (E.D.N.Y. 2004) (listing elements typically found 
in a futures contract); In re Stovall, CFTC Docket No. 75-7 [1977-
1980 Transfer Binder] Comm. Fut. L. Rep. (CCH) ] 20,941, at 23,777 
(CFTC Dec. 6, 1979) (describing how futures contracts, being traded 
on margin, ``are entered into primarily for the purpose of assuming 
or shifting the risk of change in value of commodities, rather than 
for transferring ownership of the actual commodities.''); David J. 
Gilberg, Regulation of New Financial Instruments Under the Federal 
Securities and Commodities Laws, 39 Vand. L. Rev. 1599, 1603-04, 
n.14 (1986) (typically, futures ``traders are interested only in 
obtaining cash payments of price differentials, not actual 
commodities'').
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    Beyond their practical and speculative functions, the emergence of 
these nascent markets has also been negatively marked by a variety of 
retail customer harm that warrants the Commission's attention, 
including, among other things, flash crashes and other market 
disruptions,\52\ delayed settlements,\53\ alleged spoofing,\54\ 
hacks,\55\ alleged internal theft,\56\ alleged manipulation,\57\ smart 
contract coding vulnerabilities,\58\ bucket shop

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arrangements and other conflicts of interest.\59\ These types of 
activities perpetrated by bad actors can inhibit market-enhancing 
innovation, undermine market integrity, and stunt further market 
development.
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    \52\ See, e.g., Paul Vigna, Virtual Currencies Bitcoin and Ether 
Wrap Up a Wild Quarter, The Wall Street Journal, Jul. 3, 2017, at B6 
(describing a recent flash crash affecting the price of virtual 
currency Ether, caused by ``a multimillion-dollar sell order'' that 
subsequently ``sparked a cascade of stop-loss orders''); Paul Vigna, 
BitBeat: Bitcoin Price Drops on Block-Size Debate, `Flash Crash,' 
The Wall Street Journal (Aug. 20, 2015), https://blogs.wsj.com/moneybeat/2015/08/20/bitbeat-bitcoin-price-drops-on-block-size-debate-flash-crash/ (``bitcoin's speculative traders love this kind 
of stuff [margin trading]; these guys could easily give Wall 
Street's casino hotshots a run for their money'').
    \53\ Paul Vigna, Virtual Currencies Bitcoin and Ether Wrap Up a 
Wild Quarter, The Wall Street Journal, Jul. 3, 2017, at B6 
(``[t]here were delays of hours and even days.'').
    \54\ Lionel Laurent, Bitcoin Wrestles With Spoofy the Trader, 
Bloomberg Gadfly (Aug. 7, 2017), https://www.bloomberg.com/gadfly/articles/2017-08-07/bitcoin-has-a-spoofy-problem.
    \55\ See, e.g., Paul Vigna and Gregor Stuart Hunter, Bitcoin 
Sinks After Exchange Reports Hack, The Wall Street Journal (Aug. 3, 
2016), https://www.wsj.com/articles/bitcoin-sinks-after-exchange-reports-hack-1470195727; Nathaniel Popper and Rachel Abrams, 
Apparent Theft Rattles the Bitcoin World, N.Y. Times, Feb. 25, 2014, 
at B1; Alex Hern, A History of Bitcoin Hacks, The Guardian (Mar. 18, 
2014), https://www.theguardian.com/technology/2014/mar/18/history-of-bitcoin-hacks-alternative-currency.
    \56\ Jessica Lipscomb, Cryptsy Founder Paul Vernon Disappeared, 
Along With Millions of His Customers' Cash, Miami New Times (Jun. 
28, 2016), https://www.miaminewtimes.com/news/cryptsy-founder-paul-vernon-disappeared-along-with-millions-of-his-customers-cash-8557571.
    \57\ Izabella Kaminska, When OTC markets backfire, bitcoin 
edition, Financial Times--Alphaville (Mar. 8, 2017), https://ftalphaville.ft.com/2017/03/08/2185731/when-otc-markets-backfire-bitcoin-edition.
    \58\ Matthew Leising, The Ether Thief, Bloomberg Markets 
Magazine (Jun. 13, 2017), https://www.bloomberg.com/features/2017-the-ether-thief/ (while not technically an event specific to any one 
platform, this hack illustrates an event that dramatically affected 
the price and status of a virtual currency traded on such 
platforms).
    \59\ See, e.g., Vitalik Buterin, Bitfinex: Bitcoinica Rises From 
The Grave, Bitcoin Magazine (Nov. 22, 2012), https://bitcoinmagazine.com/articles/bitfinex-bitcoinica-rises-from-the-grave-1353644122; Matt Levine, How A Bank Should Be?, Bloomberg View 
(Mar. 11, 2015), https://www.bloomberg.com/view/articles/2015-03-11/how-should-a-bank-be- (``Just because you mumble the word 
`blockchain' doesn't make otherwise illegal things legal''); Matt 
Levine, Bitcoin Bucket Shop Kicks Bucket, Bloomberg View (Jun. 19, 
2015), https://www.bloomberg.com/view/articles/2015-06-19/bitcoin-bucket-shop-kicks-bucket.
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C. Actual Delivery of Virtual Currency

    As underscored by its efforts to engage the FinTech community, the 
Commission emphasizes that it does not intend to impede market-
enhancing innovation or otherwise harm the evolving virtual currency 
marketplace with this interpretation. To the contrary, the Commission 
believes this interpretation can help advance a healthy ecosystem and 
support further market-enhancing innovation. Additionally, the 
Commission takes seriously its goal of protecting U.S. retail market 
participants engaged in the virtual currency marketplace that falls 
within the Commission's jurisdiction--as it would with respect to 
retail market participants trading in any other retail commodity 
marketplace that falls within its jurisdiction. The Commission drafted 
this interpretation with such a balance in mind.
    As discussed above, a retail commodity transaction may be excepted 
from CEA section 2(c)(2)(D) (and thus not subject to CEA sections 4(a), 
4(b), and 4b) if actual delivery of the commodity occurs within 28 days 
of the transaction.\60\ The longstanding Model State Commodity Code 
also contains an exception from its ``commodity contract'' regulation 
when physical settlement occurs within 28 days.\61\ However, the Model 
State Commodity Code provides for the ability to lengthen or shorten 
its 28-day physical delivery exception time period, while CEA section 
2(c)(2)(D) only provides the Commission with the ability to lengthen 
its actual delivery exception time period.\62\ Therefore, absent 
Congressional action, the Commission is unable to reduce the actual 
delivery exception period for speculative, leverage-based retail 
commodity transactions in virtual currency. The one-size-fits-all 28 
day delivery period in CEA section 2(c)(2)(D) may not properly account 
for innovation or customary practice in certain cash markets, such as 
virtual currency transactions that would presumably take much less than 
28 days to deliver to a purchaser in a typical spot transaction.\63\ 
Without the application of CEA section 2(c)(2)(D), retail market 
participants that transact on platforms offering speculative 
transactions in virtual currency (involving margin, leverage, or other 
financing) will not be afforded many of the protections that flow from 
registration under the CEA. Despite the statutory limitations, the 
Commission will utilize its current statutory authority as best it can 
to prevent fraud in retail commodity transactions involving virtual 
currency.
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    \60\ 7 U.S.C. 2(c)(2)(D)(ii)(III)(aa).
    \61\ See Model State Commodity Code section 1.01(e), [1984-1986 
Transfer Binder] Comm. Fut. L. Rep. (CCH) ] 22,568 (Apr. 5, 1985).
    \62\ To date, the Commission has not chosen to extend the 28-day 
actual delivery period in any instance.
    \63\ Notably, Congress provided a 2-day actual delivery 
exception for retail foreign currency transactions. See 7 U.S.C. 
2(c)(2)(C)(i)(II)(bb)(AA).
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    The Commission, in interpreting the term actual delivery for the 
purposes of CEA section 2(c)(2)(D)(ii)(III)(aa), will continue to 
follow the 2013 Guidance and ``employ a functional approach and examine 
how the agreement, contract, or transaction is marketed, managed, and 
performed, instead of relying solely on language used by the parties in 
the agreement, contract, or transaction.'' \64\
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    \64\ 78 FR at 52428.
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    Further, the Commission will continue to assess all relevant 
factors \65\ to aid in such an actual delivery determination. More 
specifically, the Commission's view of when ``actual delivery'' has 
occurred within the context of virtual currency requires:
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    \65\ This list includes, but is not limited to ``[o]wnership, 
possession, title, and physical location of the commodity purchased 
or sold, both before and after execution of the agreement, contract, 
or transaction, including all related documentation; the nature of 
the relationship between the buyer, seller, and possessor of the 
commodity purchased or sold; and the manner in which the purchase or 
sale is recorded and completed.'' Id.
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    (1) A customer having the ability to: (i) Take possession and 
control of the entire quantity of the commodity, whether it was 
purchased on margin, or using leverage, or any other financing 
arrangement, and (ii) use it freely in commerce (both within and away 
from any particular platform) no later than 28 days from the date of 
the transaction; and
    (2) The offeror and counterparty seller (including any of their 
respective affiliates or other persons acting in concert with the 
offeror or counterparty seller on a similar basis) \66\ not retaining 
any interest in or control over any of the commodity purchased on 
margin, leverage, or other financing arrangement at the expiration of 
28 days from the date of the transaction.\67\
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    \66\ The Commission recognizes that the offeror of the 
transaction and the ultimate counterparty may be two separate 
entities or may be the same. For example, the Commission would 
consider as the offeror of the transaction a virtual currency 
platform that makes the transaction available to the retail customer 
or otherwise facilitates the transaction. That virtual currency 
platform could also be considered a counterparty to the transaction 
if, for example, the platform itself took the opposite side of the 
transaction or the purchaser of the virtual currency enjoyed privity 
of contract solely with the platform rather than the seller. 
Additionally, the Commission recognizes that some virtual currency 
platforms may provide a purchaser with the ability to source 
financing or leverage from other users or third parties. The 
Commission would consider such third parties or other users to be 
acting in concert with the offeror or counterparty seller on a 
similar basis.
    \67\ Among other things, the Commission may look at whether the 
offeror or seller retain any ability to access or withdraw any 
quantity of the commodity purchased from the purchaser's account or 
wallet.
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    Consistent with the 2013 Guidance, a sham delivery does not 
constitute actual delivery for purposes of this interpretation. The 
offeror and counterparty seller, including their agents, must retain no 
interest or control whatsoever in the virtual currency acquired by the 
purchaser at the expiration of 28 days from the date of entering into 
the transaction. Indeed, in its simplest form, actual delivery of 
virtual currency connotes the ability of a purchaser to utilize the 
virtual currency purchased ``on the spot'' to immediately purchase 
goods or services with the currency elsewhere.
    In the context of an ``actual delivery'' determination in virtual 
currency, physical settlement of the commodity must occur. A cash 
settlement or offset mechanism, as described in Example 4 below, will 
not satisfy the actual delivery exception of CEA section 2(c)(2)(D). 
The distinction between physical settlement and cash settlement in this 
context is akin to settlement of a spot foreign currency transaction at 
a commercial bank or hotel in a foreign nation--the customer receives 
physical foreign currency, not U.S. dollars. As mentioned, such 
physical settlement must occur within 28 days from the date on which 
the ``agreement, contract, or transaction is entered into'' to 
constitute ``actual delivery.'' \68\
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    \68\ 78 FR at 52427.
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    Consistent with the interpretation above, the Commission provides 
the following non-exclusive examples to further clarify the meaning of 
actual delivery in the virtual currency context:

[[Page 60340]]

    Example 1: Actual delivery of virtual currency will have occurred 
if, within 28 days of entering into an agreement, contract, or 
transaction, there is a record on the relevant public distributed 
ledger network or blockchain of the transfer of virtual currency, 
whereby the entire quantity of the purchased virtual currency, 
including any portion of the purchase made using leverage, margin, or 
other financing, is transferred from the counterparty seller's 
blockchain wallet \69\ to the purchaser's blockchain wallet, the 
counterparty seller retains no interest in or control over the 
transferred commodity, and the counterparty seller has transferred 
title \70\ of the commodity to the purchaser. When a matching platform 
or other third party offeror acts as an intermediary, the virtual 
currency's public distributed ledger must reflect the purchased virtual 
currency transferring from the counterparty seller's blockchain wallet 
to the third party offeror's blockchain wallet and, separately, from 
the third party offeror's blockchain wallet to the purchaser's 
blockchain wallet, provided that the purchaser's wallet is not 
affiliated with or controlled by the counterparty seller or third party 
offeror in any manner.
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    \69\ The source of the virtual currency is provided for purposes 
of this example. However, the focus of this analysis remains on the 
actions that would constitute actual delivery of the virtual 
currency to the purchaser.
    \70\ For purposes of this interpretation, title may be reflected 
by linking an individual purchaser with proof of ownership of the 
particular wallet or wallets that contain the purchased virtual 
currency.
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    Example 2: Actual delivery will have occurred if, within 28 days of 
entering into a transaction: (1) The counterparty seller has delivered 
the entire quantity of the virtual currency purchased, including any 
portion of the purchase made using leverage, margin, or financing, into 
the possession of a depository (i.e., wallet or other relevant storage 
system) other than one owned, controlled, or operated by the 
counterparty seller (including any parent companies, partners, agents, 
affiliates, and others acting in concert with the counterparty seller) 
\71\ that has entered into an agreement with the purchaser to hold 
virtual currency as agent for the purchaser without regard to any 
asserted interest of the offeror, the counterparty seller, or persons 
acting in concert with the offeror or counterparty seller on a similar 
basis; (2) the counterparty seller has transferred title of the 
commodity to the purchaser; (3) the purchaser has secured full control 
over the virtual currency (i.e., the ability to immediately remove the 
full amount of purchased commodity from the depository); and (4) no 
liens (or other interests of the offeror, counterparty seller, or 
persons acting in concert with the offeror or counterparty seller on a 
similar basis) resulting from the use of margin, leverage, or financing 
used to obtain the entire quantity of the commodity purchased will 
continue forward at the expiration of 28 days from the date of the 
transaction.
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    \71\ The Commission recognizes that an offeror could act in 
concert with both the purchaser and the counterparty seller in the 
ordinary course of business if it intermediates a transaction. It is 
not intended that such activity would prevent an offeror from 
associating with a depository, as otherwise allowed by this example.
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    Example 3: Actual delivery will not have occurred if, within 28 
days of entering into a transaction, a book entry is made by the 
offeror or counterparty seller purporting to show that delivery of the 
virtual currency has been made to the purchaser, but the counterparty 
seller or offeror has not, in accordance with the methods described in 
Example 1 or Example 2, actually delivered the entire quantity of the 
virtual currency purchased, including any portion of the purchase made 
using leverage, margin, or financing, and transferred title to that 
quantity of the virtual currency to the purchaser, regardless of 
whether the agreement, contract, or transaction between the purchaser 
and offeror or counterparty seller purports to create an enforceable 
obligation \72\ to deliver the commodity to the purchaser.
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    \72\ This ``enforceable obligation'' language is provided in 
reference to an exception to CEA section 2(c)(2)(D) that is limited 
by its terms to a commercial transaction involving two commercial 
entities with a pre-existing line of business in the commodity at 
issue that is separate and distinct from the business of engaging in 
a retail commodity transaction. See 7 U.S.C. 
2(c)(2)(D)(ii)(III)(bb).
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    Example 4: Actual delivery will not have occurred if, within 28 
days of entering into a transaction, the agreement, contract, or 
transaction for the purchase or sale of virtual currency is rolled, 
offset against, netted out, or settled in cash or virtual currency 
(other than the purchased virtual currency) between the purchaser and 
the offeror or counterparty seller (or persons acting in concert with 
the offeror or counterparty seller).

III. Request for Comment

    The Commission requests comment from the public regarding the 
Commission's proposed interpretation of ``actual delivery'' in the 
context of virtual currency and further invites comments on specific 
questions related to the Commission's treatment of virtual currency 
transactions. The Commission encourages all comments including 
background information, actual market examples, best practice 
principles, expectations for the possible impact on further innovation, 
and estimates of any asserted costs and expenses. Specifically, the 
Commission requests comment on the following questions:
    Question 1: As noted in this proposed interpretation, the 
Commission is limited in its ability to shorten the length of the 
actual delivery exception period for retail commodity transactions in 
virtual currency--which presumably take much less than 28 days to 
deliver to a purchaser. Would a 2-day actual delivery period, such as 
the actual delivery exception in CEA section 2(c)(2)(C), more 
accurately apply to such transactions in virtual currency? Would 
another actual delivery period be more appropriate? What additional 
information should the Commission consider in determining an 
appropriate actual delivery exception period for retail commodity 
transactions in virtual currency? If the Commission were to decide that 
a shorter actual delivery exception period would be more appropriate in 
the context of virtual currency, should the Commission engage Congress 
to consider an adjustment to CEA section 2(c)(2)(D)'s the actual 
delivery exception? For example, should the Commission seek that 
Congress amend CEA section 2(c)(2)(D)'s actual delivery exception to be 
more aligned with the broader delivery period adjustment language in 
the Model State Commodity Code?
    Question 2: With respect to the Commission's proposed 
interpretation, are there additional examples the Commission should 
consider in satisfaction of the ``actual delivery'' exception to CEA 
section 2(c)(2)(D)?
    Question 3: The Commission is concerned about offerors of virtual 
currency retail commodity transactions that may be subject to conflicts 
of interest, including situations such as an offeror or its principals 
taking the opposite side of a customer transaction, either directly or 
through an affiliated liquidity provider or market maker. These 
arrangements may, in certain circumstances, resemble bucket shops.\73\ 
How should the Commission evaluate such circumstances if a platform 
seeks to avail itself of the actual delivery exception? Are there any 
additional factors that the Commission should consider in its 
determination of whether

[[Page 60341]]

the ``actual delivery'' exception is available?
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    \73\ Vitalik Buterin, Bitfinex: Bitcoinica Rises From The Grave, 
Bitcoin Magazine (Nov. 22, 2012), https://bitcoinmagazine.com/articles/bitfinex-bitcoinica-rises-from-the-grave-1353644122 
(describing a bucket shop arrangement whereby a platform ``steps in 
and acts as the counterparty to some of its users,'' creating 
``perverse incentives'').
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    Question 4: As noted above, CEA sections 4(a), 4(b), and 4b apply 
to retail commodity transactions ``as if'' the transaction was a 
futures contract.\74\ Therefore, absent an exception, a retail 
commodity transaction must be offered on or subject to the rules of a 
designated contract market (``DCM'').\75\ Separately, an entity 
soliciting or accepting orders for retail commodity transactions and 
accepting money, securities, or property (or extending credit in lieu 
thereof) to margin, guarantee, or secure such transactions must 
register with the Commission as a futures commission merchant 
(``FCM'').\76\ As a result of these requirements, the Commission 
recognizes that certain entities or platforms will choose not to offer 
virtual currency retail commodity transactions. This business decision 
is not unique to any particular commodity. However, as noted earlier, 
the Commission does not intend to stifle innovation. Rather, it is 
acting to protect U.S. retail customers regarding transactions that 
fall within its jurisdiction. Therefore, the Commission requests 
comments as to what factors may be relevant to consider regarding the 
Commission's potential use of its exemptive authority under CEA section 
4(c) \77\ in this regard. For example, please note any advantages and 
disadvantages regarding the potential to establish a distinct 
registration and compliance regime for entities that seek to offer 
retail commodity transactions in virtual currency. Why would such 
treatment be uniquely warranted \78\ in the context of virtual 
currency? Please also note any other issues that the Commission should 
consider regarding such an analysis. What other alternatives should the 
Commission consider instead of establishing a distinct registration and 
compliance regime?
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    \74\ 7 U.S.C. 2(c)(2)(D)(iii).
    \75\ 7 U.S.C. 6(a).
    \76\ 7 U.S.C. 1a(28); 7 U.S.C. 6d(a).
    \77\ 7 U.S.C. 6(c).
    \78\ Arguably, beyond the distributed ledger technologies, 
entities offering virtual currency retail commodity transactions 
operate in a similar manner to any other entity offering retail 
commodity transactions online.
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    Question 5: In Example 2, the Commission sets forth a proposed set 
of facts that permits actual delivery to a depository instead of the 
purchaser. What should the Commission consider in further clarifying 
the meaning of ``depository'' for purposes of this interpretation? For 
example, could the depository maintain certain licenses or 
registrations in order to qualify for this example? In addition, should 
the Commission further prohibit the depository from being owned or 
operated by the offeror (including any offeror parent company, partner, 
agent, and other affiliates)? Please note any factors the Commission 
should consider in making this determination (such as the effect of 
contractual agreements between the depository and the offeror).
    Question 6: Example 2 also requires the purchaser to secure full 
control over the virtual currency once it is deposited in a depository 
in order for the fact pattern to constitute actual delivery. The 
Commission requests comment regarding what types of circumstances would 
ensure a purchaser has obtained ``full control'' of the commodity. For 
example, is possession of a unique key or other credentials that allow 
full access and ability to transfer virtual currency sufficient to 
provide full control? Similarly, how should the Commission view full 
control by a user in light of commonly used cybersecurity techniques 
and money transmitter procedures otherwise required by law?
    Question 7: Example 2 also requires that no liens resulting from 
the use of margin, leverage, or financing used to obtain the entire 
quantity of the commodity purchased by the buyer continue forward at 
the expiration of 28 days from the date of the transaction. The 
Commission requests comment regarding circumstances under which a lien 
would be considered terminated for purposes of this interpretation. For 
example, are there circumstances where the Commission should consider 
allowing ``forced sale'' scenarios, whereby the purchased virtual 
currency is used to satisfy any resulting liens from the retail 
commodity transaction, while still interpreting the transaction as 
having resulted in actual delivery to the purchaser? Should the 
Commission consider other types of lien scenarios or interests, such as 
those liens that would not provide a right to repossession of the 
commodity?
    Question 8: As noted above, the status of ``title'' is one of the 
factors the Commission considers in an actual delivery determination 
for retail commodity transactions.\79\ In Examples 1 and 2, this 
interpretation notes that ``title'' may be reflected by linking an 
individual purchaser with proof of ownership of the particular wallet 
or wallets that contain the purchased virtual currency. What additional 
examples, if any, should the Commission consider to address the status 
of ``title'' for the purposes of an actual delivery determination?
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    \79\ See 78 FR at 52428.
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    Question 9: While this interpretation is solely focused on the 
actual delivery exception to CEA section 2(c)(2)(D), the Commission 
recognizes other exceptions may be available.\80\ Specifically, the 
Commission recognizes that the SEC recently issued a statement 
regarding the application of federal securities laws to certain initial 
coin offerings (``ICOs'').\81\ Depending on their use, the tokens or 
units issued in an ICO may be commodities, commodity options, 
derivatives, or otherwise fall within the Commission's virtual currency 
definition described in this interpretation. However, any such tokens 
that are deemed securities (and trade in a manner that qualifies as a 
retail commodity transaction) would be excepted from the retail 
commodity transaction definition pursuant to section 2(c)(2)(D)(ii)(II) 
of the Act. Are there concerns with the scope of this exception with 
regard to retail commodity transactions? What factors should the 
Commission consider if it were to issue further guidance regarding this 
exception?
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    \80\ See generally 7 U.S.C. 2(c)(2)(D)(ii).
    \81\ Report of Investigation Pursuant to Section 21(a) of the 
Securities Exchange Act of 1934: The DAO, Exchange Act Release No. 
81207 (Jul. 25, 2017).

    Issued in Washington, DC, on December 15, 2017 by the 
Commission.
Christopher J. Kirkpatrick,
Secretary of the Commission.

Appendix to Retail Commodity Transactions Involving Virtual Currency--
Commission Voting Summary

    On this matter, Chairman Giancarlo and Commissioners Quintenz 
and Behnam voted in the affirmative. No Commissioner voted in the 
negative.

[FR Doc. 2017-27421 Filed 12-19-17; 8:45 am]
 BILLING CODE 6351-01-P