CFTC advance notice RIN 3038-AF80, released 5 October 2026, asks how to regulate retail crypto trades offered with leverage, margin, or financing, and its 60-day comment clock starts only once the Federal Register publishes it

On 5 October 2026 the Commodity Futures Trading Commission released the approved text of its advance notice of proposed rulemaking, Regulation Crypto Asset Transactions and Regulation Crypto Asset Markets. The notice is a set of questions and preliminary views, with no rule text that binds anyone. It is not yet in the Federal Register, and comments are due 60 days after publication. A proposed rule, and then a final rule, would be separate later steps.

If a rule along these lines is ever adopted, it would apply to a U.S. retail customer who buys crypto with leverage, margin, or financing from a platform, and to the platforms that offer it.

Retail trades on leverage

Congress added section 2(c)(2)(D) of the Commodity Exchange Act in the 2010 Dodd-Frank Act after CFTC v. Zelener let rolling retail contracts escape the futures rules.

Unless an exception applies, section 2(c)(2)(D) covers a trade in a commodity (the asset under the contract) with a retail customer, or an offer of that trade even if the customer never takes it, when the deal is leveraged, margined, or financed by the offeror, the other side, or someone acting with them. Retail means the customer is not an eligible contract participant (a large or institutional trader) or an eligible commercial entity.

Those trades are treated as if they were futures. Offering, executing, or soliciting one is unlawful unless it happens on a designated contract market, a futures exchange the CFTC has registered, or under that exchange’s rules. A foreign board of trade registered to give people in the United States direct access is covered, and so is the Act’s ban on fraud.

Actual delivery is the main exception. The statute excepts a sale delivered within 28 days, or within a longer period the Commission sets by rule based on typical cash-market practice. In 2019 the Ninth Circuit, in CFTC v. Monex, required real and immediate possession by the buyer or the buyer’s agent. A book entry under the broker’s exclusive control is not delivery.

The Commission has not clarified, by rule, when an offer of leverage pulls a crypto trade into section 2(c)(2)(D). On the Commission’s reading, a covered offer can appear in onboarding documents, exchange terms, or margin paperwork, and can cover one trade, an account, a product class, or every trade on a platform. Financing counts if the platform arranges it, advertises it, shares the revenue, hosts it, or materially assists it, even when another firm extends the credit. A customer who pays in full after declining the leverage stays covered until actual delivery or another exception.

A CTX, stablecoins, and the keys

A crypto asset is any digital representation of value recorded on a cryptographically secured distributed ledger. A crypto asset transaction, or CTX, is a retail commodity trade under section 2(c)(2)(D) that involves one of those assets.

Footnote 1 excludes a payment stablecoin issued by a permitted payment stablecoin issuer, as the GENIUS Act defines those terms, from “commodity.” Any other crypto asset could meet that definition. A payment stablecoin from a foreign payment stablecoin issuer registered with the Office of the Comptroller of the Currency is outside that exclusion and, the footnote says, will generally not be a commodity either.

The Commission’s preliminary view is that actual delivery requires possession and control, which may mean holding the private keys to the wallet or account. Governance rights or staking rewards may have to be exercised by the buyer directly, and staking may have to be free of an intermediary’s fee. A fully paid trade recorded only on the exchange’s own books stays covered until actual delivery, and in that preliminary view it still has the characteristics of the rolling contracts in Zelener. After actual delivery, authority over that asset is limited to antifraud and antimanipulation.

Many onchain trading protocols, on the Commission’s preliminary understanding, typically put the purchased coins in the buyer’s wallet and meet that reading. It asks for comment on that understanding.

The crypto asset market

A crypto asset market, or CAM, is a subcategory of designated contract market (DCM) registration for an exchange that offers only CTXs. Regulation CAM (Regulation Crypto Asset Markets) is the proposed rule that would create that subcategory. Such an exchange would meet the statutory DCM core principles through a tailored set of rules, the CAM Core Principles, that Regulation CAM would lay down. An exchange already registered for other products could, the Commission preliminarily believes, keep listing CTXs under its current DCM registration.

Every CTX would, on this preliminary view, go through a futures commission merchant (FCM) and a derivatives clearing organization. The FCM takes the order and the money or property posted as margin. The clearing organization settles the trade. Retail leverage, margin, or financing would be allowed only through an FCM, or a depository institution the FCM sponsors, and only if the arrangement is in the CAM rulebook. Crypto firms often combine listing, trading, settlement, and custody, and the notice contemplates a CAM that also registers as an FCM, a clearing organization, or both.

Chairman Michael S. Selig said: “The American people deserve clarity, certainty, and consumer protections in the crypto asset markets and the agency is committed to delivering this by incorporating crypto asset transactions into its uniform national market regulatory framework.”

The notice itself says the Commission’s mandates, in its preliminary view, require it to consider clarifying how market participants may elect to do business in crypto asset markets under a uniform set of regulations that provides a national regime for CTXs, while preserving access to “other markets.” It says past enforcement actions never made clear who the Commission would hold accountable or for what. In the notice’s account, that uncertainty “forced [market participants] offshore in the face of Commission enforcement actions.” The enforcement record the notice recounts includes a 2 June 2016 order against BFXNA Inc., doing business as Bitfinex, for off-exchange financed retail commodity transactions and a US$75,000 penalty, and a 27 September 2018 case against 1pool Ltd. for violating section 2(c)(2)(D) and for failing to implement adequate anti-money-laundering procedures.

On 15 September 2026 the Senate failed to invoke cloture on the motion to proceed to H.R. 3633, the bill a Baker Botts note identifies as the Digital Asset Market Clarity Act.

Comments go through Regulations.gov once the Federal Register opens the period. They should name the notice and RIN 3038-AF80. A comment that is not in English has to include an English translation.

As of 8 October 2026, the Federal Register document index listed no document for RIN 3038-AF80, and that morning’s public-inspection list had not been posted. The approved text still prints the comment date as 60 days after publication.