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2017-27421

  • [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: http://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: http://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

    http://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 http://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, praimondi@cftc.gov; or David P. Van Wagner, Chief

    Counsel, (202) 418-5481, dvanwagner@cftc.gov; 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,

    [[Page 60337]]

    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

    [[Page 60338]]

    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), http://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), http://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),

    http://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

    [[Page 60339]]

    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), http://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), http://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), http://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), http://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), http://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.

    ---------------------------------------------------------------------------

    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.

    ---------------------------------------------------------------------------

    \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).

    ---------------------------------------------------------------------------

    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\

    ---------------------------------------------------------------------------

    \64\ 78 FR at 52428.

    ---------------------------------------------------------------------------

    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:

    ---------------------------------------------------------------------------

    \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.

    ---------------------------------------------------------------------------

    (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\

    ---------------------------------------------------------------------------

    \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.

    ---------------------------------------------------------------------------

    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\

    ---------------------------------------------------------------------------

    \68\ 78 FR at 52427.

    ---------------------------------------------------------------------------

    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.

    ---------------------------------------------------------------------------

    \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.

    ---------------------------------------------------------------------------

    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.

    ---------------------------------------------------------------------------

    \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.

    ---------------------------------------------------------------------------

    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.

    ---------------------------------------------------------------------------

    \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).

    ---------------------------------------------------------------------------

    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?

    ---------------------------------------------------------------------------

    \73\ Vitalik Buterin, Bitfinex: Bitcoinica Rises From The Grave,

    Bitcoin Magazine (Nov. 22, 2012), http://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'').

    ---------------------------------------------------------------------------

    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?

    ---------------------------------------------------------------------------

    \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.

    ---------------------------------------------------------------------------

    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?

    ---------------------------------------------------------------------------

    \79\ See 78 FR at 52428.

    ---------------------------------------------------------------------------

    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?

    ---------------------------------------------------------------------------

    \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

    Last Updated: December 20, 2017