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Proposed Rule2026-21377

Further Definition of “Swap”-Inclusions

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Published
October 19, 2026

Issuing agencies

Commodity Futures Trading Commission

Abstract

Consistent with its jurisdiction over swaps, the Commodity Futures Trading Commission ("Commission" or "CFTC") is proposing to further define the term "swap" to explicitly include event contracts, including those based on sports-, politics-, cultural-, and weather- related events (the "Proposal").

Full Text

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<title>Federal Register, Volume 91 Issue 200 (Monday, October 19, 2026)</title>
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[Federal Register Volume 91, Number 200 (Monday, October 19, 2026)]
[Proposed Rules]
[Pages 66022-66033]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2026-21377]


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COMMODITY FUTURES TRADING COMMISSION

17 CFR Part 1

RIN 3038-AF82


Further Definition of ``Swap''--Inclusions

AGENCY: Commodity Futures Trading Commission.

ACTION: Notice of proposed rulemaking.

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SUMMARY: Consistent with its jurisdiction over swaps, the Commodity 
Futures Trading Commission (``Commission'' or ``CFTC'') is proposing to 
further define the term ``swap'' to explicitly include event contracts, 
including those based on sports-, politics-, cultural-, and weather-
related events (the ``Proposal'').

DATES: Comments must be received by November 18, 2026.

ADDRESSES: You may submit comments, specifically referencing ``Further 
Definition of `Swap'--Inclusions'' and RIN 3038-AF82, by any of the 
following methods:
    <bullet> <a href="http://Regulations.gov">Regulations.gov</a>: Go to <a href="https://www.regulations.gov">https://www.regulations.gov</a> and 
press the ``Search'' button, then proceed as follows:
    1. Under Refine Documents Results--check the box to ``Only show 
documents open for comment'';
    2. Under Agency--select ``See More'' and check the box for 
``Commodity Futures Trading Commission,'' then press the Apply button;
    3. Identify this Proposal in the list of CFTC documents open for 
comment, press the ``Comment'' button to open the submission form, and 
follow the instructions on the form.
    Alternatively, if you are viewing this Proposal on 
<a href="http://www.federalregister.gov">www.federalregister.gov</a>, click the ``Submit A Public Comment'' button 
at the top of the page to open the comment form. Follow the 
instructions on the form to submit your comment to <a href="http://Regulations.gov">Regulations.gov</a>.
    <bullet> Mail: Send to--Christopher Kirkpatrick, Secretary of the

[[Page 66023]]

Commission, Commodity Futures Trading Commission, Three Lafayette 
Centre, 1155 21st Street NW, Washington, DC 20581.
    <bullet> Hand Delivery/Courier: Address to--CFTC Comment 
Submission, Attn: Christopher Kirkpatrick, Secretary of the Commission, 
Commodity Futures Trading Commission, Three Lafayette Centre, 1155 21st 
Street NW, Washington, DC 20581.
    Please submit your comments using only one of these methods. To 
avoid possible delays with mail or in-person deliveries, submissions 
through <a href="http://Regulations.gov">Regulations.gov</a> are encouraged. As required by the 
Administrative Procedure Act, a plain language summary of the rule is 
also available at <a href="http://Regulations.gov">Regulations.gov</a>.\1\
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    \1\ 5 U.S.C. 553(b)(4).
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    All comments must be submitted in English or, if not, accompanied 
by an English translation. Do not include in your comment text or 
attachments any personal identifying information or business 
information that you do not want published online. Comments (regardless 
of submission method) will be published without review for, and without 
removal of, any personal identifying information or information your 
business may consider confidential.
    If you wish to submit confidential information for the Commission's 
consideration, please contact the CFTC personnel listed in this Notice 
under FOR FURTHER INFORMATION CONTACT before making any submission. 
Please also carefully review the Commission's procedures in 17 CFR 
145.9 for requesting confidential treatment under the Freedom of 
Information Act (FOIA) of information submitted to the Commission.
    The CFTC reserves the right, but shall have no obligation, to 
review, pre-screen, filter, or redact all or any part of your comment 
submission. The CFTC also reserves the right, without further 
notification, to refuse to publish or to remove from public view all or 
any part of your submission to the extent it contains content 
inappropriate for publication in a comment file, such as--without 
limitation--obscene language, threats of violence, solicitations for 
commercial sales or illegal activity, or obvious spam. If a submission 
that is refused for or withdrawn from publication because of 
inappropriate content also contains comments on the merits of this 
Proposal, such submission will be retained in the record for the matter 
and will be considered as required under the Administrative Procedure 
Act and other applicable laws, and may be accessible under the FOIA.

FOR FURTHER INFORMATION CONTACT: Tyler S. Badgley, General Counsel; 
Aaron M. Levine, Deputy General Counsel for Regulation, 
<a href="/cdn-cgi/l/email-protection#394b4c555c54585250575e795a5f4d5a175e564f"><span class="__cf_email__" data-cfemail="deacabb2bbb3bfb5b7b0b99ebdb8aabdf0b9b1a8">[email&#160;protected]</span></a>, 202-418-5000, Office of the General Counsel, 
Commodity Futures Trading Commission, Three Lafayette Centre, 1155 21st 
Street NW, Washington, DC 20581.

SUPPLEMENTARY INFORMATION:

I. Background

    Title VII of the Dodd-Frank Wall Street Reform and Consumer 
Protection Act (``Dodd-Frank Act'') established a comprehensive 
regulatory framework for swaps.\2\ Section 712(d)(1) of the Dodd-Frank 
Act provides that the Commission and the Securities and Exchange 
Commission (``SEC''), in consultation with the Board of Governors of 
the Federal Reserve System (the ``Federal Reserve Board''), shall 
jointly further define, among other terms, the term ``swap.'' \3\ 
Pursuant to this requirement, in 2012, the Commission and the SEC, in 
consultation with the Federal Reserve Board, issued a final rule 
further defining the term ``swap'' and other terms.\4\
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    \2\ See Dodd-Frank Wall Street Reform and Consumer Protection 
Act, Public Law 111-203, 124 Stat. 1376, 1641 (2010). The text of 
the Dodd-Frank Act is available at <a href="http://www.cftc.gov/LawRegulation/OTCDERIVATIVES/index.htm">http://www.cftc.gov/LawRegulation/OTCDERIVATIVES/index.htm</a>.
    \3\ Dodd-Frank Act sec. 712(d)(1), 15 U.S.C. 8302(d)(1) 
(directing the CFTC and SEC to undertake joint rulemaking on covered 
topics). The CFTC shares jurisdiction over mixed swaps and security 
futures with the SEC, and the SEC has sole jurisdiction over 
security-based swaps. See Commodity Exchange Act (``CEA'') sec. 
1a(44), 7 U.S.C. 1a(44), and secs. 3(a)(55) and 3(a)(68) of the 
Securities Exchange Act of 1934 (``Exchange Act''), 15 U.S.C. 
78c(a)(55) and 78c(a)(68). The Commission has consulted with the 
Federal Reserve Board by sharing this Proposal.
    \4\ Further Definition of ``Swap,'' ``Security-Based Swap,'' and 
``Security-Based Swap Agreement''; Mixed Swaps; Security-Based Swap 
Agreement Recordkeeping, 77 FR 48208 (Aug. 13, 2012) (``Further 
Definition Release'').
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    This Proposal seeks to clarify that event contracts, including 
those based on sports-, politics-, cultural-, and weather-related 
events, are swaps within the CFTC's jurisdiction. The CFTC has 
historically recognized that many event contracts are covered by the 
Commodity Exchange Act's (the ``CEA'') swap definition.\5\ Under 
section 1a(47)(A) of the CEA, the term swap is defined ``broadly.'' \6\ 
As discussed further in this section below, CEA section 1a(47)(A)(ii) 
defines ``swap'' to include ``any agreement, contract, or transaction . 
. . that provides for any purchase, sale, payment, or delivery (other 
than a dividend on an equity security) that is dependent on the 
occurrence, nonoccurrence, or the extent of the occurrence of an event 
or contingency associated with a potential financial, economic, or 
commercial consequence.'' \7\
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    \5\ Event contracts might be structured as other instruments 
such as futures contracts, which are excluded from the statutory 
definition of ``swap.'' CEA section 1a(47)(B), 7 U.S.C. 1a(47)(B) 
(providing ``exclusions'' from the definition of ``swap'' under the 
CEA, including futures, options on futures, securities such as 
options on securities and indexes of securities, security-based 
swaps, and debt securities). Certain event contracts may be 
security-based swaps or other instruments subject to the SEC's 
jurisdiction. See 7 U.S.C. 1a(47)(B) (providing ``exclusions'' from 
the definition of ``swap'' under the CEA, including for securities 
such as security based- swaps, certain options, and debt 
securities); see also, e.g., 15 U.S.C. 78c(a)(68)(A) (defining 
``security-based swap'' under the Securities Exchange Act of 1934). 
This Proposal does not propose to further define the term 
``security-based swap.''
    \6\ United States v. Phillips, 155 F.4th 102, 113 (2d Cir. 
2025).
    \7\ 7 U.S.C. 1a(47)(A)(ii).
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    The broad nature of clause (ii) of the swap definition is in 
keeping with the broad definition of the term ``commodity'' in the CEA. 
The 1974 amendments to the CEA expanded the definition of the term 
``commodity'' to encompass ``all services, rights, and interests in 
which contracts for future delivery are presently or in the future 
dealt in.'' \8\ In 2000, Congress reaffirmed the broad scope of the 
commodity definition in adding the term ``excluded commodity'' to the 
CEA--which, despite the name, is a commodity.\9\ This term includes, 
among other indices and measures, any ``occurrence, extent of an 
occurrence, or contingency'' of financial, commercial, or economic 
consequence that is beyond the control of any party to the relevant 
derivatives contract and is not based on a change in the price, rate, 
value, or level of a physical commodity.\10\ Derivatives

[[Page 66024]]

contracts based on these `` excluded commodities'' are subject to the 
Commission's jurisdiction just as derivatives based on other 
commodities are.
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    \8\ See CEA sec. 1a(9), 7 U.S.C. 1a(9) (defining ``commodity'').
    \9\ The definition of ``excluded commodity'' was adopted as part 
of an amendment to the CEA to exclude certain contracts based on 
financial commodities or commodities with an infinite supply from 
the requirement that contracts for the sale of a commodity for 
future delivery be traded on an exchange registered with the CFTC 
(the ``exchange trading requirement''). See infra note 72 and 
accompanying text. Still, the ``excluded commodities'' are within 
the definition of ``commodity.'' See United States v. Wilkinson, 986 
F.3d 740, 745 (7th Cir 2021) (futures based on ``excluded 
commodities'' ``remain `commodities' under the Act as a whole'').
    \10\ CEA sec. 1a(19), 7 U.S.C. 1a(19). Specifically, the statute 
provides that the term ``excluded commodity'' includes ``an 
occurrence, extent of an occurrence, or contingency (other than a 
change in the price, rate, value, or level of a commodity not 
described in clause (i)) that is--(I) beyond the control of the 
parties to the relevant contract, agreement, or transaction; and 
(II) associated with a financial, commercial, or economic 
consequence,'' where ``clause (i)'' refers to the first clause of 
the definition. CEA sec. 1a(19)(iv), 7 U.S.C. 1a(19)(iv).
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    The definition of ``excluded commodity'' makes clear that events 
that fall within the definition, including those related to sports, 
politics, culture, and weather, are themselves commodities.\11\ The 
CFTC has a long history of regulating event contracts. ``Since 1992, 
Commission-regulated exchanges have listed for trading a variety of 
commodity futures and options contracts with payout terms based on'' 
events ``as diverse as regional insured property losses, the count of 
bankruptcies, temperature volatilities, corporate mergers, and 
corporate credit events,'' and in subsequent years, event contracts 
encompassed ``the accomplishment of certain scientific advances, world 
population levels, the adoption of particular pieces of legislation,'' 
and even ``the length of celebrity marriages.'' \12\ In 1993, the 
Commission issued a no-action letter to Iowa Electronic Markets, 
allowing the facility to list event contracts tied to U.S. and Canadian 
elections.\13\ In 2004, the CFTC designated the first contract market 
(``DCM'') dedicated to listing contracts based on events that are 
excluded commodities.\14\ Initially, these contracts were structured as 
commodity options known as ``binary options,'' the cash settlement of 
which was based on whether a specified event had occurred.\15\
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    \11\ See CFTC, Statement of Commissioner Brian D. Quintenz on 
ErisX RSBIX NFL Contracts and Certain Event Contracts (Mar. 25, 
2021) (``When we think of commodities, we think of tangible things. 
. . . But what about an event? An election? Whether the Summer 
Olympics will occur in Japan? A . . . football game? Those, too, are 
commodities!''), available at <a href="https://www.cftc.gov/PressRoom/SpeechesTestimony/quintenzstatement032521">https://www.cftc.gov/PressRoom/SpeechesTestimony/quintenzstatement032521</a>.
    \12\ Concept Release on Appropriate Regulatory Treatment of 
Event Contracts, 73 FR 25669, 25670-71 (May 7, 2008).
    \13\ CFTC Staff Letter No. 93-66 (June 18, 1993), available at 
<a href="https://www.cftc.gov/sites/default/files/idc/groups/public/@lrlettergeneral/documents/letter/93-66.pdf">https://www.cftc.gov/sites/default/files/idc/groups/public/@lrlettergeneral/documents/letter/93-66.pdf</a>.
    \14\ See CFTC Release No. 4894-04, CFTC Designates HedgeStreet 
as a Contract Market and as a Registered Clearing Organization (Feb. 
20, 2004), and the related DCM Order of Designation for HedgeStreet, 
Inc. (Feb. 18, 2004), available at <a href="https://www.cftc.gov/sites/default/files/opa/press04/opa4894-04.htm">https://www.cftc.gov/sites/default/files/opa/press04/opa4894-04.htm</a>. In 2009, HedgeStreet 
changed its name to North American Derivatives Exchange, Inc., or 
Nadex, and in 2025, Nadex transitioned to the <a href="http://Crypto.com">Crypto.com</a> platform. 
See summary of registration, available at <a href="https://www.cftc.gov/IndustryOversight/IndustryFilings/TradingOrganizations/34536">https://www.cftc.gov/IndustryOversight/IndustryFilings/TradingOrganizations/34536</a>. It 
continues to list contracts on foreign exchange, equity indices, 
commodity prices, and digital assets.
    \15\ See, e.g., Letter from HedgeStreet, Inc. to David Stawick, 
Sec'y, CFTC, Re: Rule Certification: HedgeStreet's listing of new 
Germany 30 Binary Hedgelet Contracts (Oct. 30, 2008), available at 
<a href="https://www.cftc.gov/sites/default/files/stellent/groups/public/@rulesandproducts/documents/ifdocs/rul103008hedgestreet001.pdf">https://www.cftc.gov/sites/default/files/stellent/groups/public/@rulesandproducts/documents/ifdocs/rul103008hedgestreet001.pdf</a>.
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    Under the plain language of the CEA, event contracts are implicated 
by four clauses of the ``swap'' definition.
    First, CEA section 1a(47)(A)(ii) defines ``swap'' to include ``any 
agreement, contract, or transaction . . . that provides for any 
purchase, sale, payment, or delivery (other than a dividend on an 
equity security) that is dependent on the occurrence, nonoccurrence, or 
the extent of the occurrence of an event or contingency associated with 
a potential financial, economic, or commercial consequence.'' \16\
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    \16\ 7 U.S.C. 1a(47)(A)(ii).
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    Second, CEA section 1a(47)(A)(i) includes binary options and other 
commodity options in the ``swap'' definition by including ``any 
agreement, contract, or transaction . . . that is a put, call, cap, 
floor, collar, or similar option of any kind that is for the purchase 
or sale, or based on the value, of 1 or more interest or other rates, 
currencies, commodities, securities, instruments of indebtedness, 
indices, quantitative measures, or other financial or economic 
interests or property of any kind.'' \17\
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    \17\ 7 U.S.C. 1a(47)(A)(i). A binary option is thus a type of 
swap which is an ``option whose payoff is either a fixed amount or 
zero.'' See CFTC, Futures Glossary, available at <a href="https://www.cftc.gov/LearnAndProtect/AdvisoriesAndArticles/CFTCGlossary/index.htm#B">https://www.cftc.gov/LearnAndProtect/AdvisoriesAndArticles/CFTCGlossary/index.htm#B</a>.
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    Third, CEA section 1a(47)(A)(iv) includes in the ``swap'' 
definition ``an agreement, contract, or transaction that is, or in the 
future becomes, commonly known to the trade as a swap.'' \18\
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    \18\ 7 U.S.C. 1a(47)(A)(iv).
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    Finally, CEA section 1a(47)(A)(vi) makes clear that the ``swap'' 
definition includes ``any combination or permutation of, or option on, 
any agreement, contract, or transaction described in any of clauses (i) 
through (v)'' of CEA section 1a(47)(A).\19\
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    \19\ 7 U.S.C. 1a(47)(A)(vi).
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    In addition to the ``swap'' definitions provided by the statute, 
the Dodd-Frank Act included several provisions that give the Commission 
authority to further define ``swap.'' First, Dodd-Frank Act section 
712(d)(2), 15 U.S.C. 8302(d)(1), directs the CFTC and SEC, in 
consultation with the Federal Reserve Board, to ``further define'' the 
term ``swap.'' \20\ Second, Dodd-Frank Act section 721(b), 15 U.S.C. 
8321(a)(2), permits the CFTC to define any term included in an 
amendment to the CEA in Subtitle A of the Wall Street Transparency and 
Accountability Act of 2010, which includes the term ``swap.'' Third, 
Dodd-Frank Act section 721(b), 15 U.S.C. 8321(b), directs the CFTC to 
further define ``swap'' to include transactions and entities that have 
been structured to evade Subtitle A.
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    \20\ As mentioned, the CFTC and SEC, in consultation with the 
Federal Reserve Board, first further defined ``swap'' in a 2012 
joint rulemaking. Further Definition Release, 77 FR 48208. In that 
rulemaking, the CFTC and SEC noted that, while ``[t]he statutory 
definitions of the terms `swap' and `security-based swap' are 
detailed and comprehensive, . . . the definitions could be read to 
include certain types of agreements, contracts, and transactions 
that previously have not been considered swaps or security-based 
swaps, and nothing in the legislative history of the Dodd-Frank Act 
appears to suggest that Congress intended such agreements, 
contracts, or transactions to be regulated as swaps or security-
based swaps.'' The CFTC and SEC thus used their authority ``to 
further clarify the treatment under the definitions of certain types 
of agreements, contracts, and transactions.'' Id. at 48211.
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    In recent months, States have taken actions and courts have issued 
rulings that undermine the CFTC's jurisdiction over event contracts. 
The State of Minnesota enacted a criminal prohibition on the operation 
or facilitation of a ``prediction market,'' which purports to make it a 
felony to offer event contracts on athletic events, elections, 
policymaking decisions, and a variety of other events.\21\ The State of 
Arizona filed a ``twenty-count criminal information'' against a DCM in 
Arizona Superior Court for offering event contracts on sports and 
elections in the State.\22\ The State of New York sought a temporary 
restraining order in State court that would prohibit a DCM from 
offering event ``contracts relating to sports, culture, elections, and 
other events'' ``within or from New York or to persons in New York.'' 
\23\ Because that DCM is headquartered in New York, that relief 
threatens to prohibit it from offering event contracts nationwide. That 
same DCM has also been ordered by State trial courts to geofence its 
offering of sports-related event contracts in the States of Michigan, 
Washington, and Nevada.\24\
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    \21\ United States v. Minnesota, Nos. 26-cv-2661, 26-cv-2778, 
26-cv-2841, __F. Supp. 3d __, 2026 WL 2150211, at *4-5 (D. Minn. 
July 27, 2026) (citing Minn. Stat. 609.7615, subd. 1(e)).
    \22\ KalshiEX LLC v. Johnson, 832 F. Supp. 3d 954, 958 (D. Ariz. 
2026).
    \23\ People of the State of New York v. KalshiEX LLC, Index No. 
453272/2026, Doc. 3 at 2 (N.Y. Sup. Ct. July 31, 2026); see People 
of the State of New York v. KalshiEX LLC, No. 1:26-cv-06550, Dkt. 
No. 1 (S.D.N.Y. July 31, 2026) (removed to Federal court).
    \24\ Nessel v. KalshiEX LLC, No. 26-1087-CZ at 3-4 (30th Jud. 
Dist. Circuit Ct. June 29, 2026); State of Washington v. KalshiEX, 
LLC, No. 26-2-10264-3 SEA (King Cnty. Superior Ct. Aug. 12, 2026); 
State of Nevada ex rel. Nevada Gaming Control Board v. KalshiEX, 
LLC, No. 260000050-1B (1st Jud. Dist. Ct. Nev.).

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[[Page 66025]]

    To date, three Federal courts of appeals have issued rulings 
concerning whether an event contract whose underlying is related to an 
outcome of a sporting event is a swap under CEA section 1a(47)(A)(ii). 
In April 2026, a divided panel of the United States Court of Appeals 
for the Third Circuit held in KalshiEX, LLC v. Flaherty that because 
``sports-related event contracts are traded on a CFTC-licensed DCM and 
depend on event outcomes associated with economic consequences, they 
fit within the Act's definition of `swaps' subject to the CFTC's 
jurisdiction.'' \25\ The dissenting judge also agreed that a ``plain 
reading of the Act's text suggests that [ ] sports-event contracts fit 
comfortably within the statutory definition.'' \26\
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    \25\ ,172 F.4th 220, 228 (3d Cir. 2026) (citing 7 U.S.C. 
2(a)(1)(A), 1a(47)(A)(ii)).
    \26\ Id. at 223 (Roth, J., dissenting).
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    In August 2026, the United States Court of Appeals for the Ninth 
Circuit adopted the opposite interpretation of CEA section 
1a(47)(A)(ii).\27\ After acknowledging that ``the CEA expressly 
preempts state law regulating swaps `traded or executed on' a DCM,'' 
the court rejected the ``dictionary definitions'' and ``plain-language 
appeal'' of the Third Circuit's interpretation and concluded that, as 
used in the CEA, ``event'' means something different from ``a thing 
that happens or takes place.'' \28\ The court stated that the 
``substance'' of the sports event contracts at issue was ``sports 
gambling, regardless of whether [the DCM] calls them swaps'' (and, by 
inference, regardless of whether the CFTC regulates them as swaps).\29\ 
It expressed concern that the plain-text interpretation of the 
definition swap would subject bingo games and ping-pong matches to the 
CFTC's jurisdiction.\30\ For these and other reasons involving the 
court's understanding of the CEA's ``context'' and ``history,'' \31\ 
the court ultimately ``conclude[d] that these sports event contracts 
are likely not swaps under the CEA.'' \32\ The Ninth Circuit did not 
address whether sports event contracts could qualify as swaps under 
other prongs of the CEA swap definition, including sections 
1a(47)(A)(i) and (iv). A petition for rehearing and rehearing en banc 
has been filed in that case.\33\
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    \27\ KalshiEX, LLC v. Assad, No. 25-7516, __F.4th __, 2026 WL 
2543846, at *8-*15 (9th Cir. Aug. 28, 2026).
    \28\ Id. at 8. The court did not offer a competing definition of 
``event.''
    \29\ Id. at 10.
    \30\ Id. at 11 (quoting Flaherty, 172 F.4th at 228).
    \31\ Id. at 9 (citation omitted).
    \32\ Id. at 15.
    \33\ KalshiEX LLC v. Assad, No. 25-7516, Dkt. No. 206.1 (9th 
Cir. Sep. 9, 2026); Fed. R. App. P. 41(b) (mandate does not issue 
until 7 days after entry of an order denying timely petition for 
panel rehearing or rehearing en banc).
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    In September 2026, a panel of the United States Court of Appeals 
for the Sixth Circuit also held that sports-related event contracts are 
not ``swaps,'' albeit for somewhat different reasons than the Ninth 
Circuit panel.\34\ Unlike the Ninth Circuit, the Sixth Circuit 
acknowledged that ``[d]ictionaries commonly define an `event' to 
include an `outcome,' '' and ``nothing in the statutory text provides a 
clear indication that the event must be defined to exclude outcomes.'' 
\35\ Thus, ``it would be reasonable to describe the Giants winning the 
Super Bowl'' as an ``event,'' even if it is also ``the outcome of the 
game.'' \36\ However, the court held that sports events are not 
``associated with a potential financial, economic, or commercial 
consequence,'' explaining that the relevant event must be ``inherently 
associated with a `financial, economic, or commercial consequence.' '' 
\37\
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    \34\ KalshiEX LLC v. Schuler, Nos. 26-3196, 26-5235, __F.4th __, 
2026 WL 2884087 (6th Cir. Sept. 25, 2026).
    \35\ Id. at * 9.
    \36\ Id.
    \37\ Id. at *11 (emphasis added).
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    As the above discussion demonstrates, there is widespread confusion 
and disuniformity about the definition of swap. The Commission 
therefore proposes to exercise its statutory authority to ``further 
define'' swap and expressly clarify that event contracts, including 
those based on sports-, politics-, cultural-, and weather-related 
events, are swaps.

Statutory Authority

    Section 712(d)(1) of the Dodd-Frank Act provides that the 
Commission and the SEC, in consultation with the Federal Reserve Board, 
shall jointly further define, among other terms, the term ``swap.'' 
\38\ Section 712(d)(2)(A) further empowers the Commission and the SEC, 
in consultation with the Federal Reserve Board, to ``jointly adopt such 
other rules regarding such definitions as the [CFTC and SEC] determine 
are necessary and appropriate, in the public interest, and for the 
protection of investors.'' \39\
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    \38\ Dodd-Frank Act sec. 712(d)(1), 15 U.S.C. 8302(d)(1) 
(directing the CFTC and SEC to undertake joint rulemaking on covered 
topics). This release proposes a rule of the CFTC that addresses 
matters within the exclusive jurisdiction of the CFTC. The SEC joins 
in proposing this rule in satisfaction of the statutory requirement 
in section 712(d)(1). The Proposal does not address or otherwise 
relate to matters within the jurisdiction of the SEC.
    \39\ Dodd-Frank Act sec. 712(d)(2)(A), 15 U.S.C. 8302(d)(2)(A).
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II. Proposed Rule

    The Commission is proposing to further define the term swap in the 
context of event contracts. Specifically, the Commission proposes to 
add new paragraph (2)(i)(G) to the definition of ``swap'' in Sec.  1.3 
of the Commission's regulations.\40\ This proposed addition identifies 
as swaps event contracts, including, in a non-exhaustive list, those 
based on sports-, politics-, cultural-, and weather-related events.\41\ 
As discussed in more detail below, event contracts, including those 
based on sports-, politics-, cultural-, and weather-related events, are 
financial instruments that are commonly known to the trade as swaps, 
structured as binary options, and/or structured to make payment 
dependent on the occurrence, nonoccurrence, or the extent of the 
occurrence of an event or contingency associated with a potential 
financial, economic, or commercial consequence. It is the Commission's 
view that the best reading of the statute is that event contracts based 
on sports-, political-, cultural-, or weather-related events qualify as 
swaps under each of these statutory prongs. In addition, the 
Commission's exercise of its express statutory authority to ``further 
define'' the term ``swap'' provides an independent legal basis to deem 
these contracts as swaps.\42\
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    \40\ 17 CFR 1.3.
    \41\ As described above in note 5, event contracts might be 
structured as other instruments such as futures contracts, which are 
excluded from the statutory definition of ``swap.'' Additionally, 
certain event contracts may be security-based swaps or other 
instruments subject to the SEC's jurisdiction. The event contracts 
at issue in this Proposal are those that are within the definition 
of ``swap'' subject to the CFTC's jurisdiction, and not those that 
might be futures or SEC-regulated instruments. Furthermore, the 
proposed addition would not reach casino-style gambling products, 
which, as the Commission describes in a separate rulemaking, are not 
swaps subject to the Commission's jurisdiction.
    \42\ Loper Bright Enterprises v. Raimondo, 603 U.S. 369, 395 
(2024) (``In a case involving an agency, of course, the statute's 
meaning may well be that the agency is authorized to exercise a 
degree of discretion. . . . For example, some statutes `expressly 
delegate[ ]' to an agency the authority to give meaning to a 
particular statutory term.'' (quoting Batterton v. Francis, 432 U.S. 
416, 425 (1977)); id. at 395 n.5 (citing examples).
---------------------------------------------------------------------------

    First, the Commission believes that event contracts, including 
those based on sports-, politics-, cultural-, and weather-related 
events are ``commonly known to the trade as a swap'' within the meaning 
of prong (iv) of the swap definition.\43\ The Commission

[[Page 66026]]

understands the phrase ``commonly known to the trade as a swap'' as a 
residual, catch-all prong intended to cover instruments that, in the 
market's view, are swaps.\44\ The Commission further understands ``the 
trade'' in this context to mean those who participate in the 
derivatives markets, including the CFTC, its registrants, and traders, 
rather than some broader group, such as the general public.\45\ 
Furthermore, the Commission notes that this standard does not require 
universal recognition--``commonly known'' is not the same as 
``universally known.'' In this regard, the scope of prong (iv) should 
be informed by the actual practice of market participants and the 
longstanding regulatory treatment of instruments by the CFTC.
---------------------------------------------------------------------------

    \43\ CEA sec. 1a(47)(A)(iv), 7 U.S.C. 1a(47)(A)(iv).
    \44\ See Coinbase Fin. Mkts., Inc. v. Raoul, No. 1:25-cv-15406, 
1:26-cv-03659, 1:26-cv-07363, 2026 WL 2969682, at * 7 (N.D. Ill. 
Oct. 2, 2026) (the CEA's ``[s]tructure elsewhere,'' including the 
prong (iv) ``clause includ[ing] contracts `known to the trade as a 
swap,' '' ``reinforces [the statute's] breadth'').
    \45\ The Commission and the SEC said as much when they further 
defined the term ``swap'' to include non-deliverable forwards 
(``NDFs''). See Further Definition Release, 77 FR at 48254-56. That 
release noted that ``at least some market participants view NDFs as 
swaps today, and thus NDFs also may fall within clause (A)(iv) of 
the swap definition.'' Id.at 48255, n. 537(emphasis added).
---------------------------------------------------------------------------

    For decades, the CFTC's position has been that event contracts are 
derivatives subject to its jurisdiction, whether as ``swaps'' or as 
``binary options'' (which are themselves swaps).\46\ The CFTC's 1993 
no-action letter to Iowa Electronic Markets allowed the facility to 
list event contracts tied to U.S. and Canadian elections.\47\ The CFTC 
issued a concept release in 2008 acknowledging its regulatory-oversight 
responsibility for event contracts.\48\ It approved event contracts on 
box-office receipts in 2010.\49\ The Commission also issued an order 
penalizing Blockratize, Inc. (d/b/a <a href="http://Polymarket.com">Polymarket.com</a>) for offering event 
contracts on various economic, political, and sports events without 
registering with the Commission, explaining that the event contracts 
``constitute swaps under the CFTC's jurisdiction.'' \50\ Furthermore, 
the CFTC has filed civil-enforcement actions and obtained civil 
penalties against persons that engage in insider trading or 
manipulative activity around event contracts.\51\ The United States has 
also brought commodity-fraud charges for insider trading of event 
contracts on the theory that event contracts are swaps under the 
CEA.\52\
---------------------------------------------------------------------------

    \46\ See supra notes 12-15 and accompanying text; Prediction 
Markets; Public Interest Determinations, 91 FR 35806, 35813-17 (June 
12, 2026) (recounting history).
    \47\ CFTC Staff Letter No. 93-66 (June 18, 1993), available at 
<a href="https://www.cftc.gov/sites/default/files/idc/groups/public/@lrlettergeneral/documents/letter/93-66.pdf">https://www.cftc.gov/sites/default/files/idc/groups/public/@lrlettergeneral/documents/letter/93-66.pdf</a>.
    \48\ 73 FR at 25670-73.
    \49\ Statement of the Commission approving certain MDEX 
contracts (June 14, 2010) (MDEX Statement) at 1, available at 
<a href="https://www.cftc.gov/idc/groups/public/@otherif/documents/ifdocs/mdexcommissionstatement061410.pdf">https://www.cftc.gov/idc/groups/public/@otherif/documents/ifdocs/mdexcommissionstatement061410.pdf</a>.
    \50\ CFTC, Order Instituting Proceedings Pursuant to Section 
6(c) and (d) of the Commodity Exchange Act, Making Findings, and 
Imposing Remedial Sanctions (Jan. 3, 2022).
    \51\ CFTC v. Van Dyke, No. 1:26-cv-3369 (S.D.N.Y.) (U.S. 
servicemember who used sensitive nonpublic information to trade 
event contracts related to the ouster of Venezuelan President 
Nicol[aacute]s Maduro); CFTC v. Spagnuolo, No. 1:26-cv-4419 
(S.D.N.Y.) (Google employee who used nonpublic information to trade 
event contracts related to Google's Year in Search list); CFTC, 
Order Instituting Proceedings Pursuant to Section 6(c) and (d) of 
the Commodity Exchange Act, Making Findings, and Imposing Remedial 
Sanctions, at 5 (July 31, 2026) (imposing penalties on former 
Congressman George Santos for manipulative activity around State of 
the Union event ``contract that is commonly known to the trade as a 
swap''); CFTC, Order Instituting Proceedings Pursuant to Section 
6(c) and (d) of the Commodity Exchange Act, Making Findings, and 
Imposing Remedial Sanctions, at 5 (Aug. 28, 2026) (imposing 
penalties on a former presidential teleprompter operator for insider 
trading presidential speech event ``contracts that are commonly 
known to the trade as swaps'').
    \52\ United States v. Van Dyke, No. 1:26-cr-156 (S.D.N.Y.); 
United States v. Spagnuolo, No. 1:26-mj-02020 (S.D.N.Y.).
---------------------------------------------------------------------------

    Market participants have also overwhelmingly recognized that event 
contracts are swaps by complying with the CFTC's swap regulatory regime 
just as they do when listing, clearing, or trading other swaps. For 
example, over the past several years, DCMs have self-certified 
thousands of event contracts based on sports, politics, cultural 
events, and weather to the Commission.\53\ This includes both new 
entrants into the market and longstanding exchanges like CME Group 
(``CME''), which has self-certified numerous event contracts based on 
sports and elections as swaps.\54\ And in comments to the CFTC, CME has 
recognized that ``event contracts and swaps are not new and have been 
subject to the existing regulatory scheme for years without issue,'' 
and that the CEA's ``Core Principles[ ] provide[ ] the proper structure 
to regulate these products.'' \55\ Cboe Global Markets has likewise 
stated in comments that event contracts ``generally fall within the 
CEA's broad definition of `swap,' '' absent a statutory exception.\56\ 
Consistent with this commonly held market view, such Commission 
registrants have not sought to register at the State level or offer 
products under State gambling laws. Instead, they offer event contracts 
for multilateral trading on a national, competitive market, just like 
other derivatives.
---------------------------------------------------------------------------

    \53\ See CFTC, Designated Contract Market Products, available at 
<a href="https://www.cftc.gov/IndustryOversight/IndustryFilings/TradingOrganizationProducts">https://www.cftc.gov/IndustryOversight/IndustryFilings/TradingOrganizationProducts</a>?.
    \54\ Id.
    \55\ Letter from Jonathan Marcus to Christopher Kirkpatrick 
(Apr. 30, 2026) at 2.
    \56\ Letter from Patrick Sexton to Christopher Kirkpatrick (May 
5, 2026) at 3, available at <a href="https://comments.cftc.gov/PublicComments/ViewComment.aspx?id=115665&SearchText=cboe">https://comments.cftc.gov/PublicComments/ViewComment.aspx?id=115665&SearchText=cboe</a>.
---------------------------------------------------------------------------

    Other market participants likewise treat event contracts as swaps 
and trade them as they do other derivatives products. For example, 
institutional traders act as market makers on prediction markets--
earning revenue by capturing the bid-ask spread directly from peer-to-
peer trading volume, unlike traditional sports betting where 
centralized sportsbooks extract a static ``vig'' from fixed odds. 
Similar to how such firms provide liquidity in other financial markets, 
these participants support price discovery based on shifting supply and 
demand rather than odds manually adjusted by a bookmaker.\57\ And a 
wide array of market participants \58\ have looked to prediction 
markets to hedge various risks, including those related to sports, 
weather, and legislative outcomes.\59\ Together, the Commission 
preliminarily concludes that this market practice provides compelling 
evidence that such event contracts are, in fact, commonly known to the 
trade as swaps, satisfying prong (iv).\60\
---------------------------------------------------------------------------

    \57\ Susquehanna Starts Trading Desk for Event Contracts on 
Kalshi, Bloomberg Law (Apr. 3, 2024), available at <a href="https://news.bloomberglaw.com/crypto/susquehanna-starts-trading-desk-for-event-contracts-on-kalshi">https://news.bloomberglaw.com/crypto/susquehanna-starts-trading-desk-for-event-contracts-on-kalshi</a>; Citadel Securities Looks at Prediction 
Markets as Trading Scales, Bloomberg (Apr. 16, 2026), <a href="https://www.bloomberg.com/news/articles/2026-04-16/citadel-securities-looks-at-prediction-markets-as-trading-scales">https://www.bloomberg.com/news/articles/2026-04-16/citadel-securities-looks-at-prediction-markets-as-trading-scales</a>.
    \58\ E.g., Prediction Markets Take a Swing at Hedging for US 
Small Business, Reuters (Aug. 28, 2026), available at <a href="https://www.reuters.com/business/prediction-markets-take-swing-hedging-us-small-businesses-2026-08-28/">https://www.reuters.com/business/prediction-markets-take-swing-hedging-us-small-businesses-2026-08-28/</a>.
    \59\ Goat herding hedge: How Susquehanna and Kalshi are helping 
this company offset a change in California law, CNBC (Aug. 13, 
2026), available at <a href="https://www.cnbc.com/2026/08/13/how-a-california-goat-herding-company-is-hedging-against-risk-of-higher-wages.html">https://www.cnbc.com/2026/08/13/how-a-california-goat-herding-company-is-hedging-against-risk-of-higher-wages.html</a>; Insurer Uses Kalshi to Hedge $3 Million LSU Coaching 
Bonus, ProgramBusiness (Sept. 9, 2026), <a href="https://programbusiness.com/news/insurer-uses-kalshi-to-hedge-3-million-lsu-coaching-bonus/">https://programbusiness.com/news/insurer-uses-kalshi-to-hedge-3-million-lsu-coaching-bonus/</a>; 
Kalshi and the Weather Co. join forces on climate trades, Wall 
Street Journal (Aug. 27, 2026), available at <a href="https://www.wsj.com/finance/kalshi-and-the-weather-co-join-forces-on-climate-trades-76b7e307?msockid=0138621f0143697837f9753100d168d7">https://www.wsj.com/finance/kalshi-and-the-weather-co-join-forces-on-climate-trades-76b7e307?msockid=0138621f0143697837f9753100d168d7</a>.
    \60\ This industry position is reinforced by experts in the 
field, including scholars and financial trade publications, who 
refer to event contracts as swaps. See, e.g., Aaron Klein, Sam Henry 
Lazarus, & Siddharth Singh, Five highlights from Brookings' 
prediction market events, The Brookings Institution (June 25, 2026), 
available at <a href="https://www.brookings.edu/articles/five-highlights-from-brookings-prediction-market-events/">https://www.brookings.edu/articles/five-highlights-from-brookings-prediction-market-events/</a>. See also Justin Wolfers & 
Eric Zitzewitz, Prediction Markets, 18 J. Econ. Persp. 107 (2004) 
(examining event contracts as financial instruments that function as 
contingent claims to aggregate information and forecast uncertain 
events); Anthony M. Diercks, Jared D. Katz, & Jonathan H. Wright, 
Kalshi and the Rise of Macro Markets, Fed. Rsrv. Bd., Fin. & Econ. 
Discussion Series 2026-010 (Feb. 2026).

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

[[Page 66027]]

    Second, the Commission believes that event contracts, including 
those based on sports-, politics-, cultural-, and weather-related 
events, fall within prong (ii) of the swap definition, which 
encompasses any agreement, contract, or transaction whose underlying is 
an occurrence or contingency ``associated with a potential financial, 
economic, or commercial consequence.'' \61\ The Third Circuit's 
Flaherty decision adopted this conclusion in the context of sports-
related event contracts, and the reasoning applies more generally as 
well. Applying the plain text of the statute, the court held that 
``[t]he outcome of a sports event certainly can be associated with a 
potential financial, economic, or commercial consequence,'' and that 
sports-related event contracts traded on a CFTC-licensed DCM ``fit 
within the Act's definition of `swaps' subject to the CFTC's 
jurisdiction.'' \62\ In reaching that conclusion, the court expressly 
endorsed the district court's identification of the broad range of 
economic stakeholders--including sponsors, advertisers, television 
networks, sports franchises, and local and national communities--whose 
financial interests are directly affected by sporting event outcomes, 
finding that identification of such stakeholders was sufficient to 
satisfy the ``associated with a potential financial, economic, or 
commercial consequence'' standard.\63\ Even the dissent conceded that a 
plain reading of the Act's text suggests that sports-related event 
contracts fit comfortably within the statutory definition.\64\ And the 
court confirmed that the Commission's statutory authority to further 
define ``swap'' would be valuable in this area.
---------------------------------------------------------------------------

    \61\ CEA sec. 1a(47)(A)(ii), 7 U.S.C. 1a(47)(A)(ii).
    \62\ Flaherty, 172 F.4th at 227-228.
    \63\ Id. at 227.
    \64\ Id.
---------------------------------------------------------------------------

    While the Sixth and Ninth Circuit panels took a different view of 
section 1a(47)(A)(ii) of the CEA, their reasoning was substantially 
based on the concern that treating sports event contracts as swaps 
would also subject casino-style gambling to the CFTC's 
jurisdiction.\65\ As the Commission explains in a separate Interim 
Final Rule, the swap definition does not encompass casino-style 
gambling wagers, sports or otherwise.\66\ Additionally, the Ninth 
Circuit relied on CFTC Rule 40.11 to conclude that ``gaming-related 
contracts'' are ``bar[red]'' from ``being listed on a DCM.'' \67\ Even 
assuming that premise, the Commission notes that CFTC Rule 40.11 does 
not provide a basis to conclude that event contracts are not swaps or 
that event contracts could be subject to State gambling law. Indeed, as 
the concurrence and other courts have recognized, the statutory 
provision that undergirds CFTC Rule 40.11 affirmatively contemplates 
that event contracts are swaps subject to the CFTC's exclusive 
jurisdiction.\68\ Regardless, to the extent that the Ninth Circuit 
panel's reasoning was based on a CFTC regulation, this Proposal would 
serve to clarify by federal regulation that event contracts are swaps. 
Accordingly, there would no longer be a valid basis to interpret CFTC 
regulations to conclude that event contracts are not swaps.
---------------------------------------------------------------------------

    \65\ Assad, 2026 WL 2543846, at 11-12; Schuler, 2026 WL 2884087, 
at * 14-15.
    \66\ See Further Definition of ``Swap'' to Exclude Casino-Style 
Gambling Products (Oct. 9, 2026), available at <a href="https://www.cftc.gov/media/14726/IFREventContractsSwapExclusion100926/download">https://www.cftc.gov/media/14726/IFREventContractsSwapExclusion100926/download</a>.
    \67\ Schuler, 2026 WL 2884087, at *13; see 17 CFR 40.11.
    \68\ Assad, 2026 WL 2543846, at *19 (Lee, J., concurring); see 7 
U.S.C. 7a-2(c)(5)(C).
---------------------------------------------------------------------------

    Third, the Commission believes that event contracts may 
independently satisfy the first prong of the swap definition. The 
Commission's preliminary reasoning is based on a plain reading of 
section 1a(47)(A)(i) of the CEA. Section 1a(47)(A)(i) explicitly 
defines a swap to include any agreement, contract, or transaction that 
is a ``put, call, cap, floor, collar, or similar option of any kind'' 
that is ``based on the value[ ] of 1 or more . . . commodities . . . or 
other financial or economic interests or property of any kind.'' \69\ 
In this regard, the Commission notes that many event contracts are 
structured as binary options, meaning that the contract's payout is a 
predetermined fixed amount (typically, one dollar) if the underlying 
condition is satisfied, and zero if it is not. Courts \70\ and the CFTC 
\71\ have repeatedly affirmed that binary option event contracts are a 
type of swap subject to the Commission's jurisdiction. Because, as 
described above, an event (such as a sports-, politics-, cultural-, or 
weather-related event) is an excluded commodity, a binary option event 
contract referencing such an event is a swap within the Commission's 
jurisdiction.
---------------------------------------------------------------------------

    \69\ 7 U.S.C. 1a(47)(A)(i).
    \70\ See, e.g., CFTC v. Banc de Binary, No. 2:13-cv-00992, Dkt. 
No. 169-1 at 18 ] 65 (D. Nev. Feb 26, 2016) (Consent Order for 
Permanent Injunction) (noting that ``Dodd-Frank defined an option as 
a swap'' and that ``[t]he binary options offered by Banc de Binary 
are `commodity options.' ''); CFTC v. Trade Exchange Network Ltd., 
117 F. Supp. 3d 29, 36 (D.D.C. 2015) (noting that ``limited risk 
contracts based on a simple yes/no market proposition like will the 
markets go up by the end of the trading week . . . possess all the 
characteristics of contracts that are known to the trade as `binary 
options.' '').
    \71\ See, e.g., In re Blockratize, Inc., CFTC Dkt. No. 22-08, at 
4 (Jan. 3, 2022) (Order Instituting Proceedings) (noting that 
``[s]uch event contracts, each of which is composed of a pair of 
binary options, constitute swaps under the CFTC's jurisdiction''), 
available at <a href="https://www.cftc.gov/media/6891/enfblockratizeorder010322/download">https://www.cftc.gov/media/6891/enfblockratizeorder010322/download</a>; see also CFTC Staff Letter No. 
25-23 (July 22, 2025) (granting CME no-action relief from certain 
swap data reporting requirements for certain binary options), 
available at <a href="https://www.cftc.gov/PressRoom/PressReleases/9099-25">https://www.cftc.gov/PressRoom/PressReleases/9099-25</a>.
---------------------------------------------------------------------------

    The term ``excluded commodity,'' including ``an occurrence, extent 
of an occurrence, or contingency . . . that is--(I) beyond the control 
of the parties to the relevant contract, agreement, or transaction; and 
(II) associated with a financial, commercial, or economic 
consequence,'' has long been interpreted broadly. This definition was 
added to the CEA by the Commodity Futures Modernization Act of 2000 
(``CFMA'').\72\ The CFMA provided for a near-complete exemption from 
the exchange trading requirement for swaps in an ``excluded commodity'' 
between institutional traders.\73\ In other words, these commodities 
are defined as ``excluded'' because the CFMA exempted swaps involving 
them from the exchange trading requirement.
---------------------------------------------------------------------------

    \72\ Public Law 106-554, app. E, 114 Stat. 2763A-365 (2000). The 
definition of ``excluded commodity,'' CEA sec. 1a(19), 7 U.S.C. 
1a(19), has remained unchanged since enactment.
    \73\ 7 U.S.C. 2(d) (2000 Main Ed.).
---------------------------------------------------------------------------

    However, swaps in excluded commodities remained within the 
jurisdiction of the CFTC. The CEA, as amended by the CFMA in 2000, 
provided that off-exchange swaps in ``excluded commodities'' between 
institutional traders would remain subject to CEA sections 5b and 
12(e)(2).\74\ Notably, CEA section 12(e)(2) provided at that time that 
the CEA ``shall supersede and preempt the application of any State or 
local law that prohibits or regulates gaming or the operation of bucket 
shops (other than antifraud provisions of general applicability) in the 
case of . . . (B) an agreement, contract, or transaction that is 
excluded from this chapter under section . . . 2(d) . . . of this title 
. . . (regardless of whether any such agreement, contract, or 
transaction is otherwise subject to this chapter).'' \75\ Thus, in 
2000, Congress clarified that the CFTC's exclusive jurisdiction

[[Page 66028]]

preempted State law--even as to off-exchange transactions--by 
explicitly providing that State gaming laws would not apply to off-
exchange swaps in excluded commodities between institutional traders.
---------------------------------------------------------------------------

    \74\ 7 U.S.C. 2(d)(1) (2000 Main Ed.) (referring to 7 U.S.C. 7a-
1 and 7 U.S.C. 16(e)(2)(B)).
    \75\ 7 U.S.C. 16(e)(2)(B) (2000 Main Ed.). The term ``this 
chapter'' refers to Chapter I of Title 7 of the U.S. Code, where the 
CEA is codified.
---------------------------------------------------------------------------

    The CFMA was driven by the November 1999 report of the President's 
Working Group on Financial Markets, which was composed of the Secretary 
of the Treasury, and the Chairs of the CFTC, the SEC, and the Federal 
Reserve Board (``PWG Report'').\76\ The PWG Report concluded, among 
other things, that off-exchange swaps between institutional traders 
should be excluded from the CEA, unless the swap involves a non-
financial commodity with a finite supply.\77\ The ``excluded 
commodity'' definition enacted in the CFMA was therefore intended to 
encompass all types of swaps except for those based on non-financial 
commodities with a finite supply.
---------------------------------------------------------------------------

    \76\ Report of The President's Working Group on Financial 
Markets, Over-the-Counter Derivatives Markets and the Commodity 
Exchange Act, 17 (Nov. 1999), available at <a href="https://home.treasury.gov/system/files/236/Over-the-Counter-Derivatives-Market-Commodity-Exchange-Act.pdf">https://home.treasury.gov/system/files/236/Over-the-Counter-Derivatives-Market-Commodity-Exchange-Act.pdf</a>.
    \77\ Id. at 1.
---------------------------------------------------------------------------

    In 2010, the Dodd-Frank Act created a framework within the CEA for 
the on-exchange execution, clearing and reporting of the previously 
over-the-counter (``OTC'') swap markets. Among other things, the Dodd-
Frank Act repealed the exclusion that had been added by the CFMA to CEA 
section 2(d),\78\ and required retail swap transactions (i.e., 
transactions not between eligible contract participants (``ECPs'')) to 
be entered into on a DCM.\79\
---------------------------------------------------------------------------

    \78\ Dodd-Frank Act sec. 723(a)(1), 7 U.S.C. 2 (striking and 
replacing CEA sec. 2(d)).
    \79\ CEA sec. 2(e), 7 U.S.C. 2(e). The term ``eligible contract 
participant'' is defined in CEA sec. 1a(18), 7 U.S.C. 1a(18).
---------------------------------------------------------------------------

    Finally, the Special Rule added by Dodd-Frank to the CEA clarifies 
that the CFTC has jurisdiction over ``[e]vent contracts,'' including 
event contracts based on non-financial commodities. The Special Rule 
provides that ``[i]n connection with the listing of agreements, 
contracts, transactions, or swaps in excluded commodities that are 
based upon the occurrence, extent of an occurrence, or contingency 
(other than a change in the price, rate, value, or levels of a 
commodity described in section 1a(2)(i) of this title), by a designated 
contract market or swap execution facility, the Commission may 
determine that such agreements, contracts, or transactions are contrary 
to the public interest if the agreements, contracts, or transactions 
involve--(I) activity that is unlawful under any Federal or State law; 
(II) terrorism; (III) assassination; (IV) war; (V) gaming; or (VI) 
other similar activity determined by the Commission, by rule or 
regulation, to be contrary to the public interest.\80\ This rule 
confirms that the term ``excluded commodities'' includes 
``occurrence[s]'' that ``involve'' various non-financial events, 
including but not limited to terrorism, assassination, war, and gaming. 
It also confirms that ``swaps'' can be ``based upon'' such non-
financial activities. Thus, the notion that the ``event'' referred to 
in the second prong of the ``swap'' definition must ``be one inherently 
associated with a financial, economic, or commercial consequence'' is 
incompatible with the text of the Special Rule.\81\
---------------------------------------------------------------------------

    \80\ 7 U.S.C. 7a-2(c)(5)(C)(i) (emphases added).
    \81\ Schuler, 2026 WL 2884087, at * 11.
---------------------------------------------------------------------------

    The Special Rule has particular significance for sports-related 
event contracts. Applying the plain text of the statute, sports are a 
type of ``gam[e].'' \82\ Accordingly, sports-related event contracts 
are ``based upon'' an ``occurrence, extent of an occurrence, or 
contingency'' that ``involve[s]'' ``gaming.'' Far from exempting 
sports-related contracts from the CFTC's jurisdiction, this provision 
confirms that such instruments can be ``swaps'' in ``excluded 
commodities'' and that they are within the CFTC's jurisdiction.\83\
---------------------------------------------------------------------------

    \82\ KalshiEX LLC v. CFTC, No. 23-cv-3257, 2024 WL 4164694, at * 
12 (D.D.C. Sept. 12, 2024).
    \83\ Flaherty, 172 F.4th at 231 (``Congress gave the CFTC 
exclusive jurisdiction over trades on DCMs, provided for continued 
tate regulation of trades conducted off DCMs, and recognized that 
while event contracts could involve gaming, the CFTC has 
discretionary power to review and prohibit those contracts.''); 
Minnesota, 2026 WL 2150211, at * 13 (``In combination with the 
congressional decision to give the CFTC exclusive jurisdiction over 
swaps, allowing the CFTC to either permit event contracts in these 
categories or declare them contrary to the public interest suggests, 
at least preliminarily, that Congress intended DCM-based 
transactions over these prediction markets to be governed by the 
CFTC.''); KalshiEX LLC v. Johnson, 832 F. Supp. 3d 954, 965 (D. 
Ariz. 2026) (``By directing the CFTC to review event contracts and 
prohibit those contrary to the public interest, Congress placed 
event contracts under the CFTC's exclusive authority.''); Raoul, 
2026 WL 2969682, at * 10 (The Special Rule ``belies that the 
Commodity Exchange Act has nothing to do with'' sports event 
contracts.).
---------------------------------------------------------------------------

    Some courts and States have expressed the view that some, but not 
all, event contracts are swaps on the theory that certain underlying 
sports, political, cultural, or weather events are not associated with 
a potential financial, economic, or commercial consequence.\84\ This 
argument would at most affect the applicability of the first and second 
prongs of the ``swap'' definition, but it would not affect the fourth 
prong, i.e., that the contracts are commonly known to the trade as a 
``swap.'' Furthermore, to the extent there is uncertainty about whether 
particular underlying sports, political, cultural, or weather events 
have potential financial consequences, the Commission's exercise of its 
power to further define ``swap'' confers on the Commission the 
authority to determine which contracts qualify as ``swaps.''
---------------------------------------------------------------------------

    \84\ E.g., Minnesota, 2026 WL 2150211, at * 15.
---------------------------------------------------------------------------

    The Commission also notes that it retains authority under the 
Special Rule to prohibit event contracts involving ``gaming'' that are 
contrary to the public interest, and that the Commission has proposed 
to consider whether a contract has utility for price discovery, 
hedging, and economic decisions in making public-interest 
determinations.\85\ Indeed, that proposal distinguishes between sports 
event contracts ``depend[ing] on the aggregate performance over an 
extended period of play''--which ``may serve price discovery functions 
and provide meaningful information''--from ``event contracts settling 
on the type of a specific play called for or executed by a specific 
player or team, the type or outcome of a specific pitch thrown by a 
specific pitcher, the outcome of a specific shot taken by a specific 
player, or whether a specific player or team commits a specific foul or 
penalty''--which, among other things, ``do not provide meaningful 
information.'' \86\
---------------------------------------------------------------------------

    \85\ 91 FR at 35829-30.
    \86\ Id. at 35835-37.
---------------------------------------------------------------------------

    The Commission also preliminarily believes there typically are 
potential financial, economic, or commercial consequences associated 
with underlying sports, political, cultural, and weather events that 
are the subject of event contracts. Importantly, the statute uses the 
word ``potential,'' which is broad.\87\ So even if the financial 
consequences of a particular event are not felt right away--indeed, 
even if they never actually occur--an event contract remains a swap so 
long as there is potential for commercial ramifications.\88\ For 
example, it may be difficult to empirically verify that there are 
financial consequences associated with a particular city reaching a 
temperature of 97 to 98 degrees on a given day, as opposed to 95 to 96 
degrees. By inserting the word ``potential'' into the swap definition, 
Congress signaled that it did not wish

[[Page 66029]]

for the Commission to engage in this exercise. Temperature has the 
potential to cause financial consequences for agriculture, energy 
usage, participation in outdoor activity, and more--event contracts 
based on temperature therefore satisfy the ``potential financial, 
economic, or commercial consequence'' requirement.
---------------------------------------------------------------------------

    \87\ Alabama Power Co. v. Costle, 636 F.2d 323, 353 (D.C. Cir. 
1979) (recognizing that ``potential . . . will always and inherently 
exceed actual'').
    \88\ Minnesota, 2026 WL 2150211, at * 12 (``The occurrence of 
the event in question does not have to ultimately result in a 
financial, economic, or commercial consequence to meet the 
definition. It is enough that such consequences are foreseeable 
future possibilities.'').
---------------------------------------------------------------------------

    Sports events likewise can be associated with potential economic 
consequences. Most obviously, when a team succeeds in the postseason, 
that team is able to play more home games, which generates additional 
ticketing revenue for the franchise and economic opportunity for nearby 
businesses like restaurants and hotels.\89\ For example, the New York 
Knicks' 2026 championship-winning postseason run generated around $380 
million for New York City's economy.\90\ Similarly, after the Milwaukee 
Bucks won the 2021 NBA Finals, the City of Milwaukee estimated that the 
team's postseason performance generated $2.7 million in economic impact 
to the city in the first round, $12.8 million in the second round, 
$14.1 million in the third round, and $28 million in the final round--
thus, each time the Bucks won a round of the playoffs, there were 
concrete economic consequences for Milwaukee.\91\ Postseason success 
also affects a sports team's valuation. Madison Square Garden Sports, 
the Knicks' parent company, doubled in market value over the course of 
a year because of the team's championship-winning performance.\92\ At 
least at some level of generality, it is inescapably true that sports 
events are associated with potential economic consequences.
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    \89\ For example, as the Northern District of Illinois recently 
recognized, ``[a]t a financial level, sports [event contracts] can 
resemble credit default swaps'' in their potential financial, 
economic, or commercial consequences. Raoul, 2026 WL 2969682, at * 
11. ``Broadcasters depend on the total number of games played in a 
best-of-seven matchup like the NBA Finals and the World Series,'' 
with a ``difference in advertising revenue between a four-game 
series and a seven-game series . . . cost[ing] NBC between $25 
million and $35 million,'' and affecting ``[a]rena and concession 
companies,'' who ``often get paid a percentage of sales during 
games, meaning their revenue correlates with the number of games, 
too. Meanwhile, sponsors' returns on endorsements depend on players 
performing well.'' Id.
    \90\ CNBC, Knicks' postseason run brought $380m in economic 
activity, says NYCEDC's Jeanny Pak (June 18, 2026), available at 
<a href="https://www.cnbc.com/video/2026/06/18/knicks-postseason-run-brought-380m-in-economic-activity-says-nycedcs-jeanny-pak.html">https://www.cnbc.com/video/2026/06/18/knicks-postseason-run-brought-380m-in-economic-activity-says-nycedcs-jeanny-pak.html</a>.
    \91\ Visit Milwaukee, Economic Impact Data for Milwaukee Bucks 
Championship (Dec. 9, 2021), available at <a href="https://www.visitmilwaukee.org/press-releases/post/2885682-economic-impact-data-for-milwaukee-bucks-championship/">https://www.visitmilwaukee.org/press-releases/post/2885682-economic-impact-data-for-milwaukee-bucks-championship/</a>.
    \92\ Jack Pitcher & Andrew Beaton, The Only Thing Hotter Than 
the Knicks Is Their Stock Price, Wall Street Journal (June 8, 2026), 
available at <a href="https://www.wsj.com/sports/basketball/knicks-nba-finals-msg-stock-b0f2dd31">https://www.wsj.com/sports/basketball/knicks-nba-finals-msg-stock-b0f2dd31</a>.
---------------------------------------------------------------------------

    The result of single regular-season games are associated with 
potential economic consequences, too. Studies have verified that a 
single win in a college football game can result in millions of dollars 
in additional revenue to the program.\93\ And when a team wins a game, 
that has direct commercial consequences for businesses around the 
stadium, as fans are more likely to spend money at those establishments 
in celebration.
---------------------------------------------------------------------------

    \93\ Doug J. Chung, How Much is a Win Worth? An Application to 
Intercollegiate Athletics, Management Science 63, no. 2, at 548-565 
(February 2017).
---------------------------------------------------------------------------

    In-game events and contingencies are also associated with potential 
economic consequences. For example, a close game is more likely to have 
higher television viewership than a blowout, and thus, the spread of a 
game is associated with potential economic consequences.\94\ Player 
contracts often have bonuses associated with specific statistical 
results, like the number of touchdowns scored or receptions made, so 
player performance within a game has potential economic 
consequences.\95\
---------------------------------------------------------------------------

    \94\ Austin Karp, CFP First Round viewership falls 7% in second 
year amid blowouts, NFL doubleheader gains, Sports Business Journal 
(Dec. 24, 2025), available at <a href="https://www.sportsbusinessjournal.com/Articles/2025/12/24/cfp-first-round-viewership-falls-7-in-second-year-amid-blowouts-nfl-doubleheader-gains/">https://www.sportsbusinessjournal.com/Articles/2025/12/24/cfp-first-round-viewership-falls-7-in-second-year-amid-blowouts-nfl-doubleheader-gains/</a>; NFL's wild-card ratings 
tumble amid blowouts, Reuters (Jan. 15, 2025) <a href="https://www.reuters.com/sports/nfls-wild-card-ratings-tumble-amid-blowouts-flm-2025-01-16/">https://www.reuters.com/sports/nfls-wild-card-ratings-tumble-amid-blowouts-flm-2025-01-16/</a>.
    \95\ Zach Kruse, How Packers WR Christian Watson can make 
another $15M in contract incentives, Packers Wire (June 19, 2026), 
available at <a href="https://packerswire.usatoday.com/story/sports/nfl/packers/2026/06/19/christian-watson-contract-packers-incentives-catches-yards-touchdowns-pro-bowl/90619346007/">https://packerswire.usatoday.com/story/sports/nfl/packers/2026/06/19/christian-watson-contract-packers-incentives-catches-yards-touchdowns-pro-bowl/90619346007/</a>.
---------------------------------------------------------------------------

    Business promotions can amplify these economic consequences. For 
example, a furniture store in Houston, Texas, runs a regular promotion 
in which customers who spend a minimum amount will get their purchases 
refunded if the Houston Astros win the World Series, creating a direct 
link between the outcome of the World Series and financial consequences 
for numerous furniture purchasers in Houston.\96\ Similarly, a New York 
bar promised free drinks to patrons if the Knicks won the first NBA 
Finals game, which also linked the outcome of the game to an economic 
consequence.\97\ Businesses also structure promotions around whether 
particular events occur within a game. For example, when the Cincinnati 
Reds hit a home run in the 4th inning, ticketholders get a reward from 
Chick-fil-A,\98\ when the Minnesota Vikings intercept a pass, Caribou 
Coffee offers a buy-one-get-one drink deal,\99\ and Delta Air Lines' 
loyalty program customers earn one mile for each Seattle Seahawks 
passing yard in a season.\100\
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    \96\ Chad Washington, `Mattress Mack' uses a prediction market 
to wager on the Astros' postseason hopes, KTSM 9 News, available at 
<a href="https://www.ktsm.com/news/state-news/mattress-mack-uses-a-prediction-market-to-wager-on-the-astros-postseason-hopes/amp/">https://www.ktsm.com/news/state-news/mattress-mack-uses-a-prediction-market-to-wager-on-the-astros-postseason-hopes/amp/</a>.
    \97\ Catherina Gioino, This NYC bar just covered everyone's tabs 
because the Knicks won, and used Kalshi to hedge their bets, Fortune 
(June 3, 2026), available at <a href="https://fortune.com/2026/06/03/nyc-bar-knicks-kalshi-win-prediction-market/">https://fortune.com/2026/06/03/nyc-bar-knicks-kalshi-win-prediction-market/</a>.
    \98\ Chick-fil-A Free Chicken Promotion, available at <a href="https://www.mlb.com/reds/tickets/specials/chick-fil-a-runs">https://www.mlb.com/reds/tickets/specials/chick-fil-a-runs</a> (last visited 
Oct. 14, 2026).
    \99\ BOGO Ball Presented by Caribou Coffee, available at <a href="https://www.vikings.com/fans/promos/caribou-coffee-promo">https://www.vikings.com/fans/promos/caribou-coffee-promo</a> (last visited Oct. 
14, 2026).
    \100\ First and 10: 12Status program kicks off a decade of 
awarding Seattle Seahawks fans, Delta News Hub (Aug. 28, 2026), 
available at <a href="https://news.delta.com/first-and-10-12status-program-kicks-decade-awarding-seattle-seahawks-fans">https://news.delta.com/first-and-10-12status-program-kicks-decade-awarding-seattle-seahawks-fans</a>.
---------------------------------------------------------------------------

    The list of examples could extend indefinitely. The salient point 
is that many sports-, politics-, cultural, and weather-related events 
are associated with potential economic consequences, and thus event 
contracts that are predicated on those events are swaps subject to the 
Commission's exclusive jurisdiction. To the extent a sports-, politics-
, cultural-, or weather-related event is not associated with a 
potential economic consequence and does not satisfy any other prong of 
the swap definition, the Commission retains authority to stay the 
listing of that contract.\101\
---------------------------------------------------------------------------

    \101\ See 17 CFR 40.2(c).
---------------------------------------------------------------------------

    For these reasons, the Commission is proposing to amend the 
``swap'' definition to explicitly identify event contracts, including 
those based on sports-, politics-, cultural-, and weather-related 
events, as swaps within the Commission's jurisdiction. Specifically, 
the Commission proposes to add paragraph (2)(i)(G) to Sec.  1.3's 
definition of ``swap'' \102\ to provide that the term swap includes 
``[e]vent contracts, including those based o\n sports-, politics-, 
cultural-, and weather-related events.'' And, as set forth in a 
separate Interim Final Rule,\103\ the Commission does not intrude upon 
existing regulation of in-person and online casino-style gambling by 
doing so. Rather, the Commission proposes, consistent with its clear 
statutory mandate, to regulate only event contracts, including those 
based on

[[Page 66030]]

sports-, politics-, cultural-, and weather-related events.
---------------------------------------------------------------------------

    \102\ 17 CFR 1.3.
    \103\ See supra note 66.
---------------------------------------------------------------------------

    The classifications proposed here are for purposes of the Commodity 
Exchange Act. Federal tax treatment and associated information 
reporting, withholding, registration, and payment obligations are 
determined under the Internal Revenue Code and applicable Treasury 
regulations and Internal Revenue Service guidance.

III. Request for Comment

    The Commission welcomes public comments from all interested persons 
regarding any aspect of the Proposal.

IV. Related Matters

A. Regulatory Flexibility Act

    The Regulatory Flexibility Act \104\ (``RFA'') requires Federal 
agencies, in proposing rules, to consider the impact of those rules on 
small entities, and to provide a regulatory flexibility analysis with 
respect to such impact.\105\ The regulations proposed herein would 
directly affect DCMs, swap execution facilities (``SEFs''), swap 
dealers, major swap participants, and ECPs. The Commission has 
previously determined that that DCMs are not considered ``small 
entities'' for purposes of the RFA.\106\ Similarly, the Commission 
previously concluded that SEFs are not small entities for the purpose 
of the RFA.\107\ The Commission has also previously stated its belief 
in the context of relevant rulemakings that SEFs' market participants, 
which are all required to be ECPs \108\ as defined in section 1a(18) of 
the CEA,\109\ are not small entities for purposes of the RFA.\110\ 
Likewise, the Commission has previously concluded that Swap Dealers and 
Major Swap Participants are not small entities for purposes of the RFA, 
due in part to the minimum capital and margin requirements applicable 
to such entities.\111\
---------------------------------------------------------------------------

    \104\ 5 U.S.C. 601 et seq.
    \105\ See 5 U.S.C. 603. The RFA applies to rules subject to 
notice-and-comment rulemakings issued pursuant to the Administrative 
Procedure Act, 5 U.S.C. 553(b), or any other law. Id.
    \106\ See Policy Statement and Final Establishment of 
Definitions, 47 FR 18618 (Apr. 30, 1982).
    \107\ SEF Core Principles Final Rule, 78 FR 33476, 33548 (June 
4, 2013) (citing 47 FR at 18621) (discussing DCMs); A New Regulatory 
Framework for Clearing Organizations, 66 FR 45604, 45609 (Aug. 29, 
2001) (discussing registered DCOs).
    \108\ 17 CFR 37.703.
    \109\ 7 U.S.C. 1(a)(18).
    \110\ Opting Out of Segregation Final Rule, 66 FR 20740, 20743 
(Apr. 25, 2001) (stating that ECPs by the nature of their definition 
in the CEA should not be considered small entities).
    \111\ Swap Dealer and Major Swap Participant Recordkeeping, 
Reporting, and Duties Rules; Futures Commission Merchant and 
Introducing Broker Conflicts of Interest Rules; and Chief Compliance 
Officer Rules for Swap Dealers, Major Swap Participants, and Futures 
Commission Merchants Final Rule, 77 FR 20128, 20194 (Apr. 3, 2012).
---------------------------------------------------------------------------

    For these reasons, under section 3(a) of the RFA,\112\ the 
Chairman, on behalf of the Commission, certifies that this Proposal 
will not have a significant economic impact on a substantial number of 
small entities. The Commission nonetheless invites comment on this 
determination. This document serves as notification to the Small 
Business Administration of the Commission's certification of no effect.
---------------------------------------------------------------------------

    \112\ 5 U.S.C. 605(b).
---------------------------------------------------------------------------

B. Paperwork Reduction Act

    The Paperwork Reduction Act of 1995 (``PRA'') \113\ imposes certain 
requirements on federal agencies, including the Commission, in 
connection with conducting or sponsoring any ``collection of 
information,'' as defined by the PRA. Under the PRA, an agency may not 
conduct or sponsor, and a person is not required to respond to, a 
collection of information unless it displays a currently valid control 
number from the Office of Management and Budget (``OMB'').\114\ The PRA 
is intended, in part, to minimize the paperwork burden created for 
individuals, businesses, and other persons as a result of the 
collection of information by Federal agencies, and to ensure the 
greatest possible benefit and utility of information created, 
collected, maintained, used, shared, and disseminated by or for the 
Federal government.\115\ The PRA applies to all information, regardless 
of form or format, whenever the Federal government is obtaining, 
causing to be obtained, or soliciting information, and includes 
required disclosure to third parties or the public, of facts or 
opinions, when the information collection calls for answers to 
identical questions posed to, or identical reporting or recordkeeping 
requirements imposed on, ten or more persons.\116\
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    \113\ 44 U.S.C. 3501 et seq.
    \114\ See 44 U.S.C. 3507(a)(3); 5 CFR 1320.5(a)(3).
    \115\ See 44 U.S.C. 3501.
    \116\ See 44 U.S.C. 3502(3).
---------------------------------------------------------------------------

    This Proposal would not impose any new collection of information 
requirements that require approval of OMB under 44 U.S.C. 3507(d), nor 
would it amend or otherwise revise any existing collection of 
information subject to the PRA. The Proposal clarifies the definition 
of ``swaps'' to, consistent with its jurisdiction, explicitly include 
event contracts, including those based on sports-, politics-, cultural-
, and weather-related events.
    The Proposal does not establish any new reporting requirement under 
the CEA or the Commissions' regulations applicable to any Commission 
registrant or market participant; establish any new recordkeeping 
requirement beyond those already imposed under the CEA and the 
Commission's existing regulations, which are currently approved by OMB 
under existing control numbers; impose any new third-party disclosure 
obligation; or modify the substantive scope, frequency, form, or 
content of any existing information collection of the Commission 
currently approved by OMB.
    The Proposal does not alter the burden associated with existing 
collections currently approved by OMB. Any incremental activity that 
may occur as an indirect consequence of registrants electing to conduct 
business within the federal regulatory perimeter clarified by this 
proposed rule reflects the application of existing, previously approved 
information collections to a new class of underlying transactions and 
does not itself constitute a new or revised collection of information 
within the meaning of the PRA.
    Accordingly, the requirements of the PRA do not apply to this 
rulemaking. The Commission invites public comment on its determination 
that no additional recordkeeping or information collection 
requirements, or changes to existing collection requirements, would 
result from the Proposal.

C. Consideration of Benefits and Costs

1. Introduction
    The Commission is mindful of the economic effects, including the 
benefits and costs, of the Proposal. Section 15(a) of the CEA requires 
the Commission to consider the benefits and costs of its actions before 
promulgating a regulation under the CEA or issuing certain orders.\117\ 
As required by section 15(a), the Commission evaluates these benefits 
and costs evaluated in light of five broad areas of market and public 
concern: (1) protection of market participants and the public; (2) 
efficiency, competitiveness, and financial integrity of futures 
markets; (3) price discovery; (4) sound risk management practices; and 
(5) other public interest considerations.
---------------------------------------------------------------------------

    \117\ 7 U.S.C. 19(a).
---------------------------------------------------------------------------

    The Proposal further defines the term ``swap'' under CEA section 
1a(47) to include event contracts, including those based on sports-, 
politics-, cultural-, and weather-related events.\118\ It is the

[[Page 66031]]

Commission's preliminary belief that the Proposal would not change the 
legal rights or obligations of market participants under the CEA 
because the Commission already treats event contracts as swaps under 
existing law. Instead, the Commission preliminarily believes that the 
Proposal will reduce interpretive uncertainty and facilitate uniform 
nationwide treatment of event contracts under the exclusive 
jurisdiction of the Commission.
---------------------------------------------------------------------------

    \118\ See 7 U.S.C. 1a(47).
---------------------------------------------------------------------------

    The Commission qualitatively discusses the benefits and costs of 
the Proposal below because it is not practicable to quantify the effect 
of greater regulatory certainty on market participant behavior.
2. Baseline
    The baseline against which the benefits and costs of the Proposal 
are measured consists of the current regulatory framework and the 
current state of the event contracts market.
a. Regulatory Baseline
    The Commission has exclusive jurisdiction to regulate transactions 
involving swaps (other than security-based swaps, which the SEC 
regulates, and mixed swaps, over which it shares jurisdiction with the 
SEC).\119\ The Commission preliminary believes that under the plain 
language of the CEA, event contracts, including event contracts based 
on sports-, politics-, cultural-, and weather-related events, are 
swaps.\120\ For example, CEA section 1a(47)(A)(ii) defines ``swap'' to 
include ``any agreement, contract, or transaction . . . that provides 
for any purchase, sale, payment, or delivery (other than a dividend on 
an equity security) that is dependent on the occurrence, nonoccurrence, 
or the extent of the occurrence of an event or contingency associated 
with a potential financial, economic, or commercial consequence.'' 
\121\ It is the Commission's preliminary belief that this comprehensive 
definition captures many event contracts, which are a type of swap 
where payment is triggered by ``the occurrence, nonoccurrence, or the 
extent of the occurrence of an event or contingency associated with a 
potential financial, economic, or commercial consequence,'' such as a 
political election or a sporting event.\122\
---------------------------------------------------------------------------

    \119\ See 7 U.S.C. 2(a)(1)(A).
    \120\ See 7 U.S.C. 1a(47); supra section I; see also, e.g., 
Flaherty, 172 F.4th at 227 (holding that a ``plain reading of the 
Act's text suggests that Kalshi's sports-event contracts fit 
comfortably within the statutory definition''). But see Assad, 2026 
WL 2543846.
    \121\ 7 U.S.C. 1a(47)(A)(ii); see supra note 15 and accompanying 
text. Other clauses in the statutory definition of the term ``swap'' 
are also relevant. See supra notes 16-18.
    \122\ As described above, such contracts may also be swaps under 
other prongs of the definition.
---------------------------------------------------------------------------

    Accordingly, it is the Commission's preliminary belief that event 
contracts, including those based on sports-, politics-, cultural-, and 
weather-related events, are subject to Federal law concerning swaps, 
including that retail participants may only trade swaps on a DCM.\123\ 
DCMs listing event contracts must comply with the substantive and 
procedural requirements that apply to a DCM's listing of derivative 
contracts for trading.\124\ In particular, these requirements include 
adherence to the Core Principles for DCMs, including listing only 
contracts that are not readily susceptible to manipulation, preventing 
market disruption, and protecting of markets and market 
participants.\125\
---------------------------------------------------------------------------

    \123\ See 7 U.S.C. 2(e) (requirement that persons other than 
ECPs transact swaps on a DCM). The term ``eligible contract 
participant'' is defined in CEA sec. 1a(18), 7 U.S.C. 1a(18), and 
generally includes only institutional investors. In addition to 
DCMs, an SEF may make any swap, including an [event contract] that 
is a swap, available for trading. See CEA sec. 5h, 7 U.S.C. 7b-3. 
However, swap trading on an SEF is not available to the general 
public, but rather only to ECPs.
    \124\ See generally CEA sec. 5, 7 U.S.C. 7. SEFs are subject to 
similar requirements. See CEA sec. 5h, 7 U.S.C. 7b-3.
    \125\ See 7 U.S.C. 7(d).
---------------------------------------------------------------------------

    However, certain State regulators have asserted that certain event 
contracts--particularly those based on sports-related events--are 
subject to their laws regulating gaming and other matters. These other 
legal regimes have various, sometimes conflicting, requirements that 
states have purported to apply to event contracts.\126\
---------------------------------------------------------------------------

    \126\ Compare Flaherty, 172 F.4th at 227, with Assad, 2026 WL 
2543846.
---------------------------------------------------------------------------

b. Current Event Contract Markets
    The number of DCMs listing event contracts and the volume of 
trading in such contracts have increased significantly in recent years. 
For example, as of September 1, 2026, at least seven DCMs registered 
with the CFTC offer contracts that include event contracts based on 
sports-related events to U.S. persons. More than fifteen pending DCM 
applications have been filed since 2025. Many of these newly designated 
DCMs and platforms with pending applications have stated they intend to 
offer contracts that could be considered event contracts. In August 
2026, average monthly trading volume in event contracts was about $1.5 
billion across all DCMs reporting to the Commission.\127\ Of that 
volume, approximately $1.2 billion was in event contracts based on 
sports-related events; approximately $11 million was in event contracts 
based on politics-related events, including elections-related event 
contracts; and approximately $4 million was in event contracts based on 
weather-related events.\128\
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    \127\ Estimated based on nonpublic daily trade and reporting 
data reported by DCMs under rule 16.02. See 17 CFR 16.02; see also 
Kaitlyn Radde, Trading Volume on Prediction Markets Has Soared in 
Recent Months, Pew Research Center (May 27, 2026), available at 
<a href="https://www.pewresearch.org/?p=306935">https://www.pewresearch.org/?p=306935</a>.
    \128\ Estimated based on nonpublic daily trade and reporting 
data reported by DCMs under CFTC Rule 16.02, 17 CFR 16.02.
---------------------------------------------------------------------------

3. Benefits
    Because the Commission does not expect the Proposal to change the 
legal rights or obligations of market participants under the CEA, it is 
the Commission's preliminary belief that the primary benefit of this 
Proposal would be added certainty that event contracts, including those 
based on sports-, politics-, cultural-, and weather-related events, are 
swaps that are subject to the exclusive jurisdiction of the CFTC. 
Although the extent of the benefit may be limited by the ongoing 
efforts of certain state regulators to assert their jurisdiction over 
certain event contracts, market participants--including DCMs listing 
event contracts-- may benefit by spending less time and fewer resources 
determining which regulatory regime applies and by saving the costs of 
complying with various State regulatory regimes.
4. Costs
    It is the Commission's preliminary belief that there should be 
negligible costs from codifying that event contracts, including those 
based on sports-, politics-, cultural-, and weather-related events, are 
swaps subject to the Commission's exclusive jurisdiction, as there 
would be no expected changes required of market participants under the 
CEA or the Commission's regulations.
    However, the Proposal may result in indirect costs to the extent 
that market participants respond to the added certainty by shifting 
activity toward the CFTC swaps framework. For example, States might 
receive less fee and other revenue if entities choose to structure 
their business operations as DCMs instead of structuring their 
operations within State regulatory frameworks. It is also possible that 
costs could also result from the potential transition, generating 
short-term frictions. For example, market participants could incur 
reconciling costs where Federal and State regulatory regimes overlap 
during the transition, such as unwinding or

[[Page 66032]]

maintaining State licenses in parallel with CFTC-regulated obligations 
during the transition.
5. Section 15(a) Factors
a. Protection of Market Participants and the Public
    The Commission preliminarily believes that classification certainty 
provided by the Proposal may allow market participants to more readily 
operate within the Federal swaps framework and its attendant 
protections. Insofar as this certainty leads to an increase in the 
number of event contracts listed on DCMs, the protection of market 
participants and the public may be advanced by application of the Core 
Principles to the market. However, certainty provided by the Proposal 
could be perceived as a safety signal by retail participants. This may 
raise risk appetite for certain categories of event contracts as retail 
market participants may update their beliefs about oversight of these 
products and under-weigh their inherent risk and increase their 
exposure to these products without parallel improvements in disclosure 
or education that could improve comprehension of risks related to event 
contracts based on sports-, politics-, cultural-, or weather-related 
events.
b. Efficiency, Competitiveness, and Financial Integrity of Futures 
Markets
    The Commission preliminarily believes that the Proposal is unlikely 
to affect the efficiency or financial integrity of the futures markets, 
but there could be effects on the swaps market. To the extent that 
firms restructure their operations from State regimes to the Federal 
swaps regime, the Proposal could facilitate direct competition between 
CFTC-regulated DCMs and State-regulated businesses. However, because 
the Federal swaps regime requires infrastructure with fixed costs, 
certainty provided by the Proposal might favor incumbent DCMs with 
established infrastructure and customer bases. Furthermore, the 
Commission preliminarily believes that clarifying that event contracts 
are swaps may advantage exchanges already configured for Federal 
compliance relative to state-licensed platforms, shifting costs 
unevenly where new entrants may face higher fixed costs to reach swaps 
compliance scale, potentially reducing competitive pressure on fees, 
service quality, and innovation diversity at the margin.
c. Price Discovery
    The Commission preliminarily believes that price discovery for 
event contracts will not be materially affected because the Proposal 
does not alter trading rules, exchange requirements, or information-
dissemination obligations for the contracts it covers, which the 
Commission already expects to trade on DCMs subject to existing Core 
Principles.
d. Sound Risk Management Practices
    The Commission preliminarily believes that risk management 
practices will not be materially affected because the Proposal does not 
alter the application of Commission requirements regarding risk 
management, including DCM risk-management Core Principles.
e. Other Public Interest Considerations
    Codification of the Commission's understanding that event 
contracts, including those based on sports-, politics-, cultural-, and 
weather-related events, are swaps may improve legal predictability and 
administrability, consistent with the CEA's purpose of encouraging 
effective self-regulation of trading facilities, clearing systems, and 
market participants. The Commission preliminarily believes that the 
Proposal may reduce the resources market participants devote to 
complying with various, sometimes-contradictory State regulatory 
regimes.
    But, insofar as the certainty provided by the Proposal increases 
the volume of event contracts listed on DCMs, the Commission 
preliminarily believes that retail market participants could be harmed 
because some event contract trading characteristics (such as outcomes 
occurring at unpredictable intervals, perception of skill-based 
decision making, near-miss experiences, and potential for loss-chasing 
behavior) can be associated with addictive potential. It is possible 
that these characteristics can lead to financial harm to participants 
who accumulate losses through high-frequency trading, allocate 
disproportionate resources to trading activity, and have trouble 
disengaging voluntarily.
6. Regulatory Alternatives
    Given the Proposal seeks to articulate the Commission's existing 
jurisdiction over swaps, the Commission has not identified any viable 
regulatory alternatives.

D. Antitrust Laws

    Section 15(b) of the CEA requires the Commission to take into 
consideration the public interest to be protected by the antitrust laws 
and endeavor to take the least anticompetitive means of achieving the 
objectives of the CEA as well as the policies and purposes of the CEA, 
in issuing any order or adopting any Commission rule or regulation 
(including any exemption under section 4(c) or 4c(b)), or in requiring 
or approving any bylaw, rule, or regulation of a contract market or 
registered futures association established pursuant to section 17 of 
the CEA.\129\
---------------------------------------------------------------------------

    \129\ 7 U.S.C. 19(b).
---------------------------------------------------------------------------

    The Commission preliminarily believes that the public interest to 
be protected by the antitrust laws is the promotion of competition. The 
Commission has considered this Proposal to determine whether it is 
anticompetitive and has identified no anticompetitive effects. Having 
done so, it also has not identified any less anticompetitive means of 
achieving the purposes of the CEA.

E. Executive Orders 12866, 13563, and 14192

    Executive Orders 12866 and 13563 direct agencies to assess all 
costs and benefits of available regulatory alternatives and, if 
regulation is necessary, to select those regulatory approaches that 
maximize net benefits (including potential economic, environmental, 
public health and safety, and other advantages; and distributive 
impacts). Section 3(f) of Executive Order 12866 defines a ``significant 
regulatory action'' as any regulatory action that is likely to result 
in a rule that may: (1) have an annual effect on the economy of $100 
million or more or adversely affect in a material way the economy, a 
sector of the economy, productivity, competition, jobs, the 
environment, public health or safety, or State, local, or tribal 
governments or communities; (2) create a serious inconsistency or 
otherwise interfere with an action taken or planned by another agency; 
(3) materially alter the budgetary impact of entitlements, grants, user 
fees, or loan programs or the rights and obligations of recipients 
thereof; or (4) raise novel legal or policy issues arising out of legal 
mandates, or the President's priorities.
    OMB has determined that this action is a significant regulatory 
action as defined under section 3(f) of Executive Order 12866 and 
therefore this action has been reviewed by OMB, consistent with 
Executive Order 14215.
    This Proposal, if finalized as proposed, is not expected to be an 
Executive Order 14192 regulatory action, because it imposes no more 
than de minimis net costs.

List of Subjects in 17 CFR Part 1

    Swaps.
    For the reasons set forth in the preamble, the Commodity Futures

[[Page 66033]]

Trading Commission proposes to amend 17 CFR part 1 as follows:

PART 1--GENERAL REGULATIONS UNDER THE COMMODITY EXCHANGE ACT

0
1. The authority citation for part 1 continues to read as follows:

    Authority:  7 U.S.C. 1a, 2, 5, 6, 6a, 6b, 6c, 6d, 6e, 6f, 6g, 
6h, 6i, 6k, 6l, 6m, 6n, 6o, 6p, 6r, 6s, 7, 7a-1, 7a-2, 7b, 7b-3, 8, 
9, 10a, 12, 12a, 12c, 13a, 13a-1, 16, 16a, 19, 21, 23, and 24 
(2012).

0
2. In Sec.  1.3, in the definition of the term, Swap, revise paragraphs 
(2)(i)(E) and (F) and add paragraph (2)(i)(G) to read as follows:


Sec.  1.3  Definitions.

* * * * *
    Swap. * * *
    (2) * * *
    (i) * * *
    (E) A forward rate agreement;
    (F) A non-deliverable forward involving foreign exchange; and
    (G) Event contracts, including those based on sports-, politics-, 
cultural, and weather-related events.
* * * * *

    Issued in Washington, DC, on October 15, 2026, by the 
Commission.
Christopher Kirkpatrick,
Secretary of the Commission.

    NOTE: The following appendix will not appear in the Code of 
Federal Regulations.

Appendix to Further Definition of ``Swap''--Inclusions--Commission 
Voting Summary

    On this matter, Chairman Selig voted in the affirmative. No 
Commissioner voted in the negative.

[FR Doc. 2026-21377 Filed 10-16-26; 8:45 am]
BILLING CODE 6351-01-P


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