On May 29, the Commodity Futures Trading Commission (CFTC or Commission) took a set of actions that together open a path for digital asset perpetual contracts to trade on registered U.S. platforms by classifying them as futures, rather than swaps, for the first time. The Commission approved the first such product, issued a policy statement on how it will review future perpetual contracts, and its staff issued separate guidance addressing foreign-listed perpetuals and customer margin and 24/7 trading. Perpetual contracts, often called perpetual futures, are futures-style instruments without a fixed expiration date, and they have until now traded almost entirely on offshore crypto trading platforms.

The Kalshi Order

The CFTC issued an Order to KalshiEX, LLC, a designated contract market (DCM), permitting it to list and clear the BTCPERP Contract, a cash-settled bitcoin perpetual contract that references the spot price of bitcoin, as a futures contract. Kalshi submitted the contract for approval under Commission Regulation 40.3, and the Commission issued the Order under § 5c(c)(4) of the Commodity Exchange Act (CEA). After reviewing the submission, the Commission determined that the contract complies with the CEA and the Core Principles applicable to DCMs, and the Order requires Kalshi to keep the contract in compliance with applicable law on an ongoing basis.

Commission Policy Statement — A Case-by-Case Path for Other Products

Alongside the Order, the Commission issued a policy statement on the listing of perpetual contracts addressing asset classes not covered by the Order. Because such products may vary significantly depending on the assets they reference, the Commission took the view that the voluntary, case-by-case review process under Regulation 40.3 is the appropriate route for listing perpetual contracts on asset classes not covered by the Kalshi Order, rather than self-certified. The Commission notes this guidance is a first step and that it may later address perpetuals more comprehensively through further guidance or rulemaking. It encouraged market participants to engage with staff and submit such products for review, and the policy statement will be published in the Federal Register.

Staff Interpretation and No-Action Letter — Foreign-Listed Perpetuals and Customer Margin

Separately, the CFTC’s Market Participants Division (MPD) issued a staff interpretation and a no-action letter in response to a request from Coinbase Financial Markets, Inc. (CFM), a registered futures commission merchant (FCM), regarding products it plans to offer on its affiliated foreign board of trade, Deribit FZE. The staff letter confirms that, consistent with the Kalshi Order, the perpetual contracts described may be treated as foreign futures under Regulation 30.1. It also states that, subject to specified conditions, MPD will not recommend an enforcement action against CFM for posting customer-owned digital commodities and payment stablecoins held in CFM’s Regulation 30.7 customer account with its foreign broker affiliate as margin for foreign futures and options positions, where the foreign broker has a right of re-use over those assets. Notably, like other assets held in an FCM’s Regulation 30.7 account, customers assume fellow customer risk in the event of a shortfall of the assets in such account. This treatment allows U.S. retail to access offshore perpetual markets through a registered futures commission merchant, an avenue unavailable when these products were classified as swaps.

Staff Advisory — 24/7 Trading, Clearing, and Settlement

The CFTC’s Division of Clearing and Risk, Division of Market Oversight, and MPD also issued a staff advisory on 24/7 trading, clearing, and settlement to address the operational dimensions of crypto markets. Because perpetuals trade continuously and depend on a funding mechanism that settles at intervals around the clock, a venue that lists them must operate on that basis, which makes the advisory directly relevant to the products covered by the Order and the Policy Statement. The advisory reminds DCMs, swap execution facilities, derivatives clearing organizations, and FCMs of their obligations under the CEA as they consider extending operations to a continuous 24/7 schedule. Staff noted that crypto-referencing derivatives may be well-suited to 24/7 trading given their digital infrastructure and global reach, while markets such as agricultural products may be less so.

Our Take

Taken together, these actions bring a product that has lived almost entirely offshore into the CFTC-regulated onshore market by classifying them as futures, rather than swaps, and they fit the agency’s broader effort to accommodate digital asset trading by eliminating the swap dealer registration trigger. The futures classification comes with tradeoffs, however, including uncertain tax treatment. A few practical points: The Kalshi approval is a Commission order specific to a spot-bitcoin perpetual, so firms interested in perpetual contracts on other assets should plan to use the Regulation 40.3 process and engage staff early. The staff interpretation and the 24/7 advisory are staff positions, which guide conduct but do not bind the Commission, so firms should read the conditions closely. Market participants weighing perpetual listings, foreign-listed products, or extended trading hours should map their plans to these materials now.