Definition of “Swap” and “Security-Based Swap” (CFTC/SEC)

Current understanding

The CFTC and SEC share jurisdiction over swaps and security-based swaps under Dodd-Frank, with the boundary between the two categories governing which agency’s rules apply to a given product. In 2026 the agencies jointly issued a request for public comment on further defining these terms and on potential alternative compliance approaches for innovative financial products that may straddle both regimes. Status: joint request for comment (pre-proposal stage); no rule changes are yet in effect.

Evidence log

• 2026-09-02 — Exemption of Debt Obligations Issued by the European Union Under the Securities Exchange Act of 1934 for Purposes of Trading Futures Contracts on Those Securities: cross-connection with eu-debt-exempted-securities-futures: Both allocate products between SEC securities rules and CFTC futures/swap rules; the EU-debt exemption is a jurisdictional carve-out analogous in structure to the swap/security-based swap boundary. (novelty: 2)
• 2026-07-21 — Order Providing Exemptive Relief To Facilitate Listing of Cash-Settled Futures on Individual Equity Securities: cross-connection with cftc-cash-settled-equity-futures-exemptive-relief: Single-stock futures sit at the CFTC/SEC jurisdictional boundary defined by the swap/security-based swap definitions; cash-settlement mechanics affect product classification. (novelty: 2)
• 2026-07-21 — Order Sunsetting Certain Large Trader Reporting Requirements for Physical Commodity Swaps: cross-connection with cftc-part-20-swaps-large-trader-reporting-sunset: The sunset applies specifically to ‘physical commodity swaps’ as defined under CFTC jurisdiction, tying scope to the swap definitional framework. (novelty: 3)
• 2026-05-14 — Order Granting Conditional Substituted Compliance in Connection With Certain Capital and Financial Reporting Requirements Applicable to a Nonbank Swap Dealer Domiciled in the French Republic and Subject to the European Union’s Investment Firms Regulation and Investment Firms Directive: 2025 CFTC substituted compliance order for Goldman Sachs Paris under EU IFR/IFD illustrates how cross-border equivalence is being extended for entities dealing in CFTC-jurisdictional swaps, distinct from the SEC’s security-based swap regime. (novelty: 3)
• 2026-06-24 — Joint Request for Comment on Swap and Security-Based Swap Data Reporting: Cross-connection with swap-data-reporting-requirements: the 2026 joint CFTC/SEC request for comment on swap data reporting is part of the same coordinated push to review and harmonize cross-agency treatment of swap products alongside the definitions RFC. (novelty: 2)
• 2026-06-24 — Joint Request for Comment on Further Definition of “Swap” and “Security-Based Swap” and on Alternative Compliance: cross-connection with portfolio-cross-margining-securities-derivatives: Both are part of a coordinated 2026 CFTC/SEC push to clarify and harmonize the treatment of products and portfolios that straddle securities and derivatives jurisdictions. (novelty: 2)

Open questions

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