The CFTC is not waiting for Congress to hand it a neat crypto rulebook. On Sept. 17, the agency sent a crypto market structure prerule to White House reviewers, a sign it is starting the formal process even after the CLARITY Act stalled in the Senate.
- CFTC prerule sent to OIRA/OMB
- CLARITY Act blocked in the Senate
- SEC and CFTC both moving without new legislation
- No public rule text yet
The filing, titled “Regulation Crypto Asset Transactions and Regulation Crypto Asset Markets, ” appeared at the Office of Information and Regulatory Affairs, which sits inside the Office of Management and Budget. In U.S. rulemaking, that matters because OIRA review is one of the first formal checkpoints before an agency can push a regulation forward.
This is still early-stage stuff. The filing is listed at the prerule stage, which means the CFTC is teeing up possible rules rather than publishing them. There is no public rule text, no detailed policy language, and no substantive explanation of exactly what the agency plans to do. The United States Commodity Futures Trading Commission declined to comment.
But the timing is hard to ignore. The filing landed after the Senate failed to advance the CLARITY Act, the market structure bill that would have created a federal framework for crypto markets. The Senate rejected cloture on the motion to proceed to H.R. 3633 by a 49-50 vote. That is Washington speak for: not happening, not yet.
So the CFTC appears to be doing what federal regulators often do when Congress drags its feet, using the authority it already has and seeing how far it can go before someone slaps its wrist in court.
The agency has been signaling this direction for months. In August, CFTC Chair Michael Selig said staff should begin exploring rules to codify a crypto market structure using the agency’s existing authority. After the Senate vote, he posted on X that the CFTC was “locked in and ready to ship.”
That is a pretty bold line for a regulator, but it also telegraphs intent. The CFTC is not pretending it can solve crypto with a press release. It is moving into the machinery of rulemaking.
Selig’s August remarks sketched the rough shape of what that framework could look like. He described a model that could let current registrants and some unregistered exchanges be designated as a type of designated contract market, or DCM, under a new crypto asset market category. A DCM is a CFTC-regulated trading venue for derivatives.
He also said the framework could allow leveraged or margined trading under CFTC oversight. That means trading with borrowed funds or posted collateral, which can amplify gains and losses. In crypto, that usually means one thing: more firepower, more volatility, and more chances for traders to get liquidated into the floor.
Those remarks also referenced perpetual contracts and event contracts. Perpetuals are derivatives with no expiration date. Event contracts are tied to the outcome of a specific event. Both have obvious appeal in crypto markets, and both are politically and legally messy. Regulators tend to like order; crypto traders tend to like leverage; those two instincts rarely hold hands politely.
It is worth keeping one thing straight: those details came from Selig’s speech, not from the filing itself. The prerule notice only shows that the CFTC has started the process. The substance still has to be written, reviewed, revised, and approved.
That means the proposal still has a long road ahead. It may be revised during White House review, then it would need a CFTC vote, a public comment period, and finally commission approval before becoming a final rule. So yes, this is movement. No, it is not finished policy.
The bigger picture is simple enough. If Congress cannot pass a crypto market structure bill, agencies will try to build one using the powers they already have. That can create momentum, but it does not automatically create clarity. A rule written by an agency is faster than a statute, but it is also easier to challenge, narrower in scope, and more vulnerable to being rewritten the next time the political winds change.
The SEC is moving in parallel, which tells you this is not just a CFTC side quest. On Sept. 16, SEC Chair Paul Atkins said the agency would act “with or without legislation” within its statutory authority. On Sept. 17, the SEC followed with temporary, conditional exemptive relief for certain platforms trading tokenized stock.
That relief is more limited than the hype merchants would have you believe. It applies to tokenized NMS stock, stock listed on a national market system, through Tokenized Securities Venues, or TSVs. The SEC said those venues may use permissioned automated market makers and liquidity pools. “Permissioned” is the key word there. This is not a blanket blessing for open, permissionless DeFi equity markets. It is a tightly controlled setup with guardrails, conditions, and a five-year expiration after publication.
The SEC also asked for public comment. In other words, this is an experiment, not a free-for-all. Tokenized stock is still a regulatory minefield, and the agency is clearly trying to keep one hand on the brake while testing the accelerator.
The same day, the CFTC issued a no-action position for developers of passive trading software. A no-action position means the agency says it will not recommend enforcement action under specified circumstances. That may sound boring, but for builders it matters. It suggests the CFTC does not want to start whacking software developers while broader market rules are still being assembled.
Put the pieces together and a clear pattern emerges: Congress stalled, and the two biggest U.S. market regulators decided not to sit on their hands. The CFTC is teeing up crypto market structure rulemaking. The SEC is opening a narrow lane for tokenized stock. Both are signaling they will act under existing authority if lawmakers keep dragging their feet.
That is good news if you want progress instead of permanent gridlock. It is also a reminder that progress without a statute can turn into a patchwork of exemptions, no-action letters, and agency-specific theories that still leave builders guessing. Crypto does not just need motion. It needs durable rules that survive elections, court challenges, and regulatory turf wars.
The cheerleaders will call this regulatory clarity. That is generous. At this stage, it is more like regulatory activity with better lighting.
Key takeaways and questions
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What did the CFTC actually file?
The agency sent a prerule filing titled “Regulation Crypto Asset Transactions and Regulation Crypto Asset Markets” to OIRA/OMB. That means it has started the formal process, but it has not yet published a proposed rule.
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Why does the prerule stage matter?
Because it is the earliest step in the regulatory pipeline. It shows intent and process, not final policy.
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Did the Senate advance the CLARITY Act?
No. The Senate rejected cloture on the motion to proceed to H.R. 3633 by a 49-50 vote, which stalled the bill.
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What was Michael Selig saying about crypto rules?
Selig said in August that staff should explore rules to codify a crypto market structure using the CFTC’s existing authority. After the Senate vote, he posted on X that the agency was “locked in and ready to ship.”
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Could the CFTC regulate crypto exchanges?
Potentially, yes. Selig’s remarks described a framework that could bring certain venues into a CFTC-style DCM structure under a new crypto asset market category.
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What did the SEC do on the same day?
The SEC granted temporary, conditional exemptive relief for tokenized NMS stock trading through Tokenized Securities Venues, and it said it would act “with or without legislation” within its authority. The commission also issued an “Innovation Exemption” to facilitate the trading of tokenized stock under strict conditions.
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Does this mean crypto has real regulatory clarity now?
No. It means the agencies are moving. Until there are final rules, or Congress passes a durable framework, the market still lives with uncertainty, just with more paperwork attached.
The broader U.S. policy fight is still in motion, especially after the US House passes CLARITY Act to split crypto oversight effort set up the latest round of agency jockeying. For now, the CFTC is pushing ahead with its own track, while the SEC is carving out narrow exceptions. If that sounds messy, that is because it is. But it is also how Washington works when lawmakers punt and regulators start freelancing with the tools they already have.
For more context on how this regulatory chess match is shaping up, the SEC and CFTC gear up for CLARITY Act rundown shows why both agencies are preparing for a future that may not wait on Congress. And if you want the legislative backdrop that set this scramble in motion, the Senate Banking Committee advances CLARITY Act to split oversight is the place to start.
Outside the crypto market structure grind, the CFTC has also been active on prediction markets, with the CFTC prediction markets rulemaking sent to White House showing this is part of a broader push, not just a one-off crypto move. That same theme showed up in coverage of the CFTC advances crypto market structure rulemaking to White House review, which underscored how quickly agency process can move once the political brakes are off.
One more wrinkle: the SEC and CFTC issue interpretation regarding the application of securities laws to crypto assets suggests both regulators are still trying to define their turf before Congress does it for them. That kind of overlap is exactly why industry participants keep begging for actual legislation instead of this endless bureaucratic improv set.
Further reading
For background on the agency now pushing into crypto rulemaking, this is the core institution to know:
