The Commodity Futures Trading Commission has drafted two crypto rules and sent them to the White House. Both now sit with the Office of Information and Regulatory Affairs, the review desk inside the Office of Management and Budget. The titles signal the scope clearly. One is “Regulation Crypto Asset Transactions.” The other is “Regulation Crypto Asset Markets.” Together, they sketch a federal framework for spot crypto trading built on existing law. Notably, the agency is not waiting for new authority from Capitol Hill. Instead, it plans to stretch the Commodity Exchange Act across ground Congress left open.
A Failed Senate Vote Set This in Motion
The timing follows a defeat. On September 15, the Senate rejected cloture on the Digital Asset Market CLARITY Act, H.R. 3633. The tally was 49 to 50, eleven votes short of the 60 needed to open debate. Every Democrat voted no. Four Republicans joined them: Susan Collins, Josh Hawley, Jerry Moran, and Thom Tillis. Tillis then filed a motion to reconsider, which keeps the bill technically alive. Still, most analysts now expect no market structure law before 2027. The bill would have split oversight between the SEC and the CFTC by statute. As a result of its collapse, the agencies must now draw that line themselves.
Selig Telegraphed This in August
Chairman Michael Selig warned the industry nearly a month before the vote. Speaking at the CFTC’s Innovation Advisory Committee on August 20, he laid out a contingency plan. “I’ve directed the CFTC staff to begin exploring rules to codify a CFTC market structure for crypto assets using the agency’s existing authorities,” he said. He also criticized the prior administration’s enforcement-first posture in blunt terms. Additionally, he urged the industry to keep pressing Congress on the bill. However, he made clear the agency would act alone if that bill stalled. The OIRA filing shows the exploration has now produced actual rule text.
What a “Crypto Asset Market” Would Look Like
The markets rule appears to create a new registration category for trading venues. Selig’s remarks point to a model based on designated contract markets, or DCMs. Those are the regulated futures exchanges the CFTC already supervises. Under that model, a registered crypto venue would run trade surveillance. It would also police wash trading and manipulation, then staff an internal disciplinary function. Governance standards would follow, covering board composition, compliance staffing, and conflicts of interest. Critically, registration would let those venues offer leveraged and margined crypto trading onshore. Much of that volume currently runs through offshore platforms instead.
The Transactions Rule and the Retail Question
The second rule targets the trades themselves rather than the venues. Here the CFTC has firmer statutory footing than many observers assume. The Commodity Exchange Act already reaches retail commodity transactions offered on margin or leverage. That hook has anchored CFTC crypto enforcement for years. Consequently, a transactions rule could set conduct standards without any new statute. Expect requirements covering disclosure, custody of customer assets, and settlement mechanics. The agency has not published the text, so specifics remain unconfirmed. OIRA review happens before publication, not after it.
The SEC Is Running a Parallel Track
The CFTC is not moving alone. In August, the SEC proposed its own Regulation Crypto Assets, published in the Federal Register on August 21. That proposal would create an exemptive offering regime for certain crypto investment contracts. The commission separately sent a custody rule rewrite to OIRA on August 25. Both agencies also signed a memorandum of understanding in March. They followed it with joint interpretive guidance on when a crypto asset trades as a security. Meanwhile, Project Crypto became a joint initiative back in January. The two agencies are therefore dividing the map without a statute telling them where lines belong.
What OIRA Review Actually Means
OIRA review is a procedural gate, not a policy endorsement. Under Executive Order 12866, the office screens significant rules before agencies publish them. The standard window runs up to 90 days, with one 30-day extension available. Reviews frequently finish sooner than that. Once OIRA clears a proposal, the commission still must vote to issue it. Public comment follows, then a final rule after staff process the feedback. Realistically, binding requirements sit months away at minimum. Anyone tracking the timeline can check filing status on reginfo.gov.
Rules Are Easier to Undo Than Laws
This route carries a real weakness, and the industry knows it well. Agency rules shift when administrations shift. A statute does not. Ripple’s Brad Garlinghouse called the Senate defeat painful, while still praising both chairmen. Others were blunter about the cost. Cardano Foundation’s Frederik Gregaard noted builders increasingly choose Europe’s MiCA regime for its certainty. tZERO’s Alan Konevsky argued the structural move toward regulated markets continues regardless. In short, the CFTC filing delivers progress without permanence. Firms gain a compliance path, but that path could change with the next election.
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