The US Commodity Futures Trading Commission submitted a new regulatory action titled “Regulation Crypto Asset Transactions and Regulation Crypto Asset Markets” to the Office of Information and Regulatory Affairs on Sept. 17. The filing is listed at the “prerule” stage, indicating an early phase in the rulemaking process that has not yet been formally proposed. This submission occurs days after the Senate failed to advance the CLARITY Act, which aimed to establish a federal regulatory framework for crypto markets.
Following the Sept. 15 legislative setback, CFTC Chair Michael Selig stated the agency was prepared to use existing statutory authority to oversee digital assets. On Aug. 20, Selig had directed staff to explore rules allowing exchanges to become designated contract markets for leveraged or margined crypto trading. Concurrently, SEC Chair Paul Atkins indicated his agency would proceed without legislation. Both regulators issued interim measures the day after the vote: the CFTC provided a no-action position for passive software providers, while the SEC announced temporary exemptions for platforms facilitating tokenized securities trading.
The CFTC’s move to initiate rulemaking via the OIRA review process marks a decisive shift toward administrative enforcement in the absence of congressional legislation. By entering the prerule stage, the agency is laying the groundwork for a formal proposal that could define how crypto asset transactions are supervised under existing commodity laws. This development underscores the regulators' intent to fill the vacuum left by the stalled CLARITY Act, leveraging their current statutory mandates rather than waiting for new legal authorities. The timing suggests a coordinated effort between the CFTC and SEC to assert jurisdictional clarity through executive action, potentially accelerating the integration of digital assets into traditional market structures.
Market participants should monitor the specific definitions emerging from this prerule stage, particularly regarding the designation of crypto exchanges as contract markets for leveraged trading. If the CFTC proceeds with Selig’s earlier proposals, it could impose stringent compliance requirements on entities currently operating in gray areas, significantly altering the competitive landscape for custody and trading infrastructure. The success of this administrative approach will depend on whether these rules can withstand potential legal challenges and effectively harmonize with the SEC’s parallel efforts, creating a unified but regulator-driven framework for institutional adoption.
