CFTC Submits Crypto Market Structure Rulemaking to White House at Prerule Stage

The Commodity Futures Trading Commission (CFTC) filed a crypto market structure rulemaking with the Office of Information and Regulatory Affairs (OIRA) on Sept. 17. The filing, identified as RIN 3038‑AF80 and titled “Regulation Crypto Asset Transactions and Regulation Crypto Asset Markets,” is listed at the prerule stage, meaning it is a preliminary regulatory action rather than a formal proposal.

Prerule Status and Review Timeline

Under Executive Order 12866, OIRA must complete its review of prerule actions within ten working days, compared with a 90‑day window for proposed and final rules. The ten‑day period from the filing date runs to Oct. 1, unless OIRA grants an extension of up to 30 days with OMB director approval, or a further extension at the request of the agency head.

CFTC’s Planned Rulemaking Scope

Chairman Michael Selig has outlined two main areas for rulemaking:

• Clarifying when leveraged, margined, or financed retail commodity transactions in crypto may be offered off‑exchange under an “actual delivery” exception, and setting requirements for designated contract markets offering such transactions.
• Exploring a new category of DCM registration tailored to retail leveraged, margined, or financed crypto‑asset trading, as well as rules for eligible tokenized collateral.

Selig also indicated the agency will engage with developers of on‑chain finance protocols to establish compliant offering mechanisms.

Context of Legislative Action

The filing came two days after the Senate rejected cloture on the CLARITY Act (H.R. 3633), falling short of the 60 votes needed to advance the bill. In response, both the CFTC and the SEC indicated they would proceed with rulemaking using existing authorities.

Related Regulatory Activity

The SEC’s “Regulation Crypto Assets” proposal is already in the Federal Register with a comment period ending Oct. 20, and its custody rewrite (RIN 3235‑AN46) is under OIRA review at the proposed‑rule stage.

Commission Composition

Michael Selig is currently the sole sitting commissioner on the five‑member CFTC Commission, following recent vacancies and a Supreme Court decision that removed for‑cause protection for commissioners.

Market Reaction

Following the Senate vote, Polymarket priced the probability of the CLARITY Act becoming law in 2026 at 7.9%. Bitcoin was trading around $80,686, up 5.1% over 24 hours, while Ether was near $2,581, up 4.5%.