CFTC Files Crypto Market Rulemaking With White House at Prerule Stage

The Commodity Futures Trading Commission sent a crypto market structure rulemaking to the White House on Thursday, two days after the Senate refused to take up the bill that would have written one into law.

It is the only CFTC action pending White House review. Chairman Michael Selig said in August that the agency would use its existing authorities if the CLARITY Act stalled, and repeated it the day after the Senate vote.

The Office of Information and Regulatory Affairs entry lists the action under RIN 3038-AF80, titled "Regulation Crypto Asset Transactions and Regulation Crypto Asset Markets," received Sept. 17. The entry records no legal deadline, marks the action as not economically significant, and flags it as a Dodd-Frank Act rulemaking.

The entry carries no abstract and no text. The CFTC has not published the draft, and the RIN has not appeared in a Unified Agenda.

Prerule, Not A Proposal

OIRA classifies the filing at the "Prerule" stage. Executive Order 12866 uses that category for "notices of inquiry, advance notices of proposed rulemaking, and other preliminary regulatory actions prior to a Notice of Proposed Rulemaking." It gives them a different clock. OIRA is to finish reviewing a preliminary action within 10 working days of submission, against 90 calendar days for proposed and final rules.

The order allows one extension of up to 30 days with the written approval of the OMB director, and further extension at the request of the agency head. Ten working days from Sept. 17 runs to Oct. 1. The agency cannot publish until OIRA waives review, completes it, or the period expires without OIRA asking for reconsideration.

A prerule comes before a proposal. A proposed rule then needs a Commission vote, publication in the Federal Register and a comment period before the CFTC can adopt anything.

The SEC is further along. Its Regulation Crypto Assets proposal is in the Federal Register with comments open until Oct. 20, and its custody rewrite, RIN 3235-AN46, entered OIRA review at the proposed-rule stage.

What Selig Told Staff

The title names two regulations. Selig has described work on both halves.

In his first speech as chairman on Jan. 29, Selig said he had directed staff "to begin drafting rules clarifying when leveraged, margined, or financed retail commodity transactions in crypto may be offered off-exchange under an 'actual delivery' exception," to draft requirements for designated contract markets offering those transactions, and "to explore the creation of a new category of DCM registration that is tailored specifically to retail leveraged, margined, or financed crypto asset trading." He also directed staff to develop rules on additional forms of eligible tokenized collateral.

He returned to it at the CFTC's Innovation Advisory Committee on Aug. 20, according to his prepared remarks. "I've directed the CFTC staff to begin exploring rules to codify a CFTC market structure for crypto assets," he said. He said he had also directed staff "to engage with developers of onchain finance protocols to establish ways in which developers can offer their protocols in a legal and compliant manner."

He tied the timing to the bill in the same speech. "If CLARITY continues to stall because of Democratic obstruction, the CFTC will utilize its existing authorities to begin establishing a regime for crypto asset markets," he said.

The CFTC's Market Participants Division issued a no-action position to providers of passive software on Sept. 17, the same day the filing reached OIRA. Staff Letter No. 26-25 states the division will not recommend enforcement against providers of trading facilitation software for failing to register as introducing brokers or associated persons.

Independent, But Not Exempt

The CFTC is an independent agency, and its rules did not go to OIRA until last year. Executive Order 14215, signed Feb. 18, 2025, amended EO 12866 to require that "all executive departments and agencies, including so-called independent agencies, shall submit for review all proposed and final significant regulatory actions" to OIRA. It covers independent regulatory agencies as defined in 44 U.S.C. 3502(5) and the Federal Election Commission, and exempts the Federal Reserve's monetary policy functions.

One Commissioner, Four Vacancies

Selig is the only sitting member of the five-seat Commission, according to the CFTC's Chairman & Commissioners page. He was sworn in as the 16th chairman on Dec. 22, 2025.

The Supreme Court overturned Humphrey's Executor on July 1, removing the for-cause protection that had shielded CFTC and SEC commissioners from removal by the president.

The Bill That Stalled

The Senate rejected cloture on the motion to proceed to H.R. 3633 by 49-50 on Tuesday, 11 votes short of the 60 required. All 49 votes to proceed came from Republicans. The Defiant reported the result Tuesday.

Selig and SEC Chairman Paul Atkins said the next day that they would write crypto rules without the legislation. "The CFTC is locked in and ready to ship its rules for the new frontier of finance," Selig said.

Polymarket priced the CLARITY Act being signed into law in 2026 at 7.9% on Friday, on $21.5 million of cumulative volume. The market read 19.5% on Tuesday morning, before the vote.

Bitcoin traded at $80,686, up 5.1% over 24 hours, CoinGecko data shows. Ether was at $2,581, up 4.5%.