The Commodity Futures Trading Commission has sent a new crypto-market regulatory action to the White House for review, just two days after the U.S. Senate failed to advance the CLARITY Act. The filing shows that federal regulators can continue building parts of a crypto framework without new legislation. It also exposes the limit of that strategy: the CFTC still lacks the broad statutory authority over spot digital-commodity markets that Congress was considering giving it.
The Office of Information and Regulatory Affairs received the CFTC action, titled “Regulation Crypto Asset Transactions and Regulation Crypto Asset Markets,” on September 17. The government docket lists RIN 3038-AF80 as pending review and classifies it at the prerule stage. No public rule text or new compliance obligations accompany the filing.
That distinction matters. The CFTC has started a regulatory process, but the filing does not yet reveal which transactions, platforms or intermediaries would be covered, or exactly which provisions of existing law the agency intends to use.
The CFTC can regulate more than the filing initially suggests
The absence of the CLARITY Act does not leave the CFTC without tools.
The agency already has comprehensive authority over commodity derivatives, including futures and swaps, and has enforcement authority against fraud and manipulation involving commodity spot markets. The Commodity Exchange Act also gives the CFTC specific authority over certain leveraged, margined or financed retail commodity transactions, which can be treated similarly to futures unless statutory conditions such as actual delivery are satisfied.
That creates several areas where rulemaking could materially affect crypto businesses without Congress first expanding the CFTC's jurisdiction.
The Commission could further define how existing rules apply to crypto transactions conducted through registered derivatives venues, clarify requirements involving margin, clearing, custody and settlement, or revisit the treatment of leveraged retail transactions involving digital assets.
There is already evidence of this approach.
In 2025, the CFTC withdrew its previous guidance defining “actual delivery” for retail digital-asset transactions, saying the framework should be reevaluated because crypto spot and derivatives markets had changed and because the old guidance could conflict with newer regulatory work.
The CFTC and SEC also said that existing law does not prohibit certain SEC- or CFTC-registered exchanges from facilitating some spot crypto products. That staff statement specifically discussed margin, clearing, settlement, market surveillance and public trade data, although it expressly did not constitute a rule or formal Commission position.
During 2026, the CFTC has continued using existing authority through guidance, FAQs and regulatory relief covering crypto collateral, blockchain infrastructure and digital-commodity derivatives.
RIN 3038-AF80 could therefore turn some of that incremental work into a more formal regulatory framework. But the public record is still too limited to determine how far the Commission intends to go.
The largest spot-market gap cannot simply be rewritten by regulation
There is a more important boundary.
The CFTC itself has repeatedly stated that it does not currently possess direct statutory authority to comprehensively regulate cash or spot digital-commodity markets. Its authority in those markets has historically centered on enforcement against fraud and manipulation rather than continuous supervision of exchanges and intermediaries.
That is precisely one of the gaps the CLARITY Act was designed to close.
The latest Senate version would have given the CFTC exclusive jurisdiction over cash or spot sales of qualifying digital commodities and required digital commodity exchanges, brokers and dealers to register with the agency. It also contemplated rules covering customer-asset segregation, listing standards and other forms of market oversight.
Those powers would be materially broader than the CFTC's existing spot-market authority.
The difference is central to understanding the significance of the new rulemaking. The CFTC may be able to regulate transactions that already fall inside the Commodity Exchange Act, determine how existing registered entities handle crypto products and clarify ambiguous boundaries. It cannot simply create by regulation the same market-wide jurisdiction that CLARITY would have granted by statute.
The SEC is already demonstrating the parallel strategy
The SEC provides a clearer example of how much regulators can accomplish inside existing statutes.
On August 18, the Commission proposed Regulation Crypto Assets, a new framework for certain investment contracts involving crypto assets. The proposal would create exemptions permitting offerings of up to $5 million over four years and up to $75 million during a 12-month period, subject to disclosure and other conditions. It would also establish a conditional safe harbor from treatment as an investment contract in specified circumstances. Public comments are due October 20.
The SEC and CFTC also issued a joint interpretation in March addressing how federal securities laws apply to certain crypto assets and transactions, while coordinating the CFTC's treatment of those assets under the Commodity Exchange Act.
Together, those measures show what an agency-led framework could look like: definitions, exemptions, interpretations and rules built around authority Congress has already delegated.
But even SEC Chairman Paul Atkins said in August that legislation remains “indispensable” for creating durable rules for the industry while the Commission pursues regulatory action under existing securities laws.
The CLARITY setback shifts pressure to regulators without ending the legislative question
The Senate failed on September 15 to invoke cloture on the motion to proceed with the CLARITY Act. The vote was 49-50, short of the 60 votes required to advance.
The legislation is not formally closed, however. Senator Thom Tillis entered a motion to reconsider immediately after the vote, leaving a procedural path for another attempt.
That makes the CFTC filing less a replacement for CLARITY than a parallel track.
Chairman Michael Selig had already signaled that possibility before the Senate vote. In August, he said the agency had “other tools in the box” if market-structure legislation failed, while arguing that legislation remained the most important way to establish durable jurisdictional boundaries and statutory principles for crypto spot markets.
Administrative rulemaking also carries structural limits that legislation does not. A substantive regulation must remain grounded in authority Congress has already delegated, typically moves through notice and public comment, and can face judicial review over whether the agency exceeded that authority.
That means the next important question is not simply whether the CFTC publishes a crypto rule. It is which provisions of existing law it says authorize that rule.
The OIRA review of RIN 3038-AF80 will be the first indicator. After that, the publication of an advance notice, proposed rule or other regulatory document should reveal whether the CFTC is concentrating on areas already clearly inside its perimeter — such as derivatives, leveraged retail transactions and registered markets — or testing a broader interpretation of its authority.
That distinction will determine how much of the U.S. crypto regulatory framework regulators can build themselves, and how much still requires Congress.
