The Commodity Futures Trading Commission (CFTC) submitted a digital asset market rule filing to the White House on September 17, just two days after the U.S. Senate voted 49-50 to block the CLARITY Act. This is the only CFTC action currently pending White House review.

The filing, designated RIN 3038-AF80 and titled “Regulation Crypto Asset Transactions and Regulation Crypto Asset Markets”, was received by the Office of Information and Regulatory Affairs (OIRA) on September 17.

Failure in Congress, Executive Branch Takes Its Own Path

The CLARITY Act, a bill establishing a comprehensive regulatory framework for the U.S. crypto market, failed to clear the 60-vote threshold needed to proceed to debate in the Senate. All 49 votes in favor came from Republicans, with no votes from Democrats.

CFTC Chairman Michael Selig had signaled since August: if the CLARITY Act was blocked, the CFTC would leverage its existing authority to craft rules. One day after the vote, Selig and SEC Chairman Paul Atkins jointly declared that they would “write the rules themselves” without Congress.

A Shorter Path, but Still Many Steps Ahead

Under Executive Order 12866, OIRA has 10 business days to review prerule actions, compared to 90 days for proposed and final rules. From September 17, the deadline is October 1. During this period, the CFTC cannot disclose the contents until OIRA completes its review or the deadline expires.

A prerule stage is still not a rule. After clearing OIRA, the CFTC must vote to approve it at the Commission level, publish it in the Federal Register, open a public comment period, and only then can it be issued. This process could take many months.

The filing contains no abstract and no draft text. The CFTC has not yet released details of the proposed rule. The RIN has also not appeared in the Unified Agenda.

What Selig Said About the Content

In his first speech as Chairman on January 29, Selig said he had directed staff to draft rules on leveraged retail commodity transactions in crypto, requirements for designated contract market (DCM) design, and to explore a new registration category specifically for leveraged retail digital asset trading.

At the Innovation Advisory Committee on August 20, Selig added two more directions: rules on tokenized collateral and pathways for onchain finance protocols to operate legally.

The Bigger Picture: Both Agencies in a Race

The SEC is moving faster. The Regulation Crypto Assets proposal is accepting comments until October 20, and the custody rule rewrite (RIN 3235-AN46) has already entered OIRA review at the proposed rule stage.

Notably, the CFTC is an independent agency, but since February 2025, Executive Order 14215 has required all independent agencies, including the CFTC, to submit rules to OIRA. And currently, Selig is the sole commissioner among the CFTC’s 5 seats. The Supreme Court overturned the Humphrey’s Executor precedent on July 1, eliminating for-cause removal protections for commissioners.

Bitcoin was trading around 80,686 USD at the time of the report, up 5.1% in 24 hours. Polymarket placed the probability of the CLARITY Act being signed into law in 2026 at just 7.9%.

The big question: does an agency with only one commissioner, writing rules for a trillion-dollar market through executive action rather than legislation, have enough legitimacy and long-term stability? The market does not appear overly concerned—but that may be because it has long grown accustomed to regulatory uncertainty in the U.S.