The advance notice sketches a new class of exchange that would list the crypto asset itself rather than a contract on it, with trades intermediated by a futures commission merchant and leverage supplied by registered providers. Lawyers reading it say the document contradicts itself on what counts as actual delivery.
The CFTC's advance notice of proposed rulemaking on crypto asset transactions and markets was published in the Federal Register on October 13, starting a comment period that closes on December 14. The document occupies pages 64811 to 64840 of volume 91, carries RIN 3038-AF80 and docket number CFTC-2026-2179, and contemplates amendments to parts 1, 38 and 39 of title 17 of the Code of Federal Regulations.
That RIN is the one this site reported arriving at the White House budget office on September 17, two days after crypto market structure legislation stalled in the Senate. At the time the rule had never appeared in a Unified Agenda, so no text, abstract or timetable existed publicly. Thirty pages of it now do.
An advance notice is not a proposed rule. The Commission is recording an intention to write one and asking questions first, and a proposal, if it follows, would carry its own comment period and its own text. Chairman Michael S. Selig announced the notice on October 5 in remarks at a Fordham Law symposium, and the agency's press release that day called it "a critical step in the CFTC's ongoing efforts to ensure America remains the crypto capital of the world." Selig said the aim is to "prevent, rather than only prosecute after the fact, fraudulent schemes such as FTX."
The statutory hook is section 2(c)(2)(D) of the Commodity Exchange Act, which reaches retail commodity transactions offered on a leveraged, margined or financed basis and excepts contracts that result in actual delivery within 28 days, or a longer period the Commission sets. Two regulations would be built on it. Regulation CTX would interpret the statute's terms for crypto assets, principally "offer" and "actual delivery." Regulation CAM would build the venue.
The venue is the part with no precedent in the agency's existing structure. A crypto asset market, as the notice frames it, would be a subcategory of designated contract market restricted to covered crypto transactions, and what it lists is the asset itself rather than a futures contract referencing it. Around that the notice names a futures commission merchant regime to intermediate the trades, a clearing regime for derivatives clearing organizations, a category of eligible leverage providers, permitted depositories, and exemptions from registration. Steptoe reads the notice as also letting existing designated contract markets add crypto transactions under their current registration rather than standing up a separate venue, and counts four registered structures described in its Appendix A.
The scope of "offer" is where that firm sees the most reach. Its reading is that a covered offer can be made through ordinary onboarding, exchange or margin documents and can attach to every transaction on a venue, which would pull fully paid spot trades into the regime alongside the leveraged ones once a single covered offer exists. That is a law firm's interpretation of a document that is asking for comment, not a Commission position on where its jurisdiction ends.
On actual delivery the same analysis says the notice contradicts itself, reporting that Section IV indicates delivery can occur while a lien remains outstanding while Section V.H indicates it cannot. The distinction decides whether a margined onchain purchase sits inside or outside the regime. The portion of the Federal Register text retrieved for this report did not reach Section V.H, so the conflict is set out here as the firm's reading rather than as something checked against the document.
Entering the regime would be a choice. American Banker reported that the rules would not require crypto assets to trade on CFTC-registered platforms, and that an exchange could elect the federal framework instead of state-level licensing. The inducement, as the outlet reported Selig describing it, is that a federally registered venue could let retail customers trade on a margined, leveraged or financed basis, which state-licensed exchanges cannot.
What this route cannot supply is permanence. It interprets a statute already on the books rather than implementing a new one, and the market structure legislation that would have set the division of labor between the two agencies in statute remains stalled in the Senate. Market participants told American Banker that rules adopted this way may lack the permanence of legislation and could be changed by a future administration. The SEC's custody proposal, which treats self-custody as a last resort, rests on the same footing and runs on the same 60-day clock from publication.
Comments go to the docket on Regulations.gov and close on December 14.
