Can SEC and CFTC Rulemaking Fill the Gap While the CLARITY…

Published: October 13, 2026 – 10:39 UTC

Within two days of the Senate's September 15 cloture vote on the CLARITY Act, the SEC had granted a five-year exemption for on-chain trading of certain tokenized stocks. The same day, September 17, the CFTC issued no-action relief for passive software providers and sent a crypto market rulemaking to the White House for review.For the next 18 months or more, US digital-asset policy is likely to be written mostly in agency dockets.

The Center of Gravity Has Moved

The speed suggests both agencies had prepared for this outcome. SEC Chairman Paul Atkins said his agency would act "with or without legislation" within its statutory authority, and CFTC Chairman Michael Selig described the CFTC as "locked in and ready to ship" its rules.Preparation and permanence are different things, though. An agency rule carries less long-term weight than a law passed by Congress, and that gap shapes everything that follows."In the near term, attention will inevitably shift towards the SEC and CFTC, where significant digital-asset rulemaking is already under way," says Binance Global Policy Lead Steven McWhirter. "Industry now has a responsibility to engage constructively and help ensure those rules are workable, technology-neutral and capable of supporting markets that are increasingly global and 24/7."Those standards translate into practical tests for any proposal. Does the rule assume trading stops at 4 p.m. or does it favor one technology stack over another? Maybe it treats the customer base as if it sat in a single jurisdiction? The first formal chance to press those questions comes soon: the comment period closes October 20 for the SEC's proposed Regulation Crypto Assets.

What the SEC Can Settle

The SEC's toolkit is strongest where the old regime was weakest: defining when a token sale is a securities offering, and when it stops being one.The groundwork came on March 17 when the SEC and the CFTC issued joint interpretive guidance placing digital commodities and collectibles as well as tools and stablecoins generally outside the securities definition. The guidance also confirmed that tokenized securities remain securities. Regulation Crypto Assets, which was proposed on August 18, builds on that framework with a $5 million startup exemption over four years and a fundraising exemption of up to $75 million in any 12-month period. It also sets out a safe harbor for when a covered investment contract ceases to exist.The Innovation Exemption is narrower by design. In practice, this means that venues must give issuers written notice and a chance to object before trading a third party's tokenized version of their stock. Volume is capped at 0.25% of prior-month average daily share volume for S&P 500 and Russell 1000 names and at 2.5% for other eligible stocks.Caps that tight turn the exemption into a controlled test bed, and they show the SEC building caution into the transition. A custody modernization proposal covering crypto assets is expected next.

What the CFTC Can Settle, and the Line It Cannot Draw

The CLARITY Act's central promise was new spot-market authority for the CFTC, and no rulemaking can supply that. Without the bill, the agency's reach into spot crypto trading stays largely confined to fraud and manipulation cases, plus the derivatives built on those markets.Inside those limits, the agency is building. Staff Letter 26-25 lets qualifying passive software providers connect users to registered derivatives markets without registering as introducing brokers, provided they don't take custody of assets or exercise discretion over orders. The bigger project is a rulemaking listed as RIN 3038-AF80. Its text isn't public, but Davis Wright Tremaine reads it as aimed at a new exchange category for crypto assets and at leveraged, margin trading. White House review can take up to 90 days, and the firm doesn't expect final binding rules before late 2027.Staff relief is useful, and it is also fragile. The Commission can modify or withdraw a no-action position at its discretion, which makes it workable for shipping software and much weaker as a foundation for long-term financing.

Why Rules Without a Statute Raise the Stakes

Rules written without a statute are faster to win and easier to lose. And let’s agree on this: both halves of that sentence matter.Start with the downside. JPMorgan analysts noted in a September 16 note, reported by The Block, that agency rules are less durable than legislation because future administrations can change them and courts can overturn them. That exposure grew after the Supreme Court's June 28, 2024 Loper Bright decision ended Chevron deference. Agency readings of ambiguous statutes no longer get the benefit of the doubt in federal court, which leaves broad crypto rules open to challenge.The process itself offers some protection, however. Tremaine argues that rules adopted after notice and comment under the Administrative Procedure Act are hard to unwind particularly once firms have built products around them.So the more exposed a rule is to challenge or reversal—the more its administrative record matters. The comment file now sits at the center of the durability question and raises the stakes for how industry engages with every open docket.

The Docket Is the Debate Now

Four proceedings now carry most of the weight: Regulation Crypto Assets, the first venues under the Innovation Exemption, the CFTC rulemaking once it clears White House review, and the SEC's expected custody proposal. What they settle, and what they leave for a future Congress, will depend heavily on who takes part in shaping them. The market-structure debate now runs through comment files.

Source: FinanceFeeds