U.S. CFTC: The latest proposed rule notice aims to establish a framework for the cryptocurrency spot market using existing authority

According to crypto journalist Eleanor Terrett, the latest Advance Notice of Proposed Rulemaking (ANPRM) released by the U.S. Commodity Futures Trading Commission (CFTC) attempts to utilize its existing authority to establish a market structure framework for spot trading in the crypto space. This framework will be built upon the existing DCM, DCO, and FCM registrations and create a new category called "crypto asset market."

A significant difference from the Clarity Act is that the CFTC proposal is exploring a voluntary federal exchange registration pathway: spot exchanges that do not offer leverage can choose not to join this framework and continue to hold state money transmission licenses. Former CFTC Chairman Giancarlo stated that this provides exchanges with a "clear, voluntary single federal rulebook pathway" when customers trade using borrowed funds, and noted that the CFTC is acting within the authority granted by Congress in 2010, supported by court rulings recognizing assets like Bitcoin as commodities.

Several lawyers have stated that this ANPRM is a "clever" or "creative" interpretation of Section 2(c)(2)(D) of the Commodity Exchange Act, potentially covering retail crypto spot trading that offers leverage, margin, or financing, even if customers do not actually use leverage. The proposal also addresses "actual delivery" under Section 2(c)(2)(D), seemingly focusing on whether customers own/control the assets rather than merely relying on the book records of a pooled account. However, the proposal still leaves significant questions regarding customer asset bankruptcy protection. Comments must be submitted within 60 days after the proposal is published in the Federal Register.