One Monday, two directions: the CFTC starts a crypto rulebook while FinCEN withdraws two crypto rules
Serguey Asael Shinder2 min readTwo US agencies acted on crypto on 5 October, and at first sight in opposite directions.
Adding. The Commodity Futures Trading Commission published an advance notice of proposed rulemaking on a framework for retail crypto transactions under section 2(c)(2)(D) of the Commodity Exchange Act. It asks how to prevent abusive practices under one national regime, how to give crypto-specific compliance guidance, and whether to create a new registration category, the "crypto asset market", inside the existing designated contract market structure. Comments are due within 60 days of Federal Register publication. Chairman Michael Selig tied the step to a presidential directive to build a federal market structure with the agency's existing powers.
Removing. The Financial Crimes Enforcement Network withdrew two proposed rules: a December 2020 proposal on recordkeeping and reporting for transactions with unhosted wallets, and an October 2023 proposal on crypto mixing. FinCEN said the mixer rule could chill legitimate activity and impose a large reporting burden, and placed the withdrawals in the administration's deregulatory agenda.
Why they are the same policy. Both agencies cite the same agenda and the same phrase, rules that are "fit-for-purpose". Read together, the direction is not more or less regulation in general. It is market-structure rules written by a markets regulator, and fewer surveillance obligations from the anti-money-laundering side. The CFTC notice frames its aim as preventing schemes such as FTX in advance; the FinCEN notice frames its withdrawals as protecting legitimate activity.
What it means in practice. For exchanges and brokers, the CFTC process is where obligations will come from next, and the comment period is the time to shape them. For wallet providers and privacy tools, the pending FinCEN obligations are gone, but nothing in either notice changes existing sanctions or anti-money-laundering law that already applies. Neither step is final: an ANPRM is the stage before a proposed rule, and withdrawn proposals can be reintroduced.