SEC vs CFTC: Who Regulates Which Crypto Activity?

No single agency regulates crypto in the United States. The SEC regulates crypto that is a security, including tokens sold as investment contracts under the Howey test. The CFTC regulates futures, swaps and margined retail trades on crypto commodities, and it can police fraud in spot markets. Ordinary spot trading of bitcoin-like tokens has no dedicated federal market regulator yet.

That gap is the part most explanations skip, and it is why the answer depends on what you are doing rather than which coin you hold. Buying a token in a presale, trading it on an app, borrowing to buy more of it, holding a dollar stablecoin and handing coins to a custodian can each sit under a different agency, or partly under none. The market-structure bill H.R. 3633 would change some of this, but as of October 22, 2026 it has not become law.

This page maps who regulates which crypto activity under current law, and it keeps apart four things headlines blur: enacted statutes, Commission-level interpretations and orders, staff statements, and proposals still out for comment. Every row was checked against the statute, the Federal Register or an agency release on October 22, 2026. For the rest of our coverage, see the crypto regulation topic hub.

Two Statutes, Two Definitions

The split comes from two statutes that were never written with tokens in mind.

The securities laws turn on the word "security," which includes stock, bonds, notes and "investment contracts." In SEC v. W.J. Howey Co., 328 U.S. 293 (1946), the Supreme Court defined an investment contract as a contract, transaction or scheme in which a person invests money in a common enterprise and is led to expect profits from the efforts of a promoter or third party. If a token sale fits, Section 5 of the Securities Act makes it unlawful to sell without registration or an exemption, and Section 15(a) of the Exchange Act requires a broker or dealer effecting transactions in it to register.

The Commodity Exchange Act (CEA) turns on "commodity," and Section 1a(9) defines it almost without limit: farm products, then "all other goods and articles" and "all services, rights, and interests" in which futures are or may be traded, with two odd exceptions, onions and motion picture box office receipts. Almost any crypto asset that is not a security can fit. The catch that shapes the whole map is that the CFTC's exclusive jurisdiction under Section 2(a)(1)(A) covers futures, options and swaps, not ordinary cash purchases. The CFTC licenses the exchange where bitcoin futures trade. It does not license the app where you buy bitcoin with dollars.

That leaves three zones:

Most of the public argument about "who regulates crypto" is about zone 3 and who should fill it.

How Much Weight Each Document Carries

Treating a staff view as law is the most common error in crypto regulatory coverage, so here is the legend for the map.

The Activity Map Under Current Law

Rows are activities, not coins. Column (a) is enacted law. Column (b) is what an agency has said it will do under that law, with the instrument type in brackets. Column (c) is pending and is not law. Status as of October 22, 2026.

Two rows changed recently and most guides have not caught up: the margined retail row, where the CFTC's main interpretation was withdrawn, and the stablecoin row, where the statute is enacted but not yet effective.

Row Notes: Where Each Answer Bends

Token offerings: the asset and the sale are separate questions

The March 2026 interpretation leaves Howey in place and calls it "binding legal precedent." What it adds is vocabulary. A token that is not itself a security can still be sold under promises that make the sale an investment contract, and the interpretation explains how that relationship can end once the issuer's promises are fulfilled or abandoned. In practice, a presale where buyers fund a team that promises to build the network looks like the classic Howey pattern, while a market purchase years later from an anonymous seller, after the network runs, may not.

The SEC's August 2026 "Regulation Crypto Assets" proposal would add two tailored offering exemptions with disclosure duties. Until it is adopted, issuers rely on existing registration or existing exemptions.

Spot trading: the federal gap

If you buy bitcoin with dollars on an app and withdraw it, no federal markets regulator licenses that trade. Footnote 48 of the interpretation says any non-security crypto asset, other than a payment stablecoin from a permitted issuer, "could meet the definition of 'commodity'" under the CEA. That gives the CFTC its fraud and manipulation reach. It does not give the CFTC a licensing role over spot exchanges.

What fills the gap today is state licensing, mostly money transmitter licences, and federal anti-money-laundering rules under the Bank Secrecy Act. Those regimes focus on safeguarding money and stopping illicit finance, not on market structure questions such as conflicts between an exchange and its own trading desk. Our explainer on the crypto Travel Rule and what exchanges must collect covers the anti-money-laundering layer, and the guide to looking a platform up in regulator databases shows where state licences can be checked.

So "the CFTC regulates bitcoin" is true for bitcoin futures and fraud cases, and misleading for the spot app on your phone.

Margined retail trades: the 28-day rule now has no CFTC reading

This is where the map changed in December 2025. CEA Section 2(c)(2)(D), added by the Dodd-Frank Act, treats a commodity transaction offered to a retail customer on a margined or financed basis as if it were a futures contract, so it must be offered on a CFTC-registered exchange. The statute exempts a sale that "results in actual delivery within 28 days," a sale of a security, and a transaction listed on a national securities exchange.

In June 2020, the CFTC published guidance (85 FR 37734) on "actual delivery" for virtual currency: the customer had to be able to take possession and control of the entire quantity, and the offeror could keep no interest or control at the end of 28 days. On December 16, 2025, the CFTC published a notice (90 FR 58149) withdrawing that guidance as of December 10, 2025, calling it "likely outdated" and saying it would reevaluate the question. The 28 days are still in the statute. The agency's published reading of them is gone.

The next step came on October 13, 2026: an advance notice of proposed rulemaking (91 FR 64811) aimed at writing crypto rules under Section 2(c)(2)(D). An advance notice comes before a proposed rule. Comments are due December 14, 2026.

Two other actions sit beside this. A September 2, 2025 joint statement by SEC and CFTC staff said current law does not prohibit CFTC-registered futures exchanges, registered foreign boards of trade or SEC-registered securities exchanges from listing these products. On December 4, 2025, the CFTC announced that listed spot crypto products would begin trading on CFTC-registered futures exchanges. For how margin and liquidation work on such products, see our guide to cross versus isolated margin.

Futures, swaps and perpetuals

Bitcoin and ether futures trade on CFTC-designated contract markets, and CEA 4(a) makes off-exchange futures unlawful. The interpretation notes that each named digital commodity example underlies a futures contract on a CFTC-regulated exchange.

Perpetual futures are the open question. In a September 5, 2025 joint statement, the SEC chairman and the CFTC acting chairman wrote that "jurisdictional and definitional constraints" have limited perpetuals in the U.S. and that the agencies could consider steps to onshore them. That is intent, not a rule. A swap on a token that is a security is a security-based swap, which sits with the SEC. Funding mechanics are in our explainer on perpetual funding rates, and the crypto basis trade guide shows a futures leg paired with spot coins or spot bitcoin ETF shares. If you would rather hold bitcoin through an exchange-traded product, the spot bitcoin ETF comparison shows how those funds differ.

Stablecoins: enacted, not yet effective

The GENIUS Act became law on July 18, 2025. Section 17 amends the securities laws and the CEA so that "security" and "commodity" exclude a payment stablecoin issued by a permitted payment stablecoin issuer. That moves compliant dollar stablecoins out of both the SEC and CFTC zones and toward banking regulators and qualifying state regimes.

Timing is the catch. Section 20 makes the Act "and the amendments made by this Act" effective on whichever comes first: January 18, 2027, or 120 days after the primary federal regulators issue final implementing rules. Section 2(25) names those regulators: the OCC, FDIC, Federal Reserve Board and NCUA, depending on the issuer. In our Federal Register search on October 22, 2026, the GENIUS rules we found from those four agencies were proposals. Treasury issued a final rule on September 30, 2026 on reviewing state certifications, but Treasury is not a primary regulator under Section 2(25). On that evidence, the Section 17 exclusions are written into law but not yet operative.

Meanwhile, the interpretation states the SEC's view that the offer and sale of "Covered Stablecoins," as described in an April 2025 staff statement, does not involve securities, while other stablecoins "may meet the definition of 'security' depending on the facts and circumstances." Issuer rules, reserves and the interest ban are covered in our GENIUS Act guide for stablecoin holders.

Custody, brokers and platforms

There is no single crypto custody regulator; the custodian's licence decides. An SEC-registered adviser follows the Advisers Act custody rule. A futures commission merchant must register with the CFTC and, under CEA 4d, treat customer margin money and property as belonging to the customer. Banks and trust companies answer to their charter regulator, and many exchanges hold coins under state licences. The SEC's October 6, 2026 custody proposal is not in force.

A firm effecting securities transactions for others must register as a broker-dealer, whether the security is a share or a token. A platform offering only unmargined spot trading in non-security tokens has no federal markets registration to obtain, which is why its registration claims need checking against the right database. The newest federal action here is narrow: the SEC's September 17, 2026 order exempts permissioned "Tokenized Securities Venues" trading tokenized NMS stock through automated market maker pools from the "exchange" definition, for five years. It does not cover crypto tokens generally or public DeFi pools.

DeFi interfaces and fraud

No statute mentions DeFi. Existing rules attach to what an operator actually does: effecting securities transactions for others, offering margined commodity trades to retail users, or moving value for others. On April 13, 2026, the SEC's Division of Trading and Markets issued a staff statement on broker-dealer registration for certain user interfaces used to prepare crypto asset securities transactions, which our page on what the SEC's 2026 interpretation and staff statements changed reads in detail. The two chairs said in September 2025 they are "prepared to consider" innovation exemptions for peer-to-peer trading; none had been adopted by the check date.

Fraud is the one row where federal reach over spot is clear. CEA 6(c)(1) bars "any manipulative or deceptive device or contrivance" in connection with swaps, futures or any "contract of sale of any commodity in interstate commerce," and Rule 180.1 applies it to intentional or reckless conduct.

The March 2026 Interpretation in Brief

On March 17, 2026, the SEC adopted an interpretation of how the securities laws apply to crypto assets, and the CFTC joined with guidance that it will administer the CEA consistently. Published at 91 FR 13714, it took effect March 23, 2026. It sorts assets into digital commodities, collectibles, tools, stablecoins and digital securities, and it addresses mining, staking, wrapping and airdrops.

For jurisdiction, three lines matter. Nothing in it "should be construed as altering the respective statutory authorities of the SEC or CFTC." It does not supersede Howey. And tax law and the Bank Secrecy Act are outside its scope. It moves assets between zones 1 and 3 by stating the SEC's view, but it does not create a federal spot regulator. Staking, wrapping and airdrops are covered in our document-by-document reading of the interpretation.

H.R. 3633 (the CLARITY Act): Exact Status

H.R. 3633, the Digital Asset Market Clarity Act of 2025, would provide "a system of regulation of the offer and sale of digital commodities" by the SEC and CFTC. It is not law. Its history, from the govinfo bill status record last updated September 17, 2026:

The Senate-reported text carries the short title "Lummis-Gillibrand Responsible Financial Innovation Act of 2026" for portions of the bill. We have not compared the Senate substitute with the House text, so this page does not describe either version's provisions. To become law, both chambers must pass identical text and the President must sign it. That had not happened by October 22, 2026.

Worked Example: One Person, Five Actions

A hypothetical U.S. resident, Dana, does five things in one month. Inputs are invented; no product or platform is implied.

One person, five answers. The coin does not decide it; the activity, the borrowing and the intermediary do.

A Five-Question Check

Ask in order and stop at the first "yes."

Tax treatment is separate in every case.

Common Mistakes

"The SEC called bitcoin a commodity, so the CFTC regulates bitcoin exchanges." The CFTC regulates bitcoin derivatives and polices spot fraud. It does not license spot exchanges under current law.

"The CFTC's 28-day guidance tells us when delivery happens." It was withdrawn as of December 10, 2025. Only the statutory text remains.

"The CLARITY Act passed." It passed the House. A Senate cloture vote on proceeding to it failed 49 to 50 on September 15, 2026.

"GENIUS already made stablecoins non-securities." Only once the Act takes effect, and only for payment stablecoins from permitted issuers.

"A staff statement makes an activity legal." The SEC says staff statements "do not alter or amend applicable law."

"A listed digital commodity can't be part of a securities offering." The interpretation itself says it can be sold subject to an investment contract.

Where to Go Next

Before depositing money with a crypto platform, use our walk-through on checking whether a crypto platform is registered and with whom, because the rows above only help if you can confirm which licence a platform actually holds, and that page shows where to look it up in federal and state registries.

Frequently Asked Questions

Who regulates crypto in the United States?

Several agencies share it, by activity. The SEC regulates crypto that is a security, including token sales that are investment contracts. The CFTC regulates crypto futures, swaps and margined retail trades and can bring fraud cases in spot markets. Plain spot trading of non-security tokens is licensed mainly by states and covered by federal anti-money-laundering rules.

Is bitcoin regulated by the SEC or the CFTC?

The SEC's March 2026 interpretation names bitcoin as a digital commodity that is not a security, so the SEC does not regulate the coin itself. The CFTC regulates bitcoin futures and other derivatives and can act against fraud or manipulation in the spot market. A spot bitcoin app, by contrast, is licensed mainly at the state level.

Does the CFTC regulate crypto exchanges?

Only some. The CFTC registers futures exchanges and futures brokers, including those listing crypto futures, and in December 2025 it announced that certain listed spot crypto products would begin trading on them. An exchange offering only unmargined spot trading in non-security tokens has no CFTC registration to obtain under current law, although the CFTC can still pursue fraud there.

What is the 28-day actual delivery rule?

CEA Section 2(c)(2)(D) treats a margined or financed commodity trade offered to retail customers as a futures-style transaction unless it results in actual delivery within 28 days. The CFTC's 2020 guidance on what that means for virtual currency was withdrawn as of December 10, 2025. The statutory text still applies, and the CFTC opened an advance notice of rulemaking on it in October 2026.

Has the CLARITY Act become law?

No. H.R. 3633 passed the House on July 17, 2025, by 294 to 134, and the Senate Banking Committee reported a substitute on June 1, 2026. On September 15, 2026, a Senate cloture vote on the motion to proceed failed 49 to 50, according to the bill status record updated September 17, 2026.

Are stablecoins securities under current law?

The GENIUS Act excludes payment stablecoins from permitted issuers from "security," but that change takes effect with the rest of the Act, no later than January 18, 2027. Until then, the SEC's March 2026 interpretation says the offer and sale of so-called Covered Stablecoins is not a securities transaction. Other stablecoins can still be securities depending on the facts.

Can a token be both a commodity and a security?

The token is classified one way, but the transaction around it can differ. The SEC's interpretation says a non-security crypto asset can be sold subject to an investment contract, which makes that sale a securities transaction even if later market trades of the same token are not. That is why a presale and a later market purchase can fall under different rules.

Sources

CryptosEyes publishes general educational research, not investment, legal, or tax advice. This page summarises federal statutes, agency releases and a bill status record as they stood on October 22, 2026; rules and legislation can change quickly, and state law can add requirements not covered here. Check the current text and speak with qualified counsel before relying on any classification.