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A commissioner with the U.S. Commodity Futures Trading Commission (CFTC) has detailed how crypto assets are regulated in the U.S. and whether they fall under the jurisdiction of the CFTC or the Securities and Exchange Commission (SEC). âThere has often been a grossly inaccurate oversimplificationâ of how crypto assets are regulated in the United States, said the commissioner.
How Crypto Assets Are Regulated in the US
CFTC Commissioner Dawn D. Stump clarified last week how crypto assets are regulated in the U.S. by the CFTC or the SEC.
âThe recent growth in popularity of crypto products and other digital assets has drawn much attention to the question of how this new financial asset class is regulated in the United States,â she began, adding:
There has often been a grossly inaccurate oversimplification offered which suggests these are either securities regulated by the Securities and Exchange Commission, or commodities regulated by the Commodity Futures Trading Commission.
âThe CFTC does not regulate commodities (regardless of whether or not they are securities); rather, it regulates derivatives â and this is true for digital assets just as for any other asset class,â Commissioner Stump emphasized.
âThe CFTC does not have regulatory authority over cash commodities,â she explained, clarifying the derivatives watchdog âregulates futures contracts on commodities, and other derivatives products such as swaps.â This includes âfutures contracts on bitcoin and ether listed for trading on various CFTC-regulated exchanges.â
The commissioner noted that digital assets that are securities fall under the jurisdiction of the SEC, but âfutures contracts and other derivatives on securities may be regulated by the CFTC or the SEC, or jointly by both.â
To determine who has the jurisdiction in a specific case, Commissioner Stump said that âAn analysis of Congressâ statutory framework,â the CFTC rules, the SEC rules, and âthe specific characteristics of the productâ is required, elaborating:
Therefore, if a digital asset is a security, further analysis is required to determine where regulatory authority lies for a derivatives product on that digital asset.
As for whether a particular crypto asset is a security, SEC Chairman Gary Gensler said that the rules are clear. âCertain rules related to crypto assets are well-settled. The test to determine whether a crypto asset is a security is clear,â he said early this month.
However, some people, such as Ripple CEO Brad Garlinghouse, disagree. He is being sued by the SEC over the sale of XRP.
Commissioner Stump further noted that the CFTC has âenforcement authorityâ that âincludes a broader application for anti-manipulation and anti-fraud authority.â This authority extends to even cash commodities which the CFTC does not regulate in order âto protect the integrity of the derivatives marketsâ overall. An example of this enforcement authority is the action the CFTC took against Bitmex.
The commissioner concluded:
For a number of years, the CFTC has aggressively used its broader enforcement authority to deter manipulation and fraud involving cash digital assets, even though the CFTC does not regulate them.
What do you think about how crypto assets are regulated in the U.S.? Let us know in the comments section below.
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