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Despite a lack of digital asset legislation, federal regulators, including the Commodity Futures Trading Commission (CFTC), are adding resources. Start trading futures & get 50% off brokerage fees forever during this limited time offer. The Securities and Exchange Commission is treated as a villain in crypto, but the view of the Commodity Futures Trading Commission as a. BLACKJACK BETTING STRATEGY CARD COUNTING
Stabenow noted that keeping the bill in a single committee streamlines its ability to reach the Senate floor for a wider vote. However, multiple bills have now suggested the CFTC take a central position in crypto oversight, and that momentum is expected to continue as the efforts get closer to the finish line. The legislation would set up industry fees to pay for that extra cost, which would largely come from training and hiring people to handle the new crypto workload.
Several figures from the crypto industry also testified before the committee on Thursday, including representatives from U. She asked the lawmakers to set a clearer border between commodities and securities in the bill, arguing it could "be strengthened by further defining digital asset commodities to ensure assets that do not meet the definition of securities are regulated by the CFTC and not by enforcement through the SEC.
Although the CFTC has found that a virtual currency is a commodity, the CFTC's jurisdiction over the digital asset markets has been limited to policing fraudulent and manipulative activities involving digital assets traded in interstate commerce and derivative contracts — i. Section 9 1 of the CEA, and the CFTC regulation promulgated thereunder, grants the CFTC broad regulatory authority over fraud and manipulation in the spot markets underlying the already regulated derivatives markets.
Specifically, Section 9 1 of the CEA makes it unlawful for any person to use or employ, or attempt to use or employ, in connection with any "contract of sale of any commodity in interstate commerce, or for future delivery on or subject to the rules of any registered entity, any manipulative or deceptive device or contrivance, in contravention of such rules and regulations as the [CFTC] shall promulgate.
Further, CFTC regulation However, the CFTC has long recognized that its jurisdiction over spot transactions is limited to instances where evidence of fraud or manipulation is present. Therefore, beyond instances of fraud or manipulation, the CFTC does not currently oversee spot or cash market transactions involving digital assets that do not rely on margin, leverage, or financing which are referred to as "retail commodity transactions" nor does it oversee the market participants engaged in such transactions.
In a confirmation hearing for Behnam last October, Chairman Behnam stated that the CFTC was ready to take primary responsibility for digital asset enforcement. In his testimony, Behnam advocated fiercely to permit the CFTC to regulate spot digital asset transactions: "The CFTC is well situated to play an increasingly central role in overseeing the cash digital asset commodity market.
Fundamentally, the CFTC is a market regulator that ensures market integrity and vibrancy aimed at supporting financial stability, while ensuring individual customer protections through principles-based oversight of exchanges, clearinghouses, data repositories, and market participants.
This flexible approach has allowed the CFTC, with authority from Congress, to evolve along with the derivatives markets from their historical roots in overseeing agricultural markets to now overseeing markets in everything from energy and precious metals to financial indices and swaps. And we now stand ready to do the same within the digital asset commodity market.
Under the RFIA, the CFTC would have exclusive spot market jurisdiction over all fungible digital assets that do not confer debt or equity interest, a profit share, or similar right in a business entity. The DCEA and the RFIA are the latest among a flurry of congressional proposals offering approaches to federal oversight of digital assets, with still more in the works. Despite the uncertainty with respect to digital asset legislation, the CFTC continues to propel its digital asset-related enforcement efforts.
During the past fiscal year, the CFTC filed 23 digital asset-related enforcement actions, nearly half the total number of digital asset-related enforcement actions brought by the CFTC since In response to the surging number of cases related to digital assets, Behnam has indicated that the CFTC will add resources and increase efforts to address digital asset-related fraud and manipulation cases.
While the scope of the CFTC's authority to regulate the digital asset markets remains unclear, one thing is certain: The CFTC will continue to crack down on digital asset-related fraud and intends to bring more staff onboard to assist in these efforts. Accordingly, the industry can expect to see the CFTC bring an increasing number of digital asset-related enforcement actions in the future, especially if Chairman Behnam's calls for increased responsibilities and funding are answered.
Daniel L. Stein is a regular contributing columnist on white-collar crime defense for Reuters Legal News and Westlaw Today. They do not reflect the views of Reuters News, which, under the Trust Principles, is committed to integrity, independence, and freedom from bias. Stein Daniel L.
Stein is a partner in Mayer Brown's New York office. A former federal prosecutor, he has extensive experience in regulatory enforcement, government and internal investigations, white-collar criminal defense and complex civil litigation.
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