A new statement issued by the president of the Securities and Exchange Commission (SEC) Jay Clayton has some inside the cryptocurrency community wondering if the agency could changing his ether – the native currency of Ethereum – which a senior official previously said should not be regulated as a security.
SEC Chair: Non-Binding Staff Guidance
Clayton, a nominee of Trump who led the SEC since 2017, wrote in a notice posted on the website agency last week that while SEC employees are authorized to provide guidance to industry stakeholders on how the regulations apply to specific circumstances, this guide is not binding and creates "no applicable legal rights".
"The Commission's long standing position is that all staff declarations are non-binding and does not create any executive rights or obligations of the Commission or other parties."
Clayton also stated that he had communicated with the directors of several SEC divisions to communicate that they had to emphasize this distinction with their staff, and added that officials will examine whether previous staff declarations should be changed or canceled.
"More generally, our divisions and offices, including but not limited to the division of Corporation Finance, the investment management division and the trading and market division, have been and will continue to verify if staff declarations and personnel documents are to be amended, canceled or supplemented in the light of the market or other developments. "
The most immediate triggering factor for Clayton's statement seems to have been the decision of the SEC Division of the management of investments to rescind the staff guidelines originally issued in 2004 through the formal withdrawal of the letters issued to two proxy consultative companies. The Clayton statement was issued shortly before the agency announced that it had withdrawn the driving letters and on the same day addressed the issue during the observations prepared before the Investor Advisory Committee.
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However, observers in the cryptocurrency industry have quickly begun to wonder whether the declaration President Clayton has more implications extensive, including for the ether, the second largest cryptocurrency, which a senior official of the Agency said at the beginning of this year is not currently a guarantee under US law.
As reported by CCN, the Director of the SEC Corporation of William Hinman said in June at the top of Yahoo Finance All Markets: Crypto that, as at present operates, ether is "highly decentralized". As a result, he said, "In its current state, we do not see the value that regulates it" as security.
Hinman's observations are his vision of the law when it was affirmed. They do not bind the SEC or any other Div & # 39; n (like DOE). It would be a mistake not to deal with your analysis when it comes to DCF. It is also wrong to infer that DOE or SEC have adopted its analyzes or conclusions. #SEC #crypto https://t.co/i0hVUhyhuA
– Patrick Daugherty (@daughertylawyer) September 16, 2018
Previously, Clayton had said on several occasions that bitcoin does not bear the hallmarks of a security, but an agency official had not made similar statements about ether or any other cryptocurrency.
As a result, Hinman's announcement was considered a monumental event, both for Ethereum and for the broader cryptocurrency ecosystem, especially since it suggested that a resource initially distributed through a presale could evolve beyond a classification of securities.
However, Clayton's new statement underscores the often overlooked reality that although Hinman's guidance may reflect his opinion as director of the SEC corporate finance division, it does not necessarily represent the official position of the SEC – or, above all, of the its control division – and could be revoked in the future.
Featured image of the Stanford Law School / YouTube
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