On February 15th, Tom Emmer received a response from SEC Chair Gary Gensler, hinting that proposals for Bitcoin spot ETFs have thus far come up short of meeting standards set in the Exchange Act. 

Gensler notes that the regulatory body must be capable of preventing “fraudulent and manipulative acts and practices” according to the standards of the Exchange act. His stance is to be technology-neutral, and will continue to give careful consideration to the concerns that Emmer raised in November.

Despite Gensler's self-proclaimed technology-neutral stance, Emmer seems to strongly disagrees with Gensler's approach. “The SEC’s approach to cryptocurrency regulation has been unacceptable,” said Emmer in the November letter. “While the trading of Bitcoin futures ETFs is a great step forward for the millions of American investors who have been demanding regulatory clarity, it does not make sense that Bitcoin spot ETFs cannot also commence trading.”

In August 2021, Gensler hinted that he would be more open to accepting ETFs based on crypto futures rather than through direct exposure. Following his remarks, many companies filed crypto "strategy" ETF applications with the SEC. Since then BTC futures ETFs from Valkyrie, ProShares and VanEck have been approved.

Crypto spot ETF applications are continuously being put forth, with the SEC rejecting those from Fidelity, SkyBridge, and WisdomTree. A decision on NYDIG’s application for a spot Bitcoin ETF is expected in March.

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