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ETH SEC updates policy on application of securities laws to crypto-assets, echoing CFTC's latest guidance
The U.S. Securities and Exchange Commission (SEC) updated its policy on how securities laws apply to "certain types of crypto-assets and certain transactions involving crypto-assets." The move follows a similar announcement last week by the country's federal commodity futures regulator. [TAG
In Friday's update to the SEC's Frequently Asked Questions (FAQs)-a revision of the March version-the agency noted that the latest interpretation of the crypto asset rules is non-binding,"has no legal force or effect,""does not change or modify applicable law," and "does not create any new or additional obligations for anyone." These FAQs apply primarily to how the SEC determines digital asset products that fall under the investment contract category based on the Howey Test.
According to the SEC, as long as the cryptocurrency system is functional and there is no central controller, token issuers can conduct repurchase programs for customers. Such behavior does not necessarily constitute a "commitment or guarantee to undertake basic management efforts" and therefore does not necessarily be recognized as an investment contract under federal securities laws.
Regulators have also issued similar guidance on encrypted networks, stating that if a system is "functional" and its services are designed to safeguard, maintain, improve or enhance the system and its functions, or promote network effects, the criteria of the Howe Test may not be met. In addition, agencies stated that staking receipt tokens are also not always classified as securities.
The two agencies said to strengthen regulation after Congress failed to pass the crypto bill.
The SEC update comes after similar action by the U.S. Commodity Futures Trading Commission (CFTC), which also provided guidance to token issuers. The two agencies issued staff Q & A guidelines shortly after the Senate failed to pass the much-awaited crypto market structure bill. Previously, many people expected the bill to clarify the division of roles between the two financial regulators in the field of digital assets.
SEC Chairman Paul Atkins and CFTC Chairman Michael Selig issued statements signaling that the two agencies will continue to advance the regulation of cryptoassets if Congress fails to pass relevant laws.
Commissioner Hester Peirce is leaving office
After eight years in the SEC, Commissioner Hester Peirce announced on Friday that she plans to resign on October 2. The official, known in the industry as the "Crypto Mom" for advocating policies that favor digital assets, is expected to join the University of Reagan Law School in Virginia as an associate professor in November.
With Pierce's departure, the financial institution's leadership will consist mainly of Commissioners Atkins and Mark Uyeda. Both are Republican members, and the committee is usually composed of five members and is a bipartisan body. As of Monday, U.S. President Donald Trump had not announced any potential candidates to replace Pierce or fill the two remaining Democratic SEC seats.
