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Ahmed Barakat
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The SEC proposed Regulation Crypto Assets includes a conditional safe harbor that could allow a crypto asset to be delinked from an investment contract with which it was once associated. The proposal pairs that safe harbor with new exemptions designed for certain investment contracts involving crypto assets.
Earlier today, the SEC proposed Regulation Crypto Assets, a proposed framework for certain investment contracts involving crypto assets. It includes two exemptions from registration under the Securities Act of 1933 and a conditional safe harbor related to the term investment contract.
The startup exemption would permit offerings of up to $5 million during a four-year period. The fundraising exemption would permit offerings of up to $75 million during each 12-month period. Under both exemptions, issuers would provide principles-based narrative disclosures.
The proposal states that issuers would remain subject to the federal securities laws’ antifraud and antimanipulation provisions. It also would preempt state securities-law registration and qualification requirements for offers and sales of securities issued under a Regulation Crypto Assets exemption, as well as certain secondary-market transactions.
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The Crypto Conditional Safe Harbor from the SEC
Alongside the exemptions, the proposed rules include a conditional safe harbor from the term investment contract in the definitions of security under the Securities Act of 1933 and the Securities Exchange Act of 1934. If the safe harbor’s conditions are satisfied, a crypto asset would be deemed not to be subject to an investment contract for purposes of those definitions.
Commissioner Hester M. Peirce described the safe harbor as a way for an issuer of an investment contract to delink a crypto asset from the investment contract with which it was once associated. The condition described by the SEC is that the issuer has completed or permanently ceased all essential managerial efforts it represented or promised it would take under an investment contract.
The proposal follows the SEC and CFTC’s March 2026 interpretation addressing how federal securities laws apply to certain crypto assets and transactions involving crypto assets. The SEC has presented the proposed rules and earlier interpretation as part of a tailored securities offering regime for crypto assets.
The safe harbor is conditional, and the proposal is not presented as a framework for every crypto-asset model. Peirce said the exemptions and safe harbor will not fit every model and invited public feedback on the proposal.
Peirce also requested input on facilitating a role akin to equity for crypto assets, allowing token holders to share in the growth and value of the enterprise that builds a crypto network. That issue is an area for feedback, rather than a feature established by the proposal.
The proposal’s two exemptions are limited by their respective offering caps and disclosure conditions. The safe harbor, meanwhile, is tied to completion or permanent cessation of the issuer’s essential managerial efforts under the investment contract.
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Congressional Context and Public Comment
The SEC said Regulation Crypto Assets comes as Congress works to establish a lasting regulatory framework. SEC Chairman Paul S. Atkins said the proposal seeks to provide crypto-asset entrepreneurs and market participants with pathways to raise capital under federal securities laws while those broader efforts continue.
The proposal is now subject to public comment. The SEC says the comment period will remain open for 60 days after publication of the proposing release in the Federal Register.
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