SEC proposes its first major crypto rule: what "Regulation Crypto Assets" really changes

*For ten years, the sector's simplest question remained unanswered: is a token a security?* In the absence of written rules, the answer was provided in court, case by case. On 18 August 2026, the Securities and Exchange Commission finally put a proposal on the table.

It is called Regulation Crypto Assets, was published in the Federal Register on 21 August, and is open for public comment for 60 days, until 20 October 2026. It is not law yet: it is a proposal. But it is the first time the US regulator has set out in black and white how to legally issue a token on its turf.

In the United States, selling a security to the public generally requires SEC registration: a burdensome, expensive process designed for listed companies. The proposal creates two alternative routes, outlined in the SEC fact sheet.

The 'startup' route allows up to $5 million to be raised over four years. Issuers need only file a notice with the SEC — Form NOR — and publish comprehensive, freely drafted disclosures on their own website. There is no prior approval process, no requirement to deal exclusively with wealthy investors, and issuers are free to communicate publicly about the offering. In return, it can be used only once per issuer for a given asset.

The 'fundraising' route sets much higher thresholds, in two tiers: $20 million per year with unaudited accounts, or $75 million per year with audited accounts and regular reporting modelled on that required of small public companies. This time, the filing — Form 1-CRYPTO — must be qualified by the SEC before any sales can take place. Retail investors cannot commit more than 10% of the higher of their annual income or net worth, and the issuer must be a genuine US entity.

Note the scale: 5, 20, 75 million. We will return to this when comparing it with Europe.

The most consequential element is not an exemption. It is what the text calls a safe harbour.

The idea is as follows. When a team sells a token while promising to build a network, what it is selling is not just a piece of code: it is a promise of future work. It is this promise that makes the token a security under US law. The text proposes that the day the team fulfils this promise — or definitively abandons it — and formally declares so, the investment contract is deemed to have ceased to exist. The token itself continues to circulate, but it is no longer a security.

One point deserves emphasis, as it has been widely misreported: decentralisation is not the criterion. The text contains no distribution threshold, no governance metrics, and no requirement for a 'sufficiently decentralised' network. The test focuses solely on the completion of the promised efforts, relying on the issuer's own declaration, not on a decision by SEC staff.

This is both the strength and the vulnerability of the mechanism. The strength: no longer any need to wait for regulatory blessing. The vulnerability: the SEC retains the right to challenge after the fact whether the conditions were met, as law firm Morrison Foerster notes. *The legal certainty offered is therefore not absolute: it is conditional and subject to review.*

This is perhaps the most important part to understand, as it has been overlooked in most of the enthusiastic reactions.

• It does not change the underlying test. The criterion stemming from the Howey case law, used since 1946 to determine what constitutes an investment contract, remains intact.
• It says nothing about platforms. Nothing about trading venues, brokers, or market makers. Yet that is where everyday transactions take place.
• It says nothing about stablecoins. They fall under a separate law, the GENIUS Act, enacted in July 2025.
• It excludes tokenised securities: a share or bond represented on a blockchain remains subject to ordinary securities law.
• It covers only one asset at a time: baskets of multiple tokens remain outside the framework.

In other words, the text addresses the issue of issuance, not that of the market. It is a first storey, not the whole building.

The institutional detail is telling. The SEC normally has five commissioners. It currently has only three — Paul Atkins, who chairs it, Hester Peirce and Mark Uyeda — all appointed by Republican presidents, with two seats remaining vacant. The proposal was adopted by three votes to zero, without a public meeting, via individual signatures collected one by one.

However, a public meeting had been called for Friday 14 August. It was cancelled the day before due to an "unforeseen scheduling issue", with no further explanation. The text was released four days later, in a low-key manner.

On the merits, the three commissioners embrace a clear break with the previous period. Chairman Atkins refers to an era when the Commission "actively hindered" capital formation in this sector through enforcement actions rather than written rules (statement of 18 August 2026). Commissioner Uyeda speaks of a "regrettable" historical treatment based on untested legal theories (statement of 18 August 2026).

The contrast can be quantified: under Gary Gensler's chairmanship, the number of enforcement actions targeting crypto had risen from 20 in 2021 to 46 in 2023, according to a tally by Cornerstone Research.

Unsurprisingly, the industry welcomes the move. The Blockchain Association sees it as "an important step towards the clear, tailored rules that US markets have needed for years".

Opposition, on the other hand, is fierce. The investor advocacy group Better Markets published a press release on the very same day with an unambiguous title: "The SEC's crypto rules confirm it has become the Crypto Promotion Commission". Its central argument is worth hearing: the SEC justifies its approach by comparing it to the treatment historically accorded to other new financial products, but those had been subject to registered offerings, not exempt ones.

Finally, a procedural point. On the markets, the reaction was muted: bitcoin was trading around 64,000 dollars on the day of the announcement, up by less than one per cent. The real surge came the following day, for other reasons. *When a regulatory document running to several hundred pages fails to move a market, it is often because professionals had already priced it in — or because they are waiting for what comes next.*

The consultation runs until 20 October. After that, the SEC will review the submissions and may adopt a final version, with no announced timeline. It specified that if Congress were to pass the Clarity Act — the bill currently under discussion in the Senate — in the meantime, it would review its own rule to align it with the legislation.

That is the core ambiguity of the present moment. A regulatory rule can be undone by the next administration; a law cannot. Atkins himself says so plainly: legislation remains essential. In the meantime, the sector has a user guide. Provisional, incomplete, but written down.

Crypto Hebdo provides information and does not offer investment advice. Crypto-assets are volatile and you may lose all or part of your capital.