SEC Pushes Ahead on Crypto Rules as CLARITY Act Stalls

The US Securities and Exchange Commission has closed its 60-day public comment period on a sweeping set of proposed digital asset rules, pressing ahead with its own regulatory framework after Congress failed to pass the Digital Asset Market Clarity Act. For accounting firms, auditors, and CFOs with digital asset exposure, the implications are significant: the shape of US crypto regulation may now be determined by agency rulemaking rather than statute, at least for the near term.

What the SEC's "Regulation Crypto Assets" Actually Proposes

The SEC put forward its "Regulation Crypto Assets" package in August, describing its aim as establishing a "clear and fit-for-purpose framework for certain investment contracts involving crypto assets." The proposal covers several distinct areas that will matter to compliance and finance teams.

Safe harbour for token issuers

One of the most commercially consequential elements is a proposed safe harbour that would prevent token issuers from being treated as having issued "investment contracts" under existing securities law. If finalised in its current form, this would narrow the scope of SEC registration requirements for a significant category of digital assets — a meaningful shift from the agency's previous enforcement-first posture.

Offering exemptions by size

The proposal also includes exemptions for companies conducting token offerings up to a defined value threshold. The mechanism mirrors the tiered exemptions already familiar from Regulation A and Regulation Crowdfunding in the equity space, though the crypto-specific thresholds and conditions remain subject to finalisation. Finance teams structuring or auditing token issuances will need to watch whether those thresholds accommodate the deal sizes they routinely encounter.

Revised disclosure requirements

The rules also address disclosure obligations for crypto asset issuers. The MiCA Crypto Alliance, an industry group focused on implementing the EU's Markets in Crypto Assets framework, submitted comments largely supporting the SEC's proposed disclosure changes but recommended specific amendments. The Alliance called on the SEC to more precisely define "concepts and data structures specific to crypto assets" and to sharpen the disclosure requirements accordingly. That recommendation points to a real gap: accounting and reporting teams will need standardised data structures to produce compliant disclosures, making the quality of a firm's crypto bookkeeping software a live operational question.

The CLARITY Act Failure and What It Means for Rulemaking Authority

The SEC's decision to advance its own framework follows Congress's failure to pass the Digital Asset Market Clarity Act, which had sought to establish a unified statutory framework across the SEC, the Commodity Futures Trading Commission, and other agencies. Without that legislation, the SEC is relying on its existing statutory authority to promulgate these rules.

The durability question

That reliance on existing authority is not without risk. Several legal experts, according to public comment submissions, have suggested that the proposed rules rest on narrower legal footing than an act of Congress would provide. Agency rules issued without an explicit legislative mandate can be more vulnerable to legal challenge and to reversal by a future administration. For firms building compliance infrastructure around these rules, that durability question is not academic — it has direct implications for how much to invest now versus waiting for a more settled statutory framework.

For a detailed assessment of this risk, see our earlier analysis of how durable the SEC and CFTC's pro-crypto rules really are.

Understaffing at the CFTC and SEC

Compounding the uncertainty, both the SEC and the CFTC remain understaffed at the leadership level. Vacancies in key commissioner and senior staff roles can slow rulemaking timelines, create gaps in enforcement priorities, and make it harder to predict how proposed rules will be interpreted and applied once finalised. Firms should factor this institutional context into their planning, particularly where compliance timelines depend on regulatory guidance that may take longer than expected to arrive.

Who Submitted Comments and What They Said

The 60-day comment window attracted roughly 140 submissions from interest groups and individuals. The range of voices offers a useful snapshot of where industry and professional communities currently stand.

Industry and investor support

SkyBridge Capital founder Anthony Scaramucci submitted comments in favour of the proposed rules, describing them as a response to "organic adoption" of digital assets and characterising the framework as representing a return to the SEC's appropriate regulatory role. He notably did not frame his support as contingent on Congressional action. That framing reflects a broader segment of industry opinion: that agency-led rules, even if less durable than statute, provide more certainty than continued enforcement-by-litigation.

Technical and definitional concerns

The MiCA Crypto Alliance's submission illustrates a different but equally important perspective. Rather than opposing the rules, the Alliance focused on technical precision — specifically the need for better-defined data structures and disclosure concepts tailored to crypto assets. This is exactly the kind of feedback that shapes how accounting and reporting obligations get operationalised. Firms using digital asset accounting software should monitor whether the SEC incorporates these definitional refinements before the rules are finalised, since vague definitions tend to generate compliance cost and audit risk.

Anonymous submissions and legal dissent

Six respondents submitted comments anonymously. Among other submissions, some legal experts cautioned that the rules may exceed the SEC's authority in the absence of explicit Congressional delegation. If those arguments gain traction in subsequent litigation — a real possibility given the post-Chevron environment in US administrative law — the rules could face court challenges that delay or limit their practical effect.

Accounting and Audit Implications for US Firms

For accounting firms and CFOs, the key practical question is: what do you need to do differently now, and what can wait for a final rule?

Classification and balance sheet treatment

The safe harbour proposal directly affects how certain token holdings may need to be classified. If a token previously treated as a security under SEC guidance is reclassified under a finalised safe harbour, its accounting treatment, disclosure obligations, and fair value measurement methodology may all shift. Firms should begin reviewing their existing digital asset portfolios against the proposed classification criteria now, even before final rules are published, to identify positions where reclassification risk is highest.

Disclosure readiness and data infrastructure

The proposed disclosure requirements, once finalised, will demand structured, auditable data on crypto asset holdings, issuances, and transactions. The MiCA Crypto Alliance's comment about data structures is a signal to the profession: firms that cannot produce clean, structured transaction records from their crypto bookkeeping software will struggle to meet these requirements efficiently. Now is the time to assess whether current systems can generate the outputs a finalised SEC disclosure regime will require.

Audit risk on token issuances

For audit teams with clients conducting or planning token issuances, the proposed offering exemptions introduce a new layer of scope. Determining whether an issuance qualifies for an exemption will require documentation of the offering size, the nature of the instrument, and the characteristics of the issuer. Auditors should be building familiarity with the proposed exemption criteria and flagging relevant engagements for enhanced attention.

For a broader view of the regulatory landscape affecting US digital asset firms right now, see the full picture of how US crypto regulation is being rewritten in 2026.

What Firms Should Do Before Final Rules Arrive

Waiting for the final text before taking any action is a defensible position in some regulatory contexts. This is not one of them. The public comment period has closed, which means the SEC is now in a position to move toward a final rule — potentially within months, depending on leadership capacity and any intervening legal challenges.

Firms should treat the proposed rules as the working baseline for planning purposes and take three immediate steps. First, inventory all digital asset holdings and classify each against the proposed safe harbour criteria to identify reclassification risk. Second, audit the outputs of your digital asset accounting software to confirm they can support structured disclosures at the level of granularity the proposed rules contemplate. Third, establish a monitoring process to track SEC announcements, any final rule publication, and any legal challenges filed in response to the rulemaking — because the effective date and scope of these obligations could shift materially depending on how those challenges unfold.

Source: Cointelegraph

Frequently Asked Questions

What is the SEC's "Regulation Crypto Assets" proposal?

It is a package of rules proposed by the SEC in August 2026 aimed at creating a defined regulatory framework for certain investment contracts involving crypto assets. Key elements include a safe harbour for token issuers, tiered offering exemptions, and new disclosure requirements.

Why did the SEC proceed without waiting for Congress?

Congress failed to pass the Digital Asset Market Clarity Act, which would have established a unified statutory framework. With no legislation in place, the SEC is using its existing statutory authority to advance rules unilaterally.

How legally durable are SEC rules issued without a Congressional mandate?

Agency rules issued under existing authority — without explicit new legislation — can be challenged in court and reversed by future administrations more easily than statute-backed obligations. Legal experts who submitted comments flagged this risk explicitly. Firms should factor that uncertainty into their compliance investment decisions.

What does the safe harbour mean for accounting classification of token holdings?

If finalised, the safe harbour could remove certain tokens from the category of securities for SEC purposes, potentially affecting how those assets are classified on the balance sheet, how they are measured at fair value, and what disclosures are required. Firms should review their portfolios against the proposed criteria before the final rule is published.

What should accounting firms prioritise right now?

Three things: map existing digital asset holdings against the proposed safe harbour criteria; assess whether your crypto bookkeeping software can produce the structured, auditable outputs the proposed disclosure regime will require; and establish a monitoring process to track the final rule timeline and any legal challenges that could affect the effective date or scope of the obligations.