In March 2026, the Securities and Exchange Commission proposed an interpretive release (Release No. 33-11412, File No. S7-2026-09) clarifying when crypto assets are subject to the federal securities laws. The release is at proposed-rule stage. The SEC described it as resolving more than a decade of uncertainty about the application of the Howey investment contract test to digital assets. A comment period followed publication; comment letters were received through April 2026.
Release 33-11412 establishes five token categories. Four are generally not securities: digital commodities (tokens necessary to use or participate in a crypto system, deriving value from that system's programmatic operation and market supply and demand); digital collectibles (tokens representing artwork, music, videos, trading cards, in-game items, or internet-native cultural references); digital tools (tokens performing a practical function including membership, ticketing, or credentialing within a crypto system); and payment stablecoins (tokens designed to maintain a stable value relative to a reference asset and used for payment or settlement, subject to the GENIUS Act). Only digital securities, meaning tokenised traditional securities, remain subject to full federal securities registration and disclosure obligations.
Crypto exchanges listing tokens outside the digital securities category would not need to register as national securities exchanges or broker-dealers under the federal securities laws for those tokens. Token issuers would not file registration statements under the Securities Act of 1933 or the Securities Exchange Act of 1934 for digital commodity, digital collectible, or digital tool offerings. The SEC stated it will use rulemaking, interpretive, and exemptive authority to set standards for market participants going forward, rather than relying on enforcement actions.
The proposed release addresses airdrops, protocol mining, protocol staking, and wrapping of non-security crypto assets, indicating these transactions do not create investment contracts under federal securities laws. The taxonomy remains at proposed stage and final definitions may differ from the proposal. The interaction between SEC jurisdiction over digital securities and CFTC jurisdiction over digital commodities as commodity contracts under the Commodity Exchange Act is not resolved in this release and requires further interagency coordination.
Licentium advises on US crypto asset regulatory analysis and has a partner network for entities operating under SEC and CFTC jurisdiction. Work we undertake includes token classification analysis under the Howey test and the proposed SEC taxonomy, securities registration exemption assessments, exchange and broker-dealer registration analysis, and digital asset compliance reviews for issuers and trading platforms.