Summary
- Regulation Crypto Assets is a proposed rule. No issuer, purchaser, intermediary, or trading venue may rely on it before final adoption and effectiveness.
- The proposal covers a transaction that constitutes an investment contract involving one crypto asset. Eligibility requires that the crypto asset itself is not a security and that no other asset is subject to the contract.
- The startup exemption would cover up to $5 million during a period capped at four years. It would permit public solicitation, retail participation, noncash distributions, and immediate resale, without required financial statements or purchaser limits.
- The fundraising exemption would create $20 million and $75 million tiers, each measured over a rolling 12-month period. It would require an SEC-qualified Form 1-CRYPTO, financial statements, periodic reports, offering-circular delivery, and a purchaser limit for nonaccredited investors.
- Rule 103 would require project, asset, managerial-effort, allocation, governance, conflict, use-of-proceeds, and risk disclosures. Those statements would also shape later Howey analysis and any Rule 400 filing.
- Rule 400 would apply after the issuer completes or permanently ceases every promised essential managerial effort, makes no new promises, and files Form TR. The Commission could contest compliance, and private parties could still assert security status.
- Rule 500 would preempt state registration and qualification for defined primary and secondary transactions. Secondary sellers must be persons other than issuers, underwriters, or dealers. States would retain fraud enforcement, broker licensing, notice filings, and fees allowed by Securities Act section 18.
- Securities Act sections 3(b)(1), 18, and 28 provide textual support for transaction exemptions and preemption. Rule 400 and the section 28 substitute for Regulation A present the sharper statutory questions.
- Courts would exercise independent judgment under Loper Bright. A final rule needs reasoned answers on startup disclosures, immediate resale, noncash valuation, secondary-market status, private remedies, and pending federal legislation.
Status and legal effect
Regulation Crypto Assets remains a notice of proposed rulemaking. The SEC issued the proposal on August 18, 2026, under File No. S7-2026-27. The SEC rule page states that comments are due 60 days after Federal Register publication. The issued release still contains placeholders for the publication date and comment deadline.
The proposal therefore creates no present exemption, safe harbor, filing right, or state-law preemption. Existing statutes, rules, judicial decisions, and available exemptions continue to govern. Any final rule may differ after notice and comment. Its operative date will depend on the final release and Federal Register publication.
The March 2026 crypto interpretation has a different status. The Commission issued it on March 17, 2026, and it took effect on March 23, 2026, upon Federal Register publication, as an agency interpretation and related guidance. The Commodity Futures Trading Commission joined the release and stated that it will administer the Commodity Exchange Act consistently with that interpretation. It states the Commission's view of existing law and creates no new legal obligation. Application of the Federal Securities Laws to Certain Types of Crypto Assets and Certain Transactions Involving Crypto Assets, Securities Act Release No. 33-11412, Exchange Act Release No. 34-105020, 91 Fed. Reg. 13,714 (Mar. 23, 2026). Courts retain authority to apply the statutory definition of security and SEC v. W.J. Howey Co., 328 U.S. 293, 298-99 (1946).
A market participant must first determine whether Howey creates an investment contract. It must then identify a current registration exemption for the offer or sale. The proposed rules would alter either answer only after final adoption. Treating the proposal as current law would create section 5 risk.
Covered investment contracts
Proposed Rule 100 defines the regime's boundary. A covered investment contract must involve a contract, transaction, or scheme that constitutes an investment contract. One crypto asset must be subject to that contract. The crypto asset must not itself be a security, and no second asset may be subject to the contract. Proposed 17 C.F.R. § 228.100.
Howey remains the controlling judicial test. It asks whether a transaction involves an investment of money in a common enterprise, with expected profits derived from others' efforts. 328 U.S. at 298-99. The proposal uses "essential managerial efforts" to identify the issuer's represented or promised work. That term informs disclosure and Rule 400, but it does not displace Howey's full test.
The proposal separates the investment-contract transaction from the subject crypto asset. This structure rejects categorical treatment based only on the token's code or label. The same crypto asset may therefore appear in covered and uncovered transactions, depending on the promises, purchaser expectations, and surrounding scheme. That result follows from the transaction-specific definition.
Three boundary cases remain outside the proposed regime. A token that is itself stock, a note, or another enumerated security fails the covered-contract definition. A transaction that does not satisfy Howey needs no exemption for an investment contract. A transaction covering the token and another asset also falls outside proposed Rule 100.
The startup definition of covered transaction reaches public and private capital raises, airdrops, rewards, and incentives tied to network or application activity. Noncash form does not remove the transaction from the proposed rules. The issuer must value consideration through bona fide sales or an accepted fair-value standard when cash pricing is unavailable. Proposed 17 C.F.R. §§ 228.100, 228.200.
This breadth makes offer timing material. Startup issuers must file Form NOR before any covered transaction begins. Fundraising issuers generally must file Form 1-CRYPTO before offers, subject to proposed testing-the-waters provisions. Promotional communications can create an offer before the filing condition is met. Marketing, white papers, token allocation announcements, and reward campaigns therefore require coordinated legal review.
The proposal permits nonexclusive reliance. Failed compliance with Regulation Crypto Assets would not bar another exemption that independently applies. Proposed 17 C.F.R. § 228.101(a). That protection does not cure an offer or sale lacking a valid exemption.
Startup exemption
Proposed Rule 200 would exempt covered transactions during a period beginning after Form NOR filing. The period ends on the earlier of Form TR filing or four years after Form NOR. The issuer may be an entity, an individual, or a group. Every group member must sign the notice and transition report. Each member and the group must satisfy the rule's conditions. Proposed 17 C.F.R. § 228.200(b)-(c).
The exemption has a cumulative $5 million limit. The calculation adds the current aggregate offering price to gross proceeds from all prior and current covered transactions. The issuer and its affiliates receive one use for the same or a substantially similar crypto asset. Form NOR must precede the first covered transaction. Material Form NOR errors and changes require prompt amendments.
Rule 103 information must appear free of charge on the website identified in Form NOR. The issuer must preserve access throughout the exemption period. Material changes to that information require an update within 30 days after each calendar year ends. Form TR is due no later than four years after the initial Form NOR.
The startup exemption would permit general solicitation and sales to nonaccredited investors. It contains no individual purchase limit. It requires no issuer financial statements. Covered investment contracts would not be restricted securities, so the proposal imposes no rule-based holding period. These terms create a public retail distribution path with lighter entry obligations than Regulation Crowdfunding or Regulation A.
The Commission can defend this design through the small aggregate limit, four-year cap, one-time use, public disclosures, bad-actor rules, and antifraud law. Those conditions reduce repeated use and require project-specific information. They do not supply a financial baseline, individual exposure cap, Commission qualification review, or stable federal archive.
The update schedule presents a concrete disclosure gap. Form NOR changes require prompt amendment, but many Rule 103 changes need only an annual update. A project may change its code, token allocations, control rights, treasury use, or essential efforts months before the website update deadline. The final rule should require prompt disclosure of each material Rule 103 change.
Website publication also creates proof and access problems. A mutable page can change without a durable public history. A dead domain can impair access even when the issuer intended compliance. Issuers, purchasers, courts, and regulators need time-stamped versions of each disclosure. An EDGAR filing or immutable archive would provide a common record.
Immediate resale compounds those weaknesses. A purchaser could transfer a covered contract before the market receives financial information or a Commission-reviewed filing. Thin liquidity and fragmented information can separate trading price from disclosed project facts. The rule should either add a defined holding period or staged-resale condition, or explain why disclosure and antifraud remedies suffice.
Noncash distributions need a more exact valuation method. Rewards, services, participation, and network activity may lack recent bona fide sales. An "accepted standard" and reasonable fair value leave room for inconsistent aggregation. The final rule should name acceptable methodologies, valuation dates, documentation, and treatment of related-party transactions.
Issuer identity also needs precision. A protocol may involve a foundation, developer company, promoters, contractors, token allocators, and informal contributors. Rule 200 allows a group, while Rule 100 defines related persons broadly. The release does not fully explain when coordinated actors form one issuer or several issuers. That uncertainty affects signatures, aggregation, bad-actor review, one-time use, and liability.
"Substantially similar crypto asset" carries comparable risk. The phrase deters serial use through minor token changes. It lacks an operative test. Relevant facts could include codebase, network function, economic rights, supply, control, promised efforts, branding, and distribution plan. The final rule should identify which facts carry weight and how affiliates test prior reliance.
Form TR does not itself establish that the investment contract ended. It closes or transitions the startup exemption. The issuer must then stop covered transactions, use another valid path, register, or satisfy Rule 400. A project that keeps making essential managerial promises may remain within federal securities law after the four-year period.
Fundraising exemption
Proposed Rule 300 would create two public-offering tiers. Tier 1 permits up to $20 million in a 12-month period, including no more than $6 million from affiliate selling holders. Tier 2 permits up to $75 million in a 12-month period, including no more than $22.5 million from affiliate selling holders. Selling holders face a 30 percent cap during the issuer's first year of qualified offerings. Proposed 17 C.F.R. § 228.300(a). Proposed Rule 102 would adjust the offering limits in both exemptions for inflation at least once every five years. Proposed 17 C.F.R. § 228.102.
The issuer must be organized under United States law. A majority of executive officers or directors must be United States citizens or residents. More than half of its assets must be in the United States, and it must administer its business principally there. Development-stage companies without a specific plan, companies planning to merge with an unidentified company, investment companies, and business development companies are excluded. A five-year section 12(j) exclusion would not count orders entered before the final rule's effective date. Issuers must also be current in required reports during the applicable two-year lookback. Proposed 17 C.F.R. § 228.300(b).
The issuer must file Form 1-CRYPTO and obtain Commission qualification before any sale. The form includes an offering circular and material information needed to prevent misleading statements. Staff may review a nonpublic draft before public filing. Qualification cannot occur until at least 15 days after the draft and amendments become public. Proposed 17 C.F.R. § 228.301.
The proposal permits testing-the-waters communications under stated conditions. No purchaser may pay before qualification. The 48-hour delivery rule applies when the issuer is not already subject to Rule 305(a) reporting. A person who indicated interest before qualification generally must receive a preliminary offering circular at least 48 hours before sale. The issuer or seller must deliver the final offering circular within the prescribed period. Proposed 17 C.F.R. §§ 228.300(c), 228.304.
A nonaccredited purchaser may invest no more than 10 percent of the greater applicable measure. Natural persons use annual income or net worth. Entities use annual revenue or net assets. The issuer may rely on the purchaser's representation unless it knows the representation is false. Proposed 17 C.F.R. § 228.300(c)(2)(i)(C)-(D).
Every qualified fundraising issuer would file annual, semiannual, and current reports until suspension or termination. Form 1-KC supplies annual information. Form 1-SC covers the first six months. Form 1-UC reports specified events. Tier 2 offering and annual financial statements require audits. Tier 1 statements need not be audited unless the issuer obtained a qualifying audit for another purpose. Proposed Form 1-CRYPTO, Part F/S; proposed Form 1-KC, Part II, Item 12; proposed 17 C.F.R. § 228.305.
The fundraising path offers stronger investor information than Rule 200. Commission qualification, financial statements, ongoing reports, delivery rules, purchaser limits, and selling-holder caps create a reviewable record. The design also permits public solicitation and unrestricted securities, which support broad distribution and trading.
Its central legal feature is the use of Securities Act section 28. Regulation A arises under section 3(b)(2). Section 3(b)(3) limits that exemption to equity, debt, and convertible debt instruments. 15 U.S.C. § 77c(b)(2)-(3). The Commission states that covered investment contracts are ineligible for Regulation A. It therefore proposes a separate section 28 exemption modeled partly on Regulation A.
Section 28 supplies a strong textual basis. It authorizes the Commission to exempt any person, security, transaction, or class from Securities Act provisions. The exemption must be necessary or appropriate in the public interest and consistent with the protection of investors. 15 U.S.C. § 77z-3. Section 3(b)(3) expressly limits rules adopted under section 3(b)(2), while proposed Rule 300 rests on separate authority.
A challenger would argue that Rule 300 circumvents Congress's specific limit through a general exemption. The resemblance to Regulation A strengthens that claim. The Commission's answer is that section 28 uses broader terms and does not incorporate section 3(b)(3)'s instrument list. A reviewing court will decide whether section 28 permits this distinct class and whether the conditions satisfy its public-interest and investor-protection requirements.
The final rule should explain each departure from Regulation A. The explanation should cover eligible instruments, audit thresholds, offering limits, resale treatment, reporting termination, state preemption, and purchaser remedies. A reasoned comparison would address the claimed circumvention and support judicial review.
Disclosure, resale, and liability
Proposed Rule 103 requires disclosure fitted to the project's current stage. The issuer must describe its essential managerial efforts, the offering, proceeds, the subject asset, management, related persons, and conflicts. It must address the network or application, source code, token economics, allocations, governance, and project risks. Public statements, white papers, and required disclosures must remain consistent. Proposed 17 C.F.R. § 228.103.
Rule 103 requires disclosure of the promises that may satisfy Howey. The covered security consists of the transaction and promises surrounding a nonsecurity asset. The issuer must identify the promised work that makes the transaction an investment contract. Later changes to those promises may alter Howey analysis and Rule 400 eligibility.
An issuer should create a single promises register before filing. The register should identify each promise, speaker, document, audience, responsible actor, completion condition, and change. It should cover formal filings, websites, code repositories, social media, presentations, governance forums, and direct communications. Rule 103 consistency cannot be tested against the filing alone.
Proposed Rule 101(d) preserves the exemption for a particular purchaser if the failed requirement did not directly protect that purchaser. The failure must also be insignificant to the offering as a whole, and the relying person must have made a good-faith, reasonable compliance attempt. Proposed 17 C.F.R. § 228.101(d). The SEC may still enforce the violated requirement. A compliance failure can therefore preserve the exemption for one purchaser while producing Commission exposure.
Securities Act section 5 remains the principal registration rule. A seller that lacks registration and a valid exemption may face section 12(a)(1) liability to its purchaser. The statutory remedy is rescission while the purchaser owns the security, or damages after disposition. 15 U.S.C. §§ 77e, 77l(a)(1). Offer, sale, statutory-seller status, purchaser standing, limitations, and available defenses still require separate analysis.
Securities Act section 17(a) continues to prohibit fraud in offers or sales. The proposal also preserves applicable antifraud and antimanipulation provisions. 15 U.S.C. § 77q(a). Exemption compliance cannot protect a material false statement, deceptive scheme, or manipulative act.
Private purchaser remedies need clearer treatment. Congress expressly applied section 12(a)(2) to section 3(b)(2) offerings. 15 U.S.C. § 77c(b)(2)(D). Proposed Subpart C rests on section 28 and lacks an equivalent operative clause. Section 12(a)(2) may apply when its existing elements are met, but the release does not resolve the issue. The final release should state the Commission's view without altering statutory causes of action.
Unrestricted status removes rule-based resale limits; it does not erase security status. A covered investment contract remains a security until it ends under governing law or Rule 400 applies for Commission purposes. Sellers, venues, brokers, dealers, and other intermediaries must assess their own obligations. State preemption also depends on Rule 500's separate conditions.
Investment contract safe harbor
Proposed Rule 400 would deem a covered investment contract to have ceased for Securities Act and Exchange Act definitions. The issuer must complete or permanently cease all essential managerial efforts that it represented or promised. It must make no new promises and intend none. It must file Form TR with the required identification, certification, and supporting analysis. Proposed 17 C.F.R. § 228.400.
The safe harbor would be available after either proposed offering exemption or another lawful path. It can address successful completion and permanent abandonment. The second path does not forgive earlier conduct. Existing registration duties, disclosure breaches, contractual claims, and fraud liability remain for the period before satisfaction.
Rule 400 would govern the Commission's administration of federal securities law. The Commission could challenge whether the issuer satisfied every condition. Private parties could still argue that the crypto asset remains subject to an investment contract or qualifies as another security. The proposal therefore offers an agency position rather than universal adjudication.
Its narrow subject matter also matters. Rule 400 addresses only "investment contract" in the Securities Act and Exchange Act definitions. It does not determine whether the asset is a note, stock, profit-sharing interest, or another enumerated security. The proposed rule also does not cover the separate investment-contract definitions in the Investment Company Act or Investment Advisers Act.
The permanent-cessation standard needs objective evidence. Relevant records may include completed code milestones, control-key disposition, treasury authority, governance transfers, binding termination decisions, contributor arrangements, public corrections, and outstanding side promises. The final rule should state how these facts interact and which date controls.
A failed project creates a hard application. An issuer may stop work, yet affiliates or successor groups may continue development. Token holders may still expect profit from identifiable promoters. Contract documents may contain continuing support, liquidity, governance, or listing promises. Rule 400 should address attribution, successor efforts, indirect promises, and partial completion.
The proposal also identifies a tacit-admission concern. Filing Form TR may imply that the asset previously was subject to an investment contract and that the filer was its issuer. The rule should state whether filing has any evidentiary effect outside the safe harbor. A no-admission clause could reduce deterrence, but it cannot bind courts applying other laws.
Rule 400 presents the proposal's most distinct statutory question. Securities Act section 28 and Exchange Act section 36 authorize exemptions from statutory provisions. Securities Act section 19(a) and Exchange Act sections 3(b) and 23(a) grant rulemaking or technical-definition authority. The Commission proposes to deem a statutory investment contract ended after specified facts.
A challenger would characterize that rule as an alteration of Howey rather than an exemption. The Commission would answer that Congress granted express exemption and technical-definition authority. The rule's limit to Commission administration supports that answer. Its preservation of private challenges also shows that Rule 400 does not conclusively amend the judicial definition.
Limiting Rule 400 to Commission administration reduces legal risk while limiting certainty. A venue or purchaser may still face private litigation after Form TR. The final rule should describe the safe harbor's effect on registration, reporting, broker-dealer, exchange, and transfer-agent duties. It should also state which obligations survive a later Commission challenge.
State registration preemption
Securities Act section 18 bars state registration and qualification requirements for covered securities. A security becomes covered for sales to qualified purchasers, as the Commission defines that term by rule. 15 U.S.C. § 77r(a), (b)(3). Proposed Rule 500 would use that authority for Regulation Crypto Assets.
For primary offers and sales, every person purchasing under either exemption would be a qualified purchaser. For secondary transactions, the seller must be a person other than an issuer, underwriter, or dealer. The issuer must have sold the contract initially under a Regulation Crypto Assets exemption or another federal exemption. Preemption then continues only while the issuer keeps satisfying the information, filing, or periodic reporting requirements of a Regulation Crypto Assets exemption for that covered investment contract.
State fraud authority would remain. States could also enforce broker-dealer registration, require permitted notices, and collect permitted fees. 15 U.S.C. § 77r(c). Rule 500 would not preempt state money-transmission, consumer-protection, commercial, tax, or criminal laws merely because they affect the same activity.
Lindeen v. SEC supports broad Commission power under section 18(b)(3). The D.C. Circuit upheld a rule treating every person to whom securities are offered or sold in a Regulation A Tier 2 offering as a qualified purchaser. It relied on Congress's express delegation and the federal protections attached to Tier 2. 825 F.3d 646, 654-56 (D.C. Cir. 2016).
Loper Bright later ended Chevron deference. Reviewing courts now exercise independent judgment on statutory authority. 603 U.S. 369, 412-13 (2024). Loper Bright expressly declined to disturb the holdings of cases decided under Chevron, so Lindeen's holding that the qualified-purchaser definition is lawful retains statutory stare decisis effect and continues to bind the D.C. Circuit. Id. at 412. Its deferential method, however, cannot substitute for independent interpretation of a new and differently conditioned rule.
Proposed Rule 500 differs from the rule upheld in Lindeen. The startup exemption lacks audited financial statements, an individual purchase cap, and SEC qualification. The final release must explain why every startup purchaser still qualifies for federal preemption. Section 18's broad delegation supports the Commission, while the different investor protections sharpen arbitrary-and-capricious review.
Secondary transactions create an operational defect. Fungible crypto assets may enter circulation through several issuance paths. A seller may not know which covered contract attached to a unit. A purchaser may not know whether the issuer remains current or whether a website disclosure changed. The proposal itself requests comment on these points.
A workable rule needs a public status signal. EDGAR could display the asset identifier, issuer, relied-on exemption, current-reporting status, lapse date, and transition filing. A reasonable-reliance rule and short cure period could protect secondary parties when the public record is stale. Without those measures, preemption may change without usable notice.
Statutory authority and judicial review
The proposed legal-basis statement cites Securities Act sections 3(b), 18, 19(a), and 28. It also cites Exchange Act sections 3(b), 12, 13, 15, 23(a), and 36. Regulation Crypto Assets, Release No. 33-11434, at 314, 319. Each grant serves a different function: exemptions, state preemption, rulemaking, technical definitions, reporting, registration, and Exchange Act relief.
Section 28 broadly supports both transaction exemptions. Section 3(b)(1) provides additional support for the $5 million startup exemption. Section 28 covers any person, security, transaction, or class, subject to public-interest and investor-protection findings. Section 18(b)(3) assigns the qualified-purchaser definition to the Commission. Section 36 supplies comparable Exchange Act exemption authority.
Rule 400 requires a closer fit. A court may distinguish an exemption from a rule that declares when a statutory category ceases. Securities Act section 19(a) and Exchange Act sections 3(b) and 23(a) supply rulemaking or technical-definition authority. Howey supplies the controlling investment-contract standard. The final rule should connect every condition to statutory text and the judicial test.
A challenger may also invoke the major-questions doctrine. The claim would focus on the rule's market reach, state preemption, and treatment of crypto transactions under broad grants. West Virginia v. EPA, 597 U.S. 697, 721-24 (2022). The Commission has a direct response: Congress expressly granted securities exemption, purchaser-definition, and rulemaking powers in the statutes being administered.
The section 3(b)(3) issue may carry more force than a broad major-questions claim. Congress named eligible Regulation A instruments, and the SEC says covered investment contracts fall outside that list. Rule 300 uses section 28 to reach those contracts through a similar offering process. The final release should explain why the specific limit governs only section 3(b)(2) rules.
The Administrative Procedure Act requires notice, a meaningful opportunity to comment, reasoned decisionmaking, and action within statutory authority. 5 U.S.C. §§ 553, 706. Courts will set aside a final rule that is arbitrary, capricious, procedurally defective, or beyond delegated power. Motor Vehicle Mfrs. Ass'n v. State Farm Mutual Automobile Insurance Co., 463 U.S. 29, 43 (1983).
Loper Bright requires independent judicial judgment on legal questions. Agency expertise may inform a court, especially on technical facts and delegated policy choices. It cannot substitute for statutory authority. 603 U.S. at 394-96, 412-13.
The proposal's length and detailed questions support notice. A final rule must remain reasonably foreseeable from the proposal. Long Island Care at Home, Ltd. v. Coke, 551 U.S. 158, 174-75 (2007). Material additions involving asset status, private liability, new intermediaries, or broader preemption may require further notice if comments could not reasonably anticipate them.
Reasoned decisionmaking will turn on the Commission's treatment of the record. The final release should justify offering limits, audit treatment, purchaser caps, unrestricted resale, website-only startup disclosures, reporting termination, and secondary preemption. It should test costs against record evidence and distinguish burden estimates from predicted market use.
H.R. 3633 creates a timing issue. The Digital Asset Market Clarity Act passed the House on July 17, 2025, but had not become law by August 20, 2026. U.S. House Roll Call No. 199 (July 17, 2025). The Senate made the motion to proceed and presented a cloture motion on that motion on August 8, 2026, and the cloture vote is scheduled to ripen on September 15, 2026. U.S. Senate, Recent Floor Activity (Aug. 8, 2026). Chairman Atkins stated that legislation remained indispensable. Paul S. Atkins, Statement on Regulation Crypto Assets: Fit-for-Purpose Exemptions for Crypto Market Innovation (Aug. 18, 2026). A final rule should account for any enacted text before adoption.
Unresolved obligations
Regulation Crypto Assets would address Securities Act offering registration and defined investment-contract status. It would not supply a general license for a crypto business. Separate federal and state duties remain unless another law changes them.
The proposal does not create exchange, broker, dealer, transfer-agent, or custody exemptions. Exchange Act sections 5, 15(a), and 17A(c) require separate analysis for trading venues, brokers, dealers, and transfer agents. 15 U.S.C. §§ 78e, 78o(a), 78q-1(c). Rule 400 may change the investment-contract premise prospectively, but other security categories remain.
Investment Company Act and Investment Advisers Act questions also remain. A pooled vehicle, treasury arrangement, advisory program, or managed token portfolio may trigger those statutes. Rule 400's proposed text does not reach their investment-contract definitions.
Commodity regulation, derivatives law, anti-money-laundering rules, sanctions, tax, state money-transmission law, and consumer-protection law require separate analysis. State securities fraud jurisdiction also survives proposed Rule 500. Compliance with Part 228 would resolve none of those subjects by itself.
The release expresses a view that covered investment contracts are not equity securities for Exchange Act section 12(g). It asks whether that position should be codified. Regulation Crypto Assets, Release No. 33-11434, at 73 n.192, 77. Until a final rule resolves the point, issuers should not treat the proposal as a section 12(g) exclusion.
Private-law rights remain outside the offering exemption. Token terms, governance documents, side letters, contributor agreements, intellectual-property rights, insolvency priority, and fiduciary duties may continue after Form TR. Completing Rule 400 cannot cancel those rights without an independent legal basis.
