Author: FinTax

1 Introduction

On March 17, 2026, the U.S. Securities and Exchange Commission (SEC) and the Commodity Futures Trading Commission (CFTC) jointly issued the final rules and interpretative guidance titled "Applicability of Federal Securities Laws to Certain Types of Crypto Assets and Related Transactions" (hereinafter collectively referred to as "the Guidance"). This 68-page document is a systematic framework jointly released by the two major federal regulatory agencies on the legal characterization of crypto assets.

For observers long concerned about the direction of U.S. crypto regulation, the significance of this event far exceeds the text itself. Since 2017, regulation of crypto assets in the United States has been caught in a cycle of ambiguous rules, case-by-case enforcement, and market testing. Regulatory agencies have defined boundaries through a patchwork approach by conducting a series of enforcement actions against market entities such as Ripple, Coinbase, and Binance; market participants have continuously probed in the uncertainty of the rules, searching for the gray areas of regulation. This game of cat and mouse not only raised compliance costs but also caused some innovative projects and capital to flow to jurisdictions with clearer regulatory frameworks. The release of the Guidance represents a restructuring of rules in this game by the regulators, delineating clearer boundaries for the market. It signifies a shift from reliance on ex-post enforcement to specifying the legal definitions of crypto assets through pre-existing rules.

2 Decade of Enforcement Regulatory Issues and Policy Shift

2.1 From the "DAO Report" to the Enforcement Regulatory Era

In 2017, the SEC released the "DAO Report," explicitly incorporating crypto assets into the analysis framework of "investment contracts," determining that the tokens issued by DAOs constituted securities. This report established the basic paradigm for the SEC's handling of crypto asset issues over the next decade: using the Howey Test established in the 1946 Supreme Court case SEC v. W.J. Howey Co. as an analytical tool to determine on a case-by-case basis whether specific crypto assets constitute securities.

However, the case-by-case determination approach has not been without issues in practice. The Howey Test involves four elements: investment of money, common enterprise, reasonable expectation of profits, and profits derived from the efforts of others. Applying this to diverse forms and functions of crypto assets often leads to conclusions that are highly dependent on specific factual details, lacking certainty. Thus, the SEC primarily relied on enforcement actions to gradually delineate boundaries—suing projects such as Telegram's TON, Ripple's XRP, and Coinbase's trading services, attempting to clarify the rules through judicial precedents. This approach of "enforcement regulation" has not been conducive to the SEC developing a regulatory framework that accommodates innovation in crypto assets and aligns with industry development. Former SEC Commissioner Hester Peirce has publicly criticized this approach multiple times, arguing that regulatory agencies should provide clear guidance rather than "legislating" through enforcement action.

2.2 Shift in Policy Motivation

2025 became a pivotal year for U.S. crypto regulatory policy. In January, Acting Chairman Mark T. Uyeda announced the establishment of the "Crypto Task Force," aimed at providing clearer regulatory guidance for the crypto asset market. Subsequently, the task force hosted a series of roundtable discussions, collecting over 300 written opinions from various market participants.

In July 2025, the U.S. Presidential Financial Markets Working Group released the report "Strengthening America's Leadership in Digital Financial Technologies," which explicitly recommended that the SEC and CFTC "leverage existing powers to provide sufficient regulatory clarity to keep blockchain-based innovation within the U.S." In the same month, Congress passed the "GENIUS Act," establishing a dedicated regulatory framework for payment stablecoins issued by licensed stablecoin issuers, expressly excluding their securities nature.

In the same year, SEC Chair Paul S. Atkins launched the "Project Crypto" initiative, aimed at modernizing rules under federal securities laws based on the recommendations of the Presidential Working Group. Atkins clearly stated in his speech that the urgent task is to clarify regulatory rules for crypto entrepreneurs, so they can ascertain whether their projects need to comply with securities laws. In January 2026, Atkins announced alongside CFTC Chair Michael S. Selig that the project would progress as a joint action of the two major regulatory agencies to coordinate federal regulation of the crypto asset market.

The aforementioned policy trends indicate that the new rules are, in fact, a product of a systemic shift in U.S. federal crypto regulatory policy. Regulatory authorities have recognized that continuing to rely on case-by-case enforcement is no longer adaptive to the fast-paced market development, necessitating clear rules to guide market participants.

3 Framework Established by the Guidance

For the U.S. crypto market, the significance of the Guidance lies in establishing a systematic classification framework for crypto assets. This framework divides crypto assets into five categories, each defining their legal attributes.

3.1 Five Asset Classification System

Table 1 Detailed Classification of Five Asset Types

3.2 "Investment Contracts" and "Separation Mechanism"

If the classification system answers the question of "whether a certain asset category belongs to securities," then the investment contract and separation mechanism respond to the dynamic question of what becomes a security and under what conditions. This is the most innovative part of the Guidance.

3.2.1 Binding of Investment Contract and Securities

The Guidance states that a non-security crypto asset (such as a digital commodity) can become the subject of an investment contract, thus falling under securities regulation. The key condition for this conversion is: when the issuer sells this asset to investors, through explicit or implicit statements or promises, it induces investors to form a reasonable expectation that the issuer will engage in essential managerial efforts, thereby creating profits for the investors.

The Guidance specifies the standards for judging reasonable expectations. If the issuer promises investors through whitepapers, official websites, social media, or other channels, to develop specific functionalities, achieve certain milestones, construct a complete ecosystem, and provides detailed information on business plans, timelines, personnel allocations, and funding sources, then the investors' expectation of profits is reasonable. Conversely, if the issuer's statements are vague and lack specific plans, it would be difficult to constitute a reasonable expectation.

3.2.2 How to Disassociate from Securities: Separation Mechanism

The Guidance clarifies that a non-security crypto asset that was previously issued as the subject of an investment contract can be disassociated (separation) from the corresponding investment contract under certain conditions, after which trading of that asset in the secondary market will no longer be considered securities trading. In other words, such assets do not inherently transform into securities solely due to having been the subject of an investment contract; what changes is whether the asset is still subject to the legal relationship tied to the investment contract associated with the issuer’s promises.

The conditions for separation include two categories:

First, the issuer has completed its promised essential managerial efforts. For example, when the issuer fulfills promised software development, mainnet launch, code openness, and other milestones as stated in the whitepaper, it is considered as having fulfilled its commitments. Thereafter, even if the issuer continues to provide non-essential operational support, it does not affect the fact that the asset has already separated. At this point, the investment contract itself no longer exists, and subsequent asset trading is naturally no longer subject to securities laws.

Second, the issuer explicitly abandons and announces it will no longer fulfill its commitments. If an issuer publicly announces the abandonment of project development due to various reasons during the development process and does so in a widely disseminated and unambiguous manner, then the asset is also separated from the investment contract. However, the document simultaneously warns that the issuer may still bear anti-fraud liabilities under securities laws for failing to fulfill promises in this situation.

The separation mechanism provides a legitimate path for crypto projects from compliant financing to decentralized operations. Project teams can raise funds through securities offerings in the early stages to complete core development. Once the system matures and decentralization is achieved, their native tokens can circulate freely, no longer subject to the strict constraints of securities laws on secondary markets.

3.3 Legal Characterization of Specific On-chain Activities

The Guidance also provides clear legal characterizations for three common on-chain activities:

3.3.1 Protocol Mining and Protocol Staking

The Guidance states that mining (proof of work mechanism) and staking (proof of stake mechanism) activities conducted on public, permissionless blockchain networks do not in themselves constitute securities issuance.

Protocol mining includes two forms: self-mining and joining mining pools. Even if the mining pool operator charges fees, it does not change its nature, as these activities are administrative or transactional actions, not essential managerial efforts.

Protocol staking includes four forms:

(1) self-staking;

(2) directly engaging in self-custody staking with third parties: users retain asset control and delegate third-party node operators for validation;

(3) custodial arrangements: users hand their assets over to custodians for staking, and custodians act solely as agents, not deciding on the timing and quantity of staking and not being allowed to use the deposited assets for other commercial purposes;

(4) liquid staking: users receive staking receipt tokens, maintain liquidity, and staking service providers act solely as agents, not guaranteeing returns. All the above activities do not constitute securities issuance due to their administrative or transactional characteristics.

3.3.2 Wrapping

Wrapping refers to the act of depositing one type of crypto asset with a custodian or cross-chain bridge and generating wrapped tokens that can circulate on another chain at a 1:1 ratio. The Guidance clarifies that if the underlying asset is a non-security asset and not in an investment contract state and does not have returns, profit opportunities, or additional goods/services attached during the wrapping process, then the wrapped tokens do not themselves constitute securities. The wrapped tokens are viewed as "receipts" for the underlying assets whose value comes entirely from the underlying assets, not any efforts during the wrapping process.

3.3.3 Airdrops

The Guidance strictly defines airdrops: only airdrops received by users without providing any money, goods, services, or other consideration to the issuer do not constitute securities issuance. In other words, if users must complete specific tasks such as social media promotion or participating in testnets to receive an airdrop, then that part of the airdrop may be regarded as a securities issuance with consideration and thus is not exempt. The Guidance especially clarifies that amounts paid by users in the past do not count as consideration for the airdrop, as long as those amounts were not specifically paid to obtain the airdrop.

4 Core Significance and Major Impacts

4.1 Shift in Regulatory Paradigm

The issuance of the Guidance signifies a major shift for the SEC, which has relied on enforcement regulation for nearly a decade. Previously, the SEC defined rules through enforcement actions, with the downside being that rules were formed case by case during litigation, lacking systematicity and predictability; the selection of enforcement targets was arbitrary, leaving many projects not sued in an uncertain state; and the interaction between regulation and the market was confrontational rather than collaborative. The release of the Guidance marks the SEC's shift from legislative enforcement through litigation to providing universal, predictable compliance guidance.

The creation of the separation mechanism is a key institutional design of this new regulation. It both acknowledges the legitimacy of early financing and provides a clear exit for projects eventually proceeding to non-security status. This mechanism balances compliant financing with ecological freedom: project teams can raise funds through compliant securities offerings without worrying that their tokens will forever carry the burden of being a security after they circulate; investors can enjoy investor protections under securities laws in the early stages and more freedom in secondary market transactions once the projects mature. This mechanism encourages project teams to shift their focus from how to evade securities designation to how to fulfill core commitments and achieve decentralization, helping to steer market innovation towards developing truly functional and decentralized blockchain networks rather than getting stuck in short-term arbitrage models focused on issuance, financing, and narrative.

In terms of jurisdiction coordination, the new regulation clarifies the coordinated stance of the two regulatory agencies through a joint issuance; digital commodities fall under CFTC jurisdiction, digital securities under SEC jurisdiction, and payment stablecoins have separate legislation. The CFTC will manage the Commodity Exchange Act in alignment with this interpretation and confirm that certain non-security crypto assets may fit the definition of commodities under the Commodity Exchange Act (see page 9 of the original Guidance). This means that crypto assets categorized as digital commodities, such as Bitcoin and Ethereum, will clearly fall under CFTC regulation, and derivatives trading will be subject to commodity futures market regulatory rules. This reduces regulatory uncertainty for market participants.

4.2 Profound Market-Level Impact

The new rules have multifaceted impacts on the market: they eliminate long-term uncertainty for mainstream assets while reshaping secondary market trading logic; they spawn new compliant business models and create conditions for the U.S. to become a center for crypto innovation again.

The most direct market impact of the new rules lies in eliminating long-term uncertainty for mainstream crypto assets such as Bitcoin and Ethereum. The document clearly classifies these assets as digital commodities and states that they are not securities themselves. This means that trading of these assets in secondary markets no longer faces the risk of being classified as securities trading. Traditional financial institutions, which had been hesitant due to regulatory uncertainty, can now more confidently include these assets in their portfolios; exchanges can delineate categories for listed assets more clearly and establish corresponding compliance rules.

The establishment of the separation mechanism fundamentally alters the logic of the secondary market for crypto assets. Prior to the new regulation, a project’s token always faced the uncertainty of whether its secondary market trading constituted securities trading after early financing. The new regulation clarifies: once a project fulfills its core commitments and separates, further transactions will no longer be considered securities trading. Project teams can raise funds through compliant early financing, complete core development, and then achieve the free circulation of tokens through separation. This path provides a clear business model for legitimate initiation, compliant financing, and eventual decentralization. For investors, during the project’s non-separated stage, they enjoy protections under securities laws; after separation, they can trade in a freer secondary market. This phased protection arrangement safeguards early investors without obstructing the subsequent circulation of assets.

The new rules' clear designations of activities such as mining, staking, wrapping, and cross-chain bridges provide legal certainty for business models in these areas. The document clearly states that these activities do not constitute securities issuance, and participants do not need to register as securities or seek exemptions. This recognition reduces compliance risks for related service providers and is conducive to the professionalization and scaling of the industry. For instance, liquid staking service providers can conduct business more definitively without worrying that the staking receipt tokens they issue would be treated as securities—as long as the underlying assets are non-securities and have been separated. Cross-chain bridges and wrapping service providers can also operate within a clear regulatory framework.

The release of the new rules may reverse the trend of talent and capital outflows caused by regulatory uncertainty. The document explicitly cites the Presidential Working Group report, emphasizing the policy objective to retain blockchain-based innovation within the U.S. Compared to the “Crypto Assets Market Regulation” (MiCA) already implemented by the EU and various regulatory frameworks in Asian jurisdictions, the U.S. had previously been at a disadvantage in regulatory competition due to ambiguous rules. The new regulation, by providing a systematic classification framework and clear compliance pathways, is expected to enhance the U.S.'s competitiveness in crypto regulation.

5 Implications for Various Market Participants

5.1 For Project Teams and Developers

The Guidance provides project teams with a clear financing pathway design framework. Project teams can choose to raise funds early through compliant securities offerings while clearly planning a separation path—when to complete key developments, when to achieve decentralization, and when to publicly announce fulfillment of commitments. This pathway can ensure that tokens ultimately realize free circulation as non-securities while avoiding ongoing compliance burdens on secondary market trading.

Project teams should be highly vigilant about commitments to essential managerial efforts during marketing processes. The new rules clarify that if issuers promise specific development milestones, business plans, or profit expectations to investors through whitepapers, websites, social media, etc., these commitments may constitute core elements of an investment contract. Project teams should ensure that after separation, they clearly announce that they have fulfilled commitments or adjust marketing expressions to avoid creating excessive profit expectations.

Additionally, project teams should also consider embedding separability into their technical architectures. This can be achieved through multi-phase development plans, progressive decentralization roadmaps, and transparent milestone disclosure mechanisms, providing clear evidence for future separations.

5.2 For Investors

The Guidance provides investors with a new framework for investment analysis. For assets explicitly categorized as digital commodities, their investment logic is primarily based on fundamental factors such as network effects, supply-demand relationships, and technological development. For project tokens that have not yet separated, investors need to focus on the issuer’s performance capabilities and legal risks while enjoying protections under securities laws. Investors should also be attentive to the project’s separation status to accurately assess the legal attributes of their trades and corresponding protection mechanisms.

For activities like airdrops, staking, and mining, investors should distinguish whether they constitute consideration-based actions. Free airdrops do not fall under the scope of securities regulation; however, newly acquired assets through labor, service, or financial input may constitute securities issuance, bringing them under SEC regulation.

5.3 For Intermediaries and Service Providers

Exchanges need to establish classification mechanisms for listings, distinguishing between digital commodities, separated assets, digital securities, payment stablecoins, and other categories, and develop corresponding compliance trading rules. For assets that have not yet separated, it is necessary to confirm the issuer’s securities registration or exemption status; for separated assets, verification mechanisms should be established to confirm the fact of separation.

Staking and custodial service providers should clarify that their business falls under non-securities administrative services but should be mindful of compliance risks of business boundaries. If services involve return commitments, profit-sharing, or the underlying assets are digital securities, this may trigger securities regulation. Service providers should clearly define their roles as agents in business agreements to avoid being identified as undertaking essential managerial efforts.

For legal, tax, and accounting service institutions, the release of the Guidance will spur new professional service demands. Project teams will need professional services for separation path design, compliance checks, and information disclosure; exchanges will require asset classification and trading rule design; and investors will need assessments of the legal statuses of investment targets.

The implications and impacts of the new rules on the three types of participants are fundamentally interconnected. The compliance path design of project teams determines the level of protection available to investors, while the classification and verification mechanisms of intermediaries serve as the critical infrastructure linking the two. The significance of the new rules lies in providing these three types of participants with an anticipatable and collaborative regulatory framework.

6 Conclusion and Prospects

The issuance of the Guidance marks an important turning point in the regulation of crypto assets in the U.S., moving from ambiguity to clarity and from case-by-case enforcement to preemptive rules. It takes back the definition power through a clear rules framework and guides market innovation toward developing truly functional, decentralized blockchain networks rather than lingering in short-term arbitrage models focused on issuance, financing, and narrative.

However, the codification of rules does not suggest the end of the game. While delineating boundaries, the new regulations may also spawn new spaces for rule arbitrage:

First, the manipulation of the separation timing. The Guidance allows project teams to separate securities attributes after completing essential managerial efforts. How completion is defined—whether it is the mainnet launch, code openness, or reaching a certain decentralization metric—may have interpretive space in practice. Project teams could attempt to formally complete while substantially retaining control to quickly access a second market free from SEC regulation along with financing conveniences.

Second, the marketing boundaries of non-securities assets. The Guidance emphasizes that non-securities assets themselves are not securities, but if they induce investment through the promise of managerial efforts at issuance, they constitute an investment contract. Project teams may attempt to package promises as visions, community roadmaps, or non-binding plans to evade recognition as essential managerial efforts.

Third, financial innovation around staking and yield products. The Guidance deems protocol staking itself not a security; however, staking receipt tokens may become securities based on the nature of the underlying assets. The market may design more complex structured products to seek out new gray areas between non-security staking activities and yield-bearing securities products.

Fourth, the payment and yield boundaries of stablecoins. The "GENIUS Act" clearly states that payment stablecoins are non-securities but prohibits interest payments. The market may design products combining stablecoins with staking, lending, or reward points, delivering products that essentially resemble return generation under the compliant payment stablecoin shell.

In the future, interactions between regulation and the market will continue. The focus of regulation will shift from qualitative to enforcement—how to supervise whether project teams genuinely fulfill separation commitments, how to address jurisdiction issues for cross-border projects, and how to tackle the new structures created by the integration of artificial intelligence and crypto technologies. These issues will gradually unfold over the coming years.

Nevertheless, the issuance of the Guidance has already pushed U.S. crypto regulation into a new phase. For market participants, the clarification of rules reduces compliance costs, while the challenge lies in seeking innovation within the boundaries of these rules. For regulatory agencies, having gained definition power also means facing new games that arise from the new rules. This new regulation represents the Commission's first step toward constructing a clearer regulatory framework for crypto assets, with subsequent progress to be written collaboratively through ongoing interactions between regulators and the market.

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