“It doesn’t have to be done as a rulemaking,” said SEC Commissioner Hester Peirce, who has led much of the agency’s crypto work since the start of last year. In response to a question from CoinDesk, she said the SEC has exemptive authority that it routinely uses. “We can do it as a rule, but we don’t have to do it as a rule.”
In March, SEC Chairman Paul Atkins described the incoming policy as “an innovation exemption to facilitate limited trading of certain tokenized securities with an eye toward developing a long-term regulatory framework.” He said it would be “limited in time and scope, but long enough so that we can craft more durable rules that harness the full potential of these new technologies.”
More recently in May, he added: “I also think we should consider what a future-proofed framework may look like, which would take the form of notice-and-comment rulemaking and would address the ‘exchange’ definition as applied to onchain trading systems.”
CoinDesk canvassed the views of several lawyers who are former officials at the SEC, asking questions about the choice to put off formal rulemaking, and whether the interim work on this will hold up. Most agreed that the approach may not carry the highest force of SEC authority, but it’d still be difficult to put the toothpaste back into the tube if the next administration sees things differently.