Second, I support providing registrants with greater optionality in determining how to custody crypto assets. Commission staff recently removed a significant impediment for companies seeking to provide crypto asset custodial services by rescinding Staff Accounting Bulletin No. 121.[9] That pronouncement was a grave error. The staff had no place to act so broadly in place of Commission action and without notice-and-comment rulemaking. The action created needless confusion and went far beyond the jurisdiction of the SEC in its effects. However, the SEC can do much more to enhance competition in the market for legally compliant custodial services than merely getting rid of SAB 121.

It is important to provide clarity on the types of custodians that qualify as a “qualified custodian” under the Advisers Act and Investment Company Act, as well as reasonable exceptions from the qualified custody requirements to accommodate certain common practices within crypto asset markets. Many advisers and funds have access to self-custodial solutions that incorporate more advanced technology to safeguard crypto assets as compared to some of the custodians in the market. Consequently, the custody rules may need to be updated to allow advisers and funds to engage in self-custody under certain circumstances.

Additionally, it may be necessary to repeal and replace the “special purpose broker-dealer” framework[10] with a more rational regime. Only two special purpose broker-dealer are in operation today due clearly to the significant limitations imposed on these entities. Broker-dealers are not and never were restricted from acting as a custodian for non-security crypto assets or crypto asset securities, but Commission action may be needed to clarify the application of the customer protection and net capital rules to this activity.