This proposed rule would build upon the safeguards already in place, thanks to the new authorities granted by Congress in 2010. By doing so, the SEC is taking a proactive step to ensure that investors are safeguarded against potential risks associated with cryptocurrency investments.
Investment advisers would need to ensure that all assets are properly segregated, submit to annual audits from public accountants, and undertake other transparency measures to be "qualified" custodians under the new rule. The rule would also require written agreements between advisers and custodians, add requirements for foreign institutions serving as custodians, and explicitly extend the safeguard rules to discretionary trading.
However, SEC Commissioner Hester Peirce opposed the rule. She argued that it would discourage investment advisers from advising their clients with respect to crypto. She had been vocal about the unprecedented regulator attempts of the SEC before as well.
SEC Chair Gary Gensler has expressed his support for the proposed rule, implying that crypto exchanges may not be qualified custodians. He stated that investment advisers cannot rely on crypto platforms to provide custodial functions, and to ensure greater protection for investors, the rule should be extended to all asset classes, including all other crypto assets that are neither securities nor funds.
This is the second time Gensler has commented on the proposed rule, which was initially introduced in mid-February. The SEC's Investor Advisory Committee has recommended broadening the 2009 rule, which was designed to reduce the risk of advisers engaging in Ponzi schemes, to encompass all asset classes, including all other crypto assets that are neither securities nor funds.
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