SEC Staking Guidance Explained: What Institutions Need to Know

TL;DR: 

• The SEC’s Division of Corporation Finance issued landmark statements in 2025, clarifying that certain protocol staking activities do not constitute the offer or sale of securities under US federal law. 
• A joint SEC-CFTC interpretation released in early 2026 further codifies this position. 
• The OCC simultaneously confirmed that national banks may offer crypto custody and ancillary services, including staking.
• Arrangements with guaranteed rewards, discretionary management, or restaking remain legally uncertain. 
• This article is for informational purposes only and does not constitute legal advice.

Why the SEC Staking Guidance Matters

The 2025–2026 SEC staking guidance may represent the most significant regulatory shift for the proof-of-stake industry since the emergence of Ethereum. For years, uncertainty over whether staking activities constitute securities offerings had chilled participation by US institutions, custodians, and service providers. 

The new guidance does not rewrite the law. It applies existing legal frameworks (most notably the Howey test) and reaches conclusions that are generally considered favorable to the industry.

This article walks through each statement chronologically, explains the legal analysis underpinning the guidance, and identifies what the guidance does and does not cover.

The Pre-2025 Enforcement Environment

Before 2025, the SEC generally approached crypto staking through an enforcement lens rather than a rulemaking lens. 

That enforcement-first posture created legal ambiguity across the industry. Validators, staking-as-a-service providers, and institutional custodians faced uncertainty about whether their activities triggered registration requirements. This left the legal perimeter for staking-related activities undefined. Institutions that might otherwise have offered staking services to clients generally held back.

The Regulatory Shift in 2025–2026

The election of a new administration in late 2024 accelerated a structural recalibration. On January 21, 2025, Acting Chairman Mark T. Uyeda established the Crypto Task Force to help provide greater clarity on the application of the Federal securities laws to the crypto asset markets. The Task Force hosted roundtables, solicited written input from over 300 stakeholders, and coordinated closely with the Division of Corporation Finance to issue a series of staff statements. The staking statements issued in May and August 2025 emerged from this process.

In January 2026, Chairman Paul S. Atkins and CFTC Chairman Michael S. Selig announced that Project Crypto (previously a SEC-led initiative) would proceed as a joint effort between the SEC and the CFTC to harmonize federal oversight of crypto asset markets. The joint SEC-CFTC interpretation released in early 2026 (Release No. 33-11412) provides a broader taxonomy of crypto asset types and expressly addresses protocol staking as part of that taxonomy.

Protocol Staking Statement May 29, 2025

What the SEC Clarified

On May 29, 2025, the Division of Corporation Finance provided its views on certain activities known as “staking” on networks that use proof-of-stake as a consensus mechanism. The statement concluded that defined protocol staking activities do not involve the offer and sale of securities within the meaning of Section 2(a)(1) of the Securities Act of 1933 or Section 3(a)(10) of the Securities Exchange Act of 1934.

The statement is not a rule or a regulation. It represented the staff’s interpretive views and did not legally bind courts or other parties. It did, however, provide a reliable indicator of how the Division was likely to approach these activities in practice. Institutions and their counsel should generally consider this guidance as a meaningful, though non-binding, safe harbor for activities that fall within its scope.

Covered Crypto Assets: The Key Definition

The Protocol Staking Statement applies only to a narrowly defined category called “Covered Crypto Assets.” Covered Crypto Assets are those intrinsically linked to the programmatic functioning of a public, permissionless network and used to participate in, or earned for participating in.

In Covered Crypto Assets the smart contracts defining them do not include coding for intrinsic economic properties or rights. For example, there is no ability to generate or convey rights to future rewards. This definition is intentionally restrictive. Assets that carry embedded economic entitlements (e.g. governance tokens with profit-sharing features) would generally fall outside this definition and may remain subject to securities analysis.

The table below summarizes the key attributes of a Covered Crypto Asset:

Attribute	Required	Excluded
Linked to PoS network consensus	Yes	Tokens not integral to network operation
Public and permissionless network	Yes	Private or permissioned blockchains
No coded profit/income rights	Yes	Tokens with embedded yield or governance dividends
Used to maintain network security	Yes	Purely speculative tokens

The Staking Models Addressed

The Protocol Staking Statement addresses three distinct staking models. Each model is analyzed separately under the Howey test.

Staking Model	Description	SEC Staff View
Self-staking (solo)	Token holder runs own validator	May not be a securities transaction
Self-custodial third-party staking	Holder retains custody; delegates to node operator	May not be a securities transaction
Custodial staking	Third party takes custody and stakes on holder’s behalf	May not be a securities transaction (within scope)

The SEC Staff’s view is that participating in proof-of-stake network consensus, whether by solo staking or through third-party staking services, 

‘Whether offered separately or as a group of services, the Service Provider does not act in a managerial or entrepreneurial way if it provides any or all of these services.’ 

– Protocol Staking Statement, May 29, 2025

The Howey Test Analysis

The Howey test asks whether a transaction involves: 

1. an investment of money; 
2. in a common enterprise; 
3. with a reasonable expectation of profits; 
4. derived from the entrepreneurial or managerial efforts of others. 

The Staff concluded that under the Howey test, Protocol Staking Activities are not “entrepreneurial” or “managerial” in nature but rather “administrative” or “ministerial.”

The critical prong is the fourth: “efforts of others.” The staff’s view is that node operators perform technical functions dictated by the protocol software: they may not exercise meaningful discretion over staking outcomes. Importantly, during staking, the node operator does not take possession of the Covered Crypto Asset. Not any human actor, but the protocol determines which validator is selected and how rewards are allocated. This mechanical, software-driven structure may mean the “efforts of others” prong is generally not satisfied.

What the Guidance Does NOT Cover

Arrangements with Guaranteed Rewards

Both statements expressly exclude arrangements in which the service provider guarantees a fixed reward to stakers. 

A guaranteed reward structure could satisfy the “expectation of profits” prong of Howey and introduce the “efforts of others” element if the provider must actively manage assets to fulfill that guarantee. 

This area remains legally uncertain as of the date of this article.

Discretionary Managerial Staking

Both statements also exclude arrangements in which the provider exercises discretion over staking decisions. This includes deciding whether, when, or how much of the deposited assets to stake at any given time. Such discretion may be seen as “managerial effort” that is essential to achieving the expected outcome for the depositor. Providers who actively optimize validator selection for performance or allocate assets across multiple protocols may fall outside the statements’ scope.

The table below summarizes activities that remain outside the scope of SEC staking guidance:

Activity	Coverage Status	Key Risk
Restaking / liquid restaking	Not addressed	Potential Howey classification
Fixed-rate staking programs	Excluded	Guarantee may satisfy Howey prongs
Discretionary staking management	Excluded	“Efforts of others” prong may be met
Staking of non-Covered Crypto Assets	Not addressed	Asset-specific analysis required
DeFi protocol staking with governance	Not addressed	Complex facts; consult counsel

The OCC Connection and Banking Regulator Alignment

Interpretive Letter 1184

The SEC’s staking guidance did not emerge in isolation. The Office of the Comptroller of the Currency (OCC) has moved in parallel. The OCC published Interpretive Letter 1184 to confirm that national banks and federal savings associations may buy and sell assets held in custody at the customer’s direction and are permitted to outsource to third parties bank-permissible crypto-asset activities, including custody and execution services, subject to appropriate third-party risk management practices. IL 1184 does not mention staking by name.

IL 1184 builds on earlier OCC guidance, specifically Interpretive Letters 1170 and 1183 which had already confirmed the potential permissibility of digital asset custody for national banks. In May 2025, the OCC confirmed that national banks and federal savings associations may engage in the purchase or sale of digital assets held in custody at the custodial customer’s direction, and may outsource permissible digital asset activities, including custody and execution services, to third parties so long as appropriate third-party risk management practices are in place.

Path for US Banks to Offer Staking

The combined effect of IL 1184 and the SEC staking guidance potentially creates a pathway for national banks to offer staking services to institutional clients. A bank acting as custodian of Covered Crypto Assets may consider staking those assets on behalf of a client, outsource node operation to a compliant third-party validator, and deliver staking rewards to the client’s account, provided the arrangement falls within the administrative and ministerial scope defined by the SEC statements.

A practical prerequisite for any bank operating custodial staking infrastructure is network fee management. OCC Interpretive Letter 1186  potentially confirms that a national bank can hold crypto assets as principal on balance sheet in amounts necessary to pay the network fees required to execute on-chain transactions incidental to permissible banking activities, as well as custody operations. This removes the need to rely on third-party fee providers for routine staking-related transfers, though holdings must remain de minimis relative to the bank’s capital and strictly limited to anticipated operational needs.

Acting Comptroller of the Currency Rodney E. Hood stated that the OCC expects banks to have the same strong risk management controls in place to support novel bank activities as they do for traditional ones. Banks considering staking-related services should consider maintaining documented policies covering third-party vendor management, slashing risk, liquidity considerations, and regulatory compliance.

Practical Implications for Institutions

For Staking Service Providers

Staking-as-a-service providers may now operate with greater legal confidence in the US, provided their service model aligns with the factual assumptions in the SEC statements. Key compliance considerations include:

Service design. Providers should avoid offering guaranteed reward rates or exercising discretion over whether and how much to stake. The arrangement should be administrative: accept assets, stake per protocol rules, issue receipts or account credits, and pass through rewards minus fees.

Documentation. Clear contractual language describing the administrative nature of the service may help support a compliant position.

Compliance frameworks. Providers should maintain robust compliance programs regardless of the SEC guidance.

For Institutional Stakers

Institutional asset managers, family offices, and pension funds considering staking should conduct a threshold analysis of whether the assets in question qualify as Covered Crypto Assets. If assets qualify, and if the staking arrangement falls within the scope of either statement, institutions may generally engage in staking without triggering securities registration requirements.

Institutions may also consider how staking fits within their existing policies, risk frameworks, and fiduciary obligations. Staking carries operational risks, including slashing risk, liquidity lock-up periods (bonding and unbonding), and smart contract risk that are independent of the securities law question.

For Custodians

Custodians, including those organized as national banks under OCC authority, may now offer staking as an ancillary custody service. The OCC and SEC guidance together suggest that custodial staking is generally permissible,  where the custodian stakes assets on behalf of the client without exercising discretion. Custodians should document that they are acting as agents, not principals, and that they pass through rewards without enhancement or guarantee.

Custodians should also note that the Release’s use of the term “custodian” does not import the client protections that term carries under the securities laws. Staked assets are not held under the same legal framework as securities custody, and custodians should not represent otherwise to clients. The Release addresses securities law only; prudential obligations under OCC, Federal Reserve, and FDIC authority apply independently.

Remaining Legal Risks

Even within the scope of the guidance, several legal risks warrant attention:

Risk Area	Description	Potential Action
Interpretation non-bindingness	Release 33-11412 is a Commission-level interpretation administered in enforcement, but courts are not bound by it and may reach different conclusions under Howey. The Commission has expressly reserved the right to revise or expand it	Obtain independent legal counsel; do not treat the Release as a definitive safe harbor; build compliance programs that can accommodate revision
State securities laws	Release 33-11412 and the 2025 staff statements operate under federal securities law only. State securities regulators have not aligned with the federal framework and may take independent positions on whether staking constitutes a securities activity in their jurisdiction	Conduct state-by-state analysis before offering staking services; monitor state-level enforcement and rulemaking independently of federal developments
AML/KYC obligations	These apply independently of staking  characterisation	Maintain full AML/KYC and sanctions compliance programs; treat federal securities guidance as separate from financial crime obligations
Slashing risk disclosure	The Release does not address liability allocation between custodian and node operator when slashing occurs. Slashing losses are reflected in the value or quantity of staking receipt tokens programmatically and are not recoverable	Include slashing risk in offering documentation and client disclosures; address liability allocation contractually with node operators before offering custodial staking services

Global Context — How Other Jurisdictions Compare

European Union (MiCA)

The Markets in Crypto-Assets Regulation (MiCA) institutes uniform EU market rules for crypto-assets and covers crypto-assets that are not currently regulated by existing financial services legislation. MiCA fully entered application on December 30, 2024. One EU licence grants a passport to operate across all 27 member states, replacing the old patchwork of national rules.

MiCA does not contain a specific, standalone staking exemption equivalent to the SEC’s statements. Staking-related activities generally fall under the broader licensing and conduct requirements applicable to Crypto-Asset Service Providers (CASPs). The MiCA framework emphasizes consumer protection, asset segregation, and transparent disclosure. Staking providers serving EU clients should generally obtain CASP authorization from a national competent authority.

United Kingdom

The UK has enacted a comprehensive cryptoasset regulatory framework. The Financial Services and Markets Act 2000 (Cryptoassets) Regulations 2026, enacted on 4 February 2026, establishes staking as an express regulated activity requiring FCA authorisation. The full regime goes live on 25 October 2027, with the FCA application gateway opening 30 September 2026.

Firms providing staking services to UK consumers may apply for authorisation between 30 September 2026 and 28 February 2027. In December 2025, the FCA published consultation papers addressing prudential requirements for staking firms. The FCA currently regulates crypto financial promotions, requiring FCA approval for all promotions targeting UK consumers. Staking service providers active in the UK may consider monitoring FCA developments closely through 2026.

Singapore and Hong Kong

On 7 April 2025, the Hong Kong Monetary Authority and the Securities and Futures Commission jointly issued guidance on staking services — the HKMA covering authorised institutions and the SFC covering licensed virtual asset trading platforms. 

Licensed platforms may be obliged to obtain prior SFC approval before offering staking, retain exclusive possession or control of all client assets involved in staking, and are explicitly prohibited from outsourcing staking to third-party service providers. On 11 April 2025, the SFC approved the first staking-enabled Ether spot ETF globally under this framework.

Singapore regulates digital asset activities under the Payment Services Act through the Monetary Authority of Singapore (MAS). Singapore has not issued a staking-specific statement equivalent to the SEC’s guidance, but its broader licensing regime for Digital Payment Token Service Providers generally applies to staking services.

The table below provides a high-level comparison across jurisdictions:

Jurisdiction	Staking-Specific Guidance	Framework	Key Requirement
United States	Yes.	Howey test; Commission-level interpretation: Release 33-11412	Administrative, non-discretionary model; digital commodity asset classification; no guaranteed rewards; custodian acts as agent
European Union	No staking-specific exemption, not listed	MiCA CASP authorisation regime; phased rollout	Full CASP authorisation from national competent authority; passporting available only to fully authorised CASPs; grandfathering deadline varies by member state, several already expired
United Kingdom	Yes.	FSMA, Cryptoassets Regulations 2026; FCA authorisation regime	FCA authorisation required; application gateway opens September 30, 2026; full regime go-live October 25, 2027; FCA promotion approval required now
Hong Kong	Yes.	SFC licensed VATP regime; HKMA regime for authorised institutions	Prior SFC approval required; full client asset control mandatory; outsourcing of staking to third parties prohibited
Singapore	No staking-specific guidance	MAS Payment Services Act; Major Payment Institution licensing	Digital Payment Token Service Provider licensing; staking activity analysis required under PSA on a facts-and-circumstances basis

What to Watch in 2026

Several developments may materially affect the staking regulatory landscape through 2026 and beyond.

Joint SEC-CFTC Project Crypto. The joint SEC-CFTC initiative known as Project Crypto is proceeding as a coordinated effort to harmonize federal oversight of crypto asset markets. Further guidance on asset classification and activity-specific rules may follow, potentially clarifying restaking and other edge cases.

Congressional legislation. The CLARITY Act, which addresses the jurisdictional split between the SEC and CFTC over digital assets, has advanced in Congress but has not yet been enacted. Passage could alter the regulatory framework for staking-related activities materially.

Restaking. Neither the Protocol Staking Statement nor the Liquid Staking Statement addresses restaking — the practice of pledging already-staked assets to additional protocols simultaneously. This remains an open legal question. Providers and participants in restaking protocols should treat the area as legally uncertain until further guidance is issued.

EU enforcement. Depending on the member state, the MiCA transitional grandfathering period can last until July 1, 2026, or until a provider is granted or denied authorization, whichever comes first. Post-July 2026, unregistered providers in the EU may face enforcement action. US-based staking providers with EU clients may consider planning for compliance ahead of this deadline.

State-level activity. US state securities regulators have not necessarily aligned with the federal staff guidance. Some states may take independent positions on staking as a securities activity. Providers should monitor state-level enforcement and rulemaking.

Frequently Asked Questions

Is staking a security under US law?

Under Release 33-11412 and the 2025 SEC staff statements, protocol staking of digital commodities on public PoS networks may not be considered securities transactions, provided the arrangement is administrative, non-discretionary, and involves no guaranteed rewards. 

What did the SEC say about protocol staking?

Release 33-11412 confirms that self-staking, self-custodial, custodial, and liquid staking of digital commodities on public PoS networks may not be securities transactions. Validators and custodians may perform administrative, not managerial, functions. Staking rewards generally constitute compensation for validation services, not investment profits.

What is a Covered Crypto Asset?

A Covered Crypto Asset is a crypto asset intrinsically linked to the programmatic functioning of a public, permissionless proof-of-stake network, used to participate in or maintain network consensus. 

Does SEC guidance apply to restaking?

These activities remain outside the scope of current SEC staking guidance.

Can US banks now offer staking services?

Staking is not expressly named as a permissible activity for US banks. OCC Interpretive Letters 1184 and 1186 confirm custody, execution, and network fee authority for national banks. Release 33-11412 confirms custodial staking of digital commodities is not a securities transaction.

Is the SEC guidance legally binding?

Release 33-11412 is titled as a final interpretive rule, effective March 23, 2026, binding on SEC staff in enforcement. Courts are not generally bound by it. The Release itself states it does not replace the Howey test and the Commission has reserved the right to revise it following public comment.

What staking arrangements may still pose legal risk?

Arrangements that introduce an independent profit promise by the intermediary, potentially satisfying the Howey expectation of profits prong regardless of whether the underlying staking activity is otherwise administrative. 

How Institutions Can Access Compliant Staking Infrastructure

For institutions seeking a validator and staking provider with the operational infrastructure to support compliant, institutional-grade staking, Everstake may warrant consideration.

Everstake operates compliant and scalable infrastructure across major proof-of-stake networks and is designed to support institutional volumes. Its approach prioritizes security, technical reliability, and regulatory alignment.

This article is for informational and educational purposes only. It does not constitute legal advice and should not be relied upon as such. The regulatory landscape for crypto assets is evolving rapidly. Readers should consult qualified legal counsel before taking any action based on this content.

Last reviewed: April 2026.

Disclaimer:

The information provided in this article is for general informational purposes only and does not constitute legal, regulatory, financial, or compliance advice. Nothing in this article should be relied upon as a substitute for professional legal counsel. The regulatory landscape described — including MiCA, GDPR, DORA, AML/CFT requirements, and related frameworks — is subject to ongoing development, and applicable rules may vary significantly depending on jurisdiction, business model, and individual circumstances. Readers should consult qualified legal, regulatory, and compliance professionals before making any decisions based on the information contained herein. Neither the author nor any affiliated party accepts liability for actions taken or not taken based on the contents of this article.