Mr. Speaker, I thank the chairman for his leadership on this issue. Mr. Speaker, I stand in front of you today to support my friend and colleague from Nebraska (Mr. Flood) and his CRA resolution to…
Mr. Speaker, I thank the chairman for his leadership on this issue.
Mr. Speaker, I stand in front of you today to support my friend and colleague from Nebraska (Mr. Flood) and his CRA resolution to nullify the SEC's Staff Accounting Bulletin Number 121 which would eviscerate financial institutions' ability to provide custodial services for digital asset firms.
In theory, under SAB 121, a bank could custody digital assets. However, the conditions set forth by SAB 121 make it impractical for any bank. This very fact has been noted by Federal Reserve Board Chair Powell who acknowledged it shifts away from traditional custodial practices as custodial assets receive off-balance-sheet treatment.
SAB 121 overturns decades of precedent regarding the accounting assets for banks. If a bank decides to custody digital assets and adhere to SAB 121, then the on-balance-sheet requirement would have significant capital, liquidity, and other prudential consequences. This makes it difficult, at best, for regulated institutions to safeguard digital assets.
The fact is that technological, legal, and regulatory risks cited in SAB 121 are already addressed by the legal and regulatory framework that applies to banks' custodial activities. Yet, SAB 121 did not account for that.
Moreover, and disturbingly, the SEC did not consult with any of the prudential regulators before issuing this flawed guidance. Unfortunately, the failure to consult the regulators overseeing institutions that are largely impacted by an SEC proposal has become quite common under Chair Gensler.
The SEC does not have the expertise to assess the same risks as the prudential regulators, and it is not the role of Gary Gensler to propose misguided rulemakings and guidance that may have major adverse implications to the functioning of our financial institutions, and ultimately to the safety and soundness of our financial system.
Given the implications for financial institutions' ability to safeguard assets under this rule and the clear lack of understanding regarding their prudential standards and guidance from their primary regulators, this rule is fatally flawed.
The fact of the matter is to the extent there is concern about a lack of regulation, if there is concern about a lack of regulatory clarity or risk with crypto, then we should not make it impossible, as a practical matter, for well-regulated banks to protect Americans who own digital assets with custody services.
Mr. Speaker, if you want to protect customers and if you want to protect investors in digital assets, then we shouldn't be pushing crypto transactions into less transparent and more opaque, riskier offshore places, but that is exactly what SAB 121 would do.
I have to address this issue. Silicon Valley Bank's failure had to do with deposit concentration risk and interest rate mismanagement. It had nothing to do with the fact that many of its customers were technology firms or worked in the blockchain space. It had nothing to do with that. That is a red herring.
This is why I support Mr. Flood's measure, I support the bipartisan work, and I encourage my colleagues to support it as well.
Mr. Speaker, I thank the gentleman for yielding.
In conclusion, Mr. Speaker, I include in the Record a letter dated March 2, 2023, cosigned by Chairman McHenry and Senator Lummis sent to the Fed, OCC, FDIC, and NCUA asking them about SAB 121's impact on regulated entities, and also asking if they were consulted prior to SAB 121's issuance.
Congress of the United States,
Washington, DC, March 2, 2023.
Re Prudential Impact of Staff Accounting Bulletin 121.
Hon. Michael Barr,
Vice Chair for Supervision, Board of Governors of the Federal
Reserve System, Washington, DC.
Mr. Michael Hsu,
Acting Comptroller, Office of the Comptroller of the
Currency, Washington, DC.
Hon. Marty Gruenberg,
Chairman of the Board, Federal Deposit Insurance Corporation,
Washington, DC.
Hon. Todd Harper,
Chairman of the Board, National Credit Union Administration,
Alexandria, VA.
Dear Vice Chair Barr, Chairman Gruenberg, Chairman Harper,
and Mr. Hsu: We write regarding Securities and Exchange
Commission (SEC) Staff Accounting Bulletin 121 (``SAB 121'')
published on April 11, 2022. SAB 121 was intended to clarify
the accounting treatment of digital assets safeguarded by
custodians, exchanges, and other platforms engaged in digital
asset activities. However, SAB 121 places customer assets at
greater risk of loss if a custodian becomes insolvent or
enters receivership, violating the SEC's fundamental mission
to protect customers.
Our concern stems from SAB 121's directive that companies
recognize a liability and a corresponding offset on their
balance sheets, measured at the fair value of the customer
custodial digital assets. A recent decision in the Celsius
bankruptcy, which classified all Celsius' customers as
unsecured creditors, and therefore at the back of the line to
recover their assets, highlights the legal risk of
effectively forcing customer custodial assets to be placed on
balance sheet. Additionally, SAB 121 upends decades of
precedent regarding the accounting treatment of custodial
assets for banks, credit unions and other regulated financial
institutions.
Federal Reserve Board Chair Powell noted this shift away
from traditional custodial practices in testimony before the
Senate Banking Committee on June 22, 2022. Typically,
custodial assets receive off-balance sheet accounting
treatment. This is largely because customers retain ownership
of their custodial assets and financial institutions are not
permitted to conduct proprietary trading with customer
assets. As emphasized in comment letters, SAB 121 ``deviates
from existing accounting treatment of safeguarded assets held
in a custodial capacity, which does not result in assets or
liabilities reported on the custodian's balance sheet.''
Furthermore, the breadth of the ``digital asset''
definition in SAB 121 covers any ``digital asset that is
issued and/or transferred using distributed ledger or
blockchain technology using cryptographic techniques.'' The
scope of assets covered by this broad definition, whether
virtual currency, stablecoins, or even tokenized equities, is
unclear. This is concerning because a more nuanced hierarchy
for this asset class which considers the opportunities and
risks of digital assets with different functions is
necessary. For example, the Bank for International
Settlements' Prudential Treatment of Crypto Assets framework
differentiates between various types of digital assets for
bank capital purposes.
Since SAB 121 purports to require banks, credit unions and
other financial institutions to effectively place digital
assets on their balance sheets, it would trigger a massive
capital charge. This in turn is likely to prevent these
prudentially regulated entities from engaging in digital
asset custody. To the contrary, we should be encouraging
prudentially regulated financial institutions, like banks and
credit unions, to provide digital asset services precisely
because they are subject to the highest standards of capital,
liquidity, recovery and resolution, custody, cyber-security,
and risk management.
In sum, the effect of SAB 121 is to deny millions of
Americans access to safe and secure custodial arrangements
for digital assets. For these reasons, please respond to the
following questions regarding the impact of SAB 121 on banks,
credit unions, and other financial institutions:
(1) Was your agency contacted by the SEC prior to the
issuance of SAB 121? If so, please identify the staff members
consulted by the SEC and provide copies of written feedback,
if any, provided to SEC staff.
(2) Has the SEC indicated that it will modify or withdraw
SAB 121 in light of widespread comments that the Bulletin is
flawed?
(3) What are the legal and supervisory reasons off-balance
sheet treatment of custodial assets has historically been the
norm for banks and credit unions?
(4) Has your agency directed banks and other financial
institutions within your jurisdiction to comply with the
terms of SAB 121 for the purposes of capital adequacy,
business plan change approvals, reporting and other
supervisory matters? If not, do you plan to do so?
(5) Does SAB 121 conflict with your agency's input
regarding the Basel Committee on Bank Supervision's
Prudential Treatment for Crypto Asset exposures, in so far as
the definition of ``digital asset'' under SAB 121 also
encompasses Group 1a, Group 1b, and Group 2 digital assets
under the Prudential Treatment framework?
(6) Do you agree that the capital charge for banks, credit
unions, and other financial institutions under SAB 121 is
prohibitive?
(7) Do you agree that SAB 121 potentially weakens consumer
protection by preventing well-regulated banks, credit unions,
and other financial institutions from providing custodial
services for digital assets?
We would appreciate a response no later than March 16,
2023. Thank you for your attention to this matter.
Sincerely,
Sen. Cynthia M. Lummis,
Senate Banking Committee.
Rep. Patrick McHenry,
Chairman, House Financial Services Committee.
Mr. Speaker, I include in the Record a letter dated April 6, 2023, sent by OCC Acting Comptroller Hsu to Chairman McHenry and Senator Lummis in response to their March 2, 2023, letter.
Office of the Comptroller
of the Currency,
April 6, 2023.
Hon. Cynthia Lummis,
Committee on Banking, Housing, and Urban Affairs, U.S.
Senate, Washington, DC.
Hon. Patrick McHenry,
Chairman, Committee on Financial Services, U.S. House of
Representatives, Washington, DC.
Dear Senator Lummis and Chairman McHenry: Thank you for
your letter dated March 2, 2023, concerning the impact of the
Securities and Exchange Commission (SEC) Staff Accounting
Bulletin Number 121 (SAB 121) on institutions regulated by
the Office of the Comptroller of the Currency (OCC).
The OCC recognizes that the SEC plays an important role in
developing financial reporting standards applicable to
publicly listed companies in the United States. Federal law
(12 U.S.C.1831n) requires all national banks and federal
savings associations to follow reporting standards that are
no less stringent than U.S. Generally Accepted Accounting
Principles (GAAP), regardless of public listing status. We
understand that these institutions, in consultation with
their auditors, are analyzing the intersection of SAB 121 and
GAAP. The OCC is monitoring these discussions.
Please see responses below to your specific questions.
(1) Was your agency contacted by the SEC prior to the
issuance of SAB 121? If so, please identify the staff members
consulted by the SEC and provide copies of written feedback,
if any, provided to SEC staff.
The SEC did not consult with the OCC prior to the issuance
of SAB 121.
(2) Has the SEC indicated that it will modify or withdraw
SAB 121 in light of widespread comments that the Bulletin is
flawed?
The OCC has not participated in any communications with the
SEC in which the SEC indicated it would modify or withdraw
Mr. Speaker, I also include in the Record a letter dated March 16, 2023, sent by NCUA Chairman Harper in response to Chairman McHenry's and Senator Lummis' March 2, 2023, letter.
National Credit
Union Administration,
Alexandria, VA, March 16, 2023.
Hon. Patrick McHenry,
Chairman, U.S. House Committee on Financial Services, U.S.
House of Representatives, Washington, DC.
Dear Chairman McHenry: Thank you for contacting the
National Credit Union Administration about the implementation
of Staff Accounting Bulletin 121. The increase in consumers
and businesses using digital assets, including
cryptocurrency, has impacted the financial services industry,
which includes both credit unions and banks. It is therefore
important to develop a balanced policy approach to address
emerging risks to the safety and soundness of federally
insured credit unions.
Your letter requests responses to several questions, which
reflect the NCUA's supervisory role over federally insured
credit unions. Our responses follow.
(1) Was your agency contacted by the SEC prior to the
issuance of SAB 121? If so, please identify the staff members
consulted by the SEC and provide copies of written feedback,
if any, provided to SEC staff.
The NCUA was not contacted.
(2) Has the SEC indicated that it will modify or withdraw
SAB 121 in light of widespread comments that the Bulletin is
flawed?
The NCUA is not aware of the SEC's intent to modify or
withdraw SAB 121.
(3) What are the legal and supervisory reasons off-balance
sheet treatment of custodial assets has historically been the
norm for banks and credit unions?
The off-balance sheet treatment of custodial assets is
rooted in generally accepted accounting principles, or GAAP
for short. The GAAP standard evolved from the concept of the
principal agent relationship, where the reporting of an asset
belonged to the entity that controlled the asset and
ownership rights were not passed to the custodian. As the
custodian did not have ownership rights--that is, the ability
to buy, sell, or leverage the asset--the custodian did not
report those types of assets in its financial statements. The
concept is codified in the Accounting Standards Codification
Topic 860 Transfers and Servicing, where ``transfers of the
custody of financial assets for safekeeping'' is excluded
from accounting for transfers and servicing of financial
assets.
(4) Has your agency directed banks and other financial
institutions within your jurisdiction to comply with the
terms of SAB 121 for the purposes of capital adequacy,
business plan change approvals, reporting and other
supervisory matters? if not, do you plan to do so?
The NCUA has not directed credit unions to comply with SAB
121 for any purpose. SAB 121 is a requirement of public
registrants and does not apply to credit unions, which are
cooperatively owned by their members.
(5) Does SAB 121 conflict with your agency's input
regarding the Basel Committee on Bank Supervision's
Prudential Treatment for Crypto Asset exposures, in so far as
the definition of ``digital asset'' under SAB 121 also
encompasses Group 1a, Group 1b, and Group 2 digital assets
under the Prudential Treatment framework?
The NCUA is neither a member of the Basel Committee nor
does it provide input on Bank Supervision's Prudential
Treatment for Crypto Asset exposures.
(6) Do you agree that the capital charge for banks, credit
unions, and other financial institutions under SAB 121 is
prohibitive?
If SAB 121 is eventually applied to nonpublic entities, it
will have implications for assessing the adequacy of an
insured credit union's net worth. If a credit union functions
as a digital asset custodian and is required to reflect the
digital assets held in custody on its balance sheet, the
credit union's net worth ratio would be negatively impacted
as the institution's assets would increase without a
commensurate increase in the net worth.
(7) Do you agree that SAB 121 potentially weakens consumer
protection by preventing well-regulated banks, credit unions,
and other financial institutions from providing custodial
services for digital assets?
Prior to the release of SAB 121, the NCUA issued a Letter
to Credit Unions on Relationships with Third Parties that
Provide Services to Digital Assets. As stated in that letter,
the NCUA would not take exception to credit unions partnering
with third parties to make digital asset services available
to members. That letter also outlines the NCUA's expectations
that credit unions conduct adequate due diligence and ensure
compliance with all applicable laws and regulations when
engaging in any such activity. The NCUA is not able to
determine the impact of adopting SAB 121 at publicly traded
financial institutions that offer custody services of digital
assets and cannot make a broad determination of the impact on
consumer protection.
Thank you for raising this issue with the NCUA. If you have
additional questions, please feel free to contact me or have
your staff contact Elizabeth Eurgubian in our Office of
External Affairs and Communications.
Sincerely,
Todd M. Harper,
Chairman.