Mr. Speaker, I thank Chairman McHenry for yielding. I am pleased to speak in support of my bipartisan resolution, H.J. Res. 109, a Congressional Review Act resolution for the SEC's Staff Accounting Bulletin No. 121, or SAB 121 for short. I…
Mr. Speaker, I thank Chairman McHenry for yielding.
I am pleased to speak in support of my bipartisan resolution, H.J. Res. 109, a Congressional Review Act resolution for the SEC's Staff Accounting Bulletin No. 121, or SAB 121 for short.
I thank Congressman Nickel and Senator Lummis for working with me on this resolution and for the chairman's leadership in getting this to the floor.
This is something of a complicated issue, as you have heard today, so I will break it down into a few different components.
First, I will begin by explaining what a staff accounting bulletin is. Staff accounting bulletins are technical accounting guidance for public entities. They are typically noncontroversial in nature and, importantly for this debate, are not rules. Guidance is not supposed to dictate a major change in policy. That is what our notice-and-comment rulemaking process is for.
This specific bulletin effectively requires banks to put digital assets held in custody on their balance sheet. Simply put, that is not how custody usually works.
As a Federal Reserve Chairman once said: ``Custody assets are off balance sheet, always have been.''
This bulletin upends custodial practice for banks, and it effectively keeps banks out of this market entirely. That is not good for consumers or investors.
Next, let's talk about the process, as the chairman has already mentioned. There were two major process fouls by the SEC in issuing SAB 121.
Number one, the SEC is not a bank regulator, and SAB 121 affects a core banking activity: custody. Yet, the SEC issued this bulletin without even talking to the regulators first. Think about that. The SEC issued this without even talking to the prudential regulators. That is an incredible oversight, particularly given the bulletin's unusual treatment of custodial assets.
Number two, the nonpartisan Government Accountability Office determined that this bulletin is effectively a rule. In other words, the SEC got caught trying to circumvent the APA and the due diligence requirements that come with it.
Now, let's talk about solutions. The easiest way to fix this problem is for the SEC to simply rescind the bulletin themselves and work with the prudential regulators on an alternate solution.
Despite the fact that this bulletin was issued through a faulty process and despite the negative ramifications of keeping banks from taking custody of retail investor assets, the SEC has been unwilling to have any conversation about making changes.
That leaves us with no choice. Congress needs to act through the Congressional Review Act to rescind SAB 121.
Finally, let me briefly address an argument that Ranking Member Waters and some of my Democratic colleagues have made on this issue. I have heard this argument that the CRA should not be applied to an accounting bulletin, but let's contemplate the alternative. What are the implications if we fail to pass this resolution?
This is an instance where the nonpartisan GAO outright said the SEC circumvented the proper regulatory process.
Mr. Speaker, think about why the Congressional Review Act was passed in the first place: to give Congress the ability to check a regulator that has gone astray. If we don't pass this resolution, we are effectively giving the green light to our regulators to bypass the APA rulemaking process with impunity.
This isn't just about the SEC or bank custody. This is about providing a necessary check to executive branch power. Regardless of your feelings on the banking policy or the SEC, I urge my colleagues to support this resolution for the sake of upholding the authority of the institution we serve in.
Mr. Speaker, I include in the Record four letters.
Number one is a letter dated April 27, 2023, sent by Fed Vice Chair Michael Barr to Senator Lummis, discussing the impact of SAB 121 on Fed-regulated financial institutions.
Number two is a letter dated April 18, 2023, sent by FDIC Chairman Gruenberg to Chairman McHenry and Senator Lummis, in response to their March 2, 2023, letter.
Number three is a letter dated February 28, 2024, sent by the Conference of State Bank Supervisors to Chairman McHenry and Ranking Member Waters, outlining the unintended effects SAB 121 could pose on consumers and markets.
Board of Governors of the
Federal Reserve System,
Washington, DC, April 27, 2023.
Hon. Cynthia M. Lummis,
U.S. Senate,
Washington, DC.
Dear Senator: Thank you for your letter dated March 2,
2023, regarding the Securities and Exchange Commission (SEC)
Staff Accounting Bulletin 121 (``SAB 121'') published on
April 11, 2022.
As you know, the Federal Reserve is not responsible for the
general accounting policy for public companies and, as such,
Federal Reserve staff were not consulted by the SEC regarding
the development and issuance of SAB 121. For accounting and
reporting purposes under U.S. generally accepted accounting
principles (GAAP), assets held in custody are generally not
recognized on the custodian's balance sheet--as the custodian
does not control the assets--and we defer to the SEC on these
matters. However, I would note that state member banks may
provide safekeeping services, in a custodial capacity, for
crypto-assets if conducted in a safe and sound manner and in
compliance with consumer, anti-money laundering, and anti-
terrorist financing laws.
By law, regulatory reports and statements required to be
filed with Federal banking agencies by all insured depository
institutions must be uniform and consistent with U.S. GAAP.
In light of SAB 121, the Federal Financial Institutions
Examination Council (FFIEC) issued supplemental instructions
to the Call Report related to SAB 121. The supplemental
instructions state that an institution that determines that
it is appropriate for it to apply SAB 121 for SEC or other
financial reporting purposes should complete its Call Report
consistent with the classification determination made for SEC
or other financial reporting purposes. Institutions are
encouraged to consult with SEC staff on the scope and
applicability of SAB 121.
The Basel Committee's prudential treatment of crypto-asset
exposures applies to various types of exposures to banks,
such as exposures held as securities on balance sheet or
through derivatives. However, the Basel standard does not
generally apply to custodial assets.
The Federal Reserve continues to take a careful and
cautious approach related to current or proposed crypto-
asset-related activities at each banking organization and
will continue to ensure that legally permissible activities
are conducted in a manner that is safe and sound, and in
compliance with applicable laws and regulations, including
those designed to protect consumers.
Sincerely,
Michael S. Barr.
Mr. Speaker, number four is a letter dated February 29, 2024, sent by the American Bankers Association to Chairman McHenry and Ranking Member Waters, expressing support for H.J. Res. 109.
American Bankers Association,
Washington, DC, February 29, 2024.
Re Providing for congressional disapproval under chapter 8 of
title 5, United States Code, of the rule submitted by the
Securities and Exchange Commission relating to ``Staff
Accounting'' Bulletin No. 121'' (H.J. Res. 109).
Hon. Patrick McHenry,
Chairman, Committee on Financial Services,
House of Representatives, Washington, DC.
Hon. Maxine Waters,
Ranking Member, Committee on Financial Services, House of
Representatives, Washington, DC.
Dear Chairman McHenry and Ranking Member Waters: The
American Bankers Association (ABA) welcomes and supports H.J.
Res. 109, the Congressional Review Act resolution of
disapproval for the Securities and Exchange Commission
``Staff Accounting Bulletin 121.'' which was recently
introduced by Reps. Mike and Flood (R-NE) and Wiley Nickel
(D-NC).
Adverse Impact of SAB 121 on Bank Digital Asset Products and Services
In March 2022, the Securities and Exchange Commission (SEC)
released Staff Accounting Bulletin 121 (SAB 121) to address
perceived risks to publicly traded companies that safeguard
crypto assets for their customers. Under SAB 121, an entity
responsible for safeguarding cryptocurrency assets for
platform users must present a liability on its balance sheet
at fair value to reflect that obligation, as well as a
corresponding asset. SAB 121 is a departure from the banking
industry's historical practice of treating custody assets
off-balance sheet, and this accounting treatment effectively
precludes banks from offering digital asset custody at scale
since placing the value of client assets on balance sheet
will impact prudential requirements such as capital,
liquidity, and other mandates.
On February 14, 2024, ABA joined with several other
financial trades in a joint letter to the SEC. In the letter,
we noted that U.S. banking organizations' experience over the
past two years with SAB 121 shows that it has curbed the
ability of our members to develop and bring to market at
scale certain digital asset products and services. We gave
two concrete examples:
(1) Spot Bitcoin ETPs
The Commission recently approved Spot Bitcoin Exchange
Traded Products (ETPs), allowing investors access to this
asset class through a regulated product. However, notably
absent from those approved products are banking organizations
serving as the asset custodian, a role they regularly play
for most other ETPs. These ETPs have already experienced
billions of dollars in inflows, but it is practically
impossible for banks to serve as custodian for those ETPs at
scale due to the Tier 1 capital ratio and other reserve and
capital requirements that result from SAB 121. This raises
important questions about the safety and stability of this
ecosystem.
We believe that this result could raise concentration risk,
as one nonbank entity now serves as the custodian for the
majority of these ETPs. That risk can be mitigated if
prudentially regulated banking organizations have the same
ability to provide custodial services for Commission
regulated ETPs as qualified nonbank asset custodians. SAB 121
does not appear to contemplate this type of concentration
risk, in part perhaps because Spot Bitcoin ETPs or similar
products were not an approved product at the time SAB 121 was
issued.
(2) Use of DLT to record traditional financial assets
Banking organizations are increasingly exploring the use of
Distributed Ledger Technology (DLT) to record traditional
financial assets, such as bonds. The use of DLT has the
potential to expedite and automate payment, clearing,
reconciliation and settlement services, and multiple central
banks outside the United States are partnering with banks to
explore the adoption of DLT. However, SAB 121 has proven to
be a barrier to banking organizations' ability to
meaningfully engage in DLT-based projects due to the breadth
of the definition of ``crypto-asset'' in SAB 121: ``a digital
asset that is issued and/or transferred using distributed
ledger or blockchain technology using cryptographic
techniques.''
Under this definition, a traditional financial asset issued
or transferred using DLT could be considered a ``crypto
asset'' and thus within scope of SAB 121, regardless of the
applicable risks. SAB 121 makes no distinction between asset
types and use cases, but instead generally states that
crypto-assets pose certain technological, legal, and
regulatory risks requiring on-balance sheet treatment.
However, there are significant differences between a
cryptocurrency like Bitcoin that exists on a public,
permissionless network versus a traditional financial
instrument that is recorded on a blockchain network where
access is controlled and transactions can be cancelled,
corrected, or amended.
The past two years have underscored these differences, as
the turmoil in the crypto market has been wholly unrelated to
banks' use of permissioned DLT. DLT does not change the
underlying nature or risks of traditional assets, nor do they
present the risks SAB 121 purports to address, and thus SAB
121's application to those assets should be reconsidered.
Clear indication from the Commission that the use of DLT to
record or transfer traditional financial assets is
consistently outside the scope of SAB 121 would alleviate
associated challenges.
In the February 14 letter, we made several recommendations
for changes to SAB 121
that would mitigate the specific challenges identified above
without undermining the stated policy objectives of the SEC
to enhance the information received by investors and other
users of financial statements. We also asked for a meeting to
discuss those changes, but as yet have not had a response
from the SEC.
Adverse Consequences for Consumers
Banks have long provided safe and well-regulated custody
services to investors for securities and other assets.
However, the implications of SAB 121 mean few banks are
currently offering custody services for digital assets,
leaving consumers with few options for a safe, well-regulated
custody service for digital assets.
In fact, many have turned to non-bank market entrants that
are not subject to prudential regulation and examination and
are not subject to robust capital and liquidity requirements.
This unregulated activity can expose consumers and
counterparties to significant harm.
Conclusion
We applaud Representatives Flood and Nickel for their
leadership on this important issue. The SEC's Staff
Accounting Bulletin 121 represents a significant departure
from longstanding accounting treatment for custodied assets
and threatens the banking industry's ability to provide its
customers with safe and sound custody of digital assets,
Limiting banks' ability to offer these services leaves
consumers with few well-regulated, trusted options for their
digital asset portfolios and ultimately exposes them to risk.
We encourage you and your membership to favorably report
this resolution out of the Committee. We would be pleased to
meet with you and your staff to discuss how Staff Accounting
Bulletin 121 inhibits consumer access to safe, sounds access
to digital asset custody services.
Sincerely,
Kirsten Sutton,
Executive Vice President,
American Bankers Association.