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U.S. Senate Republicans Unveil Comprehensive Framework to Exempt Digital Assets from Securities Laws
In the intensifying debate over the regulatory classification of digital assets, U.S. Senate Republicans have presented a foundational draft bill aimed at excluding certain digital assets from securities laws. The proposed legislation designates "ancillary assets," which encompass digital assets, as exempt from securities regulations—unless explicitly challenged by the Securities and Exchange Commission (SEC).
On October 18, prominent members of the U.S. Senate Banking Committee, including Chairman Tim Scott and Digital Assets Subcommittee Chair Cynthia Lummis, revealed the early version of the Responsible Financial Innovation Act. This legislation is intended to establish clear, actionable guidelines for digital assets and their issuers, offering much-needed regulatory clarity in the evolving digital economy.
What Are "Ancillary Assets"?
The draft legislation defines "ancillary assets" as intangible assets that are commercially tradable—such as digital assets—that are distributed or sold under investment contracts linked to securities. These assets do not confer financial rights to the issuer, such as dividends, ownership stakes, equity, or liquidation claims. In effect, ancillary assets resemble investments in structure without offering equity-like privileges.
A key aspect of the draft is that issuers of ancillary assets can exempt them from securities laws by affirming, via filings submitted to the SEC, that these assets confer no financial claims on issuers. If the SEC does not object within a 60-day period, such assets would not fall under securities regulations.
Relief for Smaller-Scale Ancillary Assets
The proposed bill offers relaxed disclosure requirements for smaller-scale ancillary assets that meet specific conditions. Specifically, assets with an average daily trading volume of less than $5 million over the preceding 12 months would qualify for these exemptions. By contrast, those exceeding this trading threshold would face regulatory disclosure obligations within 90 days after the fiscal year-end following the law’s passage.
Issuers of larger ancillary assets would need to adhere to semiannual SEC filing requirements that include:
- Information on the issuer’s business experience, financial plans, and current financial condition.
- Risks associated with the ancillary asset.
- Comprehensive technical and economic descriptions of the asset.
- Data on market liquidity and major asset holders.
- Details of any ongoing legal disputes involving the asset.
- Reports on audits of the asset's source code.
Issuers engaging in fraudulent disclosures or providing misleading information could face civil liabilities under existing securities laws. The draft also includes safe-harbor protections for forward-looking statements, shielding issuers from liabilities if projections or predictions fail to materialize.
Issuer Responsibilities and Foreign Entity Compliance
The legislative proposal formally defines "issuers" as entities involved in the original issuance or sale of ancillary assets, or those engaged in similar activities within 12 months of issuance. Moreover, secondary entities holding a substantial share of the initial issuer's assets would likewise qualify as issuers under the law.
Foreign-based issuers, classified as entities headquartered outside U.S. territory, would come under domestic jurisdiction if they meet certain criteria. For instance, the entity would be subject to U.S. oversight if it is established by U.S. individuals or organizations, conducts substantial business operations in the U.S., has more than 50% ownership by U.S. residents, or if the majority of the executive team resides in the United States.
A Step Toward Modernizing U.S. Securities Regulations
The bill also includes forward-looking provisions aimed at updating the SEC’s regulatory framework to align with modern financial innovations. Specifically, it introduces "innovation" alongside "efficiency" as guiding principles for interpreting U.S. securities regulations under prominent legislation such as the 1933 Securities Act and the 1940 Investment Company Act. Furthermore, the proposal encourages the adoption of distributed ledger technology for recordkeeping by brokers, securities exchanges, investment firms, and asset managers under the Securities Exchange Act and related guidelines.
Implications for the Digital Asset Landscape
This preliminary legislative framework marks a significant step in the ongoing effort to provide regulatory clarity for digital assets within the United States. By establishing clear parameters for ancillary assets, the proposed law signals a shift toward balancing innovation with investor protections. However, the bill's ultimate form will likely be influenced by the legislative process, potential challenges from opposing lawmakers, and feedback from regulatory bodies such as the SEC.
As the digital economy continues to evolve, this legislation could reshape the U.S. regulatory environment, ensuring that digital assets operate within a legal framework that fosters both innovation and transparency.
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