SharkTeam：美国众议院 FIT21 法案解读

Written by: SharkTeam

On May 23, 2024, the U.S. House of Representatives officially passed the FIT21 Crypto Act (Financial Innovation and Technology for the 21st Century Act) with 279 votes in favor and 136 votes against. U.S. President Biden announced that he would not veto the bill and called on Congress to cooperate on a "comprehensive and balanced regulatory framework for digital assets."

FIT21 aims toBlockchain项目在美国的Safety有效启动提供途径，明确美国证券交易委员会（SEC）与商品期货交易委员会（CFTC）之间的职责界限，区分数字资产是证券还是商品，加强对cryptocurrencyexchangeregulation to better protect American consumers.

一、FIT21 法案包含哪些重要内容

1.数字资产的定义

IN GENERAL.—The term 'digital asset' means any fungible digital representation of value that can be exclusively possessed and transferred, person to person, without necessary reliance on an intermediary, and is recorded on a cryptographically secured public distributed ledger.

The bill defines "digital assets" as an exchangeable digital representation that can be transferred from person to person without relying on an intermediary and recorded on a cryptographically protected public distributed ledger. This definition includes a wide range of digital forms, fromcryptocurrency到Token化的实体资产。

2.数字资产的分类

The bill proposes several key elements to distinguish whether digital assets are securities or commodities:

(1) Investment Contract (The Howey Test)

If the purchase of a digital asset is considered an investment and the investor expects to make a profit through the efforts of the entrepreneur or a third party, the asset is generally considered a security based on the standard established by the U.S. Supreme Court in SEC v. WJ Howey Co., commonly known as the Howey test.

(2) Use and consumption

如果数字资产主要被用作消费品或服务的媒介，而不是作为投资来期待资本增值，如Token可用于购买特定服务或产品，虽然在实际市场中，这些资产也可能被投机性购买和持有，但从设计和主要用途的角度来看，它可能不会被归类为证券，而是作为一种商品或其他非证券资产。

(3) Degree of decentralization

The Act specifically emphasizesBlockchainThe degree of decentralization of the network. If the network behind a digital asset is highly decentralized, with no centralized authority controlling the network or the asset, the asset may be more likely to be considered a commodity. This is important because there are key differences between the definitions of "commodities" and "securities," which have implications for how they are regulated.

The U.S. Commodity Futures Trading Commission (CFTC) will regulate digital assets as a commodity, “if it operatesBlockchainOr digital ledgers are functional and decentralized."

The U.S. Securities and Exchange Commission (SEC) will regulate a digital asset as a security “if its associated blockchain is functional but not strictly decentralized.”

The bill defines decentralization as “no one person has unilateral control over the blockchain or its use, and no issuer or associated person controls more ownership or voting rights in the digital asset, among other requirements.”

The specific criteria for defining the degree of decentralization are as follows:

• 控制权和影响力：在过去 12 个月内，没有任何个人或实体具有单方面的权力，直接或通过contract、安排或其他方式，来控制或实质性改变区块链系统的功能或运作。

• Ownership Distribution: In the past 12 months, no individual or entity associated with the digital asset issuer has a combined ownership of more than 20% of the total digital asset issued.

• Voting and Governance: No individual or entity associated with the digital asset issuer has been able to unilaterally direct or influence the voting power of more than 20% of the digital asset or related decentralized governance system in the past 12 months.

• 代码贡献和修改：在过去 3 个月内，数字资产发行者或相关人员没有对区块链系统的源代码进行过实质性的、单方面的修改，除非这些修改是为了解决Safety漏洞、维护常规、防范网络Safety风险或其他技术改进。

• Marketing and Promotion: In the past 3 months, the digital asset issuer and its affiliates have not marketed the digital asset to the public as an investment.

Among these definition criteria, the more rigid ones are the distribution of ownership and governance rights. The boundary line of 20% is of great significance for the definition of digital assets as securities or commodities. At the same time, because of the openness, transparency, traceability and non-tamperability of blockchain, the quantification of this definition standard will become clearer and fairer.

(4) Functions and technical characteristics

The connection between digital assets and the underlying blockchain technology is also one of the important factors in determining the direction of regulation. This connection usually includes how digital assets are created, issued, traded and managed:

• Asset issuance: Many digital assets are issued through the programmatic mechanism of blockchain, which means that their creation and distribution are based on preset algorithms and rules rather than human intervention.

• Transaction verification: Transactions of digital assets need to be verified and recorded through the consensus mechanism in the blockchain network to ensure the correctness and immutability of each transaction.

• 去中心化治理：部分数字资产项目实现了去中心化治理，持有特定Token的用户可以参与到项目的决策过程中，比如对项目未来发展方向的投票。

These characteristics directly affect how assets are regulated. If digital assets primarily provide economic returns through automated processes on the blockchain or allow voting to participate in governance, they may be considered securities because it indicates that investors are expecting to gain benefits through management or corporate efforts. If digital assets function primarily as a medium of exchange or are used directly to obtain goods or services, they may be more likely to be classified as commodities.

3.数字资产的推广与销售

How digital assets are promoted and sold in the market is also an important part of FIT21. If a digital asset is marketed primarily through the expected return on investment, it may be considered a security. The content here is extremely important because it regulates the regulatory framework for digital assets and will affect what the next digital asset that may be available through a spot ETF will be.

(1) Registration and supervision responsibilities

There are two definitions of digital assets: digital commodities and securities. The bill stipulates that the supervision of digital assets will be jointly responsible by two main agencies, depending on the definition:

• Commodity Futures Trading Commission (CFTC): Responsible for regulating digital commodity trading and related market participants.

• Securities and Exchange Commission (SEC): Responsible for regulating digital assets that are deemed to be securities and the platforms on which they are traded.

(2) Lock-up period for token insiders

法案原文：”A restricted digital asset owned by a related person or an affiliated person may only be offered or sold after 12 months after the later of— (A) the date on which such restricted digital asset was acquired; or (B) the digital asset maturity date.”

The clause requires that insiders’ token holdings be locked up for at least 12 months from the date of acquisition, or 12 months from the defined “digital asset maturity date”, whichever is the later.

This ability to delay sales helps prevent insiders from taking advantage of undisclosed information or unfairly influencing market prices. By aligning the interests of insiders with the long-term goals of the project, it helps avoid speculation and market manipulation, helping to create a more stable and fair market environment.

(3) Restrictions on sales of digital assets by related parties

法案原文：”Digital assets may be sold by an affiliated person under the following conditions: (1) The total volume of digital assets sold by the person does not exceed 1% of the outstanding vXiaobai Navigationolume in any three-month period; (2) the affiliated person must immediately report to the Commodity Futures Trading Commission or the Securities and Exchange Commission any order to sell more than 1% of the outstanding volume.”

Digital assets may be sold by related persons in the following circumstances:

• In any 3-month period, the total amount of digital assets sold shall not exceed 1% of the stock;

• A related person must immediately report to the Commodity Futures Trading Commission or the Securities and Exchange Commission any orders to sell in excess of 1% in stock.

This measure ensures market stability and health by limiting the amount of sales by related persons in a short period of time, preventing market manipulation and excessive speculation.

(4) Project information disclosure requirements

法案原文：”Digital asset issuers must disclose the information described in Section 43 on a public website prior to selling digital assets under Section 4(a)(8).”

The specific information required by the project disclosure is not detailed in the excerpt provided, but will typically include:

• The nature of the digital asset: what the digital asset represents (e.g., shares in a company, rights to future earnings, etc.);

• Related risks: potential risks involved in investing in this digital asset. ;

• Development Status: The current status of the project or platform related to the digital asset, such as development milestones or market readiness;

• Financial information: any financial details or forecasts related to the digital asset;

• Management team: Information about the people behind the project or company that issues the digital asset.

The bill requires digital asset issuers to provide detailed project information, including the nature, risks, and development status of the assets, so that investors can make informed investment decisions. This move enhances market transparency and protects the interests of investors.

（5）客户资金Safety隔离原则

法案原文：”Digital commodity exchanges shall hold customer funds, assets, and property in a manner that minimizes the risk of loss or unreasonable delay in access by customers to their funds, assets, and property.”

This regulation requires digital asset service providers to take measures to ensure the security of customer funds and prevent customer fund loss or access delays due to operational problems of the service provider.

(6) Customer funds and company operating funds must not be mixed

法案原文：”Funds, assets, and property of a customer shall not be commingled with the funds of the digital commodity exchange or be used to secure or guarantee the trades or balances of any other customer or person.”

This means that service providers must strictly separate customer funds from company operating funds to ensure the independence of customer funds, avoid using customer funds for unauthorized activities, and enhance the security and transparency of funds.

In certain operations, such as for settlement convenience, it is allowed to deposit customer funds and funds of other institutions in the same account if it complies with regulations. However, it is necessary to ensure the separate management and proper record of these funds to ensure the safety of each customer's funds and property.

二、鼓励创新、支持创新

The FIT21 Act also contains many provisions that encourage and support innovation.

（1）建立 CFTC-SEC 联合咨询委员会

The CFTC-SEC Joint Advisory Committee on Digital Assets was established to:

• Advise the Commission on its rules, regulations, and policies related to digital assets;

• Further promote regulatory coordination on digital asset policies among the Commissions;

• Research and disseminate methods for describing, measuring, and quantifying digital assets;

• Study the potential of digital assets, blockchain systems and distributed ledger technologies to improve the operational efficiency of financial market infrastructures and better protect financial market participants;

• Discuss the implementation of this bill and its amendments by the Committee.

The goal of this committee is to promote cooperation and information sharing between the two major regulators on digital asset supervision.

（2）加强和扩展 SEC 的创新和金融科技战略中心 (FinHub)

The bill proposes to strengthen and expand the SEC’s Strategic Center for Innovation and Fintech (FinHub), with the goal of:

• Help develop the Commission’s approach to technological advances;

• Examining financial technology innovations by market participants;

• Coordinate the Commission’s response to emerging technologies in financial, regulatory, and supervisory systems.

Its responsibilities are:

• Promote responsible technological innovation and fair competition within the Commission, including around financial technology, regulatory technology and supervisory technology;

• Providing internal education and training on FinTech to the Commission;

• Advise the Commission on financial technology that serves the Commission's functions;

• Analyze the impact of technological advances and regulatory requirements on fintech companies;

• Provide advice to the Commission on rulemaking or other agency or staff actions related to fintech;

• Providing information about the Commission and its rules and regulations to businesses in the emerging fintech sector;

• Companies working in emerging technology areas are encouraged to engage with the Commission and obtain its feedback on potential regulatory issues.

FinHub's primary mission is to promote policy development related to fintech and provide guidance and resources to market participants on emerging technologies. It is required to provide Congress with a report on FinHub's activities in the previous fiscal year each year. It is also required to provide documents and information that ensure that FinHub has full access to the Commission and any self-regulatory organization to perform the functions of FinHub. The Commission should establish a detailed record system (as defined in Section 552a of Title 5 of the United States Code) to assist FinHub in communicating with relevant parties.

（3）成立 CFTC 的实验室（LabCFTC）

The bill proposes the establishment of LabCFTC, whose objectives are to:

• Promote responsible financial technology innovation and fair competition for the benefit of the American public;

• Act as an information platform to inform the Commission of new financial technology innovations;

• Providing advocacy to financial technology innovators to discuss their innovations and the regulatory framework established by this Act and regulations promulgated thereunder.

Its responsibilities are:

• Provide advice to the Commission on rulemaking or other agency or staff actions regarding financial technology;

• Providing internal education and training to the Commission on financial technology;

• Provide advice to the Commission on financial technology to strengthen the Commission’s oversight function;

• To engage with academics, students and professionals on financial technology issues, ideas and techniques relevant to the activities of this Act;

• Providing information to those working in the emerging technology sector regarding the role of the Commission, its rules and regulations, and registered futures associations;

• Personnel working in the field of emerging technologies are encouraged to engage with and obtain feedback from the Committee on potential regulatory issues.

Similar to FinHub, LabCFTC’s mission is to promote the formulation of relevant policies and provide technical guidance and communication. LabCFTC is also required to provide Congress with a report on its activities every year. It should also ensure that LabCFTC has full access to documents and information from the Commission and any self-regulatory organization or registered futures association to perform LabCFTC’s functions and establish a detailed record system.

（4）重视并加强去中心化金融、非同质化数字资产、衍生产品等的相关研究

The Commodity Futures Trading Commission (CFCA) and the Securities and Exchange Commission (SEC) should jointly conduct research on innovative content such as decentralized finance (DeFi), non-fungible digital assets (NFTs), derivatives, etc., study their development trends, and evaluate their impact on traditional financial markets and potential regulatory strategies.

In this part, the attitude towards Crypto compliance is basically established. The clearer direction is the research on DeFi and NFT, which means that DeFi and NFT may also usher in gradually clear regulatory strategies in the future.

三、FIT21 法案的重要意义

Although the crypto industry has existed for more than a decade, there is no comprehensive regulatory framework for digital assets globally. The existing regulatory framework is fragmented, incomplete and lacks clarity. This regulatory uncertainty not only hinders the development of innovative businesses, but also provides opportunities for bad actors.

Therefore, the adoption of FIT21 is of great significance.

Its passage has an important positive effect on establishing a regulatory environment that supports the development of blockchain technology, and at the same time puts forward relatively clear requirements for protecting the crypto market and consumer safety. Specifically, it includes: clearly specifying that different types of digital assets are regulated by the CFTC or SEC; setting consumer protection measures, such as customer fund isolation, lock-up period for token insiders, limiting annual sales volume and disclosure requirements, etc.

Blockchain technology and digital assets are another epoch-making invention of human civilization after the Internet. They have huge development potential and prospects. We are all trendsetters of the new era by embracing supervision and innovative development.

The article comes from the Internet:SharkTeam：美国众议院 FIT21 法案解读

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