Fintech: Overview of Financial Regulators and Recent Policy Approaches

Summary: New technologies in the financial services sector can create challenges for the various federal agencies responsible for financial regulation in the United States. As these regulators address the potential benefits and risks of innovation, policymakers have demonstrated significant interest in understanding the types of technologies that may benefit consumers and financial markets while identifying the risks that new financial services may present. As Congress considers the potential tradeoffs of financial technology or fintech , it can be useful to understand how the financial system regulators are approaching these issues.

Summary: The financial system regulators can be grouped into three general categories: (1) depository institution regulators, (2) consumer protection agencies, and (3) securities regulators. Each type of regulator has the authority to write rules, publish guidance, supervise institutions, and enforce compliance with the laws they implement. Further, there are similarities and differences among each regulator's mandate, which shed light on the approaches the regulators tend to take when considering new fintech.

Summary: The banking regulators generally are responsible for banks and credit unions, particularly focusing on the safety and soundness of these institutions. They have limited authority to write rules for, supervise the operations of, or enforce actions against firms outside their jurisdiction. Some banking regulators are responsible for granting licenses, or charters, to financial institutions so they can operate as banks and credit unions. Fintech firms typically are not licensed banks or credit unions; however, banks and credit unions often form partnerships with fintech firms, and banking regulators have legal authority to examine these types of relationships. This third-party partnership supervision allows the regulators to supervise depository institutions' interactions with new fintech firms. Banks and credit unions also have an important role in the payments system. Banking regulators have used some of their rulemaking authorities to influence technological advances in the payments system as consumers continue to shift toward electronic payment tools, such as debit and credit cards.

Summary: The consumer protection agencies generally are responsible for protecting consumers from unfair and deceptive business activities while maintaining a fair, competitive marketplace. Similar to banking regulators, consumer protection agencies have rulemaking, supervision, and enforcement authorities to implement and ensure industry compliance with consumer protection and competition laws, but consumer protection agencies have broader jurisdiction than banking regulators. For example, often they can directly regulate fintech companies and use their enforcement authorities to interact with fintech. In addition, they have promulgated rules pertaining to aspects of fintech. Consumer protection agencies generally balance the potential benefits of new technologies that could improve consumer outcomes with the potential risks to consumers posed by new, untested products entering the marketplace. This mandate allows consumer protection agencies to take enforcement actions to protect consumers and create safeguards from enforcement actions to protect companies offering financial services that benefit consumers or the market.

Summary: Securities regulators generally are concerned with protecting investors, maintaining fair and efficient markets, and facilitating capital formation. These regulators generally have limited concern for safety and soundness of the firms in their jurisdiction, focusing on disclosure requirements and contracts to promote investor protection and efficiency in the marketplace. Similar to the other regulators, they promulgate and enforce rules, but their mandate positions them somewhat differently than banking regulators and consumer protection agencies with respect to fintech. Securities regulators may endeavor to determine whether a new type of fintech product from a company counts as a security and how fintech is changing the way securities are offered. To this end, securities regulators tend to rely on their enforcement authority to ensure that new technologies do not violate securities laws.

Swiping a card to pay for something seems routine today; however, at one point in recent history, a piece of plastic with a magnetic strip capable of electronically communicating payment information between the banks of a consumer and a merchant was completely unprecedented. Financial technology, or fintech , refers to the broad subset of financial innovations that apply new technologies to a financial service or product. Although the term was coined only recently, it likely would have been applied to a broad set of innovations, such as the advent of automated teller machines, or ATMs, in the 1960s and mobile payments in the 2000s. There is no singular definition of fintech, often making policy discussions around this topic complicated. Further, U.S. financial system regulation is fragmented across many regulators by industry, business practice, and geographical jurisdiction, so regulating fintech is multifaceted.

Each financial regulator has a different mandate, creating gaps and overlaps among their jurisdictions. Regulators have used various policy tools to approach the new technologies in a manner consistent with their mandate, which impacts both institutions under their direct jurisdiction and new firms that do not cleanly fit under one regulator's jurisdiction.

Recent congressional interest in fintech has led to several hearings, the creation of fintech task forces, and legislation pertaining to one or multiple financial system regulators. This report examines activities and proposals initiated after the enactment of the Dodd-Frank Wall Street Reform and Consumer Protection Act (Dodd-Frank; P.L. 111-203 ) that are relevant to fintech. These can include fintech actions as defined by a regulator or actions pertaining to areas of financial services that intersect with technology but may not be explicitly considered fintech.

Financial regulators generally fall into three groups, which are responsible for (1) depository institutions, (2) consumer protection, and (3) securities. Their approaches may include the following:

writing new rules or amending existing ones; issuing guidance to clarify the applications of the rules to new types of business lines; creating new types of charters for institutions; using supervisory authorities to examine partnerships between regulated and unregulated entities; issuing enforcement actions to companies that violate regulations or laws; or establishing new offices and staffing experts to serve as outreach points-of-contact for relevant industry concerns.

Table 1 summarizes the federal regulators discussed in this report, including their scope, and relevant authorities. The depository institution regulators discussed in this report include the Federal Reserve, the Office of the Comptroller of the Currency (OCC), the Federal Deposit Insurance Corporation (FDIC), and the National Credit Union Administration (NCUA)âthese are referred to as banking regulators. The consumer protection agencies include the Consumer Financial Protection Bureau (CFPB) and the Federal Trade Commission (FTC). The securities regulators include the Securities and Exchange Commission (SEC) and the Commodity Futures Trade Commission (CFTC). More information on the mandates and relevant authorities of these regulators can be found in Appendix A .

The banking regulatorsâthe Federal Reserve, FDIC, OCC, and NCUAâface particular fintech-related challenges regarding how to ensure banks and credit unions can efficiently and safely interact with nonbank fintech companies. Sometimes fintech companies partner with and offer services to banks or credit unions. Other times, they seek to compete with banks by offering bank or bank-like services directly to customers. In some circumstances, banks themselves can develop their own fintech.

Given their broad responsibilities, banking regulators can engage with and respond to fintech in numerous ways, including by

amending rules and issuing guidance to clarify how rules apply to new products; supervising the relationship banks form with fintech companies; granting banking licenses to fintech companies; and conducting outreach with new types of firms to facilitate communication between industry and regulators.

Examples of these regulatory actions are discussed in more detail below. Each of the agencies has slightly different regulatory scope, so the efforts described in the sections below reflect each regulator's interest in balancing the risks and benefits of financial technologies.

Partnerships with Technology Service Providers

In general, banking regulators have not been active in issuing fintech-specific rules in the last 10 years. Instead, regulators have focused more heavily on issuing guidance on how new products and new relationships fit into the current regulatory framework. Relationships between banks and technology service providers (TSPs)âthird-party partnershipsâare particularly relevant because many TSPs are fintech companies. Banking regulators use their authority to examine the operations of these third-party partnerships as a critical tool to supervise the interactions between banks and nonbank technology firms. Further, third-party supervision demonstrates how regulators have used and applied the existing framework to fintech activities.

Updated Guidance on Bank Partnerships with Technology Service Providers

From a banking regulator's standpoint, an institution can be a bank, a nonbank, or a nonbank that partners with a bank. Bank regulators have jurisdiction over banks and their partnerships with nonbanks. Some insured depository institutions opt to partner with TSPs to receive software and technical support. Often, banks will use TSPs to support critical business needs, such as core processing, loan servicing, accounting, or data managementâareas where fintech companies have become active market participants. As banks increasingly rely on TSP partnerships, regulators are becoming increasingly interested in how banks manage the risks associated with these partnerships.

Banking regulators require a financial institution that chooses to partner with a TSP to ensure that the activities performed by the TSP for the institution meet the same regulatory requirements as if they were performed by the bank itself. Banking regulators' broad set of authorities to supervise TSPs are provided by the Bank Service Company Act (BSCA; P.L.87-856). Specifically, the BSCA provides banking regulators with authority to examine and regulate third-party vendors that provide services to banks.

The banking regulators periodically issue and update guidance pertaining to third-party vendors. They issued interagency guidelines in 2001 that, among other things, require banks to provide continuous oversight of third-party vendors such as TSPs to ensure they maintain appropriate security measures. In 2017, the FDIC's Office of Inspector General issued an evaluation of TSP contracts, noting that many of the sampled institutional relationships did not adequately address the risks associated with TSP partnerships. In 2019, the FDIC issued a financial institution letter on TSP contracts, outlining the statutory obligations of firms pursuant to the BSCA and the Gramm-Leach-Bliley Act ( P.L. 106-102 ) and encouraging financial institutions to ensure service provider contracts adequately address business continuity and incident response risks.

Brokered Deposits with Technology-Based Tools

Rulemaking with a specific focus on fintech companies is relatively infrequent, but banking regulators occasionally issue rules or proposed rules that have some tangential impact on fintech companies, such as a recently proposed FDIC rule on brokered deposits. This proposed rule is another example of how regulators have used an existing regulatory framework to potentially accommodate fintech developments.

FDIC Proposed Rulemaking on Brokered Deposits

Generally, banks hold two types of deposits: core deposits and brokered deposits. Core deposits are funds individuals or companies directly place in checking and savings accounts, whereas brokered deposits are funds that a third-party broker places in a bank on behalf of a client, typically to maximize interest earned and possibly to ensure that the accounts are covered by the FDIC's $250,000 insurance limit. Brokered deposits are considered less stable than core deposits, as the former is typically moved around frequently depending on market conditions. If a bank is not considered well-capitalized by its regulator, the regulator can prohibit the bank from accepting brokered deposits.

Consumers increasingly use nonbank technology-based tools, such as mobile phones and fintech apps, to move money between accounts. Under certain circumstances, rules against accepting brokered deposits could apply to money transfers using nonbank technologies. The FDIC, responding to concerns that regulators have applied the rules too broadly, published a notice of proposed rulemaking in December 2019 that would allow deposits to enter the banking system through new technological channels without being subject to brokered deposit rules.

Regulators occasionally create programs through which firms can experiment with new products in a way that allows industry and regulators to better understand how new technologies can impact consumers and the market. These programs are sometimes referred to as sandboxes or greenhouses . As a state-level example, Arizona created such a program in March 2018. At the federal level, these programs are being discussed but have not fully taken shape. Among the banking regulators, the OCC has proposed a regulatory sandbox program, discussed below.

In April 2019, the OCC proposed a voluntary Innovation Pilot Program to support the testing of innovative products, services, and processes that could significantly benefit consumers, businesses, and communities, including those that could promote financial inclusionâthe OCC is considering public comments on the program as of the date of this report. This proposed program is similar to the concept of a regulatory sandbox or greenhouse, which is discussed in the " Sandboxes and No-Action Letters to Promote Innovation " section, below. Some key characteristics and considerations of the proposed program include the following:

The pilot would be open to banks, their subsidiaries, and federal branches and agencies, including those partnering with third parties to offer innovative products, services, or processes. It would also be open to banks working together, such as in a consortium or utility. The OCC is considering a suite of regulatory tools during the pilot to communicate with banks, including interpretive letters, supervisory feedback, and technical assistance from OCC subject-matter expertsâthe tools would not include statutory or regulatory waivers. The OCC may address the legal permissibility of a product or service that a bank proposes to test as part of the program. The OCC would expect banks to address risks to consumers and would not permit into the program proposals that have potentially predatory, unfair, or deceptive features.

One foundational way banking regulators can regulate institutions not traditionally covered by banking regulations, such as fintech companies, is to grant a banking license to a new type of firm. By doing this, the institution becomes covered by the regulatory framework that applies to other depository institutions, and the regulator can apply a similar supervisory framework to the new institution's operations. The OCC and FDIC recently have taken measures to consider charters for nonbank companies. The OCC's efforts are specifically targeted to fintech companies, and the FDIC's efforts could affect a fintech company's opportunity to become a chartered bank.

OCC Special Purpose National Bank Charters for Fintech Companies

Many nonbank financial companies are licensed at the state level. Thus, a fintech company wanting to do business across the United States would need to obtain 50 different state licenses and meet a complex set of 50 state regulations and standards in order to do so. In response to concerns about this complexity, the OCC requested comments in 2016 on a proposal to offer national bank charters to fintech companies. In 2018, it announced that it would begin offering charters to fintech companies.

The OCC's charter initiative has been controversial. State regulators and consumer advocates have argued that granting such charters would inappropriately allow federal preemption of important state-level consumer protections, and that the OCC does not have the authority to grant bank charters to these types of companies. State regulators have filed lawsuits, and the matter is the subject of ongoing legal proceedings.

Industrial Loan Company Charters and the FDIC24

In addition to traditional bank charters, several states offer a type of bank charter for industrial loan companies (ILCs). Recently, fintech firms have begun to explore these types of charters. ILCs chartered in some states are allowed to accept certain types of deposits if the FDIC has approved the ILC for deposit insurance. Given this condition, the FDIC is considering whether or not to grant deposit insurance to fintech firms; doing so would allow ILCs to operate, under certain state charters, what would be in effect full-service, FDIC-insured banks. Several technology-focused companies have applied to establish new ILCs.

ILCs are regulated in two unique ways, which make them both attractive and controversial to certain fintech companies seeking to have deposit-taking bank operations:

ILCs can be owned by a nonfinancial parent company, creating an avenue for commercial firms, such as fintech companies, to own a bank. Critics of ILCs argue this runs counter to the long-standing U.S. policy of separating banking and commerce. In some circumstances, these parent companies are not considered a bank-holding company; therefore a fintech company owning a bank as a nonfinancial parent company might not be subject to supervision by the Federal Reserve, pursuant to the Bank Holding Company Act of 1956 (BHCA; P.L. 84-511). Critics argue this would result in under regulation of an ILC parent company.

In response to concerns over ILCs, the FDIC and Congress have in the past implemented moratoriums on approving FDIC-insurance for new ILCs. No new ILC charters have been granted since the end of the most recent moratorium in 2013, prompting ILC proponents to argue an unofficial moratorium is in effect without regulatory or statutory basis. By applying to establish new ILCs, technology companies have renewed public interest in ILCs in general. If the FDIC generally begins granting deposit insurance to ILCs, this could create a path for nontraditional banking companies beyond fintechs to offer bank services.

FDIC Notice of Proposed Rulemaking on Parent Companies of Industrial Banks and Industrial Loan Companies

The BHCA establishes the terms and conditions under which a company can own a bank in the United States and grants the Federal Reserve the authority to regulate these holding companies. In 1987, Congress enacted the Competitive Equality Banking Act of 1987 (CEBA; P.L. 100-86 ) to provide exemptions to permit certain financial and commercial companies to own and control industrial banks without becoming a bank-holding company under the BHCA. In granting deposit insurance for any insured depository institution, including industrial banks, the FDIC must assess the safety and soundness of the proposed institution and the risk posed to the Deposit Insurance Fund. Recent deposit insurance filings involving industrial banks have proposed ownership and control structures that would not be subject to federal consolidated supervision. To codify and enhance the FDIC's supervisory process with respect to these institutions, the FDIC issued a notice of proposed rulemaking on March 31, 2020, which would require certain conditions and commitments for agency approval of applications that would result in an insured industrial bank or ILC becoming a subsidiary of a company that is not subject to supervision by the Federal Reserve. The proposed rule would also require that the parent company and industrial bank or ILC enter into one or more agreements with the FDIC.

Consumer Protection and Payments Innovation

Many regulators have expressed interest in developing programs that facilitate innovation. Innovation can lead to new types of products for consumers, such as mobile payments, but it can also create obstacles for consumers to manage. Banking regulators and other financial system regulators, such as the Consumer Financial Protection Bureau (CFPB) (see " Consumer Protection Agencies: Approach to Fintech "), implement and promulgate rules pertaining to the payments system. (See Appendix B for these rules and other regulatory interests in payments innovation.) The payments system provides a few examples where new technologies create the potential for both benefits and risks to consumers.

The Federal Reserve's proposed FedNow Service payments initiative is one example of a regulator facilitating a new product for consumers. The Federal Reserve operates or regulates important elements of the payments and settlement system, including retail payment networks such as the FedACH network, multilateral settlement services such as the National Settlement Service, and real-time gross settlement systems such as Fedwire Funds Service. Recently, the Federal Reserve announced plans to develop the FedNow Service: a real-time payments and settlement system for peer-to-peer and business-to-consumer payments.

The FedNow Service is expected to impact consumers as they continue to conduct commerce using electronic payments, mobile phones, and apps. Transacting in this way can lead to better outcomes for consumer budgeting, as transactions are settled in real time, but it also may impact a consumer's ability to resolve errors, as instantaneous payments are harder to stop or return. Given the importance of safety in the payments system, the Federal Reserve and a private organization called the Clearing House have both established real-time payments to create competition in the market for payments and settlement services, with the idea that competition will increase market discipline and enhance resiliency in the system. The Federal Reserve anticipates the FedNow Service will be available in 2023 or 2024.

Each depository regulator has put together a working group or formal office to understand how new technologies may affect institutions under their jurisdictions and to establish a point of contact for industry. A summary of these efforts is presented below. Table B-1 in Appendix B provides a synopsis of the offices established by each financial regulator discussed in this report, and Appendix C summarizes other efforts, such as research programs, notable fintech conferences, and working groups.

In December 2019, the Federal Reserve established a series of programs to support financial innovation in the financial services marketplace. Part of this effort includes offering "office hours" to supervised financial institutions and nonbank fintech firms looking for information about financial innovation. These office hours are held at the various Federal Reserve Banks. The Federal Reserve also established a new website, which contains information about related supervisory information, regulatory guidance, staff speeches, publications, research, and events. The Reserve Banks have created working groups to address fintech issues, which are summarized in Appendix C .

In 2015, the OCC began developing a "Responsible Innovation" framework to address issues of financial services innovations. This framework is summarized in Table C-1 of Appendix C . As part of the framework, the OCC created a group to meet with banks, fintech companies, consumer groups, regulators, and other stakeholders to discuss various issues, concerns, and areas of interest relevant to fintech. In 2017, the OCC formally established the Office of Innovation to implement its Responsible Innovation framework and provide a central point of contact for requests and information related to innovation.

The FDIC recently has taken steps to establish fintech-specific programs. It created its own version of an office of innovation, the FDIC Tech Lab, or "FDiTech," in October 2018. The FDIC Tech Lab is intended to promote, coordinate, and understand the role of new innovations among technology firms, financial institutions, and other regulators. The Tech Lab's stated goals are to engage with financial and technology companies to identify opportunities to improve the safety and soundness of insured depository institutions, promote competition, increase economic inclusion, support risk management, and facilitate efficient resolution of failed institutions.

Consumer Protection Agencies: Approach to Fintech

The mandate for the consumer protection agenciesâCFPB and FTCâis largely to ensure that consumers are unharmed by the practices of businesses under their jurisdiction while maintaining a competitive marketplace. Within the context of fintech, there are tradeoffs between these objectives. For instance, encouraging firms to offer new kinds of consumer-friendly financial services can help create a competitive market, but the new products also can create the potential for unforeseen risks to consumers.

Similar to the banking regulators, the CFPB and FTC issue and promulgate regulations on issues pertinent to fintech, such as payments and data security, and both agencies have created outreach offices. The consumer protection agencies, however, tend to use enforcement actions as tools to manage the effects of fintech on the financial system to a greater extent than banking regulators. This partly is because the consumer protection agencies are responsible for implementing and enforcing consumer protection laws for many nonbank financial companiesâunlike the banking regulators, which generally do not have enforcement authorities for nonbank financial companies.

The consumer protection agencies use enforcement actions to balance their mandates with respect to fintechs in two additional ways:

protect consumers by levying enforcement actions against firms that violate consumer protection laws, and promote market competition and facilitate innovations that benefit consumers by creating safe harbors for firms from enforcement actions in order to encourage firms to develop new technologies and solve challenges facing consumers.

Whereas the CFPB has a broad range of regulatory authorities relevant to fintech, the FTC is somewhat limited to enforcement actions for many fintech activities, as it has some investigative authority but no supervisory authorities. Examples of these approaches are explored in more detail below.

Enforcement Actions to Ensure Consumer Protection

One way consumer protection agencies implement their legal authorities is through enforcement actions: agencies can take a number of actions to levy penalties against or stop firms that violate law or regulation. The FTC's enforcement actions include a number of orders that pertain to fintech firms.

The FTC enforces federal consumer protection laws that prevent fraud, deception, and unfair business practices, as well as federal antitrust laws that prohibit anticompetitive mergers and other business practices that could lead to higher prices, fewer choices, or less innovation. Companies that violate laws under FTC jurisdiction are liable for civil penalties for each violation. Over the past decade, the FTC has brought over 20 cases against telecommunications firms, money service businesses, prepaid card companies, and technology firms, among others, with operations relevant to fintech and in violation of FTC competition and fairness rules. Table 2 describes the outcomes of selected recent FTC fintech-related enforcement actions.

Sandboxes and No-Action Letters to Promote Innovation

Consumer protection agencies occasionally create policies or programs that temporarily shield firms from enforcement actions if they meet certain conditions. In the past few years, the CFPB has built upon its No-Action Letter (NAL) policy, which provides some assurances that if a company offers a product or service in a specific way, the agency will withhold enforcement actions for that particular activity. With respect to fintech, the CFPB has identified the NAL policy as a way to encourage firms to produce products and disclosures that may benefit consumers. Consumer protection agencies also promote innovation through programs such as sandboxes or greenhouses, which can allow firms to trial new ideas and products while being subject to a subset of the existing regulatory framework or while being granted safe harbor from certain enforcement actions (see " Regulatory Sandboxes ").

In 2016, the CFPB introduced its NAL policy to withhold enforcement actions against qualifying consumer-friendly innovations and to help inform the CFPB on new products and services being offered. Although the CFPB anticipated limited participation in this original NAL policy, it announced its first NAL in 2017 to a company that used alternative data and machine learning in making credit underwriting and pricing decisions. To encourage more robust participation, the CFPB revised its NAL policy in 2019, amending the application and review process and reportedly strengthening its commitment to provide safe harbor to qualifying firms.

CFPB Compliance Assistance and Revised Trial Disclosure Sandbox Policies

The CFPB created sandbox programs to encourage certain firms to test consumer financial services by granting the firms temporary safeguards from liability and enforcement actions. In addition to creating the NAL policy, the CFPB created the Compliance Assistance Sandbox (CAS) policy to enable some firms to test certain innovative products by providing the firms with temporary safe harbor from liability under certain statutes. The CFPB expects participation in the CAS policy to be time-limited, typically two years, with extensions available in specific circumstances. In addition, Dodd-Frank allows the CFPB to provide trials for companies to test new types of disclosuresâwith safeguards from certain liabilities and on a basis that is limited in time and scopeâto make them more effective for consumers. The CFPB first released a Trial Disclosure Policy (TDP) in 2013 and updated it in 2019 to encourage more robust participation.

Outreach, Coordination, and Research Programs

Similar to the banking regulators, the CFPB has an office that serves as a point of contact for industry and other stakeholders. The CFPB also created a network to facilitate policy coordination pertaining to fintech among the federal and state financial regulators. The FTC, to support its investigation authorities, has done research and outreach to try to better understand the ways fintech may impact consumer protection and market competition. These programs are briefly explained below, and additional information regarding these programs can be found in Appendix C .

In 2012, the CFPB created Project Catalyst to encourage "consumer-friendly innovation and entrepreneurship in markets for consumer financial products and services" by communicating and engaging with industry innovators. Through Project Catalyst, the CFPB studied issues surrounding access to credit, safeguarding financial records, cash flow management, student loan refinancing, mortgage servicing platforms, credit reporting, and peer-to-peer money transfers. The CFPB also held office hours, provided technical assistance, and offered an earlier version of the above-mentioned TDP and NAL policy programsâbefore the new Office of Innovation was createdâdesigned to encourage firms to produce consumer-friendly innovations by safeguarding those products from CFPB enforcement actions.

In 2018, the CFPB rebranded Project Catalyst, introducing a suite of policies and programs to centralize policies pertaining to consumer-focused innovation through a newly established Office of Innovation. The office provides a single point of contact for firms looking to participate in the revised NAL policy and sandbox policy programs, explained above.

CFPB American Consumer Financial Innovation Network

In September 2019, the CFPB launched the American Consumer Financial Innovation Network (ACFIN) of state regulators. The CFPB created ACFIN to enhance coordination among federal and state regulators and to facilitate financial innovation as regulators develop new regulations and apply existing ones. The network is open to all state and federal financial regulators, as well as state attorneys general.

The FTC develops policy and research tools through hearings, reports, workshops, and conferences to support its investigation authorities. Since 2012, the FTC has hosted numerous events and developed several reports on mobile payments, big data, marketplace lending, cryptocurrency scams, and small business financing. For example, the FTC has hosted several forums on fintech issues, including one on marketplace lending in June 2016, crowdfunding and peer-to-peer payments in October 2016, and artificial intelligence and blockchain technology in March 2017. In 2018, the FTC hosted an event on cryptocurrency scams for consumer groups, law enforcement, researchers, and the private sector as part of its consumer protection work.

Securities Regulators: Approach to Fintech60

The securities regulatorsâthe SEC and the CFTCâare focused on any securities-related activities, including those of fintech companies. Examples would include a fintech company raising capital by issuing equity through an initial coin offering or a firm creating a new technology for derivatives contracts. Given their mandate, the securities regulators have used a range of regulatory tools, largely focused on clarifying whether and how the existing regulatory framework applies to new types of technologies, including the following:

writing rules and guidance to clarify how existing rules apply to new types of approaches to securities; issuing enforcement actions against any fintech firms that may violate the securities laws under their jurisdiction; and setting up fintech outreach offices to serve as points of contact for stakeholders.

Examples of these regulatory approaches are provided below.

Application of Existing Securities Rules to Fintech

The SEC recently published guidance and rules on new capital-raising measures known as Initial Coin Offerings (ICOs) and crowdfunding, as well as on issues regarding automated investment advice ("robo advisors"). Both the SEC and CFTC have used their broad enforcement authorities to issue enforcement actions against digital asset practices that violated rules under their respective jurisdictions. Further, the SEC used its NAL policy (similar to that used by the CFPB, discussed above) to provide safe harbor to digital asset related companies. These initiatives are summarized below.

Firms that issue cryptocurrencies may consider an ICO to raise capital by issuing digital assets to investors. In 2019, the SEC published a framework to build on 2018 guidance for companies to understand whether their ICOs qualify as securities and are subject to SEC regulation. The process of issuing an ICO is similar to a public companies' Initial Public Offeringâa well- regulated and commonplace way to raise capital in equity markets for newly public companiesâin that both aim to raise funding, but confusion may exist among investors and industry over whether digital assets are treated the same way under SEC regulation.

The Jumpstart Our Business Startups Act (JOBS Act; P.L. 112-106 ) contains provisions that establish a regulatory structure for startups and small businesses to raise capital through issuing securities using internet-based crowdfunding. Effective May 2016, the SEC adopted a rule to implement these provisions, thereby governing the offer and sale of such securities and providing a framework for regulating certain registered funding portals and other intermediaries.

SEC Guidance for Automated Investment Advice

The SEC has issued guidance for robo advisors, which provide automated investment advice. The staff guidance serves to inform registered and other investment advisers on how to comply with the relevant securities statutes. Compliance requires firms or sole practitioners compensated for advising others about securities investments to register with the SEC and conform to regulations designed to protect investors.

SEC and CFTC Digital Asset Enforcement Actions and No-Action Letters

The SEC has broad enforcement authorities, granting it the ability to suspend business practices through injunctions and to bring administrative proceedings, such as cease and desist orders. The SEC manages a robust enforcement action program across several industries and has issued 48 such actions against digital asset-related companies since 2013. Similarly, the CFTC issues enforcement actions to enforce derivatives laws; since 2018, it has issued more than 20 enforcement actions against firms related to Bitcoin and other cryptocurrency fraud schemes.

In addition to its enforcement authority, the SEC grants NALs in some instances to provide relief from the SEC taking an enforcement action against a company. The SEC provided three such letters to digital asset companies in 2019.

SEC Strategic Hub for Innovation and Financial Technology

In 2018, the SEC created the Strategic Hub for Innovation and Financial Technology (FinHub) to serve as a resource for public engagement on fintech issues, such as distributed ledger technology, digital assets, automated investment advice, digital marketplace financing, and artificial intelligence/machine learning. FinHub, developed from numerous SEC internal working groups, also is designed to make the SEC's fintech work more accessible to industry and serve as a platform to inform the SEC's understanding of new financial technologies.

LabCFTC is the focal point of the CFTC's efforts around financial innovation and is designed to make the CFTC more accessible to innovators. LabCFTC also serves as a platform to inform the CFTC's understanding of new technologies, providing information for CFTC staff that may influence policy development. LabCFTC seeks to promote responsible innovation to improve the quality, resiliency, and competitiveness of markets. It also aims to accelerate CFTC engagement with new technologies that may enable the CFTC to carry out its mission responsibilities more effectively and efficiently. There are two main components to LabCFTC: (1) GuidePoint, which creates a dedicated point of contact for stakeholders, and (2) CFTC 2.0, which serves as a beta testing environment for new technologies.

Appendix A. Summary of Financial Regulator Mandates

Banks and credit unions serve a vital role in the economy. Thus, they are subject to a strong regulatory framework that requires institutions operate in a safe and sound manner. Depository institutions are routinely examined to ensure their business lines are healthy and to make sure they comply with various laws. These regulators also write and provide guidance on rules for depository institutions to implement their legal authorities over certain business practices.

Although the mandates and authorities for each agency are a bit different, the agencies all serve as primary federal regulators for some kind of depository institution. The type of depository institution depends on whether a bank is chartered at the federal or state level and whether it is a member of the Federal Reserve System. (See Table A-1 .)

The Federal Reserve Act of 1913 (P.L. 63-43) established the Federal Reserve as the central bank of the United States, comprising the Board of Governors and 12 Federal Reserve Banks. The Board generally sets policy, which is carried out by the Reserve Banks. In addition to its responsibility as the central bank to set monetary policy, the Federal Reserve is also responsible for supervising and regulating state banks that are members of the system and all bank-holding companies. The Federal Reserve also has an important role in operating the payments and settlement system.

Table B-2 summarizes the Federal Reserve's notable recent activities in the payments system.

Office of the Comptroller of the Currency

The Office of the Comptroller of the Currency (OCC) was established in 1863 as a bureau of the U.S. Department of the Treasury. The OCC is the primary federal regulator for nearly 1,200 national banks, federal savings associations, and federal branches and agencies of foreign banks operating in the United States. The OCC grants national bank charters, which allow the charter holder to legally operate as a bank.

The Federal Deposit Insurance Corporation (FDIC), established by the Banking Act of 1933 (P.L. 73-66) and largely shaped into its modern form by the Federal Deposit Insurance Act of 1950 (P.L. 81-797), insures the deposits of banks and serves as the primary federal regulator for state-chartered banks and thrifts that are not members of the Federal Reserve. The FDIC manages the Deposit Insurance Fund, which provides the funds necessary to insure deposits and to resolve failed banks. The FDIC provides deposit insurance for deposits at all U.S. banks, both national and state, but most of the banks the FDIC supervises are smaller institutions, known as community banks.

In 1970, Congress amended the Federal Credit Union Act to establish the National Credit Union Administration (NCUA) as the regulator for the federal credit union system (P.L. 91-206). The NCUA supervises and insures deposit shares at federal credit unions and is responsible for resolving failing institutions.

Consumer protection laws and regulations are mainly within the jurisdiction of two agencies. The Consumer Financial Protection Bureau (CFPB) regulates certain financial firms for unfair, deceptive, and abusive acts and practices, as well as for compliance with several consumer protection laws. In addition, many firmsâboth financial and nonfinancialâare subject to oversight by the Federal Trade Commission (FTC), which regulates firms for competition and fairness.

The Dodd-Frank Wall Street Reform and Consumer Protection Act (Dodd-Frank; P.L. 111-203 ) established the CFPB to implement and enforce federal consumer financial law while ensuring that markets for consumer financial services and products are fair, transparent, and competitive. Dodd-Frank consolidated the consumer protection authorities promulgated by other agencies and provided CFPB new powers to issue rules declaring certain acts or practices associated with consumer financial products and services to be unlawful because they are unfair, deceptive, or abusive.

The CFPB generally has regulatory authority over providers of an array of consumer financial products and services, including deposit taking, mortgages, credit cards and other extensions of credit, loan servicing, collection of consumer reporting data, and debt collection associated with consumer financial products. The scope of its supervisory and enforcement authority varies depending on an institution's size and whether it holds a bank charter.

Congress passed the Federal Trade Commission Act in 1914 to create the FTC and give it legal authority to protect consumers and promote competition. Specifically, the FTC looks to prevent unfair or deceptive acts or practices and to seek monetary redress or other relief for conduct deemed injurious to consumers. Generally, the FTC has broad investigation, rulemaking, and enforcement authorities that enable it to accomplish its mission.

Many companies issue stocks and bonds, trade derivatives, and offer other products collectively called securities. Securities are generally regulated by the Securities and Exchange Commission (SEC) and the Commodity Futures Trading Commission (CFTC). (The CFTC has specific responsibility for derivatives markets.) The securities regulators promulgate rules and provide oversight over the institutions in their jurisdiction. They also conduct enforcement actions to investigate and prosecute violations of relevant regulations.

Congress passed the Securities Exchange Act of 1934 (P.L. 73-291) to establish the SEC and restore confidence in the securities markets after the stock market crash of 1929. The SEC is an independent agency that has broad authority over much of the securities industry in order to protect investors, promote fair and efficient markets, and facilitate capital formation.

The CFTC was created in 1974 by the Commodity Futures Trading Commission Act ( P.L. 93-463 ) to address the expansion of commodities beyond agriculture. Prior to this law, commodities generally were regulated at the Commodity Exchange Authority, a former agency within the U.S. Department of Agriculture. The CFTC regulates the U.S. derivatives markets, including futures, options, and swaps, and implements the Commodity Exchange Act (CEA; P.L. 74-675). Similar to the SEC, the CFTC has rulemaking and enforcement authorities for a range of issues, but the CFTC's authorities focus on derivatives markets derived from the CEA.

Appendix B. Financial Innovation Offices

Appendix C. Select Regulatory Fintech Initiatives

Federal Reserve System Innovation Programs

The OCC's Office of Innovation implements its Responsible Innovation framework in a number of ways that are described and summarized in Table C-1 . For instance, the agency established an outreach and technical assistance program to establish a dialogue with banks, fintech companies, consumer groups, trade associations, and regulators. It engages in outreach through a variety of channels. Over the past two years, for example, the Office of Innovation hosted office hours in five different cities for over 125 stakeholders, approximately 250 additional meetings and calls with stakeholders, and over 100 conferences and other events. The office provides technical assistance to help banks and fintech companies understand OCC expectations, relevant laws, regulations, and guidance, such as the agency's third-party risk management guidance. The Office of Innovation also conducts research and develops content, including white papers, webinars, and collaborations with other OCC business units to deliver in-house training, including on payment technologies.

The Office of Innovation convenes representatives from various OCC business units to develop a coordinated strategy on particular topics, and it forms working groups to consider particular issues to coordinate and facilitate discussion between stakeholders and the OCC. It also endeavors to reduce regulatory uncertainty and inconsistency, provides assistance to agencies interested in establishing innovation offices, and helps the OCC share information and communicate with other U.S. agencies on emerging trends and ways to improve its innovation initiatives.

The OCC participates in various regulatory forums, such as the Financial Stability Board's Financial Innovation Network, and it serves as co-chair of the Task Force on Financial Technology, established by the Basel Committee on Banking Supervision (BCBS). Furthermore, the OCC collaborates on cybersecurity issues domestically and internationally through the Federal Financial Institutions Examination Council, the Financial and Banking Information Infrastructure Committee, and the BCBS.

Consumer Financial Protection Bureau Financial Innovation Programs

The CFPB's recent efforts pertaining directly to fintech are summarized in Table C-2 below.

The Financial Crimes Enforcement Network (FinCEN) is a bureau of the U.S. Department of the Treasury charged with administering U.S. anti-money laundering (AML) and combating the financing of terrorism (CFT) laws, most notably the Bank Secrecy Act (BSA; P.L. 91-508). In 2018, FinCEN, along with the Federal Reserve, the FDIC, the NCUA, and the OCC, announced an effort to encourage banks and credit unions to take innovative approaches to combating money laundering, terrorist financing, and other illicit financial threats by enhancing the effectiveness and efficiency of BSA/AML compliance programs.

FinCEN Innovation Initiative. FinCEN launched an Innovation Initiative to address the challenges and opportunities of BSA and AML-related innovation in the financial services sector. FinCEN's Innovation Initiative includes the FinCEN Innovation Hours Program and regulatory relief programs to facilitate innovation around AML/CFT compliance. Additionally, FinCEN suggested that it will consider incorporating testing programs, similar to sandboxes, and "Tech Sprints" to facilitate the development of innovative solutions to AML/CFT challenges.

Innovation Hours Program. The Innovation Hours Program is the most recent addition to the FinCEN Innovation Initiative. FinCEN intends to host financial institutions, technology providers, and other firms involved in financial services to discuss their interests in innovation around AML/CFT compliance.

Appendix D. Payments Regulation and Programs

Consumers generally have shifted toward electronic payments such as debit and credit cards. Since 2001, the Federal Reserve has been studying consumer trends in payment activities on a triennial basis. In 2019, the CFPB issued a rule to grant protections to prepaid cards in a similar fashion to debit and credit cardsâthis reflects the shift in consumer preference toward electronic payments. However, regulatory actions around electronic payments may create adverse conditions for some consumers who rely on cash. Balancing the interests of a faster, efficient payment system with one that works for different types of consumers is a challenge currently facing the Federal Reserve and CFPB. Table B-1 shows a number of these rules, which can impact fintech companies that offer services or support payments operations through partnerships at banks.

As the Federal Reserve contemplates the design of its proposed faster payments system, it has numerous long-standing payments groups working on fintech and related issues. Many of these groups focus on the payments market. An overview of the Federal Reserve's payments groups is provided in Table B-2 to show the scope of work of the agency and its Reserve Banks.

CRS Report R44429, Financial Services and Cybersecurity: The Federal Role , by M. Maureen Murphy and Andrew P. Scott

CRS Report R45631, Data Protection Law: An Overview , by Stephen P. Mulligan, Wilson C. Freeman, and Chris D. Linebaugh.

CRS In Focus IF10559, Cybersecurity: An Introduction , by Chris Jaikaran.

CRS Report R44614, Marketplace Lending: Fintech in Consumer and Small-Business Lending , by David W. Perkins.

CRS Report R45726, Federal Preemption in the Dual Banking System: An Overview and Issues for the 116th Congress , by Jay B. Sykes.

CRS Report R45927, U.S. Payment System Policy Issues: Faster Payments and Innovation , by Cheryl R. Cooper, Marc Labonte, and David W. Perkins.

CRS Report R45716, The Potential Decline of Cash Usage and Related Implications , by David W. Perkins.

Banks and Third-Party Vendor Relationships

CRS In Focus IF10935, Technology Service Providers for Banks , by Darryl E. Getter.

Cryptocurrency and Blockchain-Based Payment Systems

CRS Report R45427, Cryptocurrency: The Economics of Money and Selected Policy Issues , by David W. Perkins.

CRS Report R45116, Blockchain: Background and Policy Issues , by Chris Jaikaran.

CRS Report R45664, Virtual Currencies and Money Laundering: Legal Background, Enforcement Actions, and Legislative Proposals , by Jay B. Sykes and Nicole Vanatko.

CRS In Focus IF10824, Financial Innovation: "Cryptocurrencies" , by David W. Perkins.

CRS Report R46208, Digital Assets and SEC Regulation , by Eva Su.

CRS Report R45221, Capital Markets, Securities Offerings, and Related Policy Issues , by Eva Su.

CRS Report R45301, Securities Regulation and Initial Coin Offerings: A Legal Primer , by Jay B. Sykes.

CRS In Focus IF11004, Financial Innovation: Digital Assets and Initial Coin Offerings , by Eva Su.

High-Frequency Securities and Derivatives Trading

CRS Report R44443, High Frequency Trading: Overview of Recent Developments , by Rena S. Miller and Gary Shorter.

CRS Report R43608, High-Frequency Trading: Background, Concerns, and Regulatory Developments , by Gary Shorter and Rena S. Miller.

Regulatory Approaches and Issues for Congress

CRS In Focus IF11195, Financial Innovation: Reducing Fintech Regulatory Uncertainty , by David W. Perkins, Cheryl R. Cooper, and Eva Su.

CRS Report R46332, Fintech: Overview of Innovative Financial Technology and Selected Policy Issues , coordinated by David W. Perkins.