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Full text of SEC stablecoin regulation in the United States: What kind of stablecoin is not a security?
Written by: U.S. Securities and Exchange Commission, Corporate Finance Department
Compiler: Aki Chen Wu Says Blockchain
Introduction
To further clarify the scope of the U.S. federal securities laws in the cryptoasset space [1], the Division of Corporation Finance has issued an opinion [2] on certain types of cryptoassets, commonly referred to as "stablecoins." This statement is only for stablecoins that meet the following types:
Design the mechanism to ensure that it is pegged to the US dollar (USD) at a ratio of 1:1,
Support the redemption of USD at a 1:1 ratio (i.e. 1 stablecoin can be exchanged for 1 USD),
Backed by a low-risk, highly liquid reserve asset whose USD valuation always covers the redemption needs of stablecoins in circulation.
As explained below, we refer to such stablecoins covered by this Notice as "Covered Stablecoins".
Stablecoin Overview
A stablecoin is a type of crypto asset designed to keep its value stable relative to a reference asset, such as the U.S. dollar or other fiat currencies, commodities such as gold, or a basket of assets. Typically, stablecoins track the value of a reference asset at a 1:1 ratio. Stablecoins may maintain their value stability in different ways: in some cases, stablecoins are backed by reserve assets, which use the assets held in the reserves to ensure a 1:1 exchange of the stablecoin with the reference asset; In other cases, stablecoins maintain stability through mechanisms other than reserves, such as relying on algorithms to adjust the supply of stablecoins in response to changes in market demand [3].
Given the differences in stability mechanisms and reserve assets (if applicable), there are also significant differences in the risks faced by stablecoins. Stablecoin issuers typically offer and sell stablecoins at a price equal to the reference asset (1:1). For example, when the reference asset is USD, the issuer sells 1 stablecoin for $1; If a small number of shares are supported, they will still correspond to a 1:1 value (e.g. 0.5 stablecoins for $0.50). When a user redeems it, the issuer usually uses the reserve assets to exchange the stablecoin back to the reference asset at a 1:1 ratio.
1) Position of the Corporate Finance Department on Compliant Stablecoins [4]
Subject to the mode of operation and applicable conditions described in this Statement, the Corporate Finance Department does not believe that the issuance and sale of Compliant Stablecoins constitutes an offering or sale of securities within the meaning of Section 2(a)(1) of the Securities Act of 1933 or Section 3(a)(10) of the Exchange [5] Act of 1934.
Therefore, in the process of participating in the "minting" (i.e., creation) and redemption of compliant stablecoins, relevant entities are not required to complete the relevant transaction registration procedures with the U.S. Securities and Exchange Commission (SEC) under the Securities Act, nor are they required to apply the registration exemption provisions under the Securities Act.
2) Core Features of Compliant Stablecoins
These backing assets are held in reserve accounts denominated in U.S. dollars, and their total value equals or exceeds the redemption value of eligible stablecoins in circulation. Issuers of compliant stablecoins can be minted and redeemed at a 1:1 ratio with the US dollar, and there is no limit on the number of tokens. In other words, the issuer is always prepared to mint a stablecoin for $1 (or a corresponding percentage) and redeem a stablecoin for $1 (or a corresponding percentage), with no upper limit on the amount minted or redeemed.
Through this fixed-price, unlimited minting and redemption mechanism, the market price of compliant stablecoins can maintain a stable peg relationship with the US dollar.
In the latter case, holders of non-designated intermediaries are unable to mint or redeem stablecoins directly from the issuer, and the only way to obtain or dispose of stablecoins is through secondary market transactions, which may include transactions with designated intermediaries.
For example, when the market price is higher than the redemption price, such entities can mint stablecoins directly from the issuer at a 1:1 ratio and put them on the market. As the supply increases, the market price usually decreases, thus approaching the redemption price. Conversely, when the market price is lower than the redemption price, these entities will buy stablecoins in the secondary market and redeem them directly from the issuer. As the number of people circulating in the market decreases, the price usually rises, thus approaching the call price again.
Compliant stablecoin market activities covered by this statement [7]
Covered stablecoins are marketed for commercial purposes only, i.e. as a means of payment, fund transfer or store of value, and are not intended as investment products. Market stakeholders typically emphasize compliant stablecoins for stable, fast, reliable, and easy-to-use payments, currency transfers, and stores of value. In addition, such stablecoins are often compared to the "digital dollar".
Market stakeholders may also typically state that compliant stablecoins have the following characteristics:
Designed to be equivalent or stable pegged to the U.S. dollar (USD) (e.g., one compliant stablecoin for one U.S. dollar).
The holder is not entitled to any interest, profit or other earnings.
It does not represent an investment or other proprietary interest in the Issuer or any third party.
Does not give the holder any governance rights over the issuer or the stablecoin itself.
The economic benefit or loss of the holder is not affected by the financial performance of the issuer or any third party.
As discussed below, we believe that the launch of a stablecoin through the following means indicates that a compliant stablecoin is not being issued or sold as a security.
1) Reserve Account
Issuers of compliant Covered Stablecoins use the proceeds of their sales to purchase specific assets, which are held in a pool of assets called "Reserves". The reserve holds assets such as the U.S. dollar (USD) or other assets that are considered low-risk, highly liquid to ensure that the issuer is able to fulfill all redemption requests on demand. [8]
Reserve assets support the number of compliant stablecoins in circulation at a ratio of no less than 1:1 at any time. Reserve assets are only used to pay redemption requests, and although the issuer can receive income (such as interest) from them, but:
Reserve assets may be sold during the redemption process, but will always be managed in isolation from other assets of the issuer or any third party and shall not be commingled.
Reserve assets may not be used for the issuer's operational or general business purposes.
Reserve assets may not be lent, pledged or repledged.
Reserve assets should be held in such a way that they do not become the subject of third-party claims.
Based on the above arrangement, the issuer shall not use reserve assets for trading, speculation or subjective judgment-driven investment operations. While the issuer may decide in its sole discretion how to use the proceeds generated from the reserve assets (e.g., interest), such proceeds will not be distributed to holders of compliant stablecoins.
In some cases, issuers will issue a "Proof of Reserves" as an audit or verification tool to prove that the stablecoin they issue is backed by sufficient reserve assets.
2) Legal Qualitative Analysis
Section 2(a)(1) of the Securities Act and Section 3(a)(10) of the Exchange Act define the meaning of "security" by enumerating a variety of financial instruments, including "stock", "note" and "evidence of indebtedness". Because Covered Stablecoins have the characteristics of notes or other debt instruments in some respects, we rely on the standard established by the U.S. Supreme Court in Reves v. Ernst & Young. [9] As discussed below, we will also refer to the "Howey Test" established in the U.S. Securities and Exchange Commission v. W.J. Howey & Co. for supplementary analysis. [10]
Reves Case Study
In Reves, the U.S. Supreme Court held that since "notes" are among the instruments enumerated in the definition of "securities" under the Securities Act and Exchange Act, all notes should be presumed in principle to constitute securities. [11] However, the presumption can be rebutted by showing that the note bears a high degree of similarity to several notes issued in a typical business transaction, and thus appropriately excludes it from the definition of "security". [12] The so-called "Family Similarity Test" consists of the following four factors:
Analysis of the true intent of the related party of the transaction: Examine the motives that prompt the rational seller to enter into a transaction with the buyer.
Mode of Circulation of Securities: Examine whether the financial instrument is an instrument used for "general trading for speculation or investment".
Investing in the Reasonable Expectations of the Public: Examine whether the average investor would reasonably expect the note to be a regulated security under the federal securities laws.
Risk Mitigation Characteristics: Examine whether the note has certain characteristics (e.g., being subject to other regulatory mechanisms) that significantly reduce the risk of the note and make it less necessary to apply the Securities Act and the Exchange Act. [13]
In applying the Reves test, the Federal Court adopts a balanced approach of comprehensive consideration, and each factor should not be considered separately to determine whether a note constitutes a security or a non-security. [14]
1) The true intention of the related party of the transaction
If the seller's purpose is to raise funds for the general operation of its business or a significant investment, and the buyer is primarily concerned with the expected profits generated by the note, the note is likely to be treated as a security. [15] Conversely, if the purpose of a note exchange is to serve an actual business scenario or consumer use, the note is unlikely to be recognized as a security.
As mentioned earlier, buyers of compliant stablecoins do so for their stability and the need to serve as a means of payment or store of value in commercial transactions. Because the Compliant Stablecoin neither pays nor promises to pay interest, nor does it give the holder any other payment or interest in the asset than a 1:1 redemption in USD, the buyer is not buying and holding the stablecoin in anticipation of profits. [16] Issuers of compliant stablecoins use the proceeds from the sale to replenish their reserve accounts, and while they may use the proceeds generated from the reserves to support their business operations, they are issued and purchased primarily for commercial purposes rather than investment purposes. [17]
2) Circulation of securities
In Reves, the U.S. Supreme Court noted that this factor is to examine whether there is a "general transaction for speculative or investment purposes." This factor is met when a financial instrument is "issued and sold to the general public", and compliant stablecoins meet this condition. [18]
However, the price stability design of compliant stablecoins helps ensure that they are not traded in the secondary market for speculative or investment purposes. Although arbitrage opportunities may arise in the secondary market when their market price deviates from the redemption price, such arbitrage opportunities will be effectively limited due to the issuer's ability to redeem on demand and mint and redeem at any time at a 1:1 ratio with the US dollar.
3) Reasonable expectations of the investing public
The purpose of this factor is to look at how the relevant financial instrument is marketed and sold. In Reves, the Court made it clear that "the advertisements for the notes in this case described them as 'investment',...... and there is no contrarian factor sufficient to make the rational public question the statement." [19]
As mentioned earlier, Covered Stablecoins are not advertised as investment vehicles. Rather, it is promoted as a stable, fast, reliable, and easily accessible way to transfer or store value, rather than emphasizing potential profitability or return on investment. Therefore, from the perspective of the investing public, it is not reasonable to expect such stablecoins to be securities regulated investment vehicles.
4) Risk Mitigation Characteristics
In the Reves precedent, the risk mitigation features of concern for this factor include whether the note is backed by collateral, whether it is insured, or whether it is subject to other regulatory regimes that "significantly reduce the risk of the financial instrument so that the application of securities law is no longer necessary." [20] The issuer of an asset-backed stablecoin maintains a reserve mechanism designed to fully meet redemption obligations, [21] The reserve is made up of U.S. dollars and/or other assets deemed low-risk, highly liquid to ensure that the issuer can fulfill all redemption requests at any time.
Therefore, based on various factors, the Department believes that asset-backed stablecoins do not constitute securities under the Reves standard for the following reasons:
The issuer uses the proceeds of the sale to establish a reserve account, and the buyer's motivation to purchase is not based on the expectation of a return on the funds;
The distribution of asset-backed stablecoins does not encourage speculation or investment transactions;
Rational buyers would not reasonably expect such stablecoins to be investment vehicles;
The continuous provision of sufficient reserves ready to meet redemption obligations constitutes a substantial risk mitigation mechanism.
In short, asset-backed stablecoins are issued and sold for commercial or consumer purposes, not to raise investment.
Howey Analysis
If an asset-backed stablecoin is not considered a note or other debt instrument, and is not a other financial instrument expressly listed in Section 2(a)(1) of the Securities Act and Section 3(a)(10) of the Exchange Act, further analysis of its issuance and sale behavior is required under the "investment contract" standard, known as the Howey Test. The test is based on "economic substance" and is used to assess whether an arrangement or instrument that does not fall within the scope of the above provisions constitutes a security. [22]
In analysing the economic substance of a transaction, the Howey test focuses on the following factors: whether there is a capital investment in a common enterprise, and whether the investor is based on a reasonable expectation of profits, which will come from the entrepreneurial or managerial efforts of others, usually the project party. Since [23], the Supreme Court has distinguished between the motive of an investor (i.e. being attracted by the prospect of a return on investment [24]) and the motive of a consumer (i.e. for the purpose of "using or consuming the object purchased"). [25] The federal securities laws apply only to transactions in the conduct of investments and not to consumer transactions. [26]
As mentioned above, the buyer of asset-backed stablecoins does not purchase such stablecoins based on the expectation of profits that may result from the entrepreneurial or managerial activities of others. The instrument is not advertised in the market as an investment product, nor does it emphasize any profit potential. [27] Conversely, buyers are motivated to buy asset-backed stablecoins by using them as "digital dollars" for payment or storage, similar to the use of U.S. dollars.
Therefore, the Department believes that the issuance and sale of asset-backed stablecoins do not constitute an investment contract and are not securities under the Securities Law.
For further information, please contact the Division's Office of the Chief Counsel by submitting an online request form at: