digital assets

Executive Order on Digital Assets a Welcome Start to Responsible Regulation

By James Holbein, Braumiller Law Group PLLC

The President issued an Executive Order on Ensuring Responsible Development of Digital Assets on March 9, 2022.   The value of the cryptocurrency and digital assets sector exceeds $3 trillion and has the potential to grow much larger with proper regulation.  No country has taken a lead role to develop regulation that will foster innovation while simultaneously protecting consumers, investors and businesses from criminal activity related to digital assets.  This Executive Order is a bold move by the United States to assess and analyze the digital asset sector. If responsible legislation based on the EO can be drafted and passed, the US stands to authorize a strong, effective regulatory approach that also fosters innovation.

This broad government effort involves all the financial regulating agencies, while also bringing in the views of other economic and international agencies.  The most important set of deliverables are a series of reports, assessments, frameworks, and draft legislation.  This article provides an overview of those twenty reports grouped by due dates, with brief synopses of the considerations agencies must take into account and the analytical approach called for in the Order.

This comprehensive effort focuses on developing an all-government approach to collect data, analyze, consult with civil society and prepare reports focusing on five major concerns:

  1. Assessing a possible United States central bank digital currency
  2. Protecting consumers, investors, and businesses
  3. Promoting financial stability, mitigating systemic risk, and strengthening market integrity
  4. Limiting illicit finance and associated national security risks
  5. Fostering international cooperation and United States competitiveness

This major interagency effort will succeed, at least in part, if the views of active participants in all sectors of the digital asset community have a voice.  The interests of a Decentralized Autonomous Organization (DAO) are not necessarily the same as those of a decentralized exchange (DEX) or an NFT minting operation. Broad engagement between government, companies in the digital assets sector and civil society may be  accomplished through the normal notice and comment approach to rulemaking.  Alternatively, a more inclusive and flexible process that allows participants in the digital assets sector and other interested parties, including those opposed to the current digital assets markets, to assist the government to both understand the sector and to advise on what regulatory approaches will leverage the strength of the technology while protecting the users.

The digital asset sector is so innovative and apparently different from the current centralized regulatory model, that it could pose problems for government officials who are not on the forefront of innovation to make sound recommendations that allow decentralized mechanisms and distributed ledger technologies to flourish.  It is predictable that the various agencies will make proposals specific to their regulatory mission(s).  Without a coherent mission or goal for the effort, it will be difficult to propose strong and effective law to guide the regulation of digital assets.  Ideally, this whole government effort will lead to responsible, effective, and coherent regulatory solutions for the digital asset sector and the American people.  Bringing a solid level of certainty to the digital assets sector will promote efforts to normalize it into a useful, accepted, safe environment for financial and other activity.

The following tables provide a comprehensive list of all the deliverables required by the Executive Order.  At the end of the process, if solutions can be negotiated among the agencies and the sector being regulated, then real legislation can be crafted and  passed in the reasonably near future.  If so, the U.S. will be positioned to lead the global development of this promising technology sector.

Report Due in 90 Days (Tuesday, June 7, 2022):

International Cooperation on Criminal Activity and Digital Assets



Analytical Approach

·  Attorney General

·  State

·  Treasury

Homeland Security

How to strengthen international law enforcement cooperation for detecting, investigating, and prosecuting criminal activity related to digital assets

None specified


Report Due in 120 Days (Tuesday, July 7, 2022):

Framework for International Engagement



Analytical Approach

•     Treasury

•     State

•     Commerce

•     USAID

•   Develop framework for international engagement with foreign counterparts and international bodies

•   Adapt, update, and enhance adoption of global principles and standards for digital assets

•   Promote development of digital assets and CBDC technologies consistent with USA values and law

•   Specific and prioritized lines of effort

•   Coordinated messaging

•   Interagency engagement

•   Foreign assistance

•   Capacity-building efforts

•   Coordination of global compliance

•   Government efforts to promote international principles, standards, and best practices

•   Promote development of digital asset and CBDC technologies consistent with core values

•   Elevated engagement on digital assets issues in technical standards bodies

Reports Due in 180 Days (Tuesday, September 6, 2022):

  1. Report on CBDC and the Future of Money and Payment Systems



Analytical Approach

•   Treasury Lead

•   State

•   Commerce

•   Attorney General

•   Homeland Security

•   OMB

•   DNI

•   Conditions that drive broad adoption of digital assets

•   Technological innovation

•   Impact on financial system

•   Modernization of and changes to payment systems

•   Economic growth

•   Financial inclusion

•   National security

·  Implications of US CBDC

·  Implications for financial inclusion

·  Potential relationship between a CBDC and private sector-administered digital assets

·  Future of sovereign and privately produced money globally

·  Analysis for US financial system & democracy

·  Could foreign CBDCs displace fiat currencies, alter payment systems, or undermine US financial centrality and impact on US interests

·  Potential implications for national security and financial crime

    2. Strategic Plan for Federal Action on CBDCs
Agencies Considerations Analytical Approach
Federal Reserve •   Assess whether CBDCs: o Improve efficiency o Reduce costs of existing & future payments systems •   Assess the optimal form of U.S. CBDC •   Develop a strategic plan for Federal and USG actions ·  To evaluate the extent to which a US CBDC, o  Based on potential design options o  CBDC Impact on ability of monetary policy to function effectively as a critical macroeconomic stabilization tool. ·  Strategic plan evaluates necessary steps and requirements for implementation and launch of US CBDC.
    3. Assessment of Legislative Changes Necessary to Issue U.S. CBDC
Agencies Considerations Analytical Approach
Attorney General through APNSA and APEP Prepare assessment of legislative changes necessary to issue U.S. CBDC, if appropriate and in national interest
    4. Digital Assets Measures to Protect Consumers, Investors and Businesses
Agencies Considerations Analytical Approach
·   Treasury ·   Labor ·   FTC ·   SEC ·   CFTC ·   FDIC ·   COC ·   CFPB ·  Fraud, theft, and statutory and regulatory violations ·  Privacy and data breaches ·  Unfair and abusive practices ·  Cyber issues ·  Risk to less uninformed ·  Measure to reduce risks ·  Protections to create safe and affordable financial services ·   Implications of development and adoption of digital assets ·   Changes needed in financial market and payment system infrastructures ·   Equitable economic growth ·   Conditions that would drive mass adoption of diverse types of digital assets ·   Risks and opportunities ·   Impact of technological innovation ·   Consider most vulnerable to disparate impacts ·   Policy recommendations ·   Potential regulatory and legislative responses Support expanding access to safe and affordable financial services
    5. Technical Evaluation of Capacity to Support CBDC System
Agencies Considerations Analytical Approach
•    Office of Science and Technology Policy, •    Chief Technology Officer of the U.S, •    Treasury •    Federal Reserve ·  Technological infrastructure, capacity, and expertise ·  Facilitate and support introduction of a CBDC system ·    Technical risks of the assorted designs ·    Emerging and future technological developments, such as quantum computing. ·    Recommendations on how inclusion of digital assets in federal processes may affect provision of services, including: o  Cybersecurity o  Customer experience o  Social‑safety‑net programs
    6. Report on the Role of Law Enforcement Agencies
Agencies Considerations Analytical Approach
•   Attorney General •   Treasury •   Homeland Security Role of law enforcement agencies in detecting, investigating, and prosecuting criminal activity in digital assets Recommendations on regulatory or legislative actions
    7. Report on Digital Assets and Energy Issues
Agencies Considerations Analytical Approach
•   Office of Science and Technology Policy, •   Treasury •   Energy, •   EPA •   Council of Economic Advisors, •   National Climate Advisor •   Impact of DLT on economic and energy transitions; •   Technology and climate change •   Impacts on the environment. •   Effect of cryptocurrencies’ consensus mechanisms on energy usage •   Mitigating measures & alternative mechanisms of consensus •   Design tradeoffs Potential uses of distributed ledger technologies and blockchain: •    To support monitoring or mitigating technologies’ climate impacts •    For exchanging of liabilities for greenhouse gas emissions, water, and other natural or environmental assets •    Implications for energy policy •    Grid management and reliability •    Energy efficiency incentives and standards •    Sources of energy supply
    8. Economic Competitiveness Framework for Digital Assets Technology
Agencies Considerations Analytical Approach
·   Commerce ·   State ·   Treasury Framework for enhancing United States economic competitiveness in, and leveraging of, digital asset technologies
Reports Due in 210 Days (Wednesday, October 5, 2022):
    9. CBDC Legislative Proposal
Agencies Considerations Analytical Approach
Attorney General through APNSA and APEP Develop a GBDC legislative proposal Based on Treasury CBDC report and Federal Reserve Strategic Plan
    10. Assessment of Financial Stability and Market Integrity
Agencies Considerations Analytical Approach
·  Treasury ·  FSOC ·   Assess financial and market risks of digital assets ·   Analyze prior analyses and assessments by Federal agencies •  Recommendations on financial stability risks •  Recommendations addressing risks. •  Note differences among digital assets •  Proposals for additional or adjusted regulation and supervision and new legislation

Other Reports Required by the Executive Order




•    Attorney General

•    FTC

•    CFPB

Consider effects the growth of digital assets could have on competition policy

Competition Policy

•    FTC

•    CFPB

Extent to which existing or new privacy or consumer protection measures can protect digital assets users

Privacy or Consumer Protection

•    SEC

•    CFTC

•    Federal Reserve

•    FDIC

•    COC

Extent existing or new investor and market protection measures can address digital assets risks

Investor and Market Protection

•    OSTP

•    Treasury

•    Energy

•    EPA

•    CEA

Update the Energy issues report above to address any knowledge gaps identified in such report.


Due one year after energy report = 9/6/2023

·   Treasury

·   State

·   Attorney General

·   Commerce

·   Homeland Security

•    OMB

•    DNI

Submit views on regulation, supervision, public‑private engagement, oversight, and law enforcement for risks:

·  Illicit finance risks posed by digital assets

·  Cryptocurrencies

·  Stablecoins

•   CBDCs

•   Trends in the use of digital assets by illicit actors

Illicit Finance Risks Posed by Digital Assets


Due 90 days after submission to Congress of National Strategy for Combating Terrorist and Other Illicit Financing

·   Treasury

·   State

·   Attorney General

·   Commerce

·   Homeland Security

•    OMB

•    DNI

Action plan coordinated through the interagency process

•   Address role of law enforcement

•   Address measures to increase financial services providers’ compliance with AML/CFT obligations

Action Plan for Mitigating Digital Assets Risks of Illicit Activities


Due 120 days after submission to Congress of National Strategy for Combating Terrorist and Other Illicit Financing

·    Treasury


•   Perspectives of relevant agencies in evaluating opportunities to mitigate risks through regulation

•   Notify agencies of pending, proposed, or prospective rulemakings to address digital asset illicit finance risks

Notification of Rulemakings to Address Illicit Digital Assets Finance Risks


Due 120 days after all these National Risk Assessments:

•   Money Laundering

•   Terrorist Financing

•   Proliferation Financing

•   updated National Strategy for Combating Terrorist and Other Illicit Financing

•   Treasury

•   State

•   Commerce

•   OMB


Priority actions taken under the framework and its effectiveness

Framework Actions Taken in International Cooperation


Due One year from establishment of framework on 7/7/2023

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