SAFE Banking Act of 2021

To create protections for financial institutions that provide financial services to cannabis-related legitimate businesses and service providers for such businesses, and for other purposes. 1. Short title; table of contents; purpose (a) Short title This Act may be cited as the Secure And Fair Enforcement Banking Act of 2021 SAFE Banking Act of 2021 (b) Table of contents The table of contents for this Act is as follows: Sec. 1. Short title; table of contents; purpose. Sec. 2. Safe harbor for depository institutions. Sec. 3. Protections for ancillary businesses. Sec. 4. Protections under federal law. Sec. 5. Rules of construction. Sec. 6. Requirements for filing suspicious activity reports. Sec. 7. Guidance and examination procedures. Sec. 8. Annual diversity and inclusion report. Sec. 9. GAO study on diversity and inclusion. Sec. 10. GAO study on effectiveness of certain reports on finding certain persons. Sec. 11. Application of this act with respect to hemp-related legitimate businesses and hemp-related service providers. Sec. 12. Banking services for hemp-related legitimate businesses and hemp-related service providers. Sec. 13. Requirements for deposit account termination requests and orders. Sec. 14. Definitions. (c) Purpose The purpose of this Act is to increase public safety by ensuring access to financial services to cannabis-related legitimate businesses and service providers and reducing the amount of cash at such businesses. 2. Safe harbor for depository institutions (a) In general A Federal banking regulator may not— (1) terminate or limit the deposit insurance or share insurance of a depository institution under the Federal Deposit Insurance Act ( 12 U.S.C. 1811 12 U.S.C. 1751 12 U.S.C. 1818 (2) prohibit, penalize, or otherwise discourage a depository institution from providing financial services to a cannabis-related legitimate business or service provider or to a State, political subdivision of a State, or Indian Tribe that exercises jurisdiction over cannabis-related legitimate businesses; (3) recommend, incentivize, or encourage a depository institution not to offer financial services to an account holder, or to downgrade or cancel the financial services offered to an account holder solely because— (A) the account holder is a cannabis-related legitimate business or service provider, or is an employee, owner, or operator of a cannabis-related legitimate business or service provider; (B) the account holder later becomes an employee, owner, or operator of a cannabis-related legitimate business or service provider; or (C) the depository institution was not aware that the account holder is an employee, owner, or operator of a cannabis-related legitimate business or service provider; (4) take any adverse or corrective supervisory action on a loan made to— (A) a cannabis-related legitimate business or service provider, solely because the business is a cannabis-related legitimate business or service provider; (B) an employee, owner, or operator of a cannabis-related legitimate business or service provider, solely because the employee, owner, or operator is employed by, owns, or operates a cannabis-related legitimate business or service provider, as applicable; or (C) an owner or operator of real estate or equipment that is leased to a cannabis-related legitimate business or service provider, solely because the owner or operator of the real estate or equipment leased the equipment or real estate to a cannabis-related legitimate business or service provider, as applicable; or (5) prohibit or penalize a depository institution (or entity performing a financial service for or in association with a depository institution) for, or otherwise discourage a depository institution (or entity performing a financial service for or in association with a depository institution) from, engaging in a financial service for a cannabis-related legitimate business or service provider. (b) Safe harbor applicable to de novo institutions Subsection (a) shall apply to an institution applying for a depository institution charter to the same extent as such subsection applies to a depository institution. 3. Protections for ancillary businesses For the purposes of sections 1956 and 1957 of title 18, United States Code, and all other provisions of Federal law, the proceeds from a transaction involving activities of a cannabis-related legitimate business or service provider shall not be considered proceeds from an unlawful activity solely because— (1) the transaction involves proceeds from a cannabis-related legitimate business or service provider; or (2) the transaction involves proceeds from— (A) cannabis-related activities described in section 14(4)(B) conducted by a cannabis-related legitimate business; or (B) activities described in section 14(13)(A) conducted by a service provider. 4. Protections under federal law (a) In general With respect to providing a financial service to a cannabis-related legitimate business (where such cannabis-related legitimate business operates within a State, political subdivision of a State, or Indian country that allows the cultivation, production, manufacture, sale, transportation, display, dispensing, distribution, or purchase of cannabis pursuant to a law or regulation of such State, political subdivision, or Indian Tribe that has jurisdiction over the Indian country, as applicable) or a service provider (wherever located), a depository institution, entity performing a financial service for or in association with a depository institution, or insurer that provides a financial service to a cannabis-related legitimate business or service provider, and the officers, directors, and employees of that depository institution, entity, or insurer may not be held liable pursuant to any Federal law or regulation— (1) solely for providing such a financial service; or (2) for further investing any income derived from such a financial service. (b) Protections for federal reserve banks and federal home loan banks With respect to providing a service to a depository institution that provides a financial service to a cannabis-related legitimate business (where such cannabis-related legitimate business operates within a State, political subdivision of a State, or Indian country that allows the cultivation, production, manufacture, sale, transportation, display, dispensing, distribution, or purchase of cannabis pursuant to a law or regulation of such State, political subdivision, or Indian Tribe that has jurisdiction over the Indian country, as applicable) or service provider (wherever located), a Federal reserve bank or Federal Home Loan Bank, and the officers, directors, and employees of the Federal reserve bank or Federal Home Loan Bank, may not be held liable pursuant to any Federal law or regulation— (1) solely for providing such a service; or (2) for further investing any income derived from such a service. (c) Protections for insurers With respect to engaging in the business of insurance within a State, political subdivision of a State, or Indian country that allows the cultivation, production, manufacture, sale, transportation, display, dispensing, distribution, or purchase of cannabis pursuant to a law or regulation of such State, political subdivision, or Indian Tribe that has jurisdiction over the Indian country, as applicable, an insurer that engages in the business of insurance with a cannabis-related legitimate business or service provider or who otherwise engages with a person in a transaction permissible under State law related to cannabis, and the officers, directors, and employees of that insurer may not be held liable pursuant to any Federal law or regulation— (1) solely for engaging in the business of insurance; or (2) for further investing any income derived from the business of insurance. (d) Forfeiture (1) Depository institutions A depository institution that has a legal interest in the collateral for a loan or another financial service provided to an owner, employee, or operator of a cannabis-related legitimate business or service provider, or to an owner or operator of real estate or equipment that is leased or sold to a cannabis-related legitimate business or service provider, shall not be subject to criminal, civil, or administrative forfeiture of that legal interest pursuant to any Federal law for providing such loan or other financial service. (2) Federal reserve banks and federal home loan banks A Federal reserve bank or Federal Home Loan Bank that has a legal interest in the collateral for a loan or another financial service provided to a depository institution that provides a financial service to a cannabis-related legitimate business or service provider, or to an owner or operator of real estate or equipment that is leased or sold to a cannabis-related legitimate business or service provider, shall not be subject to criminal, civil, or administrative forfeiture of that legal interest pursuant to any Federal law for providing such loan or other financial service. 5. Rules of construction (a) No requirement To provide financial services Nothing in this Act shall require a depository institution, entity performing a financial service for or in association with a depository institution, or insurer to provide financial services to a cannabis-related legitimate business, service provider, or any other business. (b) General examination, supervisory, and enforcement authority Nothing in this Act may be construed in any way as limiting or otherwise restricting the general examination, supervisory, and enforcement authority of the Federal banking regulators, provided that the basis for any supervisory or enforcement action is not the provision of financial services to a cannabis-related legitimate business or service provider. (c) Business of insurance Nothing in this Act shall interfere with the regulation of the business of insurance in accordance with the Act of March 9, 1945 (59 Stat. 33, chapter 20; 15 U.S.C. 1011 McCarran-Ferguson Act 12 U.S.C. 5301 6. Requirements for filing suspicious activity reports Section 5318(g) of title 31, United States Code, is amended by adding at the end the following: (5) Requirements for cannabis-related legitimate businesses (A) In general With respect to a financial institution or any director, officer, employee, or agent of a financial institution that reports a suspicious transaction pursuant to this subsection, if the reason for the report relates to a cannabis-related legitimate business or service provider, the report shall comply with appropriate guidance issued by the Financial Crimes Enforcement Network. Not later than the end of the 180-day period beginning on the date of enactment of this paragraph, the Secretary shall update the February 14, 2014, guidance titled BSA Expectations Regarding Marijuana-Related Businesses (B) Definitions For purposes of this paragraph: (i) Cannabis The term cannabis marihuana 21 U.S.C. 802 (ii) Cannabis-related legitimate business The term cannabis-related legitimate business (iii) Indian country The term Indian country (iv) Indian tribe The term Indian Tribe 25 U.S.C. 479a (v) Financial service The term financial service (vi) Service provider The term service provider (vii) State The term State . 7. Guidance and examination procedures Not later than 180 days after the date of enactment of this Act, the Financial Institutions Examination Council shall develop uniform guidance and examination procedures for depository institutions that provide financial services to cannabis-related legitimate businesses and service providers. 8. Annual diversity and inclusion report The Federal banking regulators shall issue an annual report to Congress containing— (1) information and data on the availability of access to financial services for minority-owned and women-owned cannabis-related legitimate businesses; and (2) any regulatory or legislative recommendations for expanding access to financial services for minority-owned and women-owned cannabis-related legitimate businesses. 9. GAO study on diversity and inclusion (a) Study The Comptroller General of the United States shall carry out a study on the barriers to marketplace entry, including in the licensing process, and the access to financial services for potential and existing minority-owned and women-owned cannabis-related legitimate businesses. (b) Report The Comptroller General shall issue a report to the Congress— (1) containing all findings and determinations made in carrying out the study required under subsection (a); and (2) containing any regulatory or legislative recommendations for removing barriers to marketplace entry, including in the licensing process, and expanding access to financial services for potential and existing minority-owned and women-owned cannabis-related legitimate businesses. 10. GAO study on effectiveness of certain reports on finding certain persons Not later than 2 years after the date of the enactment of this Act, the Comptroller General of the United States shall carry out a study on the effectiveness of reports on suspicious transactions filed pursuant to section 5318(g) of title 31, United States Code, at finding individuals or organizations suspected or known to be engaged with transnational criminal organizations and whether any such engagement exists in a State, political subdivision, or Indian Tribe that has jurisdiction over Indian country that allows the cultivation, production, manufacture, sale, transportation, display, dispensing, distribution, or purchase of cannabis. The study shall examine reports on suspicious transactions as follows: (1) During the period of 2014 until the date of the enactment of this Act, reports relating to marijuana-related businesses. (2) During the 1-year period after date of the enactment of this Act, reports relating to cannabis-related legitimate businesses. 11. Application of this act with respect to hemp-related legitimate businesses and hemp-related service providers (a) In general The provisions of this Act (other than sections 6 and 10) shall apply with respect to hemp-related legitimate businesses and hemp-related service providers in the same manner as such provisions apply with respect to cannabis-related legitimate businesses and service providers. (b) Definitions In this section: (1) CBD The term CBD (2) Hemp The term hemp 7 U.S.C. 1639o (3) Hemp-related legitimate business The term hemp-related legitimate business (A) engages in any activity described in subparagraph (B) in conformity with the Agricultural Improvement Act of 2018 ( Public Law 115–334 (B) participates in any business or organized activity that involves handling hemp, hemp-derived CBD products, and other hemp-derived cannabinoid products, including cultivating, producing, drying, storing, extracting, remediating, purifying, testing, manufacturing, selling, transporting, transferring, displaying, dispensing, distributing, or purchasing hemp, hemp-derived CBD products, and other hemp-derived cannabinoid products. (4) Hemp-related service provider The term hemp-related service provider (A) means a business, organization, or other person that— (i) sells goods or services to a hemp-related legitimate business; or (ii) provides any business services, including the sale or lease of real or any other property, legal or other licensed services, or any other ancillary service, relating to hemp, hemp-derived CBD products, or other hemp-derived cannabinoid products; and (B) does not include a business, organization, or other person that participates in any business or organized activity that involves handling hemp, hemp-derived CBD products, or other hemp-derived cannabinoid products, including cultivating, producing, drying, storing, extracting, remediating, purifying, testing, manufacturing, selling, transporting, transferring, displaying, dispensing, distributing, or purchasing hemp, hemp-derived CBD products, and other hemp-derived cannabinoid products. 12. Banking services for hemp-related legitimate businesses and hemp-related service providers (a) Findings The Congress finds that— (1) the Agriculture Improvement Act of 2018 ( Public Law 115–334 marihuana (2) despite the legalization of hemp, some hemp businesses (including producers, manufacturers, and retailers) and service providers continue to have difficulty gaining access to banking products and services; and (3) businesses involved in the sale of hemp-derived CBD products are particularly affected, due to confusion about the legal status of such products. (b) Federal banking regulators’ hemp banking guidance Not later than the end of the 90-day period beginning on the date of enactment of this Act, the Federal banking regulators shall update their existing guidance, as applicable, regarding the provision of financial services to hemp-related legitimate businesses and hemp-related service providers to address— (1) compliance with financial institutions’ existing obligations under Federal laws and implementing regulations determined relevant by the Federal banking regulators, including subchapter II of chapter 53 (2) best practices for financial institutions to follow when providing financial services, including processing payments, to hemp-related legitimate businesses and hemp-related service providers. (c) Definitions In this section: (1) Financial institution The term financial institution (A) has the meaning given that term under section 5312(a) of title 31, United States Code; and (B) includes a bank holding company, as defined under section 2(a) of the Bank Holding Company Act of 1956 ( 12 U.S.C. 1841(a) (2) Hemp terms The terms CBD hemp hemp-related legitimate business hemp-related service provider 13. Requirements for deposit account termination requests and orders (a) Termination requests or orders must be valid (1) In general An appropriate Federal banking agency may not formally or informally request or order a depository institution to terminate a specific customer account or group of customer accounts or to otherwise restrict or discourage a depository institution from entering into or maintaining a banking relationship with a specific customer or group of customers unless— (A) the agency has a valid reason for such request or order; and (B) such reason is not based solely on reputation risk. (2) Treatment of national security threats If an appropriate Federal banking agency believes a specific customer or group of customers is, or is acting as a conduit for, an entity which— (A) poses a threat to national security; (B) is involved in terrorist financing; (C) is an agency of the Government of Iran, North Korea, Syria, or any country listed from time to time on the State Sponsors of Terrorism list; (D) is located in, or is subject to the jurisdiction of, any country specified in subparagraph (C); or (E) does business with any entity described in subparagraph (C) or (D), unless the appropriate Federal banking agency determines that the customer or group of customers has used due diligence to avoid doing business with any entity described in subparagraph (C) or (D), such belief shall satisfy the requirement under paragraph (1). (b) Notice requirement (1) In general If an appropriate Federal banking agency formally or informally requests or orders a depository institution to terminate a specific customer account or a group of customer accounts, the agency shall— (A) provide such request or order to the institution in writing; and (B) accompany such request or order with a written justification for why such termination is needed, including any specific laws or regulations the agency believes are being violated by the customer or group of customers, if any. (2) Justification requirement A justification described under paragraph (1)(B) may not be based solely on the reputation risk to the depository institution. (c) Customer notice (1) Notice required Except as provided under paragraph (2) or as otherwise prohibited from being disclosed by law, if an appropriate Federal banking agency orders a depository institution to terminate a specific customer account or a group of customer accounts, the depository institution shall inform the specific customer or group of customers of the justification for the customer’s account termination described under subsection (b). (2) Notice prohibited (A) Notice prohibited in cases of national security If an appropriate Federal banking agency requests or orders a depository institution to terminate a specific customer account or a group of customer accounts based on a belief that the customer or customers pose a threat to national security, or are otherwise described under subsection (a)(2), neither the depository institution nor the appropriate Federal banking agency may inform the customer or customers of the justification for the customer’s account termination. (B) Notice prohibited in other cases If an appropriate Federal banking agency determines that the notice required under paragraph (1) may interfere with an authorized criminal investigation, neither the depository institution nor the appropriate Federal banking agency may inform the specific customer or group of customers of the justification for the customer’s account termination. (d) Reporting requirement Each appropriate Federal banking agency shall issue an annual report to the Congress stating— (1) the aggregate number of specific customer accounts that the agency requested or ordered a depository institution to terminate during the previous year; and (2) the legal authority on which the agency relied in making such requests and orders and the frequency on which the agency relied on each such authority. (e) Definitions For purposes of this section: (1) Appropriate federal banking agency The term appropriate Federal banking agency (A) the appropriate Federal banking agency, as defined under section 3 of the Federal Deposit Insurance Act ( 12 U.S.C. 1813 (B) the National Credit Union Administration, in the case of an insured credit union. (2) Depository institution The term depository institution (A) a depository institution, as defined under section 3 of the Federal Deposit Insurance Act ( 12 U.S.C. 1813 (B) an insured credit union. 14. Definitions In this Act: (1) Business of insurance The term business of insurance 12 U.S.C. 5481 (2) Cannabis The term cannabis marihuana 21 U.S.C. 802 (3) Cannabis product The term cannabis product (4) Cannabis-related legitimate business The term cannabis-related legitimate business (A) engages in any activity described in subparagraph (B) pursuant to a law established by a State or a political subdivision of a State, as determined by such State or political subdivision; and (B) participates in any business or organized activity that involves handling cannabis or cannabis products, including cultivating, producing, manufacturing, selling, transporting, displaying, dispensing, distributing, or purchasing cannabis or cannabis products. (5) Depository institution The term depository institution (A) a depository institution as defined in section 3(c) of the Federal Deposit Insurance Act ( 12 U.S.C. 1813(c) (B) a Federal credit union as defined in section 101 of the Federal Credit Union Act ( 12 U.S.C. 1752 (C) a State credit union as defined in section 101 of the Federal Credit Union Act ( 12 U.S.C. 1752 (6) Federal banking regulator The term Federal banking regulator (7) Financial service The term financial service (A) means— (i) a financial product or service, as defined in section 1002 of the Dodd-Frank Wall Street Reform and Consumer Protection Act ( 12 U.S.C. 5481 (ii) a financial product or service, or any combination of products and services, permitted to be provided by— (I) a national bank or a financial subsidiary pursuant to the authority provided under— (aa) the provision designated Seventh 12 U.S.C. 24 (bb) section 5136A of the Revised Statutes of the United States ( 12 U.S.C. 24a (II) a Federal credit union, pursuant to the authority provided under the Federal Credit Union Act; and (B) includes— (i) the business of insurance; (ii) whether performed directly or indirectly, the authorizing, processing, clearing, settling, billing, transferring for deposit, transmitting, delivering, instructing to be delivered, reconciling, collecting, or otherwise effectuating or facilitating of payments or funds, where such payments or funds are made or transferred by any means, including by the use of credit cards, debit cards, other payment cards, or other access devices, accounts, original or substitute checks, or electronic funds transfers; (iii) acting as a money transmitting business which directly or indirectly makes use of a depository institution in connection with effectuating or facilitating a payment for a cannabis-related legitimate business or service provider in compliance with section 5330 of title 31, United States Code, and any applicable State law; and (iv) acting as an armored car service for processing and depositing with a depository institution or a Federal reserve bank with respect to any monetary instruments (as defined under section 1956(c)(5) of title 18, United States Code. (8) Indian country The term Indian country (9) Indian tribe The term Indian Tribe 25 U.S.C. 479a (10) Insurer The term insurer (11) Manufacturer The term manufacturer (12) Producer The term producer (13) Service provider The term service provider (A) means a business, organization, or other person that— (i) sells goods or services to a cannabis-related legitimate business; or (ii) provides any business services, including the sale or lease of real or any other property, legal or other licensed services, or any other ancillary service, relating to cannabis; and (B) does not include a business, organization, or other person that participates in any business or organized activity that involves handling cannabis or cannabis products, including cultivating, producing, manufacturing, selling, transporting, displaying, dispensing, distributing, or purchasing cannabis or cannabis products. (14) State The term State

Summary: Secure and Fair Enforcement Banking Act of 2021 or the SAFE Banking Act of 2021 This bill generally prohibits a federal banking regulator from penalizing a depository institution for providing banking services to a legitimate cannabis-related business. Prohibited penalties include terminating or limiting the deposit insurance or share insurance of a depository institution solely because the institution provides financial services to a legitimate cannabis-related business and prohibiting or otherwise discouraging a depository institution from offering financial services to such a business. Additionally, proceeds from a transaction involving activities of a legitimate cannabis-related business are not considered proceeds from unlawful activity. Proceeds from unlawful activity are subject to anti-money laundering laws. Furthermore, a depository institution is not, under federal law, liable or subject to asset forfeiture for providing a loan or other financial services to a legitimate cannabis-related business. The bill also provides that a federal banking agency may not request or order a depository institution to terminate a customer account unless (1) the agency has a valid reason for doing so, and (2) that reason is not based solely on reputation risk. Valid reasons for terminating an account include threats to national security and involvement in terrorist financing, including state sponsorship of terrorism.