February 11, 2022

Nebraska Should Consider Creating Regulatory Sandboxes

Nebraska Banking, Commerce, and Insurance Committee
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Chair Williams and members of the Nebraska Banking, Commerce, and Insurance Committee:

Thank you for the opportunity to testify. My name is Brian Knight, and I am a senior research fellow at the Mercatus Center at George Mason University. My expertise is in financial technology, and I have done research on regulatory sandboxes.

Today I would like to offer these takeaways for regulatory sandboxes:

  1. Regulatory sandboxes offer potential benefits, including increased innovation and competition.
  2. Regulatory sandboxes also have potential risks, including risks to competition and consumer protection.
  3. There are ways to mitigate these risks while securing the benefits of a regulatory sandbox.

I have attached a scholarly article I coauthored with Trace Mitchell discussing these issues in more detail.

Defining Regulatory Sandboxes

“Regulatory Sandboxes” are an increasingly common feature in global regulation. As a general rule, they can be defined as “a decreed state of exception within a regulatory regime that allows firms to offer products or services for a limited time to a limited number of customers in a modified regulatory environment for the purpose of allowing the firm to test a product or service before it is offered more broadly.”

Beginning with the United Kingdom’s Financial Conduct Authority in 2016, numerous national and state governments have launched regulatory sandboxes. Although most sandboxes deal with financial services, several countries, including Japan and Singapore, have launched sandboxes for other industries or to serve multiple industries. The state of Utah was the first US state to launch a general, industry-agnostic regulatory sandbox.

Benefits and Pitfalls

Regulatory sandboxes were developed to achieve several important goals, including encouraging innovation, competition, and entry in highly regulated industries; providing regulators with greater insight and transparency into cutting-edge products and services; and furthering consumer protection by both helping innovators design their products to be compliant with the law and encouraging the introduction of products and services that will better serve consumer needs.

Although regulatory sandboxes are new innovations and their full effect remains to be determined, there is some evidence that regulatory sandboxes can help new firms enter the market. For example, they may help increase access to funding by reducing regulatory uncertainty and information asymmetries between firms and investors.

Although regulatory sandboxes have significant potential benefits, some potential risks must be guarded against. One area of obvious concern is consumer protection. One critique of sandboxes is that they remove necessary consumer safeguards. These risks can be guarded against in a well-executed sandbox that requires applicants to have a viable plan, have the ability to execute on the plan, and make customers whole in the event of a failure. Likewise, the agency responsible for administering the sandbox must be able to conduct adequate vetting and supervision on participants and be able to force a participant to make customers whole if necessary and appropriate.

Another, perhaps less obvious, concern is the risk that a regulatory sandbox could grant an unfair regulatory advantage to those firms lucky enough to gain admission. This advantage could manifest itself as greater access to funding, greater exclusive access to the expertise provided by regulators, and the possibility that regulators develop a culture of being stricter on firms that do not participate in a sandbox, even if such treatment is not actually justified.

These risks are real and should be taken seriously, but fortunately they can be somewhat mitigated. The risk that access to the sandbox becomes a “golden ticket” can be reduced by granting relatively broad access to the sandbox, making sandbox administrators justify decisions to reject applications, and providing maximal transparency with regard to any legal or regulatory guidance provided to sandbox participants. Sandboxes should be voluntary, and whereas participation in a sandbox may be evidence of good faith, a lack of participation should not be seen as evidence of bad faith on the part of a firm.

The present bill contains several provisions that recognize and seek to mitigate the risks described earlier. For example, requiring applicants to demonstrate a credible plan to protect consumers in the event of failure can help protect customers, and considering a competitor’s admission into the sandbox as a factor in favor of admission can help prevent the sandbox from providing an undue first-mover advantage. However, the effectiveness of these protections will ultimately depend on the quality of execution on the part of the relevant agencies charged with administering the sandbox.

The legislature may wish to consider changing the composition of the General Regulatory Sandbox Advisory Committee. The bill currently creates an 11-person committee with 9 voting members. Of the voting members, two-thirds would represent business interests and be selected from industry clusters. This composition might introduce the risk that established businesses are able to limit access to the sandbox, either intentionally or unintentionally. The legislature may wish to adjust the composition of the committee to explicitly include representatives for the interests of new businesses, academics familiar with the economy of Nebraska, or others who can provide an outside perspective.

Conclusion

There is a manifest interest in the State of Nebraska for changing its regulatory environment to further innovation. There is reason to believe that carefully designed sandboxes may be part of a policy effort to foster a more dynamic, competitive, and rich economy for this state.

Attachment

Brian R. Knight and Trace E. Mitchell, “The Sandbox Paradox: Balancing the Need to Facilitate Innovation with the Risk of Regulatory Privilege,” South Carolina Law Review 72, no. 2 (2020): 445–76.