The New York Department of Financial Services (NYDFS) has released its long-anticipated list of proposed rules and regulations that will be required for New York-based bitcoin businesses.
The announcement came via a Twitter post from Benjamin M Lawsky, New York State’s first Superintendent of Financial Services, who oversaw two regulatory hearings with digital currency leaders in January of this year.
Notably, the document states that bitcoin businesses that receive, transmit, store or convert virtual currency for customers; buy and sell virtual currency as a customer business; control, administer or issue a virtual currency; or perform conversions between bitcoin and fiat or any value exchange will need to be licensed to operate in New York. Merchants that accept bitcoin are not included under the rules and regulations.
State officials say the document is designed to strike a balance between protecting consumers and implementing common sense rules, and that they are still accepting feedback on the proposal.
Superintendent Lawsky said:
“We recognize that – as the first state to put forward specially tailored rules for virtual currency firms – continued public feedback will be an important part of finalizing this regulatory framework. We look forward to carefully and thoughtfully reviewing public comments on our proposal.”
Licensees will further be required to include the name of the licenses on all advertised products and services, and to “disclose in clear, conspicuous and legible writing in the English language […] all material risks associated with its products, services, and activities”.
The rules will also require that all licensed bitcoin businesses meet capital requirements, maintaining “at all times such capital as the superintendent determines is sufficient to ensure the financial integrity of the Licensee and its ongoing operations”.
The document indicates New York will consider a variety of factors in this process, including the licensee’s total assets, the composition of its liabilities and the expected volume of its business, among other factors.
Virtual currency is defined as any digital unit of exchange that has a centralized repository or administrator, is decentralized and has no centralized repository or administrator or that may be created or obtained by computing or manufacturing effort.
Impact on existing businesses
One uncertainty prior to the release of the rules was the impact on companies that already work with bitcoin and other digital currencies. The regulations outline a procedure for how businesses already working in the ecosystem can receive approval without suffering immediate disruption to their operations.
According to the NYDFS, existing companies have 45 days to apply for a BitLicense following the release of the final regulations. Applicants receive preliminary approval, but this designation may be subject to change following review by the agency.
The rules state that:
“[Applicants] shall be deemed in compliance with the licensure requirements of this part until it has been notified by the superintendent that its application has been denied, in which case it shall immediately cease operation in this state.”
Businesses that do not apply within 45 days face criminal prosecution for running an unlicensed digital currency company, the document concludes.
Account holder scrutiny required
The documents outline a data-heavy application process that, at it hearts, seeks to bring the reporting on digital currency activities and the companies that conduct them in line with the broader US financial system.
The NYDFS is requiring that all digital currency companies in New York follow detailed reporting guidelines on account holders. In addition to following procedures aligned with the US banking system, the rules state that high-risk or high-volume customers may be subject to additional scrutiny at the request of the superintendent.
The rules state:
“When opening an account for a customer, each licensee must, at a minimum, verify the customer’s identity, to the extent reasonable and practicable, maintain records of the information used to verify such identity, including name, physical address and other identifying information.”
Foreign account holders are subject to rules focused on money laundering prevention. Companies with a BitLicense are required to submit for review and implement “enhanced” reporting policies for customers located outside of the US.
As well, licensed businesses are prohibited from working with an international business that does not have an established base of operations within the US.
Financial auditing outlined
The proposed rules clarify the kinds of financial information companies that receive a BitLicense may need to disclose to regulators in order to lawfully work in the state’s digital currency sector. Overall, they mirror much of the same information required from other kinds of financial businesses.
Licensees will need to submit quarterly reports to the NYDFS that include complete balance sheet updates, cash flow statements, data on profit and loss, earnings and asset holdings, as well as other information at the discretion of state regulators. Changes in ownership equity are also to be reported should they take place.
Annual audits are also required. As the document outlines:
“Each licensee shall submit audited annual financial statements, prepared in accordance with generally accepted accounting principles, together with an opinion of an independent certified public accountant and an evaluation by such accountant of the accounting procedures and internal controls of the licensee within one hundred and twenty days of its fiscal year end.”
Licensees must also attest to their compliance with digital currency regulations by submitting statements from their management teams. The NYDFS requires detailed reports on compliance performance and certification as to the veracity of those statements.
Unlawful financial behavior – and legal actions that arise from such events – must be reported to the agency immediately, the document states. Licensees must submit initial reports to the NYDFS, and may be required to draft additional filings should it be deemed necessary.
Emphasis on consumer protection
The proposed regulations also feature a number of sections that form a comprehensive bulwark against behavior that may fraudulently target consumers.
The document makes it clear that licensees must provide a wealth of information regarding the risks associated with digital currencies.
It reads:
“As part of establishing a relationship with a customer, and prior to entering into an initial transaction for, on behalf of, or with such customer, each licensee shall disclose in clear, conspicuous, and legible writing in the English language and in any other predominant language spoken by the customers of the licensee, all material risks associated with its products, services and activities and virtual currency.”
Many of the related requirements focus on the technical aspects of bitcoin – including the irreversibility of transactions – and the lack of government support like the kind provided for bank deposits. Terms of services and terms of agreement must clearly outline both these risks, as well as the exact nature of whatever business relationship is being established between a licensee and its customer.
This also extends to any advertisements that a digital currency may produce. Any media intended to promote a licensee’s service or product must feature confirmation that the company received approval from the NYDFS to operate.
Transaction terms must be spelled out for customers. Receipts need to be produced and offered to consumers at the time of transaction, and the rules mandate that all receipts generated may be subject to scrutiny at the discretion of the state regulator.
Notably, the NYDFS is ensuring that it has a say in any new services or products that might be offered to customers by a licensee. Licensees must receive written permission to expand their company’s offerings or make significant changes to existing products or services.
Transaction recording mandated
The proposed regulations dictate how licensees keep track of transactions – rules that could cause concern for those in the bitcoin community who prefer to maintain pseudonymity.
Businesses in New York are required to report the personal information, including name and address, of those involved with a transaction that involves the purchase, sale or transferrence of bitcoin. The NYDFS requires details on the nature of the transaction, including the amount and destination of the bitcoins, and Suspicious Activity Reports (SARs) must be submitted from licensees should they be required.
Reports must be filed when a licensee engages in transaction volume that exceeds $10,000 in a given day. As the draft rules state:
“When a licensee is involved in a transaction or series of transactions for the receipt, exchange, conversion, purchase, sale, transfer, or transmission of virtual currency, in an aggregate amount exceeding the United States dollar value of $10,000 in one day, by one person, the licensee shall notify the department, in a manner prescribed by the superintendent, within 24 hours.”
Additionally, licensees are prohibited from offering services that attempt to mask the identity, source or destination of a digital currency transaction, and they cannot engage in behavior that might prevent scrutiny of information regarding those taking part in a transaction facilitated by a licensee.
Additional reporting provided by Grace Caffyn and Pete Rizzo
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