On June 25, the New York State Department of Financial Services (NYDFS) published a “Conditional BitLicense” proposal for reforming its licensing framework that would make it easier for virtual currency businesses to obtain permission to operate in New York. The proposal was developed as part of a broader effort to respond to industry changes and concerns that NYDFS identified in its five-year review of its cryptocurrency licensing regime (which originally took effect in June 2015) under which more than two dozen cryptocurrency companies have been approved to do business in New York. Under the proposed regulations, a virtual currency firm will be authorized to operate in New York even if it does not have a full BitLicense from the state if it obtains a “conditional BitLicense” and partners with a firm that does have a full license. (To note, the conditional BitLicense has always existed, but this is the first time that the NYDFS has announced clear rules to help companies access the license.)
The NYDFS’s proposal is likely a welcome development. New York’s process for obtaining a full BitLicense is considered one of the toughest in the country and has long been unpopular with blockchain startups. Among the complaints: steep paperwork requirements and lengthy approval times. Under the proposed conditional licensing regulation, a cryptocurrency firm that wishes to operate in New York can bypass the difficulties of applying for a full license and instead apply for a conditional BitLicense, which would grant it operational privileges so long as it partners with another cryptocurrency firm that is fully licensed. Currently, the NYDFS envisions that under such a partnership, the licensed firm can assist in providing various services and support, including “those relating to structure, capital, systems, personnel, or any other support needed.”
The proposed application process is simple: In order to apply for such a license, the unlicensed cryptocurrency firm would need to inform the NYDFS of its intention to apply and provide a copy of the service agreement between the unlicensed cryptocurrency firm and the licensed cryptocurrency firm, as well as additional documentation. It is clear, however, that the NYDFS views this licensing framework as a temporary stepping stone; the NYDFS stated that it expects firms who obtain such conditional licenses to then apply for a full license within 2 years.
It is not entirely clear how the conditional license will operate in practice. It does not appear that any other state makes conditional licenses available. To that end, the NYDFS is inviting comments on its proposed regulation, including:
- What type of cryptocurrency firms would benefit the most from such a conditional license?
- What type of licensed firms would be best and most effectively able to partner with unlicensed firms under the terms of a conditional license?
- What types of services and support should a licensed firm provide for the firm with the conditional license?
- Should there be limits placed on the types of services that a licensed firm can provide?
- Should there be caps and limits on the total number of conditional arrangements that a licensed firm can enter? What other checks should be in place?
- Should the licensed firm be held accountable for initial due diligence of the firm wishing to obtain a conditional license and to what extent?
- Should ongoing due diligence be required?
- How should the licensed firm and firm with the conditional license divide responsibilities and obligations for ensuring compliance with legal and regulatory requirements?
- What is the best way to check for and resolve conflicts of interest between the two firms involved?
- What is the best way to structure such collaboration to limit any potential adverse effect on the markets?
- Are there other methods besides a conditional license that the NYDFS should consider?
NYDFS requests that all comments by submitted by August 10, 2020. Given that cryptocurrency regulation is generally uncharted territory, virtual currency firms should consider submitting comment to the NYDFS to assist it in developing this regulation further so that it is effective and workable.