Louisiana proposes virtual currency business licensing rules

Licensing Digital Assets State Issues State Regulators Louisiana Virtual Currency Agency Rule-Making & Guidance

On June 20, the Louisiana Office of Financial Institutions (OFI) published proposed rules in the Louisiana Register to implement the Louisiana Virtual Currency Business Act (VCBA), which governs the licensing process for businesses or individuals who are currently operating, or intend to soon begin operating, a virtual currency business in the state. As previously covered by InfoBytes, the Act (HB 701), which took effect August 1, 2020, provides for the licensing and regulation of virtual currency businesses in the state. Subject to certain exceptions, the bill establishes licensing and registration requirements, and, among other things, (i) authorizes reciprocity of licensure with other states; (ii) specifies that licensee applications must be submitted through the Nationwide Multi-State Licensing System; (iii) adds provisions related to licensee examinations; (iv) outlines licensee surety bond requirements “based on the nature and extent of risks in the applicant’s virtual currency business model”; (v) provides the state’s office of financial institutions with enforcement authority; and (vi) prohibits licensees from engaging in unfair, deceptive, or fraudulent practices. 

The proposed rules are intended to enable OFI to achieve its regulatory goals and supervision and oversight of such persons included within the scope of the VCBA in an efficient, effective manner. OFI also proposes to implement a fee structure to cover regulatory and supervisory costs in order for the agency to effectively ensure compliance with the VCBA, and allow for licensure and registration of covered persons. Among other things, the proposed rules:

• Outline various definitions, including terms related to control, net worth, unfair or deceptive acts or practices, and unfair or unsound acts or practices.
• Describe processes for the approval of a control person or approval of a change in control; licensing renewal or registration notice; determination of net worth; examination and investigation procedures; and requirements for reporting, recordkeeping, and implementation of policies and procedures.
• Stipulate that “failure to provide any disclosure or disclosures required by Subsection 1931(C) of this rule shall be an unfair or deceptive act or practice for purposes of taking enforcement action against a licensee, registrant, or person that is neither a licensee nor registrant but is engaging in virtual currency business activity or activities.” While the proposed rules do not specifically identify the required disclosures, they state that the “commissioner shall also determine, by policy, the time and form required for such disclosures. Disclosures required by this section must be made separately from any other information provided by the licensee to a person and in a clear and conspicuous manner. A licensee may propose, for the commissioner’s approval, alternate disclosures as deemed more appropriate for its virtual currency business activity with, or on behalf of, persons in Louisiana.”
• Clarify that an unsafe or unsound act or practice includes engaging in an activity “which creates the likelihood of material loss, insolvency, dissipation of the licensee’s or registrant’s assets, materially prejudices the interests of its customers, and any other set of facts and circumstances, as determined by the commissioner in his discretion.”
• Allow the commissioner to assess a civil penalty for violations of the VCBA (or any rule promulgated pursuant to the VCBA or an commissioner-issued orders) not to exceed $1,000 for each violation.

The proposed rules provide that “[n]oncompliance with any provisions of the VCBA, including but not limited to any provisions pertaining to ownership, control, security, net worth, registration, or failure to pay any fee may likewise be considered in determining whether to deny issuance or renewal of a license or notice of registration.” Once the rules are implemented, any person already engaged in virtual currency business activity or activities in the state must either apply for a license or file a notice of registration, and submit a completed application within 90 days of the effective date. Persons engaged in virtual currency business activity that fail to submit a completed licensing application or notice of registration within 90 days of the effective date of the rules shall be deemed to be conducting unlicensed or unregistered virtual currency business activity or activities and will be subject to civil and criminal penalties. Starting November 1, 2023, “all applications for renewal for all licenses and notices of registration to engage in virtual currency business activities shall begin submitting an application or notice of registration for renewal on the first day of November of each calendar year.”

Comments on the proposed rules are due July 10.