BILL ANALYSIS                                                                                                                                                                                                    Ó



          SENATE COMMITTEE ON APPROPRIATIONS
                             Senator Ricardo Lara, Chair
                            2015 - 2016  Regular  Session

          AB 1326 (Dababneh) - Virtual currency
          
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          |Version: August 18, 2015        |Policy Vote: B. & F.I. 7 - 0    |
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          |Urgency: No                     |Mandate: No                     |
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          |Hearing Date:  August 24, 2015  |Consultant: Jolie Onodera       |
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          This bill meets the criteria for referral to the Suspense File. 

          

          Bill  
          Summary:  AB 1326 would establish a framework for the licensing  
          and regulation of virtual currency businesses, as defined, by  
          the Department of Business Oversight (DBO), effective July 1,  
          2016.


          Fiscal  
          Impact:  First-year and ongoing costs of $3.5 million (Special  
          Fund*) to establish, manage, and enforce the licensing and  
          regulatory regime, estimated to be offset in whole or in part by  
          application renewal, and location fees as well as pro rata  
          assessments to offset administrative costs. First-year costs are  
          potentially not fully covered by licensing fees given the  
          estimated number of applications, and could be borne by the  
          General Fund. The DBO anticipates ongoing costs will be fully  
          offset by the application, renewal, and location fees, as well  
          as the pro rata assessment authority provided for in this  
          measure.








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          *Financial Institutions Fund


          Background:  Existing law pursuant to the Money Transmission Act (MTA)  
          prohibits a person from engaging in the business of money  
          transmission in this state, or advertising, soliciting, or  
          holding itself out as providing money transmission in this  
          state, unless the person is licensed by the Commission of  
          Business Oversight or exempt from licensure under the Act.  
          (Financial Code §§ 2000-2176.)
          As explained in the Senate Committee on Banking and Financial  
          Institutions analysis dated July 15, 2015:  "Virtual currency,  
          also called digital currency, has been defined by several  
          different financial authorities. One of the most comprehensive  
          definitions was developed by the European Banking Authority  
          (EBA) in 2014. In its Opinion on Virtual Currencies, issued July  
          4, 2014, the EBA defined virtual currency as a digital  
          representation of value that is neither issued by a central bank  
          or a public authority, nor necessarily attached to a fiat  
          currency, but is accepted by natural or legal persons as a means  
          of payment and can be transferred, stored or traded  
          electronically."   



          Bitcoin is perhaps the most well-known among virtual currencies,  
          but other virtual currencies exist, including Ripple, Stellar,  
          Litecoin, Darkcoin, Peercoin, Primecoin, Dogecoin, and others.  
          Increasing numbers of companies are offering services that  
          support the use of virtual currencies (e.g., Coinbase, Circle,  
          BitGo, Bitnet, Blockstream, Chain.com, Gem, Mirror, Xapo, and  
          others). This bill establishes a regulatory framework intended  
          to cover certain companies that offer services which support the  
          use of virtual currencies; it does not purport to regulate the  
          developers of existing or new virtual currencies.


          Proposed  
          Law:  This bill would establish the Virtual Currency Act, a  
          framework for the licensing and regulation of virtual currency  
          businesses, as defined, by the DBO, effective July 1, 2016. In  
          summary, this bill:
              Provides that a licensee under the MTA, who wishes to  
              engage in a virtual currency business without a virtual  








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              currency license, must seek permission to do so from the  
              Commissioner of Business Oversight (commissioner).  
              Authorizes the commissioner to approve such requests, as  
              specified, and clarifies that the commissioner may require a  
              licensee granted such approval to increase its surety bond  
              or amount of eligible securities above those required under  
              the MTA, or impose any additional conditions on the  
              authorization, as specified.  
              Authorizes a licensee in good standing under the Virtual  
              Currency Act to apply to the commissioner to convert its  
              license into a MTA license, as specified.
              Creates a new division under the Financial Code to regulate  
              virtual currency businesses, effective July 1, 2016, as  
              follows:
               o      Defines "virtual currency" as any type of digital  
                 unit that is used as a medium of exchange or a form of  
                 digitally stored value.  
               o      Provides that digital units used or redeemed for  
                 specified purposes are not considered virtual currency. 
               o      Defines "virtual currency business" as maintaining  
                 full custody or control of virtual currency in California  
                 on behalf of others.  
              Prohibits a person from engaging in any virtual currency  
              business in California unless that person is licensed or  
              otherwise exempt under the bill's provisions.
              Establishes specified exemptions from licensure including  
              any federal department or agency, state and local  
              governments, depository institutions, and licensed money  
              transmitters.  
              Authorizes the commissioner to approve additional  
              exemptions, as specified, and requires DBO to post on its  
              website a list of all persons or transactions exempted by  
              the commissioner, and the provisions from which they are  
              exempt.  
              Requires a non-refundable application fee for licensure of  
              $5,000.
              Requires a non-refundable application fee of $3,500 for  
              licensure and approval to acquire control of a licensee.
              Requires an annual licensure renewal fee of $2,500, and an  
              additional $125 for each licensee branch office in this  
              state.
              Requires licensees to pay $75 per hour for each DBO  
              examiner engaged in an examination of a licensee, as  
              specified.








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              Authorizes the commissioner to examine the business and  
              branch office of each licensee at any time and from time to  
              time, to ascertain whether the business is being conducted  
              in a lawful manner and whether all virtual currency held or  
              exchanged is properly accounted for. Provides the  
              commissioner with broad authority to bring enforcement  
              action against a licensee or a person required to be  
              licensed, who does not hold such a license.
              Authorizes the commissioner to assess a civil penalty for  
              violations of the virtual currency law of up to $1,000 per  
              violation, or in the case of a continuing violation, $1000  
              per day while the violation continues.
              Requires each licensee to annually submit an audit report  
              to the commissioner, as specified.
              Requires each licensee to file an annual report with the  
              commissioner, as specified, and requires the DBO to annually  
              prepare a report consolidating the annual reports from  
              licensees for publication on the DBO website. 
              Authorizes the commissioner to levy fees and assessments on  
              licensees sufficient to cover the commissioner's costs to  
              administer the virtual currency law and provide a reasonable  
              reserve for contingencies.  
              In lieu of the $5,000 non-refundable application fee,  
              authorizes a person or entity conducting virtual currency  
              business with less than $1 million in outstanding  
              obligations, as specified, to pay an application fee of $500  
              to apply for and be granted a provisional virtual currency  
              license. Grants the commissioner full discretion to  
              prescribe the terms and conditions applicable to a  
              provisional licensee and to suspend or revoke a provisional  
              license, as specified. Exempts a provisions licensee from  
              various requirements of the Virtual Currency Act, and  
              provides that a provisional license is effective for two  
              years and may be renewed for a $500 renewal fee.
              Repeals Section 107 of the Corporations Code, which was  
              enacted under AB 129 (2014), but was inadvertently chaptered  
              out by the subsequent enactment of SB 1301 (2014). 


          Related  
          Legislation:  AB 129 (Dababneh) Chapter 74/2014 repealed  
          Corporations Code § 107, which prohibited a corporation,  
          flexible purpose corporation, association, or individual from  
          issuing or placing into circulation, as money, anything other  








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          than the lawful money of the United States.
          SB 1301 (DeSaulnier) Chapter 694/2014, among its provisions,  
          renamed "flexible purpose corporations" as "social purpose  
          corporations ," thereby chaptering out the provisions of AB 129.




          Staff  
          Comments:  The DBO has indicated estimated first-year and  
          ongoing costs of $3.5 million to fulfill the obligations  
          associated with licensing and examining virtual currency  
          businesses. This cost estimate includes 22 positions, including  
          one Deputy Commissioner of Virtual Currency, three Financial  
          Institutions Managers, eight Senior Financial Institutions  
          Examiners, eight Financial Institutions Examiners, one Associate  
          Government Program Analyst, and one staff services analyst, as  
          well as the associated operating expenses for these positions.
          It is anticipated that approximately 75 virtual currency  
          companies will seek licensure with the Department, with 40  
          applications in the first year and 35 the next, with far fewer  
          applicants in subsequent years. Initial workload of the DBO will  
          focus on processing the applications of prospective licensees  
          (typically a six-month process), followed by licensee  
          examinations.  
                
          The DBO anticipates the cost of oversight of these companies  
          will be fully offset by the application, renewal, and location  
          fees, as well as the pro rata assessment authority (to offset  
          costs of overseeing virtual currency licensees) provided by the  
          bill.


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