Re: Filed a request for an administrative to FinCEN this morning.
The guidance doesn't make "anyone" an exchanger because there is an explicit exemption for "users" purchasing goods and services who are not in the business of buying and selling currency, so I disagree on that point as well.
You miss the point. Anyone who exchanges virtual currency for real currency is an exchanger is one way to interpret the guidance. So say MtGox becomes a MSB. Great now every on of MtGox clients would need to also. They all are "exchanging virtual currency for real currency". The guidance provides no exclusion that those exchanging with regulated exchangers are themselves exempt. This would make anyone who ever has or ever will exchange real currency need to register as an MSB. It seems implausible that is FinCEN intent however by the letter of the guidance it is what is stated.
The guidance is unclear, it is just my opinion but only clarity from FinCEN will resolve that lack of clarity for me. That is the point of an administrative ruling. It certainly is possible that the AR will result in more clear guidance one that advises that the example in section c is not binding any such trade of BTC for USD constitutes an "exchanger". The good news is it would remove ambiguity from the definition and force FinCEN to clean up their guidance. Is it FinCEN intent that anyone who ever buys or sells Bitcoins for real currency needs to register as a MSB? I really doubt it but if so the AR will require them to state so in black and white.
I suspect they will alter the wording to encompass anyone who buys or sells bitcoin for "real" currency (legal tender as defined by US law) no matter where or how they obtained them and remove the "creates" part which is confusing and open to challenge/ debate.
Individuals who have low value transactions for personal purchases of goods or services appear to be exempt . I assume that the $1000 threshold would not apply as what can you buy for $ 1000 these days???
The threshold to require registration as a transmitter will probably be clarified at $1000 dollars. This begs the question is that $1000 per transaction or cumulative over a specified period? ie. if an individual for non commercial use buys or sell bitcoins for cash to values under $1000 ...no need to register as a transmitter.
This would be nice to get an answer to if you get a chance to follow up on any reply they make.
Any entity engaged in the BUSINESS of transmitting (for reward/payment) will definitely be covered with no minimum threshold.
Their response was that ANYONE who buys, then re-sells, etc IS A MONEY TRANSMITTER AND MUST FILE IF EXCHANGE OVER $1,000.