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FinCEN issues ANPRM on no-action letter process

Financial Crimes Agency Rule-Making & Guidance Of Interest to Non-US Persons FinCEN No Action Letter Anti-Money Laundering Act of 2020 Anti-Money Laundering Combating the Financing of Terrorism Bank Secrecy Act

Financial Crimes

On June 3, FinCEN issued an Advance Notice of Proposed Rulemaking (ANPRM) soliciting comments on questions related to implementing a no-action letter process at the agency. The ANPRM is part of FinCEN’s implementation of the Anti-Money Laundering Act of 2020, which directed the agency to conduct an assessment of a no-action letter process concerning how anti-money laundering or countering the financing of terrorism laws may apply to specific conduct. The ANPRM follows FinCEN’s June 2021 report to Congress (covered by InfoBytes here), which concluded that the agency should undertake rulemaking to establish a process for issuing no-action letters that will supplement its current forms of regulatory guidance and relief. FinCEN noted in its announcement that the addition of a no-action letter process (“generally understood to be a form of enforcement discretion where an agency states by letter that it will not take an enforcement action against the submitting party for the specific conduct presented to the agency”) could overlap with and “affect other forms of regulatory guidance and relief that FinCEN already offers, including administrative rulings and exceptive or exemptive relief.” The agency is seeking public input on whether the process should be implemented and, if so, how the process should work. Included in the ANPRM are questions concerning, among other things, FinCEN jurisdiction (specifically “[w]hat is the value of establishing a FinCEN no-action letter process if other regulators with jurisdiction over the same entity do not issue a similar no-action letter”), whether there should be limitations on which factual circumstances could be considered, and whether the scope of a no-action letter should be limited so that requests may not be submitted during a Bank Secrecy Act examination. The ANPRM also asked questions related to changes in circumstances, revocations, denials and withdrawals, confidentiality and consultation concerns, and criteria for distinguishing no-action letters from administrative rulings or exceptive/exemptive relief.

Comments on the ANPRM are due August 5.