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FinCEN issues advance notice of proposed rulemaking for no-action letter process

Written on Jun 28, 2022

The Financial Crimes Enforcement Network (FinCEN) has issued an Advance Notice of Proposed Rulemaking (ANPRM) to solicit public comment on questions relating to the implementation of a no-action letter process at FinCEN. A no-action letter is 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. 

“A no-action letter process has the potential to spur innovation and enhance overall effectiveness of the AML/CFT framework and the implementation of financial institutions’ compliance programs,” said FinCEN’s Acting Director Himamauli Das. “We encourage public comment on how the implementation of a no-action letter process can best achieve these objectives reflected in the Anti-Money Laundering Act of 2020.” 

The ANPRM follows FinCEN’s June 28, 2021, report to Congress. FinCEN’s assessment, which formed the basis of the Report, included consultation with the Attorney General, the Federal functional regulators, State bank supervisors, State credit union supervisors, and other Federal agencies, as required by the Anti-Money Laundering Act of 2020.  

The report concluded that FinCEN should undertake a rulemaking to establish a no-action letter process to supplement the existing forms of regulatory guidance and relief that third parties may request from FinCEN. The report noted several potential benefits of a no-action letter process, including encouraging a robust and productive dialogue with the public, promoting a culture of compliance, and enhancing transparency in the application and enforcement of the Bank Secrecy Act. 

The addition of a no-action letter process at FinCEN could affect other forms of regulatory guidance and relief that FinCEN already offers, including administrative rulings and exceptive or exemptive relief. Accordingly, the ANPRM seeks public input on whether this process should be implemented, and if so, how a no-action letter process should interact with these other tools. 

FinCEN encourages all interested parties, including those that may want to participate in the no-action letter process, if implemented, to submit written comments on the ANPRM by Aug. 5, 2022.