FinCEN recently issued an Advance Notice of Proposed Rulemaking (ANPRM) regarding the potential implementation of a No Action Letter process at FinCEN. FinCEN invites public comment from regulated parties, governments, regulators and other interested groups.

Typically, a no-action letter is a form of enforcement discretion in which an agency states in a letter to an entity that it will not take enforcement action against the submitting entity for the specific conduct discussed. Section 6305(a) of the Anti-Money Laundering Act of 2020 states that the Director of FinCEN shall work in consultation with the Attorney General, federal functional regulators, state bank supervisors, credit union supervisors in State and other federal agencies, as necessary, to determine whether or not to create a process for FinCEN to issue no-action letters. This is in response to requests from entities about how anti-money laundering laws as well as laws and regulations established to prevent the financing of terrorism would apply to specific behaviors that entities engage in. FinCEN’s stated expectation is that implementing a no-action letter process has the potential to facilitate improvements in financial institutions’ compliance programs.

The addition of a No Action Letter process may impact or overlap with other forms of regulatory guidance and relief already provided by FinCEN, including administrative rulings. Comments on ANPRM should also take this implication into account. Comments for ANPRM must be submitted no later than August 5, 2022.