To: IGA Member Tribes From: Ernest L. Stevens, Jr., Chairman Jason C. Giles, Executive Director Re: FinCEN No-Action Letter Process Advance Notice of Proposed Rulemaking Date: June 8, 2022 On June 6, 2022, the Financial Crimes Enforcement Network (“FinCEN”) published an Advance Notice of Proposed Rulemaking (“ANPRM”) titled “No-Action Letter Process.” The purpose of this ANPRM is to provide FinCEN with initial public comment on the potential implementation of a no-action letter process. As the adoption of a no-action letter process may overlap with other forms of regulatory guidance and relief presently offered by FinCEN, the ANPRM seeks input not only on whether a no-action letter process should be implemented, but also how such a process should interact with the already existing forms of relief. Pursuant to Section 6305(a) of the Anti-Money Laundering Act of 2020, FinCEN must assess whether a no-action letter process should be established for inquiries concerning the application of the Bank Secrecy Act (“BSA”) and other anti-money laundering laws, countering the financing of terrorism laws, and related regulations to specific conduct. In a report submitted to Congress on June 28, 2021, FinCEN concluded it would be useful to implement a no-action letter process to supplement the existing forms of regulatory guidance and relief offered in response to such inquiries. Currently, FinCEN offers two forms of regulatory guidance or relief: 1) administrative rulings and 2) exceptive or exemptive relief. Administrative rulings interpret the relationship between a FinCEN regulation and an actual, specific situation for which a ruling has been requested. These rulings are binding and can have precedential value when published by FinCEN. Exceptive or exemptive relief, which is an exception or exemption from the BSA or the requirements of its implementing regulations, applies only as expressly stated in the order of authorization from FinCEN. This relief may be revoked at the sole discretion of the Secretary of the Treasury. The proposed no-action letter process would be an enforcement tool that falls outside the definition of what is currently offered— a letter that states that the issuing agency will not seek or take an enforcement action against the entity for the specific conduct presented to the agency. For the purposes of the ANPRM, FinCEN provided 44 questions for regulators, policymakers, and the general public to consider. These questions include considerations of FinCEN’s jurisdiction, changed circumstances on which no-action letters are originally based, revocation of no-action letters, confidentiality of no-action letters, and FinCEN’s requirements to consult with other regulators or law enforcement agencies before issue no-action letters. Written comments on this ANPRM must be submitted by August 5, 2022. The ANPRM in its entirety may be found here: https://www.federalregister.gov/documents/2022/06/06/2022-12048/no-action-letter- process.
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