FinCEN Issues New Crypto Interpretive Guidance

The Financial Crimes Enforcement Network (FinCEN) issued new "interpretive guidance" today that "consolidates current FinCEN regulations, and related administrative guidance issuance since 2011" relating to the application of the Bank Secrecy Act ("BSA") to money transmission involving "convertible virtual currencies" ("CVC"). The first significant release by FinCEN since issuing guidance in 2013, FinCEN says that this thirty-page document is offered to "help financial institutions comply with" existing BSA obligations, the violations of which can result in significant criminal and civil liability to "money servicing businesses."

The FinCEN guidance is divided into six sections. Section 1 defines key concepts. Section 2 summarizes and explains current FinCEN regulations and ruling regarding applicable BSA money transmission rules. Section 3 discusses FinCEN's 2013 CVC guidance. Sections 3 and 5 describe how FinCEN's "existing regulatory approach" applies to CVC. Section 6 includes a list of resources.

While offered as a guide to the industry, FinCEN says at the beginning of the document that it "does not establish any new regulatory expectations or requirements" and is, in essence, a summary. In this respect, it appears similar to recent SEC guidance issued on April 3, 2019 that provided an overview of existing federal securities laws to the offer and sale of digital assets without providing new and binding regulatory guidance. A full copy of the FinCEN guidance can be found on their website.