FinCEN again extends comment period for controversial crypto AML rules

The agency, part of the U.S. Treasury, proposed in December new rules that would require financial institutions like banks, credit unions, and “money service businesses” (e.g., FinTechs) to submit reports, keep records, and verify the identity of customers completing transactions in digital currency or digital assets held in digital wallets that are not hosted by a financial institution. These digital wallets are known as “unhosted wallets.”

Virtual currencies like Bitcoin or Ethereum can be deposited in these unhosted wallets, funds that are harder for law enforcement to track.

The rule would require banks and FinTechs to report certain types of customer information to FinCEN on any transaction of cryptocurrency worth over $10,000 made on their platforms involving an unhosted wallet. The reporting would have to be done within 15 days, according to the proposed rule. Banks and FinTechs would also be required to keep records for any such transaction over $3,000 and provide that information to law enforcement upon request.

The comment period for the rules was originally closed Jan. 4. But after receiving more than 7,500 comments, FinCEN decided Jan. 14 to reopen the comment period for 15 days for the reporting requirement on transactions over $10,000; and by 45 days for the recordkeeping requirements on transactions over $3,000.

On Jan. 26, FinCEN extended the comment period again, this time for both new rules to 60 days from publication of the extension in the Federal Register.

Reaction to the rules: Nearly a dozen members of Congress demanded the comment period be extended, according to a Dec. 31 letter addressed to then-Treasury Secretary Steven Mnuchin.

“This is a highly complex rulemaking as the 24 detailed questions that FinCEN asks in the notice attest,” they wrote. “It would be impossible for the public to give meaningful comment with so little time, and a rushed process threatens the legitimacy of this rule. It also makes the new regulations very susceptible to legal challenges.”

Many of the players in the cryptocurrency space, particularly those whose primary business is buying and selling digital currency, said the rules would be burdensome and could strangle innovation.

Twitter co-founder Jack Dorsey—who is also the CEO of Square, a payments company—said the new regulations might push cryptocurrency transactions outside the United States.

The rules create “unnecessary friction and perverse incentives for cryptocurrency customers to avoid regulated entities for cryptocurrency transactions, driving them to use non-custodial wallets or services outside the U.S. to transfer their assets more easily,” he wrote in a Jan. 4 letter to FinCEN.

Elliptic, a company that helps manage risk and compliance issues involving cryptoassets, complained the original comment window was unfair, particularly since the majority of it was over the holidays.

Company CEO Simone Maini also said the rules overstate the risks posed by unhosted wallets because such transactions “are visible on the blockchain, and can be traced using blockchain analytics solutions.” Law enforcement, Maini said, can already track these transactions even without imposing new rules.

What’s next: FinCEN said it will review all new information received during the extended 60-day comment period.

Editor’s note: This story and its timestamp were updated Jan. 26 upon FinCEN’s announcement of a second comment period extension. The original version was published Jan. 14.