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Clifford Chance

Clifford Chance

Briefings

Looming Resurgence of FinCEN's Section 311 Authority

March 17, 2022

On January 13, 2021, the Acting Director of the Financial Crimes Enforcement Network, a bureau within the US Department of the Treasury responsible for developing anti-money laundering requirements for financial institutions, addressed the annual Financial Crimes Enforcement Conference hosted by the American Bankers Association and American Bar association. During his speech, the Acting Director provided a detailed update on current FinCEN initiatives and priorities, including a "renewed focus" on using FinCEN's special authorities under Section 311 of Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act of 2001 to protect national security. Roughly three weeks later, the US  Congress renewed consideration of expanding FinCEN's authority under Section 311 to facilitate its use generally and to strengthen FinCEN's ability to use it in connection with money laundering threats associated with the use of the digital currencies. Almost two months later, on March 9, 2022, President Biden signed an Executive Order pertaining to digital assets that highlighted the dangers posed by illicit actors able to operate in jurisdictions that had not implemented sufficient AML and terrorist finance controls for virtual currencies, noting that the US government should use a range of authorities to mitigate against such threats. All of these actions indicate the potential for a broader use of Section 311 authority under the Biden Administration.

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