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FinCEN Invites Comments on Proposed Amendments to Funds Recordkeeping and Transfer Rules

By Jason Weinstein, Alan Cohn, Evan Abrams & Jack Ritossa on November 17, 2020
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On October 23, 2020, the US Department of the Treasury’s Financial Crimes Enforcement Network (FinCEN) and the Federal Reserve Board published a joint notice of proposed rulemaking inviting comments on proposed modifications to regulations implementing the Bank Secrecy Act (BSA). First, the agencies propose to lower the monetary threshold contained in the so-called “recordkeeping rule” and “travel rule” pursuant to which financial institutions are required to collect and retain information on certain funds transfers and transmittals of funds and provide such information to other financial institutions in the payment chain. Second, the proposed rule would amend the definition of “money,” as used in those rules, to clarify that it includes convertible virtual currency (CVC) and digital assets with legal tender status.

Under the current version of the recordkeeping rule, banks and nonbank financial institutions are required to collect and retain information that relates to funds transfers and transmittals of funds of $3,000 or more. The travel rule then requires banks and nonbank financial institutions to send collected information on funds transfers and transmittals of funds to other banks or nonbank financial institutions participating in the transfer or transmittal. The purpose of retaining an information trail in this manner is to help prevent money laundering and other financial crimes.

The proposed rule would adjust the applicable monetary thresholds as follows:

  • Reduce the threshold that triggers the recordkeeping rule for funds transfers and transmittals of funds that begin or end outside the United States from $3,000 to $250;
  • Reduce the threshold that triggers the travel rule that requires financial institutions to transmit information on funds transfers and transmittals of funds that begin or end outside the United States to other financial institutions in the payment chain from $3,000 to $250;

It should be noted the threshold for domestic transactions will remain unchanged at $3,000.

The proposed rule would also:

  • Clarify that the meaning of “money” includes CVC, which is broadly defined by FinCEN and captures most, but not all, types of blockchain-based tokens and digital assets; and
  • Clarify that these rules apply to both domestic and cross-border transactions that involve digital assets that have legal tender status, such as central bank digital currencies or similar products.

FinCEN believes the proposed changes to the recordkeeping and travel rule thresholds will likely have little impact on the cost and efficiency of existing payments system, in part because some financial institutions already collect information on most or all transactions under the current threshold. However, it acknowledges there may be increased regulatory compliance costs for other entities.

FinCEN’s clarification that the term “money” includes CVC is in keeping with its 2019 CVC guidance and with recent changes to recommendations from the Financial Action Task Force, an international anti-money laundering standards setting body. The blockchain industry does not currently have a built-in mechanism like SWIFT to facilitate the transfer of such information between financial institutions. However, a number of industry groups have been making significant progress on implementation of such a solution. For example, the Inter-VASP Working Group recently released a messaging standard.

FinCEN is requesting comments on the proposed rule, including:

  • The extent to which the proposed changes would burden financial institutions;
  • The extent to which the burden would be reduced if FinCEN released guidance on appropriate forms of identification for identification verification;
  • Any additional costs from complying with the recordkeeping rule and travel rule in light of clarifying the meaning of “money” under the rules;
  • How the burden of complying with the proposed collection of information could be minimized; and
  • What mechanisms are in place for complying with the recordkeeping rule and travel rule with regards to CVC transactions.

The request for comments presents an important opportunity for industry, particularly the blockchain industry, which has been grappling with travel rule implementation for some time, to raise concerns or provide suggestions to agencies. Comments on the proposed rule are due by November 27, 2020. Steptoe is available to assist interested parties in preparing comments for submission.

Photo of Jason Weinstein Jason Weinstein

Jason Weinstein conducts internal investigations and represents companies and individuals in high-profile criminal matters. With 15 years of experience in senior positions at the US Department of Justice (DOJ), he helps corporations and boards successfully navigate challenging government enforcement matters and defends individuals…

Jason Weinstein conducts internal investigations and represents companies and individuals in high-profile criminal matters. With 15 years of experience in senior positions at the US Department of Justice (DOJ), he helps corporations and boards successfully navigate challenging government enforcement matters and defends individuals in criminal investigations and prosecutions. He is recognized across the United States as an authority on legal and regulatory issues involving digital currencies and blockchain technology. Jason serves as co-chair of Steptoe’s White-Collar and Securities Enforcement and the Blockchain and Cryptocurrency practices. Read Jason’s full bio.

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Photo of Alan Cohn Alan Cohn

Alan Cohn counsels clients on a range of blockchain- and cryptocurrency-related issues, from regulatory best practices for cryptocurrency companies to legal issues associated with novel uses of blockchain technology. In addition to co-leading Steptoe’s Blockchain & Cryptocurrency practice, Alan also co-leads the firm’s…

Alan Cohn counsels clients on a range of blockchain- and cryptocurrency-related issues, from regulatory best practices for cryptocurrency companies to legal issues associated with novel uses of blockchain technology. In addition to co-leading Steptoe’s Blockchain & Cryptocurrency practice, Alan also co-leads the firm’s National and Homeland Security practice, and has experience across homeland security, emergency management, and emergency response services at the federal and local level. Read Alan’s fill bio.

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Photo of Evan Abrams Evan Abrams

Evan Abrams counsels multinational corporations, financial institutions, and individuals on various international regulatory and compliance matters. He assists foreign and domestic companies in navigating national security reviews by the Committee on Foreign Investment in the United States (CFIUS). He has represented companies in…

Evan Abrams counsels multinational corporations, financial institutions, and individuals on various international regulatory and compliance matters. He assists foreign and domestic companies in navigating national security reviews by the Committee on Foreign Investment in the United States (CFIUS). He has represented companies in industries including semiconductors, metals, and digital security. Evan’s anti-money laundering (AML) practice focuses on helping financial institutions comply with federal and state AML rules, particularly money transmitters and entities involved in creating, exchanging, or dealing in cryptocurrencies and tokens. Evan counsels clients in a variety of export controls and sanctions matters related to the Export Administration Regulations (EAR), International Traffic in Arms Regulations (ITAR), and various sanctions programs under US and international law. In addition, Evan routinely assists clients on anti-corruption investigations and enforcement actions.

Read Evan’s full bio.

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  • Posted in:
    Banking, Finance and Securities
  • Blog:
    Blockchain Blog
  • Organization:
    Steptoe LLP

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