Reactions are rolling out from government and elected officials regarding the impact of the Sessions Memo, but news from the Treasury Department’s Financial Crimes Enforcement Network (FinCEN) was on the short list of anxiously awaited announcements. Any marijuana business can attest- it's already hard enough to find willing banks and lenders, despite the fact that in 2014 FinCEN previously issued guidance on providing such services. That 2014 guidance provided clarification on the Bank Secrecy Act (“BSA”) expectations for financial institutions who took on marijuana-related clients. The guidance even went so far as to confidently predict that the "FinCEN guidance should enhance the availability of financial services for, and the financial transparency of, marijuana-related businesses." Sure, it enhanced availability, but it certainly didn't open the flood gates, minimize fear or control for the often prohibitive expense of working with marijuana clients.
If FINCEN had rescinded its prior guidance, I would've sounded the alarms (a real, not accidental one...). But fortunately, a FinCEN spokesman has confirmed the agency’s prior guidance regarding marijuana banking remains in place:
“The SAR reporting structure laid out in the February 14, 2014 guidance remains in place. FinCEN will continue to work closely with law enforcement and the financial sector to combat illicit finance, and we will notify the financial sector of any changes to FinCEN’s SAR reporting expectations.”
How long such position remains firmly in place is hard to say. However, the momentum is behind FinCEN's decision. Colorado Senators Michael Bennet (D) and Cory Gardner (R) sent a letter to FinCEN urging the agency to retain its 2014 marijuana banking guidance. They underscored the need to ensure public safety, reduce unnecessary cash transactions and increase the oversight of financial compliance by marijuana businesses. The Senators rightly warned that “repealing the guidance could increase the amount of cash used by marijuana businesses, raising public safety issues and reducing the oversight and transparency of marijuana transactions.”
This FinCEN announcement is one bit of good news in an otherwise negative news week.