Banks Can Assist Pot Businesses, Fincen Says

Federal authorities on Friday took their most forceful step yet toward bringing state-licensed marijuana businesses into the financial mainstream.

The Financial Crimes Enforcement Network issued guidance meant to assure banks and credit unions that doing business with legal pot shops will not land them in hot water.

"Now that some states have elected to legalize and regulate the marijuana trade, Fincen seeks to move from the shadows the historically covert financial operations of marijuana businesses," the agency's director, Jennifer Shasky Calvery, said in a news release.

The guidance will apply in the 20 states, plus the District of Columbia, where marijuana is legal for either medicinal or recreational use. It comes amid warnings from officials in those states that pot businesses may become a magnet for crime and money laundering if they are forced to operate on a cash-only basis.

But with marijuana still illegal under federal law, the big question is whether the new guidance goes far enough to convince bankers that they'll be safe from regulators and law enforcement authorities.

Some banking groups issued statements late Friday dismissing the guidance's likely impact, and arguing that nothing short of an act of Congress will provide sufficient assurance to the banking industry.

But a senior Fincen official said Friday that the agency believes some banks will now be willing to dip their toes into the water. Fincen has been doing outreach to banks and regulators to gauge the likely impact of new guidance, according to this official.

"We believe that while there will be some institutions that will choose very clearly not to engage in this business," the Fincen official said during a conference call with reporters, "there are others that will."

Small and midsize banks are probably more likely than large banks to open accounts for marijuana businesses, the official added.

Friday's announcement was widely anticipated after Attorney General Eric Holder recently promised swift action with respect to legal pot businesses' access to the financial system.

A spokeswoman for the Justice Department, which worked with Fincen to formulate the guidance, said that the document is intended to increase the availability of financial services for licensed marijuana businesses, while also preserving and enhancing law enforcement tools.

The guidance lays outs various factors that banks should consider when deciding whether to do business with a marijuana business. Those steps include verifying that the business is licensed, reviewing the license application, developing an understanding of the firm's normal activity, and conducting ongoing monitoring for suspicious activity.

Several red flags are listed in the guidance, including a pot business that appears to be a front for money laundering, a bank customer who tries to disguise its involvement in the marijuana industry, and a pot business owner who lives outside the state in which the business is located.

That last red flag reflects a close interaction between the Fincen guidance and an August 2013 Justice Department memo that lays out various priorities in the enforcement of federal marijuana laws. One of the DOJ's priorities is preventing the diversion of pot from states where it's legal to other states where it is not.

Under the Fincen guidance, banks are instructed to file suspicious activity reports with varying amounts of information, depending on the specific circumstances.

The simplest of the reports is a "marijuana limited" suspicious activity report. It is supposed to be filed in cases where the bank does not believe the pot business is violating state law or any of the enforcement priorities flagged by the Justice Department.

When banks believe that a state law or one of the federal priorities has been implicated, the bank is supposed to file a more detailed report, known as a “marijuana priority” suspicious activity report.

Finally, when a bank ends its relationship with a pot business, it's supposed to file a "marijuana termination" suspicious activity report, in which the bank should note the basis of the termination.

For banks in states like Washington and Colorado, which now allow the sale of recreational pot, the worry is that Fincen can only provide them so much legal cover. Even Fincen, which has civil law enforcement authority, is not promising banks a safe harbor if they follow the guidance.

"We've never done that, haven't done that here," the senior Fincen official said Friday.

Banks also have to worry about the potential for criminal enforcement of federal law by the Justice Department. With that issue in mind, Deputy Attorney General James Cole sent a memo about the Fincen guidance to U.S. attorneys across the country.

The DOJ memo states that if a financial institution does business with a marijuana operation that does not implicate the priorities laid out in August 2013, "prosecution for these offenses may not be appropriate."

But it also notes that if the financial institution knows that a specific pot business "is diverting marijuana from a state where marijuana sales are regulated to ones where such sales are illegal under state law," prosecution "might be appropriate." Similarly, prosecution might be appropriate if the financial institution "is willfully blind" to the same kind of conduct.

Finally, despite the Fincen guidance, banks may need to worry about potential action by their own regulators.

Top officials from the Federal Reserve Board, the Office of the Comptroller of the Currency and the Federal Deposit Insurance Corp. have previously stated that they would wait for Fincen and the Justice Department to act before considering whether to issue their own guidance. On Friday those three federal banking agencies declined to comment.

Because of the various agencies involved, some in the banking industry have said that a change in federal law will be necessary to bring pot businesses in the mainstream financial system.

On Friday, the American Bankers Association and the Consumer Bankers Association both said that the Fincen guidance falls short of what would be needed by banks.

"While we appreciate the efforts by the Department of Justice and Fincen, guidance or regulation doesn't alter the underlying challenge for banks," ABA president Frank Keating said in an email.

At the state level, reaction to the Fincen guidance was mixed.

"Where we were expecting a yellow light, we think we effectively got a red one," Don Childears, president of the Colorado Bankers Association, said in an interview, adding that his organization will be advising its member banks to consult a lawyer.

"I don't know of a lawyer in the state who would look at this and give them a green light," he added. "I'm not even sure they'd give them a yellow light."

But Denny Eliason, lobbyist for the Washington Bankers Association, offered a more upbeat assessment of the guidance.

"I think we view it as an important first step in providing a pathway for banks to consider whether or not to offer these services," he said. "Those decisions will be made on a bank-by-bank basis."

In contrast to the banking trade groups, the response to the guidance from the legal marijuana industry was jubilant.

"This is a huge victory for our members, our communities, and the banks that take this opportunity to serve a thriving new market," Aaron Smith, executive director of the National Cannabis Industry Association, said in a news release.

Even before the guidance was issued, some banks were filing suspicious activity reports stating that they were doing business with state-licensed marijuana businesses, according to the senior Fincen official. Those banks were likely willing to take the risks involved because such accounts have carried lucrative fees.

Federal agencies have been facing pressure to issue guidance from governors, members of Congress, local law enforcement officials and state banking regulators, in addition to the burgeoning marijuana industry.

The state-regulated markets for marijuana are estimated to be worth $1.44 billion a year, according to a report by ArcView Market research.