Patrick McHenryChairman

Washington, December 21, 2023 -

Today, the Chairman of the House Financial Services Committee, Patrick McHenry (NC-10), issued the following statement in response to the Financial Crimes Enforcement Network’s (FinCEN) release of its final rule regarding access to beneficial ownership information.

“While FinCEN’s final rule regarding access to beneficial ownership information is a step in the right direction, it remains a significant deviation from what Congress intended,” said Chairman McHenry. “I remain concerned with the overly broad access and inadequate data security protections. Instead of protecting beneficial ownership information just like tax returns as Congress intended, FinCEN is adding unnecessary complexity by creating an entirely new regime. The Biden Administration’s misguided implementation of the beneficial ownership regime leaves me struggling to see how it will benefit our national security.

“Considering we are ten days from the reporting regime’s effective date, the existing duplicative CDD regime has not been rescinded, and millions of small business owners remain unaware of their beneficial ownership reporting obligations, it’s imperative that the Biden Administration delay its effective date until these issues are resolved.”

Read background on FinCEN’s final rule regarding access to beneficial ownership information:

The Corporate Transparency Act requires state, local and tribal law enforcement to obtain a court order, by a Court of competent jurisdiction, prior to accessing the BOI database. The final Access Rule lowers the threshold to “Court Authorization,” which is not in line with the intent of Congress and increases the risk of unauthorized disclosures.

Congress made clear that the protection of sensitive beneficial ownership information should be modeled after the IRS’ 26 U.S. Code § 6103, which governs the protection of tax records. Instead of following this established framework, FinCEN opted to reinvent the wheel and establish a new, overly complex regime. 

FinCEN accounted for Congress’ call for changes to the “Access Rule” as originally proposed in the NPRM. Allowing BOI information to be used for ongoing BSA/AML obligations for financial institutions creates a pathway for a full recision of the onerous 2016 CDD rule. However, without a final CDD recision rule in place on January 1, 2024, Congress is concerned FinCEN is forcing a duplicative and burdensome reporting regime on the backs of American small businesses. 

FinCEN has noted that they will be rolling out bifurcated access in the form of a Pilot Program, however Law Enforcement and National Security agencies come after “Select Federal Agencies”. BOI was crafted in a bipartisan and bicameral fashion to be used as a strategic tool for law enforcement and further the national security of the United States. The CTA was created to be a national security tool, not just a tool for the Bureaucratic regime. FinCEN prioritizing access for unrelated government agencies, and not law enforcement and the financial institutions that will use BOI, raises questions of how this will benefit our national security.

Read background on Committee Republicans’ efforts regarding FinCEN’s beneficial ownership access and reporting regime:

On December 3, 2020, Chairman McHenry issued a statement after the bipartisan beneficial ownership conference agreement included in the Fiscal Year 2021 National Defense Authorization Act (NDAA), which provides the strongest protections in the history of small businesses’ beneficial ownership data collection, passed the House.

On April 7, 2021, Chairman McHenry and Rep. Blaine Luetkemeyer (MO-03) sent a letter to Treasury Secretary Janet Yellen urging FinCEN to adhere to Congressional intent when developing and implementing the new beneficial ownership reporting regime.

On March 2, 2022 Chairman McHenry and Rep. Luetkemeyer sent a comment letter to Treasury Secretary Yellen and acting FinCEN Director Himamauli Das highlighting numerous concerns with the Treasury Department’s Notice of Proposed Rulemaking (NPRM) on Beneficial Ownership Information Reporting Requirements, including that it’s too complex, too broad, and significantly deviates from Congressional intent. The lawmakers also demanded the rulemaking’s impact on small businesses be minimal.

At an April 28, 2022, hearing with acting FinCEN Director Das, Chairman McHenry demanded that small businesses be protected from overly burdensome beneficial ownership regulations and called for transparency regarding FinCEN’s collection of Americans’ financial data.

On September 29, 2022, Chairman McHenry and Rep. Luetkemeyer issued a statement slamming the Financial Crimes Enforcement Network’s (FinCEN) final rule to implement the new beneficial ownership reporting regime.

On December 15, 2022, Chairman McHenry issued a statement raising concerns with FinCEN’s Notice of Proposed Rulemaking (NPRM) regarding access to beneficial ownership information.

On February 14, 2023, Chairman McHenry and Rep. Luetkemeyer sent a comment letter to Treasury Secretary Janet Yellen and FinCEN Acting Director Himamauli Das in response to FinCEN’s Notice of Proposed Rulemaking regarding access to beneficial ownership information.

On April 4, 2023, Chairman McHenry and Senator Sheldon Whitehouse (D-RI) led a bicameral group of lawmakers in sending a letter  to Secretary Yellen and Acting Director Das regarding the Treasury Department’s NPRM on Beneficial Ownership Information Reporting Requirements. The lawmakers are demanding FinCEN amend the proposed rule to adhere to Congressional intent and ensure reporting companies cannot avoid transparency.

On June 7, 2023, Chairman McHenry, Rep.  Luetkemeyer, Rep. Roger Williams (TX-25), and Rep. Steve Womack (AR-03), sent a letter to Acting Director Das and Treasury Secretary Yellen demanding that FinCEN outline its plan for educating small businesses about their reporting responsibilities as they pertain to the agency’s forthcoming beneficial ownership proposed rule.

On June 12, 2023, Chairman McHenry (NC-10), introduced two pieces of legislation, the Accountability Through Confirmation Act and the Protecting Small Business Information Act, to reform the Financial Crimes Enforcement Network (FinCEN). These bills will bring much-needed transparency and accountability to the agency, while ensuring small businesses’ sensitive information and Americans’ privacy are protected in its beneficial ownership reporting regime.

On September 20, 2023, the House Financial Services Committee reported legislation to the House of Representatives to strengthen U.S. national security, specifically regarding FinCEN’s beneficial ownership regime. Rep. Warren Davidson’s (OH-08) FinCEN Oversight and Accountability Act of 2023  will provide Congress with prompt notification of any unlawful activity carried out by FinCEN or employees of FinCEN, enable Congress to better understand the authorities Treasury has delegated to FinCEN, and require FinCEN to hold an annual Small Business Working Group to educate small businesses on beneficial ownership. Rep. Zach Nunn’s (IA-03) Protect Small Business and Prevent Illicit Financial Activity Act will revert the FinCEN beneficial ownership filing deadline back to Congress’ intended timelines and closes a FinCEN-created loophole that can be exploited by bad actors.

On December 18, 2023, Chairman McHenry, Rep. Davidson, Senator Rick Scott (R-FL), and Senator Mike Rounds (R-SD) led 76 of their colleagues in sending a bicameral letter to Janet Yellen, Secretary of the Treasury, and Andrea Gacki, Director of the Financial Crimes Enforcement Network (FinCEN), requesting a delay in the implementation of new beneficial ownership reporting requirements for small businesses. This substantial regulation that impacts nearly every small business in America is expected to take effect January 1st and impact 32.6 million small businesses who are largely unaware of the new requirements that carry significant criminal and civil penalties for non-compliance.

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