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September 30, 2025 | Legal Update

Headlines

1. OCC Issues Supervisory Guidance on Executive Order Targeting Unlawful Debanking
2. FinCEN Seeks to Encourage Voluntary Cross-Border BSA/AML Information Sharing
3. Federal Reserve Updates Advisory on Special Measures Imposed by FinCEN
4. Treasury Department Seeks Public Comment on GENIUS Act Implementing Regulations
5. Other Developments: Truth in Lending and Assessment Rates

1. OCC Issues Supervisory Guidance on Executive Order Targeting Unlawful Debanking

The OCC has announced actions it is taking to eliminate alleged politicized or unlawful debanking in the federal banking system in response to President Trump’s Executive Order 14331, titled Guaranteeing Fair Banking For All Americans. The OCC issued guidance on September 8 clarifying how it considers politicized or unlawful debanking in records of performance under the Community Reinvestment Act (CRA) and in licensing filings by national banks and federal savings associations. The OCC said that it will consider whether a bank has engaged in politicized or unlawful debanking as a factor, on a case by case basis, in determining a bank’s CRA rating. The guidance also stated that the OCC will consider politicized or unlawful debanking among the evaluative factors when the agency reviews licensing filings by banks seeking to engage in various corporate activities or by entities seeking a federal charter or license. Executive Order 14331 defines “politicized or unlawful debanking” as an act by a financial service provider “to directly or indirectly adversely restrict access to, or adversely modify the conditions of, accounts, loans, or other banking products or financial services of any customer or potential customer on the basis of the customer's or potential customer's political or religious beliefs, or on the basis of the customer's or potential customer's lawful business activities that the financial service provider disagrees with or disfavors for political reasons.” Click for a copy of the OCC’s guidance on consideration of politicized or unlawful debanking. 

Nutter Notes:  The OCC issued related supervisory guidance on September 8 to national banks and federal savings associations to remind them of their legal obligations to protect customer financial records unless disclosure is required by applicable law. The OCC’s guidance on protecting customer financial records responds to a report by the U.S. House of Representatives Committee on the Judiciary and the Select Subcommittee on the Weaponization of the Federal Government concluding that “financial institutions, including [OCC]-regulated financial institutions (banks), coordinated with federal law enforcement to surveil and share the private financial information of persons engaged in transactions commonly associated with certain political affiliations—specifically targeting individuals associated with conservatism and the political right.” The guidance also cites an assertion in Executive Order 14331 that “[s]ome financial institutions participated in Government-directed surveillance programs targeting persons participating in activities and causes commonly associated with conservatism and the political right following the events that occurred at or near the United States Capitol on January 6, 2021.” Click for a copy of the OCC’s guidance on protecting customer financial records. 

2. FinCEN Seeks to Encourage Voluntary Cross-Border BSA/AML Information Sharing

The U.S. Treasury Department’s Financial Crimes Enforcement Network (FinCEN) has issued guidance to banks and other financial institutions to encourage and promote voluntary cross-border sharing of information between and among financial institutions, including foreign financial institutions. The September 5 guidance, FIN-2025-G001, clarifies that the Bank Secrecy Act and its implementing regulations (together, the “BSA”) generally do not prohibit cross-border information sharing. The guidance also provides examples of information that typically would not reveal the existence of a Suspicious Activity Report (SAR) and is therefore not prohibited by the BSA. FinCEN intends the guidance to help fight threats posed by money laundering, terrorist financing, and other illegal financial activities. Click for a copy of FinCEN’s guidance. 

Nutter Notes:  FinCEN’s guidance notes that while the BSA generally prohibits a bank or other financial institution from disclosing a SAR or information that would reveal the existence or non-existence of a SAR to others, it does not otherwise prohibit sharing “[t]he underlying facts, transactions, and documents upon which a SAR is based.” The guidance clarifies that even though “a reasonable and prudent person familiar with the SAR filing requirement may suspect or be able to deduce from these underlying facts, transactions, and documents that a SAR was filed, the underlying information alone would not constitute information revealing the existence of a SAR for confidentiality purposes.” The guidance gives a number of examples of the types of underlying facts, transactions, and documents that may be shares with other financial institutions to help combat illicit finance activity, such as wire transfer/payment information associated with specific natural or legal persons, including information on counterparties, amounts, account numbers, dates, and times. FinCEN’s guidance cautions that, when sharing such information, the BSA requires financial institutions to take appropriate measures to ensure that information that would reveal the existence of a SAR is not shared.

3. Federal Reserve Updates Advisory on Special Measures Imposed by FinCEN

The Federal Reserve has published an updated advisory to all financial institutions it supervises to notify them of special measures imposed by FinCEN under the USA PATRIOT Act, the Combating Russian Money Laundering Act, and the FEND OFF Fentanyl Act. The Federal Reserve’s September 25 advisory, Supervision and Regulation Letter SR 25-3, notes that such special measures create legal obligations for banks and other covered financial institutions with respect to certain jurisdictions, financial institutions, or transactions with entities designated by FinCEN as being of “primary money laundering concern.” For example, FinCEN may require such covered financial institutions to maintain records, file reports, or both, concerning the aggregate amount of transactions, or concerning each transaction of such a specially designated entity under the USA PATRIOT Act. FinCEN also has authority to require covered financial institutions to prohibit, or impose conditions upon, certain transmittals of funds by any domestic financial institution or domestic financial agency, if such transmittal of funds involves such a specially designated entity under the FEND OFF Fentanyl Act. FinCEN maintains a list of the entities for which a special measure is in place creating obligations on the part of covered financial institutions. Click for a copy of the Federal Reserve’s advisory. Click to access FinCEN’s list of special measures for jurisdictions, financial institutions, and international transactions of primary money laundering concern. 

Nutter Notes:  The USA PATRIOT Act also authorizes FinCEN to require covered financial institutions to obtain and retain beneficial ownership information regarding U.S. accounts that involve entities designated as being of primary money laundering concern, and identify and obtain information comparable to U.S. customer identification requirements regarding customers permitted to use, or whose transactions are routed through, payable-through accounts or correspondent accounts of financial institutions involving such an entity. FinCEN may prohibit, or impose conditions upon, the opening or maintaining in the U.S. of a correspondent account or payable-through account for such an entity. Banks should have policies and procedures in place as part of their BSA-AML compliance function to consult FinCEN’s list of entities designated as being of primary money laundering concern periodically for updates.

4. Treasury Department Seeks Public Comment on GENIUS Act Implementing Regulations

The U.S. Treasury Department has issued an advance notice of proposed rulemaking (ANPRM) requesting public input on a number of questions related to the implementation of the Guiding and Establishing National Innovation for U.S. Stablecoins (GENIUS) Act. The ANPRM published on September 19 builds on the Treasury Department’s August request for comment on a comprehensive regulatory framework for stablecoin issuers in the U.S. under the GENIUS Act. Among the questions posed in the ANPRM is what factors the Stablecoin Certification Review Committee (SCRC) should consider in making a finding that, “if a non-financial company issues payment stablecoins, it will not pose a material risk to the safety and soundness of the U.S. banking system, the financial stability of the United States, or the Deposit Insurance Fund.” Public comments in response to the ANPRM are due by October 20, 2025. Click for a copy of the ANPRM. 

Nutter Notes:  Under the GENIUS Act, the SCRC will wield broad powers over the issuance and regulation of stablecoins in the U.S. For example, the SCRC will be responsible for reviewing state-level certification of stablecoin issuers by determining whether a particular state’s stablecoin regulatory framework is “substantially similar” to the required federal framework. Under the GENIUS Act, state qualified payment stablecoin issuers (of payment stablecoins with consolidated total outstanding issuance of up to $10 billion) generally may opt for state regulation if the SCRC has approved the state regulatory regime. The SCRC also will be able to allow non-bank public companies to issue stablecoins. The SCRC will be chaired by the Treasury Secretary and also includes the Chair of the Board of Governors of the Federal Reserve System and the Chair of the FDIC.

5. Other Developments: Truth in Lending and Assessment Rates

• Massachusetts Division of Banks Amends State Truth in Lending Rule

The Massachusetts Division of Banks on September 23 adopted final amendments to the Massachusetts Truth in Lending rule to conform the timing requirements for certain notices required to be sent to consumers in connection with rate adjustments for adjustable rate loans to the timing requirements applicable under the federal Truth in Lending rule. Click for a copy of the final rule. 

Nutter Notes:  The amendments to the Massachusetts Truth in Lending rule will become effective on October 10, 2025.

• OCC Will Decrease Assessment Rates for National Banks and Federal Savings Associations

The OCC announced on August 29 that it will decrease assessment rates for the September 30, 2025, semiannual assessment for National Banks and Federal Savings Associations. According to the OCC, the rates in the general assessment fee schedule will be reduced by 30% for institutions with assets up to $40 billion and 22% for institutions with assets above $40 billion. Click for a copy of the OCC’s announcement. 

Nutter Notes:  The OCC indicated it will also reduce the rates in the independent trust and independent credit card assessment fee schedules by 22%, and will decrease the hourly fee for special examinations and investigations to $137 from $176.

Nutter Bank Report
Nutter Bank Report is a monthly electronic publication of the Banking and Financial Services Group of the law firm of Nutter McClennen & Fish LLP.  Chambers and Partners, the international law firm rating service, after interviewing our clients and our peers in the profession, has ranked Nutter’s Banking and Financial Services practice among the top banking practices in the nation. Visit the U.S. rankings at Chambers.com.  The Nutter Bank Report is edited by Matthew D. Hanaghan. Assistance in the preparation of this issue was provided by Heather F. Merton. The information in this publication is not legal advice. For further information, contact:

Michael K. Krebs mkrebs@nutter.com Tel: (617) 439-2288	Matthew D. Hanaghan mhanaghan@nutter.com Tel: (617) 439-2583	Daniel W. Hartman dhartman@nutter.com Tel: (617) 439-2872
Kate Henry khenry@nutter.com Tel: (617) 439-2304	Timothy J. Rennie trennie@nutter.com Tel: (617) 439-2141

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