FinCEN's proposed rule creating the Whistleblower Program would implement section 6314 of the Anti-Money Laundering Act of 2020 (AML Act) and the Anti-Money Laundering Whistleblower Improvement Act (AML Whistleblower Improvement Act), which were enacted into law as part of the National Defense Authorization Act for Fiscal Year 2021 (FY21 NDAA) and the Consolidated Appropriations Act of 2023, respectively. FinCEN has requested comments on the proposed rule by June 1, 2026.

Consistent with 31 U.S.C. 5323(a)(5), the proposed rule defines a “whistleblower” as any individual who provides, or any two or more individuals acting jointly who provide, information relating to a possible violation of the BSA, IEEPA, TWEA, and/or Kingpin Act or a possible conspiracy to violate any of these statutes to the U.S. Department of the Treasury (Treasury) or to the U.S. Department of Justice (DOJ), or to the employer of the individual or individuals, including as part of the job duties of the individual or individuals.

Generally, one of the eligibility requirements for a whistleblower award  under the proposed program is that the whistleblower provides “original information,” which is information that is (1) derived from the independent knowledge or independent analysis of a whistleblower; (2) not known to Treasury or DOJ from any other source; (3) not exclusively derived from publicly available sources; and (4) provided to Treasury or DOJ for the first time after January 1, 2021 for violations of the BSA or after December 29, 2022 for violations of IEEPA, TWEA, and the Kingpin Act and for conspiracies to violate the BSA, IEEPA, TWEA, and Kingpin Act.

The proposed rule requires that each whistleblower submit information to FinCEN using FinCEN's “Tip, Complaint, or Referral” form (Form TCR) or a successor form. That form would then be submitted to FinCEN through a secure online portal. If a whistleblower provides original information to a part of Treasury other than FinCEN, or to DOJ, or to their employer, then the whistleblower must also provide that same original information to FinCEN within a reasonable time to be eligible for an award.

Whistleblowers who learn of potential violations through the performance of certain internal functions (like an audit) would generally be required to wait at least 120 days before reporting a potential violation to FinCEN. This would provide companies with the opportunity to review and assess information that could relate to a violation of a covered statute and, where they deem it appropriate, address the issue and/or voluntarily disclose the information to the government.

The proposed rule outlines four specific eligibility requirements for an award. The whistleblower must (1) voluntarily provide original information; (2) be the original source of the original information; (3) provide original information that leads to a successful enforcement of a judicial or administrative action brought by Treasury or DOJ under a covered statute with a monetary sanction exceeding $1,000,000 or a related action; and (4) provide Treasury and DOJ certain additional information upon request.

Whistleblowers with certain employment or criminal history (e.g., if the whistleblower acquired the original information as a contractor of an appropriate regulatory agency) would not be eligible for the award. An individual who repeatedly makes frivolous or fraudulent submissions or otherwise hinders the effective and efficient operation of the Whistleblower Program, may be permanently barred from receiving an award under the program.

Under the Whistleblower Program, FinCEN would determine whether a whistleblower is eligible to receive an award and the amount of an award. The amount of the award may be 10-30 percent of collected monetary penalties for individuals whose tip leads to a successful enforcement action by Treasury or DOJ. FinCEN will consider several factors when determining the specific amount of the award, which include the significance of the information provided by the whistleblower to the success of the covered action or related action, the degree of assistance provided by the whistleblower, and the programmatic interest of Treasury or DOJ in deterring violations of the covered statutes.

Consistent with 31 U.S.C. 5323(g)(4), the proposed rule requires that FinCEN not disclose any information, including information provided by a whistleblower to FinCEN, which could reasonably be expected to reveal the identity of a whistleblower, except in particular circumstances detailed in the statute and rule (e.g. when disclosure is required to a defendant or respondent in connection with public proceedings).

The proposed rule would prohibit employers from retaliating against a whistleblower. Any whistleblower who alleges discharge or other discrimination, or is otherwise aggrieved by an employer, in violation of 31 U.S.C. 5323(g)(1), may seek relief by filing a complaint with the Department of Labor, and in certain circumstances, bringing an action against the employer in a federal district court.

No person may take any action to impede an individual from communicating directly with Treasury or DOJ about any possible violations of the BSA, IEEPA, TWEA, and/or Kingpin Act or conspiracies to commit any such offenses.

The proposed rule states that a whistleblower would not be provided amnesty or immunity from a future investigation by any agency if they participated in wrongdoing. The fact that a whistleblower may assist with an investigation does not preclude authorities from bringing an action against the whistleblower for the whistleblower's own conduct in connection with the violations of the BSA, IEEPA, TWEA, and/or Kingpin Act.

Authored by Beth Peters, Sara Lenet, Gregory Lisa, and Elizabeth Shneider.