Our state has legalized medical marijuana. We are state-chartered, but federally insured and regulated, and marijuana is still a Class I prohibited substance by federal law. We would absolutely file SARs as instructed in the FinCEN guidance.

It provides relevant information only to the extent that it's a "Marijuana Termination" filing which may or may not have meaning anymore and also avoid criticism from examiners. I mean, that plays in to some of my decisions to file or not already.

But I suppose you're right.
So what do people think then about including "Marijuana Termination" and then explain my reasoning for including it in my memo to file?

The "adjective SARs" are based on FinCEN guidance that was derived from repetitively cross referenced DOJ guidance. The DOJ guidance no longer exists. (As an exercise, go through the FinCEN guidance and cross out every reference derived from the Cole Memo. Then figure out what the remaining language says.)

Regardless, "marijuana priority" and "marijuana termination" SARs still make some sense because the bank is indicating it believes the customer is engaged in illegal activity and is reporting it, purposefully drawing it to the attention of law enforcement either before or after exiting the relationship. Vanilla.

It's the banks that are filing "marijuana limited" SARs that need to evaluate the logic of their position. They are filing skeletal SARs with no announced plan to terminate the relationship. Their primary response is to charge these customers higher fees. They are now doing it knowing full well the U.S. Attorney in their district could indict their bank and the bank's decision makers for knowing complicity in illegal activity.

Going forward, it's not really about the SARs. It's about the incredible assumption of risk on behalf of the bank and its personnel.

For what it's worth, this is the response I received from FinCEN, one week after submitting questions about the relevance of the prior guidance and the rumored future guidance related to ancillary MRB situations:

"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."

I received the same in response to an e-mail inquiry.

I would not bet my bank on that canned response. For all the reasons that Ken explained FinCEN's Valentine's Day 2015 guidance isn't worth the paper to roll a fat one in.

My question to them was based more on the use of the terms the guidance called for using. We don't bank MRB, so that aspect isn't a concern for me.

If an examiner wants to criticize me for using the terms even though I inquired to FinCEN and received that response, I guess that's their perogative. I would feel comfortable defending myself in that situation.

Examiner criticism is the least of a bank’s worries if it thinks that assets involved in marijuana activity will be excluded from a DOJ seizure warrant because it filed Marijuana Limited SARS.

More recent (2/19) response from the FRC:

FinCEN was consistent that it has not made any changes during its presentation at Top Gun on 2/28.