OK, maybe not a hole, per se, but I believe the whole spirit of the law suggests that the FinCEN requirements exist to prevent money laundering, terrorism financing, etc. The way they enforce this is through the use of trusted third parties, or businesses that have an AML policy in place and are registered Money Services Businesses. If a miner creates bitcoins and sells them on the open market, there is no way to track that, obviously. But why wouldn't a miner be able to sell through a trusted third party? If an exchange was a registered money transmitter, that should address FinCEN's concerns about money laundering as there would now be trackability and compliance for these newly created coins entering the economy. Why should the miner have to be registered himself? How could we get FinCEN to make provisions for this?

Even though I am not a miner, I am still concerned about buying some bitcoins and then turning around and selling them through Craigslist, for example, at a substantial mark up. I believe somehow, someway in FinCEN's view this could qualify me as an MSB and that's just stupid. I'd like to be able to sell my coins too. I'm not interested in breaking the law but I shouldn't have to register just to partake in the Bitcoin revolution.