Financial Crimes Enforcement Network

Federal Banking Agencies Exempt Premium Finance Lending from BSA/AML Customer Identification Program Requirements

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On October 9, the Office of the Comptroller of the Currency (OCC), Board of Governors of the Federal Reserve System (Federal Reserve), Federal Deposit Insurance Corporation (FDIC), and National Credit Union Administration (NCUA), with approval from the Treasury Department’s Financial Crimes Enforcement Network (FinCEN), issued a revised order exempting premium finance loans (loans made to facilitate a borrower’s purchase of property and casualty insurance policies) from the customer identification program requirements applicable to a lender’s Bank Secrecy Act/Anti-Money Laundering (BSA/AML) compliance program. Order.

Federal Bank Regulatory Agencies Release Joint Statement on Risk-Based Approach to BSA/AML Supervision

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On July 22, the Federal Reserve Board, FDIC, Office of the Comptroller of the Currency (OCC), National Credit Union Administration (NCUA) and the Treasury Department’s Financial Crimes Enforcement Network (FinCEN) released a joint statement outlining the agencies’ risk-based approach to examining banks’ BSA/AML compliance programs. Release.

FinCEN Issues Customer Due Diligence Rule (CDD) FAQs

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On July 19, 2016, the Financial Crimes Enforcement Network (“FinCEN”) issued FAQs regarding the customer due diligence requirements (“CDD”) that it published on May 11, 2016, for certain financial institutions, including brokers, dealers, future commission merchants and introducing brokers in commodities.  The FAQs provide interpretive guidance with respect to these requirements, including, in particular, the new regulatory requirement to identify and verify the identity of the “beneficial owners” of virtually all legal entity customers, other than a sole proprietorship and an unincorporated association.  The CDD defines “beneficial owner” as:

  • “each individual, if any, who, directly or indirectly, owns 25% or more of the equity interests of a legal entity customer; and
  • a single individual with significant responsibility to control, manage, or direct a legal entity customer, including an executive officer or senior manager. . .
  • or any other individual who regularly performs similar functions.”

The FAQs states:  “In short, covered financial institutions are now required to obtain, verify, and record the identities of the beneficial owners of legal entity customers.”

FinCEN Proposes Funding Portals Regulations under Bank Secrecy Act

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On April 4, 2016, the Financial Crimes Enforcement Network, a bureau of the Department of the Treasury (“FinCEN”), proposed amendments to the definitions of ‘‘broker or dealer in securities’’ and ‘‘broker-dealer’’ under the regulations implementing the Bank Secrecy Act (“BSA”). This rulemaking would amend those definitions explicitly to include “funding portals” that are involved in the offering or selling of “crowdfunded securities” pursuant to Section 4(a)(6) of the Securities Act of 1933. The consequence of those amendments would be that funding portals would be required to implement policies and procedures reasonably designed to achieve compliance with the BSA Act requirements currently applicable to brokers or dealers in securities. FinCEN stated that:  “The proposal to specifically require funding portals to comply with the Bank Secrecy Act regulations is intended to help prevent money laundering, terrorist financing, and other financial crimes.”  Written comments of this proposal must be submitted on or before June 3, 2016.

The Jumpstart Our Business Startups Act, enacted into law on April 5, 2012, established the foundation for a regulatory structure for startups and small businesses to raise funds by offering and selling securities through “crowdfunding” without having to register the securities with the Securities and Exchange Commission (“SEC”) or state securities regulators.  In order to take advantage of this exemption for offerings of crowdfunded securities, an issuer must use the services of an intermediary that is either a broker registered with the SEC or a “funding portal” registered with the SEC.

Fed, Treasury Proposed Amendments to Bank Secrecy Act Definitions

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On November 29, the Fed and the Financial Crimes Enforcement Network, a bureau of the Treasury, proposed amended definitions of “funds transfer” and “transmittal of funds” under the regulations implementing the Bank Secrecy Act.  The proposed amendments maintain the current scope of funds transfers and transmittals subject to the Bank Secrecy Act following amendments to the Electronic Fund Transfer Act made pursuant to the Dodd-Frank Act.  Comments must be submitted no later than January 25, 2013. Fed Release.   Fed Proposed Rule.

SEC Authorizes FINRA to Collect SARs from Member Firms

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On January 26, pursuant to the Financial Crimes Enforcement Network regulations, the SEC issued a letter to FINRA authorizing FINRA staff to ask for suspicious activity reports (SARs) and SAR information from member firms in certain circumstances. The SEC also issued a letter to chief executive officers of all SEC-registered FINRA member firms requesting that they make SARs and supporting documentation available to FINRA. FINRA Notice.