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Thomas Ott Named FinCEN's Associate Director of Enforcement
On August 16, FinCEN named Thomas P. Ott Associate Director for FinCEN’s Enforcement Division. In his new role, Ott will oversee the agency’s Bank Secrecy Act compliance and enforcement program. Ott’s responsibilities will include “developing and implementing compliance and enforcement strategies, supervising investigations, enforcement actions, and other activities that have industry-wide, national, and international impact.” Ott has served as FinCEN’s Acting Associate Director of Enforcement since March 2016.
OCC Releases Semiannual Risk Perspective Report
On July 11, the OCC released its Semiannual Risk Perspective for Spring 2016, which generally provides an overview of supervisory concerns for the federal banking system and specifically presents data as of December 31, 2015 in the following areas: (i) operating environment; (ii) bank performance; (iii) key risk issues; and (iv) regulatory actions. Similar to the fall 2015 report, the current report identifies cybersecurity, third-party vendor management, business continuity planning, TRID, and BSA/AML compliance, among other things, as key areas of potential operational and compliance risk. Further, the report highlights the new Military Lending Act rule, effective October 3, 2016, as a new key potential risk. According to the report, the OCC’s supervisory priorities for the next twelve months will generally remain the same; moreover, the outlook for the OCC’s Large Bank Supervision and Midsize and Community Bank Supervision operating units will remain broadly similar.
NYDFS Adopts Final Anti-Terrorism and Anti-Money Laundering Regulation
On June 30, the NYDFS adopted a final rule that requires regulated financial institutions to maintain a transaction monitoring program for potential BSA/AML violations and a filtering program intended to ban transactions prohibited by federal economic and trade sanctions. Further, the Board of Directors or Senior Officer(s) are required to submit annually, by April 15, a Board Resolution or Compliance Officer Finding, confirming the steps taken to ascertain compliance with the regulation and stating that, “to the best of the [Board or Officer’s] knowledge, the Transaction Monitoring and Filtering Program complies with [the regulation].” The law applies to Regulated Institutions, which include banks, trust companies, private bankers, savings banks and savings and loan associations chartered pursuant to the New York Banking Law, and all branches and agencies of foreign banking corporations licensed under the Banking Law to conduct banking operations in New York; and non-banks, which include check cashers and money transmitters licensed under the Banking Law.
Each Regulated Institution’s transaction monitoring system must be designed, reviewed, updated, and tested in accordance with the detailed parameters of the Rule. The required Filtering Program may be manual or automated, and must be “reasonably designed for the purpose of interdicting transactions that are prohibited by OFAC.” Like the Transaction Monitoring Program, the Filtering Program must also be designed, reviewed, updated, and tested in accordance with the detailed parameters of the Rule.
OCC Enters into Agreement with New York Federally Charted Savings Bank
On May 24, the OCC entered into an agreement with a New York-based federal savings bank over the bank’s allegedly unsafe or unsound banking practices “relating to strategic and capital planning, concentration risk management, and board and management oversight at the [b]ank, and violations of law relating to Bank Secrecy Act (BSA) internal controls and BSA officer requirements.” Pursuant to the agreement, the bank’s Board must, among other things, revise and adopt a written program of internal control policies and procedures that the bank must implement to ensure ongoing compliance with the BSA. The policies and procedures must include, at a minimum, (i) effective customer due diligence and enhanced due diligence processes at account opening and thereafter; (ii) adequate methodology to ensure proper risk rating of customer accounts at their opening and thereafter; (iii) effective evaluations and investigations of suspicious activity system alerts; (iv) effective suspicious activity investigation process; and (v) periodic validation of the bank’s automated BSA monitoring system settings.
DOJ Proposes Legislation Intended to Advance Anti-Corruption Efforts
On May 5, the DOJ announced that it plans to submit to Congress proposals for legislative amendments that would provide the DOJ with additional tools to advance anti-corruption work in the areas of pursuing illegal proceeds of transnational corruption and modifying the substance of criminal corruption offenses. The DOJ’s proposals regarding the illegal proceeds of transnational corruption would amend various sections of the U.S.C. to (i) expand foreign money laundering predicate crimes to include any violation of foreign law that, if committed in the U.S., would be a money laundering predicate; (ii) allow administrative subpoenas for money laundering investigations; (iii) enhance law enforcement’s ability to obtain overseas records by allowing access to foreign bank or business records by serving subpoenas on foreign bank branches located in the United States regardless of bank secrecy or data privacy laws in the foreign jurisdictions; (iv) create a framework to use and protect classified information in civil kleptocracy-related cases; and (v) extend the time period in which the United States can restrain property based on a request from a foreign country from 30 to 90 days. The proposals pertaining to substantive corruption offenses would amend 18 U.S.C. § 666 (theft or bribery concerning programs receiving federal funds) to (i) expressly criminalize the corrupt offer or acceptance of payments to “reward” official action; and (ii) lower the dollar threshold for liability from $5,000 to $1,000 to address cases where the dollar amount may be low but threat to the integrity of a government function is high.
OCC Names Deputy Comptroller for Compliance Risk
On April 13, the OCC named Donna Murphy Deputy Comptroller for Compliance Risk. Effective May 1, Murphy will be responsible for supervising the development of policy and examination procedures relating to consumer, BSA/AML, and Community Reinvestment Act issues. Prior to joining the OCC in 2013, Murphy supervised the DOJ’s fair lending enforcement program.
FDIC Provides Commentary on Responsibilities and Duties of Banks' Boards of Directors
On April 5, the FDIC issued a special Corporate Governance Edition of its Supervisory Insights publication titled, “21st Century Reflections on the FDIC Pocket Guide for Directors.” The new edition provides guidance to community bank boards of directors as well as an expanded, community bank-focused commentary on the FDIC Pocket Guide for Directors, which was issued in 1988. It covers a range of topics, such as the proper roles of directors and officers, as well as objectives for the development of policies and procedures for risk management and strategic planning. While the existing version of the Pocket Guide remains unchanged, this edition of Supervisory Insights incorporates more recent guidance and resources that the FDIC has provided since 1988. For example, the FDIC emphasizes that, “[i]n addition to covering areas outlined in the Pocket Guide and Safety and Soundness Standards, community bank directors should ensure that senior management has established appropriate risk management policies and procedures in Bank Secrecy Act (BSA)/Anti-Money Laundering (AML) compliance, information technology and cyber risk, and compliance with Community Reinvestment Act and consumer protection laws and regulations.”
FinCEN Assesses Civil Money Penalty Against Nevada-Based Casino for BSA/AML Violations
On April 5, FinCEN assessed a civil money penalty against a Nevada-based casino for willfully violating the anti-money laundering provisions of the BSA. From 2010 through November 2013, the casino allegedly failed to (i) establish and implement an effective, written anti-money laundering program; (ii) establish and maintain appropriate internal controls in compliance with the BSA’s reporting requirements; (iii) conduct independent testing of its AML program; (iv) implement automated data processing systems that ensured compliance with the BSA and the casino’s AML program; (v) report suspicious activity; and (vi) secure and retain certain required records. According to FinCEN, the casino generally “lacked a culture of compliance” and had a “blatant disregard for AML compliance permeat[ing] at all levels.” The casino agreed to a $1 million civil money penalty and admitted to willfully violating the BSA’s program, reporting, and recordkeeping requirements.
FinCEN Proposes Imposing BSA Requirements on Crowdfunding Portals
On April 4, FinCEN issued a proposed rule to amend the definitions of “broker or dealer in securities” and “broker-dealer” under the regulations implementing the BSA. Specifically, FinCEN proposed that the definitions be amended to “explicitly include funding portals that are involved in the offering or selling of crowdfunding securities pursuant to section 4(a)(6) of the Securities Act of 1933.” Intended to help prevent money laundering, terrorist financing, and other financial crimes, the amendments would require funding portals to implement policies and procedures reasonably designed to ensure compliance with the BSA requirements currently applicable to brokers or dealers in securities. Comments on the proposal are due by June 3, 2016.
Pakistani Bank Reaches Agreement with NYDFS to Enhance AML Compliance Controls
Recently, the Federal Reserve and NYDFS announced that a New York branch of a Pakistani bank agreed to strengthen its compliance with BSA/AML requirements and OFAC regulations. The NYDFS’s and the NY Federal Reserve Bank’s recent examination into the bank’s branch found deficiencies related to its risk management and compliance with BSA/AML and OFAC regulations. Pursuant the agreement, the bank must submit written plans to the NYDFS and the NY Federal Reserve Bank on its strategy to improve its BSA/AML/OFAC compliance and its suspicious activity reporting. In addition, the bank must submit quarterly progress reports to the aforementioned regulators.
The recently issued agreement comes after a similar agreement earlier this month in which a New York branch of a Korean bank agreed to enhance its BSA/AML/OFAC compliance.