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FinCEN provides timing on CTA rulemaking
On October 12, FinCEN acting Director Himamauli Das provided timelines on recent agency efforts to combat financial crime. Speaking during the ACAMS AML Conference, Das pointed to actions taken by bad actors to hide assets behind shell/front companies and evade U.S. sanctions, and highlighted measures, including beneficial ownership information reporting, suspicious activity reporting, and geographic targeting, designed to combat illicit activity. Das also provided an update on recent rulemakings mandated by the Corporate Transparency Act (CTA), including (i) the beneficial ownership reporting rule (which takes effect January 1, 2024, and is covered by InfoBytes here); (ii) the access rule, which would establish protocols for accessing the beneficial ownership database by law enforcement and financial institutions (FinCEN is currently working on the notice of proposed rulemaking and expects to issue it in the near term); and (iii) the Customer Due Diligence rule, which Das said will be revised “no later than one year after the effective date of the reporting rule” as required by the CTA. He added that FinCEN is also developing an “infrastructure to build a secure and confidential database that meets the highest security standards” to ensure only authorized users can access information. This system is expected to be operational by the time the beneficial ownership reporting rule takes effect. Additionally, FinCEN will, among other things, develop guidance and educational materials to assist companies when preparing their beneficial ownership information reports and will continue to regularly update its dedicated resource page on this subject.
FinCEN releases final rule on beneficial ownership reporting
On September 29, FinCEN issued a final rule establishing a beneficial ownership information reporting requirement, pursuant to the bipartisan Corporate Transparency Act. According to FinCEN, the final rule will require most corporations, limited liability companies, and other entities created in or registered to do business in the U.S. to report information about their beneficial owners to FinCEN. FinCEN noted that the final rule is designed to protect national security and strengthen the integrity and transparency of the U.S. financial system. FinCEN also released a Fact Sheet clarifying the final rule. The final rule is effective January 1, 2024. Reporting companies created or registered before January 1, 2024, will have until January 1, 2025, to file their initial reports, while reporting companies created or registered after January 1, 2024, will have 30 days after creation or registration to file their initial reports. Once the initial report has been filed, both existing and new reporting companies will have to file updates within 30 days of a change in their beneficial ownership information, according to FinCEN. The same day, Treasury Secretary Janet L. Yellen released a statement, noting that the final rule is “a major step forward in giving law enforcement, national security agencies, and other partners the information they need to crack down on criminals, corrupt individuals, and other bad actors who seek to take advantage of America’s financial system for illicit purposes.”
FAFT restricts Russia’s membership privileges, takes action against corruption and virtual asset misuse
On June 17, the U.S. Treasury Department announced that the Financial Action Task Force (FATF) concluded another plenary meeting, in which it, among other things, took steps to restrict Russia’s FATF membership privileges. During the meeting, FATF again criticized Russia’s war against Ukraine and issued a statement, stressing that “Russian actions run counter to the FATF core principles aiming to promote security, safety, and the integrity of the global financial system. They also represent a gross violation of the commitment to international cooperation and mutual respect upon which FATF Members have agreed to implement and support the FATF standards.” Treasury Secretary Janet Yellen also stated that she “welcome[s] the serious steps the FATF took to restrict Russia’s presence in its community.” FATF members agreed that Russia can no longer hold any leadership or advisory roles, nor take part in decision making on any standard-setting, peer-review processes, governance, or membership matters. Russia is also prohibited from providing assessors, reviewers, or other experts for FATF peer-review processes. FATF stated it “will monitor the situation and consider at each of its Plenary meetings whether grounds exist for modifying these restrictions.”
FATF also produced policy recommendations for combatting corruption and countering corrupt actors or illicit funds. FATF stated it will continue to fight the abuse of shell companies, trusts, or other legal arrangements employed by bad actors, and intends to seek input on guidance to implement recommendations related to the collection and verification of beneficial ownership information for companies or other legal entities. FATF members will release a white paper for public consultation on important issues concerning “the misuse of trusts and other legal arrangements to facilitate illicit finance,” and will published guidance on ways governments and firms can mitigate money laundering risks within the real estate sector.
Additionally, FATF adopted a report on virtual assets during the meeting, calling “for accelerated compliance by the public and private sectors with the FATF standards, particularly the ‘travel rule,’ for virtual assets and virtual asset service providers.” The travel rule requires virtual asset service providers to collect or send information on the identities of the originator and beneficiary of virtual asset transfers. However, FATF noted that, despite some progress, not all countries have introduced the travel rule, creating significant vulnerabilities for criminal misuse and underscoring the need for universal implementation and enforcement of the travel rule. FATF also approved a new project related to ransomware finance and related money laundering, with an objective of raising global awareness and understanding of how payments for ransomware are made and how these proceeds are often laundered.
FinCEN to issue second beneficial ownership NPRM later this year
On April 28, FinCEN acting Director Himamauli Das informed the House Financial Services Committee during a hearing on the oversight of the agency that FinCEN is currently developing a second notice of proposed rulemaking (NPRM) this year proposing “regulations governing access to beneficial ownership information by law enforcement, national security agencies, financial institutions and others.” The NPRM will be published this year and follows a previous proposal to implement the beneficial ownership information reporting provisions of the Corporate Transparency Act (CTA), which addresses who must report beneficial ownership information, when to report it, and what information must be provided (covered by InfoBytes here). In his written testimony, Das stated the agency also plans to issue a third and final proposal revising the Customer Due Diligence (CDD) regulation for financial institutions “no later than one year after the effective date of the final reporting rule,” as required by the statute. “The CTA directs that the revisions should bring the CDD regulation into conformance with the beneficial ownership rules under the CTA and reduce unnecessary or duplicative requirements, among other things,” Das said. “We are considering all options as we develop the Access Rule NPRM, and look forward to receiving public comments on our proposal when it is issued.” Das also noted that FinCEN is currently developing the beneficial ownership database, which will allow users to search and access certain beneficial ownership information. However, Das warned that limited resources “have presented significant challenges to meeting the implementation requirements of [FinCEN’s] expanded mandate under the Anti-Money Laundering Act, including the CTA’s beneficial ownership requirements . . . we are missing deadlines, and we will likely continue to do so.”
FATF to strengthen beneficial ownership transparency
On March 4, the U.S. Treasury Department announced that the Financial Action Task Force (FATF) concluded its sixth plenary meeting, in which it, among other things, “agreed upon a revised standard to combat the misuse of anonymous shell companies and set the stage for its members and the broader global FATF network to be held accountable to more stringent standards.” FATF adopted amendments on beneficial ownership transparency for legal persons, which will “enhance the quality of beneficial ownership information (BOI) collected by governments,” and will “enable efficient access by law enforcement to this information and require improved international cooperation.” FATF also agreed upon a new updated Mutual Evaluation Methodology and an updated Mutual Evaluation Procedures. FATF will publish a report on migrant smuggling, which is intended to “raise awareness to the importance of developing a comprehensive understanding of the financial component of this criminal activity among both the public and private sectors.” Additionally, FATF is planning to launch a public consultation on updated Risk Based Guidance for the real estate sector this spring.
SEC to update beneficial ownership reporting requirements
On February 10, the SEC proposed amendments to its rules governing beneficial ownership reporting under Exchange Act Sections 13(d) and 13(g) in order to “improve transparency and provide more timely information for shareholders and the market.” (See also SEC fact sheet here.) Among other things, the proposed rule would (i) accelerate the filing deadlines for Schedules 13D and 13G beneficial ownership reports from 10 days to five days (amendments would be required to be filed within one business day); (ii) expand the application of Regulations 13D and 13G to certain derivative securities; (iii) clarify the circumstances in which two or more persons have formed a “group” that would be subject to beneficial ownership reporting obligations; (iv) allow for new exemptions “to permit certain persons to communicate and consult with one another, jointly engage issuers, and execute certain transactions without being subject to regulation as a ‘group’”; and (v) require Schedules 13D and 13G filings to be done through a “structured, machine-readable data language.” Comments are due 30 days after publication in the Federal Register, or April 11, whichever is later. SEC Chair Gary Gensler issued a statement supporting the proposed amendments, which “would reduce information asymmetries and promote transparency, thereby lowering risk and illiquidity,” citing the “rapidity of current markets and technologies” as justification for updating the decades-old rules. However, SEC Commissioner Hester M. Peirce dissented, arguing that the proposed amendments fail to fully contend “with the realities of today’s markets or the balance embodied in Section 13(d) of the Exchange Act.” She further challenged the justification of technological advancements as a reason to shorten the 10-day reporting window to five days.
FinCEN releases statement on NPRM for beneficial ownership
On February 8, FinCEN disclosed that the comment period from a December 2021 notice of proposed rulemaking (NPRM) related to the reporting of beneficial ownership information (the “Reporting NPRM”) received more than 230 public comments and is now closed. As previously covered by InfoBytes, in December, FinCEN issued a NPRM implementing the beneficial ownership information reporting provisions of the Corporate Transparency Act (CTA), which addressed who must report beneficial ownership information, when to report it, and what information they must provide. FinCEN noted that “the next step in the CTA rulemaking series will be FinCEN’s publication of proposed rules on BOI access and disclosure requirements (the 'Access NPRM'), which FinCEN anticipates publishing later this year.” According to FinCEN, some public comments included requests for the opportunity to submit, supplement, or amend their comments on the Reporting NPRM after having the opportunity to review the Access NPRM.
Treasury says banks need to collaborate to combat corruption
On February 3, U.S. Treasury Department Assistant Secretary for Terrorist Financing and Financial Crimes Elizabeth Rosenberg spoke before the Union of Arab Banks Conference to discuss the importance of working with member institutions in the Middle East and Africa to fight corruption. While noting that countering terrorist financing remains a crucial priority, Rosenberg pointed out that terrorist financing is not the only threat affecting the financial system. “In countries across the region, we have seen trends in which some politically exposed persons have sought to hide their ill-gotten gains through transfers to secondary jurisdictions under both themselves as well as family members’ and associates’ names,” Rosenberg said. “This is something that banks have a responsibility, indeed an obligation, to identify and halt,” she added, emphasizing that “[w]e will all be stronger, more secure, if every bank represented here builds and maintains strong compliance programs” designed to “identify and disrupt the onboarding of customers and the processing of transactions involv[ing] bribes or expropriated government funds.” Rosenberg encouraged the banks to share information on corruption with each other and to ensure enhanced due diligence, especially when dealing with politically exposed persons. “Nearly every act of corruption flows through the formal financial system, the system we are all a part of, which means all of us have the ability—and the responsibility—to stop it,” Rosenberg noted, highlighting the “global corruption boom” in recent decades resulting from individuals seeking to conceal assets and ownerships though shell companies or transactions involving art, real estate, and cryptocurrencies. Rosenberg also informed the banks that as part of the Biden Administration anti-corruption strategy, Treasury “will soon require many U.S. and foreign companies to report their true beneficial owners and to update that information when those beneficial owners change.”
FinCEN explores possibility of creating regulatory sandboxes
On January 13, the acting Director of FinCEN Him Das spoke at the Financial Crimes Enforcement Conference to discuss the transformation of the anti-money laundering/counter-terrorist financing regulatory regime as it relates to new threats, new innovations, and new partnerships. Das highlighted recent FinCEN rulemaking initiatives, including a proposed rule issued last December (covered by InfoBytes here) to implement the beneficial ownership information reporting provisions of the Corporate Transparency Act. In particular, the proposed rule would require many U.S. and foreign companies to report their true beneficial owners to FinCEN and update that information when those beneficial owners change. Das explained that FinCEN is examining how a proposed beneficial ownership database would interplay with the Customer Due Diligence Rule, and stated the agency will share more information in the coming months. Das also discussed an Advance Notice of Proposed Rulemaking (covered by InfoBytes here), which sought comments on potential requirements under the Bank Secrecy Act to address vulnerabilities in the U.S. real estate market to money laundering and other illicit activity.
With respect to new innovation, Das noted that while FinCEN is exploring the idea of creating regulatory sandboxes to test new methods of transaction monitoring using artificial intelligence, the agency needs feedback from institutions on the potential use and risks of the program. Das also discussed other potential innovative ideas, including, among other things, “new approaches to customer risk rating and institutional risk assessment, digital identity tools and utilities, and automating the adjudication and filing of [suspicious activity reports] related to certain types of activity.”
Biden outlines anti-corruption strategy
On December 6, the Biden administration released the United States Strategy on Countering Corruption (Strategy) in response to President Biden’s June Memorandum on Establishing the Fight Against Corruption as a Core United States National Security Interest, which designated the “fight against corruption” as a top priority in preserving national security in the United States. (Covered by InfoBytes here.) According to a fact sheet issued the same day, the comprehensive Strategy is intended to “improve the U.S. Government’s ability to prevent corruption, more effectively combat illicit finance, better hold corrupt actors accountable, and strengthen the capacity of activists, investigative journalists, and others on the front lines of exposing corrupt acts.” To achieve this, the Strategy presents a “whole-of-government approach to elevating the fight against corruption,” including by taking expanded steps to reduce corrupt actors from accessing the U.S. and international financial system to hide assets and lauder proceeds derived from corrupt acts. The Strategy, which discusses enforcement and rulemaking under the FCPA, Bank Secrecy Act, and Corporate Transparency Act, among other statutes, is divided into the following five pillars:
- “Modernizing, coordinating, and resourcing U.S. Government efforts to fight corruption,” including “prioritizing intelligence collection and analysis on corrupt actors and their networks.”
- “Curbing illicit finance” by, among other things, “[i]ssuing beneficial ownership transparency regulations” to identify bad actors and reveal when ill-gotten cash or criminal proceeds is hidden in real estate transactions, as well as cooperating with other counties to strengthen anti-money laundering regimes to increase transparency in the international financial system.
- “Holding corrupt actors accountable” by engaging with partner countries to detect and disrupt foreign bribery, developing “a kleptocracy asset recovery rewards program that will enhance the U.S. Government’s ability to identify and recover stolen assets linked to foreign government corruption that are held at U.S. financial institutions,” and working with the private sector to “encourage[e] the adoption and enforcement of anti-corruption compliance programs by U.S. and international companies.”
- “Preserving and strengthening the multilateral anti-corruption architecture,” including working to implement robust transparency and anti-corruption measures with the G7 and G20 and “target[ing] corruption in finance, acquisition, and human resource functions.”
- “Improving diplomatic engagement and leveraging foreign assistance resources to achieve anti-corruption policy goals” by, among other things, safeguarding government assistance funds from corrupt actors, “[e]xpanding anti-corruption focused U.S. assistance, and monitoring the efficacy of this assistance,” allowing for flexibility within “anti-corruption initiatives and broader assistance efforts to respond to unexpected situations worldwide,” and improving support for independent audit and oversight institutions.
The Strategy will require federal departments and agencies to submit annual reports to President Biden on progress made to achieve its objectives.