Is it time to revisit your anti-money laundering program?
If you haven’t reviewed your bank’s anti-money laundering program recently, it may be time for an update. Here’s a look at the latest developments.
New terminology and rules
One sure sign that your program is outdated is if you still call it a Bank Secrecy Act/Anti-Money Laundering (BSA/AML) program. These days, most banking regulators are using the term Anti-Money Laundering/Countering the Financing of Terrorism (AML/CFT). The new terminology reflects changes made by the Anti-Money Laundering (AML) Act of 2020 and aligns more closely with the AML/CFT national priorities outlined by the Financial Crimes Enforcement Network (FinCEN) in 2021. To ensure that your program passes muster with examiners, review these priorities and make any necessary changes to comply with the new law.
One of the most significant provisions of the AML Act was to establish a federal beneficial ownership registry administered by FinCEN. By allowing law enforcement and financial institutions (with permission from their customers) to view the information in the registry, the act makes it harder for criminals to hide behind shell companies to conceal their identities. The law also expands and enhances criminal penalties for BSA violations, increases rewards and protections for whistleblowers, and strengthens the U.S. government’s subpoena power over foreign bank accounts.
In addition, bankers should familiarize themselves with FinCEN’s recently proposed rules, which would impose new AML/CFT requirements on financial institutions. (See “Proposed rules would beef up AML/CFT requirements” below.)
Updated priorities
Among FinCEN’s AML/CFT priorities are:
Corruption. According to FinCEN, combating corruption is a “core national security interest.” Banks play a key role in this effort, because “corrupt actors and their financial facilitators may seek to take advantage of vulnerabilities in the U.S. financial system to launder their assets and obscure the proceeds of crime.” Banks should consult FinCEN advisories regarding corruption-enabled human rights abuses to identify typologies and red flags associated with these abuses.
Cybercrime. Specific concerns are:
- Cyber-enabled financial crime,
- Ransomware attacks, and
- The misuse of virtual currencies that “exploits and undermines their innovative potential, including through laundering of illicit proceeds.”
FinCEN notes that financial institutions “are uniquely positioned to observe the suspicious activity that results from cybercrime,” and encourages them to share this information with one another under the BSA’s safe harbor provisions.
Foreign and domestic terrorist financing. Because terrorist groups need financing to operate, FinCEN reminds banks of their obligation to identify potential terrorist financing transactions and file suspicious activity reports (SARs). It also notes that banks must comply with required sanctions programs and be aware of terrorists or terrorist organizations on government-issued sanctions lists.
Fraud. According to FinCEN, fraud is believed to generate the largest share of illicit proceeds in the United States. Fraudulent proceeds may be laundered by “money mules” and transfers through offshore and cybercriminals’ accounts.
Transnational criminal organization (TCO) activity. According to FinCEN, drug trafficking organizations and other TCOs are increasingly turning to “professional money laundering networks that receive a fee or commission for their laundering services.” These groups specialize in laundering proceeds generated by others.
Drug trafficking organization (DTO) activity. FinCEN notes that both the proceeds of illicit drugs (which may be laundered in or through the United States) and the drugs themselves contribute to a “significant public health emergency.” DTOs tend to rely on professional money laundering networks in Asia (primarily China) that facilitate exchanges of Chinese and U.S. currency or serve as brokers in trade-based money laundering schemes.
Human trafficking and human smuggling. Financial activity related to human trafficking and human smuggling can “intersect with the formal financial system at any point during the trafficking or smuggling process.” Networks use a variety of methods to move illicit proceeds, including cash smuggling and front companies.
Proliferation financing. Proliferation support networks seek to exploit the U.S. financial system to move funds used to acquire weapons or support state-sponsored weapons programs. FinCEN notes that global correspondent banking is a principal vulnerability and driver of proliferation financing risk in the United States.
Review and update
Banks should evaluate their AML/CFT programs and revise them, as needed, to incorporate FinCEN’s priorities and reflect any changes in their risk profiles. Staying on top of the latest rules regarding money laundering is essential for any community bank going forward.
Sidebar: Proposed rules would beef up AML/CFT requirements
On June 28, 2024, FinCEN announced a proposed rule designed to strengthen and modernize financial institutions’ Anti-Money Laundering/Countering the Financing of Terrorism (AML/CFT) programs. Among other things, the proposed rule, if adopted, will require banks to implement the following proactive measures:
- Maintain effective, risk-based and reasonably designed AML/CFT programs. (By explicitly requiring programs to be effective, the proposed rule would impose new burdens on banks.)
- Review FinCEN’s AML/CFT priorities and incorporate them, as appropriate, into their risk-based programs.
- Conduct formal risk assessments to evaluate their exposure to AML/CFT risks.
- Ensure that their AML/CFT programs are administered by people in the United States and are overseen and approved by their boards of directors.
Also, on July 19, 2024, the federal banking agencies jointly announced a proposed rule that would update their AML/CFT program requirements and align them with FinCEN’s proposed rule. Notably, the agencies’ proposal would require that banks’ AML/CFT officers be “qualified” and that independent testing of banks’ AML/CFT programs be conducted by qualified personnel or outside parties.
For more information, contact one of our advisors today.
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