On October 27, FinCEN issued two administrative rulings to companies seeking guidance on whether they must register as MSBs and be subject to the required reporting, recordkeeping, and monitoring obligations. In its first letter, a company queried whether its plans to set up a virtual currency trading and booking platform, similar to a traditional securities or commodities exchange, would make it subject to FinCEN regulations. FinCEN responded that the proposed virtual trading platform would be classified as an MSB. As a result, the company would have to register as an MSB as defined under the BSA. In its second ruling, a company asked whether a bitcoin payment system would be subject to the agency’s regulations. The payment system would accept customers’ credit card payments and transfer the payments to merchants in the form of bitcoin. FinCEN ruled that if the company sets up the payment system, the company would be classified as a money transmitter, and subject to BSA regulations, because “it engages as a business in accepting and converting the customers’ real currency into virtual currency for transmission to the merchant.”
On November 10, FinCEN released a statement to reiterate that banking organizations can serve Money Services Businesses (MSB) while meeting obligations under the Bank Secrecy Act. FinCEN noted that there is concern that banks may be terminating the accounts of MSBs on a wholesale basis because of potential regulatory scrutiny and that as a result MSBs are losing access to banking services. FinCEN stated that they do “not support the wholesale termination of MSB accounts without regard to the risks presented or the bank’s ability to manage the risk.” Rather, the risks presented by a given MSB can vary and, therefore, financial institutions should assess the risks on a case-by-case basis. FinCEN expects that banking organizations will manage the risks associated with MSB accounts and are committed to addressing the “wholesale de-banking of an important part of the financial system.”
BuckleySandler hosted a webinar entitled “FinCEN’s Proposed Rule Amending Customer Due Diligence Obligations,” on September 18, 2014, as part of the ongoing FinCrimes Webinar Series. Panelists included James Cummans, Vice President of BSA/AML Operations at TCF Bank; Jacqueline Seeman, Managing Director and Global Head of KYC at Citigroup, Inc.; Sarah K. Runge, Director, Office of Strategic Policy at the U.S. Department of Treasury; and, Amy Davine Kim, Counsel at BuckleySandler LLP. The following is a summary of the guided conversation moderated by Jamie Parkinson, partner at BuckleySandler, and key take-aways to prepare for comments to the proposed rule and implementation of the new rule, once final, at your financial institution.
Key Tips and Take-Aways:
- Assess and prepare your organization’s financial and personnel resources to make sure that the appropriate resources are in place to comply with the proposed rule once it is finalized. Certain technical aspects of implementation may be complicated depending on the financial institutions’ existing processes.
- Boards of Directors should participate in and be informed of the process.
- Institutions that are exempt from the rule, including money services businesses (“MSBs”), should also consider how this rule would affect their operations. FinCEN has announced that this is an incremental rule making, meaning the rule could extend to additional entities in the future.
- Covered financial institutions should consider the implications and compliance issues associated with the proposed rule and actively engage in the comment period. It is clear that FinCEN took certain industry concerns into account from the earlier Advance Notice of Proposed Rulemaking (“ANPRM”), so any potential issues should again be raised.
On August 4, 2014, the U.S. Department of the Treasury’s Financial Crimes Enforcement Network (“FinCEN”) published a Notice of Proposed Rulemaking (“NPRM”) that would amend existing Bank Secrecy Act (“BSA”) regulations intended to clarify and strengthen customer due diligence (“CDD”) obligations for banks, securities broker-dealers, mutual funds, and futures commission merchants and introducing brokers in commodities (collectively, “covered financial institutions”).
In drafting the modifications, FinCEN clearly took into consideration comments responding to its February 2012 Advance Notice of Proposed Rulemaking (“ANPRM”), as the current proposal appears narrower and somewhat less burdensome on financial institutions. Comments on the proposed rulemaking are due October 3, 2014.
Overview: Under the NPRM, covered financial institutions would be obligated to collect information on the natural persons behind legal entity customers (beneficial owners) and the proposed rule would make CDD an explicit requirement. If adopted the NPRM would amend FinCEN’s AML program rule (the four pillars) by making CDD a fifth pillar.
FinCEN Rules Regulations on Money Services Businesses Do Not Apply to ISOs and Exempt Payment Processors
On August 27, FinCEN issued FIN-2014-R009, an administrative ruling clarifying that Independent Sales Organizations (“ISOs”) and exempt payment processors are not money transmitters subject to Bank Secrecy Act (“BSA”) regulations applicable to Money Services Businesses (“MSBs”). Under BSA MSB regulations, the term “money transmitter” applies to any person that provides money transmission services or otherwise engages in the transfer of funds. The term “money transmission services” includes the acceptance of currency, funds, or other value that substitutes for currency from one person and the transmission of currency, funds, or other value that substitutes for currency to another location or person by any means. Applying these standards, FinCEN determined that BSA MSB regulations do not apply to an ISO, so long as it: (i) merely solicits merchants to offer them the credit and debit card processing services of two counterparties; and (ii) does not take possession or control of merchant funds at any point. However, FinCEN concluded that BSA MSB regulations will apply to a payment processor unless the payment processor qualifies for the payment processor exemption established by 31 CFR § 1010.100(ff)(5)(ii)(B) and clarified by FIN-2013-R002. Under this exemption, BSA MSB regulations do not apply to a payment processor, so long as it: (i) facilitates the purchase of goods or services, or the payment of bills for goods or services (other than money transmission itself); (ii) operates through clearance and settlement systems that admit only BSA-regulated financial institutions; (iii) provides its services pursuant to a formal agreement; and (iv) the agreement itself is at a minimum with the seller or creditor that provides the goods or services and receives the funds. For a copy of the ruling, please see: Application of Money Services Business Regulations to a Company Acting as an Independent Sales Organization and Payment Processor.
On August 20, FinCEN announced an action against a casino employee who admitted to violating the Bank Secrecy Act by willfully causing the casino to fail to file certain reports. FinCEN asserted based in part on information obtained from an undercover investigation that the employee helped high-end gamblers avoid detection of large cash transactions by agreeing not to file either Currency Transaction Reports or Suspicious Activity Reports as required under the BSA. FinCEN ordered the employee to pay a $5,000 civil money penalty, and immediately and permanently barred him from participating in the conduct of the affairs of any financial institution located in the U.S. or that does business within the U.S.
On August 20, the OCC issued Bulletin 2014-41, which announces a new “Merchant Processing” booklet of the Comptroller’s Handbook. This booklet replaces the booklet of the same name issued in December 2001 and provides updated guidance to examiners and bankers on assessing and managing the risks associated with merchant processing activities. Specific updates address: (i) the selection of third-party organizations and due diligence; (ii) technology service providers; (iii) on-site inspections, audits, and attestation engagements, including the “Statement on Standards for Attestation Engagement” (SSAE 16) and the “International Standard on Assurance Engagements” (ISAE 3402); (iv) data security standards in the payment card industry for merchants and processors; (v) the Member Alert to Control High-Risk Merchants (MATCH) list; (vi) BSA/AML compliance programs and appropriate policies, procedures, and processes to monitor and identify unusual activity; and (vii) appropriate capital for merchant processing activities.
On August 11, FinCEN issued Advisory FIN-2014-A007 to provide guidance regarding BSA/AML compliance programs. Specifically, the guidance recommends that institutions create a “culture of compliance” by ensuring that: (i) leadership actively supports and understands compliance efforts; (ii) efforts to manage and mitigate BSA/AML deficiencies and risks are not compromised by revenue interests; (iii) relevant information from the various departments within the organization is shared with compliance staff to further BSA/AML efforts; (iv) the institution devotes adequate resources to its compliance function; (v) the compliance program is effective by, among other things, ensuring that it is tested by an independent and competent party; and (vi) leadership and staff understand the purpose of the institution’s BSA/AML efforts. The guidance follows numerous public remarks by FinCEN Director Jennifer Shasky Calvery and other financial regulators and enforcement authorities calling for stronger compliance cultures, particularly with regard to BSA/AML compliance. Director Shasky Calvery reinforced that message in an August 12, 2014 speech in which she asserted that, in the enforcement matters she has seen, a culture of compliance “could have made all the difference.” In the same speech, Ms. Shasky Calvery criticized—as Comptroller of the Currency Thomas Curry also did earlier this year—financial institutions which may be “de-risking” by preventing certain categories of businesses from accessing banking services. She stressed that “just because a particular customer may be considered high risk does not mean that it is ‘unbankable’,” and called on banks to develop programs to manage high risk customer relationships.
On August 14, Freddie Mac issued Bulletin 2014-15, which reminds seller/servicers subject to the AML requirements of the BSA that they are expected to maintain an AML compliance program and are required to report to Freddie Mac any instances of AML program noncompliance. Effective October 1, 2014, Freddie Mac is also requiring seller/servicers not subject to the AML provisions of the BSA to develop internal controls and policies and procedures to detect and report Suspicious Activity to Freddie Mac (but without the requirement to file SARs). Additionally, the Bulletin notifies seller/servicers that, effective October 15, 2014, Freddie Mac will require wholly-owned subsidiaries of seller/servicers that are federally-regulated depository institutions to obtain separate Freddie Mac seller/servicer approvals. The Bulletin also: (i) provides that seller/servicers can waive the requirement for flood insurance for non-residential detached structures located on the Mortgaged Premises; (ii) clarifies ULDD data points; (iii) updates Freddie Mac’s certificate of incumbency for sellers and warehouse lenders (effective October 1, 2014); and (iv) updates miscellaneous manufactured home requirements.
On July 30, FinCEN released a proposed rule that would amend BSA regulations to clarify and add customer due diligence (CDD) obligations for banks and other financial institutions, including brokers or dealers in securities, mutual funds, futures commission merchants, and introducing brokers in commodities. The rule would not cover other entities subject to FinCEN regulations that are not already required to have a customer identification program (CIP)—e.g money services businesses—but FinCEN may extend CDD requirements in the future to these, and potentially other types of financial institutions. The proposed rule states that as part of the existing regulatory requirement to have a CIP, covered institutions are already obligated to identify and verify the identity of their customers. The proposed rule would add to that base CDD requirement, new requirements to: (i) understand the nature and purpose of customer relationships; and (ii) conduct ongoing monitoring to maintain and update customer information and to identify and report suspicious transactions. The proposed rule also would add a so-called beneficial ownership requirement, which would require institutions to know and verify the identities of any individual who owns at least 25% of a legal entity, or who controls the legal entity.
FinCEN emphasizes that nothing in the proposal is intended to limit the due diligence expectations of the federal functional regulators or in any way limit their existing regulatory discretion. To that end, the rule would incorporate the CDD elements on nature and purpose and ongoing monitoring into FinCEN’s existing AML program requirements, which generally provide that an AML program is adequate if, among other things, the program complies with the regulation of its federal functional regulator governing such programs. FinCEN does not believe that the new CDD requirements will require covered institutions to perform any additional activities or operations, but acknowledges the rule may necessitate revisions to written policies and procedures. FinCEN also recognizes that financial institutions will be required to modify existing customer onboarding processes to incorporate the beneficial ownership requirement. As such, FinCEN proposes an effective date of one year from the date the final rule is issued. Comments on the proposal are due 60 days from publication of the proposal in the Federal Register.
On July 1,Fannie Mae issued Selling Guide Announcement SEL-2014-09 to remind lenders and originators—as it recently did for servicers—of their obligations to be in compliance with applicable provisions of the Bank Secrecy Act and its implementing regulations and to have internal policies, procedures, and controls in place to identify suspicious activities.
On June 20, Fannie Mae issued Servicing Guide Announcement SVC-2014-11, which reminds servicers that under a recent FinCEN rule, Fannie Mae is considered a financial institution subject to BSA requirements. The announcement advises servicers subject to the AML provisions of the BSA that they are obligated to be in compliance with the BSA, and to report to Fannie Mae: (i) all instances of noncompliance, compliance failures, or sanctions related to BSA/AML requirements; (ii) suspicious activity related to Fannie Mae loans or business activities; and (iii) changes in ownership interest. Servicers may implement these requirements immediately, but are required to do so no later than August 25, 2014.
On June 25, the OCC published its semiannual risk report, which provides an overview of the agency’s supervisory concerns for national banks and federal savings associations, including operational and compliance risks. As in prior reports and as Comptroller Curry has done in speeches over the past year, the report highlights cyber-threats and BSA/AML risks. The OCC believes cyber-threats continue to evolve and require heightened awareness and appropriate resources to identify and mitigate the associated risks. Specifically, the OCC is concerned that cyber-criminals will transition from disruptive attacks to attacks that are intended to cause destruction and corruption. Extending another recent OCC theme, the report notes that the number, nature, and complexity of both foreign and domestic third-party relationships continue to expand, resulting in increased system and process interconnectedness and additional vulnerability to cyber-threats. The report also states that BSA/AML risks “remain prevalent given changing methods of money laundering and growth in the volume and sophistication of electronic banking fraud.” The OCC adds that “BSA programs at some banks have failed to evolve or incorporate appropriate controls into new products and services,” and again cautions that a lack of resources and expertise devoted to BSA/AML risk management can compound these concerns. Finally, the OCC expressed concern that competitive pressures in the indirect auto market are leading to an erosion of underwriting standards. The OCC’s supervisory staff plans to review retail credit underwriting practices at banks, especially for indirect auto.
On June 5, the FDIC and a Delaware bank entered a consent order that prohibits the bank from entering into any new relationships with third-party prepaid card processors or prepaid card program managers until the FDIC approves a written report from the bank that details the steps taken by the bank to (i) implement new BSA compliance policies and procedures; (ii) improve staff training; (iii) implement controls sufficient to mitigate BSA and safety and soundness risk associated with prepaid card, credit card merchant acquiring, and ACH activities; and (iv) perform a BSA risk assessment. The order similarly restricts the bank’s activities related to credit card merchant acquiring and ACH merchant payment processing. The order does not prohibit the bank from issuing prepaid cards through existing distribution channels under existing contracts with third-parties, but does restrict certain activities related to existing credit card and ACH processing activities. In addition, the bank must (i) retain and designate BSA and OFAC officers; (ii) conduct a suspicious activity reporting look-back review; and (iii) submit periodic progress reports. Finally, the order requires increased board supervision of the bank’s BSA compliance program and mandates the creation of a board-level BSA committee.
On April 29, FinCEN issued five rulings in response to companies who sought clarification regarding whether their company is a money service business under the BSA. In FIN-2014-R006, FinCEN determined that a company that operates an online real-time deposit, settlement, and payment services platform for banks, businesses, and consumers is considered a money transmitter, not a provider of prepaid access, and should be registered as a money services business under BSA regulations. In two other rulings—FIN-2014-R004 and FIN-2014-R005— FinCEN clarified the exemption from the money transmitter definition for persons that accept and transmit funds “only integral to the sale of goods or the provision of services, other than money transmission services.” FinCEN determined that the escrow services at issue in FIN-2014-R004 and the transaction management services at issue in FIN-2014-R005 fit within that exemption because the acceptance and transmission of funds in these cases is not a separate and discrete service in addition to the underlying service, but instead is a necessary and integral part of the service itself. Therefore, these companies are not considered to be money transmitters subject to registration. FinCEN determined in FIN-2014-R007 that a company that rents computer systems used to mine virtual currencies is not a money transmitter. Finally, in FIN-2014-R008, FinCEN determined that although the company, which uses armored cars to facilitate the exchange of coins and cash, does not qualify for the “armored car” exemption in the money transmitter definition, it is still not considered a money transmitter. FinCEN stated that the transportation of currency and/or coin of certain denominations from the company’s vault to the customer’s location and the return transportation of currency and/or coin in the exact amount of the change provided to the company’s own vault does not constitute the acceptance of value from one person and the transportation of such value to another person or location.