by Marc-Alain Galeazzi, Barbara R. Mendelson, and Malka Levitin
On September 17, 2020, the Financial Crimes Enforcement Network (FinCEN) published an Advance Notice of Proposed Rulemaking (PDF: 274 KB) (ANPR) in the Federal Register, seeking comments on how to improve the effectiveness of anti-money laundering (AML) programs that financial institutions are required to have in place under the Bank Secrecy Act (BSA). In particular, the ANPR proposes imposing a requirement that certain financial institutions[1] establish and maintain an “effective and reasonably designed” AML program that would contain three core elements and objectives: (1) the assessment and management of risk; (2) compliance with BSA requirements; and (3) the reporting of information with a high degree of usefulness to the government. Current regulations do not fully describe the objective of maintaining a BSA/AML compliance program.
The ANPR further seeks comment on whether the AML program regulations should incorporate an explicit requirement for a risk-assessment process and whether the Director of FinCEN should regularly issue a list of national AML priorities (so-called “Strategic AML Priorities”). Particularly, FinCEN requests comment regarding industry-specific considerations that FinCEN should evaluate with regard to the scope of the proposed rulemaking and whether any new rules should better reflect the variety of business models and risk profiles among financial institutions.