ICBA strongly supports the collection of beneficial ownership information by the appropriate government agency at the time an entity is formed rather than requiring financial institutions to assume this burden. However, financial institutions should have access to that information to assist them in performing customer due diligence.
ICBA strongly supports efforts by Congress, the Treasury, the Financial Crimes Enforcement Network (FinCEN), and state and federal regulators to work with industry to find solutions for a more efficient regime and for reducing community banks’ mounting costs and regulatory burdens associated with complying with anti-money laundering and terrorist financing laws and regulations. ICBA supports Bank Secrecy Act/Anti-Money Laundering (BSA/AML) reforms that will ease compliance while providing more useful data to law enforcement.
ICBA urges the federal government to better inform bankers of what specific methods of terrorist financing and money laundering they are trying to prevent and to identify low-risk transactions and accounts to allow banks to better allocate and/or reallocate resources.
ICBA strongly recommends raising reporting thresholds with future increases linked to inflation to reflect an emphasis on quality over quantity.
ICBA recommends that community banks receive compensation for their anti-money laundering and anti-terrorist financing oversight and policing activities on behalf of the federal government either through tax credits or other financial compensation or through reduced regulatory burden in other areas.
ICBA recommends that nonbank institutions that perform “bank-like” functions and offer comparable financial services be subject to the same AML and BSA laws and regulations as banks.
ICBA encourages the Office of Foreign Asset Control to streamline and simplify watch-lists of terrorists for ease of reference and application by bankers.
Community bankers are committed to supporting balanced, effective measures that will prevent terrorists from using the financial system to fund their operations and prevent money launderers from hiding the proceeds of criminal activities.
However, Bank Secrecy Act/Anti-Money Laundering (BSA/AML) compliance has increasingly burdened community banks with identifying, investigating, policing, and reporting potential criminal activity. Each year, community banks must invest more time, money, and resources to combat this threat. However, because BSA/AML requirements become outdated, community banks increasingly doubt their effectiveness in combating financial crime.
Beneficial Ownership Information Should Be Collected by a Government Agency. Beneficial ownership information should be collected and verified at the time a legal entity is formed, rather than requiring financial institutions to collect this information. In December of 2020, Congress passed the National Defense Authorization Act (“NDAA”) which would require affected companies to submit beneficial ownership information directly to FinCEN at the time of formation. However, the NDAA would not relieve community banks from their collection and verification obligations.
Collecting and verifying the identity of all-natural person owners of each entity by either the Internal Revenue Service, FinCEN, or other appropriate federal agency and/or state in which the entity is formed would provide uniformity and consistency across the United States. Making the formation of an entity contingent on receiving beneficial owner information would create a strong incentive for equity owners and investors to provide such information. Additionally, periodic renewal of an entity’s state registration would provide an efficient and effective vehicle for updating beneficial ownership information. If such information is housed at a government entity, community banks should have access to it.
Bank Secrecy Act Requirements Should Be Flexible and Easily Applied. ICBA supports FinCEN’s efforts in exploring ways to enhance AML effectiveness and efficiency to provide banks greater flexibility in the allocation of resources. ICBA also supports FinCEN’s efforts to simplify BSA and encourages the government to continue streamlining other reporting requirements.
The federal government should continue working with the banking industry to provide additional guidance—such as best practices, questions and answers, or commentary—that is understandable, workable and easily applied by community banks. FinCEN and law enforcement should communicate the specific methods and criminal activities they are trying to prevent so that banks can more readily identify and report truly suspicious transactions.
FinCEN should continue its investigation and adaptation of technology to assist banks with their BSA compliance requirements. ICBA also encourages the Office of Foreign Asset Control to streamline and simplify its lists for ease of reference and application by bankers.
To ensure a consistent and balanced effort to combat money laundering and terrorist financing, the federal government should have consistent regulations across all financial services providers including nonbank entities. Additionally, the government should require reporting of only truly suspect transactions—and strive to balance those requirements against the need to respect customer privacy.
Reporting Thresholds Must Be Updated. Reporting thresholds are significantly outdated and capture far more transactions than originally intended. The currency transaction report (CTR) threshold, which was set in 1970, should be raised from $10,000 to $30,000 with future increases linked to inflation. A higher threshold would produce more targeted, useful information for law enforcement.
Suspicious activity reporting is the cornerstone of the BSA system and is a way for banks to provide leads to law enforcement. Unfortunately, in the current regulatory environment, community bankers have a strong incentive to protect themselves from examiner criticism and liability by over-filing of Suspicious Activity Reports (SARs) as a defensive practice, which dilutes their value to law enforcement. Regardless of the degree of offense, community banks are required to follow the same SAR procedure for every suspicious transaction alert.
This mechanical approach makes community bankers doubtful that SARs have real value for law enforcement. Reforming the SAR process to a truly risk-based system with appropriate threshold increases would enable community banks to provide more targeted and valuable leads to law enforcement. Similar to the CTR thresholds, the SAR filing thresholds have not been adjusted since becoming effective in 1992.
Compensation Should Be Provided for Anti-Money Laundering and Anti-Terrorist Financing Efforts. Community bankers are committed to supporting balanced, effective BSA/AML measures. However, for community banks, BSA compliance represents a significant expense in terms of both direct and indirect costs. BSA compliance, whatever the benefit to society at large, is a governmental, law enforcement function. As such, the costs should be borne by the government.
Communication Among Industry, Law Enforcement and the Federal Government Is Critical. Communication and cooperation are critical to an effective working partnership among the government, law enforcement, and financial institutions. Community banks seek more current information from the federal government to better understand what specific methods of terrorist financing and money laundering they are trying to prevent.
Federal regulators issued a joint statement addressing how risk management principles in “Supervisory Guidance on Model Risk Management” relate to banking systems or models designed for Bank Secrecy Act compliance.
Statement: The statement says no specific risk management framework is required. It also notes the statement does not alter existing BSA/AML legal or regulatory requirements or establish new supervisory expectations.
Feedback: The agencies also requested information within 60 days on how the principles discussed in the guidance support BSA/AML compliance and whether additional clarification would be helpful.