On September 23, the Financial Crimes Enforcement Network (FinCEN) issued an Advance Notice of Proposed Rulemaking (ANPRM) to solicit public comments on implementing Section 6110 of the Anti-Money Laundering Act of 2020 (Act) regarding the trade in antiquities. FinCEN noted that this is the first of several regulatory actions that the agency intends to undertake to implement Section 6110. As previously covered by InfoBytes, the Act made numerous changes to the Bank Secrecy Act (BSA), including amendments to the definition of “financial institution” to include a “person engaged in the trade of antiquities, including an advisor, consultant, or any other person who engages as a business in the solicitation or the sale of antiquities.” FinCEN explained that crimes related to the trade in antiquities may include money laundering and sanctions violations, and may also be exploited by terrorist financiers seeking to evade detection when laundering illicit funds through the U.S. financial system. In March, FinCEN issued an advisory notice (covered by InfoBytes here) alerting financial institutions with existing BSA obligations about illicit activity associated with trade in antiquities and art. According to FinCEN, the ANPRM “is an important step in strengthening U.S. national security by protecting the U.S. financial system from money launderers and terrorist financiers that seek to exploit the antiquities trade.”
In developing the ANPRM, FinCEN coordinated with the FBI, the Attorney General, and Homeland Security Investigations to consider several factors, including “the degree to which the regulations should focus on high-value trade in antiquities, and on the need to identify the actual purchasers of such antiquities, in addition to the agents or intermediaries acting for or on behalf of such purchasers,” whether thresholds should apply when determining persons to regulate, and what exemptions, if any, should apply to the regulations. The ANPRM seeks comments regarding, among other things: (i) “the potential for money laundering, financing of terrorism, and other illicit financial activity in the antiquities industry”; (ii) “the existence of any safeguards in the industry to guard against this potential”; (iii) “the effect that compliance with BSA requirements could have on the antiquities industry”; (iv) “what additional steps may be necessary to protect the industry from abuse by money launderers and other malign actors”; and (v) “which actors within the antiquities trade should be subject to BSA requirements.” Comments are due October 25.