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FinCEN Rule Ends AML Program Exemption for Banks that Lack a Federal Regulator

By Matthew Orso, Susan Rodriguez, Jeffrey M. Hanna & Edward M. Nogay on September 15, 2020
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On September 15, 2020, the Financial Crimes Enforcement Network (“FinCEN”) published a Final Rule bringing banks that lack a federal functional regulator further under its purview. The rule subjects these institutions to minimum standards for anti-money laundering (“AML”) requirements, including a BSA officer, AML policies and procedures, and regular employee training, among other obligations. It also extends Customer Identification Program and beneficial owner requirements to these banks.

The banks subject to this new rule include state-chartered, non-depository trust companies; non-federally insured credit unions; private banks; and other non-federally regulated banks.

The Rule, in accordance with the May 11, 2016 Customer Due Diligence Final Rule, requires minimum standards for AML programs “to ensure that all banks, regardless of whether they are subject to Federal regulation and oversight, are required to establish and implement written AML programs, including conducting ongoing customer due diligence, and to identify and verify the identity of the beneficial owners of their legal entity customers.”

FinCEN issued this rule because the gap in AML coverage between banks with and without a Federal functional regulator “presented a vulnerability to the U.S. financial system that could be exploited by bad actors . . . .” Accordingly, by implementing this Rule, FinCEN stated in its press release that it has eliminated the existing AML program exemption for banks without a Federal functional regulator in an effort to “ensure [BSA] coverage across the banking industry.”

The Rule will take effect on November 16, and institutions will have 180 days from the day the Final Rule was published to comply with it. Banks subject to the new rule must act now to ensure they have a robust and compliant AML program in place to meet the Rule’s requirements by the compliance deadline of March 15, 2021.

Photo of Matthew Orso Matthew Orso

Matt is co-chair of the Bank Defense & Counseling team for the Government Investigations and White Collar Litigation Department. He defends companies and individuals facing government investigations and helps them navigate these inquiries to resolution.

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Photo of Susan Rodriguez Susan Rodriguez

Susan, co-leader of the firm’s financial institutions industry team, primarily focuses on government investigations and complex civil litigation. She has defended clients in numerous government enforcement actions by the Department of Homeland Security, Department of Justice, Consumer Financial Protection Bureau (CFPB), and the…

Susan, co-leader of the firm’s financial institutions industry team, primarily focuses on government investigations and complex civil litigation. She has defended clients in numerous government enforcement actions by the Department of Homeland Security, Department of Justice, Consumer Financial Protection Bureau (CFPB), and the Federal Trade Commission (FTC), among others.

Read more about Susan RodriguezEmail
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Photo of Jeffrey M. Hanna Jeffrey M. Hanna

Jeff’s practice includes complex litigation at the trial and appellate level, focusing on matters arising from government, regulatory, and criminal and corporate internal investigations.

Read more about Jeffrey M. HannaEmail
Photo of Edward M. Nogay Edward M. Nogay

Eddie is a member of the firm’s nationally recognized Government Investigations and White Collar Litigation team. His practice includes representing leading financial institutions in government investigations and enforcement actions by various federal agencies.

Read more about Edward M. NogayEmail
  • Posted in:
    Corporate Compliance, International
  • Blog:
    Subject to Inquiry
  • Organization:
    McGuireWoods LLP
  • Article: View Original Source

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