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Federal Register / Vol. 86, No. 183 / Friday, September 24, 2021 / Proposed Rules trade in antiquities and art may involve their institutions.14 In the Notice, FinCEN explained that crimes relating to antiquities and art may include looting or theft, the illicit excavation of archaeological items, smuggling, and the sale of stolen or counterfeit objects.
They may also include money laundering and sanctions violations, and have been linked to transnational criminal networks, international terrorism, and the persecution of individuals or groups on cultural grounds.
III. Issues for Comment FinCEN seeks comment from members of the antiquities industry, law enforcement, civil society groups, and the broader public regarding the potential for money laundering, financing of terrorism, and other illicit financial activity in the antiquities industry; the existence of any safeguards in the industry to guard against this potential; the effect that compliance with BSA requirements could have on the antiquities industry; what additional steps may be necessary to protect the industry from abuse by money launderers and other malign actors; and which actors within the antiquities trade should be subject to BSA
requirements.
FinCEN invites comments on all aspects of this ANPRM, and specifically seeks comments on the questions listed below. Commenters should reference specific question numbers to facilitate FinCENs review of comments.
A. The Antiquities Market 1. Please identify and describe the roles, responsibilities, and activities of persons engaged in the trade in antiquities, including, but not limited to, advisors, consultants, dealers, agents, intermediaries, or any other person who engages as a business in the solicitation or the sale of antiquities. Are there commonly understood definitions of particular roles within the industry?
Who would be considered within or outside such definitions?
2. How are transactions related to the trade in antiquities typically financed and facilitated? What are the typical sources and types of funds used to facilitate the purchase of items in the antiquities market? How common are leveraged or financed purchases in the antiquities market? How common are cash transactions in the trade in antiquities?
14 See FIN2021NTC2, FinCEN Informs Financial Institutions of Efforts Related to Trade in Antiquities and Art, March 9, 2021.

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3. Can the antiquities market be broken down to show the percentage of transactions that fall in a given monetary range e.g., 50% of all transactions fall below $X-value? If so, please provide a breakdown of those ranges.
4. What, if any, information does a buyer typically learn about the seller, cosigner, or intermediary involved in the sale of antiquities? When a seller, cosigner, or intermediary offers an item for sale, why might a person involved in the antiquities trade withhold the name of the seller, consigner, or intermediary from the buyer? What, if any, business purpose does this serve? Should the buyer have the right to learn this information to determine whether the provenance of an item is legitimate?
Why or why not?
5. How do foreign-based participants in the antiquities market operate in the United States? Do they operate directly as advisors, consultants, dealers, agents, intermediaries, or others? Or do they work with domestic advisors, consultants, dealers, agents, intermediaries, or others?
6. When advisors, consultants, dealers, agents, intermediaries, or others receive payment from overseas accounts, what steps do they take, if any, to determine whether the payment comes from a legitimate source?
7. What are the money laundering, terrorist financing, sanctions, or other illicit financial activities risks associated with the trade in antiquities?
What is the industry experience with money laundering, terrorist financing, and other illicit financial activity?
Which parts of the market are most vulnerable to these risks? In which geographical locations do those vulnerabilities tend to take place? Are there certain types of persons engaged in the trade in antiquities whose activities present lower money laundering, terrorist financing, and other illicit financing risks and for whom the application of BSA
requirements is less critical? Are there certain types of persons engaged in the trade in antiquities whose activities present greater money laundering, terrorist financing, and other illicit financing risks and for whom the application of BSA requirements is more critical?
8. Which participants involved in the trade in antiquities are in positions in which they can effectively identify and guard against money laundering, the financing of terrorism, and other illicit financing risks in connection with the transactions they conduct? For example, do these participants have access to information regarding the nature and
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purpose of the transactions at issue and the participants involvement in completion of the transactions?
9. What, if any, safeguards does the industry currently have in place to protect against business loss and fraud?
For example, how, if at all, do market participants currently identify and verify the identity of the buyer, seller, or ultimate beneficial owner of an antiquity to guard against money laundering, terrorist financing, or other illicit financial activity? To what extent do market participants conduct due diligence on agents and other intermediaries involved in purchases and sales of antiquities? To what extent do safeguards vary depending on the size, nature of the transactions, and whether the transaction involves foreign jurisdictions? To what extent are the safeguards voluntary or required by contractual arrangements, trade associations, or other forms of industry self-regulation? Could these safeguards be leveraged and modified to detect and prevent money laundering, terrorist financing, and other illicit financial activities, or to better detect and prevent such activities?
B. Regulation of the Industry 10. How should antiquities be defined for the purposes of FinCENs regulations? Should jurisdictional or territorial considerations be taken into account when determining how antiquities should be defined e.g., foreign cultural heritage laws?
11. How is an antiquity distinct from a work of art?
12. How should trade of antiquities be defined for the purposes of FinCENs regulations? Should FinCEN distinguish between the commercial, for-profit trade of antiquities and non-commercial, notfor-profit activity? If so, how?
13. Are there any other terms that FinCEN should consider addressing and defining as part of a rulemaking on the trade in antiquities? If so, what are those terms, why should they be addressed, and how should they be defined?
14. Should FinCEN establish a monetary threshold for activities involving trade in antiquities that would subject persons involved in such activities above that threshold to FinCENs regulations, but exempt persons whose activities fall below that threshold? What is an appropriate dollar value for such a threshold and should it be set as an annual or per-transaction threshold? Should there be a different thresholdincluding potentially a zerodollar thresholdfor legal entities as opposed to natural persons?
15. Should there be any other exemptions for categories or types of
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