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Federal Register / Vol. 86, No. 183 / Friday, September 24, 2021 / Proposed Rules
policies, procedures, and controls; 2
the designation of a compliance officer;
3 an ongoing employee training program; and 4 an independent audit function to test programs.5 The BSA
further requires that, when prescribing minimum standards for AML/CFT
programs, the Secretary shall prescribe regulations that consider the extent to which the requirements imposed under the AML program requirement are commensurate with the size, location, and activities of the financial institutions to which such regulations apply. 6 The Secretary shall additionally take into account certain factors, such as: 1 Financial institutions are spending private compliance funds for a public and private benefit, including protecting the United States financial system from illicit finance risks; 2 the extension of financial services to the underbanked and the facilitation of financial transactions, including remittances, coming from the United States and abroad in ways that simultaneously prevent criminal persons from abusing formal or informal financial services networks are key policy goals of the United States; and 3 effective AML/
CFT programs safeguard national security and generate significant public benefits by preventing the flow of illicit funds in the financial system and by assisting law enforcement and national security agencies with the identification and prosecution of persons attempting to launder money and undertake other illicit activity through the financial system.7
For certain categories of financial institutions, FinCEN has included explicit requirements to conduct customer due diligence and to identify and verify the identity of beneficial owners of legal entity customers, subject to certain exclusions and conditions.8 In addition, the Secretary is required to prescribe regulations that require financial institutions to establish procedures for account opening that, at a minimum, include: 1 Verifying the identity of any person seeking to open an account, to the extent reasonable and practicable; 2 maintaining records of the information used to verify the persons identity, including name, address, and other identifying information; and 3 consulting lists of known or suspected terrorists or terrorist organizations provided to the 5 31

U.S.C. 5318h.
Patriot Act, Public Law 10756, 352c, 115
Stat. 272, 322 2001 codified at 31 U.S.C. 5318
note.
7 31 U.S.C. 5318h2B.
8 31 CFR 1010.230.
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financial institution by any government agency to determine whether the person seeking to open an account appears on any such list.9
In addition, under 31 U.S.C.
5318g1, the Secretary is authorized to require financial institutions to report any suspicious transaction relevant to a possible violation of law or regulation.
The Secretary is further authorized under 31 U.S.C. 5313 to require domestic financial institutions to report transactions of United States coins, currency, or other monetary instruments the Secretary prescribes, in an amount or circumstances the Secretary prescribes by regulation.
B. Application of the BSA To Trade in Antiquities The BSA defines financial institution to include specific categories of institutions.10 Section 6110a1 of the AML Act amends 31
U.S.C. 5312a2 to include as a type of financial institution 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, subject to regulations prescribed by the Secretary. Section 6110b1 directs the Secretary to issue proposed rules implementing this amendment not later than 360 days after enactment of the AML Act, i.e., by December 27, 2021.
This amendment to the BSAs definition of financial institution takes effect on the effective date of the final rules issued by the Secretary pursuant to Section 6110b1.11
Before issuing a proposed rule, the Secretary acting through the Director of FinCEN, in coordination with the Federal Bureau of Investigation FBI, the Attorney General, and Homeland Security Investigations HSI, is required to consider:
A The appropriate scope for the rulemaking, including determining which persons should be subject to the rulemaking, by size, type of business, domestic or international geographical locations, or otherwise;
B 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;
C the need, if any, to identify persons who are dealers, advisors, consultants, or any other persons who 9 31

U.S.C. 5318l.
U.S.C. 5312a2, c1.
11 AML Act Section 6110a2.
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engage as a business in the trade in antiquities;
D whether thresholds should apply in determining which persons to regulate;
E whether certain exemptions should apply to the regulations; and F any other matter the Secretary determines is appropriate.12
FinCEN has engaged with the FBI, the Department of Justice, HSI, and other agencies in considering these matters during the development of this ANPRM, and welcomes any additional comments from the law enforcement community on these specific matters or any other aspect of the ANRPM.
C. The Potential for Money Laundering, Terrorist Financing, and Other Illicit Financial Activity Through Trade in Antiquities Certain characteristics of the trade in antiquities may be exploited by money launderers and terrorist financiers to evade detection by law enforcement.
These characteristics include client confidentiality; varying practices across the industry in, and challenges associated with, accurately documenting provenance; the use of intermediaries; and unregulated customer due diligence practices. In addition, the potentially small size, ease of transport, and subjectivity of prices of antiquities, among other things, provide an opportunity to use these items to transport value across borders without reporting to authorities or detection by customs agents or law enforcement agencies. Illicit actors may exploit these or other features of the antiquities trade to launder funds through the U.S.
financial system.
Terrorist organizations, transnational criminal networks, and other malign actors may also seek to exploit antiquities to transfer value to acquire new sources of funds, evade detection, and launder proceeds from their illicit activities. Some terrorist groups have generated revenue from permitting or facilitating the illegal extraction or trafficking of antiquities in territories where they operate.13
On March 9, 2021, FinCEN issued a Notice informing financial institutions about Section 6110a of the AML Act and explaining that financial institutions with existing BSA
obligations, including the reporting of suspicious activity, should be aware that illicit activity associated with the 12 AML

Act Section 6110b2.
e.g., U.S. House of Representatives, Committee on Financial Services, Task Force to Investigate Terrorist Financing, Stopping Terror Finance: Securing the U.S. Financial Sector, December 20, 2016, at 1012.
13 See,
E:FRFM24SEP1.SGM

24SEP1