On July 13, 2022, the House of Representatives (the “House”) adopted an amendment to the 2023 National Defense Authorization Act (“NDAA”), inserting into the NDAA a version of the “Establishing New Authorities for Business Laundering and Enabling Risks to Security Act,” otherwise more commonly known as the ENABLERS Act. If ultimately passed into statute, even a scaled-back version of this amendment could significantly alter the Bank Secrecy Act/Anti-Money Laundering (“BSA/AML”) regulatory framework in the United States.
The amendment applies the BSA to persons providing corporate formation, trust, third-party payment, or similar legal or accounting services. Although much digital ink will be spilled regarding the amendment’s application to lawyers—and we certainly emphasize here that potential sea change in AML regulation—the amendment’s application to third-party payment processors, depending upon how that term ultimately gets defined if the amendment becomes law, also could be a very significant development affecting many businesses and financial technology companies (“fintechs”). Currently, and depending on the facts, the BSA often does not apply to payment processors, who often fit into an exemption under the BSA’s definition of a “money services business,” or MSBs, subject to AML requirements. However, the amendment is “scaled back” from the original version of the ENABLERS Act, introduced last year, which had included investment advisors, art and antiquities dealers, and public relations firms.
The New Gatekeepers
The amendment would broaden 31 U.S.C. § 5312(a)(2)(Z) to include a wide variety of individuals and entities under the definition of a “financial institution” covered by the BSA.
If you provide corporate formation, trust, third-party payment, or similar legal or accounting services, you could be considered a “financial institution” under the BSA, and therefore have various AML responsibilities including—possibly—the duty to maintain an AML program and file Suspicious Activity Reports (“SARs”) regarding your customers and clients.
But, it goes broader than that. Within a year of the bill’s enactment, the Secretary of the Treasury (the “Secretary”) “shall” issue a rule to determine which persons fall within Section 5312(a)(2)(Z) and prescribe appropriate AML requirements for those persons. Moreover, the amendment limits the typical discretion accorded to the Secretary and FinCEN in formulating regulations: the amendment provides that when determining which persons fall within Section 5312(a)(2)(Z), the Secretary “shall include” the following persons, as well as any persons who own, control, or act as agents or instrumentalities of such persons.
If eventually passed, this amendment will change the landscape of professional service providers, including tax return preparers with foreign clients, and payment processors.
Requirements
Here, the amendment does provide the Secretary and FinCEN with its typical discretion. When deciding what kind of BSA/AML requirements each newly defined “financial institution” must adhere to, the Secretary must require each type of financial institution to be subject to at least one (or more) of five typical BSA obligations: a customer identification program (“CIP”) and customer due diligence (“CDD”); the establishment of a “full” (and onerous) AML program under 31 U.S.C. § 5318(h); the filing of SARs; other potential record-keeping and reporting obligations; and enhanced due diligence for private banking and correspondent banking relationships with foreign persons. Thus, different gatekeepers could have different AML responsibilities. Presumably, the baseline requirement for almost every newly covered gatekeeper would be CIP and CDD. The notion that certain attorneys could be subject to SAR filing requirements regarding their clients will be controversial, to say the least.
Enforcement
In addition to widening the applicability of the BSA to so-called “gatekeepers,” the amendment—which provides that gatekeepers will be subject to the extraterritorial jurisdiction of the U.S.—states that the Secretary will enforce this amendment through “random audits.” Specifically, one year after the Secretary determines who falls into Section 5312(a)(2)(Z), “the Secretary shall conduct random audits [of those persons] . . . in a manner that the Secretary determines appropriate to assess compliance” with the amendment. After the random audits, the Secretary will submit reports to the Committee on Financial Services of the House of Representatives and the Committee on Banking, Housing, and Urban Affairs of the Senate. These reports will describe the results of the random audits and include recommendations for improving the requirements explained above.
This is arguably the most puzzling provision of the amendment. It provides no insight into how such random audits will occur, or who will perform them.
For now, the amendment is obviously just proposed legislation that still would need to be accepted by the U.S. Senate. Nonetheless, and as exemplified by the AML Act and the CTA, proposed legislation that dies in its initial stages can return and become law a few years later.
The complete article is available here.
James Mangiaracina (’20) is an associate in the Litigation department at Ballard Spahr.