FinCEN's Beneficial Ownership Rule: New Due Diligence Requirements for Customer Ownership and Control

Transcription

1 Presenting a live 90-minute webinar with interactive Q&A FinCEN's Beneficial Ownership Rule: New Due Diligence Requirements for Customer Ownership and Control TUESDAY, JUNE 26, pm Eastern 12pm Central 11am Mountain 10am Pacific Today s faculty features: Elizabeth A. Khalil, CIPM, CIPP/US, CIPP/EU, Member, Dykema Gossett, Chicago Samantha Welch, Director, Navigant Consulting, New York The audio portion of the conference may be accessed via the telephone or by using your computer's speakers. Please refer to the instructions ed to registrants for additional information. If you have any questions, please contact Customer Service at ext. 1.

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5 FINCEN'S BENEFICIAL OWNERSHIP RULE: NEW DUE DILIGENCE REQUIREMENTS FOR CUSTOMER OWNERSHIP AND CONTROL JUNE 26, 2018 Samantha Welch Director, Navigant Elizabeth Khalil, CAMS Member, Dykema

6 AGENDA Overview & Background Details of Rule Compliance Tips & Challenges Q&A 6

7 SPEAKER BIOGRAPHY Samantha Welch is a Director in the Global Investigations and Compliance practice at Navigant. She works with financial services clients to address anti-money laundering (AML), counter-terrorist financing, sanctions and bank regulatory compliance challenges. Samantha has 18 years of compliance experience. Prior to joining Navigant in 2016, Samantha held compliance positions in large complex financial institutions including Morgan Stanley, RBC Capital Markets, HSBC, and most recently, JPMorgan. Samantha Welch, Director 685 Third Avenue. 14th Floor New York, NY USA P: Direct E: samantha.welch@navigant.com In her in house roles, Samantha focused primarily on building and enhancing AML and sanctions programs to meet regulatory requirements. She also has experience in developing a swap dealer compliance program to meet the requirements of Title VII of the Dodd Frank Act, and managed bank compliance for various treasury services products. Samantha has a BA from Rollins College (Pi Sigma Alpha honors) and MBA from New York University s Stern School of Business. 7

8 SPEAKER BIOGRAPHY Elizabeth A. Khalil, CAMS 10 South Wacker Drive Suite 2300 Chicago, IL P: E: Elizabeth Khalil is a partner at the law firm of Dykema Gossett PLLC, where she focuses on all aspects of regulatory compliance and risk management for the financial services industry. Her areas of focus include Bank Secrecy Act/anti-money laundering (BSA/AML), privacy and data security, vendor management, consumer protection, and the full alphabet soup of federal banking laws and regulations. She assists banks, credit unions, and other financial institutions with establishing and improving BSA/AML programs and their overall compliance management systems (CMS), vendor management programs, and individual policies and procedures. She holds the Certified Anti-Money Laundering Specialist (CAMS) credential issued by the Association of Certified Anti- Money Laundering Professionals (ACAMS), as well as three privacyrelated certifications through the International Association of Privacy Professionals (IAPP): the CIPM (Certified Information Privacy Manager), CIPP/US (US privacy), and CIPP/E (European privacy) credentials. She was previously a federal banking regulator at the Office of the Comptroller of the Currency (OCC) and Federal Deposit Insurance Corporation (FDIC) in Washington, DC. She graduated from the University of Michigan Law School and Georgetown University. 8

9 OVERVIEW & BACKGROUND

10 FINCEN S CUSTOMER DUE DILIGENCE RULE OVERVIEW The US Treasury Department s Financial Crimes Enforcement Network ( FinCEN ) released the Final Rule on Customer Due Diligence ( CDD ) Requirements for Financial Institutions (the Rule ) on May 11, The Rule was effective as of July 11, 2016 and the applicability date was May 11, The Rule focuses on key CDD elements, including beneficial ownership identification and verification. FinCEN clarified existing requirements and expectations, and introduced new requirements. CDD is now considered the fifth pillar of an AML compliance program. The Rule applies to banks, including branches and agencies of foreign banks in the United States, brokerdealers, mutual funds, and futures commission merchants and introducing brokers in commodities (the covered financial institutions ). 10

11 IMPETUS FOR RULEMAKING Assist law enforcement, regulators and SROs in financial investigations. Advance counterterrorism and broader national security interests. Promote consistency across industry by clarifying and codifying existing expectations. Facilitate tax compliance. Improve a financial institution s ability to assess and mitigate risk. Advance Treasury s strategy to enhance legal entity transparency. Come into line with international AML standards on beneficial ownership information, including as articulated by the Financial Action Task Force (FATF). 11

12 FINANCIAL ACTION TASK FORCE (FATF/GAFI) International, intergovernmental policy-making body established to set standards and promote effective implementation of legal, regulatory and operational measures for combating money laundering, terrorist financing and other related threats to the integrity of the international financial system. No enforcement authority, but works to generate political will to bring about national legislative and regulatory reforms in the above areas. Monitors the progress of its members in implementing necessary measures, reviews money laundering and terrorist financing techniques and counter-measures, and promotes the adoption and implementation of appropriate measures globally. In collaboration with other international stakeholders, FATF works to identify national-level vulnerabilities with the aim of protecting the international financial system from misuse. Issues Recommendations, which are global standards against money laundering and terrorist financing for jurisdictions around the world to implement. 12

13 FATF RECOMMENDATIONS 40 Recommendations include provisions on Transparency and Beneficial Ownership of Legal Persons and Legal Arrangements. US law had lagged in terms of incorporating Recommendations provisions on beneficial ownership. FinCEN had issued a Notice of Proposed Rulemaking ( NPRM ) for the Rule in FATF Mutual Evaluation Report for United States December 2016: The [US ] lack of beneficial ownership requirements was identified in the previous mutual evaluation as a serious deficiency. Recommendations included increased access to beneficial ownership information. Report noted lack of systemic and timely access to beneficial ownership information by law enforcement authorities, and inadequate framework for financial institutions and designated non-financial businesses or professions ( DNFBPs ) to identify and verify beneficial ownership information when providing services to clients. Calls to implement/formalize beneficial ownership requirements, and the Rule in particular, became more acute in light of Panama Papers disclosures in

14 KEY FINCEN AND FFIEC RELEASES July 19, FinCEN releases Frequently Asked Questions Regarding Customer Due Diligence Requirements for Financial Institutions. April 3, 2018 FinCEN releases the second round of Frequently Asked Questions Regarding Customer Due Diligence Requirements for Financial Institutions. May 11, FinCEN releases Administrative Ruling Premium Finance Cash Refunds and Beneficial Ownership Requirements for Legal Entity Customers. May 11, The Federal Financial Institutions Examination Council (FFIEC) issues new examination procedures on the Rule. May 16, 2018 FinCEN releases Administrative Ruling Beneficial Ownership Requirements for Legal Entity Customers of Certain Financial Products and Services with Automatic Rollovers or Renewals. June 12, 2018 FinCEN Issues Advisory on Human Rights Abuses Enabled by Corrupt Senior Foreign Political Figures and Their Financial Facilitators. 14

15 DETAILS OF RULE

16 KEY ELEMENTS OF THE FINAL RULE The Rule is divided into two (2) parts: Requirement to identify and verify the identity of beneficial owners of clients that are legal entity customers at account opening (with certain exclusions and exemptions); Risk-based procedures for conducting ongoing customer due diligence to include: Understanding the nature and purpose of customer relationships to develop a Customer Risk Profile; and Conducting ongoing monitoring to identify and report suspicious transactions and, on a risk basis, maintain and update customer information. 16

17 BENEFICIAL OWNER IDENTIFICATION AND VERIFICATION Definition of Legal Entity Customers The Rule defines legal entity customers to include corporations, limited liability companies, partnerships or other similar business entities (whether formed under the laws of a state or of the U.S. or a foreign jurisdiction) that open an account. This includes general partnerships, business trusts created by filing with a state office, and other entities created in that manner, but excludes trusts not formed through a filing. Definition of Account The Rule uses the definition of account promulgated under the Customer Identification Program ( CIP ) rules. On April 3, 2018, FinCEN FAQ #12 clarified that the definition includes a loan renewal or CD rollover, although the industry has not historically considered these new accounts. 17

18 BENEFICIAL OWNER IDENTIFICATION AND VERIFICATION (CONT D) The Rule contains a definition of beneficial owner that consists of two prongs the ownership prong and the control prong. 1. Ownership prong: Each individual who, directly or indirectly (including through intermediate holding companies), owns 25 percent or more of the equity interests of a legal entity customer. This prong requires identification of no more than four individuals and, if no individual meets the 25 percent threshold, no individuals need to be identified. 2. Control prong: One individual with significant responsibility to control, manage, or direct a legal entity customer, including (i) an executive officer or senior manager (e.g., a Chief Executive Officer, Chief Financial Officer, Chief Operating Officer, Managing Member, General Partner, President, Vice President, or Treasurer), or (ii) any other individual who regularly performs similar functions. In cases where an individual satisfies the requirements of both the ownership prong and the control prong, the same individual can be identified and verified under both prongs. 18

19 BENEFICIAL OWNER IDENTIFICATION AND VERIFICATION (CONT D) CIP on beneficial owners - the Rule requires covered financial institutions to verify the identity of beneficial owners of legal entity customers that open accounts using their existing risk-based CIP practices or modified versions thereof. Identification and verification requirements are already addressed in existing CIP regulations; the Rule does not contain any further requirements. The Rule does not require procedures to be identical to an institution s existing CIP procedures for individual customers; for example, when conducting documentary verification, institutions may accept photocopies. 19

20 BENEFICIAL OWNER IDENTIFICATION AND VERIFICATION (CONT D) Covered financial institutions can rely on the representations of their customers when answering questions about the individuals behind the entity, including as to the status of such individuals as beneficial owners, provided they have no knowledge of facts that would reasonably call into question the reliability of such information. Covered financial institutions can rely on information provided by the customer to determine whether the entity is excluded from the definition of legal entity customer, provided they have no knowledge of facts that would reasonably call into question the reliability of such information. 20

21 BENEFICIAL OWNER IDENTIFICATION AND VERIFICATION (CONT D) Financial institutions can satisfy the requirement to identify beneficial owners by obtaining, at the time a new account is opened, a standard certification form or completing one of the institution s own forms, as long as it is substantially the same to the model form in the rule. In the April 3, 2018 FAQ, FinCEN provided certain measures of relief: FAQ #7 financial institutions can rely, as certification, on a confirmation (verbally or in writing) from an existing legal entity customer that there have been no changes to the beneficial ownership information on file (absent knowledge of facts to the contrary). FAQ #12 For loan renewals and CD rollovers, if the legal entity customer agreed to notify the financial institution of any changes in beneficial ownership at the time of the first certification, the financial institution can rely on such representation so long as the CD or loan is outstanding. FAQ #16 Financial institutions may amend an element of the beneficial ownership information without recertifying (e.g. a change of address for a beneficial owner) if the legal entity customer confirms the accuracy of such information verbally or in writing. 21

22 EXCLUSIONS AND EXEMPTIONS FOR CERTAIN ENTITIES OR ACCOUNTS Exemptions from the beneficial ownership requirements - (subject to specific limitations) Accounts established at the point-of-sale to provide credit products, solely for the purchase of retail goods and/or services at these retailers, up to a limit of $50,000; Accounts established to finance the purchase of postage and for which payments are remitted directly by the financial institution to the provider of the postage products; Accounts established to finance insurance premiums and for which payments are remitted directly by the financial institution to the insurance provider or broker; and Accounts established to finance the purchase or lease of equipment and for which payments are remitted directly by the financial institution to the vendor or lessor of this equipment. 22

23 EXCLUSIONS AND EXEMPTIONS FOR CERTAIN ENTITIES OR ACCOUNTS (CONT D) The first set of exclusions includes entities that are already excluded from CIP requirements under existing CIP regulations (e.g. financial institutions regulated by a Federal functional regulator, publicly held companies traded on certain U.S. stock exchanges, and U.S. Government agencies). FinCEN also created exclusions for: Entities that meet certain registration requirements and for which information is available from other credible sources (such as certain entities subject to public Securities and Exchange Commission ( SEC ) filings); Non-excluded pooled investment vehicles (from the ownership prong of the beneficial ownership requirement, subjecting them only to the control prong); Intermediated accounts (if the financial institution has no CIP obligations with respect to the intermediary s underlying clients, the financial institution should treat the intermediary as the legal entity customer, not the intermediary s underlying clients. Existing FinCEN guidance related to CIP practices is applicable in determining the financial institution s beneficial ownership obligations in these circumstances). 23

24 EXCLUSIONS AND EXEMPTIONS FOR CERTAIN ENTITIES OR ACCOUNTS: TREATMENT OF NON-U.S. ENTITIES Treatment of Foreign Financial Institutions Foreign Financial Institutions are not excluded from the definition of legal entity customer unless the foreign financial institution is established in a jurisdiction where the regulator of such institution maintains beneficial ownership regarding such institution. Treatment of Legal Entities listed on Foreign Exchanges Entities that are publicly traded on non-u.s. exchanges are not excluded from the definition of legal entity customer. Treatment of Foreign Government Entities Non-U.S. governmental entities engaged in only governmental and not commercial activities. State owned enterprises and sovereign wealth funds do not qualify for the legal entity customer exclusion. 24

25 EXCLUSIONS AND EXEMPTIONS FOR CERTAIN ENTITIES OR ACCOUNTS: TREATMENT OF TRUSTS Treatment of Trusts The definition of legal entity customer only includes statutory trusts created by a filing with a Secretary of State or similar office. FinCEN understands that pursuant to the CIP Rule, current practice is to identify and verify the identity of trustees, and under supervisory guidance for banks, information is collected on other persons associated or with control over with the trust/ trustee (e.g. the settlor, grantor, protector). These obligations and practices regarding trusts should remain in place and are not superseded. 25

26 EXCLUSIONS AND EXEMPTIONS FOR CERTAIN ENTITIES OR ACCOUNTS: TREATMENT OF TRUSTS (CONT D) Treatment of Trusts (cont d) Trust as a Beneficial Owner ownership prong If 25% or more of the equity interests of a legal entity customer are owned by a trust (other than a statutory trust), covered financial institutions would satisfy the ownership prong of the beneficial ownership requirement by collecting and verifying the identity of at least one trustee. The covered financial institution may, as part of its risk based due diligence program, identify more than one trustee. If a trust owns 25% or more of the equity interests of a legal entity customer, the beneficial owner for the ownership prong is the trustee, even if it is an entity and not a natural person. This does not exclude the covered financial institution from identifying a natural person under the control prong. 26

27 EXCLUSIONS AND EXEMPTIONS FOR CERTAIN ENTITIES OR ACCOUNTS: TREATMENT OF TRUSTS (CONT D) Treatment of Trusts (cont d) Attorney escrow and client trust accounts To the extent that existing guidance provides that, for purposes of the CIP rules, a financial institution shall treat an intermediary (and not the intermediary s customers) as its customer, the financial institution should treat the intermediary as its customer for purposes of the CDD Rule. FinCEN deems such attorney escrow/ client trust accounts intermediated accounts for purposes of the beneficial ownership requirement. 27

28 RISK-BASED PROCEDURES FOR CONDUCTING ONGOING CUSTOMER DUE DILIGENCE The risk-based procedures for conducting ongoing customer due diligence provisions in the rule amend the AML program requirements, adding a fifth element, or fifth pillar, to the existing four core elements of an AML program. Ongoing due diligence is not limited to legal entity customers; all customers are covered. In FinCEN s view, this part of the Rule merely codifies an already existing AML requirement. Under existing rules, financial institutions are required, for example, to file Suspicious Activity Reports (SARs) on activity that has no business or apparent lawful purpose or is not the sort in which the particular customer would normally be expected to engage. Covered financial institutions are required to understand the nature and purpose of customer relationships in order to develop a customer risk profile. Financial institutions will need to implement processes to ensure that any new beneficial ownership information obtained on accounts as required by the beneficial ownership rule is incorporated into the customer s risk profile. 28

29 RISK-BASED PROCEDURES FOR CONDUCTING ONGOING CUSTOMER DUE DILIGENCE (CONT D) Covered financial institutions are required to conduct ongoing monitoring of customer relationships. Monitoring requires a baseline understanding in the customer risk profile. The Rule requires updates to customer information, including beneficial ownership information of legal entity customers, as part of ongoing monitoring (i.e., a trigger event ). Monitoring includes transaction monitoring as well as the monitoring of customer information relevant to assessing the risk posed by the customer. The financial institution should obtain customer beneficial ownership information on existing clients when, in the course of normal monitoring, the financial institution detects information relevant to re-evaluate the customer s risk profile. 29

30 COMPLIANCE TIPS & CHALLENGES

31 INTEGRATING RULE INTO AML PROGRAM Risk assessment New information captured and new requirements with which to comply Consider account opening methods Face-to-face Mail/Phone/Online Allocation of sufficient resources OFAC and PEP scanning Training All relevant personnel Frontline staff should particularly understand: Exceptions/exemptions Exclusions CIP vs CDD Forms Trigger events if you see something say something Roles and Responsibilities Procedures, authority, and responsibility for reviewing and approving changes to a customer s risk profile, as applicable Impact to Operations Certifications collection and storage of information Feedback loop trigger events and transaction monitoring 31

32 IMPACT OF RULE ON OTHER BSA/AML/CFT REQUIREMENTS: CTRS Rule does not directly affect/change Currency Transaction Report (CTR) requirements, but consider potential impacts. CTR must be filed for cash transaction in or out >$10,000 in any one day by or on behalf of the same person. Consider aggregation issues when beneficial ownership is known. With respect to legal entity customers that may share a common owner, unless there is an affirmative reason to believe otherwise, covered financial institutions should presume that different businesses that share a common owner are operating separately and independently from each other and from the common owner. Thus, absent indications that the businesses are not operating independently (e.g., the businesses are staffed by the same employees and are located at the same address, the accounts of one business are repeatedly used to pay the expenses of another business or of the common owner ), financial institutions should not aggregate transactions involving those businesses with those of each other or with those of the common owner for CTR filing. (April 3, 2018 FAQ #32) A covered financial institution is not required to list the beneficial owners of a business, or trust or estate account, when completing a CTR as a matter of course. A financial institution must list a beneficial owner in Part 1 of the CTR only if the financial institution has knowledge that the transaction(s) requiring the filing is made on behalf of the beneficial owner and results in either cash in or cash out totaling more than $10,000 during any one business day. (April 3, 2018 FAQ #33) Consider: are there circumstances indicating that transactions should be aggregated? Be alert for structuring. 32

33 IMPACT OF RULE ON OTHER BSA/AML/CFT REQUIREMENTS: OFAC Consider intersection of knowledge of beneficial ownership with Office of Foreign Assets Control (OFAC) requirements. OFAC Specially Designated Nationals and Blocked Persons List (SDN List) contains individuals or entities whose property and interests in property are blocked under Executive Orders and regulations administered by OFAC (blocked persons). OFAC 50% Rule = Property and interests in property of entities directly or indirectly owned 50% or more in the aggregate by one or more blocked persons are considered blocked regardless of whether such entities appear on OFAC s SDN List or the annex to an Executive Order. OFAC s 50% Rule speaks only to ownership and not to control. 33

34 IMPACT OF RULE ON OTHER BSA/AML/CFT REQUIREMENTS: 314(a) FinCEN s regulations implementing Section 314(a) of the USA PATRIOT Act enable federal, state, local, and foreign (EU) law enforcement agencies, through FinCEN, to reach out to points of contact at financial institutions to locate accounts and transactions of persons that may be involved in terrorism or money laundering. Financial institutions in receipt of 314(a) requests must search their records for accounts or transactions matching a named subject and report whether a match exists using the identifying information provided in the request. Specifically, financial institutions must query their records for data matches, including accounts maintained by the named subject during the preceding 12 months and transactions conducted within the last six months. Financial institutions have two weeks from the posting date of the request to respond with any positive matches. If the search does not uncover any matching of accounts or transactions, the financial institution is instructed not to reply to the 314(a) request. 34

35 IMPACT OF RULE ON OTHER BSA/AML/CFT REQUIREMENTS: 314(a) (CONT D) How does the Rule intersect with 314(a)? May/must financial institutions report beneficial ownership information associated with an account or transaction matching a named subject in a 314(a) request? FinCEN does not expect the information obtained pursuant to the beneficial ownership requirement to add additional requirements with respect to Section 314(a) for financial institutions. The rule implementing Section 314(a), set forth at 31 CFR , does not authorize the reporting of beneficial ownership information associated with an account or transaction matching a named subject. Under that rule, financial institutions need only search their records for account or transactions matching a named subject, and report to FinCEN whether such a match exists using the identifying information that FinCEN provides. (Preamble to May 11, 2016 Final Rule) FinCEN does not expect the information obtained under the CDD Rule to add additional 314(a) requirements for financial institutions. The regulation implementing section 314(a) does not require the reporting of beneficial ownership information associated with an account or transaction matching a named subject in a 314(a) request. Covered financial institutions are required to search their records for accounts or transactions matching a named subject and report whether a match exists using the identifying information provided in the request. (July 19, 2016 FAQs, FAQ #24) 35

36 IMPACT OF RULE ON OTHER BSA/AML/CFT REQUIREMENTS: PEPS FinCEN s advisory dated June 12, 2018 specifically cites that the agency anticipates the CDD Rule will be used to identify legal entities owned or controlled by politically exposed persons ( PEPs ). The advisory states in relevant part: As of May 11, 2018, FinCEN s Customer Due Diligence (CDD) Rule requires banks; brokers or dealers in securities; mutual funds; and futures commission merchants and introducing brokers in commodities to identify and verify the identity of beneficial owners of legal entity customers, subject to certain exclusions and exemptions. Among other things, this should facilitate the identification of legal entities that may be owned or controlled by PEPs. The new FFIEC Manual section titled Customer Due Diligence Overview articulates the supervisory expectation that a bank s risk-based customer due diligence and enhanced due diligence program incorporate existing guidance regarding certain customer types including PEPs. 36

37 WHAT WILL EXAMINERS BE LOOKING FOR? Objective of FFIEC exam procedures for the Rule s beneficial owner provisions = Assess the bank s written procedures and overall compliance with regulatory requirements for identifying and verifying beneficial owner(s) of legal entity customers. Written Procedures Overall Compliance Document risk assessment and actions taken to mitigate identified risks. Document rationale for use of other than model forms Monitor and test, and document monitoring/testing. Train, and document training. Provide appropriate training tailored for appropriate personnel 37

38 REMEMBER THAT THE RULE IS A FLOOR, NOT A CEILING Rule does not change the fundamental risk-based nature of BSA/AML/CFT. A financial institution could take additional steps based on risk. Lower than 25% ownership threshold? Is enhanced due diligence warranted over the course of the customer relationship? Conduct robust risk assessment and document what steps financial institution is taking and why. Regulators could also expect more. FFIEC BSA/AML Manual expectations 38

39 MORE TO COME... AND WHAT TO DO NOW Regulatory actions? FinCEN advisories, FAQs and administrative rulings 90 day limited exceptive relief will expire on August 9, Regulatory examinations and findings Watch regulators stated examination priorities for 2018 and beyond. Be prepared! Communications between first, second lines of defense. What challenges have come up that were not anticipated? Governance: Document decision making how have you handled those challenges? Consider performing a targeted independent test. Is the program working the way you think it is? 39

40 RESOURCES FinCEN CDD Final Rule FinCEN FAQs and FATF United States Mutual Evaluation Report (December 2016) OFAC FAQs on Entities Owned by Persons Whose Property and Interest in Property are Blocked (50% Rule) FinCEN Advisory on Human Rights Abuses Enabled by Corrupt Senior Foreign Political Figures and their Financial Facilitators a003 FFIEC Manual Updates from May 11,

41 CONTACTS SAMANTHA WELCH Director Global Investigations & Compliance ELIZABETH KHALIL Member Dykema Gossett PLLC