Industry Heavyweights Weigh in on FinCEN AML Inquiry
Last month, the U.S. Department of the Treasury, Financial Crimes Enforcement Network (“FinCEN”) issued an advance notice of proposed rulemaking to solicit public comment on the implementation of Section 6110 of the Anti-Money Laundering Act of 2020 (the “AML Act”) to the antiquities trade in the U.S. AML Act Section 6110 amends the BSA by adding to the BSA's definition 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.” That law directs the Treasury Secretary to issue proposed rules implementing this amendment no later than 360 days after enactment of the AML Act (i.e., by December 27, 2021).
FinCEN invited the public to submit comments on a list of questions including, among many others:
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.
What, if any, information does a buyer typically learn about the seller, cosigner, or intermediary involved in the sale of antiquities?
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?
What, if any, safeguards does the industry currently have in place to protect against business loss and fraud?
How should “antiquities” be defined for the purposes of FinCEN's regulations?
How is an antiquity distinct from a work of art?
Should FinCEN establish a monetary threshold for activities involving trade in antiquities that would subject persons involved in such activities above that threshold to FinCEN's regulations, but exempt persons whose activities fall below that threshold?
Should there be any other exemptions for categories or types of persons engaged in the trade of antiquities beyond the consideration of a monetary threshold?
FINCEN issued a deadline of October 25, 2021 for submission of public comments, which could be submitted by mail or through an online portal. Now that the deadline has passed, we see that the online portal contains over 35 submissions from various industry players and members of the public. These submissions are publicly available here. The comments provide differing perspectives from various market players and interested parties, including the Art Dealers Association of America (Comment No. 26), CINOA (Comment No. 29), the Association of Art Museum Directors (Comment No. 22), the Antiquities Coalition (Comment No. 34), Christie’s (Comment No. 23), Sotheby’s (Comment No. 28), Bonhams (Comment No. 30), 1st Dibs (Comment No. 31), and many others.
