Treasury’s Crime Unit Drafting Anti-Money-Laundering Rule for Advisors

FinCEN to work with SEC, state regulators on proposal

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  • Risk-Based Oversight of Investment Advisors Even if the SEC had a larger budget and more resources, it is doubtful that the Commission would have the resources to regularly examine all RIAs. Therefore, the SEC is likely to continue relying on risk-based oversight to fulfill its mission of protecting investors.
  • Client Communication and Miscommunication RIA policies and procedures must specify what type of communications should be retained. The safest course of action is for RIAs to retain all communications—to clients, from clients, and about client accounts.  To comply with fiduciary obligations, communications must be thorough and not mislead.

The Treasury Department’s Financial Crimes Enforcement Network is drafting a proposal that would require investment advisors to establish anti-money-laundering programs and report suspicious activity.

James Freis, director of FinCEN, told bankers at an anti-money-laundering conference in Washington on Nov. 15 that his division will work with the Securities and Exchange Commission as well as state regulators as it drafts the proposal. “FinCEN is currently revisiting the topic of investment advisors” having anti-money-laundering plans, and “building on the changes to that industry pursuant to the Dodd-Frank Act, the SEC rules implementing Dodd-Frank and other changes,” Freis said.

Among participants in the securities industry, FinCEN’s rules currently apply to broker-dealers and to mutual funds, he said. FinCEN formally began focusing public attention on investment advisors in September 2002, Freis said, when FinCEN published a notice of proposed rulemaking in the Federal Register proposing that unregistered investment companies establish anti-money-laundering programs.

Although investment advisors are not expressly included within the definition of financial institution under the Bank Secrecy Act, “the BSA authorizes the secretary to include additional types of entities within the definition of financial institution” and on May 5, 2003, FinCEN published a notice of proposed rulemaking in the Federal Register proposing that investment advisors establish anti-money laundering programs, Freis explained.

However, on Nov. 4, 2008, FinCEN announced that it was withdrawing the proposed regulations and would not proceed with regulations for these entities without publishing new proposals and allowing for industry comments.

Additionally since then, Freis said, “there have been significant changes in the regulatory framework for investment advisers with the passage of the Dodd-Frank Act and SEC rules implementing Dodd-Frank.”

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