FinCEN advance notice of proposed rulemaking regarding the antiquities trade

The Financial Crimes Enforcement Network (FinCEN), an agency of the US Department of the Treasury, today issued an advance notice of proposed rulemaking to solicit public comment on the implementation of the Anti-Money Laundering Act of 2020 (AMLA) as to the antiquities trade in the US. The AMLA amends the Bank Secrecy Act of 1970 (BSA), the federal statute largely applicable to the financial industry, to include in the 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.” Comments as to the application of the BSA to the antiquities trade must be submitted to FinCEN by October 25, 2021. Although this comment period applies only to the antiquities trade, we anticipate that FinCEN will propose similar regulations applicable to the broader art market in 2022 for which there will be a public comment period as well.
Congress’ move to make the BSA applicable to the antiquities trade stemmed from the concern that the trade may be exploited by money launderers and terrorist financiers to evade detection by law enforcement. For the purpose of crafting regulations designed to combat these illegal activities, FinCEN today invited commentary on the following points, among others:
This non-exhaustive list of questions that FinCEN has posed demonstrates the sweeping effect that the new legislation will have on the antiquities trade. Participants in the broader art market should anticipate and prepare for a similar line of inquiry when FinCEN proposes new regulations applicable to them as well. We already know that a US Senate report released on July 29, 2020 concluded that the art market as a whole is an easy and convenient vehicle for international bad actors to evade the requirements of the BSA. Consequently, all art market participants should prepare for similar proposed regulation and an opportunity to comment in the near future.
Diana Wierbicki commented to The Art Newspaper on how antiquities dealers in the US should prepare for more regulation of their business activities.
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