FinCEN’s Anti-Money Laundering Plan Should Put Advisers on Alert

The Treasury Department may finally see success in its third attempt to extend anti-money laundering and countering the financing of terrorism, or AML/CFT, requirements under the Bank Secrecy Act to investment advisers.

The protectionist political climate, coupled with the Treasury’s additional efforts in publishing the risk assessment, suggest persistence may pay off this time.

While some advisers already implement many AML/CFT requirements, either voluntarily or due to affiliations with banks and broker-dealers, all SEC-registered investment advisers and exempt reporting advisers may want to start evaluating risks and identifying steps to compliance.

They can start this process by reviewing extensive guidance already available to other entities already subject to AML/CFT. One such resource, an AML tool for broker-dealers, available on the SEC’s website, is full of practical lists, examples, FAQs, and other resources for compliance.

The Treasury had proposed a rule in February requiring registered investment and exempt reporting advisers to implement an AML/CFT program, including written policies, procedures, and internal controls reasonably designed to prevent money laundering, terrorist financing, and other illicit financing activities.

These intentionally include advisers to private funds, such as hedge funds, venture capital funds, and private equity funds. Investment advisers registered at the state level—generally meaning advisers with less than $100 million of assets under management—would be excluded.

In the notice, the Treasury reported that investment advisers are a major vulnerability in defenses against financial crimes, money laundering, and terrorism finance in its 2024 investment adviser risk assessment, asserting that lack of uniform applicability and compliance across the industry creates opportunities for illicit activity.

It cites examples such as Russian oligarchs obscuring wealth derived from corruption or other illicit activity, as well as governments, such as China, investing in venture capital funds as a back door to steal critical and emerging US technology.

Any AML/CFT program would have to be approved by the adviser’s board of directors or equivalent. A specific person would be designated as responsible for implementation. Affected advisers would be expected to tailor such programs to identify and mitigate specific risks for their unique business, clients, geographies, and strategies.

For now, the proposal doesn’t extend the Bank Secrecy Act’s customer identification program, nor related beneficial ownership information requirements, to registered investment and exempt reporting advisers—although the Treasury’s Financial Crimes Enforcement Network has indicated it may do so in the future.

FinCEN is accepting comments on the proposal through April 15 and has requested comments in areas that may change before finalization, such as whether other exclusions are warranted in lower risk areas. The compliance date would be 12 months after the effective date of any final rule, and enforcement would be largely delegated to the SEC.

AML/CFT rules already apply to other financial institutions, such as banks and broker-dealers. Attempts to expand the definition in 2003 and 2015 were withdrawn following stiff industry opposition.

As with any new, major proposed federal regulation, court challenges are possible. The presidential election in November also could impact implementing the proposed rule.

Despite this uncertainty, a prudent investment adviser will begin the internal review and preparation process to be ready for timely compliance. Keeping abreast of comments and any court challenges while the rule is pending may provide advance insight as to whether, and if so in what form, the rule will eventually be implemented.

This article does not necessarily reflect the opinion of Bloomberg Industry Group, Inc., the publisher of Bloomberg Law and Bloomberg Tax, or its owners.

Author Information

Eric Mikkelson is partner at Stinson, where he co-chairs its investment management practice group.

Write for Us: Author Guidelines