Small Changes in BSA Manual Spell Big Compliance Headaches

WASHINGTON — The dramatic regulatory overhauls since the crisis have meant huge compliance projects for banks. But adopting just subtle changes from the old to new regime can be equally taxing.

That appears to be the case with the most recent Bank Secrecy Act examination manual. The guide, a resource for banks and examiners alike to understand years of anti-money laundering policies, lacks obvious wholesale changes from the 2010 manual. But compliance specialists are still trying to decipher more minute changes that could have significant impact, such as new guidance on prepaid cards and virtual currency as well as tweaks to existing wording.

"The specific words they choose matter," said John Melican, a managing director at the consulting firm Exiger.

The manual, released in December by the Federal Financial Institutions Examination Council, is getting heightened attention as examiners are in the process of visiting banks for their 2015 reviews. Used somewhat like a playbook in exams, it covers a four-year period when regulators issued an abundant amount of new policies.

Still, identifying key differences between the old and new versions is not obvious out of the gate, and banks are already aware of much of the recent guidance that has been incorporated into the new manual. As a result, experts say finding the most consequential changes takes digging.

"That manual has a lot of updates on a lot of different things," said P. Faisal Islam, managing director at the compliance and AML consulting firm pfi.io advisory. "It is worth it to get a side-by-side comparison on the modifications that were done from the previous publication to this one."

Pamela Perdue, executive vice president at the compliance management software company Continuity, agreed that doing a side-by-side review is "the only way you can do it" partly since the manual lacks a detailed summary explaining the key changes.

"All you get is a very vague synopsis at the beginning," she said.

To some, the biggest changes deal with banking relationships that took hold because of innovation following the release of the last manual in 2010. The 2014 guide includes new language for banks involved with prepaid products and virtual currency-related companies. The manual defines both essentially as money services businesses subject to heightened BSA requirements, including transaction monitoring and filing suspicious activity reports.

"Previous to this report, examiners as well as banks didn't have any tangible information set on how to understand and evaluate the risks and the benefits of banking a virtual currency type of company," Islam said.

Banks involved in prepaid products "should have policies, procedures, and processes sufficient to manage the related BSA/AML risks as required" by federal rules, the manual says. Meanwhile, the "BSA requirements and supervisory expectations for providing banking services to administrators or exchangers of virtual currencies are the same as money transmitters."

The manual also included certain mechanical changes. For example, an activity necessitating a Suspicious Activity Report had previously required a subsequent report 90 days later if the activity continued. But the guide extended that period to 120 days.

But Melican said even small changes that appear innocuous can potentially be important. He cited one section on the examination procedures for foreign correspondent accounts as an example. In the 2010 version, the guide said due diligence on a foreign correspondent institution may include "periodic visits," but in the updated version it was changed to "periodic site visits based on risk."

"What is the difference between 'a visit' and a 'site visit based on risk?'" Melican said. "Exam staff could interpret the addition of the word 'site' and the phrase 'based on risk' differently than the past."

While the latest manual update was released nearly five months ago, experts said its effect is likely just starting to be felt.

"You are probably just seeing examinations now that are proceeding that would be impacted," said Robert Axelrod, a director in Deloitte's anti-money laundering practice.

He added that although the guide is a consolidation of existing policies already communicated to the industry, a bank's exam that comes after the release of a new manual is usually where a standard or requirement is first enforced.

"The changes are really changes that have come about in guidance" but "[examiners] might be more responsive now that it is all in one place," Axelrod said.

Richard Riese, senior vice president of the American Bankers Association, said examiners "are a little more cognizant" of required procedures when they appear in the manual versus when new guidance is first introduced, even though they are instructed not to view the manual as regulatory policy that should get additional emphasis.

"It was in their notebooks, because it was issued by headquarters a couple years ago as a bulletin or something like that" but "now it happens to be incorporated in the exam manual so it is … a little bit more readily available if you will," said Riese, who was a director of compliance policy at the now-defunct Office of Thrift Supervision.

Yet the new manual can also be a positive by clarifying regulators' expectations and thereby easing banks' worries about banking certain customers.

Islam noted that MSBs benefited from the 2010 exam manual update, which included more information on how to manage those accounts.

"The MSB industry prior to the 2010 manual was not very well understood and the manual had a little bit more information and that is when you saw a little more uptick in the bank," he said.

But on the sections seen as providing new guidance on prepaid cards and virtual currency, he said, institutions may not be completely confident until the manual has been used in practice and even updated through future iterations. With prepaid cards and virtual currency products still relatively new, updated regulatory guidance over the next few years may require subsequent changes to the manual.

"You need a whole cycle of the manual to go through" before it is fully understood, said Islam, adding that "banks are very hesitant to board virtual currency."

John Byrne, executive vice president at the Association of Certified Anti-Money Laundering Specialists, said while the inclusion of virtual currency in the latest guide "is a sign that it is of import to the AML community," it also shows "there is a lot of confusion and questions" about the procedures such relationships require.

"I would anticipate, like other parts [of the manual], it will get updated as the agencies gain more information," Byrne said.

Still, for AML experts who have been keeping up to date with recent guidance from the regulators, the manual had few surprises.

"There were substantive changes, but nothing that really changed the compliance process or anything," Byrne said.