On Jan. 1, 2021, the Senate joined the House in an override of President Trump’s veto of the National Defense Authorization Act (NDAA). The NDAA contained amendments introduced by Congresswomen Carolyn Maloney (D-NY) directed at a number of Anti-Money Laundering (AML) initiatives. As a result of that amendment to the House version of the NDAA incorporated into the legislation that passed both Houses after a conference with the Senate, "person[s] engaged in the sale of antiquities" (however "antiquities" might be defined) now find themselves subject to the provisions of the Bank Secrecy Act (BSA) and its regulatory requirements to create and maintain an anti-money laundering program, prepare an annual independent audit, and file where appropriate “suspicious activity reports.” Such AML programs typically cost thousands of dollars per year to implement as well as the time and effort required to comply with such regulations. The costs to small and micro business are substantial. Furthermore, it is impossible to “fly under the radar screen” of such requirements; such regulations are enforced by the banks which will close accounts which do not comply.
The exact scope of these obligations for antiquities dealers will be determined in yet to be promulgated regulations to be prepared by FINCEN (the Financial Crimes Enforcement Network), a Treasury entity. Those proposed regulations will be subject to “notice and comment” rule making. Notice and comment rule making should require FINCEN to respond to concerns raised in public comments before the regulations are finalized. That process, which will probably not happen until later in the year, will be an opportunity to ask FINCEN to define “antiquities” narrowly as possible and to adopt high monetary thresholds before bureaucratic requirements kick in.
In that regard, Congress supplied the Treasury Department with the following specific guidelines for the regulations:
- having the regulations vary by the size of the business, the size of the transaction being conducted, and whether the transaction takes place in the United States or elsewhere;
- whether the regulations should focus on the high-value trade in antiquities in a different way than lower-value objects;
- whether the antiquities dealer must identify the actual purchaser of an antiquity when the seller or buyer is working through an agent or intermediary;
- the need, if any, to identify trade seller or buyers, such as other dealers, advisors, consultants, or other persons trading in antiquities as a business;
- whether volume or financial thresholds should apply in determining whether an antiquities dealer or a specific transaction should be regulated; and,
- whether certain transactions should be exempted from the regulations.
These guidelines were added to the Maloney Amendment during the Conference with the Senate. Presumably, they are the result of Global Heritage Alliance and other advocacy groups for collectors and the businesses of the antiquities and art trade raising these issues with Senate Finance.
The law also requires a further study to be conducted by Treasury solely with input from law enforcement agencies as to whether the larger art market should also be regulated.
Despite some effort to require FINCEN to focus its efforts on more problematic actors and transactions, this law represents a triumph of fear mongering over fact and intensive lobbying, chiefly by archaeological advocacy groups with an axe to grind against private collecting and the trade, along with AML compliance contractors looking for a new line of business. This effort was led by the Antiquities Coalition, a well-funded and politically connected archaeological advocacy organization, and AML Right Source, an AML compliance contractor. Their advocacy is also reflected in the New York Times Coverage of the issue: https://www.nytimes.com/2021/01/01/arts/design/antiquities-market-regulation.html It is indeed unfortunate that neither Congress nor the Times paid much attention to serious questions raised about the claims behind this advocacy: https://culturalpropertynews.org/rand-corp-report-demolishes-assumptions-on-antiquities-and-terror/
It will be absolutely essential for collectors and the small businesses of the antiquities trade to comment on these regulations if we are to have any impact on how hard they will be on collecting and the industry. There also is at least the possibility that FINCEN will propose very broad regulations by treating “antiquities” the same way as “antiques.” (There is some precedent for this in other U.S. statutes.) Obviously, if “antiquities” are treated as “antiques” much of the art and collectibles business will be subject to these regulations. Certainly, we can expect the archaeological lobby and AML contractors to push to have these regulations to cover as many dealers as is possible. However, while the Antiquities Coalition and AML Right Source may be well funded and have both political influence and the ability to place favorable coverage in the NY Times, what they lack is the ability to generate large numbers of comments. Of course, we will see if collectors and the trade turn out in force to protect their hobby and their businesses. The numbers are certainly there if these groups can be motivated.
The above was originally published on Peter Tompa's Cultural Property Observer blog.
