FinCEN proposes restricted access to beneficial ownership registry

The notice, posted on theFederal Register on Friday, proposes to limit access to the new beneficial ownership registry to certain federal agencies; state, local, and tribal law enforcement agencies that have received a court’s authorization; financial institutions with customer due diligence requirements; bank regulators supervising the due diligence activities of financial institutions; foreign law enforcement agencies, prosecutors, judges, and other agencies that meet specific criteria; and Treasury officers and employees. The registry will not be accessible to the public.

Written comments on the rule should be submitted to FinCEN in the next 60 days, the agency said Thursday in a press release.

FinCEN’s restriction of access to its beneficial ownership registry follows a November decision by the Court of Justice of the European Union that determined a provision of the EU’s anti-money laundering directive that allowed public access to beneficial ownership registries maintained by the bloc’s member states infringed on citizens’ right to privacy.

The United Kingdom, meanwhile, has maintained a publicly accessible beneficial ownership registry since 2016 and established a register of overseas entities in 2022. But the U.K. registry is not without problems: A team of data scientists at campaign group Global Witness found insufficient safeguards to ensure the accuracy of the data being transmitted to the country’s beneficial ownership registry.

The FinCEN rule is the second part of a three-part rulemaking process that will implement the Corporate Transparency Act, which was enacted by Congress as part of the Anti-Money Laundering Act of 2020 in the National Defense Authorization Act for Fiscal Year 2021.

In September, FinCEN finalized the first guidance in its rulemaking process, the beneficial ownership rule, which will require certain companies to file basic information with the agency about who controls their finances. The rule takes effect January 2024.

FinCEN defined a beneficial owner as someone who ultimately owns or controls more than 25 percent of a company’s shares or voting rights or who otherwise exercises control over the company or its management.

The beneficial ownership registry is meant to pull back the veil on corporate shell companies, providing law enforcement, federal agencies, and financial institutions with insight into who controls those companies.

“The beneficial ownership information reporting rule finalized earlier this year is a major step forward in unmasking shell companies and protecting the U.S. financial system from abuse by money launderers, drug traffickers, sanctioned oligarchs, and other criminals,” said FinCEN Acting Director Himamauli Das in the press release. “In this next step, the proposed rule would provide the highest standards of security and confidentiality while ensuring that the new beneficial ownership database is highly useful to law enforcement agencies in its efforts to combat financial crime.

“As we drive toward full implementation of the Corporate Transparency Act, we move closer to exposing criminals, corrupt actors, and anyone trying to hide ill-gotten gains in the United States.”

The third rule yet to be released is a revision of FinCEN’s existing due diligence rule.