On September 15, 2023, the U.S. Department of the Treasury’s Financial Crimes Enforcement Network (“FinCEN”) announced a $15 million civil money penalty against a Puerto Rican International Banking Entity (“IBE”), Bancrédito International Bank and Trust Corporation (“Bancrédito” or “the Bank”). The public consent order details the Bank’s multiple violations of the Bank Secrecy Act (“BSA”), which occurred between October 2015 and May 2022. The penalty assessed against Bancrédito marks FinCEN’s first enforcement action against a Puerto Rican IBE, also known as a “gap institution” due to such entities lacking a federal functional regulator. This is also FinCEN’s first enforcement action involving a violation of a 2020 rule requiring gap institutions to have in place anti-money laundering programs by March 2021.
Prior to March 15, 2021, certain financial institutions (“gap institutions”) were exempt from the BSA’s anti-money laundering (“AML”) program requirement. While these gap institutions did not have AML program obligations, they were required to comply with certain other BSA obligations, such as suspicious activity reporting requirements. The 2016 U.S. Mutual Evaluation conducted by the Financial Action Task Force determined gap institutions to be a weakness in the U.S. AML regulatory regime, a finding which effectively catalyzed a final rulemaking by FinCEN that required such institutions to have in place AML programs (the “Gap Rule”). Bancrédito’s violations included willful failures to: (1) report suspicious transactions; (2) implement a due diligence program for correspondent accounts established, maintained, administered, or managed in the United States for foreign financial institutions; and (3) implement and maintain an adequate and effective AML program.
Suspicious Activity Reporting Violations
The BSA requires all banks to file suspicious activity reports (“SARs”) for suspicious or potentially suspicious transactions involving at least $5,000 USD. This requirement inherently necessitates the development and implementation of an effective transaction monitoring and detection process. According to FinCEN, Bancrédito did not file any SARs prior to 2016, despite being notified of SAR-related deficiencies by its primary regulator, the Puerto Rico Office of the Commissioner of Financial Institutions (“OCIF”) in 2015. Further, following a 2019 OCIF examination that identified failures by the Bank to report 300 suspicious transactions to FinCEN, the Bank only acquiesced to back-filing SARs on 182 suspicious transactions and, moreover, stated in the SAR narratives why it disagreed with OCIF examiners’ determination that the transactions were suspicious in nature. FinCEN determined that the language the Bank included in these SARs undermined “the value and integrity of suspicious activity reporting and creates potential confusion for law enforcement.” A lookback review by an independent consultant reinforced OCIF’s findings with respect to the 300 suspicious transactions. These recurring SAR failures took place despite the fact that Bancrédito frequently served high-risk customers, including Venezuelan nationals. Furthermore, FinCEN independently identified hundreds of millions of dollars in suspicious transactions on which it determined Bancrédito failed to file timely SARs.
Correspondent Account Due Diligence Violations
In addition to filing SARs, banks must establish a due diligence program for foreign correspondent accounts. According to OCIF, while Bancrédito established an adequate foreign correspondent due diligence program in 2016, the program had declined substantially by the 2019 examination. The 2019 examination identified several violations, including but not limited to: failure to collect from correspondent banks information critical to assessing the reasonable or suspicious nature of transactions; failure by compliance personnel to examine invoices related to high-risk correspondent transactions; and failure to compare high-risk transactions with anticipated transaction volumes and account balances in order to properly analyze and determine whether such transactions were reasonable given the scope of business purposes and activities for the correspondent bank or counterparties. Consequently, these due diligence deficiencies resulted in failures by Bancrédito to ascertain the true nature of large international wire transfers and, thus, report suspicious activity as required.
AML Program Violations
Finally, FinCEN’s 2020 “Gap Rule”, which went into effect on March 15, 2021, requires all gap institutions, including IBEs, to implement all five “pillars” of an AML program. Although not a legal requirement at the time, Bancrédito committed to developing and implementing an AML program following the 2015 OCIF examination. FinCEN’s consent order maintains that the Bank did not follow through on its commitment, despite subsequent regulatory examinations underscoring this failure and the promulgation of the Gap Rule. Ultimately, FinCEN found that Bancrédito had ample notice and opportunity to develop and implement an AML program by the time the requirement came into effect but failed to do so.
After weighing the severity, frequency, and history of the violations, FinCEN determined that a $15 million fine and license surrender were appropriate penalties for the Bank. FinCEN further required the Bank to preserve all business records for a period of five years. Notably, according to a Puerto Rican publication, the Bancrédito Holding Corporation threatened legal action over FinCEN’s enforcement action, calling it a “shoot first, aim later decision,” criticizing FinCEN’s investigatory process as inadequate and describing the penalty amount as “excessive and unprecedented.”
 U.S. Dep’t of the Treasury, Fin. Crimes Enforcement Network, In the Matter of: Bancrédito International Bank and Trust Corporation (September 15, 2023), https://www.fincen.gov/sites/default/files/shared/Bancredito_Consent_FINAL_091523_508C.pdf.
 31 U.S.C. § 5318(h).
 Customer Identification Programs, Anti-Money Laundering Programs, and Beneficial Ownership Requirements for Banks Lacking a Federal Functional Regulator, 85 Fed. Reg. 57129 (Sept. 15, 2020).
 31 C.F.R. § 1020.210(b) (2020).
 Bancrédito Holding Corporation threatens legal action amid million-dollar fine imposed by FinCEN, The News Journal (Sept. 16, 2023), https://www.theweeklyjournal.com/top-stories/bancr-dito-holding-corporation-threatens-legal-action-amid-million-dollar-fine-imposed-by-fincen/article_2fe0a1d4-54ad-11ee-af8f-4b1fb24040b3.html.