I 111th CONGRESS 2d Session H. R. 4941 IN THE HOUSE OF REPRESENTATIVES March 25, 2010 Mrs. Kirkpatrick of Arizona (for herself, Mr. Filner, Ms. Titus, Mr. Rodriguez, and Mrs. Lummis) introduced the following bill; which was referred to the Committee on Financial Services A BILL To amend title 31, United States Code, to include means of access to funds or the value of funds in certain records and reports on monetary instrument transactions, and for other purposes.

1.

Short title

This Act may be cited as the Anti-Cash Smuggling Act of 2010.

2.

Addition of means of access to funds or the value of funds

Chapter 53 of subtitle IV of title 31, United States Code, is amended— (1)by inserting after section 5316 the following new section:

5316A.

Reports on exporting and importing means of access to funds

(a)

In general

(1)

Reports required

The Secretary of the Treasury, in consultation with the Secretary of Homeland Security, shall, by regulation and subject to the limitations of this section, require reports concerning means of access to funds or the value of funds belonging or credited to a person. (2)

Means of access to funds or the value of funds defined

The Secretary of the Treasury shall define the term means of access to funds or the value of funds for purposes of this section. Such definition shall— (A)include means that a person, agent, or bailee can use to electronically— (i)initiate transfers of funds; (ii)obtain currency in place of funds or the value of funds; or (iii)purchase goods or services; (B)include, but not be limited to, prepaid or stored value cards; and (C)not include debit cards or credit cards, as such terms are defined under section 603(r)(3) of the Fair Credit Reporting Act (15 U.S.C. 1681a(r)(3)) and under section 103(k) of the Truth in Lending Act (15 U.S.C. 1602(k)), respectively. (b)

Reports required when exporting or importing

A person, or an agent or bailee of that person, shall as required by regulation file a report under this section only when the person, agent, or bailee knowingly— (1)transports, is about to transport, or has transported a means of access to funds or the value of funds from a place in the United States to or through a place outside the United States or to a place in the United States from or through a place outside the United States; or (2)receives a means of access to funds or the value of funds transported into the United States from or through a place outside the United States. (c)

Timing and content of reports

A report under this section shall be filed at the time and place prescribed by the Secretary of the Treasury, in consultation with the Secretary of Homeland Security. The report shall contain the following information, to the extent the Secretary of the Treasury, in consultation with the Secretary of Homeland Security, prescribes: (1)The legal capacity in which the person filing the report is acting. (2)The origin, destination, and route of the means of access to funds or the value of funds. (3)When the means of access to funds or the value of funds is not legally and beneficially owned by the person transporting the such means of access, or if the person transporting such means of access personally is not going to use it, the identity of the person that gave such means of access to the person transporting it, the identity of the person who is to receive such means of access, or both. (4)The amount and kind of funds or the value of funds to which the means of access to funds or the value of funds provides access, and the person to whom the funds or value of funds belong or are credited. (5)Such additional information as the Secretary of the Treasury, in consultation with the Secretary of Homeland Security, determines to be appropriate. (d)

Nonapplicability to certain common carriers

This section shall not apply to a common carrier of passengers when a passenger is transporting a means of access to funds or the value of funds, or to a common carrier of goods if the shipper does not declare such means of access. (e)

Additional information needed To facilitate reporting

The Secretary of the Treasury, in consultation with the Secretary of Homeland Security, may prescribe regulations under this section requiring a person that holds funds or the value of funds belonging or credited to another person, and that provides such other person a means of access to such funds or value, to provide information at the time and place and in the manner prescribed by the Secretary, in consultation with the Secretary of Homeland Security, in order to facilitate reporting under this section. Such information may include, but is not limited to, placing conspicuous markings on any tangible mechanism that constitutes, or together with a personal identification number, code, or other input comprises, a means of access to funds or the value of funds in order to manifest reportable characteristics of the means of access.

; (2)in section 5316— (A)by amending the heading to read as follows:

5316.

Reports on exporting and importing monetary instruments and access devices

; (B)by amending subsection (a) to read as follows: (a)Except as provided in subsection (c), a person or an agent or bailee of the person shall file a report under subsection (b) when the person, agent, or bailee knowingly— (1)transports, is about to transport, or has transported, monetary instruments, funds accessible by means of access to funds or the value of funds (as defined under section 5316A(a)(2)), or a combination of monetary instruments and funds accessible by such means of access, of more than $10,000 at one time— (A)from a place in the United States to or through a place outside the United States; or (B)to a place in the United States from or through a place outside the United States; or (2)receives monetary instruments, funds accessible by means of access to funds or the value of funds, or a combination of monetary instruments and funds accessible by such means of access, of more than $10,000 at one time transported into the United States from or through a place outside the United States. ; and (C)in subsection (b), by striking Secretary prescribes and inserting Secretary of the Treasury, in consultation with the Secretary of Homeland Security, prescribes; (3)by amending section 5317 to read as follows:

5317.

Search and forfeiture of monetary instruments and access devices

(a)

In general

The Secretary of the Treasury or the Secretary of Homeland Security may apply to a court of competent jurisdiction for a search warrant when such Secretary reasonably believes a monetary instrument or a tangible mechanism that constitutes, or together with a personal identification number, code, or other input comprises, a means of access to funds or the value of funds is being transported and a report on the instrument or means of access to funds or the value of funds under section 5316 or 5316A has not been filed or contains a material omission or misstatement. Such Secretary shall include a statement of information in support of the warrant. On a showing of probable cause, the court may issue a search warrant for a designated person or a designated or described place or physical object. This subsection does not affect the authority of the Secretary of the Treasury or the Secretary of Homeland Security under any other provision of law. (b)

Searches at border

For purposes of ensuring compliance with the requirements of section 5316 and 5316A, a customs officer may stop and search, at the border and without a search warrant, any vehicle, vessel, aircraft, or other conveyance, any envelope or other container, and any person entering or departing from the United States. (c)

Forfeiture

(1)

Criminal forfeiture

(A)

In general

The court in imposing sentence for any violation of section 5313, 5316, 5316A, or 5324, or any conspiracy to commit such violation, shall order the defendant to forfeit all property, real or personal, involved in the offense, including but not limited to any tangible mechanism that constitutes, or together with a personal identification number, code, or other input comprises, a means of access to funds or the value of funds, and any property traceable thereto. (B)

Procedure

Forfeitures under this paragraph shall be governed by the procedures established in section 413 of the Controlled Substances Act. (2)

Civil forfeiture

Any property involved in a violation of section 5313, 5316, 5316A, or 5324, or any conspiracy to commit any such violation, and any property traceable to any such violation or conspiracy, may be seized and forfeited to the United States in accordance with the procedures governing civil forfeitures in money laundering cases pursuant to section 981(a)(1)(A) of title 18, United States Code.

; (4)by amending section 5324(c) to read as follows: (c)

International transactions

No person shall, for the purpose of evading the reporting requirements of section 5316 or 5316A— (1)fail to file a report required by section 5316 or 5316A, or cause or attempt to cause a person to fail to file such a report; (2)file or cause or attempt to cause a person to file a report required under section 5316 or 5316A that contains a material omission or misstatement of fact; or (3)structure or assist in structuring, or attempt to structure or assist in structuring, any importation or exportation of monetary instruments or means of access to funds or the value of funds. ; and (5)by amending section 5332 to read as follows:

5332.

Smuggling of cash, monetary instruments, and means of access to funds or the value of funds into or out of the United States

(a)

Criminal offense

(1)

In general

Whoever, with the intent to evade a currency reporting requirement under section 5316 or 5316A, knowingly conceals more than $10,000 in currency or other monetary instruments, or any tangible mechanism that constitutes, or together with a personal identification number, code, or other input comprises, a means of access to funds or the value of funds, on the person of such individual or in any conveyance, article of luggage, merchandise, or other container, and transports or transfers or attempts to transport or transfer such currency, other monetary instruments, or tangible mechanism from a place within the United States to a place outside of the United States, or from a place outside the United States to a place within the United States, shall be guilty of a currency smuggling offense and subject to punishment pursuant to subsection (b). (2)

Concealment on person

For purposes of this section, the concealment of currency, other monetary instruments, or tangible mechanisms on the person of any individual includes concealment in any article of clothing worn by the individual or in any luggage, backpack, or other container worn or carried by such individual. (b)

Penalty

(1)

Term of imprisonment

A person convicted of a currency smuggling offense under subsection (a), or a conspiracy to commit such offense, shall be imprisoned for not more than 5 years. (2)

Forfeiture

In addition, the court, in imposing sentence under paragraph (1), shall order that the defendant forfeit to the United States, any property, real or personal, involved in the offense, and any property traceable to such property. (3)

Procedure

The seizure, restraint, and forfeiture of property under this section shall be governed by section 413 of the Controlled Substances Act. (4)

Personal money judgment

If the property subject to forfeiture under paragraph (2) is unavailable, and the defendant has insufficient substitute property that may be forfeited pursuant to section 413(p) of the Controlled Substances Act, the court shall enter a personal money judgment against the defendant for the amount that would be subject to forfeiture. (c)

Civil forfeiture

(1)

In general

Any property involved in a violation of subsection (a), or a conspiracy to commit such violation, and any property traceable to such violation or conspiracy, may be seized and forfeited to the United States. (2)

Procedure

The seizure and forfeiture shall be governed by the procedures governing civil forfeitures in money laundering cases pursuant to section 981(a)(1)(A) of title 18, United States Code. (3)

Treatment of certain property as involved in the offense

For purposes of this subsection and subsection (b), any currency, other monetary instrument, or tangible mechanism that constitutes, or together with a personal identification number, code, or other input comprises, a means of access to funds or the value of funds that is concealed or intended to be concealed in violation of subsection (a) or a conspiracy to commit such violation, any article, container, or conveyance used, or intended to be used, to conceal or transport the currency, other monetary instrument, or tangible mechanism, and any other property used, or intended to be used to facilitate the offense (including the funds or value of funds accessible by such tangible mechanism at the time of the offense), shall be considered property involved in the offense.

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