[Federal Register Volume 67, Number 187 (Thursday, September 26, 2002)]
[Rules and Regulations]
[Pages 60579-60588]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 02-24143]


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DEPARTMENT OF THE TREASURY

31 CFR Part 103

RIN 1506-AA27


Financial Crimes Enforcement Network; Special Information Sharing 
Procedures To Deter Money Laundering and Terrorist Activity

AGENCY: Financial Crimes Enforcement Network (FinCEN), Treasury.

ACTION: Final rule.

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SUMMARY: FinCEN is issuing this final rule to encourage information 
sharing among financial institutions and Federal government law 
enforcement agencies for the purpose of identifying, preventing, and 
deterring money laundering and terrorist activity.

DATES: This final rule is effective September 26, 2002.

FOR FURTHER INFORMATION CONTACT: Office of Chief Counsel, FinCEN, (703) 
905-3590; Office of the Assistant General Counsel (Enforcement), (202) 
622-1927; or the Office of the Assistant General Counsel (Banking and 
Finance), (202) 622-0480 (not toll-free numbers).

SUPPLEMENTARY INFORMATION:

I. Statutory Provisions

    On October 26, 2001, the President signed into law the Uniting and 
Strengthening America by Providing Appropriate Tools Required to 
Intercept and Obstruct Terrorism (USA PATRIOT ACT) Act of 2001, Public 
Law 107-56 (the Act). Of the Act's many goals, the facilitation of 
information sharing among governmental entities and financial 
institutions, for the purpose of combating terrorism and money 
laundering, is of paramount importance. Section 314 of the Act furthers 
this goal by providing for the sharing of information between the 
government and financial institutions, and among financial institutions 
themselves. As with many other provisions of the Act, Congress has 
charged the U.S. Department of the Treasury (``Treasury'') with 
developing regulations to implement these information-sharing 
provisions.\1\
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    \1\ Section 314 of the Act is an uncodified provision that 
appears in the Historical and Statutory Notes to 31 U.S.C. 5311. 
Section 5311 is one of a number of statutory sections comprising the 
body of law commonly referred to as the Bank Secrecy Act (BSA), Pub. 
L. 91-508, codified, as amended, at 12 U.S.C. 1829b, 12 U.S.C. 1951-
1959, and 31 U.S.C. 5311-5332. Regulations implementing the BSA 
appear at 31 CFR part 103. The authority of the Secretary to 
administer the BSA and its implementing regulations has been 
delegated to the Director of FinCEN.
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    Subsection 314(a) of the Act states in part that:

[t]he Secretary shall * * * adopt regulations to encourage further 
cooperation among financial institutions, their regulatory 
authorities, and law enforcement authorities, with the specific 
purpose of encouraging regulatory authorities and law enforcement 
authorities to share with financial institutions information 
regarding individuals, entities, and organizations engaged in or 
reasonably suspected based on

[[Page 60580]]

credible evidence of engaging in terrorist acts or money laundering 
activities.

    Subsection 314(a)(2)(C) further states that the regulations adopted 
under section 314(a) may:

include or create procedures for cooperation and information sharing 
focusing on * * * means of facilitating the identification of 
accounts and transactions involving terrorist groups and 
facilitating the exchange of information concerning such accounts 
and transactions between financial institutions and law enforcement 
organizations.\2\
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    \2\ The Secretary also has the broad authority to require 
financial institutions ``to maintain appropriate procedures to 
ensure compliance with this subchapter and regulations prescribed 
under this subchapter or to guard against money laundering.'' 31 
U.S.C. 5318(a)(2).

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    Subsection 314(b) of the Act states in part that:

[u]pon notice provided to the Secretary, 2 or more financial 
institutions and any association of financial institutions may share 
information with one another regarding individuals, entities, 
organizations, and countries suspected of possible terrorist or 
money laundering activities. A financial institution or association 
that transmits, receives, or shares such information for the 
purposes of identifying and reporting activities shall not be liable 
to any person under any law or regulation of the United States, any 
constitution, law, or regulation of any State or political 
subdivision thereof, or under any contract or other legally 
enforceable agreement (including any arbitration agreement), for 
such disclosure or for any failure to provide notice of such 
disclosure, or any other person identified in the disclosure, except 
where such transmission, receipt, or sharing violates this section 
or regulations promulgated pursuant to this section.

II. Notice of Proposed Rulemaking

    On March 4, 2002, FinCEN published for comment in the Federal 
Register a notice of proposed rulemaking (the NPRM), 67 FR 9879, that 
would implement the authority contained in section 314 of the Act. The 
proposed rule that would implement the authority contained in 
subsection 314(a) of the Act is set forth in proposed 31 CFR 103.100; 
the proposed rule that would implement section 314(b) of the Act is set 
forth in proposed 31 CFR 103.110.\3\ On the same day it published the 
NPRM, FinCEN also published an interim rule implementing only the 
authority contained in subsection 314(b) of the Act. The interim and 
proposed rules relating to subsection 314(b) are substantively 
identical to one another, and the final rule contained in this document 
will supersede the interim rule.
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    \3\ Although there is no statutory requirement for regulations 
to be issued implementing subsection 314(b) of the Act, FinCEN 
determined that such rules were needed to specify the kinds of 
financial institutions that would be permitted to share information 
under subsection 314(b) and to clarify how such financial 
institutions could provide FinCEN with the requisite notice of their 
intent to share information under that subsection.
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    The comment period on the NPRM closed on April 3, 2002. FinCEN 
received approximately 180 comments letters on the NPRM. Of these, more 
than half were submitted by individuals. The remainder of the comment 
letters were submitted by depository institutions, brokers and dealers 
in securities, insurance companies, other financial institutions, 
financial institution trade associations, law firms, and private 
consultants.

III. Summary of Comments and Revisions

A. Introduction

    The format of the final rule is generally consistent with the NPRM. 
The terms of the final rule, however, differ from the terms of the NPRM 
in the following significant respects:
    [sbull] The provisions of sections 103.100 and 103.110 have been 
reorganized for clarity (e.g., the obligations of a financial 
institution that receives a request under section 103.100 to search its 
records have been grouped together under one paragraph);
    [sbull] Language has been added to section 103.100, clarifying that 
unless an information request states otherwise, a financial institution 
need only search its records for current accounts maintained for a 
named suspect, accounts maintained for a named suspect during the 
preceding twelve months, and transactions conducted by, and funds 
transfers involving, a named suspect during the preceding six months;
    [sbull] Language also has been added to section 103.100, clarifying 
that unless an information request states differently, such a request 
will not require a financial institution to report on future customer 
activity;
    [sbull] The universe of financial institutions that may share 
information under section 103.110 has been expanded to generally 
include all financial institutions that are required under 31 CFR part 
103 to establish and maintain an anti-money laundering program, unless 
FinCEN specifically determines that a particular category of financial 
institution should not be eligible to share information under this 
provision;
    [sbull] The requirement for a financial institution to provide 
FinCEN with a certification prior to sharing information under section 
103.110 has been replaced with a requirement to provide notice;
    [sbull] Language has been added indicating that a financial 
institution, prior to sharing information with another financial 
institution under section 103.110, must take reasonable steps to verify 
that its counterpart has filed its own notice with FinCEN; and
    [sbull] Language relating to revocation of a certification has been 
deleted from section 103.110.

B. Comments--General Issues

    Comments on the Notice focused on the following matters: (1) The 
extent of information sharing between law enforcement and financial 
institutions; (2) the burden associated with the requirement that a 
financial institution search its records for accounts or transactions 
relating to individuals, entities, or organizations suspected of 
engaging in terrorist activity or money laundering; (3) the kinds of 
financial institutions that may share information under the protection 
of the safe harbor from liability contained in subsection 314(b) of the 
Act; and (4) the requirement that a financial institution provide a 
certification to FinCEN prior to sharing information with another 
financial institution.
    1. Information sharing between law enforcement and financial 
institutions. Proposed section 103.100 would require a financial 
institution to search its records to determine whether it maintains or 
has maintained accounts for, or has engaged in transactions with, any 
individual, entity, or organization listed in a request submitted by 
FinCEN on behalf of a Federal law enforcement agency. Several 
commenters criticized proposed section 103.100 for creating a ``one-
way'' flow of information from financial institutions to law 
enforcement, and for not adequately addressing how law enforcement can 
better provide useful information to financial institutions.
    It is beyond dispute that the information sharing provisions in the 
rule, by providing law enforcement with the means to locate quickly 
account and transactions associated with suspected terrorists and money 
launderers, will be a critical tool in the fight against terrorism. 
FinCEN believes that such provisions fulfill the intent of section 314 
to facilitate the flow of information between governmental agencies and 
financial institutions. In fact, the rule establishes a mechanism for 
law enforcement to provide financial institutions with the names of 
specific suspects, something that would not have likely have occurred 
on the same magnitude without such a mechanism. Because financial 
institutions will be required to report back to FinCEN any matches 
based on such suspect information, law enforcement will have

[[Page 60581]]

an added incentive to share information with the financial community.
    FinCEN recognizes the importance of providing the financial 
community with more than just suspect information in order to assist 
financial institutions in identifying and reporting suspected terrorist 
activity or money laundering. FinCEN already issues a semi-annual 
report about suspicious trends and patterns derived from its review of 
suspicious activity reports, and regularly issues reports about money 
laundering activity both in various financial sectors and with respect 
to certain financial products. All of this information is posted on 
FinCEN's Web site.
    The overarching policy directive of the Act generally, and section 
314 in particular, is that more information sharing will better enable 
the Federal Government and financial institutions to guard against 
money laundering and terrorist financing. Moreover, as additional kinds 
of financial institutions are made subject to BSA requirements, the 
need for additional feedback and guidance increases. As a result, 
FinCEN anticipates making additional information available to financial 
institutions in the form of advisories and guidance documents once the 
immediate implementation of the Act has been completed. Working with 
the financial community, FinCEN will be able to assess the kind of 
information that will prove most useful. In addition, FinCEN will work 
with law enforcement and financial institution regulators to take 
advantage of FinCEN's ability to reach out to a broad array of 
financial institutions as a means of providing additional information 
and enhancing further cooperation among governmental authorities and 
financial institutions. The final rule does not preclude law 
enforcement, when submitting a list of suspects to FinCEN, from 
providing additional information relating to suspicious trends and 
patterns, and FinCEN specifically will encourage law enforcement to 
share such information with the financial community.
    2. Burden associated with information requests. A number of 
commenters argued that complying with an information request under 
proposed section 103.100 would be too burdensome on financial 
institutions unless FinCEN were to restrict narrowly the scope of such 
requests.
    FinCEN agrees that the breadth of information requests under 
section 103.100 requires some limitation to avoid unnecessary burden on 
financial institutions and unnecessary delay in receiving matching 
information from such institutions that can be forwarded quickly to 
Federal law enforcement agencies. The unique benefits of the 
information sharing provisions under section 103.100 stem from the 
ability of law enforcement, using FinCEN's relationship with the 
financial community, to locate quickly accounts and transactions of 
suspected terrorists and money launderers. This goal would be 
frustrated if each request for information were met with a flood of 
questions about the scope of the search required and complaints about 
the burden imposed. Therefore, FinCEN has struck a balance to maximize 
the value to law enforcement while minimizing the burden on financial 
institutions.
    Except as otherwise provided in the information request, a 
financial institution is only required under the final rule to search 
its records for: (1) Any current account maintained for a named 
suspect; (2) any account maintained for a named suspect during the 
preceding twelve months; and (3) any transaction conducted by or on 
behalf of a named suspect, or any transmittal of funds conducted in 
which a named suspect was either the transmittor or the recipient, 
during the preceding six months that is required under law or 
regulation to be recorded by the financial institution or is recorded 
and maintained electronically by the institution. The limiting of 
searches to accounts maintained during the preceding twelve months and 
transactions and funds transfers conducted during the preceding six 
months is intended to narrow the scope of an information request to 
those records that can be searched quickly for responsive information. 
Similarly, FinCEN believes that a financial institution should be able 
to locate quickly any matching transaction that is required to be 
recorded under law or regulation or is recorded and maintained in a 
format that can be searched electronically. FinCEN reserves the right 
to require a more comprehensive search as circumstances warrant; in 
such cases, the information request will clearly delineate those 
broader terms.
    As a general matter, a financial institution will not be required 
under the final rule to search its account holders' processed checks to 
determine whether a named suspect was a payee of a check because the 
payee, except in situations in which a person makes out a check to 
himself, is neither the person who conducted the transaction nor the 
person on whose behalf the transaction was conducted. In contrast, a 
financial institution will be required to search its records that are 
kept in accordance with the recordkeeping requirements of 31 CFR part 
103, to determine whether a named suspect was a transmittor or a 
recipient to a funds transfer in the amount of $3,000 or more conducted 
during the preceding six months.
    Several commenters also requested that FinCEN clarify whether 
financial institutions would be obligated under section 103.100 to 
report on future account opening activity or future transactions 
involving any individual, entity, or organization listed in a request 
submitted by FinCEN on behalf of a Federal law enforcement agency. 
Unless otherwise indicated in the information request from FinCEN, a 
financial institution will not be required to report on future account 
opening activity or future transactions. FinCEN anticipates that the 
need to report on future activity will be infrequent, and, at least for 
the immediate future, will be limited to individuals, entities, or 
organizations reasonably suspected of engaging in terrorist activity. 
In the event that a financial institution will be obligated to report 
on future activity, the terms of the information request will clearly 
so state. In such cases, FinCEN also will explicitly indicate whether 
the list of suspects included with an information request has been 
designated as a ``government list'' for purposes of any account opening 
requirements imposed under the authority of section 326 of the Act. 
Unless so designated, a list of suspects provided via section 103.100 
is not required to be treated as a government list for purposes of 
section 326 of the Act.
    3. Kinds of financial institutions that may share information with 
each other. Proposed section 103.110 generally would have limited the 
kinds of financial institutions eligible to share information for the 
purpose of detecting and reporting terrorist and money laundering 
activities to those institutions that have an obligation to report 
suspicious activity to Treasury-e.g., depository institutions, certain 
money services businesses, and brokers or dealers in securities. 
Several commenters argued that the universe of eligible financial 
institutions should be expanded to include other kinds of financial 
institutions, such as insurance companies, investment companies, and 
futures commission merchants. According to these commenters, these 
other kinds of financial institutions may possess useful information 
related to terrorist activity and money laundering, and therefore 
should be permitted to share information under the protection of the 
safe harbor from liability afforded by subsection 314(b) of the Act and 
section 103.110.

[[Page 60582]]

    FinCEN agrees that the universe of eligible financial institutions 
under section 103.110 should be expanded. When enacting subsection 
314(b) of the Act, the Congress recognized that the flow of information 
among financial institutions is a key component in combating terrorism 
and money laundering. FinCEN believes that expanding the universe of 
financial institutions that may share information would help effectuate 
that flow of information. FinCEN also believes that those financial 
institutions that are required to establish and maintain an anti-money 
laundering program generally may have a need to share information when 
implementing such a program. Consequently, under the final rule, any 
financial institution described in 31 U.S.C. 5312(a)(2) that is 
required under 31 CFR part 103 to establish and maintain an anti-money 
laundering program, or is treated under 31 CFR part 103 as having 
satisfied the requirements of 31 U.S.C. 5318(h)(1), is eligible to 
share information under section 103.110, unless FinCEN specifically 
determines that a particular class of financial institution should not 
be eligible to share information under that section. For example, 
operators of credit card systems, because they are required under 31 
CFR 103.135 to establish and maintain an anti-money laundering program, 
are eligible to share information under section 103.110. Registered 
brokers and dealers in securities also are eligible to share 
information under section 103.110, because they are treated under 31 
CFR 103.120 as having satisfied the anti-money laundering program 
requirements of 31 U.S.C. 5318(h)(1). FinCEN reserves the right to 
designate a class of financial institutions as ineligible to share 
information under section 103.110 when, for example, it issues an anti-
money laundering program rule applicable to such a class.
    4. Certification requirement. Proposed section 103.110 would 
require a financial institution, in order to avail itself of the 
statutory safe harbor from liability when sharing information with 
another financial institution, to certify to FinCEN that it, among 
other things, has established adequate procedures to safeguard any 
information it receives under that section. A number of commenters 
argued that FinCEN replace the certification requirement with a 
requirement simply to provide notice. According to these commenters, 
the risk of liability for filing a technically-deficient certification 
might deter many financial institutions from sharing information. In 
addition, these commenters cited the explicit language of subsection 
314(b) of the Act, which uses the term ``notice,'' rather than 
``certification.''
    FinCEN is mindful of the need to encourage financial institutions 
to share information for the purpose of better identifying and 
reporting terrorist or money laundering activities. At the same time, 
FinCEN recognizes the need to ensure that the right to share 
information under subsection 314(b) of the Act is not being used 
improperly. After weighing these competing concerns, FinCEN has decided 
that a financial institution or an association of financial 
institutions need only provide notice of its intent to share 
information, rather than a written certification. The final rule 
retains, however, the requirement for a financial institution to submit 
a new notice every year if it intends to continue sharing information. 
FinCEN believes that the minimal burden that an annual notice imposes 
is significantly outweighed by the need to remind financial 
institutions of their need to safeguard information shared under 
section 103.110.
    A financial institution or association of financial institutions, 
prior to sharing information, also must take reasonable steps to verify 
that the institution or association with which it intends to share 
information has filed the requisite notice with FinCEN. The 
verification process is intended to help protect the privacy interests 
of customers of financial institutions by requiring financial 
institutions to take reasonable steps to ensure that such sharing is 
authorized. Under the final rule, a financial institution or an 
association of financial institutions may satisfy the verification 
requirement by confirming that the other institution or association 
appears on a list of financial institutions or associations that have 
filed the requisite notice. FinCEN will make such a list available to 
financial institutions and associations of financial institutions that 
have filed notice with it. FinCEN anticipates that the list will be 
updated on a quarterly basis. In the alternative, a financial 
institution or association may directly contact its counterpart to 
determine whether the requisite notice has been filed. A financial 
institution may confirm that notice has been filed by obtaining a copy 
of the other institution's or association's notice, or by other 
reasonable means, including accepting the representations of the other 
institution that a notice was filed after the most recent list has been 
distributed by FinCEN.
    The terms of the final rule are prospective only. Thus, financial 
institutions that previously have filed certifications with FinCEN 
under the terms of the interim rule will not be required to file 
notices to replace those certifications. Such financial institutions, 
however, will be required to use the notice described in the Appendix 
to subpart H of 31 CFR part 103 when renewing the notice on an annual 
basis.

IV. Section-by-Section Analysis of Final Rule

A. 103.90--Definitions

    Section 103.90 continues to define certain key terms used 
throughout subpart H. The definition of ``money laundering'' has been 
revised to mean an activity criminalized by 18 U.S.C. 1956 or 1957. 
Thus, a transaction conducted with the proceeds of any specified 
unlawful activity listed in section 1956 may constitute money 
laundering for purposes of subpart H. The definition of ``terrorist 
activity'' remains unchanged. Several commenters sought specific 
definitions for the terms ``account'' and ``transaction.'' The term 
``account'' has been defined, based on the meaning given that term by 
section 311 of the Act. The term ``transaction'' has been defined by 
reference to 31 CFR 103.11(ii), with the following exception--a 
transaction for purposes of section 103.100 shall not be a transaction 
conducted through an account. Thus, a financial institution receiving 
an information request under section 103.100 is not required to search 
for and report on transactions through an account.

B. 103.100--Information Sharing Between Federal Law Enforcement 
Agencies and Financial Institutions

    1. Definitions. Paragraph 103.100(a) continues to define the term 
``financial institution,'' for purposes of section 103.100, as any 
financial institution described in 31 U.S.C. 5312(a)(2). Thus, under 
the final rule, FinCEN has the authority to request information 
regarding suspected terrorists or money launderers from any financial 
institution defined in the BSA, notwithstanding that FinCEN has not yet 
extended BSA regulations to all such financial institutions. Although 
all financial institutions should be on notice that FinCEN may contact 
them for information under section 103.100, the initial implementation 
of section 103.100 will involve, as a practical matter, only those 
financial institutions for which FinCEN possesses contact information--
generally speaking, financial institutions that already are subject to 
BSA reporting obligations

[[Page 60583]]

such as the requirement to file suspicious activity reports.
    2. Information requests based on credible evidence concerning 
terrorist activity or money laundering. Paragraph 103.100(b)(1) 
generally states that FinCEN, on behalf of a requesting Federal law 
enforcement agency, may require a financial institution to search its 
records to determine whether the financial institution maintains or has 
maintained accounts for, or has engaged in transactions with, any 
specified individual, entity, or organization. Any request submitted by 
a Federal law enforcement agency to FinCEN must be accompanied by a 
written certification. Such certification must, at a minimum, state 
that each individual, entity, or organization about which the 
requesting agency is seeking information is engaged in, or is 
reasonably suspected based on credible evidence of engaging in, 
terrorist activity or money laundering. The certification also must 
include enough specific identifying information, such as date of birth, 
address, and social security number, that would permit a financial 
institution to differentiate between common or similar names, and must 
further identify an individual at the requesting law enforcement agency 
who will act as a point of contact concerning the request.
    Paragraph 103.100(b)(2) lists all the obligations of a financial 
institution that receives an information request under section 103.100. 
Those obligations are described in subparagraphs 103.100(b)(2)(i)-(v).
    Subparagraph (b)(2)(i) states that upon receiving an information 
request from FinCEN, a financial institution must expeditiously search 
its records to determine whether it maintains or has maintained any 
account for, or has engaged in any transaction with, each individual, 
entity, or organization named in FinCEN's request. An information 
request under section 103.100 is intended to provide law enforcement 
with the means to locate quickly accounts or transactions involving 
suspected terrorists or money launderers; such a request is not 
intended to substitute for a subpoena. Thus, unless the information 
request states otherwise, a financial institution is only required to 
search its records for: (1) Any current account maintained for a named 
suspect; (2) any account maintained for a named suspect during the 
preceding twelve months; and (3) any transaction, other than a 
transaction conducted through an account, conducted by or on behalf of 
a named suspect, or any transmittal of funds conducted in which a named 
suspect was either the transmittor or the recipient, during the 
preceding six months that is required under law or regulation to be 
recorded by the financial institution or is recorded and maintained 
electronically by the institution. The phrase ``on behalf of'' is 
intended to capture transactions that may be conducted by persons 
acting as agents for any named suspect.
    To help ensure that searches are conducted as quickly as possible, 
the final rule directs a financial institution to contact directly the 
requesting Federal law enforcement agency (whose contact information 
will be included in the information request) with any questions 
relating to the scope or terms of the request. However, any matches 
found as a result of information provided to a financial institution 
must be reported back to FinCEN, rather than the requesting law 
enforcement agency, so that FinCEN may provide law enforcement with a 
comprehensive product that may include matching BSA report information.
    Subparagraph (b)(2)(ii) states that a financial institution must 
report to FinCEN the fact of any account or transaction matching the 
information listed on the information request. The information to be 
reported is limited to the name or account number of each individual, 
entity, or organization for which a match was found, as well as any 
Social Security number, date of birth, or other similar identifying 
information that was provided by the individual, entity, or 
organization when an account was opened or a transaction conducted.
    FinCEN anticipates that the conveyance of both information requests 
and responses thereto under section 103.100 will be accomplished, at 
least in the short term, through a combination of conventional 
electronic mail and facsimile transmission. Section 362 of the Act 
requires that FinCEN develop a secure network (the Patriot Act 
Communication System or PACS) for sending and receiving sensitive 
information. As the PACS is further developed, FinCEN will assess 
whether the PACS can and should be applied to section 103.100 requests 
and responses.
    Subparagraph (b)(2)(iii) requires a financial institution to 
designate one person to be the point of contact at the institution 
regarding the request and to receive similar requests for information 
from FinCEN in the future. When requested by FinCEN, a financial 
institution must provide FinCEN with the name, title, mailing address, 
e-mail address, telephone number, and facsimile number of such person, 
in such manner as FinCEN may prescribe. A financial institution that 
has provided FinCEN with contact information must promptly notify 
FinCEN of any changes to such information.
    Subparagraph (b)(2)(iv) contains provisions relating to the use, 
disclosure, and security of an information request. Subparagraph 
(b)(2)(iv)(A) states that a financial institution shall not use an 
information request for any purpose other than to report matching 
information to FinCEN, to determine whether to establish or maintain an 
account, or to engage in a transaction, or to assist the financial 
institution in complying with any requirement of part 103. Thus, for 
example, a financial institution that is required to establish and 
maintain an anti-money laundering program under part 103 may use an 
information request to assist in that effort. In addition, a financial 
institution may share a list of suspects included with an information 
request with a commercial contractor to assist the financial 
institution in complying with the request; in such circumstances, the 
financial institution must take those steps necessary to safeguard the 
confidentiality of the information shared.
    Subparagraph (b)(2)(iv)(B) states that a financial institution may 
not disclose the fact that FinCEN has requested or obtained information 
under section 103.100. As a general matter, Treasury will not treat the 
closing of an account for, or the refusal to open an account for or to 
conduct a transaction with, any individual, entity, or organization 
listed in an information request as a disclosure that is prohibited 
under the terms of subparagraph (b)(2)(iv)(B).
    Subparagraph (c)(2)(iv)(C) states that a financial institution must 
adequately safeguard the confidentiality of information requested from 
FinCEN under section 103.100. A few commenters asked that, in applying 
this provision, FinCEN consider the steps that a financial institution 
currently takes to safeguard customer information in order to comply 
with the relevant provisions of the Gramm-Leach-Bliley Act. In light of 
these comments, the final rule states that its safeguarding 
requirements shall be deemed satisfied to the extent that a financial 
institution applies to information requests those procedures that the 
institution has established to satisfy the requirements of section 501 
of the Gramm-Leach-Bliley Act, codified at 15 U.S.C. 6801, regarding 
the protection of customers' nonpublic personal information.
    Subparagraph (b)(2)(v) states that nothing in section 103.100 shall 
be interpreted to require a financial institution to take, or decline 
to take, any action with respect to an account

[[Page 60584]]

established for, or a transaction engaged in with, a suspected 
terrorist or money launderer. Language also has been added indicating 
that a financial institution is not required to treat an information 
request as continuing in nature (so as to report on future activity), 
unless and to the extent otherwise indicated on the information 
request. Further language has been added to make clear that, unless 
otherwise indicated in the information request, a financial institution 
will not be required to treat the request as a list for purposes of the 
customer identification and verification requirements promulgated under 
section 326 of the Act.
    3. Relation to the Right to Financial Privacy Act and the Gramm-
Leach-Bliley Act. Paragraph 103.100(b)(3) states that the information 
required to be reported to FinCEN in response to an information request 
shall be treated as information required to be reported under Federal 
law, for purposes of the relevant exceptions contained in section 
3413(d) of the Right to Financial Privacy Act, 12 U.S.C. 3413(d), and 
section 502(e)(8) of the Gramm-Leach-Bliley Act, 15 U.S.C. 6802(e)(8).
    4. No effect on law enforcement or regulatory investigations. 
Paragraph 103.100(b)(4) states that nothing in subpart H affects the 
authority of a Federal agency or officer to obtain information directly 
from a financial institution. The information sharing provisions of 
section 103.100 are intended, in part, to provide Federal law 
enforcement with an additional tool to locate quickly on a broad scale 
financial accounts and transactions associated with suspected 
terrorists or money launderers. Such provisions are not intended to 
substitute for or replace any other tool that a Federal law enforcement 
agency may seek to use, including, but not limited to, a direct request 
from a Federal law enforcement agency to a financial institution for 
information.

C. 103.110--Voluntary Information Sharing Among Financial Institutions

    1. Definitions. Paragraph 103.110(a) continues to define key terms 
that are used in section 103.110. The definition of a ``financial 
institution'' for purposes of section 103.110 has been revised to mean 
any financial institution described in 31 U.S.C. 5312(a)(2) that is 
required under 31 CFR part 103 to establish and maintain an anti-money 
laundering program, or is treated under 31 CFR part 103 as having 
satisfied the requirements of 31 U.S.C. 5318(h)(1), unless FinCEN 
specifically determines that a particular class of financial 
institution should not be eligible to share under section 103.110. The 
term ``association of financial institutions'' continues to mean a 
group or organization the membership of which is comprised entirely of 
financial institutions. A few commenters requested that this definition 
be expanded to include groups consisting of both financial institutions 
and non-financial institution affiliates. FinCEN believes that 
Congress's use of the terms ``financial institutions'' and 
``association of financial institutions'' in subsection 314(b) of the 
Act demonstrates its intent to limit that section's information sharing 
provisions to financial institutions. In addition, the expansion of the 
definition of a financial institution for purposes of section 103.110 
should help alleviate any concern that the section is being applied too 
narrowly. Thus, the definition of an association of financial 
associations has not been changed.
    2. Voluntary information sharing among financial institutions. 
Paragraph 103.110(b)(1) continues to state generally that a financial 
institution or an association of financial institutions that complies 
with section 103.110's provisions-specifically, the provisions relating 
to notice, verification, use, disclosure, and security of information-
may share information for the purpose of detecting, identifying, or 
reporting activities involving possible money laundering or terrorist 
activities under the protection of the statutory safe harbor from 
liability.
    Paragraph 103.110(b)(2) continues to describe the manner in which a 
financial institution or association of financial institutions must 
provide notice to FinCEN before sharing information. As explained 
above, the term ``certification'' has been replaced by the term 
``notice'' in the final rule. In addition, several commenters requested 
that FinCEN clarify the application of the notice requirement to 
information sharing among financial institution affiliates and 
subsidiaries. Some commenters requested that the notice requirement not 
apply to information sharing among financial institution affiliates. 
The terms of subsection 314(b) of the Act do not permit FinCEN to waive 
the notice requirement for any group of financial institutions. Thus, 
any financial institution seeking the protection of the statutory safe 
harbor from liability must notify FinCEN of its intent to share 
information with another financial institution, even when sharing 
information with an affiliated financial institution. It should be 
noted that the final rule does not in any way prohibit the sharing of 
information between financial institutions; rather, the rule makes 
clear that if a financial institution wants to share information with 
another financial institution and avail itself of the statutory safe 
harbor from liability, then it must abide by the conditions set forth 
in section 103.110, including providing notice to FinCEN.
    Paragraph 103.110(b)(3) contains new language concerning the 
requirement that a financial institution or an association of financial 
institutions, prior to sharing information, verify that its counterpart 
has filed the requisite notice with FinCEN. As explained above, the 
verification process is intended to help protect the privacy interests 
of customers of financial institutions.
    Paragraph 103.110(b)(4) sets forth the terms for the use, 
disclosure, and security of information shared under section 103.110. 
These terms are, for the most part, identical to the relevant terms 
laid out in the NPRM. One of the changes made in the final rule 
provides that a financial institution or an association of financial 
institutions may use information received under section 103.110, among 
other things, to assist the financial institution in complying with any 
requirement of 31 CFR part 103. Thus, a financial institution that 
receives information under section 103.110 may use such information to 
help establish and maintain a required anti-money laundering program. 
The final rule also contains new language stating that its safeguarding 
requirements shall be deemed satisfied to the extent that a financial 
institution applies to information it receives under section 103.110 
those procedures that the institution has established to satisfy the 
requirements of section 501 of the Gramm-Leach-Bliley Act, codified at 
15 U.S.C. 6801, regarding the protection of customers' nonpublic 
personal information. This latter change is similar to the change made 
to section 103.100 relating to the safeguarding of information requests 
under that section.
    Paragraph 103.110(b)(5) restates the broad protection from 
liability for sharing information under section 103.110 contained in 
subsection 314(b) of the Act. The regulatory restatement does not 
extend the scope of the statutory protection; however, because FinCEN 
recognizes the importance of this statutory protection in the overall 
effort to encourage financial institutions to share information with 
each other, the statutory protection is repeated in the final rule to 
remind financial institutions of its existence. Paragraph 103.110(5) 
also continues to state that the broad protection from liability 
afforded by the statute shall not apply

[[Page 60585]]

to the extent that a financial institution or an association of 
financial institutions fails to comply with the provisions of section 
103.110 relating to notice, verification, and use and security of 
information.
    3. Information sharing between financial institutions and the 
Federal government. Paragraph 103.110(c) provides the procedures that a 
financial institution should follow if, as a result of information 
shared under section 103.110, the institution knows, suspects, or has 
reason to suspect terrorist activity or money laundering. The rule does 
not, however, create a de facto suspicious activity reporting rule for 
all financial institutions that do not currently have such an 
obligation.
    4. No effect on financial institution reporting obligations. 
Paragraph 103.110(d) clarifies that nothing in subpart I of Title 31 of 
the CFR, including, but not limited to, voluntary reporting under 
section 103.110, relieves a financial institution of any obligation it 
may have to file a suspicious activity report pursuant to a regulatory 
requirement, or to otherwise directly contact a Federal agency 
concerning suspected terrorist activity or money laundering.

V. Administrative Matters

A. Regulatory Flexibility Act

    It is hereby certified that this final rule is not likely to have a 
significant economic impact on a substantial number of small entities. 
The initial implementation of section 103.100 generally will involve 
those financial institutions that are subject to suspicious activity 
reporting; most financial institutions subject to suspicious activity 
reporting are larger businesses. Moreover, the burden imposed by the 
requirement that financial institutions search their records for 
accounts for, or transactions with, individuals, entities, or 
organizations engaged in, or reasonably suspected based on credible 
evidence of engaging in, terrorist activity, is not expected to be 
significant, particularly given the changes contained in this final 
rule. Section 103.110 is entirely voluntary on the part of financial 
institutions and no financial institution is required to share 
information with other financial institutions. Accordingly, the 
analysis requirements of the provisions of the Regulatory Flexibility 
Act (5 U.S.C. 601 et seq.) do not apply.

B. Paperwork Reduction Act

    The requirement in section 103.100(c)(2)(ii), concerning reports by 
financial institutions in response to a request from FinCEN on behalf 
of a Federal law enforcement agency, is not a collection of information 
for purposes of the Paperwork Reduction Act. See 5 CFR 1320.4.
    The requirement in section 103.110(b)(2), concerning notice to 
FinCEN that a financial institution intends to engage in information 
sharing, and the accompanying form in the Appendix to subpart H of 31 
CFR part 103 that a financial institution must use to provide such 
notice, do not constitute a collection of information for purposes of 
the Paperwork Reduction Act. See 5 CFR 1320.3(h)(1).
    The collection of information contained in section 103.110(c), 
concerning voluntary reports to the Federal government as a result of 
information sharing among financial institutions, will necessarily 
involve the reporting of a subset of information currently contained in 
a suspicious activity report. The filing of such reports has been 
previously reviewed and approved by the Office of Management and Budget 
(OMB) pursuant to the Paperwork Reduction Act and assigned OMB Control 
No. 1506-0001. An agency may not conduct or sponsor, and a person is 
not required to respond to, a collection of information unless it 
displays a currently valid OMB control number.

C. Executive Order 12866

    This final rule is not a ``significant regulatory action'' for 
purposes of Executive Order 12866. Accordingly, a regulatory assessment 
is not required.

D. Unfunded Mandates Act of 1995 Statement

    Section 202 of the Unfunded Mandates Reform Act of 1995, Pub. L. 
104-4 (Unfunded Mandates Act), March 22, 1995, requires an agency to 
prepare a budgetary impact statement before promulgating a rule that 
includes a Federal mandate that may result in expenditure by state, 
local, and tribal governments, in the aggregate, or by the private 
sector, of $100 million or more in any one year. If a budgetary impact 
statement is required, section 202 of the Unfunded Mandates Act also 
requires an agency to identify and consider a reasonable number of 
regulatory alternatives before promulgating a rule. FinCEN has 
determined that it is not required to prepare a written statement under 
section 202 and has concluded that on balance this notice provides the 
most cost-effective and least burdensome alternative to achieve the 
objectives of the rule.

List of Subjects in 31 CFR Part 103

    Administrative practice and procedure, Authority delegations 
(Government agencies), Banks and banking, Currency, Investigations, Law 
enforcement, Reporting and recordkeeping requirements.

    Dated: September 18, 2002.
James F. Sloan,
Director, Financial Crimes Enforcement Network.

Amendments to the Regulations

    For the reasons set forth above in the preamble, 31 CFR part 103 is 
amended as follows:

PART 103--FINANCIAL RECORDKEEPING AND REPORTING OF CURRENCY AND 
FINANCIAL TRANSACTIONS

    1. The authority citation for part 103 continues to read as 
follows:

    Authority: 12 U.S.C. 1829b and 1951-1959; 31 U.S.C. 5311-5332; 
title III, sec. 312, 314, 352, Pub. L. 107-56, 115 Stat. 307.

    2. Section 103.90 is revised to read as follows:


Sec.  103.90  Definitions.

    For purposes of this subpart, the following definitions apply:
    (a) Money laundering means an activity criminalized by 18 U.S.C. 
1956 or 1957.
    (b) Terrorist activity means an act of domestic terrorism or 
international terrorism as those terms are defined in 18 U.S.C. 2331.
    (c) Account means a formal banking or business relationship 
established to provide regular services, dealings, and other financial 
transactions, and includes, but is not limited to, a demand deposit, 
savings deposit, or other transaction or asset account and a credit 
account or other extension of credit.
    (d) Transaction. (1) Except as provided in paragraph (d)(2) of this 
section, the term ``transaction'' shall have the same meaning as 
provided in Sec.  103.11(ii).
    (2) For purposes of Sec.  103.100, a transaction shall not mean any 
transaction conducted through an account.

    3. Section 103.100 is added to read as follows:


Sec.  103.100  Information sharing between Federal law enforcement 
agencies and financial institutions.

    (a) Definitions. For purposes of this section:
    (1) The definitions in Sec.  103.90 apply.
    (2) Financial institution means any financial institution described 
in 31 U.S.C. 5312(a)(2).

[[Page 60586]]

    (3) Transmittal of funds has the same meaning as provided in Sec.  
103.11(jj).
    (b) Information requests based on credible evidence concerning 
terrorist activity or money laundering.--(1) In general. A Federal law 
enforcement agency investigating terrorist activity or money laundering 
may request that FinCEN solicit, on the investigating agency's behalf, 
certain information from a financial institution or a group of 
financial institutions. When submitting such a request to FinCEN, the 
Federal law enforcement agency shall provide FinCEN with a written 
certification, in such form and manner as FinCEN may prescribe. At a 
minimum, such certification must: state that each individual, entity, 
or organization about which the Federal law enforcement agency is 
seeking information is engaged in, or is reasonably suspected based on 
credible evidence of engaging in, terrorist activity or money 
laundering; include enough specific identifiers, such as date of birth, 
address, and social security number, that would permit a financial 
institution to differentiate between common or similar names; and 
identify one person at the agency who can be contacted with any 
questions relating to its request. Upon receiving the requisite 
certification from the requesting Federal law enforcement agency, 
FinCEN may require any financial institution to search its records to 
determine whether the financial institution maintains or has maintained 
accounts for, or has engaged in transactions with, any specified 
individual, entity, or organization.
    (2) Obligations of a financial institution receiving an information 
request.--(i) Record search. Upon receiving an information request from 
FinCEN under this section, a financial institution shall expeditiously 
search its records to determine whether it maintains or has maintained 
any account for, or has engaged in any transaction with, each 
individual, entity, or organization named in FinCEN's request. A 
financial institution may contact the Federal law enforcement agency 
named in the information request provided to the institution by FinCEN 
with any questions relating to the scope or terms of the request. 
Except as otherwise provided in the information request, a financial 
institution shall only be required to search its records for:
    (A) Any current account maintained for a named suspect;
    (B) Any account maintained for a named suspect during the preceding 
twelve months; and
    (C) Any transaction, as defined by Sec.  103.90(d), conducted by or 
on behalf of a named suspect, or any transmittal of funds conducted in 
which a named suspect was either the transmittor or the recipient, 
during the preceding six months that is required under law or 
regulation to be recorded by the financial institution or is recorded 
and maintained electronically by the institution.
    (ii) Report to FinCEN. If a financial institution identifies an 
account or transaction identified with any individual, entity, or 
organization named in a request from FinCEN, it shall report to FinCEN, 
in the manner and in the time frame specified in FinCEN's request, the 
following information:
    (A) The name of such individual, entity, or organization;
    (B) The number of each such account, or in the case of a 
transaction, the date and type of each such transaction; and
    (C) Any Social Security number, taxpayer identification number, 
passport number, date of birth, address, or other similar identifying 
information provided by the individual, entity, or organization when 
each such account was opened or each such transaction was conducted.
    (iii) Designation of contact person. Upon receiving an information 
request under this section, a financial institution shall designate one 
person to be the point of contact at the institution regarding the 
request and to receive similar requests for information from FinCEN in 
the future. When requested by FinCEN, a financial institution shall 
provide FinCEN with the name, title, mailing address, e-mail address, 
telephone number, and facsimile number of such person, in such manner 
as FinCEN may prescribe. A financial institution that has provided 
FinCEN with contact information must promptly notify FinCEN of any 
changes to such information.
    (iv) Use and security of information request. (A) A financial 
institution shall not use information provided by FinCEN pursuant to 
this section for any purpose other than:
    (1) Reporting to FinCEN as provided in this section;
    (2) Determining whether to establish or maintain an account, or to 
engage in a transaction; or
    (3) Assisting the financial institution in complying with any 
requirement of this part.
    (B)(1) A financial institution shall not disclose to any person, 
other than FinCEN or the Federal law enforcement agency on whose behalf 
FinCEN is requesting information, the fact that FinCEN has requested or 
has obtained information under this section, except to the extent 
necessary to comply with such an information request.
    (2) Notwithstanding paragraph (b)(2)(iv)(B)(1) of this section, a 
financial institution authorized to share information under Sec.  
103.110 may share information concerning an individual, entity, or 
organization named in a request from FinCEN in accordance with the 
requirements of such section. However, such sharing shall not disclose 
the fact that FinCEN has requested information concerning such 
individual, entity, or organization.
    (C) Each financial institution shall maintain adequate procedures 
to protect the security and confidentiality of requests from FinCEN for 
information under this section. The requirements of this paragraph 
(b)(2)(iv)(C) shall be deemed satisfied to the extent that a financial 
institution applies to such information procedures that the institution 
has established to satisfy the requirements of section 501 of the 
Gramm-Leach-Bliley Act (15 U.S.C. 6801), and applicable regulations 
issued thereunder, with regard to the protection of its customers' 
nonpublic personal information.
    (v) No other action required. Nothing in this section shall be 
construed to require a financial institution to take any action, or to 
decline to take any action, with respect to an account established for, 
or a transaction engaged in with, an individual, entity, or 
organization named in a request from FinCEN, or to decline to establish 
an account for, or to engage in a transaction with, any such 
individual, entity, or organization. Except as otherwise provided in an 
information request under this section, such a request shall not 
require a financial institution to report on future account opening 
activity or transactions or to treat a suspect list received under this 
section as a government list for purposes of section 326 of Public Law 
107-56.
    (3) Relation to the Right to Financial Privacy Act and the Gramm-
Leach-Bliley Act. The information that a financial institution is 
required to report pursuant to paragraph (b)(2)(ii) of this section is 
information required to be reported in accordance with a Federal 
statute or rule promulgated thereunder, for purposes of subsection 
3413(d) of the Right to Financial Privacy Act (12 U.S.C. 3413(d)) and 
subsection 502(e)(8) of the Gramm-Leach-Bliley Act (15 U.S.C. 
6802(e)(8)).
    (4) No effect on law enforcement or regulatory investigations. 
Nothing in this subpart affects the authority of a Federal agency or 
officer to obtain

[[Page 60587]]

information directly from a financial institution.

    4. Section 103.110 is revised to read as follows:


Sec.  103.110  Voluntary information sharing among financial 
institutions.

    (a) Definitions. For purposes of this section:
    (1) The definitions in Sec.  103.90 apply.
    (2) Financial institution. (i) Except as provided in paragraph 
(a)(2)(ii) of this section, the term ``financial institution'' means 
any financial institution described in 31 U.S.C. 5312(a)(2) that is 
required under this part to establish and maintain an anti-money 
laundering program, or is treated under this part as having satisfied 
the requirements of 31 U.S.C. 5318(h)(1).
    (ii) For purposes of this section, a financial institution shall 
not mean any institution included within a class of financial 
institutions that FinCEN has designated as ineligible to share 
information under this section.
    (3) Association of financial institutions means a group or 
organization the membership of which is comprised entirely of financial 
institutions as defined in paragraph (a)(2) of this section.
    (b) Voluntary information sharing among financial institutions.--
(1) In general. Subject to paragraphs (b)(2), (b)(3), and (b)(4) of 
this section, a financial institution or an association of financial 
institutions may, under the protection of the safe harbor from 
liability described in paragraph (b)(5) of this section, transmit, 
receive, or otherwise share information with any other financial 
institution or association of financial institutions regarding 
individuals, entities, organizations, and countries for purposes of 
identifying and, where appropriate, reporting activities that the 
financial institution or association suspects may involve possible 
terrorist activity or money laundering.
    (2) Notice requirement. A financial institution or association of 
financial institutions that intends to share information as described 
in paragraph (b)(1) of this section shall submit to FinCEN a notice 
described in Appendix A to this subpart H. Each notice provided 
pursuant to this paragraph (b)(2) shall be effective for the one year 
period beginning on the date of the notice. In order to continue to 
engage in the sharing of information after the end of the one year 
period, a financial institution or association of financial 
institutions must submit a new notice. Completed notices may be 
submitted to FinCEN by accessing FinCEN's Internet Web site, http://www.treas.gov/fincen, and entering the appropriate information as 
directed, or, if a financial institution does not have Internet access, 
by mail to: FinCEN, P.O. Box 39, Mail Stop 100, Vienna, VA 22183.
    (3) Verification requirement. Prior to sharing information as 
described in paragraph (b)(1) of this section, a financial institution 
or an association of financial institutions must take reasonable steps 
to verify that the other financial institution or association of 
financial institutions with which it intends to share information has 
submitted to FinCEN the notice required by paragraph (b)(2) of this 
section. A financial institution or an association of financial 
institutions may satisfy this paragraph (b)(3) by confirming that the 
other financial institution or association of financial institutions 
appears on a list that FinCEN will periodically make available to 
financial institutions or associations of financial institutions that 
have filed a notice with it, or by confirming directly with the other 
financial institution or association of financial institutions that the 
requisite notice has been filed.
    (4) Use and security of information. (i) Information received by a 
financial institution or an association of financial institutions 
pursuant to this section shall not be used for any purpose other than:
    (A) Identifying and, where appropriate, reporting on money 
laundering or terrorist activities;
    (B) Determining whether to establish or maintain an account, or to 
engage in a transaction; or
    (C) Assisting the financial institution in complying with any 
requirement of this part.
    (ii) Each financial institution or association of financial 
institutions that engages in the sharing of information pursuant to 
this section shall maintain adequate procedures to protect the security 
and confidentiality of such information. The requirements of this 
paragraph (b)(4)(ii) shall be deemed satisfied to the extent that a 
financial institution applies to such information procedures that the 
institution has established to satisfy the requirements of section 501 
of the Gramm-Leach-Bliley Act (15 U.S.C. 6801), and applicable 
regulations issued thereunder, with regard to the protection of its 
customers' nonpublic personal information.
    (5) Safe harbor from certain liability.--(i) In general. A 
financial institution or association of financial institutions that 
shares information pursuant to paragraph (b) of this section shall be 
protected from liability for such sharing, or for any failure to 
provide notice of such sharing, to an individual, entity, or 
organization that is identified in such sharing, to the full extent 
provided in subsection 314(b) of Public Law 107-56.
    (ii) Limitation. Paragraph (b)(5)(i) of this section shall not 
apply to a financial institution or association of financial 
institutions to the extent such institution or association fails to 
comply with paragraphs (b)(2), (b)(3), or (b)(4) of this section.
    (c) Information sharing between financial institutions and the 
Federal Government. If, as a result of information shared pursuant to 
this section, a financial institution knows, suspects, or has reason to 
suspect that an individual, entity, or organization is involved in, or 
may be involved in terrorist activity or money laundering, and such 
institution is subject to a suspicious activity reporting requirement 
under this part or other applicable regulations, the institution shall 
file a Suspicious Activity Report in accordance with those regulations. 
In situations involving violations requiring immediate attention, such 
as when a reportable violation involves terrorist activity or is 
ongoing, the financial institution shall immediately notify, by 
telephone, an appropriate law enforcement authority and financial 
institution supervisory authorities in addition to filing timely a 
Suspicious Activity Report. A financial institution that is not subject 
to a suspicious activity reporting requirement is not required to file 
a Suspicious Activity Report or otherwise to notify law enforcement of 
suspicious activity that is detected as a result of information shared 
pursuant to this section. Such a financial institution is encouraged, 
however, to voluntarily report such activity to FinCEN.
    (d) No effect on financial institution reporting obligations. 
Nothing in this subpart affects the obligation of a financial 
institution to file a Suspicious Activity Report pursuant to subpart B 
of this part or any other applicable regulations, or to otherwise 
contact directly a Federal agency concerning individuals or entities 
suspected of engaging in terrorist activity or money laundering.

    5. Appendix A is added to subpart H to read as follows:

Appendix A to subpart H--Notice for Purposes of Subsection 314(b) of 
the USA Patriot Act and 31 CFR 103.110

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[[Page 60588]]

[GRAPHIC] [TIFF OMITTED] TR26SE02.014

[FR Doc. 02-24143 Filed 9-25-02; 8:45 am]
BILLING CODE 4810-02-C?