[Federal Register Volume 68, Number 227 (Tuesday, November 25, 2003)]
[Proposed Rules]
[Pages 66299-66305]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 03-29289]



  Federal Register / Vol. 68, No. 227 / Tuesday, November 25, 2003 / 
Proposed Rules  

[[Page 66299]]


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DEPARTMENT OF THE TREASURY

31 CFR Part 103


Imposition of Special Measures Against Burma as a Jurisdiction of 
Primary Money Laundering Concern

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

ACTION: Notice of proposed rulemaking.

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SUMMARY: On November 18, 2003, the Secretary of the Treasury designated 
Burma as a jurisdiction of primary money laundering concern pursuant to 
31 U.S.C. 5318A, as added by section 311 of the Uniting and 
Strengthening America by Providing Appropriate Tools Required to 
Intercept and Obstruct Terrorism (USA PATRIOT) Act of 2001. The 
Department of the Treasury, acting through FinCEN, is issuing this 
proposed rule to impose special measures against this jurisdiction.

DATES: Written comments on the notice of proposed rulemaking must be 
submitted on or before December 26, 2003.

ADDRESSES: It is preferable for comments to be submitted by electronic 
mail because paper mail in the Washington, DC area may be delayed. 
Comments submitted by electronic mail may be sent to 
[email protected] with the caption in the body of the text, 
``ATTN: Section 311--Designation of Burma.'' Comments also may be 
submitted by paper mail to FinCEN, PO Box 39, Vienna, VA 22183, Attn: 
Section 311 Special Measure Regulation (Burma). Please submit comments 
by one method only. Comments may be inspected at FinCEN between 10 a.m. 
and 4 p.m., in the FinCEN reading room in Washington, DC. Persons 
wishing to inspect the comments submitted must request an appointment 
by telephoning (202) 354-6400 (not toll-free number).

FOR FURTHER INFORMATION CONTACT: Office of the General Counsel, 
Department of the Treasury, (202) 622-1927; the Executive Office for 
Terrorist Financing and Financial Crimes, (Treasury), (202) 622-0470; 
or the Office of Chief Counsel (FinCEN), (703) 905-3590 (not toll-free 
numbers).

SUPPLEMENTARY INFORMATION: The Secretary of the Treasury has designated 
Burma as a jurisdiction of primary money laundering concern under 31 
U.S.C. 5318A, as added by section 311(a) of the USA PATRIOT Act (Pub. 
L. 107-56).
    Treasury, acting through FinCEN, is also proposing the imposition 
of special measures authorized by section 5318A(b)(5). The special 
measures imposed under this section would generally prohibit certain 
U.S. financial institutions from establishing, maintaining, 
administering, or managing correspondent or payable-through accounts in 
the United States for, or on behalf of, Burmese financial institutions, 
unless (as explained below) operation of those accounts is not 
prohibited by Executive Order 13310 of July 28, 2003, and the Burma-
related activities of such accounts are solely to affect transactions 
that are exempt from, or licensed pursuant to, Executive Order 13310. 
This prohibition extends to correspondent or payable-through accounts 
maintained for other foreign banks when such accounts are used by the 
foreign bank to provide financial services to a Burmese financial 
institution indirectly.
    Additionally, the Secretary designated two Burmese financial 
institutions, Myanmar Mayflower Bank and Asia Wealth Bank, as financial 
institutions of primary money laundering concern. By a separate 
proposed rule, Treasury and FinCEN are proposing the imposition of the 
fifth special measure as well. This special measure would prohibit 
certain U.S. financial institutions from establishing, maintaining, 
administering, or managing correspondent or payable-through accounts 
for, or on behalf of, Myanmar Mayflower Bank or Asia Wealth Bank, 
notwithstanding any exemption from, or license issued pursuant to 
Executive Order 13310.

I. Background

A. Section 311 of the USA PATRIOT Act

    On October 26, 2001, the President signed the Act into law. Title 
III of the Act amends the anti-money laundering provisions of the Bank 
Secrecy Act (BSA) (codified in subchapter II of chapter 53 of title 31, 
United States Code) to promote the prevention, detection, and 
prosecution of international money laundering and the financing of 
terrorism.
    Section 311 of the Act (Section 311) added section 5318A to the 
BSA, granting the Secretary of the Treasury (Secretary) authority to 
designate a foreign jurisdiction, institution(s), class(es) of 
transactions, or type(s) of account(s) to be of ``primary money 
laundering concern,'' and to require U.S. financial institutions to 
take certain ``special measures'' against the primary money laundering 
concern.
    Section 311 identifies factors to consider as well as agencies and 
departments to consult before the Secretary may designate a primary 
money laundering concern. The statute also provides similar procedures, 
i.e., factors and consultation requirements, for selecting specific 
special measures against the designee.
    Taken as a whole, Section 311 provides Treasury with a range of 
options that can be adapted to target most effectively specific money 
laundering and terrorist financing concerns. These options give the 
Secretary the authority to bring additional and useful pressure on 
those jurisdictions and institutions that pose money laundering 
threats. Through the imposition of various special measures, the 
Secretary can obtain more information about the concerned 
jurisdictions, institutions, transactions, and accounts; more 
effectively monitor the respective institutions, transactions, and 
accounts; and/or protect U.S. financial institutions from involvement 
with jurisdictions, institutions, transactions, or accounts that pose a 
money laundering concern.
1. Required Consultations and Statutory Considerations To Be Made Prior 
To Designating a Foreign Jurisdiction To Be of Primary Money Laundering 
Concern
    Before making a finding that reasonable grounds exist for 
concluding that a jurisdiction is of primary money laundering concern, 
the Secretary is required to consult with both the Secretary of State 
and the Attorney General.
    In addition to these consultations, the Secretary is required by 
statute to consider ``such information as the Secretary determines to 
be relevant, including the following potentially relevant factors,'' 
when designating a foreign jurisdiction:
    [sbull] Evidence that organized criminal groups, international 
terrorists, or both, have transacted business within the designated 
jurisdiction;
    [sbull] The extent to which the jurisdiction or financial 
institutions operating in the jurisdiction offer bank secrecy or 
special regulatory advantages to nonresidents or nondomiciliaries of 
the jurisdiction;
    [sbull] The substance and quality of administration of the bank 
supervisory and counter-money laundering laws of the jurisdiction;
    [sbull] The relationship between the volume of financial 
transactions occurring in the jurisdiction and the size of the economy 
of the jurisdiction;
    [sbull] The extent to which the jurisdiction is characterized as an 
offshore banking or secrecy haven by credible international 
organizations or multilateral expert groups;

[[Page 66300]]

    [sbull] Whether the United States has a mutual legal assistance 
treaty with the jurisdiction, and the experience of United States law 
enforcement and regulatory officials in obtaining information about 
transactions originating in, or routed through or to, such 
jurisdiction; and
    [sbull] The extent to which the jurisdiction is characterized by 
high levels of official or institutional corruption.
    Thus, a designation is based on consideration of the relevant facts 
and factors, in conjunction with a consultation process, which leads to 
a decision by the Secretary that there are reasonable grounds to 
conclude that the jurisdiction is of primary money laundering concern.
2. Imposition of Special Measures
    If the Secretary determines that a foreign jurisdiction is of 
primary money laundering concern, the Secretary must determine the 
appropriate special measure(s) to address the specific money laundering 
risks. Section 311 provides a range of special measures that can be 
imposed, individually, jointly, in any combination, and in any 
sequence.\1\
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    \1\ Available special measures include requiring: (1) 
Recordingkeeping and reporting of certain financial transactions; 
(2) collection of information relating to beneficial ownership; (3) 
collection of information relating to certain payable-through 
accounts; (4) collection of information relating to certain 
correspondent accounts; and (5) prohibition or conditions on the 
opening or maintaining of correspondent or payable-through accounts; 
31 U.S.C. 5318A(b)(1)-(5). For a complete discussion of the range of 
possible countermeasures, see 68 FR 18917 (April 17, 2003) 
(proposing to impose special measures against Nauru).
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    The Secretary's imposition of special measures follows procedures 
similar to those for designations, but carries with it additional 
consultations to be made and factors to consider. The statute requires 
the Secretary to consult with appropriate agencies and other interested 
parties \2\ and to consider the following specific factors:
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    \2\ Section 5318A(a)(4)(A) requires the Secretary to consult 
with the Chairman of the Board of Governors of the Federal Reserve, 
any other appropriate Federal banking agency, the Secretary of 
State, the Securities and Exchange Commission (SEC), the Commodity 
Future Trading Commission (CFTC), the National Credit Union 
Administration (NCUA), and, in the sole discretion of the 
Sectretary, ``such other agencies and interested parties as the 
Secretary may find to be appropriate.'' The consultation process 
must also include the Attorney General and the Secretary of State if 
the Secretary is considering prohibiting or imposing conditions on 
domestic financial institutions maintaining correspondent account 
relationships with the disignated jurisdiction.
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    [sbull] Whether similar action has been or is being taken by other 
nations or multilateral groups;
    [sbull] Whether the imposition of any particular special measure 
would create a significant competitive disadvantage, including any 
undue cost or burden associated with compliance, for financial 
institutions organized or licensed in the United States;
    [sbull] The extent to which the action or the timing of the action 
would have a significant adverse systemic impact on the international 
payment, clearance, and settlement system, or on legitimate business 
activities involving the particular jurisdiction; and
    [sbull] The effect of the action on United States national security 
and foreign policy.
3. Procedures for Imposing Special Measures
    In this proposed rulemaking, the Secretary seeks to impose the 
fifth special measure (31 U.S.C. 5318A(b)(5)) against Burma. This 
special measure may only be imposed through the issuance of a 
regulation.

B. Burma

    Burma (also known as Myanmar) has no effective anti-money 
laundering controls in place. As a result, in June 2001 Burma was 
designated as a Non-Cooperative Country or Territory (NCCT) by the 
Financial Action Task Force (FATF) \3\ for its lack of basic anti-money 
laundering provisions and weak oversight of the banking sector. 
Following the designation by the FATF, in April 2002, FinCEN issued an 
advisory to U.S. financial institutions to give enhanced scrutiny to 
all transactions originating in or routed to or through Burma, or 
involving entities organized or domiciled, or persons maintaining 
accounts, in Burma. Deficiencies identified by FATF and the FinCEN 
advisory included:
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    \3\ For further informaiton on the FATF go to http://www.fatf-gafi.org.
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    [sbull] Burma lacks a basic set of anti-money laundering laws and 
regulations.
    [sbull] Money laundering is not a criminal offense for crimes other 
than drug trafficking in Burma.
    [sbull] The Burmese Central Bank has no anti-money laundering 
regulations for financial institutions.
    [sbull] Banks licensed by Burma are not legally required to obtain 
or maintain identificaiton information about their customers.
    [sbull] Banks licensed by Burma are not required to maintain 
transaction records of customer accounts.
    [sbull] Burma does not require financial institutions to report 
suspicious transactions.
    [sbull] Burma has significant obstacles to international co-
cooperation by judicial authorities.
    In June 2002, Burma responded to this international pressure by 
enacting an anti-money laundering law that purportedly addresses some 
of these deficiencies. The necessary regulations required for its 
effective implementation, however, are not in place. As a result, the 
Burmese anti-money laundering law is ineffective and unenforceable, and 
cannot be regarded as effectively remedying any of the identified 
deficiencies. Due to Burma's lack of progress, the FATF called upon its 
member jurisdictions to impose additional countermeasures on Burma as 
of November 3, 2003.
    The United States continues to recognize that Burma is a haven for 
international drug trafficking. On January 31, 2003, the President also 
signed Presidential Determination No. 2003-14, identifying Burma as a 
major illicit drug producing and/or drug transiting country pursuant to 
section 706(1) of the Foreign Relations Authorization Act, Fiscal Year 
2003 (Pub. L. 107-228) and as a country that has failed demonstrably 
during the previous twelve months to adhere to its obligations under 
international counter-narcotics agreements and take the measures set 
forth in section 489(a)(1) of the Foreign Assistance Act of 1961, as 
amended (FAA). In addition, this past year Burma continued to be named 
as a major money laundering country. A major money laundering country 
is defined by statute as one ``whose financial institutions engage in 
currency transactions including significant amounts of proceeds from 
international narcotics trafficking.'' FAA section 481(e)(7).

C. Economic Sanctions

    On July 28, 2003, the President signed both the Burmese Freedom and 
Democracy Act of 2003 and Executive Order 13310, imposing economic 
sanctions on Burma. These sanctions generally include: (1) A ban on the 
exportation or reexportation, directly or indirectly, of financial 
services to Burma; (2) the blocking of property and interests in 
property of the State Peace and Development Council of Burma and three 
state-owned foreign trade banks that are in the United States or in the 
possession or control of U.S. persons; and (3) a ban on the importation 
of Burmese goods into the United States. The new sanctions have frozen 
hundreds of thousands of dollars of assets and have disrupted an 
already weak economy, especially in the important garment sector where 
many firms have closed or moved outside of Burma.

[[Page 66301]]

    Executive Order 13310 prohibits broadly the provision of financial 
services to Burma from the United States or by a U.S. person, subject 
to limited exceptions.\4\ Since the President signed the Order, 
however, Treasury has issued several licenses to permit transactions 
with Burma for certain specified purposes. For example, Treasury issued 
licenses authorizing transactions for the conduct of the official 
business of the United States Government, the United Nations, the World 
Bank, and the International Monetary Fund, and non-commercial personal 
remittances of up to $300 per household per quarter. The exemptions and 
licenses reflect the judgment of the United States that certain 
transactions are necessary and appropriate, even within the framework 
of this sanctions regime.
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    \4\ For example, the prohibition does not extend to transacitons 
relating to certain contracts entered into prior to May 21, 1997. 
See Executive Order 13310, Sec.  13.
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D. The Proposed Section 311 Special Measures

    The proposed imposition of Section 311 special measures reinforces 
the existing restrictions on transactions with Burma that are outlined 
above. Although they are similar in their effect, the proposed Section 
311 special measures differ in certain respects and serve distinct 
policy goals. First, the proposed Section 311 special measures are 
potentially broader than the existing sanctions in at least one 
respect--they would apply to all foreign branches of Burmese financial 
institutions. Second, the purposes served by the Section 311 action 
differ markedly from the purposes of the economic sanctions described 
above. This action under Section 311 is premised on the Secretary's 
determination that Burma poses an unacceptable risk of money laundering 
and other financial crimes, due to its failure to implement an 
effective anti-money laundering regime. The goals of this action 
include protecting the U.S. financial system and encouraging Burma to 
make the necessary changes to its anti-money laundering regime. The 
existing sanctions pursuant to Executive Order 13310, on the other 
hand, were imposed for different reasons, in particular to take 
additional steps with respect to the government of Burma's continued 
repression of the democratic opposition.
    These underlying purposes for the designation of Burma fuel another 
intended consequence, namely, to encourage other jurisdictions and 
financial institutions to take similar steps to cut off Burma from the 
international financial system due to the unacceptable risk of money 
laundering. In addition to stemming the flow of illicit funds from 
Burma into the United States, the act of naming Burma publicly and 
formally denying them access to the U.S. financial system is an 
important statement to the rest of the world about the need for caution 
in financial dealings with Burma and the need for reform.
    Next, this action fulfills an important role of the United States 
in supporting the multilateral effort to encourage Burma to implement 
effective anti-money laundering controls. The FATF has called on all 
members to impose additional countermeasures as a result of Burma's 
failure to address its money laundering deficiencies. The assessment of 
Section 311 special measures, premised squarely on the absence of money 
laundering controls, fulfills this obligation in a way that the 
existing sanctions cannot.
    Finally, the proposed Section 311 special measures incorporate the 
exemptions from, and licenses issued pursuant to, Executive Order 
13310. Thus, U.S. financial institutions may maintain otherwise 
prohibited correspondent account relationships so long as the 
maintenance of such accounts is not prohibited by E.O. 13310 and 
provided that the only transactions conducted on behalf of Burmese 
financial institutions are those that are otherwise permissible under 
the existing sanctions regime. The policy of allowing certain 
transactions under the Executive Order should not be undermined by 
Section 311 special measures. However, Burma has been designated under 
Section 311 of the Act due to inadequate anti-money laundering 
controls, and the fact that the overarching purpose for a transaction 
is permissible under the Executive Order does not itself reduce the 
risk of money laundering. Therefore, while the exemptions and licenses 
are incorporated into the proposed Section 311 special measures, U.S. 
financial institutions processing such transactions must still conduct 
enhanced scrutiny to guard against the flow of illicit proceeds.

II. Designation of Burma as a Jurisdiction of Primary Money Laundering 
Concern

    Based upon a review and analysis of relevant information, 
consultations with relevant agencies and departments, and a 
consideration of the factors outlined above, the Secretary has 
determined that Burma is a jurisdiction of primary money laundering 
concern. See the notice published elsewhere in this separate part.
    The Secretary has found Burma to be a jurisdiction of primary money 
laundering concern due to a number of factors, including: (1) 
Inadequate anti-money laundering controls; and (2) lack of cooperation 
with U.S. law enforcement agencies in criminal matters.
    As provided by Section 311, the Secretary also considered the 
following:

1. Evidence That Organized Criminal Groups, International Terrorists, 
or Both, Have Transacted Business in That Jurisdiction

    As set forth in the accompanying Section 311 designation of the two 
Burmese banks, Myanmar Mayflower Bank and Asia Wealth Bank,\5\ the 
Secretary has information that specific financial institutions within 
Burma are essentially controlled by and used to facilitate money 
laundering for organized drug trafficking organizations such as the 
United Wa State Army \6\ and members of the Kokang ethnic group. The 
Burmese government has failed to take any regulatory or enforcement 
action against these financial institutions, despite their well-known 
criminal links. Additionally, there is evidence of activity within 
Burma involving the counterfeiting of U.S. currency. This activity is 
believed to be linked to Burmese government officials, and the Burmese 
government has failed to cooperate with U.S. law enforcement on the 
matter.
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    \5\ See the notice published in today's edition of the Federal 
Register.
    \6\ The United States as designated the United Wa State Army as 
significant narcotics traffickers under the Foreign Narcotics 
Kingpin Designation Act (the ``Kingpin Act''), 21 U.S.C. 1901-1908, 
8 U.S.C 1182.
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2. The Extent to Which That Jurisdiction or Financial Institutions 
Operating in That Jurisdiction Offer Bank Secrecy or Special Regulatory 
Advantages to Non-Residents or Nondomiciliaries of That Jurisdiction

    There are no explicit secrecy provisions within Burmese law. Burma 
does not have an offshore sector catering to foreign investors or 
depositors, and the Burmese anti-money laundering law contains customer 
identification and recordkeeping requirements. However, as noted above, 
this law cannot be enforced absent implementing regulations, which 
Burma has failed to issue. Thus, as a practical matter, the laws that 
would give rise to effective anti-money laundering controls and 
transparency are unenforceable.

[[Page 66302]]

3. The Substance and Quality of Administration of the Bank Supervisory 
and Counter-Money Laundering Law of That Jurisdiction

    In addition to the deficiencies discussed above, the Central Bank 
of Burma--which is responsible for the regulation and supervision of 
all Burmese financial institutions--has failed to include anti-money 
laundering provisions within its regulations for financial 
institutions.

4. The Relationship Between the Volume of Financial Transactions 
Occurring in That Jurisdiction and the Size of the Economy of the 
Jurisdiction

    Assessment of this factor is difficult due to difficulties in 
estimating the overall size of the Burmese economy. Official data is 
unreliable, and the black market and border trade likely comprise a 
significant portion of the overall economy.

5. The Extent to Which That Jurisdiction Is Characterized as an 
Offshore Banking or Secrecy Haven by Credible International 
Organizations or Multilateral Expert Groups

    As noted above, in June 2001, the FATF identified Burma as non-
cooperative in international efforts to fight money laundering due to 
significant deficiencies in its anti-money laundering system. In 
October 2003, due to Burma's continuing failure to address these 
deficiencies, the FATF called upon its members to impose additional 
countermeasures on Burma as of November 3, 2003.

6. Whether the United States Has a Mutual Legal Assistance Treaty With 
That Jurisdiction, and the Experience of United States Law Enforcement 
Officials in Obtaining Information About Transactions Originating in or 
Routed Through or to Such Jurisdiction

    The U.S. does not have a mutual legal assistance treaty with Burma. 
Additionally, U.S. law enforcement indicates that they rarely gain 
access to bank-related information pursuant to investigations. 
Moreover, as previously indicated, U.S. law enforcement has received no 
cooperation regarding counterfeiting investigations involving Burma.

7. The Extent to Which That Jurisdiction Is Characterized by High 
Levels of Official or Institutional Corruption

    Transparency International--the leading international non-
governmental organization devoted to curbing corruption--has ranked 
Burma as the fourth most corrupt jurisdiction out of 133 jurisdictions 
assessed worldwide.

III. Imposition of Special Measures

    As a result of the designation of Burma as a jurisdiction of 
primary money laundering concern, and based upon consultations \7\ and 
the consideration of all relevant factors, the Secretary has determined 
that grounds exist for the imposition of the special measures 
authorized by section 5318A(b)(5). Thus, the proposed rulemaking would 
prohibit covered financial institutions from establishing, maintaining, 
administering, or managing in the United States any correspondent or 
payable-through account for, or on behalf of, a Burmese financial 
institution. This prohibition would extend to any correspondent or 
payable-through account maintained in the United States for any foreign 
bank if the account is used by the foreign bank to provide banking 
services indirectly to a Burmese financial institution. Financial 
institutions covered by this proposed rule that obtain knowledge that 
this is occurring would be required to ensure that any such account no 
longer is used to provide such services, including, where necessary, 
terminating the correspondent relationship in the manner set forth in 
this rulemaking. Other than with respect to Myanmar Mayflower Bank and 
Asia Wealth Bank, the proposed rule does, however, allow U.S. financial 
institutions to maintain correspondent accounts otherwise prohibited by 
this rule if such accounts are permitted to be maintained pursuant to 
Executive Order 13310 and the Burma-related activity of those accounts 
is solely for the purpose of conducting transactions that are exempt 
from, or authorized by regulation, order, directive, or license issued 
pursuant to, Executive Order 13310.
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    \7\ For purposes of this action, the required consultation with 
the Federal functional regulators was performed at the staff level.
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    In imposing this special measure, the Secretary has considered the 
following pursuant to section 5318A(a)(4)(b):

1. Similar Actions Have Been or Will be Taken by Other Nations or 
Multilateral Groups Against Burma Generally

    In June 2001, the FATF designated Burma as an NCCT, resulting in 
FATF members issuing advisories to their financial sectors recommending 
enhanced scrutiny of transactions involving Burma. In April 2002 FinCEN 
issued an advisory notifying U.S. financial institutions that they 
should accord enhanced scrutiny with respect to transactions and 
accounts involving Burma. In October 2003, FATF called upon its 33 
members to take additional countermeasures with respect to Burma as of 
November 3, 2003. Imposition of the fifth special measure on Burma is 
consistent with this call for additional countermeasures and forms part 
of an international effort to protect the financial system. Based on 
informal discussions and the past practices of the FATF membership, the 
majority of FATF members are expected to take countermeasures, 
including all of the Group of Seven countries. The countermeasures 
imposed by such FATF members will likely include imposition of 
additional reporting requirements, issuance of additional advisories, 
shifting the burden for reporting obligations, and/or restrictions on 
the licensing of Burmese financial institutions.

2. Imposition of the Fifth Special Measure Would Not Create a 
Significant Competitive Disadvantage, Including Any Undue Cost or 
Burden Associated With Compliance, for Financial Institutions Organized 
or Licensed in the United States

    U.S. financial institutions are already prohibited from providing 
financial services to Burma, unless such services are exempted or 
licensed. The imposition of the fifth special measure potentially 
imposes a broader prohibition than currently exists, because it would 
preclude maintaining correspondent accounts for foreign branches of 
Burmese financial institutions. However, on balance, it is unlikely 
that the imposition of the fifth special measure will create any 
significant additional costs or place U.S. financial institutions at a 
competitive disadvantage. In fact, Treasury's action is intended to 
encourage other jurisdictions and financial institutions to take 
similar steps to cut off Burma from the international financial system, 
which would further minimize any potential competitive disadvantage for 
U.S. financial institutions.
    Moreover, the proposed rule would not itself require U.S. financial 
institutions to perform additional due diligence on their existing 
foreign bank correspondent account customers beyond what is already 
required under existing regulations.

3. The Proposed Action or the Timing of the Action Will Not Have a 
Significant Adverse Systemic Impact on the International Payment, 
Clearance, and Settlement System, or on Legitimate Business Activities 
Involving the Jurisdiction

    Given the preexisting sanctions on Burma, it is unlikely that these 
new measures or the timing of the new

[[Page 66303]]

measures will have a significant adverse systemic impact on the 
international payment, clearance, and settlement system, or on 
legitimate business activities of Burma.

4. The Proposed Action Would Enhance the National Security of the 
United States and Is Consistent With, and in Furtherance of, United 
States Foreign Policy

    The imposition of this countermeasure on Burma is consistent with 
an overall foreign policy strategy to enhance our national security 
through comprehensive economic and political sanctions against Burma.

IV. Section-by-Section Analysis

A. Overview

    The designation published elsewhere in this separate part and this 
proposed rule are intended to deny Burmese financial institutions 
access to the U.S. financial system through correspondent accounts, 
which includes payable-through accounts. The proposed rule would 
prohibit certain U.S. financial institutions from establishing, 
maintaining, administering, or managing correspondent accounts in the 
United States for, or on behalf of, a Burmese financial institution. If 
a U.S. financial institution covered by this proposed rule learns that 
a correspondent account that it maintains for a foreign bank is being 
used by that foreign bank to provide services indirectly to a Burmese 
financial institution, the U.S. institution must ensure that the 
account no longer is used to provide such services, including, where 
necessary, terminating the correspondent relationship. As explained 
below, the proposed rule does not itself require U.S. financial 
institutions to perform additional due diligence on foreign bank 
customers.
    The proposed rule does allow U.S. financial institutions to 
maintain otherwise prohibited correspondent accounts to the extent they 
are permitted pursuant to Executive Order 13310 and the Burma-related 
activities of those accounts are for the purpose of conducting 
transactions that are exempt from, or licensed pursuant to, Executive 
Order 13310.

B. Definitions

    Correspondent account. Section 103.186(a)(1) of the proposed rule's 
definition of correspondent account is the definition contained in 31 
U.S.C. 5318A(e) (as added by Section 311 of the Act), which defines the 
term for banks to mean an account established to receive deposits from 
or make payments on behalf of a foreign financial institution, or 
handle other financial transactions related to the foreign financial 
institution.
    In the case of a U.S. depository institution, this broad definition 
would include most types of banking relationships between a U.S. 
depository institution and a foreign financial institution, including 
payable-through accounts. In the case of securities broker-dealers, 
futures commission merchants, introducing brokers, and mutual funds, a 
correspondent account would include any account that permits the 
foreign financial institution to engage in (1) trading in securities 
and commodity futures or options, (2) funds transfers, or (3) other 
types of financial transactions. Treasury is using the same definition 
for purposes of the proposed rule as that established in the final rule 
implementing Sections 313 and 319(b) of the Act \8\ with two notable 
exceptions: (1) the term also applies to such accounts maintained by 
futures commission merchants, introducing brokers, and mutual funds; 
and (2) the definition applies to such accounts maintained for any 
Burmese financial institution, as opposed to just Burmese banks.
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    \8\ 67 FR 60562 (September 26, 2002) (codified at 31 CFR 103.175 
(d)(1))
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    Covered financial institution. Section 103.186(a)(2) of the 
proposed rule defines covered financial institution to mean all of the 
following: any insured bank (as defined in section 3(h) of the Federal 
Deposit Insurance Act (12 U.S.C. 1813(h)); a commercial bank or trust 
company; a private banker; an agency or branch of a foreign bank in the 
United States; a credit union; a thrift institution; a corporation 
acting under section 25A of the Federal Reserve Act (12 U.S.C. 611 et 
seq.); a broker or dealer registered or required to register with the 
SEC under the Securities Exchange Act of 1934 (15 U.S.C. 78a et seq.); 
a futures commission merchant or an introducing broker registered, or 
required to register, with the CFTC under the Commodity Exchange Act (7 
U.S.C. 1 et seq.); and an investment company (as defined in section 3 
of the Investment Company Act of 1940 (15 U.S.C. 80a-3)) that is an 
open-end company (as defined in section 5 of the Investment Company Act 
of 1940 (15 U.S.C. 80a-5) that is registered, or required to register, 
with the SEC pursuant to that Act.
    Burmese financial institution. Section 103.186(a)(3) of the 
proposed rule defines a Burmese financial institution to include all 
foreign banks chartered or licensed by Burma and any other person 
organized under the law of Burma who conducts as a business one or more 
of the following activities or operations on behalf of customers: 
trading in (1) Money market instruments; (2) exchange, interest rate, 
and index instruments; (3) transferable securities; and (4) commodity 
futures or options. The definition of foreign bank is that contained in 
31 CFR 103.11(o). The inclusion in this definition of financial 
institutions other than depository institutions is done in recognition 
that these activities are alternate viable routes for money laundering 
activity. Foreign branches and offices of Burmese financial 
institutions are included in this definition. However, subsidiaries are 
not at this time. Also, the Central Bank of Burma is not a Burmese 
financial institution.

C. Requirements for Covered Financial Institutions

1. Prohibition on Correspondent Accounts
    Section 103.186(b)(1) of the proposed rule would prohibit generally 
all covered financial institutions from establishing, maintaining, 
administering, or managing a correspondent or payable-through account 
in the United States for, or on behalf of, a Burmese financial 
institution. The prohibition would require all covered financial 
institutions to review their account records to determine that they 
maintain no accounts directly for, or on behalf of, a Burmese financial 
institution. This prohibition is subject to the exception contained in 
section 103.186(b)(4), described below.
2. Prohibition on Indirect Correspondent Accounts
    Under section 103.186(b)(2) of the proposed rule, if a covered 
financial institution obtains knowledge that a correspondent or 
payable-through account that it maintains for a foreign bank is being 
used by that foreign bank to provide services indirectly to a Burmese 
financial institution, the U.S. institution must ensure that the 
account no longer is used to provide such services, including, where 
necessary, terminating the correspondent relationship. In contrast to 
the obligation placed on covered financial institutions to identify 
correspondent accounts maintained directly for, or on behalf of, a 
Burmese financial institution in section 103.186(b)(1), this section 
would not itself impose an independent obligation on covered financial 
institutions to review or investigate correspondent accounts they

[[Page 66304]]

maintain for foreign banks to ascertain whether a foreign bank is using 
the account to provide services to a Burmese financial institution. 
Instead, if covered financial institutions become aware, through due 
diligence that is otherwise appropriate or required under existing 
anti-money laundering obligations, that a foreign bank is using its 
correspondent account to provide banking services indirectly to a 
Burmese financial institution, then the covered financial institutions 
must ensure that the account is no longer used for such purposes. This 
reflects the approach taken in the proposed rulemaking imposing special 
measures against Nauru.\9\
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    \9\ 68 FR 18917 (April 17, 2003).
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    Additionally, when a covered financial institution becomes aware 
that a foreign bank customer is using the U.S. correspondent account to 
provide services to a Burmese financial institution indirectly, the 
covered financial institution may afford that foreign bank customer a 
reasonable opportunity to take corrective action prior to terminating 
the U.S. correspondent account. Should the foreign bank customer refuse 
to comply, or if the covered financial institution cannot obtain 
adequate assurances that the account will no longer be used for 
impermissible purposes, the covered financial institution must 
terminate the account in accordance with this regulation. Treasury has 
also incorporated the requirement of termination within a reasonable 
period of time and the reinstatement of a terminated correspondent 
account found in the final regulation implementing Sections 313 and 
319(b) of the Act.\10\
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    \10\ 67 FR 60562 (September 26, 2002) (codified at 31 CFR 
103.177).
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    This provision is likewise subject to the exception contained in 
section 103.186(b)(3), described below.
3. Exception
    Section 103.186(b)(3) provides for an exception to the prohibition 
on both direct and indirect correspondent account relationships of the 
proposed rule. U.S. financial institutions covered by the proposed rule 
may maintain a correspondent account relationship otherwise prohibited 
by this rule if the maintenance of such an account is permitted 
pursuant to Executive Order 13310 and if the transactions involving 
Burmese financial institutions that are conducted through the 
correspondent account are limited solely to transactions that are 
exempted in, or otherwise authorized by regulation, order, directive, 
or license issue pursuant to, Executive Order 13310. As described 
previously in section I(C)(1), certain transactions with Burma are 
exempt from the prohibitions of Executive Order 13310 or have been 
authorized through the licensing process. The general licenses (i.e., 
those of general applicability) or other authorizations issued will be 
set forth in 31 CFR part 537, and are available on the website of 
Treasury's Office of Foreign Assets Control, http://www.treas.gov/offices/eotffc/ofac/sanctions/sanctguide-burma.html. To ensure that 
those authorized activities are available as a practical matter, U.S. 
correspondent accounts permitted to operate pursuant to Executive Order 
13310 may be used to effect those permitted transactions.
4. Reporting and Recordkeeping Not Required
    Section 103.186(b)(3) of the proposed rule states that it does not 
impose any reporting or recordkeeping requirement upon any covered 
financial institution that is not otherwise required by applicable law 
or regulation.

V. Designation of Burma To Be of Primary Money Laundering Concern

    Effective November 18, 2003, Burma was designated by the Secretary 
of the Treasury to be a jurisdiction of primary money laundering 
concern under 31 U.S.C. 5318A, as added by Section 311(a) of the Act. 
See the notice published elsewhere in this separate part.

VI. Public Comments Requested

    Comments are invited from all interested persons concerning this 
proposed rulemaking, and are specifically sought from the financial 
sector, including domestic financial institutions and agencies, 
concerning the appropriateness and effectiveness of this particular 
special measure, the ability to comply with the special measure, and 
any competitive disadvantage, cost, or burden associated with 
compliance.

VII. Regulatory Flexibility Act

    It is hereby certified that this proposed rule will not have a 
significant economic impact on a substantial number of small entities. 
As explained above, financial institutions covered by this proposed 
rulemaking are already prohibited under existing sanctions from 
maintaining correspondent accounts for Burmese financial institutions. 
Given the comprehensive sanctions regime, Treasury and FinCEN believe 
that few foreign correspondent bank customers of small U.S. financial 
institutions covered by the proposed rulemaking will themselves 
maintain correspondent accounts for Burmese financial institutions. 
Treasury and FinCEN specifically request comment on the extent to which 
the prohibition contained in the proposed rule would affect small U.S. 
financial institutions beyond obligations already imposed by existing 
economic sanctions.

VIII. Executive Order 12866

    Because this rule involves a foreign affairs function of the United 
States, it is not subject to Executive Order 12866, ``Regulatory 
Planning and Review.''

List of Subjects in 31 CFR Part 103

    Banks and banking, Brokers, Counter-money laundering, Counter-
terrorism, Currency, Foreign banking, Reporting and recordkeeping 
requirements.

Authority and Issuance

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

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

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

    Authority: 12 U.S.C. 1829b and 1951-1959; 31 U.S.C. 5311-5314, 
5316-5332; title III, sec. 311, 312, 313, 314, 319, 326, 352, Pub. 
L. 107-56, 115 Stat. 307; 12 U.S.C. 1818; 12 U.S.C. 1786(q).

    2. Subpart I of part 103 is proposed to be amended by adding Sec.  
103.186 under the undesignated centerheading ``SPECIAL DUE DILIGENCE 
FOR CORRESPONDENT ACCOUNTS AND PRIVATE BANKING ACCOUNTS'' to read as 
follows:


Sec.  103.186  Special measures against Burma.

    (a) Definitions. For purposes of this section:
    (1) Correspondent account means an account established to receive 
deposits from, or make payments on behalf of, a foreign financial 
institution, or handle other financial transactions related to such 
institution.
    (2) Covered financial institution has the same meaning as provided 
in Sec.  103.175(f)(2) and also includes the following:
    (i) A futures commission merchant or an introducing broker 
registered, or required to register, with the Commodity Futures Trading 
Commission under the Commodity Exchange Act (7 U.S.C. 1 et seq.); and

[[Page 66305]]

    (ii) An investment company (as defined in section 3 of the 
Investment Company Act of 1940 (15 U.S.C. 80a-5)) that is an open-end 
company (as defined in section 5 of the Investment Company Act (15 
U.S.C. 80a-5)) and that is registered, or required to register, with 
the Securities and Exchange Commission pursuant to that Act.
    (3) Burmese financial institution means the following:
    (i) Any foreign bank, as that term is defined in Sec.  103.11(o), 
chartered or licensed by Burma, including branches and offices located 
outside Burma; and
    (ii) Any other person organized under the law of Burma, including 
branches or offices located outside of Burma, who conducts as a 
business one or more of the following activities or operations on 
behalf of customers:
    (A) Trading in money market instruments;
    (B) Trading in exchange, interest rate, and index instruments;
    (C) Trading in transferable securities; or
    (D) Trading in commodity futures or options.
    (b) Requirements for covered financial institutions--(1) 
Prohibition on correspondent accounts. A covered financial institution 
shall terminate any correspondent account that is established, 
maintained, administered, or managed in the United States for, or on 
behalf of, a Burmese financial institution.
    (2) Prohibition on indirect correspondent accounts. (i) If a 
covered financial institution has or obtains knowledge that a 
correspondent account established, maintained, administered, or managed 
by that covered financial institution in the United States for a 
foreign bank is being used by the foreign bank to provide banking 
services indirectly to a Burmese financial institution, the covered 
financial institution shall ensure that the correspondent account is no 
longer used to provide such services, including, where necessary, 
terminating the correspondent account; and
    (ii) A covered financial institution required to terminate an 
account pursuant to paragraph (b)(2)(i) of this section:
    (A) Shall do so within a commercially reasonable time, and shall 
not permit the foreign bank to establish any new positions or execute 
any transactions through such account, other than those necessary to 
close the account; and
    (B) May reestablish an account closed pursuant to this paragraph if 
it determines that the account will not be used to provide banking 
services indirectly to a Burmese financial institution.
    (3) Exception. The provisions of paragraphs (b)(1) and (2) of this 
section shall not apply to a correspondent account provided that the 
operation of such account is not prohibited by Executive Order 13310 
and the transactions involving Burmese financial institutions that are 
conducted through the correspondent account are limited solely to 
transactions that are exempted from, or otherwise authorized by 
regulation, order, directive, or license pursuant to, Executive Order 
13310.
    (4) Reporting and recordkeeping not required. Nothing in this 
section shall require a covered financial institution to maintain any 
records, obtain any certification, or report any information not 
otherwise required by law or regulation.

    Dated: November 19, 2003.
William F. Baity,
Acting Director, Financial Crimes Enforcement Network.
[FR Doc. 03-29289 Filed 11-24-03; 8:45 am]
BILLING CODE 4810-02-P