[Federal Register Volume 69, Number 70 (Monday, April 12, 2004)]
[Rules and Regulations]
[Pages 19093-19098]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 04-8027]


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DEPARTMENT OF THE TREASURY

Financial Crimes Enforcement Network

31 CFR Part 103


Imposition of Special Measures Against Burma

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

ACTION: Final rule.

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SUMMARY: On November 18, 2003, the Secretary of the Treasury 
(Secretary) designated Burma as a jurisdiction of primary money 
laundering concern, and proposed a special measure that certain U.S. 
financial institutions would be required to take concerning Burma, 
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. FinCEN is 
issuing this final rule to require certain U.S. financial institutions 
to take the proposed special measure regarding Burma.

DATES: Effective date: May 12, 2004.

FOR FURTHER INFORMATION CONTACT: Office of Regulatory Programs, 
(FinCEN), (202) 354-6400 or the Office of Chief Counsel (FinCEN), (703) 
905-3590 (not toll-free numbers).

SUPPLEMENTARY INFORMATION: The Secretary 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) (the 
Act). To protect the U.S. financial system against the money laundering 
risk posed by Burma, FinCEN is imposing a special measure authorized by 
section 5318A(b)(5). The special measure imposed under this section 
will 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 banking 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 
effect 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 banking institution indirectly.
    Additionally, by separate notice, FinCEN is announcing concurrently 
the imposition of the fifth special measure against two Burmese banking 
institutions, Myanmar Mayflower Bank and Asia Wealth Bank. This special 
measure prohibits 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 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

[[Page 19094]]

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. 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) 
Recordkeeping 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 
Futures Trading Commission (CFTC), the National Credit Union 
Administration (NCUA), and, in the sole discretion of the Secretary, 
``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 designated jurisdiction.
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     Whether similar action has been or is being 
taken by other nations or multilateral groups;
     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;
     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
     The effect of the action on United States 
national security and foreign policy.
2. Procedures for Imposing Special Measures
    In this final rule, the Secretary, through FinCEN, is requiring 
certain U.S. financial institutions to take the fifth special measure 
(31 U.S.C. 5318A(b)(5)) regarding 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 information on the FATF, see http://www.fatf-gafi.org.
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     Burma lacks a basic set of anti-money laundering 
laws and regulations.
     Money laundering is not a criminal offense for 
crimes other than drug trafficking in Burma.
     The Burmese Central Bank has no anti-money 
laundering regulations for financial institutions.
     Banks licensed by Burma are not legally required 
to obtain or maintain identification information about their customers.
     Banks licensed by Burma are not required to 
maintain transaction records of customer accounts.
     Burma does not require financial institutions to 
report suspicious transactions.
     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. However, in the absence of implementing 
regulations, the Burmese anti-money laundering law could not 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. On December 5, 2003, Burma issued regulations to 
implement this law. However, the regulations do not set threshold 
amounts or time limits. The regulations also do not address the need 
for a mutual assistance law. Indeed, the 2003 International Narcotics 
Control Strategy Report, issued in March 2004, states that Burma must 
still implement and enforce the December 2003 regulations and address 
their deficiencies. In addition, Burma must provide adequate resources 
for supervision of the financial sector and end policies that make it 
easy for drug money to enter the legitimate economy.\4\
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    \4\ The 2003 International Narcotics Control Strategy Report, 
released by the Bureau for International Narcotics and Law 
Enforcement Affairs, U.S. Department of State, was issued March 1, 
2004. Part II of the report covers money laundering and financial 
crimes. The portion of the report dealing with Burma can be found at 
http://www.state.gov/g/inl/rls/nrcrpt/2003/vol2/html/29920.htm.
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    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

[[Page 19095]]

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.
    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.\5\ 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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    \5\ For example, the prohibition does not extend to transactions 
relating to certain contracts entered into prior to May 21, 1997. 
See Executive Order 13310, section 13.
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D. The Section 311 Special Measures

    The 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 Section 311 
special measures differ in certain respects and serve distinct policy 
goals. First, the Section 311 special measures are potentially broader 
than the existing sanctions in at least one respect--they apply to all 
foreign branches of Burmese banking 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 it 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 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 
banking 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 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. Imposition of Special Measures

    As a result of the designation of Burma as a jurisdiction of 
primary money laundering concern, and based upon consultations \6\ 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 final rule prohibits 
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 banking 
institution. This prohibition extends 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 banking institution. Financial institutions 
covered by this rule that obtain knowledge that this is occurring are 
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 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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    \6\ 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.

[[Page 19096]]

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 
precludes maintaining correspondent accounts for foreign branches of 
Burmese banking 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 will further 
minimize any potential competitive disadvantage for U.S. financial 
institutions.
    Moreover, the final rule does 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 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.

III. Notice of Proposed Rulemaking and Comments

    FinCEN published a notice of proposed rulemaking on November 25, 
2003,\7\ that would require certain U.S. financial institutions to take 
the fifth special measure regarding Burma. The comment period for that 
notice closed on December 26, 2003. FinCEN received no comment letters 
on the proposed rule. The final rule is identical to that found in the 
November 2003 notice, except that the term ``foreign financial 
institution'' has been replaced by ``foreign banking institution,'' 
with a corresponding change in the term's definition, to conform with 
the language of Section 5318A(b)(5).
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    \7\ 68 FR 66299 (November 25, 2003).
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IV. Section-by-Section Analysis

A. Overview

    This final rule is intended to deny Burmese banking institutions 
access to the U.S. financial system through correspondent accounts, 
which includes payable-through accounts. The rule prohibits certain 
U.S. financial institutions from establishing, maintaining, 
administering, or managing correspondent accounts in the United States 
for, or on behalf of, a Burmese banking institution. If a U.S. 
financial institution covered by this 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 banking 
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 
rule does not itself require U.S. financial institutions to perform 
additional due diligence on foreign bank customers.
    The 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 rule's 
definition of correspondent account is the definition contained in 31 
CFR 103.175(d), which defines the term to mean an account established 
to receive deposits from, or make payments or other disbursements on 
behalf of, a foreign bank, or handle other financial transactions 
related to the foreign bank.
    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 bank, including payable-through 
accounts. In the case of securities broker-dealers, futures commission 
merchants and introducing brokers, and mutual funds, a correspondent 
account would include any account that permits the foreign bank to 
engage in (1) trading in securities and commodity futures or options, 
(2) funds transfers, or (3) other types of financial transactions. 
FinCEN is using the same definition for purposes of the rule as that 
established in the final rule implementing Sections 313 and 319(b) of 
the Act \8\ with one notable exception: The term also applies to such 
accounts maintained by futures commission merchants and introducing 
brokers and mutual funds.
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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 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

[[Page 19097]]

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 banking institution. Section 103.186(a)(3) of the final 
rule defines a Burmese banking institution to include all foreign banks 
chartered or licensed by Burma. The definition of foreign bank is that 
contained in 31 CFR 103.11(o). Foreign branches and offices of Burmese 
banking institutions are included in this definition. However, 
subsidiaries are not at this time. Also, the Central Bank of Burma is 
not a Burmese banking institution.

C. Requirements for Covered Financial Institutions

1. Prohibition on Correspondent Accounts
    Section 103.186(b)(1) of the final rule prohibits 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 banking 
institution. The prohibition requires all covered financial 
institutions to review their account records to determine that they 
maintain no accounts directly for, or on behalf of, a Burmese banking 
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 final 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 
banking 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 banking institution in section 103.186(b)(1), this section does 
not itself impose an independent obligation on covered financial 
institutions to review or investigate correspondent accounts they 
maintain for foreign banks to ascertain whether a foreign bank is using 
the account to provide services to a Burmese banking 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 banking institution, then the covered financial institutions 
must ensure that the account is no longer used for such purposes.
    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 banking 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. FinCEN 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.\9\
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    \9\ 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 
final rule. U.S. financial institutions covered by the final 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 
banking 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), 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 Web site 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 final 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. Regulatory Flexibility Act

    It is hereby certified that this rule will not have a significant 
economic impact on a substantial number of small entities. As explained 
above, financial institutions covered by this final rulemaking are 
already prohibited under existing sanctions from maintaining 
correspondent accounts for Burmese banking institutions. Given the 
comprehensive sanctions regime, FinCEN believes that few foreign 
correspondent bank customers of small U.S. financial institutions 
covered by the rulemaking will themselves maintain correspondent 
accounts for Burmese banking institutions.

VI. 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

0
For the reasons set forth in the preamble, 31 CFR part 103 is amended 
as follows:

[[Page 19098]]

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

0
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).


0
2. Subpart I of part 103 is 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 has the same meaning as provided in Sec.  
103.175(d).
    (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
    (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 banking institution means 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.
    (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 banking 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 banking 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 banking 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 banking 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: April 2, 2004.
William J. Fox,
Director, Financial Crimes Enforcement Network.
[FR Doc. 04-8027 Filed 4-9-04; 8:45 am]
BILLING CODE 4810-02-P