[Federal Register Volume 70, Number 235 (Thursday, December 8, 2005)]
[Notices]
[Pages 73063-73067]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 05-23854]


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DEPARTMENT OF THE TREASURY


Anti-Terrorist Financing Guidelines: Voluntary Best Practices for 
U.S.-Based Charities

AGENCY: Office of Terrorist Financing and Financial Crime, Treasury.

ACTION: Notice with request for comments.

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SUMMARY: The U.S. Department of the Treasury (``Treasury'') is 
publishing for public comment a revised version of its Anti-Terrorist 
Financing Guidelines: Voluntary Best Practices for U.S.-Based Charities 
(``Guidelines''), which were originally released in November 2002. 
Although Treasury is soliciting public comment on these Guidelines, 
they immediately replace the 2002 Guidelines. Treasury will consider 
all comments received on or before February 1, 2006, in finalizing the 
revised version of the Guidelines for republication in the Federal 
Register and on Treasury's Web site.

DATES: Written comments must be received on or before February 1, 2006.

ADDRESSES: Comments may be submitted by mail, by facsimile, or through 
the Treasury's Web site:
    Mailing address: Office of Terrorist Financing and Financial Crime, 
U.S. Department of the Treasury, 1500 Pennsylvania Avenue, NW., 
Washington, DC 20220.
    Facsimile number: (202) 622-9747. Web site: http://www.treas.gov/offices/enforcement/key-issues/protecting/charities-intro.shtml.

FOR FURTHER INFORMATION CONTACT: Office of Terrorist Financing and 
Financial Crime: (202) 622-3786.

SUPPLEMENTARY INFORMATION: The revised Guidelines and additional 
information concerning the protection of charities are available on the 
Treasury Web site at http://www.treas.gov/offices/enforcement/key-issues/protecting/index.shtml.
    The text of the revised Guidelines is printed below.

    Dated: November 29, 2005.
Patrick M. O'Brien,
Assistant Secretary of the Treasury.

U.S. Department of the Treasury Anti-Terrorist Financing Guidelines: 
Voluntary Best Practices for U.S.-Based Charities \1\
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    \1\ This document is an amended version of the Anti-Terrorist 
Financing Guidelines: Voluntary Best Practices for U.S.-Based 
Charities released by the U.S. Department of the Treasury in 
November 2002.
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I. Introduction

    Upon issuance of Executive Order 13224, President George W. Bush 
directed the U.S. Department of the Treasury (``Treasury'') to work 
with other elements of the Federal government and the international 
community to develop a comprehensive and sustained campaign against the 
sources and conduits of terrorist financing. Investigations have 
revealed terrorist abuse of charitable organizations, both in the 
United States and worldwide, often through the diversion of donations 
intended for humanitarian purposes but funneled instead to terrorists, 
their support networks, and their operations. This abuse threatens to 
undermine donor confidence and jeopardizes the integrity of the 
charitable sector, whose services are indispensable to both national 
and world communities.
    In response to this threat, Treasury first released the Anti-
Terrorist Financing Guidelines: Voluntary Best Practices for U.S.-Based 
Charities (``Guidelines'') in November 2002. In November 2005, Treasury 
revised these Guidelines, based on extensive review and comment by 
public and private sector interested parties, to improve the utility of 
the Guidelines in protecting the sector from abuse by terrorists and 
their support networks. The Guidelines further enhance awareness in the 
donor and charitable communities of the kinds of practices that 
charities may adopt to reduce the risk of terrorist financing. These 
Guidelines, as presented by Treasury, are voluntary and do not 
supersede or modify current or future legal requirements applicable to 
all U.S. persons, including non-profit institutions. Rather, the 
Guidelines are intended to assist charities in developing a risk-based 
approach to guard against the threat of diversion of charitable funds 
for use by terrorists and their support networks. Given the risk-based 
nature of these Guidelines, we recognize that certain aspects will not 
be applicable to every charity, charitable activity, or circumstance. 
Moreover, we acknowledge that certain exigent circumstances (such as 
catastrophic disasters) may make application of the Guidelines 
difficult. In such cases, charities should maintain a risk-based 
approach that includes all prudent and reasonable measures that are 
feasible under the circumstances. Charities and donors are encouraged 
to consult these Guidelines when considering protective measures to 
prevent infiltration or abuse by terrorists.\2\
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    \2\ These guidelines are designed to assist charities that 
attempt in good faith to protect themselves from terrorist abuse and 
are not intended to address the problem of organizations that use 
the cover of charitable work, whether real or perceived, to provide 
support to terrorist groups or fronts operating on behalf of 
terrorist groups. Adherence to these Guidelines does not excuse any 
person (individual or entity) from compliance with any local, state, 
or federal law or regulation, nor does it release any person from or 
constitute a legal defense against any civil or criminal liability 
for violating any such law or regulation. In particular, adherence 
to these Guidelines shall not be construed to preclude any criminal 
charge, civil fine, or other action by Treasury or the Department of 
Justice against persons who engage in prohibited transactions with 
persons designated pursuant to the Antiterrorism and Effective Death 
Penalty Act of 1996, as amended, or with those that are designated 
under the criteria defining prohibited persons in the relevant 
Executive orders issued pursuant to statute, such as the 
International Emergency Economic Powers Act, as amended. Please see 
Footnote 9 for an explanation of the master list of Specially 
Designated Nationals (the ``SDN List''), which includes all such 
designated persons. These Guidelines are also separate and apart 
from requirements that apply to charitable organizations under the 
Internal Revenue Code (``IRC'').

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[[Page 73064]]

    Treasury recognizes the vital importance of the charitable 
community in providing essential services around the world. Treasury 
also understands the difficulty of providing assistance to those in 
need, often in remote and inaccessible regions, and applauds the 
efforts of the charitable community to meet such needs. The goal of 
these Guidelines is to protect the integrity of the charitable sector 
by offering the sector ways to minimize the threat of well-intentioned 
donations not reaching their intended beneficiaries and to combat the 
abuse of charities by terrorists and their support networks.

II. Fundamental Principles of Good Charitable Practice

    A. Charitable organizations must comply with the laws of the United 
States.
    B. Charitable organizations are encouraged to adopt practices in 
addition to those required by law that provide additional assurances 
that all assets \3\ are used exclusively for charitable or other 
legitimate purposes.\4\
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    \3\ An asset is any item of value, including, but not limited 
to, services, resources, business, equitable holdings, real estate, 
stocks, bonds, mutual funds, currency, certificates of deposit, bank 
accounts, trust funds, and the property and investments placed 
therein.
    \4\ A charitable organization may never use charitable assets 
for illegal purposes; however, a charitable organization may accrue 
unrelated business taxable income in the course of legitimately 
doing business as a charitable organization. Even though an 
organization is recognized as tax exempt, it still may be liable for 
tax on its unrelated business taxable income.
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    C. Individuals acting in a fiduciary capacity for any charitable 
organization should exercise due care in the performance of their 
responsibilities, consistent with applicable common law as well as 
local, state, and Federal statutes and regulations.
    D. Fiscal responsibility is an essential component of charitable 
work and must be reflected at every level of a charitable organization.

III. Governance

    A. Governing Instruments: Charitable organizations should operate 
in accordance with governing instruments, e.g., charter, articles of 
incorporation, bylaws, etc. The governing instruments should:
    1. Delineate the charity's basic goal(s) and purpose(s);
    2. define the structure of the charity, including the composition 
of the board, how the board is selected and replaced, and the authority 
and responsibilities of the board;
    3. set forth requirements concerning financial reporting, 
accountability, and practices for solicitation and distribution of 
funds; and
    4. state that the charity shall comply with all applicable local, 
state, and Federal laws and regulations.
    B. Board of Directors: Charitable organizations should be governed 
by a board of directors (``board'') consisting of at least three (3) 
members.
    1. The board should be an active governing body.
    2. The board of each individual charitable organization is 
responsible for that organization's compliance with relevant laws, and 
it should adopt and implement practices consistent with the principles 
contained herein. The board of each charitable organization should 
oversee implementation of the governance practices to be followed by 
that organization in a manner consistent with this Section III.
    3. The board should be an independent governing body, exercising 
effective and independent oversight of the charity's operations. The 
charity should establish a conflict of interest policy for board 
members and employees. That policy should establish procedures to be 
followed if a board member or employee has a conflict of interest or a 
perceived conflict of interest.
    4. The board should maintain records of all decisions made. When 
appropriate, these records should immediately be made available for 
inspection by the appropriate regulatory/supervisory and law 
enforcement authorities.

IV. Financial Practice/Accountability

    A. The charity should have a budget, adopted in advance on an 
annual basis and approved and overseen by the board.
    B. The board should appoint one individual to serve as the 
financial/accounting officer who should be responsible for day-to-day 
control over the charity's assets.
    C. If the charity's total annual gross income exceeds $250,000, the 
board should select an independent certified public accounting firm to 
audit the finances of the charity and to issue a yearly audited 
financial statement. The yearly audited financial statement should be 
available for public inspection.
    D. Receipt and Disbursement of Funds.
    1. The charity should account for all funds received and disbursed 
in accordance with generally accepted accounting principles and the 
requirements of the Internal Revenue Code. The charity should maintain 
records of the salaries it pays and the expenses it incurs 
(domestically and internationally).
    2. The charity should include in its accounting of all charitable 
disbursements the name of each recipient, the amount disbursed, and the 
date of the disbursement.
    3. The charity, after recording, should promptly deposit all 
received funds into an account maintained by the charity at a financial 
institution. In particular, all currency donated should be promptly 
deposited into the charity's financial institution account.
    4. The charity should make disbursements by check or wire transfer 
rather than in currency whenever such financial arrangements are 
reasonably available. Where normal financial services do not exist or 
other exigencies require making disbursements in currency (as in the 
case of humanitarian assistance provided in rural areas of many 
developing countries), the charity should disburse the currency in 
smaller increments sufficient to meet immediate and short-term needs 
rather than in large sums intended to cover needs over an extended time 
frame, and it should exercise oversight regarding the use of the 
currency for the intended charitable purposes, including keeping 
detailed internal records of such currency disbursements.

V. Disclosure/Transparency in Governance and Finances

    A. Board of Directors/Trustees.
    1. Charities should maintain and make publicly available a current 
list of their board members or trustees and the salaries they are paid.
    2. While fully respecting individual privacy rights, charities 
should maintain records containing additional identifying information 
about their board members, such as home address, social security 
number, citizenship, etc.
    3. While fully respecting individual privacy rights, charities 
should maintain records containing identifying information for the 
board members of any subsidiaries or affiliates receiving funds from 
them.
    B. Key Employees.\5\
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    \5\ Key employees include not only highly compensated employees 
but employees that exercise substantial influence over the day-to-
day operations of the charity.

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[[Page 73065]]

    1. Charities should maintain and make publicly available a current 
list of their five highest paid or most influential employees (the key 
employees) and the salaries and/or direct or indirect benefits they 
receive.
    2. While fully respecting individual privacy rights, charities 
should maintain records containing identifying information (such as 
home address, social security or other taxpayer identification number, 
citizenship, etc.) about their key, non-U.S. employees working abroad. 
Such information should be similar to that maintained by charities in 
the normal course of operations about all U.S. employees, wherever 
employed, and foreign employees working in the United States.
    3. While fully respecting individual privacy rights, charities 
should maintain records containing identifying information for the key 
employees of any subsidiaries or affiliates receiving funds from them.
    C. Mechanisms for Public Disclosure of Distribution of Resources 
and Services.
    1. The charity should maintain and make publicly available a 
current list of any branches, subsidiaries, and/or affiliates that 
receive resources and services from the charity.
    2. The charity should make publicly available or provide to any 
member of the general public, upon request, an annual report. The 
annual report should describe the charity's purpose(s), programs, 
activities, tax exempt status, the structure and responsibility of the 
governing body of the charity, and financial information.
    3. The charity should make publicly available or provide to any 
member of the general public, upon request, complete annual financial 
statements, including a summary of the results of the charity's most 
recent audit. The financial statements should present the overall 
financial condition of the charity and its financial activities in 
accordance with generally accepted accounting principles and reporting 
practices.
    D. Supplying Resources.
    When supplying charitable resources (monetary and in-kind 
contributions), fiscal responsibility on the part of a charity should 
include:
    1. The determination that the potential recipient of monetary or 
in-kind contributions has the ability to both accomplish the charitable 
purpose of the grant and protect the resources from diversion to non-
charitable purposes, including any activity that supports terrorism;
    2. The reduction of the terms of the grant to a written agreement 
signed by both the charity and the recipient;
    3. Ongoing monitoring of the recipient and the activities funded 
under the grant for the term of the grant; and
    4. The correction of any misuse of resources by the recipient and 
the termination of the relationship should misuse continue.
    E. Supplying Services.
    When supplying charitable services, fiscal responsibility on the 
part of a charity should include:
    1. Appropriate measures to reduce the risk that its assets would be 
used for non-charitable purposes, including any activity that supports 
terrorism; and
    2. Sufficient auditing or accounting controls to trace services or 
commodities between delivery by the charity and/or service provider and 
use by the recipient.
    F. Solicitations for Funds.
    1. The charity should clearly state its goals for and purposes of 
soliciting funds so that anyone examining its disbursement of funds can 
determine whether the charity is adhering to those goals.
    2. Solicitations for donations should accurately and transparently 
tell donors how and where their donations are going to be expended.
    3. The charity should substantiate on request that solicitations 
and informational materials, distributed by any means, are accurate, 
truthful, and not misleading, in whole or in part.
    4. The charity should fully, immediately, and publicly disclose 
whenever it makes a determination that circumstances justify applying 
funds for a charitable purpose different from the purpose for which 
they were contributed.

VI. Anti-Terrorist Financing Best Practices

    Charities should consider taking the following steps before 
distributing any charitable funds (and in-kind contributions). As 
explained in Section I, when taking these steps, charities should apply 
a risk-based approach, particularly with respect to foreign recipients 
due to the increased risks associated with overseas charitable 
activity.
    A. The charity should collect the following basic information about 
recipients:
    1. The recipient's name in English, in the language of origin, and 
any acronym or other names used to identify the recipient; \6\
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    \6\ Charities should also be mindful of the possibility that a 
recipient may have changed its name or transformed its 
organizational structure to avoid being associated with prior 
questionable activity. If a charity has any reason to believe that 
the recipient is operating under a different identity or has used a 
different name in the past, the charity should undertake reasonable 
efforts to uncover any such prior identity or name.
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    2. The jurisdictions in which a recipient maintains a physical 
presence;
    3. Any reasonably available historical information about the 
recipient that assures the charity of the recipient's identity and 
integrity, including: (i) The jurisdiction in which a recipient 
organization is incorporated or formed; (ii) copies of incorporating or 
other governing instruments; (iii) information on the individuals who 
formed the organization; and (iv) information relating to the 
recipient's operating history;
    4. The address and phone number of each place of business of a 
recipient;
    5. A statement of the principal purpose of the recipient, including 
a detailed report of the recipient's projects and goals;
    6. The names and addresses of individuals, entities, or 
organizations to which the recipient currently provides or proposes to 
provide funding, services, or material support, to the extent 
reasonably discoverable;
    7. The names and addresses of any subcontracting organizations 
utilized by the recipient;
    8. Copies of any public filings or releases made by the recipient, 
including the most recent official registry documents, annual reports, 
and annual filings with the pertinent government, as applicable; and
    9. The recipient's sources of income, such as official grants, 
private endowments, and commercial activities.
    B. The charity should conduct basic vetting of recipients as 
follows:
    1. The charity should conduct a reasonable search of public 
information, including information available via the Internet, to 
determine whether the recipient is suspected of activity relating to 
terrorism, including terrorist financing or other support (see Part D 
of this Section VI for guidance on communicating suspicious information 
to the appropriate authorities); \7\
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    \7\ One example of publicly available information of which 
charities should be aware is the Terrorist Exclusion List (the 
``TEL''). The TEL was created pursuant to the USA PATRIOT Act, which 
authorizes the Secretary of State to designate organizations or 
groups for inclusion on the TEL in consultation with or upon the 
request of the Attorney General. Inclusion on the TEL allows the 
U.S. Government to exclude or deport aliens who provide material 
assistance to, or solicit assistance for, designated TEL 
organizations. Although many of the organizations included on the 
TEL are also included on the Office of Foreign Assets Control 
(``OFAC'') SDN List, several TEL organizations are not listed on the 
SDN List because of the different purposes and legal criteria 
associated with these lists.
    TEL designations do not trigger any legal obligations for U.S. 
persons; however, the TEL does provide charities with additional 
terrorist-related information that may assist charities in making 
well-informed decisions on how best to protect themselves from 
terrorist abuse or association. For further information regarding 
the TEL, including access to the list containing all TEL designees, 
please refer to the U.S. Department of State's Web site at http://www.state.gov/s/ct/rls/fs/2004/32678.htm.

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[[Page 73066]]

    2. As U.S. persons, U.S.-based charities must comply with all 
Office of Foreign Assets Control (``OFAC'') administered sanctions 
programs.\8\ Among other precautions, the charity should assure itself 
that recipients do not appear on OFAC's master list of Specially 
Designated Nationals (the ``SDN List''), maintained on OFAC's Web site 
at http://www.treas.gov/offices/enforcement/ofac/sdn/.\9\
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    \8\ OFAC sanctions programs include those relating to particular 
countries or regimes (country-based programs), as well as those 
relating to groups, individuals, or entities engaged in specific 
activities (list-based programs). Sanctions programs normally: (i) 
Prohibit U.S. persons from engaging in certain transactions, such as 
trade in goods and services and financial transactions, and/or (ii) 
require U.S. persons to block the assets and property of persons 
designated under the relevant Executive order or law. The particular 
prohibitions and/or obligations of U.S. persons vary by program. 
OFAC can issue licenses to U.S. persons to engage in transactions 
that would otherwise be prohibited, if there is a policy-permissible 
reason to do so, and if permitted by statute.
    For further information on OFAC-administered sanctions programs 
and licensing under these programs, please see http://www.treas.gov/offices/enforcement/ofac.
    OFAC guidelines for non-governmental organizations wishing to 
undertake humanitarian activities in sanctioned countries are 
available at http://www.treas.gov/offices/enforcement/ofac/regulations/ngo_reg.pdf.
    Other helpful guidance materials for charities relating to 
protection from terrorist abuse may be found at http://www.treas.gov/offices/enforcement/key-issues/protecting/index.shtml.
    \9\ The master SDN List is an integrated listing of designated 
parties with whom U.S. persons are prohibited from providing 
services or conducting transactions and whose assets are blocked. 
OFAC's designations are available in a variety of formats and can 
easily be broken down into subsets of the master list by program, by 
country of residency, individuals vs. entities, and other variations 
for appropriate use in a charity's risk-based approach. Each charity 
should determine which OFAC listings align with the specific risks 
the charity faces in its operations and should check recipients 
accordingly.
    OFAC routinely updates information on its targets, including 
persons designated under country-based and list-based economic 
sanctions programs, such as individuals and entities designated 
under the various Executive orders and statutes aimed at terrorism. 
OFAC offers a free email subscription service that enables 
subscribers to keep current with these updates. With respect to 
terrorism-related OFAC sanctions programs, SDN listings include 
persons designated under Executive Order 13224, Executive Order 
12947, or the Antiterrorism and Effective Death Penalty Act of 1996, 
as amended; such persons are called ``Specially Designated Global 
Terrorists'' or ``SDGTs'', ``Specially Designated Terrorists'' or 
``SDTs'', or ``Foreign Terrorist Organizations'' or ``FTOs'', 
respectively. SDN listings also include parties subject to OFAC 
sanctions pursuant to other list-based programs (such as counter-WMD 
proliferation and counter-narcotics) and country-based programs.
    In addition to checking appropriate SDN listings, charities 
should consult OFAC's Web site for other information relating to 
sanctioned activities or countries that may implicate their 
operations.
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    3. With respect to key employees, board members, or other senior 
management at a recipient's principal place of business, and for key 
employees at the recipient's other business locations, the charity 
should obtain the full name in English, in the language of origin, and 
any acronym or other names used; nationality; citizenship; current 
country of residence; and place and date of birth. The charity should 
assure itself that none of these individuals is sanctioned by OFAC. 
Moreover, charities should be aware that other nations may have their 
own lists of designated terrorist-related individuals, entities, or 
organizations pursuant to national obligations arising from United 
Nations Security Council Resolution 1373 (2001).\10\
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    \10\ Under United Nations Security Council Resolution 1373 
(2001) (UNSCR 1373), UN Member States must generally freeze without 
delay the funds and other financial assets or economic resources of 
persons financing or otherwise supporting terrorist activity or 
terrorist-related individuals, entities, or organizations. In 
addition, UN Member States must generally prohibit their nationals 
from engaging in transactions with such parties. For example, the 
SDN List incorporates those parties designated by the United States 
pursuant to national obligations under UNSCR 1373.
    This information regarding UNSCR 1373 is intended to assist 
charities in developing their own risk-based programs based upon a 
full understanding of the law in those jurisdictions in which they 
may operate. Charities operating in a foreign jurisdiction may 
choose to take the additional precautionary measures of determining 
whether that jurisdiction maintains a national list under UNSCR 1373 
and screening the identities of recipient organizations (including 
principal individuals and senior employees) against any such list. 
Such precautionary measures may protect charities from potential 
sanctions or other consequences to which they might be subject from 
foreign jurisdictions as a result of engaging in transactions with 
individuals, entities, or organizations deemed to be financing or 
otherwise supportive of terrorist activity under the laws of those 
jurisdictions.
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    4. With respect to the key employees, board members, or other 
senior management described in the preceding paragraph, the charity 
should also consider, on the basis of risk, consulting publicly 
available information (e.g., through public database or Internet 
searches) to ensure that such parties are not suspected of activity 
relating to terrorism, including terrorist financing or other support 
(see Part D of this Section VI for guidance on communicating suspicious 
information to the appropriate authorities); and
    5. The charity should require recipients to certify that they do 
not employ, transact with, provide services to, or otherwise deal with 
any individuals, entities, or groups that are sanctioned by OFAC, or 
with any persons known to the recipient to support terrorism.
    C. The charity should conduct basic vetting of its own key 
employees as follows:
    1. The charity should consult publicly available information, 
including information available via the Internet, to determine whether 
any of its key employees is suspected of activity relating to 
terrorism, including terrorist financing or other support; and
    2. The charity should assure itself that none of its key employees 
is sanctioned by OFAC.
    D. Should a charity's vetting practices lead to a finding that any 
of its own key employees, any of its recipients, or any of the key 
employees, board members, or other senior management of its recipients 
is suspected of activity relating to terrorism, including terrorist 
financing or other support, the charity should act as follows:
    1. If there is a valid or potentially valid match between the name 
of one of the individuals or organizations listed above and a name on 
the SDN List, the charity should immediately report this match to OFAC 
and seek further guidance. Charities should report the match through 
OFAC's hotline at 1-800-540-6322; and
    2. The charity can provide information on any suspicious activity 
that does not directly involve an OFAC match through a referral form 
available on Treasury's Web site at http://www.treas.gov/offices/enforcement/key-issues/protecting/index.shtml. In addition, a charity 
should simultaneously report suspicious activity to the Federal Bureau 
of Investigation through its local field offices. A list of the 
locations and phone numbers of the FBI's field offices is available at 
http://www.fbi.gov/contact/fo/fo.htm.
    E. The charity should review the financial and programmatic 
operations of each recipient as follows:
    1. The charity should require periodic reports from recipients on 
their operational activities and their use of the disbursed funds;
    2. The charity should require recipients to take reasonable steps 
to ensure that funds provided by the charity are not distributed to 
terrorists or their support networks. Periodically, a recipient should 
apprise the charity of the steps it has taken to meet this goal; and
    3. The charity should perform routine, on-site audits of recipients 
to the extent possible--consistent with the size of the disbursement, 
the cost of the audit, and the risks of diversion or abuse of

[[Page 73067]]

charitable resources--to ensure that the recipient has taken adequate 
measures to protect its charitable resources from diversion to, or 
abuse by, terrorists or their support networks.

[FR Doc. 05-23854 Filed 12-7-05; 8:45 am]
BILLING CODE 4811-37-P