[Federal Register Volume 71, Number 61 (Thursday, March 30, 2006)]
[Rules and Regulations]
[Pages 16040-16042]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 06-3045]


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DEPARTMENT OF THE TREASURY

31 CFR Part 103

RIN 1506-AA29


Financial Crimes Enforcement Network; Anti-Money Laundering 
Programs; Special Due Diligence Programs for Certain Foreign Accounts

AGENCY: Financial Crimes Enforcement Network, Department of the 
Treasury.

ACTION: Final rule; extension of applicability dates.

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SUMMARY: The Financial Crimes Enforcement Network (``FinCEN'') is 
issuing this final rule extending, in part, the applicability dates of 
31 CFR 103.176 and 103.178 for certain covered financial institutions. 
Those sections require covered financial institutions to establish due 
diligence procedures for correspondent accounts and private banking 
accounts that they maintain for non-U.S. persons. This final rule 
extends, from April 4, 2006 to July 5, 2006, the date on which covered 
financial institutions must begin to apply the due diligence provisions 
contained in those sections to new correspondent accounts and new 
private banking accounts.

DATES: This final rule is effective on March 30, 2006. The revised 
applicability dates for 31 CFR 103.176 and 103.178 are set forth at 31 
CFR 103.176(e)(1) and 103.178(e)(1) of the final rule contained in this 
document.

FOR FURTHER INFORMATION CONTACT: Regulatory Policy and Programs 
Division, Financial Crimes Enforcement Network at (800) 949-2732.

SUPPLEMENTARY INFORMATION:

I. Background

    On January 4, 2006, we published a final rule \1\ implementing 
section 312 of the Uniting and Strengthening America by Providing 
Appropriate Tools Required to Intercept and Obstruct Terrorism (USA 
PATRIOT) Act of 2001,\2\ which amended the Bank Secrecy Act \3\ to add 
new subsection (i) to 31 U.S.C. 5318. This provision requires each U.S. 
financial institution that establishes, maintains, administers, or 
manages a correspondent account or a private banking account in the 
United States for a non-U.S. person to subject such accounts to certain 
anti-money laundering measures. In particular, financial institutions 
must establish appropriate, specific, and, where necessary, enhanced 
due diligence policies, procedures, and controls that are reasonably 
designed to enable the financial institution to detect and report 
instances of money laundering through these accounts.
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    \1\ Anti-Money Laundering Programs; Special Due Diligence 
Programs for Certain Foreign Accounts, 71 FR 496 (Jan. 4, 2006).
    \2\ Pub. L. 107-56.
    \3\ Pub. L. 91-508 (codified as amended at 12 U.S.C. 1829b, 12 
U.S.C. 1957-1959, and 31 U.S.C. 5311-5314 and 5316-5332).
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    In addition to the general due diligence requirements, which apply 
to all correspondent accounts for non-U.S. persons, section 5318(i)(2) 
specifies additional standards for correspondent accounts maintained 
for certain foreign banks. These additional standards apply to 
correspondent accounts maintained for a foreign bank operating under an 
offshore banking license, under a license issued by a country 
designated as being non-cooperative with international anti-money 
laundering principles or procedures by an intergovernmental group or 
organization of which the United States is a member and with which 
designation the United States concurs, or under a license issued by a 
country designated by the Secretary of the Treasury as warranting 
special measures due to money laundering concerns. A financial 
institution must take reasonable steps to: (1) Conduct enhanced 
scrutiny of a correspondent account maintained for or on behalf of such 
a foreign bank to guard against money laundering and to report 
suspicious activity; (2) ascertain whether such a foreign bank provides 
correspondent accounts to other foreign banks and, if so, ascertain the 
identity of those foreign banks and conduct due diligence as 
appropriate; and (3) identify the owners of such a foreign bank if its 
shares are not publicly traded.
    Section 5318(i) also sets forth minimum due diligence requirements 
for private banking accounts for non-U.S. persons. Specifically, a 
covered financial institution must take reasonable steps to ascertain 
the identity of the nominal and beneficial owners of, and the source of 
funds deposited into, private banking accounts, as necessary to guard 
against money laundering and to report suspicious transactions. The 
institution must also conduct enhanced scrutiny of private banking 
accounts requested or maintained for or on behalf of senior foreign 
political figures, including their family members and their close 
associates. Such enhanced scrutiny must be reasonably designed to 
detect and report transactions that may involve the proceeds of foreign 
corruption.
    On February 23, 2006, the Investment Company Institute (``ICI''), 
the Securities Industry Association (``SIA''), and the Futures Industry 
Association (``FIA'') \4\ submitted letters expressing concern that it 
will be difficult for their members to implement the due diligence 
rules for correspondent accounts and private banking accounts by the 
compliance dates for new accounts in each rule. On March 10, 2006, The 
Clearing House Association L.L.C. (``The Clearing House'') submitted a 
letter expressing the same concern on behalf of its member banks.\5\ 
The associations have explained that additional time is needed for 
their

[[Page 16041]]

members to design, develop, test, and implement procedures, forms, and 
systems under the new rules. They have requested an additional 90 days 
for their member organizations to begin applying the due diligence 
provisions of the final rules to new accounts.\6\
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    \4\ The ICI is the national association of the U.S. investment 
company industry, including 8,554 open-end investment companies 
(mutual funds), 7,654 closed-end investment companies, 162 exchange-
traded funds, and five sponsors of unit investment trusts. The SIA 
is a trade association whose membership includes more than 600 
securities firms, including investment banks, broker-dealers, and 
mutual fund companies. The FIA describes itself as a principal 
spokesman for the commodity futures and options industry, with a 
regular membership composed of approximately 40 of the largest 
futures commission merchants and approximately 150 associate members 
representing all segments of the futures industry.
    \5\ The members of The Clearing House are Bank of America, N.A.; 
The Bank of New York; Citibank, N.A.; Deutsche Bank Trust Company 
Americas; HSBC Bank USA, N.A.; JPMorgan Chase Bank, N.A.; LaSalle 
Bank National Association; UBS AG; U.S. Bank National Association; 
Wachovia Bank, N.A.; and Wells Fargo Bank, N.A.
    \6\ See Anti-Money Laundering Programs Special Due Diligence 
Programs for Certain Foreign Accounts, 71 FR 496 (Jan. 4, 2006) 
(requiring compliance with the due diligence provisions of the 
correspondent banking and private banking rules beginning April 4, 
2006 for correspondent accounts and private banking accounts 
established by a U.S. financial institution on or after April 4, 
2006).
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    Though banks previously were required to apply the due diligence 
requirements of section 312 of the USA PATRIOT Act to both foreign 
correspondent accounts and private banking accounts pursuant to an 
interim final rule published in July 2002,\7\ The Clearing House has 
explained that the expanded scope of the final rules require 
substantial systems, forms, and procedural changes by banks, 
necessitating their request for an additional 90 days.\8\ Broker-
dealers in securities, futures commission merchants, and introducing 
brokers in commodities have been required to apply the due diligence 
requirements of section 312 solely to private banking accounts 
according to the provisions of an interim final rule.\9\ However, as 
the SIA and FIA explained in their extension request dated February 23, 
2006 and further elaborated in a request for guidance dated March 3, 
2006, compliance expectations contained in the preamble to the final 
rule fundamentally change the way that introducing and clearing brokers 
have been meeting their due diligence obligations, complicating their 
efforts to comply with even the private banking account provisions of 
the final rule by April 4, 2006.\10\ Mutual funds were excepted from 
the provisions of the interim final rule, and need an additional 90 
days to amend their written anti-money laundering compliance policies 
and procedures to reflect the new due diligence programs and secure the 
required board approvals for such amendments.
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    \7\ See Anti-Money Laundering Programs; Special Due Diligence 
Programs for Certain Foreign Accounts, 67 FR 48348 (July 23, 2002) 
(interim final rule subjecting depository institutions to the due 
diligence provisions of section 312 of the USA PATRIOT Act for 
correspondent accounts and private banking accounts, and subjecting 
broker-dealers, futures commission merchants, and introducing 
brokers in commodities to the private banking account provisions of 
section 312, until relevant final rules were adopted).
    \8\ The Clearing House wrote that the definition of ``foreign 
financial institution'' in the final rule will require banks to make 
substantial systems and program changes to capture, for example, 
certain foreign money services businesses, for which banks 
previously had not been required to establish due diligence programs 
under section 312. The Clearing House additionally noted that the 
adoption of the statutory definition of ``correspondent account'' in 
the final rule necessitates similar substantial changes. Finally, 
the Clearing House expressed that analysis and changes will be 
required to comply with the due diligence requirements of the 
private banking account rule, as requirements of that rule now have 
been clarified.
    \9\ See id. Broker-dealers in securities, futures commission 
merchants, introducing brokers in commodities, and mutual funds 
previously were not required to apply the due diligence requirements 
of section 312 of the USA PATRIOT Act to correspondent accounts.
    \10\ The ICI, SIA, and FIA additionally noted that elements of 
the final rules, as they specifically relate to the securities and 
futures industries, have caused confusion among those industries, 
complicating efforts to establish the required due diligence 
programs. For example, treatment of customers underlying omnibus and 
intermediated relationships under both the correspondent account and 
private banking rules is an issue that has been described as 
particularly complicated.
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II. Extension of Applicability Dates for New Accounts

    In light of these requests, we believe that it is appropriate to 
extend the applicability dates by which covered financial institutions 
must apply the provisions of 31 CFR 103.176 and 103.178 to new 
accounts. Therefore, according to the amendments set forth in this 
final rule, covered financial institutions now will have until July 5, 
2006 to apply the due diligence provisions in 31 CFR 103.176 and 
103.178 to each correspondent account and private banking account 
established on or after such date.\11\ We do not anticipate granting a 
further extension beyond July 5, 2006 and expect that covered financial 
institutions thereafter will have established the due diligence 
programs necessary to comply in full with the final rules implementing 
section 312.
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    \11\ In the interim, covered financial institutions are expected 
to comply with the special applicability rules in 31 CFR 103.176(e) 
and 178(e), which are intended to ensure consistency with the 
requirements of the interim final rule until the general 
applicability dates of the final rules are triggered.
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III. Regulatory Matters

    Because this rule simply extends the time by which covered 
financial institutions must establish due diligence programs in 
accordance with the requirements of 31 CFR 103.176 and 103.178, we have 
determined that notice and public procedure are unnecessary pursuant to 
5 U.S.C. 553(b)(B) and that delayed effective dates are not required 
pursuant to 5 U.S.C. 553(d)(1).
    We have also determined that this rule is not a significant 
regulatory action for purposes of Executive Order 12866. Given that no 
notice of proposed rulemaking is required, the provisions of the 
Regulatory Flexibility Act \12\ do not apply.
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    \12\ 5 U.S.C. 601 et seq.
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List of Subjects in 31 CFR Part 103

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


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

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

0
1. The authority citation for part 103 continues to read as follows:

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


0
2. Section 103.176 is amended by revising paragraph (e)(1) to read as 
follows:


Sec.  103.176  Due diligence programs for correspondent accounts for 
foreign financial institutions.

* * * * *
    (e) * * *
    (1) General rules--(i) Correspondent accounts established on or 
after July 5, 2006. Effective July 5, 2006, the requirements of this 
section shall apply to each correspondent account established on or 
after such date.
    (ii) Correspondent accounts established before July 5, 2006. 
Effective October 2, 2006, the requirements of this section shall apply 
to each correspondent account established before July 5, 2006.
* * * * *

0
3. Section 103.178 is amended by revising paragraph (e)(1) to read as 
follows:


Sec.  103.178  Due diligence programs for private banking accounts.

* * * * *
    (e) * * *
    (1) General rules--(i) Private banking accounts established on or 
after July 5, 2006. Effective July 5, 2006, the requirements of this 
section shall apply to each private banking account established on or 
after such date.
    (ii) Private banking accounts established before July 5, 2006. 
Effective October 2, 2006, the requirements of this section shall apply 
to each private banking account established before July 5, 2006.
* * * * *


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    Dated: March 24, 2006.
Robert W. Werner,
Director, Financial Crimes Enforcement Network.
[FR Doc. 06-3045 Filed 3-29-06; 8:45 am]
BILLING CODE 4810-02-P