[Federal Register Volume 76, Number 200 (Monday, October 17, 2011)]
[Proposed Rules]
[Pages 64049-64055]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2011-26743]


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DEPARTMENT OF THE TREASURY

Financial Crimes Enforcement Network

31 CFR Part 1010

RIN 1506-AB13


Bank Secrecy Act Regulations: Definition of ``Monetary 
Instrument''

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

ACTION: Notice of proposed rulemaking.

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SUMMARY: FinCEN is proposing to amend the definition of ``monetary 
instrument'' in the Bank Secrecy Act (``BSA'') regulations for purposes 
of the international transport of currency and monetary instrument 
reporting requirement to include tangible prepaid access devices.

DATES: Written comments on this notice of proposed rulemaking must be 
submitted on or before December 16, 2011.

ADDRESSES: You may submit comments, identified by RIN 1506-AB13, by any 
of the following methods:
     Federal E-rulemaking Portal: http://www.regulations.gov. 
Follow the instructions for submitting comments. Include 1506-AB13 in 
the submission. Refer to Docket Number FINCEN-2011-0003.
     Mail: FinCEN, P.O. Box 39, Vienna, VA 22183. Include 1506-
AB13 in the body of the text. Please submit comments by one method 
only. Comments submitted in response to this notice of proposed 
rulemaking will become a matter of public record. Therefore, you should 
submit only information that you wish to make publicly available.
    Inspection of comments: Public comments received electronically or 
through the U.S. Postal Service sent in response to a notice and 
request for comment will be made available for public review as soon as 
possible on http://www.regulations.gov. Comments received may be 
physically inspected in the FinCEN reading room located in Vienna, 
Virginia. Reading room appointments are available weekdays (excluding 
holidays) between 10 a.m. and 3 p.m., by calling the Disclosure Officer 
at (703) 905-5034 (not a toll-free call).

FOR FURTHER INFORMATION CONTACT: FinCEN, Regulatory Policy and Programs 
Division at (800) 949-2732 and select Option 1.

SUPPLEMENTARY INFORMATION: 

[[Page 64050]]

I. Introduction

A. Statutory Background

    The BSA, Titles I and II of Public Law 91-508, as amended, codified 
at 12 U.S.C. 1829b and 1951-1959, and 31 U.S.C. 5311-5314 and 5316-
5332, authorizes the Secretary of the Treasury (the ``Secretary'') to 
issue regulations requiring financial institutions to keep records and 
file reports that the Secretary determines ``have a high degree of 
usefulness in criminal, tax, or regulatory investigations or 
proceedings, or in the conduct of intelligence or counterintelligence 
matters, including analysis to protect against international 
terrorism.'' \1\ The Secretary's authority to administer the BSA and 
its implementing regulations has been delegated to the Director of 
FinCEN.\2\ FinCEN has interpreted the BSA through implementing 
regulations (``BSA regulations'' or ``BSA rules'') that appear at 31 
CFR Chapter X.\3\
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    \1\ 31 U.S.C. 5311.
    \2\ See Treasury Order 180-01 (Sept. 26, 2002).
    \3\ On October 26, 2010, FinCEN issued a final rule creating a 
new Chapter X in Title 31 of the Code of Federal Regulations for the 
BSA regulations. See 75 FR 65806 (October 26, 2010) (Transfer and 
Reorganization of Bank Secrecy Act Regulations Final Rule) (referred 
to herein as the ``Chapter X Final Rule''). The Chapter X Final Rule 
became effective on March 1, 2011.
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    Reports on the international transportation and receipt of monetary 
instruments are among those authorized by the BSA.\4\ Pursuant to this 
authority, FinCEN has issued regulations requiring that a form be filed 
reporting the international transportation, mail, or shipment of 
currency or other monetary instruments in an aggregate amount that 
exceeds $10,000.\5\ The regulations, initially issued in 1972, are 
currently found at 31 CFR 1010.340, and the definition of ``monetary 
instrument'' is at 31 CFR 1010.100(dd).
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    \4\ 31 U.S.C. 5316.
    \5\ The report is filed on Form 105, ``Report of International 
Transport of Currency or Monetary Instruments'' (``CMIR'').
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    The term ``monetary instrument'' is defined in the BSA to include 
currency and a variety of bearer negotiable instruments, securities, 
and similar items, but does not specifically include any types of 
prepaid access devices.\6\ Nevertheless, FinCEN has regulatory 
authority to expand the definition of monetary instruments to include 
items deemed to be ``similar materials'' to coins and currency of a 
foreign country, travelers' checks, bearer negotiable instruments, 
bearer investment securities, bearer securities, and stock on which 
title is passed on delivery.\7\ Pursuant to this authority, FinCEN is 
proposing to amend the definition of ``monetary instrument'' for 
purposes of the international transport of currency and monetary 
instrument reporting (``CMIR'') requirement at 31 CFR 1010.340 to 
include tangible prepaid access devices.
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    \6\ Specifically, 31 U.S.C. 5312(a)(3) defines ``monetary 
instruments'' to mean:
    (A) United States coins and currency;
    (B) as the Secretary may prescribe by regulation, coins and 
currency of a foreign country, travelers' checks, bearer negotiable 
instruments, bearer investment securities, bearer securities, stock 
on which title is passed on delivery, and similar material; and
    (C) as the Secretary of the Treasury shall provide by regulation 
for purposes of sections 5316 and 5331, checks, drafts, notes, money 
orders, and other similar instruments which are drawn on or by a 
foreign financial institution and are not in bearer form. (Emphasis 
added.)
    \7\ Id.
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    On May 22, 2009, when FinCEN regulations still referred to stored 
value rather than prepaid access, the President signed the Credit Card 
Accountability Responsibility and Disclosure (CARD) Act of 2009 (``CARD 
Act'').\8\ Section 503 of the CARD Act required the issuance of 
``regulations in final form implementing the Bank Secrecy Act, 
regarding the sale, issuance, redemption, or international transport of 
stored value, including stored value cards.'' \9\ The CARD Act 
authorizes ``regulations regarding international transport'' of prepaid 
access devices, including ``reporting requirements pursuant to Section 
5316 of title 31, United States Code.''
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    \8\ P.L. 111-24 (May 22, 2009), 123 Stat. 1734.
    \9\ Id., Sec. 503(a), (c).
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    Pursuant to the BSA and CARD Act, FinCEN published the Notice of 
Proposed Rulemaking--Definitions and Other Regulations Relating to 
Prepaid Access on June 28, 2010 (``Prepaid Access NPRM''),\10\ and, on 
July 29, 2011, issued a Final Rule entitled ``Definitions and Other 
Regulations Relating to Prepaid Access'' (the ``Prepaid Access Final 
Rule'').\11\ The Final Rule contains definitions of ``prepaid access'' 
\12\ and related terms and imposes registration, reporting, record-
keeping, and anti-money laundering program requirements on providers 
and sellers of prepaid access. While the Final Rule does not address 
reporting requirements for prepaid access with respect to the 
international transport of monetary instruments pursuant to 31 CFR 
1010.340 because it's provisions provide definitions and requirements 
for money services businesses, it does provide the necessary first step 
before this rule could be proposed by creating a regulatory framework 
and definition of prepaid access.
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    \10\ 75 FR 36589. The Prepaid Access NPRM discussed FinCEN's 
engagement with the Department of Homeland Security and other 
members of the law enforcement community in an attempt to identify 
appropriate solutions regarding reporting of the international 
transport of prepaid access, see 75 FR 36593.
    \11\ 76 FR 45403.
    \12\ The Final Rule defines ``prepaid access'' as access to 
funds or the value of funds that have been paid in advance and can 
be retrieved or transferred at some point in the future through an 
electronic device or vehicle, such as a card, code, electronic 
serial number, mobile identification number, or personal 
identification number. 31 CFR 1010.100(ww). The Final Rule replaces 
the term ``stored value'' with ``prepaid access.''
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    Congress enacted the requirements of the CARD Act because of the 
potential to substitute prepaid access for cash and other monetary 
instruments as a means to smuggle the proceeds of illegal activity into 
and out of the United States, as various reports and cases have 
suggested.\13\ In a May 13, 2009 statement, Senator Collins, 
introducing the amendment that added Section 503 to the CARD Act, 
stated:
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    \13\ See Money Laundering Using New Payment Methods, Financial 
Action Task Force, October 2010 (http://www.fatf-gafi.org/dataoecd/4/56/46705859.pdf ).

    ``[S]tored value cards have been used and are being used by 
Mexican drug cartels to smuggle their drug revenues back to Mexico. 
The Department of Justice estimates that up to $24 billion in cash 
is smuggled into Mexico each year from the United States and these 
stored value cards are one of the means by which the cash is 
smuggled back into Mexico. Stored value cards can be loaded 
anonymously by individuals who are involved in criminal enterprises, 
such as drug trafficking. The cards are then physically smuggled 
across the border and can be used to withdraw large quantities of 
cash from ATMs.'' \14\
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    \14\ See 155 Cong. Rec. S5426-5427

    The 2007 National Money Laundering Strategy stated that prepaid 
access is ``* * * an emerging cash alternative for both legitimate 
consumers and money launderers alike.'' \15\ A U.S. Immigration and 
Customs Enforcement official cited a case example where
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    \15\ See http://www.treasury.gov/resource-center/terrorist-illicit-finance/Documents/nmls.pdf.

``hundreds of [prepaid cards] were found concealed in a compartment 
similar to those used to conceal cash, drugs and other contraband. 
The cards are also being used by criminal organizations to cover 
`expenses' incurred by their couriers as they transport cash, drugs 
and other contraband across the country * * * '' \16\
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    \16\ Statement of Kumar C. Kibble, Deputy Director, U.S. 
Immigration and Customs Enforcement, Department of Homeland 
Security, before the U.S. Senate Caucus on International Narcotics 
Control, March 9, 2011.

    This proposal addresses the money laundering and terrorist 
financing vulnerabilities illustrated by these examples.

[[Page 64051]]

B. Legislative History of 31 U.S.C. 5316

    The proposal is consistent with the legislative history of the 
definition of monetary instrument and the border reporting requirement. 
When Congress enacted the BSA, it defined ``monetary instrument'' for 
purposes of the international transport reporting requirement to mean:

``* * * coin and currency of the United States, and in addition, 
such foreign coin and currencies, and such types of travelers 
checks, bearer negotiable instruments, bearer investment securities, 
bearer securities, and stock with title passing upon delivery, or 
the equivalent thereof, as the Secretary may by regulation specify 
for the purposes of the provision of this title to which the 
regulation relates.'' \17\ (Emphasis added.)
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    \17\ Section 203(l), Public Law 91-508, H.R. 15073 (Oct. 26, 
1970).

    The Treasury Department was a key proponent of the BSA, as part of 
which it advocated for a border reporting requirement for monetary 
instruments to include ``U.S. currency or its equivalent, such as 
foreign currency, travelers checks, and other items which can pass 
freely by delivery,'' (emphasis added) in order to remove a potential 
loophole in the reporting regime.\18\
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    \18\ Hearings before the Committee on Banking and Currency 
(House) regarding H.R. 15073, Statement of Eugene T. Rossides, 
Assistant Secretary of the Treasury for Enforcement and Operations 
(March 2, 1970), p. 151. In subsequent testimony, Assistant 
Secretary Rossides testified further with regard to the importance 
of including in the definition, in addition to U.S. currency and 
particular instruments, the phrase ``or their equivalent'': ``The 
term `or their equivalent' is necessary to permit the Secretary of 
the Treasury the necessary discretion to include other types of 
instruments which are easily transferrable which may not be in 
bearer form.'' Hearings before the Subcommittee on Financial 
Institutions of the Committee on Banking and Currency (Senate) 
regarding S. 3678 and H.R. 15073 (June 8, 9, 10, and 11, 1970), 
Statement of Eugene T. Rossides, Assistant Secretary of the Treasury 
for Enforcement and Operations (June 9, 1970), p. 183 (internal 
citations omitted). (Emphasis in original.)
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    The definition was amended when Congress revised and restated Title 
31 of the United States Code by deleting the phrase ``or the equivalent 
thereof'' and substituting the phrase ``or similar material.'' \19\ 
Congress expressly stated that this change was not intended to make a 
substantive change to the meaning and was done only for clarity.\20\ 
With this change, Congress articulated a preference for the phrase 
``similar material,'' signaling that it more clearly explained the 
intent of the provision than the phrase ``the equivalent thereof'' in 
the original text.
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    \19\ 31 U.S.C. 5312(a)(3).
    \20\ Public Law 97-258 (Sept. 13, 1982), enacting H.R. 6128 to 
revise, codify and enact without substantive change certain general 
and permanent laws related to money and finance as Title 31, United 
States Code. ``This bill makes no substantive change in the law.'' 
Committee Report No. 97-651 to H.R. 6128, p.28 (July 21, 1982) (In 
subsection (a)(3)(B), the words ``in addition'', and ``and such 
types of'' are omitted as surplus. The words ``similar material'' 
are substituted for ``the equivalent thereof'' for clarity).
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II. Meaning of ``Similar Material''

    Based on this legislative history, it is clear that Congress was 
concerned with persons transferring monetary value anonymously across 
international borders, particularly in connection with criminal 
activity. Clearly, such activity at the time of enactment was primarily 
accomplished through the use of currency and other substitutes for 
currency, such as bearer negotiable instruments or securities. 
Accordingly, the definition contains a list of such substitutes for 
currency identified for this purpose. However, the definition is not 
limited to the listed items, but is expressly expanded to include other 
``similar material.''
    The authority to extend these reports to items similar to U.S. 
currency is consistent with the legislative purpose behind BSA 
reporting--facilitating the traceability of currency and its 
equivalents and eliminating anonymous international flows of money. 
FinCEN believes it is reasonable to conclude that items that can be 
used to accomplish the same anonymous transfer of monetary value 
Congress sought to reach are items properly within the scope of the 
term ``monetary instrument.'' Moreover, FinCEN finds that this 
interpretation is consistent with the purpose of the BSA to address 
gaps in the ability to trace the flow of currency and its equivalents 
through reporting requirements that are highly useful in criminal, tax, 
or regulatory investigations or proceedings, or in the conduct of 
intelligence or counterintelligence matters, including analysis to 
protect against international terrorism.\21\
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    \21\ 31 U.S.C. 5311.
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    Prepaid access devices are ``similar material'' to the items listed 
in the definition of a monetary instrument in 31 U.S.C. 5312(b)(3), 
``travelers checks, bearer negotiable instruments, bearer investment 
securities, bearer securities, and stock with title passing upon 
delivery,'' in that they can be used as a substitute for currency, the 
funds they provide access to are accessible by the bearer of the 
device, and they can be transferred from person to person without a 
record of the chain of title. In particular they are similar to 
traveler's checks and bearer negotiable instruments such as cashier's 
and certified checks.
    Although a traveler's check has the formal characteristics of a 
negotiable instrument,\22\ it is used and accepted as ready cash 
because payment is guaranteed by the issuer, who has already received 
the value of the funds represented on the face of the check. Those 
funds are held in an account specifically for that purpose, although 
the account is not one established by the purchaser.\23\ Traveler's 
checks are purchased from the issuer in advance of use and in amounts 
corresponding to specific denominations of United States or foreign 
currency.
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    \22\ See UCC 3-104(i) and 12 CFR 229.2(hh) (Availability of 
Funds and Collection of Checks (Regulation CC)).
    \23\ Generally, traveler's checks are thought of as being 
``safer than cash'' because issuers promise to replace them if they 
are lost or stolen. Further, they have no expiration date and hold 
their face value until used.
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    Under the Uniform Commercial Code (the ``UCC''), a negotiable 
instrument is an unconditional order or promise to pay a fixed or 
determinable amount of money to bearer or to order that is payable on 
demand or at a definite time.\24\ Rights and obligations contained in a 
negotiable instrument can be altered by endorsement. The ordinary 
manner in which the payee of a check endorses that check is by placing 
his or her signature on the back of it. An endorsement may be made 
after a specific direction (``pay to Dolly Madison'' or ``for deposit 
only''), called a qualified or restricted endorsement, or with no 
qualifying or restricting language, thereby making it payable to the 
holder, called a blank endorsement. A blank endorsement creates a 
bearer negotiable instrument, which is payable to whomever possesses 
it, just like most tangible prepaid access devices. Once endorsed in 
blank, a negotiable instrument can be transferred without any record of 
transfer.
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    \24\ See UCC Sec.  3-104 (1990, unchanged in 2002 revisions). 
Technically, there is an additional requirement: that the order or 
promise not state any other undertaking or instruction by the person 
promising or ordering payment.
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    Common negotiable instruments include cashier's and certified 
checks. A cashier's check represents funds paid by the purchaser to a 
bank, as represented by the face value. The check is issued and 
certified by the bank on the bank's own account (not that of the 
purchaser).\25\ The check will state the name of both purchaser and 
payee but because it is a negotiable instrument, it can be transformed 
into a bearer negotiable instrument by a blank endorsement. A cashier's 
check does not depend on a private account and, therefore, is received 
as cash. Certified

[[Page 64052]]

checks are similar in that the face value of the check represents funds 
paid by the purchaser to a bank, which is guaranteed for payment and 
can be converted into a bearer negotiable instrument.\26\
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    \25\ See UCC Sec.  3-104(g) and 12 CFR 229.2(i) (Availability of 
Funds and Collection of Checks (Regulation CC)).
    \26\ 12 CFR 229.2(j) (Availability of Funds and Collection of 
Checks (Regulation CC)).
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    These instruments are similar to tangible prepaid access devices in 
that they are issued based on funds already received by the issuer, 
which is intended to facilitate immediate payment. The promises or 
orders underlying them are guaranteed for payment, giving them enhanced 
liquidity--the quintessential purpose of these instruments--enabling 
them to be treated as a substitute for cash. As bearer instruments, 
they are payable to whomever has possession, allowing transfers to be 
made with no record of the chain of ownership. Tangible prepaid access 
devices serve the identical purpose. In this context prepaid access 
devices serve as ready cash or the value of cash, and as a means of 
payment, are intended to provide the same (or superior) certainty as 
the bearer instruments listed in the definition of monetary instrument. 
The funds represented by prepaid access devices are payable to or 
readily usable by the bearer of the device, with no record necessary to 
track the chain of ownership. Consequently, FinCEN believes that 
prepaid access devices are ``similar material'' to those bearer 
instruments that are included in the definition of monetary 
instruments.

III. Section-by-Section Analysis

    Under the Prepaid Access Final Rule, FinCEN regulations define the 
term ``prepaid access'' very broadly to mean ``[a]ccess to funds or the 
value of funds that have been paid in advance and can be retrieved or 
transferred at some point in the future through an electronic device or 
vehicle, such as a card, code, electronic serial number, mobile 
identification number, or personal identification number.'' \27\ While 
the devices or vehicles that can provide access to prepaid funds are 
potentially limitless, this proposal is narrowly focused on tangible 
prepaid access devices transported, mailed, or shipped across the 
border of the United States.
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    \27\ 31 CFR 1010.100(ww).
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A. Proposed 31 CFR 1010.100(dd)

    Pursuant to FinCEN's authority under 31 U.S.C. 5312, FinCEN 
proposes to amend 31 CFR 1010.100 by revising the definition of 
``monetary instrument'' as that term is used for purposes of complying 
with the CMIR requirement at Sec.  1010.340. In particular, the 
proposed revisions would add prepaid access devices to the BSA 
definition of monetary instrument by revising 31 CFR 1010.100(dd)(2) 
and add a new 31 CFR 1010.100(dd)(3) that would incorporate the 
exclusions for warehouse receipts and bills of lading, currently found 
at 31 CFR 1010.100(dd)(2), as well as adding exclusions for credit and 
debit cards. The proposed revisions to 31 CFR 1010.100(dd) would: (a) 
Expand the definition to include tangible prepaid access devices; (b) 
limit the application of the expanded definition to tangible prepaid 
access only for purposes of the CMIR reporting requirement at Sec.  
1010.340; (c) establish that the value of any such prepaid access 
device would be determined by the amount of the funds available through 
the device at the time of physical transportation, mail or shipment 
into or out of the United States; and (d) clarify that credit cards and 
debit cards are not a form of monetary instrument for BSA purposes.
1. Proposed 31 CFR 1010.100(dd)(2)
    The proposed revision to 31 CFR 1010.100(dd)(2) would provide that, 
for purposes of the CMIR regulations issued pursuant to 31 U.S.C. 5316, 
the definition of monetary instrument includes tangible prepaid access 
devices.
    The proposed inclusion of ``tangible prepaid access devices'' 
within ``monetary instrument'' is limited in scope to CMIR filing 
obligations found at 31 CFR 1010.340 and related BSA rules involving 
the definitions, penalty, seizure, and enforcement provisions that 
refer to those obligations. This proposed regulation is not intended to 
extend to tangible prepaid access devices the record keeping and other 
reporting requirements applicable to monetary instruments under other 
provisions of the BSA regulations.
    The term ``tangible prepaid access device'' is defined at 31 CFR 
1010.100(dd)(2) to mean ``any physical item that can be transported, 
mailed, or shipped into or out of the United States and the use of 
which is dedicated to obtaining access to prepaid funds or the value of 
funds by the possessor in any manner without regard to whom the prepaid 
access is issued.'' This definition includes the predominant forms of 
prepaid devices such as general-use prepaid cards, gift cards, store 
cards, payroll cards, and government benefit cards. It also includes 
cell phones and other tangible devices to the extent that they 
themselves, or an item built into or attached to them, provide access 
to prepaid funds or the value of funds by being readable by a device 
employed for the purpose by merchants. The proposed definition does not 
reach intangible vehicles for accessing prepaid funds or the value of 
funds, such as codes and PINs. It also does not reach tangible items 
that may be incidental to obtaining access to intangible prepaid 
access, such as laptop computers, Web-enabled cell phones, or other 
devices that are not dedicated to accessing specific prepaid funds.
    The proposed revision to 31 CFR 1010.100(dd)(2) would also provide 
that the point in time at which the value of a tangible prepaid access 
device is measured is the time at which it crosses into or out of the 
United States. For purposes of complying with the CMIR reporting 
requirement at Sec.  1010.340, the proposed definition would establish 
that the balance available through any such access device as a monetary 
instrument ``at the time of the physical transportation, mail, or 
shipment into or out of the United States'' would be the reportable 
value. In cases of mail or shipment, there is a presumption that the 
value available through the device remains the same throughout the 
period of shipment.
2. Proposed 31 CFR 1010.100(dd)(3)
    The proposed revisions clarify that credit and debit cards are not 
a form of monetary instrument for BSA purposes. For this purpose the 
proposed definition adopts the definition of credit card used in the 
consumer credit protection law \28\ and Truth-In-Lending Act 
regulations (Regulation Z),\29\ which define the term to mean any card, 
plate, coupon book, or other credit device existing for the purpose of 
obtaining money, property, labor, or services on credit. With respect 
to debit cards, the proposed definition adopts the portion of the 
definition of debit card used in the consumer credit protection 
law,\30\ which defines the term to mean any card, or other payment code 
or device, issued or approved for use through a payment card network to 
debit an individual's asset account (regardless of the purpose for 
which the account is established), whether authorization is based on 
signature, PIN, or other means. The proposed definition would not adopt 
the rest of the debit card definition in the consumer credit protection 
law that goes on to include general-use prepaid cards and exclude paper 
checks.\31\ Debit cards associated with a bank account are not included

[[Page 64053]]

within the meaning of the term monetary instrument.
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    \28\ 15 U.S.C. 1602(k).
    \29\ 12 CFR 226.2(15).
    \30\ 15 U.S.C. 1693o-2(c)(2)(A).
    \31\ 15 U.S.C. 1693o-2(c)(2)(B) and (C).
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B. Proposed 31 CFR 1010.340(c)(10)

    The proposed regulation would add new 31 CFR 1010.340(c)(10) to 
exclude from the reporting requirement the international 
transportation, mail, or shipment of tangible prepaid access devices by 
a business or its agent offering such products prior to their delivery 
to a seller for sale to the public. This provision mirrors the 
exclusion for a traveler's check issuer or its agent found at 31 CFR 
1010.340(c)(7). The phrase ``[a] business participating in the offering 
of tangible prepaid access devices or its agent'' is intended to 
include all of the participants in a prepaid access program and their 
agents, if any. The proposed rule is only intended to capture tangible 
prepaid access devices that have been purchased for use, loaded with 
funds, and ``activated'' by whatever process a particular prepaid 
program requires for loaded funds to be made available for use.

IV. Questions for Public Comment

    A. There may be obstacles to law enforcement identifying prepaid 
access devices and verifying the available balance. Branded open loop 
prepaid access devices can be indistinguishable from credit and debit 
cards, making it difficult for border agents and other law enforcement 
authorities to identify prepaid access devices. Various impediments, 
such as the Right to Financial Privacy Act \32\ or state privacy laws 
involving individuals' bank records, may make it difficult to determine 
the available balance of an underlying prepaid access device, since the 
value is not generally indicated on its face.\33\ Further, where the 
prepaid access device takes a novel form (not a card or chip), law 
enforcement may not be prepared with a device to read the available 
balance. Moreover, since a holder of certain prepaid access devices may 
experience difficulties in retrieving records concerning the prepaid 
access device, a declaration concerning available balance may be 
unintentionally inaccurate. The holder may also not be directly 
responsible for adding value to the prepaid program, which could also 
result in a declaration concerning the available balance being 
unintentionally inaccurate. FinCEN requests comment on these and any 
other potential obstacles to law enforcement identifying prepaid access 
devices and verifying the accessible value, including suggestions as to 
how they may be addressed.
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    \32\ 12 U.S.C. 3401, et seq.
    \33\ The Credit CARD Act of 2009 and Prepaid Cards, Payment 
Cards Center Note, Federal Reserve Bank of Philadelphia, August 
2009.
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    B. Prepaid access devices vary in form and function, including 
closed loop cards that can be used only at a specific store or 
merchant, or for a specific service, and cannot be used at ATMs to 
access cash. These cards typically bear no information identifying the 
cardholder, so they can be used by anyone who possesses the card. 
Although their limited functionality may mitigate their potential use 
as a money laundering device as they cannot be used as a cash access 
device, they might be sold outright for cash. Should these closed loop 
cards continue to be subject to a border declaration obligation as 
proposed? Should other types of lower-risk prepaid access devices that 
are not considered prepaid programs under the final prepaid rule be 
excluded from the definition of monetary instruments, such as 
government-funded, limited-value, or payroll cards?
    C. Branded open loop reloadable cards are the prepaid access device 
most similar to debit cards, some allowing both cash access via ATMs 
and the ability to conduct transactions at a physical point of sale or 
online. Currently, in the United States, debit cards and open loop 
prepaid access cards that bear a global network brand (e.g., MasterCard 
and Visa), are exclusively issued by depository institutions. 
Depository institutions are already subject to a full slate of anti-
money laundering (``AML'') obligations, including a customer 
identification program rule.\34\ Consequently, these cards may bear the 
name, embossed on the front of the card, of the person to whom the card 
has been issued in the same manner as a debit or credit card. Should 
branded open loop reloadable prepaid cards with the name of the person 
to whom the card has been issued embossed on the front of the card be 
subject to border declaration as monetary instruments?
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    \34\ 31 CFR 1020.220.
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    D. Certain prepaid access programs, whether open or closed loop, 
allow value to be added remotely to the funds accessible via the card 
or other device. The effect is that someone other than the holder can 
add value to the funds available to the holder. This is a typical 
arrangement, for example, when parents give a prepaid access card to a 
child away at school or when migrant laborers use a prepaid access 
device to provide financial support to family members who remain in the 
home country. In these circumstances, a prepaid access card or device 
may cross the border out of or into the United States without an 
available balance, but may later, when funds are added to the prepaid 
access device, be able to access value. Should the border declaration 
obligation be associated with the value immediately available to a 
prepaid access device at the time the device enters or leaves the 
country or should the declaration obligation apply to the potential 
maximum value available via the prepaid access device?
    E. Payment technology is a fast moving industry, with new programs 
and access devices and methods constantly in development. There may 
soon be the potential for a code or password, or object not typically 
associated with payment system access (e.g., cell phone or key fob), to 
be brought into or taken out of the United States and used to access 
cash drawn from a prepaid access program either via an ATM or 
otherwise. Should the border declaration apply to codes, passwords, and 
other intangibles as well as to any tangible object that is dedicated 
to accessing prepaid funds? Should it only apply to cards, or also to 
cell phones, key fobs, or other tangible objects that include a device 
that enables them to function in a similar manner to ``swiping'' a 
magnetic stripe card?
    F. FinCEN also specifically requests comments identifying any 
additional costs associated with the completion of the CMIR form as a 
result of this proposed rule.
    G. FinCEN requests comment regarding whether it is appropriate to 
exempt, in proposed 31 CFR 1010.340(c)(10), the international transport 
mail or shipment by a prepaid access business or its agents of tangible 
prepaid access devices prior to their delivery to a seller for sale to 
the public. This provision would parallel the exemption for traveler's 
checks found at 31 CFR 1010.340(c)(7).
    H. FinCEN requests comment on whether devices that require a PIN 
number for a point of sale or for ATM use should be excluded as 
intangible prepaid access.

V. Regulatory Flexibility Act

    When an agency issues a rulemaking proposal, the Regulatory 
Flexibility Act (RFA) requires the agency to ``prepare and make 
available for public comment an initial regulatory flexibility 
analysis'' that will ``describe the impact of the proposed rule on 
small entities.'' (5 U.S.C. 603(a)). Section 605 of the RFA allows an 
agency to certify a rule, in lieu of preparing an analysis, if the 
proposed rulemaking is not expected to have a

[[Page 64054]]

significant economic impact on a substantial number of small entities.
    The proposed rule will apply to all persons, a term that includes 
individuals and entities of all sizes, if they conduct a reportable 
action under the rule. The proposed rule is targeted at obtaining 
reports from individuals transporting over $10,000 in currency, 
tangible prepaid access devices, or other monetary instruments into or 
out of the United States. FinCEN estimates that the number of reports 
filed by small entities will be few and not impact a substantial number 
of those entities.\35\
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    \35\ FinCEN has exempted the presale transportation of prepaid 
devices, thus limiting the majority of instances when an entity, as 
opposed to an individual, would have been required to report.
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    FinCEN estimates that the proposed rule will result in a total of 
8,000 annual reports.\36\ The majority of these reports will be filed 
by individuals. FinCEN estimates that each report will take 11 minutes 
to complete. FinCEN does not believe that this proposed rule will have 
a significant economic impact on a substantial number of small 
entities.
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    \36\ In 2010, 200,000 CMIRs were filed. Of those CMIRs filed, 
32,000 indicated monetary instruments crossed the border. By 
comparing the transaction volumes of prepaid devices with other 
monetary instruments, FinCEN determined that the proposed rule will 
increase the number of CMIRs indicating monetary instruments by 25% 
or 8,000 reports. Because the average burden per report is 11 
minutes, the proposed rule will increase the collection by 1,467 
hours.
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    Pursuant to the Regulatory Flexibility Act (5 U.S.C. 605) and the 
reasons stated above, it is hereby certified that this proposed rule 
will not have a significant economic impact on a substantial number of 
small entities. Accordingly, a regulatory flexibility analysis is not 
required. FinCEN invites comments on the impact of this proposed rule 
on small entities.

VI. Paperwork Reduction Act

    The collection of information contained in this proposed rule has 
been submitted to the Office of Management and Budget for review in 
accordance with the Paperwork Reduction Act of 1995 (44 U.S.C. 
3507(d)). Under the Paperwork Reduction Act, an agency may not conduct 
or sponsor, and an individual is not required to respond to, a 
collection of information unless it displays a valid OMB control 
number. Comments on the information collection should be sent to the 
Desk Officer for the Department of the Treasury, Office of Information 
and Regulatory Affairs, Office of Management and Budget, Paperwork 
Reduction Project (1506), Washington, DC 20503, or by the Internet to 
[email protected] with a copy to the Financial Crimes 
Enforcement Network by mail or as part of the comments through the 
Internet. Comments are welcome and must be received by December 16, 
2011.
    Report of International Transportation of Currency or Monetary 
Instruments (31 CFR 1010.340).Office of Management and Budget Control 
Number: 1506-0014. (FinCEN Form 105)
    This information is required to be provided pursuant to 31 U.S.C. 
5316(a). Information collected on the CMIR is made available, in 
accordance with strict safeguards, to appropriate criminal law 
enforcement and regulatory personnel in the official performance of 
their duties. The information collected is of use in investigations 
involving international and domestic money laundering, tax evasion, 
fraud, and other financial crimes. The collection of information is 
mandatory. Records required to be retained under the Bank Secrecy Act 
must be retained for five years. In 2009, OMB approved FinCEN for 
51,333 hours under OMB control number 1506-0014. The collection of 
reports on the international transportation of prepaid devices will add 
to the estimated burden by 1,467 hours.\37\ However, the actual annual 
reporting activity since 2009 (36,667 hours) has been notably less than 
the amount approved by OMB in 2009 (51,333 hours). To accommodate for 
this difference and provide a more accurate estimate going forward, 
FinCEN is reducing the overall burden for this collection by 7,333 
hours. Therefore, as proposed, the net reduction to the overall 
approved burden under OMB Control Number 1506-0014 is 5,866 hours.
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    \37\ Id.
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    Description of Respondents: Individuals, business or other for-
profit institutions, and not-for-profit institutions involved in the 
international transport of monetary instruments.
    Estimated Number of Respondents: The rule decreases the number of 
reports by 32,000.
    Estimated Average Annual Burden Hours per Respondent: The estimated 
average annual burden associated with the reporting requirement in 31 
CFR 1020.340 is 11 minutes.
    Estimated Total Annual Recordkeeping Burden: 45,467 hours.
    Request for Comments: FinCEN specifically invite comments on: (a) 
Whether the proposed recordkeeping requirements are necessary for the 
proper performance of the mission of the FinCEN, and whether the 
information shall have practical utility; (b) the accuracy of FinCEN's 
estimate of the burden of the proposed recordkeeping requirement; (c) 
ways to enhance the quality, utility, and clarity of the information 
required, and (d) how the burden of complying with the proposed 
collection of information may be minimized, including through the 
application of automated collection techniques or other forms of 
information technology.

VII. Executive Orders 12866 and 13563

    Executive Orders 13563 and 12866 direct agencies to assess all 
costs and benefits of available regulatory alternatives and, if 
regulation is necessary, to select regulatory approaches that maximize 
net benefits (including potential economic, environmental, public 
health and safety effects, distributive impacts, and equity). Executive 
Order 13563 emphasizes the importance of quantifying costs and 
benefits, reducing costs, harmonizing rules, and promoting flexibility. 
This rule is not a significant regulatory action. Accordingly, a formal 
review by the Office of Management and Budget is not required.

VIII. Unfunded Mandates Reform Act of 1995

    Section 202 of the Unfunded Mandates Reform Act of 1995 (``Unfunded 
Mandates Act''), Public Law 104-4 (March 22, 1995), requires that an 
agency prepare a budgetary impact statement before promulgating a rule 
that may result in expenditure by State, local, and Tribal governments, 
in the aggregate, or by the private sector, of $100 million or more in 
any one year. If a budgetary impact statement is required, section 205 
of the Unfunded Mandates Act also requires an agency to identify and 
consider a reasonable number of regulatory alternatives before 
promulgating a rule. FinCEN has determined that it is not required to 
prepare a written statement under section 202.

List of Subjects in 31 CFR Parts 1010

    Administrative practice and procedure, Banks, Banking, Brokers, 
Currency, Foreign banking, Foreign currencies, Gambling, 
Investigations, Penalties, Reporting and recordkeeping requirements, 
Securities, Terrorism.

Proposed Amendments to the Regulations

    For the reasons stated in the preamble, FinCEN proposes to amend 31 
CFR part 1010 as follows:

[[Page 64055]]

PART 1010--GENERAL PROVISIONS

    1. The authority citation for part 1010 continues to read as 
follows:

    Authority:  12 U.S.C. 1829b and 1951-1959; 31 U.S.C. 5311-5314, 
5316-5332; Title V, section 503, Pub. L. 111-24.

    2. Amend Sec.  1010.100 as follows:
    a. Revise paragraph (dd)(2); and
    b. Add paragraph (dd)(3).


Sec.  1010.100  General definitions.

* * * * *
    (dd) * * *
    (2) For the purposes of complying with the currency and monetary 
instrument reporting requirements issued pursuant to 31 U.S.C. 5316, 
the term monetary instruments also includes any tangible prepaid access 
device. The term ``tangible prepaid access device'' means any physical 
item that can be transported, mailed, or shipped into or out of the 
United States and the use of which is dedicated to obtaining access to 
prepaid funds or the value of funds by the possessor in any manner 
without regard to whom the prepaid access is issued. The value of any 
such prepaid access device is the amount of the funds available to 
which the device provides access at the time of physical 
transportation, mail, or shipment into or out of the United States.
    (3) Monetary instruments do not include warehouse receipts, bills 
of lading, credit cards (as defined in as in 15 U.S.C. 1602(k), 
including cards defined in 12 CFR 226.2(15)), or debit cards (as 
defined in 15 U.S.C. 1693o-2(c)(2)(A)).
* * * * *
    3. Amend Sec.  1010.340 by adding paragraph (c)(10) to read as 
follows:


Sec.  1010.340  Reports of transportation of currency or monetary 
instruments.

* * * * *
    (c) * * *
    (10) A business participating in the offering of prepaid access or 
its agent with respect to the transportation of tangible prepaid access 
devices prior to their delivery to selling agents for eventual sale to 
the public;
* * * * *

    Dated: October 11, 2011.
 James H. Freis, Jr.,
 Director, Financial Crimes Enforcement Network.
[FR Doc. 2011-26743 Filed 10-14-11; 8:45 am]
BILLING CODE 4810-02-P