[Federal Register Volume 86, Number 217 (Monday, November 15, 2021)]
[Rules and Regulations]
[Pages 62914-62916]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2021-24602]


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DEPARTMENT OF THE TREASURY

Financial Crimes Enforcement Network

31 CFR Part 1010

RIN 1506-AB56


Orders Imposing Additional Reporting and Recordkeeping 
Requirements

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

ACTION: Final rule.

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SUMMARY: FinCEN is issuing this final rule to update its regulation to 
reflect amendments to the underlying statute concerning the authority 
of FinCEN to issue orders imposing additional reporting and 
recordkeeping requirements on financial institutions and nonfinancial 
trades or businesses in a geographic area.

DATES: Effective Date: November 15, 2021.

FOR FURTHER INFORMATION CONTACT: The FinCEN Regulatory Support Section 
at (800) 767-2825 or electronically at https://www.fincen.gov/contact.

SUPPLEMENTARY INFORMATION:

I. Background

    The Currency and Foreign Transactions Reporting Act of 1970, as 
amended, is the legislative framework commonly referred to as the Bank 
Secrecy Act (BSA).\1\
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    \1\ The BSA is codified at 12 U.S.C. 1829b, 12 U.S.C. 1951-1960, 
31 U.S.C. 5311-5314 and 5316-5336, and notes thereto, with 
implementing regulations at 31 CFR chapter X.
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    In 1988, the Anti-Drug Abuse Act amended the BSA, codified in 
relevant part at 31 U.S.C. 5326, to authorize the Secretary to impose 
additional reporting and recordkeeping requirements on domestic 
financial institutions in a geographic area.\2\ This grant of authority 
to the Secretary did not require the promulgation of an implementing 
regulation, and therefore was, and continues to be, self-executing.
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    \2\ Public Law 100-69, Title VI, Sec. 6185(c) (Nov. 18, 1988) 
(codified at 31 U.S.C. 5326).
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    Nevertheless, in 1989, Treasury issued a regulation incorporating 
the terms of Section 5326 that were in effect at that time. The 
regulation mirrored the statute, with the addition of certain 
clarifying and procedural language. See 54 FR 33675 (Aug. 16, 1989) 
(now codified at 31 CFR 1010.370).\3\ For example, the regulation 
substituted ``and/or'' for ``and'' in the first paragraph to make 
clear, consistent with the statute, that the Secretary could impose 
reporting or recordkeeping requirements upon a finding that such 
requirements are necessary, but need not do both. The regulation also 
interpreted the statutory phrase ``geographic area'' to mean ``any area 
in one or more States of the United States, the District of Columbia, 
the Commonwealth of Puerto Rico, the United States Virgin Islands, 
Guam, the Commonwealth of the Northern Mariana Islands, American Samoa, 
the Trust Territory of the Pacific Islands, the territories and 
possessions of the United States, and/or political subdivision or 
subdivisions thereof . . . .'' In addition, the regulation specified 
certain procedures, including that the Secretary would direct any order 
to the Chief Executive Officer of a reporting financial institution and 
would prescribe certain information in the order.
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    \3\ The original regulation was codified at 31 CFR 103.26. In 
2011, FinCEN transferred its regulations from 31 CFR part 103 to 31 
CFR chapter X.
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    In subsequent years, Section 5326 was amended three times in a 
manner that expanded the Secretary's authority. In 1992, the Annunzio-
Wylie Anti-Money Laundering Act amended Section 5326 by, among other 
things, prohibiting financial institutions from disclosing the 
existence of an order to any person except as prescribed by the 
Secretary.\4\
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    \4\ Public Law 102-550, Title XV, Sec. 1562 (Oct. 28, 1992) (now 
codified at 31 U.S.C. 5326(c)).
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    In 2001, the Uniting and Strengthening America by Providing 
Appropriate Tools Required to Intercept and Obstruct Terrorism Act of 
2001 (``USA PATRIOT Act'') extensively amended the BSA, including 
Section 5326 by adding ``nonfinancial trade or business'' after 
``financial institution'' where that phrase appears, thereby 
authorizing the Secretary to issue orders to nonfinancial trades or 
businesses in addition to financial institutions. The Act also amended 
Section 5326 to extend the maximum period for an order (unless renewed) 
from 60 days to 180 days.\5\
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    \5\ Public Law 107-56, Title III, Secs. 353(d), 365(c)(2)(B) 
(Oct. 26, 2001) (now codified at 31 U.S.C. 5326(d)).
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    In 2017, the Countering America's Adversaries Through Sanctions Act 
further amended Section 5326. This Act amended Section 5326's original 
title (``Records of certain coin and currency

[[Page 62915]]

transactions'') by striking out the phrase ``coin and currency'' before 
``transactions.'' The Act also replaced the reference to any ``coins,'' 
``currency,'' and ``monetary instrument'' with the word ``funds,'' 
thereby making clear that a transaction need not involve only coin, 
currency, or monetary instruments to be covered under an order. The 
section was also amended to change the Secretary's required finding 
that an order be ``necessary to carry out the purposes of this subtitle 
or to prevent evasions thereof.'' In replacing ``and'' with ``or,'' 
this amendment thereby required one such finding, but not both.\6\
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    \6\ Public Law 115-44, Title II, Sec. 275(a) (Aug. 2, 2017) 
(codified at 31 U.S.C. 5326).
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    The elements of the regulation that incorporated the terms of the 
statute in 1989 were not intended to limit the Secretary's authority 
under the statute. Accordingly, as subsequent amendments described 
above have expanded the Secretary's authority, FinCEN has understood 
the authority to be coextensive with the statute. To avoid any 
potential confusion regarding FinCEN's authority under the statute, 
this final rule updates the regulation to reflect the subsequent 
statutory amendments. This rule does not materially amend the other 
provisions in the regulation, except for one amendment to FinCEN's 
procedure for directing orders to chief executive officers. The rule 
amends that procedure to conform it to the amended statute by adding 
``nonfinancial trades or businesses'' after ``financial institution'' 
in the paragraph where the procedure is described.

II. Section-by-Section Analysis

A. Section 1010.370 Section Title

    The section heading is changed from ``Reports of certain domestic 
coin and currency transactions'' to ``Reports of certain domestic 
transactions'' to align with the statutory Section Title.

B. Section 1010.370(a)

    Paragraph (a) has been divided into three parts: (a)(1), (2), and 
(3). The revised paragraph (a)(1) contains the language in current 
Sec.  1010.370(a), but with the following additions and substitutions 
of terms that are reflected in 31 U.S.C. 5326(a): ``chapter or to'' is 
substituted for ``chapter and to''; ``, or any domestic nonfinancial 
trade or business or group of domestic nonfinancial trades or 
businesses,'' is added after ``group of domestic financial 
institutions''; ``transfer of funds (as the Secretary may describe in 
such order)'' is substituted for ``transfer of United States coins or 
currency (or such other monetary instruments as the Secretary may 
describe in such order)''; and ``or group of domestic financial 
institutions, or domestic nonfinancial trade or business or group of 
domestic nonfinancial trades or businesses'' is added after ``such 
financial institution'', and further adds ``nonfinancial trade or 
business'' after ``financial institution'' to clarify FinCEN's 
procedure for directing orders to chief executive officers, if any.
    Paragraphs (a)(2) and (3) reflect the language set forth in 31 
U.S.C. 5326(b).

C. Section 1010.370(b)

    Paragraph (b) contains the language in current Sec.  1010.370(b), 
but substitutes ``funds'' for ``currency'' and ``currency and/or 
monetary instruments'' to reflect the use of the term ``funds'' 
throughout 31 U.S.C. 5326.

D. Section 1010.370(d)(1)

    Paragraph (d)(1) contains the language in current Sec.  
1010.370(d)(1), but replaces ``60 days'' with ``180 days,'' to reflect 
the language in 31 U.S.C. 5326(d).

E. Section 1010.370(e)

    New paragraph (e) reflects the nondisclosure language that is set 
forth in 31 U.S.C. 5326(c).

III. Administrative Procedure Act

    The Administrative Procedure Act (APA) (codified in relevant part 
at 5 U.S.C. 553), generally requires that agencies give interested 
persons an opportunity to participate in a rulemaking by the submission 
of comments, except when, among other reasons, the agency is amending 
its own ``rules of agency organization, procedure, or practice'' or the 
agency finds good cause that notice and public procedure are 
``impracticable, unnecessary, or contrary to the public interest.'' 
Likewise, the APA requires a delayed effective date for a rule except 
under certain conditions, including rules of agency procedure, and as 
provided by the agency for good cause found and published with the 
rule.
    FinCEN finds that public procedure is unnecessary, as this final 
rule merely updates the regulation to reflect the terms set forth in 
the underlying statute in order to avoid any potential confusion 
regarding FinCEN's statutory authority under Section 5326. Because the 
final rule conforms the regulation to the statute and reflects no 
discretionary or substantive determination, public procedure would not 
inform this rule. For similar reasons, FinCEN also finds that a delayed 
effective date is unnecessary. Because FinCEN understands its authority 
to be coextensive with the statute, this update to the regulation does 
not alter FinCEN's authority and merely provides clarity to the public.
    In conforming the regulation to the statute, this rule also adds 
the phrase ``nonfinancial trades or businesses'' after ``financial 
institution'' in the provision relating to FinCEN's procedure for 
directing orders to chief executive officers. This update does not 
change the procedure specified in the regulation, but only updates it 
to reflect the statute's inclusion of ``nonfinancial trades or 
businesses.'' FinCEN finds that public procedure and a delayed 
effective date are unnecessary for this amendment because it amends a 
rule of agency procedure, and in any event, merely conforms that rule 
to the statute.

IV. Regulatory Flexibility Act

    Because no notice of proposed rulemaking is required, the 
provisions of the Regulatory Flexibility Act (5 U.S.C. 601 et seq.) do 
not apply.

V. Executive Order 12866

    This final rule is not a significant regulatory action under 
section 3.f. of Executive Order 12866.

VI. Paperwork Reduction Act

    The collection of information contained in this rule has been 
reviewed and approved by the Office of Management and Budget (OMB) 
under the Paperwork Reduction Act of 1995 (44 U.S.C. 3507(d)), and has 
been assigned OMB Control Number 1506-0056. An agency may not conduct 
or sponsor, and a person is not required to respond to, a collection of 
information unless it displays a valid OMB control number.

List of Subjects in 31 CFR Part 1010

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

Authority and Issuance

    For the reasons set forth in the preamble, part 1010 of chapter X 
of title 31 of the Code of Federal Regulations are amended as follows:

PART 1010--GENERAL PROVISIONS

0
1. The authority citation for part 1010 is revised to read:

    Authority:  12 U.S.C. 1829b and 1951-1960; 31 U.S.C. 5311-5314 
and 5316-5336; title III, sec. 314, Pub. Law 107-56, 115 Stat. 307; 
sec. 701, Pub. L. 114-74, 129 Stat. 599.

0
2. Section 1010.370 is amended by revising the section heading and

[[Page 62916]]

paragraphs (a), (b), and (d)(1) and adding paragraph (e) to read as 
follows:


Sec.  1010.370  Reports of certain domestic transactions.

    (a)(1) If the Secretary of the Treasury finds, upon the Secretary's 
own initiative or at the request of an appropriate Federal or State law 
enforcement official, that reasonable grounds exist for concluding that 
additional recordkeeping and/or reporting requirements are necessary to 
carry out the purposes of this chapter or to prevent persons from 
evading the reporting/recordkeeping requirements of this chapter, the 
Secretary may issue an order requiring any domestic financial 
institution or group of domestic financial institutions, or any 
domestic nonfinancial trade or business or group of domestic 
nonfinancial trades or businesses, in a geographic area, and any other 
person participating in the type of transaction, to file a report in 
the manner and to the extent specified in such order. The order shall 
contain such information as the Secretary may describe concerning any 
transaction in which such financial institution or group of domestic 
financial institutions, or domestic nonfinancial trade or business or 
group of domestic nonfinancial trades or businesses is involved for the 
payment, receipt, or transfer of funds (as the Secretary may describe 
in such order) the total amounts or denominations of which are equal to 
or greater than an amount which the Secretary may prescribe.
    (2) The Secretary may, by regulation or order, require any 
depository institution (as defined in section 3(c) of the Federal 
Deposit Insurance Act)--
    (i) To request any financial institution or nonfinancial trade or 
business (other than a depository institution) which engages in any 
reportable transaction with the depository institution to provide the 
depository institution with a copy of any report filed by the financial 
institution or nonfinancial trade or business under the Title 31 
provisions of the Bank Secrecy Act with respect to any prior 
transaction (between such financial institution or nonfinancial trade 
or business and any other person) which involved any portion of the 
funds which are involved in the reportable transaction with the 
depository institution; and
    (ii) If no copy of any report described in paragraph (a)(2)(i) of 
this section is received by the depository institution in connection 
with any reportable transaction to which paragraph (a)(2)(i) applies, 
to submit (in addition to any report required under this subchapter 
with respect to the reportable transaction) a written notice to the 
Secretary that the financial institution or nonfinancial trade or 
business failed to provide any copy of such report.
    (3) For purposes of paragraph (a)(2) of this section, the term 
reportable transaction means any transaction involving funds (as the 
Secretary may describe in the regulation or order) the total amounts or 
denominations of which are equal to or greater than an amount which the 
Secretary may prescribe.
    (b) An order issued under paragraph (a) of this section shall be 
directed to the Chief Executive Officer of the financial institution or 
nonfinancial trade or business and shall designate one or more of the 
following categories of information to be reported: Each deposit, 
withdrawal, exchange of funds or other payment or transfer, by, through 
or to such financial institution specified in the order, which involves 
all or any class of transactions in funds equal to or exceeding an 
amount specified in the order.
* * * * *
    (d)(1) No order issued pursuant to paragraph (a) of this section 
shall prescribe a reporting period of more than 180 days unless renewed 
pursuant to the requirements of paragraph (a).
* * * * *
    (e) No financial institution or nonfinancial trade or business or 
officer, director, employee, or agent of a financial institution or 
nonfinancial trade or business subject to an order under this section 
may disclose the existence of, or terms of, the order to any person 
except as prescribed by the Secretary.

    Dated: November 5, 2021.
Himamauli Das,
Acting Director, Financial Crimes Enforcement Network.
[FR Doc. 2021-24602 Filed 11-12-21; 8:45 am]
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